Lawmakers Have Repeatedly Tried To Prohibit Flag Burning
The issue of flag desecration demonstrates the limits of congressional actions.
In dealing with a case of flag-burning engaged in as a form of political protest, the Supreme Court in Texas v. Johnson asserted that the fundamental principle underlying the First Amendment is that government cannot prohibit expression of ideas simply because society may find the idea disagreeable or offensive.
In response, Congress denounced the Court and passed a federal law banning flag burning that the Court then proceeded to strike down in United States v. Eichman. Congress has subsequently attempted to amend the Constitution to prohibit flag desecration, but since 1995 these attempts have failed to gain sufficient votes. The most recent attempt to have an amendment adopted was in June 2006. The measure easily cleared the House, but failed by one vote in the Senate.
Freedom Of Speech Does Not Include The Right:
- To incite imminent lawless action.Brandenburg v. Ohio, 395 U.S. 444 .
- To make or distribute obscene materials.Roth v. United States, 354 U.S. 476 .
- To burn draft cards as an anti-war protest.United States v. OBrien, 391 U.S. 367 .
- To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 .
- Of students to make an obscene speech at a school-sponsored event.Bethel School District #43 v. Fraser, 478 U.S. 675 .
- Of students to advocate illegal drug use at a school-sponsored event.Morse v. Frederick, __ U.S. __ .
Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation.
DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.
The Right We Are Appealing To Was Not Created By The Constitution
While civil government is invested with divine authority to rule the state, neither of those texts grants civic rulers jurisdiction over the church. God has established three institutions within human society: the family, the state, and the church. Each institution has a sphere of authority with jurisdictional limits that must be respected. A fathers authority is limited to his own family. Church leaders authority is limited to church matters. And government is specifically tasked with the oversight and protection of civic peace and well-being within the boundaries of a nation or community. God has not granted civic rulers authority over the doctrine, practice, or polity of the church. The biblical framework limits the authority of each institution to its specific jurisdiction. The church does not have the right to meddle in the affairs of individual families and ignore parental authority. Parents do not have authority to manage civil matters while circumventing government officials. And similarly, government officials have no right to interfere in ecclesiastical matters in a way that undermines or disregards the God-given authority of pastors and elders.
To government officials, we respectfully say with the apostles, Whether it is right in the sight of God to give heed to you rather than to God, you be the judge . And our unhesitating reply to that question is the same as the apostles: We must obey God rather than men .
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Congressional Investigations During Mccarthy Era Raised Questions About Right Of Association
The right of peaceable assembly protects the right of individuals to join, participate in, or organize groups, activities, or gatherings including political parties, unions, or interest groups without restrictions from the government. On occasion, however, Congress has attempted to limit the assembly of groups that it considers to be violent.
In United States v. Cruikshank, the Supreme Court held that citizens may assemble for the purpose of petitioning Congress for a redress of grievances. The Court in later cases, among them Hague v. Committee for Industrial Revolution , expanded the meaning of the right to assembly to the purpose of communicating views on national questions and for disseminating information.
The right to association allows individuals to mutually choose their acquaintances for whatever purpose they see fit. It is closely aligned with the right of assembly. The Supreme Court derived this right from the First Amendment guarantees of speech, assembly, and petition.
The Court expanded legal protections for the right of association in a series of cases in the 1950s and 1960s involving some states efforts to curb the activities of the National Association for the Advancement of Colored People .
Congress Shall Make No Law Respecting An Establishment Of Religion Or Prohibiting The Free Exercise Thereof Or Abridging The Freedom Of Speech Or Of The Press Or The Right Of The People Peaceably To Assemble And To Petition The Government For A Redress Of Grievances
August 8, 2022 by Warren Blumenfeld
Are or should our rights be granted by the government, or, rather, was Thomas Jefferson correct when writing in the Declaration of Independence that
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.
In this instance, unalienable Rights include those that we as humans are naturally born with and cannot be taken away or repealed by any person or government.
The overarching foundation on which the United States Constitution rests is the primary assumption that the rights of we the people are protected from governmental power, rather than granted by that government.
John Locke, in his 1690 Second Treatise of Government, put forward the concept that the power of government originates from the consent of the governed. Stated Locke:
Men being, as has been said, by nature, all free, equal and independent, no one can be put out of this estate and subjected to the political power of another, without his own consent.
Lockes positions of freedom and liberty by nature established the nucleus of the First Amendment in the Bill of Rights, which declares:
But by whose definition of nature or natural law can we understand as divinely inspired? In other words, whose definitions do we follow?
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Congress Has Sought To Restrict Free Speech
Regardless of the speech and press clauses of the First Amendment, a Federalist-dominated Congress adopted the short-lived Sedition Act of 1798, which made it a crime to criticize the president of the United States.
Schenck v. United States is the first case in which the Supreme Court was asked to strike down a law violating the free speech clause.
The issue arose after Charles Schenck published leaflets challenging the conscription system then in effect. The Court unanimously upheld Schencks conviction for violating the Espionage Act of 1917 and in doing so established a test requiring a clear and present danger for proscribing speech. It applied the Schenck test in Debs v. United States but applied the less stringent bad tendency test in Gitlow v. New York .
Although the Court generally made the ultimate decision on the constitutionality of congressional legislation, it often deferred to congressional judgments as to which speech constituted a danger. Thus in enacting the Smith Act of 1940, Congress made punishable the advocacy of overthrowing or destroying the U.S. government by force or violence. The constitutionality of the act was challenged in Dennis v. United States , but the Court upheld it by a 6-2 vote, relying on a modified version of the clear and present danger test.
United States Bill Of Rights
The First Amendment is part of a group of 10 Amendments to the United States Constitution known as the Bill of Rights. The idea of adding a Bill of Rights to the Constitution was proposed by George Mason five days before the conclusion of the Constitutional Convention held in Philadelphia in 1787.:9 His proposal was rejected by the other delegates. Alexander Hamilton later argued in The Federalist Papers that a Bill of Rights was unnecessary, claiming that since the Constitution granted limited powers to the federal government, it did not grant the new government the power to abuse the rights that would be secured by a Bill of Rights.:9â10 Nevertheless, the supporters of the Constitution in order to secure its ratification in Massachusetts, agreed to add a group of Amendments to the Constitution after its ratification that would serve as a Bill of Rights. Later, six more states likewise recommended the addition of a Bill of Rights, and the idea also gained the support of Jefferson and Madison. When the First Federal Congress met in 1789, Madison implemented the idea by introducing 17 Amendments to the Constitution. By December 1791, ten of his Amendments were ratified by the necessary three quarters of the states, and they became part of the US Constitution, thereafter becoming known as “the Bill of Rights”.
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Free Exercise Of Religion
The Free Exercise Clause offers a double protection, for it is a shield not only against outright prohibitions with respect to the free exercise of religion, but also against penalties on the free exercise of religion and against indirect governmental coercion. Relying on Employment Division v. Smith and quoting from Church of the Lukumi Babalu Aye, Inc. v. Hialeah the Supreme Court stated in Trinity Lutheran Church of Columbia, Inc. v. Comer that religious observers are protected against unequal treatment by virtue of the Free Exercise Clause and laws which target the religious for “special disabilities” based on their “religious status” must be covered by the application of strict scrutiny.
To accept any creed or the practice of any form of worship can’t be compelled by laws, because, as stated by the Supreme Court in Braunfeld v. Brown , the freedom to hold religious beliefs and opinions is absolute. Federal or state legislation can’t therefore make it a crime to hold any religious belief or opinion due to the Free Exercise Clause. Legislation by the United States or any constituent state of the United States which forces anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets is also barred by the Free Exercise Clause. Against this background, the Supreme Court stated that Free Exercise Clause broadly protects religious beliefs and opinions:
Virginia Statute For Religious Freedom
A possible additional precursor of the Free Exercise Clause was the Virginia Statute for Religious Freedom. The statute was drafted by Thomas Jefferson in 1777 and was introduced in the Virginia General Assembly in 1779. It did not pass the General Assembly until 1786. James Madison played an important role in its passage. The statute disestablished the Church of England in Virginia and guaranteed freedom of religion exercise to men of all religious faiths, including Catholics and Jews as well as members of all Protestant denominations.
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The Full Text Of The Bill Of Rights
Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Constitution Of The United States
The Constitution assigned to Congress responsibility for organizing the executive and judicial branches, raising revenue, declaring war, and making all laws necessary for executing these powers. The president is permitted to veto specific legislative acts, but Congress has the authority to override presidential vetoes by two-thirds majorities of both houses. The Constitution also provides that the Senate advise and consent on key executive and judicial appointments and on the approval for ratification of treaties.
For over two centuries the Constitution has remained in force because its framers successfully separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the federal and state governments. More a concise statement of national principles than a detailed plan of governmental operation, the Constitution has evolved to meet the changing needs of a modern society profoundly different from the eighteenth-century world in which its creators lived. To date, the Constitution has been amended 27 times, most recently in 1992. The first ten amendments constitute the Bill of Rights.
Annotated Constitutions
The Constitution of the United States of America: Analysis and Interpretation contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law.
Original Text
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Things You Need To Know About The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment to the U.S. Constitution
Congress Shall Make No Law Respecting An Establishment
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Congress shall make no law Respecting an establishment of religion, or prohibiting the free exercise thereof
Prior to 1791 Colonial Practices: v Churches supported by taxes v Voting rights tied to church membership v Required to go to church on Sunday v Schools incorporated religious practice including required prayer Constitution: v Article IV states: no religious test shall ever be required as qualification to any office or public trust under the United States.
Saluting the Flag
What do we know about 1938 America?
Infringement of civil rights Minersville, PA 90% Roman Catholic Claimants: Walter Gobitas children Lillian & Billy Argued that to worship or idolize worldly things or graven images was an affront to religious beliefs.
Minersville School District v. Gobitis Some animosity toward Jehovahs Witnesses 1935 objection to compelled speech. Carleton Nichols The year is 1938concern for what is going on in the world unity and nationalism becomes pressing by the time 1940 Supreme Court ruling happens. National unity is the basis of national security
At Issue
At Issue From the School District For Jehovahs Witnesses Desire to control what occurs in classroom Compelled speech violates religious tenets Nationalist movement due to world events Is non-participation considered free speech? Dominant suspicion of Jehovahs Witnesses Action is in response at least in part to wider public abuses.
Whose religious Liberty?
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First Amendment To The United States Constitution
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The First Amendment to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
The Bill of Rights was proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York , the Supreme Court applied the First Amendment to statesa process known as incorporationthrough the Due Process Clause of the Fourteenth Amendment.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota and New York Times v. United States , the Supreme Court ruled that the First Amendment protected against prior restraintpre-publication censorshipin almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
