Analyze why people who are advocates of rights in theory often hesitate when it comes time to put those rights into practice.
Cases become particularly difficult when liberties are in conflict (such as free press versus a fair trial or free speech versus public order) or where the facts and interpretations are subtle and ambiguous.
Examine how decisions of the Supreme Court have extended specific provisions of the Bill of Rights to the states as part of the incorporation doctrine.
Gitlow v. New York, 1925: The Court announced that freedoms of speech and press "were fundamental personal rights and liberties protected by the due
process clause of the Fourteenth Amendment from impairment by the states."
Describe how the two constitutional statements about religion and government— the establishment clause and the free exercise clause—may sometimes conflict.
Example: The government's practice of providing chaplains on military bases; some accuse the government of establishing religion in order to ensure that members of the armed forces can freely practice their religion.
Examine what the First Congress may have intended by the terms establishment and free exercise of religion.
1. The establishment clause states that "Congress shall make no law respecting an establishment of religion."
A. This clause clearly prohibits an establishment of a national church in the United States.
B. Thomas Jefferson argued that the First Amendment created a "wall of separation" between church and states, which would prohibit not only favoritism but any support for religion at all.
2. The First Amendment also guarantees the free exercise of religion.
A. The Supreme Court has consistently maintained that people have an absolute right to believe what they want, but the courts have been more cautious about the right to practice a belief.
Establish why the Supreme Court will usually not permit prior restraint on speech and press.
In their attempts to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order, national security, and the right to a fair trial.
Explain why it has been so difficult for the courts to clearly define which types of materials are considered to be obscene.
1. Public standards vary from time to time, place to place, and person to person.
2. Work that some call "obscene" may be "art" to others.
3. No nationwide consensus exists that offensive material should be banned.
Differentiate between freedom of speech and related concepts like symbolic speech and freedom of expression.
Symbolic speech refers to actions that do not consist of speaking or writing but that express an opinion.
1. Broadly interpreted, freedom of speech is a guarantee of freedom of expression.
2. The doctrine of symbolic speech is not precise: burning a flag is protected speech, but burning a draft card is not.
Understand the conflict that can occur between free speech and public order.
1. The balance between freedom and order is tested when
protest verges on harassment (as illustrated by the dispute over protesters lined up outside abortion clinics).
2. Within reasonable limits (called time, place, and manner restrictions) to preserve public order, freedom of assembly includes the rights to parade, picket, and protest.
3. The Supreme Court has generally upheld the right of any group—no matter how controversial or offensive—to peaceably assemble on public property.
Determine how essential rights such as the right to a fair trial can conflict with other rights such as the right to a free press.
1. The Constitution clearly meant to guarantee the right to a fair trial as well as the right to a free press, but a trial may not be fair if pretrial press coverage makes it impossible to select an impartial jury.
2. The Supreme Court has ruled that the right to a fair trial preempts the reporter's right to protect sources (Branzburg v. Hayes, 1972) and has sustained the right of
police to obtain a search warrant to search the files of a student newspaper (Zurcher v. Stanford Daily, 1976).
3. The Court has revoked gag orders imposed by lower courts (forbidding the press to report details of a case), but a 1979 case also permitted a closed hearing on the grounds that pretrial publicity might compromise the defendant's right to a fair trial.
Identify the two facets of freedom of assembly and explain how they may conflict with other societal values.
1. Right to assemble - the right to gather together in order to make a statement.
2. Right to associate - freedom to associate with people who share a common interest.
Explain how specific provisions of the Bill of Rights have been used to extend basic rights to defendants in criminal trials.
1. The Fourth Amendment is quite specific in forbidding unreasonable searches and seizures.
2. The Fifth Amendment prohibits forced self-incrimination.
3. The Sixth Amendment ensures the right to counsel, a speedy trial and an impartial jury.
4. The Eighth Amendment forbids cruel and unusual punishment, but it does not define the phrase.
Ascertain how concepts such as a right to privacy can be inferred or implied from the Bill of Rights.
1. Although the Constitution does not specifically mention a right to privacy, the Supreme Court has said that it is implied by several guarantees in the Bill of Rights.
2. In 1928, Justice Brandeis called privacy "the right to be left alone."
3. In Griswold v. Connecticut, the Court found that various portions of the Bill of Rights cast "penumbras"—unstated liberties implied by the explicitly stated rights—that protected a right to privacy.
4.. Supporters of privacy rights argued that the First Amendment (free exercise of religion) and the Fourth Amendment (limits on searches) was intended to protect privacy.