The First Amendment

Category: History
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The First Amendment does not protect all forms of speech. Although its protections are incredibly diverse and broad, the First Amendment does not protect forms of speech including: “obscenity, fighting words, defamation (including libel and slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, and solicitations to commit crimes” (Freedom Forum Institute, 1).

The incorporation doctrine is a constitutional doctrine establishing the Bill of Rights (amendments 1-10) as fundamental rights guaranteed in both federal and state court proceedings. Although the Bill of Rights are illustrated only in the Constitution and were formerly only guaranteed in federal court proceedings, a series of court cases used the Due Process Clause of the Fourteenth Amendment to justify expanding the Bill of Rights in some form to state proceedings. The Due Process Clause argues in favor of the inherent “life, liberty, and property” of each citizen, arguing that the federal government must undergo a strict process before removing the life, liberty, and property rights of its citizens. Since state proceedings not following the Due Process Clause would infringe on the rights of citizens, the courts have held that the Bill of Rights must be incorporated to state proceedings in order to ensure the Due Process Clause to all citizens (2, 3, 4)

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The Lemon Test is a three-pronged approach used by the courts, authored by Chief Justice Warren Burger, stemming from the case of Lemon v. Kurtzman (1971). The Lemon Test establishes a clear set of principles for what contradicts and that which is in agreement with the Establishment Clause of the First Amendment, which prohibits the State from establishing a state religion, effectively enforcing the doctrine of “Separation of church and state.” The Lemon Test states that government action violates the Establishment Clause unless it meets all three of the following conditions:

“[The government action] has a significant secular (i.e., non-religious) purpose,”

“[The government action does not have the primary effect of advancing or inhibiting religion, and” (emphasis added)

“[The government action] does not foster excessive entanglement between government and religion” (5, University of Missouri Kansas City).

The Supreme Court and other Courts apply the Lemon Test in cases involving any perceived or mentioned state involvement or association with religion. The Lemon Test has been widely criticized as too strict in its enforcement of the separation of church and state, but it remains a consequential ruling and test regarding state-enforced secularism and the separation of church and state.

The Clear and Present danger test could be applied to a case, especially in wartime, when a citizen’s expression of free speech demonstrated a clear and present danger to national security or a legitimate government interest. If, for example, a citizen released cables or messages, much like Edward Snowden, which were a legitimate national security threat and protection in a war or other government enterprise, the government could argue that the release of the aforementioned represented a “clear and present danger” to the government and people. If a person released all the government’s plans in the War on Terror, this would represent an example where the Clear and Present danger test could be applied to protect the people’s security (6).

Vehicle searches and exigent circumstances are two types of searches protected by the Fourth Amendment. Vehicle searches are protected by the Fourth amendment without a warrant because of the function and mobility of vehicles as conducts of mobility rather than as a residence or private space. The Supreme Court has held that vehicle searches are constitutional so long as the police officer has probable cause to believe that contraband is present within the vehicle.

Exigent circumstances are also searches protected by the Fourth amendment without a warrant. Exigent circumstances are defined as times where police have probable cause to believe that contraband exists in a place, but the police would not be able to acquire it in the time required to obtain the warrant. In other words, the items are in danger of being removed or taken in the time required to obtain the search warrant, such as if a shooter in an apartment building was openly shooting and police needed to seize the shooter immediately in order to protect public safety. Warrantless search and seizure would be constitutional in this instance.

The USA/PATRIOT Act in many ways can circumvent the protections outlined by the Fourth Amendment in favor of protecting national security and gathering intelligence for counterterrorism. Under the Fourth Amendment, searches may only be conducted if, and only if, there is “probable cause” that a person has committed a crime and search is required to prove the crime. In almost all cases, a warrant is required for search. Under the PATRIOT Act, searches are loosely protected by a broad web of protecting national security and gathering intelligence. If, for example, the FBI found CCTV footage of all the people leaving a casino that had seen a violent fight or disturbance linked to terrorism, the Bureau could claim the PATRIOT Act’s terrorism intelligence justification as reasoning for wiretapping or searching the homes of all the people leaving the casino that night. The searches would be legal under the shaky constitutional ground established by the Act simply because they were done in the name of counterterrorism. Although the ever-present issue in protecting individual rights versus protecting the defense and security of the state as a whole are often at odds, in this case, it seems prudent to suggest that the PATRIOT Act far oversteps the area of reasonability in sacrificing individual rights for state security (7).

Southern states used a variety of tactics, some more openly obvious than others, to disenfranchise the black right to vote. Three of these tactics are listed below:

Poll taxes: Southern states, beginning with Georgia in 1871. Poll taxes, starting at $1-$2 per vote, were seemingly small but largely unattainable to minority ethnic groups, including African-Americans. Poll taxes decreased the overall turnout in elections, especially among black populations, and wide discretion was granted to county officials with regards to the implementation and enforcement of poll taxes, giving whites far more leniency than blacks in the poll tax system.

Literacy tests: As the name suggests, literacy tests were given to prove literacy (reading and writing competency). Unfortunately, the literacy tests were quite complex and faced incredible time limits that simply could not be attained by ordinary individuals. Again, county registrars and officials were given wide discretion in granting literacy tests, so the tests disproportionately favored black voters and were incredibly unjust in their content, application, and existence as all Americans are granted the right to vote under the Fifteenth Amendment, regardless of their intelligence or reading capability.

“The White Primary”: Since Southern states used disenfranchisement and effectively dominated the elections with white people, Southern elections became one-party affairs. The Democratic party ruled the South; indeed, the primary elections largely determined the election, as general elections were one candidate: the primary one. In order to exclude blacks further, Southern states created laws to block blacks and minorities from voting in the Democratic primary, thus essentially depriving their entire vote of having any voice whatsoever. This practice demonstrates the one-party system prevalent in the South during this time.

Refer to Source 8 for reference of these practices (8, University of Michigan).

De jure discrimination is discrimination mandated or established by law. Laws in the South and before the Civil War largely enforced discrimination; slavery was upheld before the War, and Jim Crow laws disenfranchised and segregated black people in the South until their final repeal nearly one hundred years after the passage of the Thirteenth, Fourteenth, and Fifteenth amendments (designed to ensure black rights). De facto discrimination was discrimination “by fact”; that is, even if laws were repealed to disavow segregation in the North, the practice was perpetuated by practices such as redlining by banks, who refused to give loans in majority black inner cities and neighborhoods. Redlining and social norms and customs largely segregated the white and black populations; whites and blacks inhabited entirely different neighborhoods; they attended separate churches, separate schools, and separate shops, thus enforcing a discrimination and segregation “by fact” even in the North after the Civil War (9).

The Supreme Court held in Grutter v. Bollinger and Gratz v. Bollinger that affirmative action was legal only if it treated race as a quality among many others to be considered in admissions (race could not be the only determinant of admissions). Furthermore, the affirmative action must have had the intention to create a more diversified class or group of individuals in the school, and the race factor could not replace an individual consideration of each application holistically. Each application would still have to be considered individually on its own merits, and race could not increase the chances of someone over another applicant. The standards created in these two cases have established clear parameters and precedent for rulings on affirmative action in the future, allowing a degree of diversity whilst preserving the individuality and fairness of the applications process.

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The First Amendment. (2019, Feb 07). Retrieved from