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Fundamental Freedoms The Fundamental Freedoms are found mostly in the First Amendment of the U.S. Constitution. First Amendment Freedoms. Congress shall make no law abridging
Associated with these five freedoms are two others.
Nationalization of the Fundamental Freedoms. All of the fundamental freedoms have been nationalized, that is they apply equally to both the federal and the state levels of government.
None of the Fundamental Freedoms are absolute. As Justice Oliver Wendell Holmes once said, "you are not free to yell 'fire' in a crowded movie theater." There are limits on freedom of speech, press, religion, petition, and assembly. The rights of individuals must always be balanced against the rights of the community. Nonetheless, I would strongly urge you to place our fundamental rights in a preferred position over other competing rights and interests. The Founding Fathers had to agree to add the Bill of Rights as a condition for getting the U.S. Constitution approved in 1788. Let us never forget that. Claims of "national security" or "national interest" should always be viewed skeptically when they are used to justify limits of individual rights. Such claims are often used to hide the mistakes and errors from the American people. Our enemies usually know already what the "national security" label tries to keep hidden. It should be noted further that fundamental freedoms can come into conflict with each other. The freedom of the press can conflict with the right to a fair trial. Demands for equal treatment can conflict with rights of individual liberties. Ours is a living constitution and its various parts must be balanced against each other. Freedom of Speech Political Speech is
protected. Should speeches advocating revolution or jihad be legal? What happens when speech threatens to produce illegal actions? At what point should the speech itself be limited? Obviously, there are limits on political speeches. Which standard is applied depends in part on the circumstances of the times and on the legal philosophies of the sitting Supreme Court justices. No prior restraint or censorship. The most famous case on this issue is the Pentagon Papers case, New York Times v. Sullivan 403 U.S. 713 (1971). Freedom of Speech and College Campuses. In Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), the U.S. Supreme Court held that student activity fees could be used to fund student organizations, including some organizations expressing views to which students paying these fees objected on moral, religious, or political gounds. Many colleges and universities have established campus speech and behavior codes that prohibit racist, sexist, and other remarks offensive to some group. The purpose of these codes is to preserve a sense of decorum and civility on campus. Critics call these codes a form of censorship and political correctness. While lower courts have struck down some of these codes, the U.S. Supreme Court has not yet ruled definitively on this issue. Academic freedom is the right of college professors and students to research and explore freely without institutional restrains or legal restrictions. The World Wide Web as a new Source of Speech. So far efforts by the government to restrict speech on the internet have failed, although they continue. Pornography and hate speech on the internet are two areas of concern. Symbolic speech is protected. Supreme Court ruled in Tinker v. Des Moines School District 393 U.S. 503 (1969) that the wearing black armbands by students in protest of the Vietnam War was constitutional. Burning the American flag as part of a protest against U.S. policies was upheld as constitutional in United States v. Eichman, 496 U.S. 310 (1990). Commercial speech is partially protected. Until the 1970s, it was not covered by the First Amendment. But at least since Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S.748 (1976), it has been partially covered. Libel and Slander are not protected Fighting Words are not protected. Words that may inflame listeners to immediate violence--generally racial, ethnic, and religious slurs--are not protected by the First Amendment. Heckler's Veto is not protected. Systematic heckling that drowns out a speech can be stopped by the organizers of an event by throwing the hecklers out. If they refuse to leave, they may be subject to arrest based on disorderly conduct charges. Obscenity is not protected Freedom of the Press There is considerable linkage between freedom of speech and freedom of the press. It is often difficult to differentiate clearly where one slides into the other right. This is especially true since the word "press" has multiple meanings. The word "press" has distinct meanings, of which three are briefly mentioned below. Speech that is Printed by a Press. Speech that is written down and printed forms part of the print media. Libel, for example, is written defamation of character and, as we said previously, is not protected by the First Amendment. Newspaper Companies and other Organizations that Publish and Transmit Information for a Profit. But the word "press" also refers to the many types of organizations that publish and transmit information for a profit. It refers to newspapers, periodicals, journals, and book publishers. Indeed, the press extends to radio, television, record companies, telephone companies, cable companies, movie studios, satellite TV, video stores, and all media outlets. When the U.S. Constitution was written, there were no film industry, radio companies, television networks, cable companies, or internet providers. Are these new ways of communicating information covered by the First Amendment of Freedom of the Press? The answer is "partially yes." Certainly, that part of the media's output dealing with politics is covered. But a lot of what the media does concerns entertainment and advertising. We have already noted that commercial speech is partially covered by the First Amendment. When it comes to entertainment, especially entertainment that includes violence, sex, foul language, and stereotyping, the question arises to what degree these products are covered by freedom of speech and press. Censorship, prior restraint, is generally abhorrent to most Americans. Local censorship boards existed in most communities before World War II, but few remain today. Instead the movie and television industries have accepted "voluntary" standards of self-censorship and labeling. The rating system is designed to warn viewers of the appropriateness of the content to different age groups. Some of these issues are further examined in the pages on the Media. The Press: Newspaper Reporters, Journalists, Editors, and Publishers. A third meaning of the word "press" refers to the reporters, journalists, camera persons, editors, etc. who provide us with hundreds of thousands of articles daily that appear in newspapers, on radio, television, internet, and whatever other media exist that present us with "the news." Reporters are always seeking information, following leads, and publishing their stories. Do reporters have a right to ask questions? Can they pry and probe? What if they bribe and distort the news? Free Press and the Right of Privacy. The working press can often come into conflict with the right of private persons to be left alone. The so-called paparazzi invade the right of privacy of famous people to feed the tabloids with their sensational stories. Where does my right of privacy leave off and the right of a free press to keep the public informed begin? Freedom of the Press and the Right to a Fair Trial. Another area of conflict between constitutional rights is that between freedom of the press and the right to a fair trial. Many criminal cases have become sensationalized by the media with reporters and other "experts" speculating freely about the guilt or innocence of suspects. Sometimes these media witch hunts begin before a suspect has even been charged with a crime by the police and prosecutors. At what point do these media blitzes so prejudice the public that a defendant can no longer get a fair trial? Since this kind reporting begins long before a trial, there may be nothing that the Courts can do to assure a fair trial except to take special precautions that the jury pool will be cleansed of those who lend too much attention to the media. Once the trial begins, however, judges can impose gag orders on the reporters and they can sequester juries so that they will no longer be able to follow the latest media spin.
Freedom of Religion The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For contemporary students it is hard to understand just how revolutionary these words are. For most of human history, the State and the Church have been intimately connected. Official churches, that is established churches, existed everywhere else in the world when these words were adopted in 1789. Even within the United States, nine of the original thirteen states had established religions at the time. Fortunately, they were not all the same or else this provision might not have been adopted and eventually all states abolished official state-sponsored and state-favored religions. But having built "a wall of separation between church and state," as Thomas Jefferson phrased it, the question remains how high a wall and how many little openings should there be. Should there be prayers in the public schools? Should private, especially Church-related or parochial, schools receive funds from the public treasury? Should the Pledge of Allegiance include the phrase "under God?" As long as government favors all religions, why not foster a belief in God? One might counter by pointing out that there are atheists and some polytheistic religions who would disagree with even that limited objective. An interesting question to pose is: what if an overwhelming majority of the voting population wanted an official religion, would such a law be constitutional? Establishment Clause It is probably fair to state that no organized religious group in America wants an official, established religion. For one thing, the different groups would be unable to agree on what that religion should be. But many religious groups think that the current separation of church and state is too rigid and would like to see it weakened. There are many issues at controversy. The Pledge of Allegiance School Prayer in Public Schools Prayer Outside the Classroom Displaying the Ten Commandments in Public School Forbidding the Teaching of Evolution in Public Schools Aid to Church Related Schools Tax Exemption for Churches Free Exercise Clause You are free to hold whatever religious beliefs you want, or hold no religious beliefs. But as with all constitutional rights, there are limits. While religious beliefs are almost sacred, religious practices can be regulated if the violate important public policies. For example, parents can be forced to have their children vaccinated even if their religion prohibits it. A ritual murder can not be justified by saying that it was part of a satanic cult practice. On the other hand, anti-peddling laws can not be used to prevent Jehovah's Witnesses from going door to door to spread the good news and selling their newsletters. Smoking peyote as part of an Indian religious practice can not be prosecuted under the normal drug laws. Religious Freedom Restoration Act of 1993 City of Boerne v. Flores, 521 U.S. 507 (1997) found act unconstitutional because it was too sweeping and intruded on states' rights. Freedom of Petition and Assembly The courts have held that local police can require a marching permit before a public assembly can be held. Certain reasonable regulations may be imposed such as having enough toilets and emergency aid stations. The local police may not, however, deny all assemblies because they cost money, cause traffic jams, and are inconvenient. Groups have a right to demonstrate by assembling even if their causes are unpopular. Even the Nazi Party had a right to march through the largely Jewish community of Skokie, Illinois according to the U.S. Supreme Court in Smith v. Collins, 439 U.S. 916 (1978). Once they had gained their "rights" with the help of the American Civil Liberties Union, they decided to call off their march. Anti-Loitering Laws to Prevent Gang Members from Hanging Out. Many local communities have passed anti-loitering laws to prevent groups of individuals from hanging out on street corners. At what point do these laws violate the right of freedom of assembly? If they are written too broadly and give too much discretionary power to the police, then they will be struck down. On-Line Assembly. A new issue of law is the question whether chat rooms are legally protected as assemblies of people. Some of these virtual assemblies attract various hate groups such as Neo-Nazis and Anti-Abortion Fanatics, who may be plotting murder on the internet. Posting the names of abortion doctors on the internet and suggesting that someone ought to kill these "murderers" is surely (or should surely be) illegal. Freedom of Association Freedom of Association derives from the First Amendment rights of petition and assembly. An association is a permanent, on-going assembly. It is an assembly that has become organized. An association has a membership that generally pays membership dues, elects officers, has a constitution and by-laws, publishes a newsletter, and has a purpose. Many voluntary associations engage in lobbying. Lobbying is a constitutionally protected activity. Freedom of Privacy Griswold v. Connecticut (1965) The Right to be Left Alone and not to be Spied Upon The Right Not to be Bothered by Telemarketers While You are Eating The Right to Have Your Tax Records, School Records, Medical Records, Financial Records Kept Private and to be Asked Before Anyone Can Look at Your Records The Right of Privacy in Your Personal Sex Life Privacy Rights and Abortion The Right to Die Privacy Rights and National Security. Monitoring of all internet traffic to check on unusual patterns. Checking up on the books you read, music you hear, and internet sites you visit.
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