Ch. 13: Constitutional Freedoms

Human Rights

The basic rights to which all people are entitled as human beings; fundamental freedoms.

U.S. Bill of Rights

First ten amendments to the Constitution guaranteeing individual liberties and due process of law. Prohibits the abuse of power by the national government. Originally, the Bill of Rights did not apply to the actions of states.

Fourteenth Amendment (1868)

1) Granted citizenship to any person born or naturalized in the United States.
2) This amendment protects citizens from abuses by state governments, and ensures due process and equal protection of the law.

Incorporation or
The Doctrine of Incorporation

A process by which the U.S. Supreme Court, using the Fourteenth Amendment, began to apply the guarantees in the U.S. Bill of Rights to state and local governments on a case by case basis. Today, nearly all the rights in the U.S. Bill of Rights have been incorporated.

Freedom of Religion

In the United States, Freedom of Religion is protected by the First Amendment. Two key provisions include the Establishment Clause and the Free Exercise Clause.

Establishment Clause

Clause in the First Amendment that says the government may not establish an official religion.

Free Exercise Clause

A First Amendment provision that prohibits government from interfering with the practice of religion. However, illegal or criminal activities are not protected under the Free Exercise Clause.

The Lemon Test
(Addressing Public Education and Religion)

A three part test created by the U.S. Supreme Court to determine if public aid to religious institutions violated the Establishment Clause.

1) The aid must have a clear . . . non-religious purpose.

2) The aid must not advance nor inhibit religion.

3) The aid must avoid "excessive government entanglement with religion."

Freedom of Speech

The right to express any opinions without censorship or restraint.

Pure Speech

The verbal expression of thought and opinion before an audience that has chosen to listen.

Speech Plus

Speech accompanied by conduct such as sit-ins, picketing, and demonstrations; protection of this form of speech under the First Amendment is conditional, and restrictions imposed by state or local authorities are acceptable if properly balanced by considerations of public order

Symbolic Speech

Nonverbal communication and actions, such as burning a flag or wearing an armband to express opinions. The Supreme Court has accorded some symbolic speech protection under the First Amendment.

Expressive Conduct /
Symbolic Speech
(Limitations)

A state may only ban non-speech elements of expressive conduct if the ban furthers a substantial gov't interest unrelated to suppression of ideas, and prohibits no more speech than necessary. Expressive conduct that endangers public safety, trespasses, or unnecessarily blocks traffic is not protected.

Clear and Present Danger test

Interpretation of the First Amendment that holds that the government cannot interfere with speech unless the speech presents a clear and immediate danger that it will lead to evil or illegal acts.

Bad Tendency Test

Interpretation of the First Amendment that would permit legislatures to forbid speech encouraging people to engage in illegal action.

Preferred Position Doctrine

Interpretation of the First Amendment that holds that freedom of expression is so essential to democracy that governments should not punish persons for what they say, only for what they do. Any law that limits the First Amendment freedoms should be presumed unconstitutional unless the government can show that it is absolutely necessary.

Unprotected Speech

Libel / slander (defamatory speech), obscenity, fighting words, and commercial speech, which are not entitled to constitutional protection in all circumstances.

Seditious Speech

The advocating, or urging, of an attempt to overthrow the government by force, or to disrupt its lawful activities with violence. This type of speech is not protected.

Defamatory Speech

False speech that damages a person's good name, character, or reputation. This type of speech is not protected.

Fighting Words

Words so insulting that they provoke an immediate violent reaction from the listener are not protected.

Freedom of the Press
(Prior Restraint)

A government can prevent material from being published (i.e. - censorship) only if can show that publication would endanger national security.

Shield Laws

State laws that protect journalists from having to reveal their sources. There are current no national shield laws to protect reporters from being forced to reveal their sources of information.

Freedom of Assembly

The right of the people to gather peacefully and to petition government.

Freedom of Assembly
(Court Interpretations)

1) In the interest of public order and safety, government can require demonstrators to obtain advance permission.
2) Authorities may halt a demonstration to preserve order. However, they may not arrest peaceful demonstrators if the audience is the cause of the disorder.
3) Protestors cannot enter facilities such as prisons without permission or hold demonstrations intended to disrupt educational instruction.
4) Protesters cannot convert private property (such as shopping malls) to their own use.
5) Government may ban or limit picketing by labor unions under certain circumstances.
6) The state can restrict "freedom of association" - the right to join an organization - but only if it can show that the group is making actual preparations for the use of force against the government.