Understanding Your Rights: A Guide to the First Five Amendments
The First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition
“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.”
Freedom of Religion
The First Amendment contains two provisions regarding religion: the Establishment Clause (government cannot establish an official religion) and the Free Exercise Clause (government cannot prevent anyone from practicing a religion).
The Court views these clauses in two ways:
- Broad View: No public aid for any religion by either federal or state governments.
- Narrow View: Government prohibited only from giving preference to one religion over another.
Supreme Court Interpretations
- Everson v. Board of Education (1947): Forbids states from aiding or favoring any religion.
- Westside Community Schools v. Mergens (1990): Required public schools to allow students religious groups to meet at school.
Freedom of Speech
Freedom of speech is essential to any true democracy. It allows for the communication of new and better ideas, promotes intellectual growth and human dignity, is essential to the operation of representative democracy, is vital for bringing about peaceful change, and safeguards individual rights.
Origins of Freedom of Speech
- First protected in the American colonies in the Massachusetts Body of Liberties (1641).
- Not found in the Magna Carta.
- Not actually found in the original US Constitution. The writers thought it was a basic understanding that freedom of speech was a born right.
- It is in the Bill of Rights, which was made after the Constitution. The Bill of Rights was added to secure enough votes to ratify the Constitution.
Government Limitations on Free Speech
The government may limit free speech during wartime.
- Sedition Act (1798-1801): Outlawed criticism of government officials.
- During the Civil War: Abraham Lincoln suspended the writ of habeas corpus (requires the government to provide a reason for detaining someone) and imprisoned dissenters (people who spoke against him). This was later deemed unconstitutional.
- WWI: Espionage Act of 1917: Stated that calling for resistance against the war was illegal.
- Schenk v. US (1919): Established the “clear and present danger” requirement. The Court ruled that speech can be restricted if it presents a clear and present danger to the environment.
Free Speech Court Decisions
The First Amendment protects more than just verbal speech. Symbolic speech (actions that convey a message) and pure speech (written or spoken words) are also protected.
- Tinker v. Des Moines School District (1967): (Free speech in schools) During the Vietnam War, three students (siblings and a friend) opposed to the war wore black armbands to school as a symbol of their protest. They were expelled for refusing to remove the armbands. The Supreme Court ruled in favor of the students, finding that their actions did not disrupt the classroom environment.
- Bethel School District v. Fraser (1986): (Cannot be disruptive to the education environment) Matthew Fraser, running for student body vice president, was suspended for three days for his campaign speech, which contained sexual innuendos. The Supreme Court upheld the suspension, ruling that speech cannot be disruptive to the education environment.
- Texas v. Johnson (1989): The Supreme Court overturned a conviction for flag burning, ruling that a Texas state law prohibiting flag burning was unconstitutional. The Court held that states cannot create laws simply because they dislike a particular form of expression.
- United States v. Eichman (1990): Congress passed the Flag Protection Act, which prohibited flag burning except for disposal purposes. The Supreme Court struck down the law, ruling that if Congress wanted to prohibit flag burning, it would have to create a Constitutional amendment. The Court affirmed the right to burn a flag in protest.
Extent of Press Freedom
The original intent of the Framers was to protect political speech. However, there have been Supreme Court decisions that limit the freedom of the press. The press cannot publish information that would put someone in harm’s way. The Court has also recognized protections against clear and present danger and libel (printed falsehoods).
Prior restraint refers to stopping the press before it prints. In Near v. Minnesota, the Supreme Court ruled that prior restraint laws are unconstitutional, except in cases involving national security.
Supreme Court Tests of Press Freedom
- NYTimes Co. v. Sullivan (1964): The New York Times published an article criticizing an Alabama official. The official sued for libel, claiming the article damaged his reputation. The Supreme Court ruled in favor of the newspaper, finding that the official had to prove malice (intentional harm) to win the case.
- NY Times Co. v. US (1971): The “Pentagon Papers” case involved a government employee, Daniel Ellsberg, who leaked classified documents to the Washington Post and New York Times. The documents revealed that the government had misled the public about the Vietnam War. The government attempted to prevent the newspapers from publishing the documents, but the Supreme Court ruled in favor of the newspapers, finding that the government had not proven that publishing the documents would harm national security.
Freedom of Assembly and Petition
Both freedom of assembly and petition are linked to freedom of speech and press. They are designed to empower minorities within society. The majority rules, but minority rights are protected. The government must balance the will of the majority with the rights of the minority.
Supreme Court Decisions
- DeJonge v. Oregon (1937): Incorporated freedom of assembly to the states. Assemblies must be peaceful and cannot cause civil disturbances or block public streets.
- Cox v. New Hampshire (1941): The time, place, and manner of assembly may be restricted, but not eliminated.
- Lloyd Corporation v. Tanner (1972): Private property is exempt from freedom of assembly. Freedom of assembly does not apply to shopping malls.
- Feiner v. New York (1951): The Court upheld limitations on the right to assembly.
Assembly and Petition vs. Government Responsibility
The government has a responsibility to maintain peace. The right to assemble extends to meetings in public areas. The government can impose restrictions based on the time, place, and manner of assembly, but these restrictions must not make it impossible to express ideas.
Second Amendment: The Right to Bear Arms
“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.”
The Second Amendment is often considered the most controversial amendment.
Problematic Clauses
- “A well regulated militia, being necessary to the security of a free state…” Does this mean only the National Guard can bear arms?
- “… the right of the people to keep and bear arms, shall not be infringed.” Or does this make it accessible to all citizens?
Second Amendment Court Decisions
There have not been many Supreme Court cases dealing with the Second Amendment.
- US v. Miller (1939): Miller was transporting a sawed-off shotgun between states. A law at the time prohibited the transportation of unregistered weapons across state lines. Miller argued that the law was unconstitutional because he had a right to bear arms, registered or not. The Court upheld the law, finding that Miller’s gun was not necessary for a well-regulated militia. The Court did not attempt to take away Miller’s gun, but simply required him to register it. This case established that requiring citizens to register guns is constitutional.
Fourth Amendment: Protection Against Unreasonable Searches and Seizures
“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.”
Two Clauses
- First: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated…”
- Second: “… 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.”
Tests and Trials
The original wording of the Fourth Amendment has held up well over time. The framers’ intent has been upheld.
- Olmstead v. US (1928): The Court ruled that a warrant was not required to wiretap as long as the wiretap was not on private property.
- Katz v. US (1967): Established the “reasonable expectation of privacy” doctrine. The Court overturned Olmstead, ruling that the Fourth Amendment protects people, not places. The Court found that Katz had a reasonable expectation of privacy in a phone booth, so the police could not use evidence obtained from a wiretap against him.
- California v. Greenwood (1988): The Court ruled that people do not have a reasonable expectation of privacy in their garbage bags once they are placed outside for collection.
Exclusionary Rule
The Supreme Court has further clarified the meaning of unreasonable search or seizure.
- Weeks v. US (1914): Established the “exclusionary rule.” The Court ruled that evidence obtained in warrantless searches cannot be used in court.
- Silverthorne Lumber Co. v. US (1920): Established the “fruit of the poisonous tree” doctrine. The Court ruled that evidence obtained as a result of an illegal search cannot be used in court, even if the evidence itself is legal.
- Mapp v. Ohio (1961): Extended the exclusionary rule to the states through the Fourteenth Amendment. This means that the exclusionary rule applies to both state and federal courts.
Exceptions to the Exclusionary Rule
- US v. Leon (1984): Established the “good faith” doctrine. The Court ruled that evidence obtained illegally can be admitted in court if the police acted in good faith, meaning they honestly believed they were acting legally.
- Nix v. Williams (1984): Established the “inevitable discovery” doctrine. The Court ruled that evidence obtained illegally can be admitted in court if it would have been inevitably discovered through legal means.
The exclusionary rule is not intended to let criminals go free, but to penalize police misconduct.
Other Exceptions
- Automobiles: If a car door is left open, police can search the vehicle.
- Border searches: Courts almost always side with border patrol in cases involving searches at the border.
- Exigent circumstances: If police officers arrive at a house and hear criminal activity taking place inside, they can break in to investigate.
Fifth Amendment: Rights of the Accused
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Common Legal Terms
- Infamous crime: A serious criminal offense.
- Double jeopardy: Being tried twice for the same crime.
- “Taking/pleading the fifth”: Invoking the right against self-incrimination.
- Due process of law: Substantive and procedural.
- Just compensation for imposing “eminent domain”: The government can take private property for public use, but must provide fair compensation.
Supreme Court Decisions
- Campbell v. Louisiana (1999): Indictment by a grand jury. The Court ruled that a grand jury must accurately reflect the population of the county or parish where it takes place.
- Miranda v. Arizona (1966): Right against self-incrimination. The Court ruled that suspects must be informed of their rights, including the right to an attorney, before being interrogated.
- Green v. US (1957): Clarified double jeopardy. The Court ruled that a defendant cannot be retried for the same crime if the jury was unable to reach a verdict (hung jury).
- Goss v. Lopez (1975): Juveniles’ right to due process. The Court ruled that students have a right to a hearing before being suspended and to have their parents present at the hearing.
- Lucas v. South Carolina Coastal Council (1992) & Kelo v. City of New London (2005): Right to just compensation. The Court ruled that the government can take private property for public use, even if the property is being transferred to a private developer, as long as the transfer benefits the public.