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Freedom of Expression/Legal Codification/US implicit

2024-08-03T04:48:21Z

Dmarsh1:

{{Right section
|right=Freedom of Expression
|section=Legal Codification
|question=US implicit
|questionHeading=Has it been interpreted as being implicit in the US Constitution?
|pageLevel=Question
|contents=The United States Supreme Court has gradually portrayed freedom of expression as being implicit in the U.S. Constitution. This reality stems from legitimate discourse on activities that may not fall under the grammatical definition of speech, but nevertheless warrant protection by the judiciary in order for democratic norms to prevail. From early cases pertaining to free religious exercise to several landmark judgments in the latter half of the 20th Century, the Court has introduced and expanded its mythology surrounding free expression. Some forms of expression that may be protected—and regulated—include religious expression, protests, fighting words, imminent threats, obscenity, and expressive student conduct in academic settings.

Prior to various cases dealing with the Free Exercise Clause of the First Amendment, no significant attempt had been made by the court to examine the relationship between free expression and American constitutional law. Despite the separate inclusion of freedom of religion in the Constitution, cases revolving around religious activity have shaped the Court’s commentary on free expression. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court ruled in favor of a group of Jehovah’s Witnesses in New Haven who had been prosecuted for engaging in religious solicitation without a license from the local government. The justices primarily asserted that the Constitution guarantees the “freedom to act” for the Cantwell solicitors, or other groups that engage in religious expression (Justice Roberts, 1940). Solicitation can neither be termed as purely speech or purely expressive, however, due to the combination of speech and physical expeditions that are typically involved. While the freedom to “act” may insinuate a right to engage in expressive activities, the justices never directly mentioned expression—a reality that, combined with the ambiguous nature of soliciting, did not establish expression as a fundamental right.

Given the legal ambiguity established by Cantwell, the Court likely understood the necessity of defining expression as it pertained to religious issues. In Sherbert v. Verner, 374 U.S. 398 (1963), the justices established a compelling interest test for government statutes that potentially abridge certain forms of religious expression. Writing for the majority in response to a lawsuit from a Seventh-Day Adventist who was fired and denied unemployment benefits for refusing to work on Saturday, Justice Brennan asserted that “the imposition of such a condition [labor mandates lacking in exemptions for religious workers] … inevitably deterred or discouraged the exercise of First Amendment rights of expression” for religious groups (Justice Brennan, 1963). Given that this ruling directly mentioned free expression in response to a lawsuit claiming religious discrimination, it can be argued that Sherbert clarified the position of free religious expression implied by Cantwell.

Following several landmark decisions on expression issued by the Warren and Burger Courts, religious exercise reintroduced itself in the ongoing debate over the extent to which freedom of expression can be invoked in the courtroom. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court rejected a Free Exercise Clause challenge of a narcotics statute in Oregon (specifically, one that regulated Peyote, which was ingested by Native American Church adherents as a religious custom) while acknowledging attempts in the past to “punish the expression of religious doctrines [the state] believes to be false” (Justice Scalia, from United States v. Ballard, 322 U.S. 78 (1944). In a ruling that was sharply criticized by religious groups following its release, the Court confirmed the implicit right of expression as it pertains to religion. While it may be argued that the decisions in Cantwell, Sherbert, and Smith merely affirmed the previously enumerated right of free religious exercise, the various references to expression in all three of these decisions fit within a broader line of judicial reasoning in expression-based cases that extend beyond religion, which will be further discussed below.

As Smith indicates, The Court’s acknowledgment of freedom of expression being an implicit right can be evidenced by decisions that limit this right altogether. In ruling that expressive activities that constitute a clear and present danger to the public are not protected, for example, the Court implies that any activities that do not exhibit this danger are lawful. This precedent was established by Schenck v. United States, 249 U.S. 47 (1919), which affirmed the ability of government officials to censor modes of expression (i.e. Charles Schenck's pamphlets, which advocated for illegally avoiding the draft) that impede on the government’s ability to wage war, while acknowledging that such activities may be protected during times of peace. As the distribution of pamphlets would likely constitute expression rather than physical speech, it may be inferred that the justices, in limiting freedom of expression in some cases, acknowledged its legality in others.

The Court furthered this assertion in United States v. O’Brien, 391 U.S. 367 (1968) by ruling that the burning of draft cards in public places during times of war is not protected speech, as the prohibition of this activity was “an important or substantial governmental interest unrelated to the suppression of free expression” (Justice Warren, 1968). In both decisions, the Court chose to constrain—rather than outlaw—forms of expression that cannot be termed as speech. Finally, governmental regulations for public protests were affirmed in Cox v. New Hampshire 312 U.S. 569 (1941), in which the justices asserted that “time, place, and manner restrictions” have the effect of “safeguarding the good order upon which [civil liberties] ultimately depend” (Justice Hughes, 1941). Given that no right can be limited without prior acknowledgement of its existence, it can be argued that the Court implicitly recognized free expression in Schenck and Cox before directly mentioning it in O’Brien.

In light of the Court’s commentary on free expression when confronted with issues pertaining to free exercise and public disturbances, its decisions in Barnette, Tinker, and Morse represent the most notable examples of free expression being recognized as an implicit right. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the court condemned an effort by school administrators to force students to salute the American Flag as an “effort” to “muffle expression” in the schoolhouse (Justice Jackson, 1943). Despite their dissent being primarily motivated by personal religious beliefs, the plaintiffs alleged a violation of the Speech Clause of the First Amendment. The Court clearly interpreted the situation as compelled expression, as defining it as physical speech would not accurately reflect the situation.

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court broadly affirmed the implicit right to free expression in a decision that largely reflected the language of cases that have already been discussed. The justices affirmed that any governmental interest in promoting order in public schools is “not enough to overcome the right to freedom of expression” enjoyed by students, who “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Justice Fortas, 1969). In this instance, the Court emphasized freedom of expression without qualification, as its commentary on restrictions that school officials could plausibly enact without abridging the rights of students serves to further affirm the existence of free expression. This rationale was reaffirmed by Morse v. Frederick, 551 U.S. 393 (2007), in which the Court limited student speech (or, more precisely, displaying a banner) that can be “reasonably regard[ed] as promoting illegal drug use,” which remains a major example of the judiciary restricting the implicit right of free expression (Justice Roberts, 2002). In reaffirming and providing exceptions for the precedent set by Tinker (with the exception of Justice Thomas, who called for Tinker to be overruled), the Court maintained its record of acknowledging and limiting free expression.

Following the Court’s landmark decision in Tinker, the question of implicitness was all but resolved, and nearly all subsequent cases served to determine the scope—rather than legitimacy—of free expression. Eventually, the justices were again confronted with the issues of anti-war expression and profanity following peace activist Paul Cohen’s arrest in a California courthouse for wearing a shirt depicting an explicit anti-war slogan. In Cohen v. California 403, U.S. 15 (1971), the Court asserted that California’s law prohibiting such behavior “infringed [Cohen's] rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution,” which were extended to the states via selective incorporation through the Due Process Clause (Justice Harlan, 1971). In Texas v. Johnson, 491 U.S. 397 (1989), the Court again confronted the issue of expression deemed profane by governmental actors in ruling that the burning of the American Flag represented “expressive conduct” that was “sufficiently imbued with elements of [political] communication,” making it protected under the Due Process Clause (Justice Brennan, 1989).

In Cohen and Johnson, the Court rejected attempts by state government officials to impose limitations on forms of expression it viewed as offensive to the general public—a remarkable feat for freedom of expression, which would nevertheless be limited in other cases. Expression pertaining to pornographic material was hindered in Miller v. California, 413 U.S. 15 (1973), which concerned the right (or lack thereof) of businesses to distribute explicit content through the U.S. Postal Service. In ruling that obscene expression can be regulated while “acknowledging the inherent dangers of undertaking to regulate any form of expression,” the Court established a clear standard for certain forms of explicit expression that can be regulated (Justice Burger, 1973). In Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015), the justices ruled that state governments can reject proposed license plate designs on account of their potential to offend the general public due to their established history of “communicat[ing] messages from the States.” In particular, the Court cited Arizona's “Hereford Steer” License Plate, New Hampshire's “Old Man of the Mountain” License Plate, and various other examples of license plates in other states to affirm this argument (Justice Breyer, 2015).

In summary, the implicit right of free expression has developed from the commentary of free exercise cases and evolved into an implied right that the Supreme Court no longer questions. It does not contain any strict limitations, as any standard beyond the establishment of an overbearing governmental interest would negate its effect of addressing the shortcomings of the free speech clause.

Cantwell v. Connecticut, 310 U.S. 296 (1940)
https://supreme.justia.com/cases/federal/us/310/296/

Sherbert v. Verner, 374 U.S. 398 (1963)
https://supreme.justia.com/cases/federal/us/374/398/

Employment Division v. Smith, 494 U.S. 872 (1990)
https://supreme.justia.com/cases/federal/us/494/872/

United States v. Ballard, 322 U.S. 78 (1944)
https://supreme.justia.com/cases/federal/us/322/78/

Schenck v. United States, 249 U.S. 47 (1919)
https://supreme.justia.com/cases/federal/us/249/47/

United States v. O’Brien, 391 U.S. 367 (1968)
https://supreme.justia.com/cases/federal/us/391/367/

Cox v. New Hampshire 312 U.S. 569 (1941)
https://supreme.justia.com/cases/federal/us/312/569/

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
https://supreme.justia.com/cases/federal/us/319/624/

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
https://supreme.justia.com/cases/federal/us/393/503/

Morse v. Frederick, 551 U.S. 393 (2007)
https://supreme.justia.com/cases/federal/us/551/393/

Cohen v. California 403, U.S. 15 (1971)
https://supreme.justia.com/cases/federal/us/403/15/

Texas v. Johnson, 491 U.S. 397 (1989)
https://supreme.justia.com/cases/federal/us/491/397/

Miller v. California, 413 U.S. 15 (1973)
https://supreme.justia.com/cases/federal/us/413/15/

Walker v. Texas, Sons of Confederate Veterans, 576 U.S. 200 (2015)
https://supreme.justia.com/cases/federal/us/576/200/

Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.

Yes. The First Amendment is presumed to guarantee the right to free expression by guaranteeing the right to freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, though the phrase “freedom of expression” is not explicitly used in the Constitution.
}}

Freedom of Association/History/Noteworthy written sources

2024-08-03T03:59:09Z

Dmarsh1:

{{Right section
|right=Freedom of Association
|section=History
|question=Noteworthy written sources
|questionHeading=Is there another noteworthy written source from the past that mentions this right?
|pageLevel=Question
|contents=Freedom of association, as it is defined today, largely originates from the works of various political theorists. Early recognition of this freedom, however, can be found before and after the lifetimes of John Locke, Jeremy Bentham, and John Stuart Mill. Following the enactment of a constitution in 1815, the newly-independent Kingdom of the Netherlands took concrete steps to codify freedom of expression, which took this form following revisions in 1848 and 1983:
“The right of association shall be recognized. This right may be restricted by Act of Parliament in the interest of public order" (Article 8).

The early Dutch interest in protecting free association arguably stemmed from their war of independence against Spain, and the decentralized form of republican governance that followed. This phenomenon is evidenced by the Union of Utrecht (1579) and the Act of Abjuration (1581). While neither document explicitly mentions the right to free association, they establish the necessary framework for its eventual adoption into the Dutch Constitution.

The Union of Utrecht was enacted prior to a formal declaration of independence from Spain, and would eventually influence the U.S. Articles of Confederation (for better or worse). It declared that the provinces and cities of the United Netherlands are entitled to “special and particular privileges,” as well as the freedom to maintain regional “franchises” and “long practiced customs.” This language primarily served as an acknowledgement of the differing factions and organizations that existed within and beyond Holland, and the efforts by William of Orange and other Dutch revolutionaries to garner a larger base of support. Regarding religion (an issue largely forced upon them by the Spanish Inquisition), the document protected individuals from being “investigated or persecuted because of [their] religion,” and allowed for religious ordinances to be established on a regional basis so they could be “most fitting for the repose and welfare” of different communities. In protecting religious freedom, the Union of Utrecht implicitly acknowledged the right to join religious organizations, which amounted to an intersection between the issues of religion and association.

The Act of Abjuration represented a definitive declaration of independence from Spain, which came to fruition following the Eighty Years’ War. The authors of this document asserted that royal subjects, when confronted with a tyrannical ruler, may collectively “proceed to the choice of another prince for their defense.” They admonished Habsburg Spain, which operated “under the mask of religion” to suppress associations in Holland that dissented against Catholicism or Spanish political rule. As the discontented subjects of a monarch can reasonably be termed as an association with shared interests, this document would theoretically assert their right to collective action. The Act of Abjuration sought to identify and protect the interests of Dutch society as a whole, while asserting that smaller associations within this broader collective were entitled to the political power previously wrested from them by Spain.

Neither the Act of Abjuration nor the Union of Utrecht explicitly mentioned the right to free association. The eventual adoption of this right in the Constitution of the Kingdom of the Netherlands in 1848, however, affirmed an ideological movement promoting free association that began in earnest during the Dutch revolution against Habsburg Spain. This experience undoubtedly shaped the Constitution of 1815, which currently recognizes free association as an enumerated right.

“Act of Abjuration 1581, Dutch Declaration of Independence.” n.d. Www.age-of-The-Sage.org. https://www.age-of-the-sage.org/history/dutch_independence_1581.html.

“Union of Utrecht 1579.” n.d. Www.constitution.org. https://www.constitution.org/1-Constitution/cons/dutch/Union_Utrecht_1579.html.

“Recht Tot Vereniging.” 2021. Gert-Jan Leenknegt, Nederland Rechtsstaat. November 1, 2021. https://www.nederlandrechtsstaat.nl/grondwet/inleiding-bij-hoofdstuk-1-grondrechten/artikel-8-recht-tot-vereniging/.

Netherlands 1814 (Rev. 2008). n.d. Constitute. Comparative Constitutions Project. Accessed August 1, 2024. https://www.constituteproject.org/constitution/Netherlands_2008.

Pope Leo XIII forcefully argued for free association in Section 51 of Rerum novarum ([[Probable year:: 1891]]) , an extremely influential text in Catholic thought.

"Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a "society" of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them."

References:

Catholic Church. Pope (1878-1903 : Leo XIII). Rerum Novarum : Enciclica Di Leone XIII Sulla Questione Operaia. Lugano :Edizione a cura dell'Organizzazione cristano-sociale del canton Ticino per la celebrazione del LXX, 1961.
}}

Freedom of Religion/Legal Codification/US

2024-08-03T03:51:54Z

Dmarsh1:

{{Right section
|right=Freedom of Religion
|section=Legal Codification
|question=US
|questionHeading=Is it contained in the US Constitution?
|pageLevel=Question
|contents=Freedom of religion is included in the First Amendment of the United States Constitution.

“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 right to free religious exercise was enshrined in the presence of several other noteworthy rights, and was complemented by what we refer to today as the Establishment Clause—a provision mandating the separation of stately matters and religion. Furthermore, the Free Exercise Clause was later expanded by proxy through the Due Process Clause of the Fourteenth Amendment.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment established the process of Selective Incorporation, which extended the Bill of Rights to state governments. The extent of religious freedom guaranteed by the Constitution remains an open question, however, as the evolution of case law pertaining to the Free Exercise Clause and the Establishment Clause has gradually created a formula of exceptions and standards for governments and religious organizations alike.

Given that Constitutionally-protected rights must be manually incorporated to the states, the incorporation of the Free Exercise Clause by the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940) represented a milestone for religious freedom. The arrest of several Jehovah’s Witnesses in New Haven, Connecticut due to their failure to obtain a religious solicitation license provoked a free exercise lawsuit against the city. Ruling for the Witnesses, the Court decried the “censorship of religion” based on its “right to survive” in a hostile environment (Justice Roberts, 1940). Despite their statements in support of religious freedom, the justices also used the Cantwell decision to imply different ways that religious expression can be regulated while acknowledging the government’s interest in maintaining public order.

In light of the Cantwell precedent, a strenuous situation unfolded between religious organizations and the government, given that the latter’s power to prosecute certain religious activities was both restricted and affirmed by the Court. This situation escalated following the adoption of the Sherbert-Yoder test. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court ruled in favor of Adeil Sherbert, a Seventh-day Adventist in South Carolina who was fired—and denied unemployment benefits—for refusing to work on Saturday, which is viewed as a religious holiday by the Seventh-day Adventist Church. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the justices struck down a Wisconsin statute mandating a public education for children under the age of 16 following a lawsuit from several Amish residents, who accused the law of infringing on their religious exercise.

The Sherbert-Yoder test mandated that strict scrutiny be applied to laws that potentially infringe on religious freedom. Specifically, the state must prove that the law in question is vital to achieving a compelling interest, and that no less restrictive alternatives exist. South Carolina’s refusal to accommodate Adeil Sherbert in spite of her “declared ineligibility” to work on Saturdays, for example, forced her to choose between her financial well-being and religious adherence—a reality that could have reasonably been accommodated by exceptions for practicing Seventh-Day Adventists (Justice Brennan, 1963). Comparatively, the Wisconsin Statute struck down by Yoder did not offer any religious exemptions to compulsory public school attendance. Due to the well-established nature of Amish primary education, such an exception could reasonably have been made in this case without compromising the state’s interest in ensuring an educated populace.

Despite the high standard created by strict scrutiny for the incidental suppression of religious exercise, the Court established clear exceptions for the Free Exercise Clause in Braunfeld v. Brown, 366 U.S. 599 (1961) and Goldman v. Weinberger, 475 U.S. 503 (1986), two cases that preceded and followed the Court’s adoption of the Sherbert-Yoder test, respectively (both cases predated the Smith test, which will be further discussed below). In Braunfeld, the constitutionality of a Pennsylvania Blue Law (ordinances that ban nonessential commercial activity on a certain day, most commonly Sunday) was challenged by Abraham Braunfeld, an Orthodox Jew who could not work on Saturdays due to his religion. Ruling for the state, the justices asserted that Pennsylvania’s attempt to create a “day of rest” represented one of many “important social duties” afforded to the state (Justice Warren, 1961). Given that religious exceptions would likely compromise the legitimacy of this effort by promoting typical commercial activities, no realistic alternative existed for Pennsylvania—a key difference from the situation in Sherbert. Finally, the Court gave its typical deference to “the professional judgment of military authorities” in Goldman (Justice Rehnquist, 1986). The justices ruled that Simcha Goldman, a United States Air Force captain who challenged the Air Force Dress Code due to its prohibition of religious garments, was not entitled to wear a yarmulke while serving in the military.

Despite the various examples of court-imposed limitations to religious activity evidenced by Braunfeld and Goldman, the Sherbert-Yoder test continued to provide a high bar for governmental intrusions on free exercise. The purview of this test was greatly limited, however, by the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), in which the justices rejected a free exercise claim from the Native American Church in Oregon. Two adherents to the Church were fired from their jobs for ingesting peyote, a practice encouraged by their religion but outlawed in the state of Oregon. Like Sherbert, they were fired and denied unemployment benefits. Writing for the majority, Justice Scalia asserted that the Oregon statute was “generally applicable criminal law” that was not designed to infringe on the Native American Church—a stark departure from the Court’s rulings on supposedly secular laws in Sherbert and Yoder. Unlike both cases, however, an exception for Smith would have likely imperiled the legitimacy of Oregon’s drug control laws, thereby creating a problematic issue for public safety. Following this ruling, broad public outcry prompted congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which effectively mandated the reapplication of the strict scrutiny standard for all levels of government. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court curtailed the RFRA by limiting its purview to federal issues.

In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the court pivoted back to the least restrictive means test outlined in Sherbert and Yoder without explicitly overruling Smith. In response to a provision by the Affordable Care Act requiring for-profit corporations to provide funding for contraceptives as part of their insurance plans, the owners of Hobby Lobby filed suit, alleging the law violated the RFRA and the Free Exercise Clause. Ruling for Hobby Lobby, the Court asserted that any contraceptive mandate would compel the Burwell family to “facilitate access to contraceptive drugs or devices” that would violate their “sincere Christian beliefs” (Justice Alito, 2014). Furthermore, the justices contended that exemptions for closely-held for-profit companies such as Hobby Lobby would have represented a less restrictive measure—an argument that encapsulated the broader shift towards the Sherbert-Yoder test for certain cases.

Contrary to the Free Exercise Clause, the Establishment Clause plays a more subtle role in matters pertaining to religious exercise. The question of whether freedom of religion includes the right to be free from religion has been debated since the inception of the Constitution, and several cases pertaining to the Establishment Clause have also created implications for free exercise. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court established a standard for determining any governmental violations of the Establishment Clause, highlighted by its prohibition of activities that constitute “an excessive government entanglement with religion” (Justice Burger, 1971).

The ambiguity of this test was made clear by Kennedy v. Bremerton School District, 597 U.S. 507 (2022), in which the Court ruled in favor of a public high school football coach in Washington State who had been suspended for holding prayers with his students during school events. This decision replaced the Lemon test with the “historical practices and understandings” test, which asserted that Christianity can be treated as an American cultural phenomenon. This line of reasoning was previously implied in Van Orden v. Perry, 545 U.S. 677 (2005) and American Legion v. American Humanist Association, 588 U.S. ___ (2019), in which the presence of Christian religious symbols on public property (outside a courthouse and in a veterans' cemetery, respectively) were upheld for their cultural—rather than religious—significance. While the cultural importance of Christianity to American culture cannot be denied, this test does not deny that Christian exercises or objects within public property are inherently religious—a dilemma that has sparked fierce debate since the Kennedy ruling.

Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/

Sherbert v. Verner, 374 U.S. 398 (1963)
https://supreme.justia.com/cases/federal/us/374/398/

Wisconsin v. Yoder, 406 U.S. 205 (1972)
https://supreme.justia.com/cases/federal/us/406/205/

Braunfeld v. Brown, 366 U.S. 599 (1961)
https://supreme.justia.com/cases/federal/us/366/599/

Goldman v. Weinberger, 475 U.S. 503 (1986)
https://supreme.justia.com/cases/federal/us/475/503/

Employment Division v. Smith, 494 U.S. 872 (1990)
https://supreme.justia.com/cases/federal/us/494/872/

City of Boerne v. Flores, 521 U.S. 507 (1997)
https://supreme.justia.com/cases/federal/us/521/507/

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)
https://supreme.justia.com/cases/federal/us/573/682/

Lemon v. Kurtzman, 403 U.S. 602 (1971)
https://supreme.justia.com/cases/federal/us/403/602/

Kennedy v. Bremerton School District, 597 U.S. 507 (2022)
https://supreme.justia.com/cases/federal/us/597/21-418/

Van Orden v. Perry, 545 U.S. 677 (2005)
https://supreme.justia.com/cases/federal/us/545/677/

American Legion v. American Humanist Association, 588 U.S. ___ (2019)
https://supreme.justia.com/cases/federal/us/588/17-1717/

Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU).

REFERENCES

“Your Right to Religious Freedom.” American Civil Liberties Union, www.aclu.org/other/your-right-religious-freedom.
}}

Freedom of the Press/Jurisprudence

2024-08-01T20:09:56Z

Dmarsh1: Created page with "{{Right section |right=Freedom of the Press |section=Limitations - Restrictions |question=Jurisprudence |questionHeading=Under American jurisprudence, what permissible exceptions exist? |pageLevel=Question |contents=The Constitutional right to a free press is not absolute, and certain exceptions exist for this right as they do for other civil liberties such as free speech and free exercise. A series of landmark decisions dating back to the early Twentieth Century has gra..."

{{Right section
|right=Freedom of the Press
|section=Limitations - Restrictions
|question=Jurisprudence
|questionHeading=Under American jurisprudence, what permissible exceptions exist?
|pageLevel=Question
|contents=The Constitutional right to a free press is not absolute, and certain exceptions exist for this right as they do for other civil liberties such as free speech and free exercise. A series of landmark decisions dating back to the early Twentieth Century has gradually clarified the limits to freedom of the press, with exceptions for libel, obscenity, and imminent lawless action. Furthermore, the government’s ability to exercise prior restraint (i.e. preventing the publication of certain materials prior to their release) has been severely limited by the courts, but not entirely prohibited. In many instances, holdings for cases that do not specifically concern freedom of the press have been extended to impose new limitations (or privileges) for the press, by virtue of the content in question and the similarities that exist between the press and free speech.

Written material that is found to be libelous or defamatory is not protected by the First Amendment. The threshold for proving defamation can be strenuous, however, and especially difficult for public figures. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court took a major step in limiting the ability of government officials to sue for defamation. Following the publication of an advertisement in the New York Times that criticized the behavior of police officers in Montgomery, Alabama, the Montgomery police commissioner filed suit, alleging that the critical nature of the advertisement constituted defamation. Ruling against Montgomery, the Court asserted that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” are nevertheless protected by the First Amendment. Furthermore, the justices established the Actual Malice test, contending that public officials cannot bring libel cases unless they can prove that a defendant published defamatory material with “reckless disregard” for its accuracy (Justice Brennan, 1964).

The Actual Malice Test was later affirmed in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), in which plaintiff Daniel Connaughton filed a defamation claim against a local newspaper that ran negative articles about his campaign for local office in Hamilton, Ohio. Ruling for Connaughton, the Court affirmed Sullivan while asserting that the publication in question failed to verify its source material while ignoring obvious indications of its falsity (Justice Stevens, 1989). It should be noted, however, that this case represented an affirmation—rather than an extension—of the Sullivan test, as the justices largely limited themselves to criticizing material that displays a “reckless disregard for the truth” in the Connaughton decision. Finally, The Court expanded the Sullivan test to include both public officials and public figures in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Following a libel suit against Hustlers Magazine by conservative commentator and Moral Majority founder Jerry Falwell Sr., the Court extended the Sullivan standard to satirical speech, given the latters’ “prominent role in public and political debate” in spite of inaccuracies that are obvious to the reasonably-minded reader.

The criminalization of obscene material was largely derived from the Hicklin test in English Common Law, a premodern system of judicial decision-making that would later influence legal proceedings in the United States. This is evidenced by the contemporary legal definition of obscenity, which largely centers around speech or actions that are sexually explicit. The Supreme Court never established a firm view on obscenity, however, until its decision in Roth v. United States, 354 U.S. 476 (1957). The Court ruled against Samuel Roth, an author who was charged with violating a federal obscenity statute due to his dissemination of obscene books in public. In light of the sexually explicit nature of the books he sold, the justices asserted that speech that is “utterly without redeeming social importance” is not protected by the First Amendment, which was never meant to give “absolute protection for every utterance” to begin with (Justice Brennan, 1957).

Given the ambiguous interpretation of obscenity in Roth, the Court would later revisit the issue and craft a more succinct definition in Miller v. California, 413 U.S. 15 (1973). California businessman Marvin Miller disseminated explicit content through postal advertisements, and was subsequently arrested and charged under a state obscenity statute. Ruling for California, the Court reaffirmed that the distribution of obscene material without “serious literary, artistic, political, or scientific value” did not violate the Speech or Press Clauses of the First Amendment. In superseding Roth, the justices succeeded in creating a concrete definition for obscene material that can also be employed for issues pertaining to the Press Clause.

Written or spoken words that prompt some form of public disorder are not necessarily protected under American jurisprudence. The current threshold for proving the illegality of this conduct is exceptionally high, however, due to the Imminent Lawless Action test established in Brandenburg v. Ohio, 395 U.S. 444 (1969). Prior to this decision, the Court adhered to the Clear and Present Danger test adopted in Schenck v. United States, 249 U.S. 47 (1919), and the Bad Tendency test adopted in Gitlow v. New York, 268 U.S. 652 (1925). In both cases, the justices took firm positions against the permissibility of views deemed as offensive by the U.S. Government while failing to articulate a test that did not amount to the targeting of certain unpopular viewpoints by the judiciary.

The Court successfully remedied this approach in Brandenburg by overturning the conviction of a Ku Klux Klan member in Hamilton County, Ohio, who was charged under a state criminal syndicalism statute following his incendiary remarks at a Klan rally. Ruling for Brandenburg, the justices asserted that speech or press material can only be criminalized if it is “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action”—a threshold that Brandenburg’s remarks, however incendiary and offensive they were, failed to clear (Per Curiam, 1969). The Imminent Lawless Action test was later affirmed in Hess v. Indiana (1973), in which an antiwar protestor was charged with disorderly conduct after exclaiming “we'll take the [explicative] street later” in response to a crackdown by campus police at Indiana University Bloomington. Ruling for Hess, the Court dismissed the aggressive nature of his comments towards law enforcement officers as “not directed to any person or group in particular,” given that the Brandenburg test required offending language to mention a target, time, or method for prospective activities (Per Curiam, 1973). Despite Hess and Brandenburg directly addressing spoken words rather than written material, it should be noted that each decision applies equally to the Speech and Press Clauses of the First Amendment, thereby making written threats of imminent lawless action and verbal threats equally illegal.

With few exceptions, prior restraint has largely been ruled unconstitutional in several landmark decisions that remain in force today. Prior to New York Times Co. v. United States, 403 U.S. 713 (1971), which is often regarded as the most notable case on this subject, the Court had already denied the constitutionality of prior restraint in Near v. Minnesota, 283 U.S. 697 (1931), in which the justices contended that the societal harms often caused by “miscreant purveyors of scandal” (In this case, a Minnesota Newspaper that regularly engaged in antisemitic commentary in violation of a state public nuisances law) do not provide a compelling reason for government actors to impose prior restraint on the publications in question, especially when no overarching national security implications are relevant to the issue at hand (Justice Hughes, 1931).

In retrospect, the establishment of exceptions for national security issues in Near likely gave hope to the Nixon Administration in its attempt to halt the publication of the Pentagon Papers, which culminated in New York Times Co. v. United States. Ruling for the New York Times, the justices acknowledged the “heavy burden of showing justification for the imposition of [prior restraint]” (Per Curiam, 1971), while arguing that issuing an injunction against various media outlets would represent a “flagrant, indefensible, and continuing violation of the First Amendment (Concurring Opinion by Justices Black and Douglas, 1971).” Following this decision, the imposition of prior restraint was largely relegated to several unique and (relatively) unpublicized issues (see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which allowed prior restraint for information gained in closed-door legal proceedings and for the conduct of a student-run news publication, respectively). Following New York Times, no significant and publicized enactment of prior restraint has earned judicial approval.

References

Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.

Justia. 2019. “Justia: Free Law & Legal Information for Lawyers, Students, Business and the Public.” https://www.justia.com/

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) https://supreme.justia.com/cases/federal/us/376/254/

Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) https://supreme.justia.com/cases/federal/us/491/657/

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
https://supreme.justia.com/cases/federal/us/485/46/

Roth v. United States, 354 U.S. 476 (1957)
https://supreme.justia.com/cases/federal/us/354/476/

Miller v. California, 413 U.S. 15 (1973)
https://supreme.justia.com/cases/federal/us/413/15/

Brandenburg v. Ohio, 395 U.S. 444 (1969)
https://supreme.justia.com/cases/federal/us/395/444/

Schenck v. United States, 249 U.S. 47 (1919)
https://supreme.justia.com/cases/federal/us/249/47/

Gitlow v. New York, 268 U.S. 652 (1925)
https://supreme.justia.com/cases/federal/us/268/652/

Hess v. Indiana, 414 U.S. 105 (1973)
https://supreme.justia.com/cases/federal/us/414/105/

New York Times Co. v. United States, 403 U.S. 713 (1971)
https://supreme.justia.com/cases/federal/us/403/713/

Near v. Minnesota, 283 U.S. 697 (1931)
https://supreme.justia.com/cases/federal/us/283/697/

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)
https://supreme.justia.com/cases/federal/us/467/20/

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
https://supreme.justia.com/cases/federal/us/484/260/
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