Crash Course 2 Summary: The First Amendment

The following summary was submitted by an IBRL:SD member.

Today we heard about the First Amendment’s protection for speech, press, association, and religion. Of course, a single hour can’t do justice to the complexities of First Amendment analysis but we covered a lot. I can’t write a treatise here, so I would simply encourage everyone to get the audio of our session which will be posted along with this description

First, the amendment protects not just speech, but expression. That’s simplistic, but when you think about where to draw the line it starts to make sense. Of course speech from your mouth is covered, and the written word, but as soon as you acknowledge that something like a poster or a painting is the equivalent there seems to be no principled place to stop. Here we talked about wearing armbands to represent opposition to the war.

We also talked about categories of speech that were not protected, such as thecategories of incitement, clear and present danger, and obscenity. Each of these represents a hard wrought classification of speech or conduct that would otherwise be protected but ultimately enjoys no protection based, largely, on historical practice.

The “forum analysis” concept and time place and manner restrictions were a big part of our discussion -- in what ways can the government limit the kinds of speech and under what circumstances, without selecting certain viewpoints for favoritism. Also, in some ways the obverse, what kind of speech is the government (particularly through public schools) entitled to engage in.

Then we discussed the religion clauses, and how they sometimes put the government in a dilemma where no matter what it does it runs the risk of violating the constitution. In one example, to provide equal funding to all college programs would require some funding for religious groups, while providing funding only for non-religious groups looks like discrimination on the basis of religion. The two major topics discussed here were the tension between the establishment and the free exercise clauses, and the past and future of the “Lemon“ test.

The first five minutes included a brief introduction to the concept of “incorporation,” whereby the Bill of Rights were transformed from a limit only on federal power to a limit on both federal and state power.

Out next session will be next Wednesday in which we will discuss the Second, Third and Fourth Amendments – guns, searches and seizures . . . and quartering soldiers in time of peace (why not).

Audio Link