LOAPUSH Court System

Chapter Focus
Section 1 Constitutional Rights
Section 2 Freedom of Religion
Section 3 Freedom of Speech
Section 4 Freedom of the Press
Section 5 Freedom of Assembly
Chapter Assessment

Powers of the Federal Courts
Understanding Concepts
Constitutional Interpretations How has the
Supreme Court historically increased its power?

Section Objective
Compare the jurisdiction of federal and state courts
and describe the growth of the Supreme Court.

By the twentieth century, the Supreme
Court had become so powerful that Chief
Justice Charles Evans Hughes once
boasted: “We are under a Constitution, but
the Constitution is what the judges say it
is.” Justice Hughes served on the Court
from 1930 to 1941; during that time the
justices did, in fact, strike down many New
Deal measures as unconstitutional.

I. Jurisdiction of the Courts (pages 305–307)
A. The United States has a dual court system
of state and federal courts.
B. State courts have jurisdiction over cases involving state laws.
C. Federal courts have jurisdiction over cases involving United States laws, foreign treaties, and the interpretation of the Constitution.
D. In some cases, federal and state courts have concurrent jurisdiction.
E. In the federal court system, trial courts are district courts that have original jurisdiction; federal courts of appeals have only appellate jurisdiction, or authority to
hear cases appealed from district courts.


Compare the jurisdictions of state courts
and federal courts.
State courts have jurisdiction over cases
involving state laws; federal courts over
federal laws.

II. Developing Supreme Court Power

(pages 307–308)

A. The Supreme Court has become the most
powerful court in the world; its power
developed from custom, usage, and history.
B. No federal court, including the Supreme Court, may initiate action.
C. Federal courts only determine cases; they never simply answer a legal question.
D. Chief Justice Marshall’s ruling in Marbury v. Madison (1803) gave the Court power to review acts of Congress, or judicial
review.


(pages 307–308)

E. Marshall broadened federal power at the
expense of the states.
F. Justice Taney emphasized the rights of
states and those of citizens.


(pages 307–308)

Do you think the power of judicial review
is more or less important today than it
was during John Marshall’s time? Explain
your reasoning.
Answers will vary. Judicial review has
expanded since Marshall’s time. Students
may believe that judicial review is more
important than ever because laws are more
numerous and more complex.

III. Due Process and Regulatory Power

(pages 308–310)

A. The Supreme Court’s rulings on the
Reconstruction Amendments eventually
applied these amendments to
economic policy.
B. In Plessy v. Ferguson (1896), the Court established the “separate but equal” precedent.
C. In the Granger cases (1870s), the Court held that a state had the power to regulate railroads and other private property.


(pages 308–310)

D. After President Franklin D. Roosevelt’s
Court-packing scheme of 1937 failed,
the justices began to uphold laws
regulating businesses.
E. Under Chief Justice Earl Warren, the Supreme Court emerged as a major force in protecting
civil rights, beginning with Brown v. Board of Education of Topeka (1954).


(pages 308–310)

How do you think the course of United
States history might have been changed if
the Court had ruled the opposite way in
Plessy v. Ferguson?
Answers will vary. Perhaps integration would
have happened sooner.

Checking for Understanding
1. Main Idea Use a graphic organizer like the one
below to show how the Supreme Court
extended civil liberties in the 1950s and 1960s.

Effect/Cause: Brown v. Board of Education of Topeka, KS
Effect: Outlawed segregation in public schools

Match the term with the correct definition.
___
___
___
___
___

D
concurrent jurisdiction
B
original jurisdiction
appellate jurisdiction
E
litigant
C
A
due process clause

A. states that no states may
deprive a person of life,
liberty, or property without
due process of law
B. the authority of a trial court to
be first to hear a case
C. a person engaged in a lawsuit
D. authority shared by both
federal and state courts
E. authority held by a court to
hear a case that is appealed
from lower court

3. Identify Marbury v. Madison, judicial review,
“separate but equal” doctrine.
Marbury v. Madison is the Supreme Court case that established judicial review.
Judicial review is the Supreme Court’s power to review acts of Congress.
The “separate but equal” doctrine evolved from the Supreme Court’s Plessy v. Ferguson which held that if facilities for
both races were equal, they could be separate.

4. Identify the different jurisdictions of federal and
state courts.
State courts have jurisdiction over state laws; federal courts over U.S.
laws, treaties, the Constitution, bankruptcy, and maritime laws.

5. What doctrine was established by the ruling in
Plessy v. Ferguson?
The “separate but equal” doctrine, which held that if facilities for both races were equal,
they could be separate, was established by this ruling.

Critical Thinking
6. Identifying Alternatives What choice of
jurisdiction would be available to a person who
was being sued by a citizen of another state for
damages of at least $75,000?
The person being sued could choose to have the case tried in the
state court or in a federal court.

Constitutional Interpretations Choose one
of the cases discussed in Section 1 or
another case that contributed to the
development of the power of the Supreme
Court. Research the details of the case,
including the background, the ruling, and the
reasons for the ruling. Write a newspaper
article or tape a news broadcast announcing
the effects of the ruling.

The Supreme Court at Work
Key Terms
writ of certiorari, per curiam opinion, brief, amicus
curiae, majority opinion, dissenting opinion

Find Out
• By what route do most cases from other courts
reach the Supreme Court?
• What are the main steps the Supreme Court
takes in deciding cases?

The Supreme Court at Work
Political Processes Why does the Supreme Court
decline to hear most of the cases brought to it?

Section Objective
Explain how the Supreme Court selects, hears, and
decides cases.

For more than a month, Chief Justice John
Marshall served as both chief justice of the
United States and secretary of state.
President John Adams appointed Marshall
chief justice on January 31, 1801. Marshall,
then secretary of state, held both positions
until March 4, 1801.

I. The Court’s Procedures (page 331)
A. During two-week sessions, justices hear oral
arguments on cases and then meet in secret
to make decisions.
B. The justices consider arguments in cases they have heard and petitions from
plaintiffs, and then write opinions for cases they have decided.
C. Justices’ written opinions interpret the law and help shape public policy.

I. The Court’s Procedures (page 331)

The Supreme Court reviews about one
percent of the cases referred to it. Does
this statistic concern you? Explain.
See text page 331 regarding the
Court’s workload.

II. How Cases Reach the Court (pages 332–333)
A. The majority of referred Court cases concern
appeals from lower courts.
B. Most appeals concern cases in which a lower state or federal court has ruled laws unconstitutional. Cases the
Court chooses not to hear are dismissed, and the ruling of the lower court becomes final.
C. Most cases reach the Court by writ of certiorari, in which either side petitions that a lower court’s decision
involved an error raising a serious constitutional issue.

D. The solicitor general is appointed by the
president and represents the federal
government before the Supreme Court.
E. The chief justice puts worthy certiorari cases on a list for discussion; two thirds of all certiorari cases never make the list. If four of the nine justices agree, a case is accepted.
F. Some cases are decided by a brief, unsigned per curiam opinion; the rest are given the Court’s full consideration.


Why does the Supreme Court select a
very small percentage of cases to review?
The Court selects only very significant
cases because of its limited time.

III. Steps in Deciding Major Cases (pages 333–335)
A. Each side submits a brief detailing legal
arguments, facts, and precedents. Parties
not directly involved but with an interest in
the case may submit amicus curiae briefs.
B. Lawyers for each side make oral arguments during which justices may ask questions.
C. On Wednesdays and Fridays the chief justice presides over a secret conference, in which each single case is summarized and
recommendations for handling it are made.

D. The justices spend about 30 minutes
debating each case. Each justice has one
vote; a majority vote is needed to decide
a case.
E. The justices may issue four kinds of opinions: a unanimous opinion, a majority opinion, a concurring
opinion, or a dissenting opinion.
F. If the chief justice votes with the majority, he or she assigns a justice in the majority to write the Court’s
opinion. If not, the most senior justice with the majority assigns a justice to write the opinion.


In what way has a Supreme Court
decision affected you, your family, or your
community directly?
Answers will vary. Students may refer to
decisions affecting schools, free speech, etc.

below to identify the three ways cases reach the
Supreme Court.

original jurisdiction, on appeal, writ of certiorari

___
___
___
___
___
___

writ of certiorari
D
A
per curiam opinion
brief
C
amicus curiae
F
majority opinion
E
dissenting opinion
B

A. a brief, unsigned statement of a
Supreme Court decision
B. the opinion expressed by a minority
of justices in a court case
C. a written statement setting forth the
legal arguments, relevant facts, and
precedents supporting one side of a
case
D. an order from the Supreme Court to
a lower court to send up the
records on a case for review
E. the opinion expressed by a majority
of justices in a court case
F. a written brief from an individual or
group claiming to have information
useful to a court’s consideration

3. Identify Charles Evans Hughes.
Charles Evans Hughes served as chief justice of the Supreme Court
and is often quoted on his defense of dissenting opinion.

4. What steps does the Supreme Court take in
selecting, hearing, and deciding cases?
Justices discuss cases and accept those involving important constitutional questions. The Court receives briefs; listens to lawyers’ oral
arguments; discusses the cases in private; votes on the cases; writes opinions; and announces its decisions.

Critical Thinking
5. Demonstrating Reasoned Judgment Do you
believe that it is proper that the Supreme
Court’s deliberations are secret and that no
minutes are kept?
Answers will vary. Students should cite the relationship between
secrecy, judicial independence, and political or public pressure.

Political Processes The Supreme
Court does not hear all the cases sent to
it on appeal. Find out how many cases
were sent to the Supreme Court in each
of the past 10 years and the number of
cases about which an opinion was
issued. Present your information in a
double bar graph.

Chapter Objectives
•

Constitutional Rights Discuss constitutional rights
and the importance of the nationalization of the Bill
of Rights.

•

Freedom of Religion Explain the establishment and free exercise clauses that define the First Amendment’s guarantee of religious freedom.

•

Freedom of Speech Explain how the First Amendment protects diversity of opinion in the
United States.

•

Freedom of the Press Analyze First Amendment protections for the sharing of information and opinions.

•

Freedom of Assembly Explain the freedoms and restrictions placed by the First Amendment upon gatherings of people.

Constitutional Rights
Key Terms
human rights, incorporation

Find Out
• How did the Supreme Court extend many rights mentioned in the
first 10 amendments to the Constitution?

• Why is the Constitution of the United States
considered to be a living document?

Constitutional Rights
Civic Participation What general
assumptions about its citizens does a
democratic government make?

Section Objective
Discuss constitutional rights and the importance of
the nationalization of the Bill of Rights.

The Fourteenth Amendment, which grants
citizenship and fundamental rights to African
Americans, was intended to protect the rights
of freed African Americans in the South. The
amendment was passed in June 1866, but
was not ratified by the states until July 1868.
The ratification process took so long because
many southern states were against equal
rights for African Americans. The federal
government encouraged ratification of the
Fourteenth Amendment by making it a
requirement for southern states that wanted to
be readmitted into the Union.

I. Constitutional Rights (pages 355–357)
A. The Constitution guarantees the basic rights
of United States citizens in the Bill of Rights.
B. Today, the Bill of Rights protects the rights of individuals not only from actions of the federal government but also
from actions of state and local governments.
C. The Bill of Rights was intended to protect against the actions of the federal government.

D. A process called incorporation extended
the Bill of Rights to all levels of
government.
E. The Fourteenth Amendment, added in 1868, paved the way for a major expansion of individual rights by the due
process clause, which Supreme Court rulings have interpreted as applying to all levels of government.

F. The Supreme Court’s interpretation of the
Fourteenth Amendment nationalized the Bill
of Rights, thus giving citizens in every part of
the United States the same basic rights.
G. The incorporation of the Bill of Rights has meant that, in practice, citizens who believe state and local governments have denied them their
constitutional rights can take their cases to federal courts, including the Supreme Court.


How was the Bill of Rights expanded so
that citizens in all parts of the United
States now enjoy the same basic rights?
By a process called incorporation.

below to show the effects of incorporation on
the scope of the Bill of Rights.

Effect: The Bill of Rights grew to protect citizens
on the state as well as federal level.

2. Define human rights, incorporation.
Human rights are fundamental freedoms.
Incorporation is a process that extended the protections of the Bill of Rights against the actions of
state and local governments; the process of setting up a legal community under state law.

3. Identify Bill of Rights, Fourteenth Amendment.
The Bill of Rights are the first ten amendments of the Constitution that guarantee basic rights.
The Fourteenth Amendment defined citizenship and laid the groundwork for making individual rights
national.

4. Analyze the impact of the incorporation of the
Bill of Rights.
Incorporation extended the Bill of Rights to protect citizens from all
levels of government in the United States.

5. Cite the branch of government that has been
primarily responsible for the incorporation of the
Bill of Rights.
the judicial branch (the Supreme Court)

Critical Thinking
6. Making Inferences When it came time to
submit the new Constitution to the states for
ratification, why do you think state leaders
insisted on a national Bill of Rights?
They feared the potential power and abuses of
the national government.

Civic Participation Some people have
argued that all Americans should be
required to perform some type of
compulsory service. Write an editorial for a
newspaper either supporting or opposing
the idea of compulsory service.

Freedom of Religion
Key Terms
establishment clause, free exercise clause,
parochial school, secular, abridge, precedent

Find Out
• What is the difference between the establishment clause and the
free exercise clause of the First Amendment?

• Why did the Court allow state-supported bus transportation for
parochial schools but ban their use for field trips?

Freedom of Religion
Cultural Pluralism How does the free exercise
clause protect the diverse cultures and religious
practices in the United States?

Section Objective
Explain the establishment and free exercise clauses
that define the First Amendment’s guarantee of
religious freedom.

The Supreme Court in 1962 ruled 6 to 1
against allowing prayers in public schools.
The specific case dealing with this issue was
Engle v. Vitale, for which Justice Hugo Black
wrote the Court’s opinion, finding that school
prayers violated the establishment clause of
the First Amendment.

I. The Establishment Clause (pages 358–363)
A. This clause forbids Congress from passing
legislation to establish a single religion for
the United States.
B. The First Amendment’s guarantee of the free exercise of religion forbids Congress from passing laws limiting the practice of religion.
C. In practice, religion is important to public life in the United States, and defining separation between church and state has been difficult.
D. Establishment clause cases often involve religion and education.

E. Since the Everson ruling in 1947, the Court
has ruled some forms of state aid to
parochial schools constitutional but has
rejected others.
F. The Court has ruled state aid to parochial
schools constitutional:
1. if the aid has a clear nonreligious purpose;
2. if its main effect is to neither advance nor inhibit religion;
3. if it avoids excessive government entanglement with religion.

G. The Court has allowed released time for
religious instruction during the school day if
the instruction is provided away from the
public schools.
H. The Court has struck down organized school prayers but has allowed student religious groups to hold
meetings in public schools; debate on the Court’s rulings involving religion has been heated and sharply
divided.

I. The Court also has ruled that states
cannot ban the teaching of evolution in
public schools or require the teaching
of creationism.
J. Other interpretations of the establishment clause have involved Christmas nativity displays in
public places and prayers at government meetings.


Why has the Supreme Court upheld some
kinds of state aid to parochial schools
and struck down other kinds of aid?
Because of its interpretation of the free
exercise and establishment clauses.

II. The Free Exercise Clause (pages 363–364)
A. The Supreme Court makes an important
distinction between religious belief
and practice.
B. Religious freedom cannot justify behavior or practices that violate laws protecting the health, safety, or morals of the community.
C. Amish parents could not be forced to send their children to public school beyond eighth grade; children of Jehovah’s Witnesses could not
be required to salute the flag in
the classroom.

II. The Free Exercise Clause (pages 363–364)

Compare the effects of the establishment
clause and the free exercise clause of the
First Amendment on the freedom of religion
that United States citizens enjoy.
Answers will vary. Students should use
specific examples.

1. Main Idea Use a Venn diagram like the one
below to show the difference between the
establishment clause and the free exercise
clause of the First Amendment and what they
have in common.

establishment clause: no single church or set of beliefs can predominate; both: wall of separation between church and state;
free exercise clause: the right to hold any religious beliefs is absolute

___
___
___
___
___
___

F
establishment clause
free exercise clause
C
parochial school
B
secular
E
abridge
A
precedent
D

A. limit
B. operated by a church or
religious group
C. the First Amendment
guarantee that prohibits
government from unduly
interfering with the free
exercise of religion
D. a model on which to base
later decisions or actions
E. nonreligious
F. the First Amendment
guarantee that “Congress
shall make no law respecting
an establishment of religion”

3. Identify Equal Access Act.
The Equal Access Act allows public high schools receiving federal funds to permit student
religious groups to hold meetings in the school.

4. What three-part test does the Supreme Court
use to determine if government aid to parochial
education is constitutional?
Aid must have a clearly secular purpose, must neither advance nor inhibit religion, and must not
involve “excessive government entanglement with religion.”

Critical Thinking
5. Recognizing Ideologies Do you think that
prayer in public schools is permitted or
disallowed by the establishment clause and/or
the free exercise clause of the First
Amendment? Explain your answer.
Answers will vary. Some students may contend that if such prayers neither favor nor discriminate against specific religions, church and state separation is
maintained. Other students may argue that any religious activity in public schools destroys that separation.

Cultural Pluralism Study the free exercise
and establishment clauses. Take a position
on the following: Government buildings
should be allowed to place the motto “In
God We Trust” in public view. Outline the
reasons for your position, then create a
banner or poster stating your position.

Freedom of Speech
Key Terms
pure speech, symbolic speech, seditious speech,
defamatory speech, slander, libel

Find Out
• How has the Supreme Court applied the principles of “clear and present
danger” and the bad tendency doctrine in determining free speech?

• What speech is protected by the First
Amendment, and what speech is not protected?

Freedom of Speech
Civil Liberties What is the intent of the preferred
position doctrine?

Section Objective
Explain how the First Amendment protects diversity of
opinion in the United States.

More than 2,000 years ago, a Greek
philosopher named Diogenes said, “The
most beautiful thing in the world is free
speech.” Just as ancient Greece valued
freedom of speech, United States citizens
also regard it as one of their most
fundamental rights. In fact, the nation’s
founders included this freedom as a basic
part of the first amendment they added to
the Constitution.

I. Types of Speech (pages 366–367)
A. Free speech includes verbal expression of
thought and opinion and symbolic speech,
using actions and symbols.
B. Because symbolic speech involves action, it may be limited by government restrictions that do not apply to free speech.
C. Government can regulate or forbid symbolic speech if it falls within the constitutional power of government, if it is narrowly drawn to further a government interest not
related to suppressing speech, or if it leaves open enough other channels of communication.

I. Types of Speech (pages 366–367)

Compare pure speech and symbolic
speech. In what ways are they similar? In
what ways are they different?
Pure speech is verbal expression; symbolic
speech is actions and symbols; both are
protected by the First Amendment.

II. Regulating Speech (pages 367–369)
A. The rights of free speech must be balanced
against the need to protect society.
B. Free speech may be limited when it clearly presents an immediate danger, as in the Schenck case (1919).
C. Free speech can be restricted even if it only tends to lead to illegal action (the bad tendency doctrine), given
society’s need to maintain public order.

D. The Court has ruled that the First
Amendment freedoms have a preferred
position because they are more fundamental
than other freedoms; laws limiting them are
presumed unconstitutional.
E. The Court has held that people are free to speak out in support of political objectives; however, free speech does
not protect those who advocate immediate and specific acts of violence.


What three constitutional tests has the
Supreme Court used when deciding whether
limits on free speech are permissible?
“Clear and present danger” rule, bad tendency
doctrine, preferred position doctrine.

III. Other Speech Not Protected (pages 369–370)
A. The First Amendment does not protect
defamatory speech.
B. Defamatory speech includes slander, or spoken words, and libel, or written words, in false and damaging statements
about someone.
C. Public officials and public figures in general are excluded from the right to sue for slander in order to preserve an individual’s right to
criticize the government.

D. Fighting words, or speech intended to
provoke violence, are not protected.
E. School authorities can regulate students’ free
speech at school events and during activities.


Do you agree or disagree with limits on
students’ freedom of speech in public
schools? Use examples of these limits to
explain your opinion.
Answers will vary. See cases on text page 370.

1. Main Idea Use a Venn diagram like the one
shown here to explain the difference between
slander and libel.

Slander: spoken; Libel: written

___
___
___
___
___
___

E
pure speech
A
symbolic speech
C
seditious speech
defamatory speech
F
slander
B
libel
D

A. the use of actions and symbols, in
addition to or instead of words, to
express opinions
B. false speech intended to damage a
person’s reputation
C. speech urging resistance to lawful
authority or advocating the overthrow of
the government
D. false written or published statements
intended to damage a person’s
reputation
E. the verbal expression of thought and
opinion before an audience that has
chosen to listen
F. false speech that damages a person’s
good name, character, or reputation

3. Identify “clear and present danger.”
The phrase “clear and present danger” refers to a test judges frequently rely on to resolve the
conflict between free expression and the demands of public safety.

4. What three tests does the Supreme Court use
to set limits on free speech?
clear and present danger—speech presenting immediate danger is not protected; bad tendency—speech can be restricted even if it only tends to lead
to illegal action; preferred position—speech should not be limited unless absolutely necessary

5. What types of speech does the First
Amendment not protect?
The First Amendment does not protect seditious speech, defamatory
speech, “fighting words,” and certain types of student speech.

Critical Thinking
6. Making Comparisons How does freedom of
speech in the United States differ in wartime
and in peacetime? Refer to Supreme Court
decisions in your answer.
Speech considered seditious during war [Schenck (1919) and O’Brien (1968)] was protected in
peacetime [Yates (1957) and Brandenburg (1969)].

Civil Liberties The Supreme Court has
held that First Amendment freedoms are
more fundamental than others. Read a
Court decision in this chapter and create a
political cartoon supporting or opposing the
Court’s view. Post your cartoon on a bulletin
board and challenge other students to
guess the case that it identifies.

Freedom of the Press
Key Terms
prior restraint, sequester, gag order, shield laws

Find Out
• What is the Supreme Court’s opinion on
prior restraint?
• How has the Supreme Court ruled when the
presence of the media could affect a court trial?

Freedom of the Press
Civil Liberties Some people perceive an
adversarial relationship between the government
and the press. Is this so? Why or why not?

Section Objective
Analyze First Amendment protections for the sharing
of information and opinions.

In ruling on Near v. Minnesota, Chief Justice
Charles Evans Hughes declared that prior
restraint was “the essence of censorship” but
acknowledged four possible circumstances in
which he felt censorship might be allowed:
when something printed was obscene,
weakened national security, invaded “private
rights,” or incited violence.

I. Prior Restraint Forbidden (pages 371–372)
A. Prior restraint, or censorship in advance, is
permissible only in cases directly related to
national security.
B. In Near v. Minnesota (1931) the Court ruled that states could not stop the publication of a newspaper because that action involved prior
restraint.
C. In the Pentagon Papers case in 1971, the majority ruled that the government could
not stop the publication of secret government documents because it
would involve prior restraint.

I. Prior Restraint Forbidden (pages 371–372)

Why were the justices of the Supreme Court
divided in their decision in the Pentagon
Papers case in 1971? Explain the issues that
caused the Court to split in this ruling.
See the case and decision on text page 372.

II. Fair Trials and Free Press (pages 372–374)
A. The First Amendment rights of a free press
sometimes conflict with the Sixth
Amendment’s guarantee of a fair trial.
B. After the Sheppard case (1966), the Supreme Court described measures that courts might take to restrain press coverage, including moving the trial site, limiting the number of reporters in the courtroom,
controlling reporters’ conduct in court, keeping witnesses and jurors isolated from the press, and sequestering the jury.

C. Gag orders barring the press from
publishing certain types of information are
illegal and are allowed only in unusual
circumstances.
D. After the Court ruled that reporters, like all citizens, must testify in cases if called and cannot refuse to reveal their sources of information, some states passed
shield laws to protect the media from being forced to disclose confidential information in state courts.


Do you favor or oppose state shield laws
to protect news reporters? Explain
your reasons.
Answers will vary. Most states have passed
shield laws.

III. Free Press Issues (pages 374–375)
A. The Founders viewed the press strictly as
printed material; electronic media had not
yet been invented.
B. Radio and television do not enjoy as much freedom as other press media because they use the public airways.
C. The Federal Communications Commission (FCC) regulates radio and television. That agency cannot censor
broadcasts but may set standards.

D. Movies and the Internet are protected by
free press guarantees.
E. Communities may regulate obscenity within limits acceptable to the courts.
F. Advertising is commercial speech and
thus receives less protection than purely political speech.


How has the Supreme Court applied different
tests to the news media invented since the
Constitution was adopted?
See standards for radio, television, motion
pictures, and the Internet on pages 374–375.

shown to analyze the importance of the
Supreme Court’s ruling on the Communications
Decency Act.

issue at stake: freedom of speech safeguards on other media, such as the Internet; Court’s
ruling: speech on the Internet is constitutionally protected

___ D
prior restraint
___ C
sequester
___ A
gag order
___ B
shield laws

A. given by a judge barring the
press from publishing certain
types of information about a
pending court case
B. give reporters some means
of protection against being
forced to disclose
confidential information or
sources in state courts
C. to keep isolated
D. government censorship of
information before it is
published or broadcast

3. Identify Federal Communications Commission.
The Federal Communications Commission is a government agency that
regulates the actions of radio and broadcast television.

4. When can the government exercise prior
restraint on the press?
They can exercise prior restraint only in those
cases relating directly to national security.

5. What measures may a court take to restrain
press coverage in the interest of a fair trial?
Courts may move or delay the trial to reduce pretrial publicity, limit the number of reporters in the courtroom or place strict controls
on their conduct, isolate witnesses and jurors from the press, and sequester the jury.

Critical Thinking
6. Checking Consistency Are there any
circumstances under which reporters should be
required to reveal or protect their confidential
information or sources? Explain your answer.
Some students may feel that when national security, public safety, or individual rights are jeopardized, reporters should not be shielded from mandatory
disclosure. Others may argue that information that endangers someone should not be revealed.

Civil Liberties The issue of freedom of
the press traces back to the New York v.
John Peter Zenger case. Research this
case and explain how the results of this
case relate to freedom of the press issues
today. Present your findings in a
comparison chart.

Freedom of Assembly
Key Terms
picketing, Holocaust, heckler’s veto

Find Out
• What are the limits on public assembly?
• What constitutional protections are applied to demonstrations by
unpopular groups, or to those who might incite violence?

Freedom of Assembly
Civil Liberties Why is freedom of assembly subject
to greater regulation than freedom of speech?

Section Objective
Explain the freedoms and restrictions placed by the
First Amendment upon gatherings of people.

Burning an American flag during a
demonstration protesting some action or
policy of the government may be unpopular,
but it is not illegal. Why? The Supreme
Court has ruled that flag burning is protected
by the First Amendment because it is
symbolic speech.

I. Protecting Freedom of Assembly

(pages 376–378)

A. Freedom of assembly is a right closely
related to freedom of speech.
B. The Supreme Court, in DeJonge v. Oregon (1937), ruled that free assembly is as important as free press and free speech and that free assembly is protected from state and local governments.
C. Freedom of assembly includes the right to parade and hold demonstrations in public places, but those who organize the events must get a permit.


(pages 376–378)

D. Demonstrations at public facilities may
be limited.
E. Demonstrations are not allowed on private property, such as shopping malls and abortion
clinics, because they interfere with property rights.


(pages 376–378)

When might freedom of assembly conflict
with the public’s right to order and safety,
and which do you think is more important?
Answers will vary. For examples of this
conflict see text pages 376–377.

II. Public Assembly and Disorder (pages 378–380)
A. When people assemble to advocate
unpopular causes, police may have difficulty
protecting them from violence and disorder.
B. The Nazi party march in Skokie, Illinois, in 1977 illustrated the heckler’s veto: the public vetoes the rights of free speech and assembly of an unpopular group.
C. Police may disperse a demonstration in order to keep the peace, but in the Gregory case (1969), the Court upheld
the right of assembly by persons peacefully demonstrating in support of
an unpopular cause.

II. Public Assembly and Disorder (pages 378–380)

How effective do you think the heckler’s veto
would be in your community?
Answers will vary. Heckler’s veto is defined
on text page 379.

III. Protection for Labor Picketing (pages 380–382)
A. Labor picketing is different from other
demonstrations; it seeks to persuade
customers not to deal with a business whose
workers are on strike.
B. Before 1940 the Supreme Court supported restraints on labor picketing, but in that year it ruled
that picketing was a form of free speech; in the years since, forms of picketing have been limited in
several
key rulings.

III. Protection for Labor Picketing (pages 380–382)

Compare labor picketing with other kinds of
demonstrations. In what ways are they the
same and different?
Picketing is a form of free speech, but it
includes a picket line which may deprive a
business of customers or workers.

IV.Freedom of Association (page 382)
A. The right of free assembly includes the
right of free association, including joining
a political party, interest group, or
other organization.
B. Membership in groups advocating the use of force to overthrow the government, the Court has ruled, is not illegal; when members of such groups
actually prepare to use such force, however, the acts are punishable.

IV.Freedom of Association (page 382)

How did the Supreme Court apply the clear
and present danger doctrine to membership
in subversive groups?
In the 1950s the Court upheld convictions
against Communist Party members. Later it
ruled that merely advocating a belief did not
show a “clear and present danger.”

below to identify two reasons the right to
assemble is important to preserve in a
democracy and two reasons it can be limited.

to preserve: it allows political parties and interest groups to exist, as well as organized dissent against the government; to limit: local governments may require permits for organized
parades and demonstrations, and restrictions may be set if the right of assembly clashes with the rights of other people.

2. Define picketing, Holocaust, heckler's veto.
Picketing is patrolling an establishment to convince workers and the public not to enter it.
The Holocaust was the mass extermination of Jews and other groups by the Nazis during World War II.
The heckler’s veto refers to the public veto of free speech and assembly rights of unpopular groups by claiming demonstrations will result
in violence.

3. Identify clear and present danger doctrine.
The clear and present danger doctrine was a major issue when the government began to arrest and convict accused
subversives, primarily Communist Party members during the 1950s.

4. What two principles were established by the
DeJonge decision?
The right of assembly is as important as free speech; the Fourteenth Amendment protects the right of
assembly from infringement by state and local governments.

Critical Thinking
5. Checking Consistency Should more
restrictions apply if a parade supports an
unpopular cause? Support your answer.
Answers may vary but should balance the rights
of assembly with the potential for violence.

Civil Liberties Imagine that you are the
mayor of a town where a citizen is
planning a rally to protest the
government’s environmental policies.
Write a letter to the city council
explaining the constitutional issues and
the public welfare concerns that they
should consider before allowing the rally.

Reviewing Key Terms
From the following list, choose the term that fits each situation described.

A. shield laws
B. pure speech
C. prior restraint
D. libel
___
E

C
H
D

E. heckler’s veto
F. seditious speech
G. picketing
H. symbolic speech

1. Spectators threaten violence against an
unpopular demonstration and, in order to keep peace,
authorities break up the demonstration.

___

2. A government official tells a reporter that she
cannot publish a story that might compromise national
security.

___

3. A group burns an American flag to show its
objection to a government policy.

___

4. A newspaper publishes an untrue story that
damages the reputation of a local resident.

Reviewing Key Terms
From the following list, choose the term that fits each situation described.

A. shield laws
B. pure speech
C. prior restraint
D. libel
___
G
F

B
A

E. heckler’s veto
F. seditious speech
G. picketing
H. symbolic speech

5. Animal rights activists parade outside a store that
sells furs and attempt to convince customers not to
enter the establishment.

___

6. An individual urges a group to fight the police
rather than obey a police order to disperse.

___

7. A person stands in front of a group and states her
opinion on an issue.

___

8. A reporter is protected against being forced to
disclose a source of information in court.

Recalling Facts
1. List four freedoms the First Amendment protects.
It protects freedom of religion, freedom of speech, freedom of assembly,
and freedom of the press.

2. List four examples of how religion remains part
of government.
Possible answers: Most government officials take their oaths of office in the name of God. The nation’s coins carry the motto “In God We Trust.” The
Pledge of Allegiance contains the phrase “one nation under God.” Daily sessions of Congress open with a prayer.

Recalling Facts
3. Identify kinds of speech the First Amendment
protects and kinds it does not protect.
It protects pure speech and symbolic speech. It does not protect seditious
speech, defamatory speech, or “fighting words.”

4. How might freedom of the press interfere with
an individual’s right to a fair trial?
The press might print or broadcast information that might influence witnesses’ testimony, prejudice
jurors or prospective jurors, or otherwise influence the trial’s outcome.

Recalling Facts
5. Why may government require that groups first
obtain permits to parade or demonstrate?
Permits are required so that authorities can make arrangements for the
public’s welfare, safety, and protection.

1. Civic Participation Analyze the Supreme
Court’s decision in Gitlow v. New York. How did it
support the intent of the Fourteenth Amendment
to define citizenship and civic participation?
Possible answers: The Court’s decision that freedom of speech is a basic, undeniable right promotes an atmosphere in which citizens can speak their minds about issues that matter to them, but cannot advocate
the violent overthrow of the government. The ruling determined that no state government could deny basic rights and liberties to any person.

2. Civil Liberties Why did the court treat a
Minneapolis newspaper differently than a
Hazelwood school newspaper?
Answers may vary, but students should note that school officials are responsible for activities that take place on school property and may regulate school curriculum and publications,
whereas the Minneapolis newspaper was privately published and free from government censorship and prior restraint.

Critical Thinking
1. Demonstrating Reasoned Judgment Should
the First Amendment protect those who publish
stolen government documents? Explain.
Answers will vary, but should include references to Supreme Court decisions on this issue, such as the Pentagon Papers case. Students should attempt
to balance the interests of the national security and government suppression of embarrassing information.

Critical Thinking
2. Recognizing Ideologies The Court ruled out
laws requiring the teaching of creationism, but
not the teaching of creationism itself. Does
teaching creationism in public schools serve to
“endorse a particular religious doctrine”? Explain.
Answers will vary, but should address questions such as the following: Can an individual teacher present creationism objectively?
If creationism is taught, is it presented as a specific religious doctrine? What evidence is presented?

Critical Thinking
3. Making Comparisons Use a graphic organizer
like the one below to compare the three tests for
limiting seditious speech.

relaxes limits: preferred position;
sets standard: clear and present danger; toughens limits: bad
tendency.

Interpreting Political Cartoons Activity

1. Whom do you think the person in the cartoon is
representing? Why?
The cartoon is representing the Framers of the Constitution, because his clothing, hairstyle, and writing
materials suggest the time when the Constitution was written.


2. What is this person doing?
He is drafting the Constitution or the Bill
of Rights.


3. What do his thoughts suggest about the nature
of an individual’s constitutional rights?
They suggest how the nation’s Founders had to create a balance between
freedom and rights and the limits to them.

What are the three major religions
practiced in the United States today?
Christianity, Islam, and Judaism

3) Answers will vary.
2) the Civil War and the emancipation of enslaved African Americans
1) in 1833

1) less than one-fourth
2) 2.8%


1) Congress passed the Flag Protection Act of 1989.
2) It is considered to be a legal symbolic speech.

1) One possibility is that pretrial publicity may make it difficult to
find jurors who have not already formed an opinion.

1) number one and possibly
number four

3) number three

2) number two because it
would be on private
property

Depicting Rights and Freedoms Many events
discussed in this chapter are filled with drama. Select one
such moment to depict artistically. Here are a few ideas:
• James Madison introducing to Congress the set of
amendments that became the Bill of Rights
• students or parents demonstrating against a Court ruling
(as in school prayer or Bible-study case)
• a student newspaper staff learning that their publication
is being censored
• reporters competing for interviews with jury members
from a high-profile trial
Be prepared to explain your choice. Prepare a classroom
display of the individual works.

The Colonial Press Freedom of the press was an
important issue in the North American colonies. The
libel trial of John Peter Zenger in 1735 set a precedent
for this freedom. Zenger, the publisher of the New
York Weekly Journal, accused a British official of
corruption. As a result, Zenger was brought to trial on
charges of libel. His lawyer, Alexander Hamilton,
argued that Zenger was not guilty because the
accusations were true and because free speech was a
basic right of the British people. The jury agreed and
found Zenger not guilty.

Dick Gregory continued to work for political change
after his experience in Chicago. Perhaps his best
known comment appears in Dick Gregory’s Political
Primer (1972): “In the United States, the
Constitution is a health chart left by the Founding
Fathers which shows whether or not the body
politic is in good health. If the national body is found
to be in poor health, the Founding Fathers also left
a prescription for the restoration of health called the
Declaration of Independence.”

Nondenominational means, in this context, “not
having to do with any particular group of churches
or religion.” In other words, the nondenominational
prayer in the Engel v. Vitale case was deemed by
the New York Board of Regents acceptable for use
by Roman Catholics, Baptists, Mormons, Jews, and
so on.

Picket originally was the name given to a British
soldier or group of soldiers who were set to watch
for the enemy. The British labor movement
adopted this term to refer to a union member who,
during a factory strike, would watch for laborers
coming to work and try to persuade them to join
the strike. Both meanings were used in the United
States as well, before the term came to refer to
other kinds of protests.

Spam Ban?
Spam, or unsolicited e-mail advertising, is an issue over
which new technology and the First Amendment may come
into possible conflict. Some computer users say junk e-mail
is even worse than regular junk mail because it clogs up the
Internet and can cost the recipient in telephone bills. States
have passed legislation to control spam, but some people do
not want to see laws that would eliminate it altogether. They
say that although spam is a nuisance, banning it would be a
violation of the First Amendment. If spam is controlled by the
government, they argue, other kinds of Internet speech
might also become regulated. Instead, these critics believe
that federal and state legislation should continue to provide
limited protection against certain forms of spam without
forbidding people their right to self expression.

Restricting Freedoms Most Americans believe that
one of the principal functions of government is to
protect the rights of the governed. Among the rights
that Americans want government to secure are
freedom of religion, speech, press, and assembly.
These civil liberties are expressly granted to citizens
in the First Amendment. While the Constitution grants
citizens these liberties, it can also be used by
government to restrict these liberties when it can be
shown that it is in the public interest to do so. Debate
these issues by agreeing or disagreeing with the
following statement: “In a democracy, guaranteed
rights must be accompanied by a means to restrict
those rights.”

Students on Parade Think of a local parade in
which you would like to participate and then find out
how you would apply for a parade permit. Share
your findings with the class and discuss whether or
not you think that some kinds of parades are more
“welcome” in the community than others—and, if
so, which ones.

Law The Supreme Court decision in Abington
School District v. Schempp banned the reading of
the Lord’s Prayer and sections from the Bible, but it
did not rule against teaching about religion in public
schools. The ruling noted, “Nothing we have said
here indicates that . . . study of the Bible or religion,
when presented objectively as part of a secular
program of education, may not be effected
consistently with the First Amendment.”

Gladiola Campos
Gladiola Campos and the other students in Union
Summer worked in some 20 communities nationwide,
focusing their efforts on educating and mobilizing
women, recent immigrants, and racial minorities. Joy
Applin, another student worker in that summer’s
program, said, “I am so glad that I am in Union Summer.
Before, I didn’t have much knowledge about unions.
Now, it’s making me excited.” And Gladiola Campos
commented, “I’m pumped up . . . I feel ready to take on
the world.”
Activity: Consider how you might try to educate a
person—especially a person whom you felt was being
taken advantage of—about his or her rights.

More About Finding Supreme Court Decisions
Browse the Internet to obtain information on Supreme
Court decisions.
• U.S. Government Printing Office Home Page:
http://www.access.gpo.gov/
• Meta-Index for U.S. Legal Research:
http://gsulaw.gsu.edu/metaindex/
• Legal Information Institute:
http://www.law.cornell.edu/
• Oyez: U.S. Supreme Court Multimedia:
http://www.oyez.org/

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