Write a 600-word (2 page, double-spaced) summary of each day’s material, including: (a) a brief summary and analysis of the day’s reading; (b) any questions or concerns you have about the day’s material; and (c) any areas where you disagree with the day’s reading or the analysis offered in class.
Write a 600-word (2 page, double-spaced) summary of each day’s material, including: (a) a brief summary and analysis of the day’s reading; (b) any questions or concerns you have about the day’s materi
The First Amendment Central Questions 1. First Amendment’s protections of speech and conscience are among the most treasured aspects of the Bill or Rights. Why? Are there areas where speech and conscience should be regulated for the greater public good? 2. What should we do when religious liberty conflicts with other social values, such as individual autonomy or child wellbeing? Class Today 1. The Amendment’s (Many!) Parts 2. Philosophical Background: J.S. Mill’s On Liberty 3. Disestablishment 4. Free Exercise 5. Freedom of Speech 6. Freedom of the Press 7. Freedom of Association, Assembly, and Petition 1. The Amendment’s (Many!) Parts • Text: 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. 2. Philosophical Background: J.S. Mill’s On Liberty (1859) The Harm Principle “The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self -protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” Justifying the Harm Principle • Mill does not provide a single justification for the harm principle. He provides several, in several different contexts. • We’ll focus on two: 1. Freedoms of speech, thought, and conscience (Chapter 2) 2. Freedoms of taste, pursuit, and lifeplans (Chapter 3) Chapter 2: Speech, Thought, and Conscience • Basic presumption: we are a progressive species, whose ideas can — and should — improve over time. – This improvement ultimately maximizes happiness: knowing the truth can make us better off. • Mill’s basic claim about the value of free speech, thought, etc is that can they aid in this progress. Reasons Not to Regulate Speech, 1: Censored Speech Can Be True • All new truths begin as unpopular, minority opinions. – Most of what most humans have ever believed has turned out to be false. – Regulating unpopular opinions prevents us from moving forward. – From the history of science: astronomy, geology, biology… • And even when new views aren’t wholly true, they sometimes contain some truth. The First Argument, Formalized 1. As a progressive species, we have an interest in advancing our understanding of the world. 2. Advancements in understanding tend initially to be unpopular, or come from unpopular sources. 3. Therefore, if we want to progress, we should tolerate dissenting opinions to the maximal extent possible. Reasons Not to Regulate Speech, 2: The Importance of Deliberation • Even when unpopular opinions contain no new truth, they are useful in strengthening our understandings of received truth. – We understand best when we’ve had to defend our views against challengers. – If we just believe something because it’s never been challenged, we don’t really know it — it’s just dogma. The Second Argument, Formalized 1. As a progressive species, we have an interest in knowing the truth. 2. True knowledge is always strengthened when it confronts opposing views. 3. Thus, we should tolerate opposing views to the greatest extent possible, even when they turn out to be false. What about “hate speech,” or speech that is profoundly offensive to a specific group? Chapter 3: Tastes, Pursuits, and Lifeplans • Three arguments about being free to pursue our own goods, in our own ways: A. An argument from progress : just as intellectual progress requires tolerating dissent, cultural progress requires tolerating weirdos. B. An argument from human nature : we naturally tend to do what will make us happy. C. An argument from human capacity : my life is never made better by me having to obey someone else. A. Cultural Progress • There is no reason to believe that the current ways we structure social relations are the most fulfilling. • As with ideas, providing for progress requires tolerating differences — “experiments in living” — which may prove to be better. • Example: equality of the sexes. – Mill’s Subjection of Women : we would all be so much happier if we treated women as equals The Argument from Cultural Progress, Formalized 1. As a progressive species, we have an interest in continually striving for better, more fulfilling ways of life. 2. New ways of life tend to initially be unpopular. 3. If we want to be open to progress, we must tolerate unpopular forms of life. B. Human Nature 1. We should always seek to maximize happiness. 2. If left to our own devices, we tend to do what will make us the most happy . 3. We should leave people free to pursue their own happiness to the maximum extent possible. C. Human Capacities • Mill’s last argument relies on an obvious, but not often stated, fact about human life: we have to live it from the inside. – No one can make my choices for me: I am the only one who can think my thoughts or move my body • Many human values presume this capacity. – Faith, friendship, love, etc : all only become valuable because we’ve chosen to pursue them – Without choice, they lose their value. They arise out of our capacity for choice. • Violations of liberty preclude the exercise of this capacity, and thus the attainment of these values. The Argument from Human Capacities, Formalized 1. We should always seek to maximize happiness. 2. The various things that make humans happy only make them happy when they are freely chosen. 3. We should seek to leave humans free to choose how to live to the greatest extent possible. What about consensual practices that we think to be profoundly offensive: polygamy, human sacrifice, etc ? Back to the Amendment! 3. Disestablishment • Obvious point: no national church. • Three more difficult areas: 1. Religious displays on government property • Fine if private, okay if public, so long as they acknowledge “secular aspects” (the “plastic reindeer rule”) 2. Religious activities under government auspices • Fine if private, okay in some public circumstances, but much more difficult to justify 3. Governmental payments to religious organizations (for, for example, charter schools) • Fine so long as not tied to religion 4. Free Exercise • Relatively simple standard: Any law that singles out a single religion, or set of religions, for disadvantageous treatment is unconstitutional. • But applying this standard is a little more complicated. Yoder v. Wisconsin (1972) • Amish communities in New Glarus, Wisconsin routinely took their children out of public school after 8 th grade, arguing that further education was both unnecessary and a danger to their children’s salvation. • The state fined several Amish families for failing to engage in compulsory education. • The Supreme Court ruled that the compulsory education law violated the Amish’s free exercise rights. Employment Division v. Smith (1990) • Alfred Leo Smith was a drug counselor and a member of the Native American Church. • As part of his religious practice, Smith ingested Peyote, and was subsequently fired for “work -related misconduct.” • Under Oregon law, those fired for work -related misconduct are ineligible for unemployment benefits. • Smith files suit on First Amendment grounds, but lost, as the Supreme Court ruled that being disadvantaged by a commonly applicable rule does not constitute a violation of free exercise. Legislative Aftermath • In 1993, Congress passed and Clinton signed the Religious Freedom Restoration Act (RFRA), attempting to legislatively “overrule” Smith. • However, the Court has subsequently ruled — in City of Boerne v. Flores (1997) — that Congress lacks the authority. • The RFRA still stands federally, but Smith is still precedent, except in states that have passed “local RFRAs.” Church of the Lukumi Babalu Aye v. City of Hialeah (1993) • As part of their religion, adherents to Santería in Hialeah, Florida occasionally sacrificed chickens. • After hearings specifically critical of the religion, where it was compared unfavorably to Christianity, the city outlawed any “unnecessary [killing of ] an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” • Supreme Court: given strict scrutiny, state needs to show a compelling and constitutional state interest. They have not here, and so the law is unconstitutional. Responding to the Pandemic, 1: Stay – at – Home and Free Exercise • Constitutional Background: – The 10 th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” – This gives states police powers : the power “to establish and enforce laws protecting the welfare, safety, and health of the public” (Cornell Legal Information Institute). General and Targeted Quarantine • General Quarantine: Permissibl e – Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health (1902): states can quarantine groups against their will based on geography. • Targeted Quarantine: Not Permissible – South Bay Pentecostal Church v. Newsom (2021): States can regulate an entire class of gatherings that happens to include church, but cannot single out church for regulation. Responding to the Pandemic, 2: Vaccination and Free Exercis e • Unlike with quarantine, the law here is long – settled. • Jacobson v. Massachusetts (1905): C ompulsory vaccination is permissible when the state believes it necessary for public health, even if people object on religious grounds. • Zucht v. King (1922): States can require students to be vaccinated to attend public school, even if those students or their families have religious objections to vaccination. 5. Freedom of Speech Three Distinctions, 1: Content – Neutral vs. Content – Based Regulations • Governments can regulate speech if those regulations are content -neutral and necessary to satisfy a compelling government interest. – Eg : a public park can ban all fires during wildfire season, even if that ban effectively also bans burning flags, because that wasn’t the primary intent, and the ban may is justified by other compelling interests. • But governments cannot just ban flag burning — Texas v. Johnson (1989) Three Distinctions, 2: Speech vs. Action • Schenck v. United States (1919) – During World War I, the Espionage Act of 1917 was used to prosecute the distribution of fliers urging draft -aged men to resist. – Court rules that any action that encourages a crime, and poses a “clear and present danger” of succeeding, is not protected under the First Amendment. • Schenck now largely replaced by Brandenburg v. Ohio (1969) – Can only regulate speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis mine). – Future cannot be “hypothetical.” Three Distinctions, 3: Obscenity vs. Everything Else • Miller v. California (1973) – Obscene material is not protected by the First Amendment. • Three Part Definition of Obscenity: 1. An average person, applying “community standards,” would find that the work appeals to “prurient interests.” 2. Offensively depicts sexual or excretory functions 3. Lacks “serious literary, artistic, political, or scientific value” Electoral Speech • Buckley v. Valeo (1976): – The Federal Election Campaign Act of 1971 is partially unconstitutional in limiting campaign spending. – Limits on individual contributions: justified , because of a compelling government interest in preventing corruption. – Limits on campaign spending, both by candidates and separate third -parties: unjustified prohibitions on speech. 6. Freedom of the Press • In general, courts have provided the press with few protections not given to the general public. – Branzburg v. Hayes (1972) : the Constitution does not protect journalists from being ordered to reveal their sources. • Is this a convincing interpretation? 7. Freedom of Association, Assembly, and Petition • Basic point: the protection of public assembly – Hague v. Committee for Industrial Organization (1939): public places — streets, sidewalks, parks, etc — have long been places of discussion and assembly. It is a violation of the First Amendment to change this. • Continuing issue: free speech zones?