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First Amendment Activities | United States Courts

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Jan 312016
 

Apply landmark Supreme Court cases to contemporary scenarios related to the five pillars of the First Amendment and your rights to freedom of religion, speech, press, assembly, and petition.

“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 redress of grievances.”First Amendment, U.S. Constitution

Cox v. New Hampshire Protests and freedom to assemble

Elonis v. U.S. Facebook and free speech

Engel v. Vitale Prayer in schools and freedom of religion

Hazelwood v. Kuhlmeier Student newspapers and free speech

Morse v. Frederick School-sponsored events and free speech

Snyder v. Phelps Public concerns, private matters, and free speech

Texas v. Johnson Flag burning and free speech

U.S. v. Alvarez Lies and free speech

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First Amendment Law (U. S. Constitution: The First Amendment)

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Jan 312016
 

This site explores the history and interpretation of the First Amendment of the U. S. Constitution, including the Free Speech Clause, the Establishment Clause, and the Free Exercise Clause. For materials on other topics related to the Constitution, visit Exploring Constitutional Law.

THE FREE SPEECH CLAUSE

Introduction to the Free Speech Clause

What is “Speech”?

The “Clear & Present Danger” Test for Subversive Advocacy

Advocacy of Unlawful Action and the “Incitement Test”

Substantial Overbreadth Doctrine

Prior Restraints

The Press & Fair Trial Issues

Four-Letter Words and Other Indecent Speech

A Free Speech History Lesson: The Trial of Lenny Bruce

Regulation of Hate Speech

Desecrating Flags and Other Attacks on American Symbols

First Amendment Limitations on Civil Law Liability

Does the First Amendment Protect Lies?

Different Tests for Different Media?

Permits and Fees for Marches, Parades, Rallies

Speech Restrictions in the Traditional Public Forum

Time, Place, and Manner Regulations

Speech Restrictions in the Limited Public Forum

Speech Restrictions in the Non-Public Forum

Student Speech Rights

Government-Compelled Speech

Gov’t Speech & Conditions on Speech Attached to Gov’t Spending

Free Speech Rights of Public Employees

The First Amendment and News Gathering: Access to (and Protection of) Sources

Regulation of Commercial Speech

Campaign Finance Regulation

The Right Not to Associate

What is Obscene?

Regulation of Child Pornography

Adult-Oriented Businesses and the “Secondary Effects” Test

Free Speech and the State Action Requirement

THE RELIGION CLAUSES

Introduction to the Establishment Clause

Prayer in the Public Schools

Vouchers & Other Aid to Religious Schools

The Evolution/Creationism Controversy

Theocracy Issues: Looking for Secular Purposes

Religious Symbols in Public Places

Student-Initiated Religious Speech

The Free Exercise Clause: Rise of the Compelling State Interest Test

The Free Exercise Clause: Narrowing of the Test

To see a course syllabus, jump to: FIRST AMENDMENT LAW SYLLABUS.

SAMPLE EXAM PROBLEMS

(All teachers are welcome to adopt this material for their own courses. DL) THEME SONG

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Annenberg Classroom – First Amendment

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Jan 312016
 

First Amendment – The Text11 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.

11On September 25, 1789, Congress transmitted to the states twelve proposed amendments. Two of these, which involved congressional representation and pay, were not adopted. The remaining ten amendments, known as the Bill of Rights, were ratified on December 15, 1791.

First Amendment – The Meaning Freedom of Speech and of the Press: The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular.

Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements). Under its provisions, the media including television, radio and the Internet is free to distribute a wide range of news, facts, opinions and pictures. The amendment protects not only the speaker, but also the person who receives the information. The right to read, hear, see and obtain different points of view is a First Amendment right as well.

But the right to free speech is not absolute. The U.S. Supreme Court has ruled that the government sometimes may be allowed to limit speech. For example, the government may limit or ban libel (the communication of false statements about a person that may injure his or her reputation), obscenity, fighting words, and words that present a clear and present danger of inciting violence. The government also may regulate speech by limiting the time, place or manner in which it is made. For example the government may require activists to obtain a permit before holding a large protest rally on a public street.

Freedom of Assembly and Right to Petition the Government: The First Amendment also protects the freedom of assembly, which can mean physically gathering with a group of people to picket or protest; or associating with one another in groups for economic, political or religious purposes.

The First Amendment also protects the right not to associate, which means that the government cannot force people to join a group they do not wish to join. A related right is the right to petition the government, including everything from signing a petition to filing a lawsuit.

Freedom of Religion: The First Amendment’s free exercise clause allows a person to hold whatever religious beliefs he or she wants, and to exercise that belief by attending religious services, praying in public or in private, proselytizing or wearing religious clothing, such as yarmulkes or headscarves. Also included in the free exercise clause is the right not to believe in any religion, and the right not to participate in religious activities.

Second, the establishment clause prevents the government from creating a church, endorsing religion in general, or favoring one set of religious beliefs over another. As the U.S. Supreme Court decided in 1947 in Everson v. Board of Education of Ewing Township, the establishment clause was intended to erect “a wall of separation between church and state,” although the degree to which government should accommodate religion in public life has been debated in numerous Supreme Court decisions since then.

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First Amendment to the United States Constitution – Simple …

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Jan 312016
 

The First Amendment to the United States Constitution is a part of the United States Bill of Rights that protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press, and right to petition.

The Establishment Clause does not allow the government to support one religion more than any other religion. The government also can not say a religion or a god is true. This is often described as “separation of church and state”, where “state” means “the government”. It also does not allow the government to establish a national religion. It allows people to debate religion freely without the federal government of the United States getting involved. The clause did not stop the various states from supporting a particular religion, and several states did.

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.

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First Amendment Day – UNC Center for Media Law and Policy

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Jan 312016
 

Each year, the University of North Carolina at Chapel Hill celebrates First Amendment Day. This campus-wide, daylong event is designedto both celebrate the First Amendment and explore its role in the lives of Carolinastudents. Students and other members of the university community read from banned books,sing controversial music and discuss the publicuniversitys special role as a marketplace of ideas and the need to be tolerant when others exercise their rights. First AmendmentDay is observed during National Banned Books Week.

First Amendment Day is organized by the UNC Center for Media Law and Policy. The UNC Center for Media Law and Policy is a collaboration between the School of Media and Journalism and the School of Law. Generous funding for the days events is provided by Time Warner Cable.

The seventh annual First Amendment Day was held onSeptember 29, 2015.

Be part of the conversation by tweeting with the hashtag #uncfree

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Libertarianism – TheFreeDictionary.com

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Jan 242016
 

A political philosophy that advocates free will, individual rights, and voluntary cooperation.

The core doctrine of libertarianism begins with the recognition that people have certain natural rights and that deprivation of these rights is immoral. Among these natural rights are the right to personal autonomy and property rights, and the right to the utilization of previously unused resources. These two basic assumptions form the foundation of all libertarian ideals.

Libertarianism can be traced back to ancient China, where philosopher Lao-tzu advocated the recognition of individual liberties. The modern libertarian theory emerged in the sixteenth century through the writings of Etienne de La Boetie (15301563), an eminent French theorist. In the seventeenth century, John Locke and a group of British reformers known as the Levellers fashioned the classical basis for libertarianism with well-received philosophies on human nature and economics. Since the days of Locke, libertarianism has attracted pacifists, utopianists, utilitarianists, anarchists, and fascists. This wide array of support demonstrates the accessibility and elasticity of the libertarian promotion of natural rights.

Essential to the notion of natural rights is respect for the natural rights of others. Without a dignified population, voluntary cooperation is impossible. According to the libertarian, the means to achieving a dignified population and voluntary cooperation is inextricably tied to the promotion of natural rights.

Libertarianism holds that people lose their dignity as government gains control of their body and their life. The Abdication of natural rights to government prevents people from living in their own way and working and producing at their own pace. The result is a decrease in self-reliance and independence, which results in a decrease in personal dignity, which in turn depresses society and necessitates more government interference.

Thus, the libertarian views government as both the cause and the effect of societal ills. Government is the cause of crime and prejudice because it robs people of their independence and frustrates initiative and creativity. Then, having created the sources of crime and prejudice by depriving individuals of their natural rights, government attempts to exorcise the evils with more controls over natural rights.

Libertarians believe that government should be limited to the defense of its citizens. Actions such as murder, rape, Robbery, theft, Embezzlement, Fraud, Arson, Kidnapping, Battery, Trespass, and Pollution violate the rights of others, so government control of these actions is legitimate. Libertarians acknowledge human imperfection and the resulting need for some government deterrence and punishment of violence, Nuisance, and harassment. However, government control of human activity should be limited to these functions.

Boaz, David. 1997. Libertarianism: A Primer. New York: Free Press.

Otsuka, Michael. 2003. Libertarianism Without Inequality. New York: Oxford Univ. Press.

Anarchism; Independent Parties; Natural Law; Utilitarianism.

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Libertarianisme – Wikipedia, den frie encyklopdi

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Jan 192016
 

Libertarianisme er en betegnelse for et bredt spektrum af politiske filosofier, som prioriterer individuel frihed hjt og forsger at minimere eller endog fjerne statsmagten. Filosofien fremfres oftest som en teori om retfrdighed, om end der ikke er noget forenet princip eller st af principper, som alle libertarianere kan forenes omkring. Libertarianismen har imidlertid strke rdder i isr liberalistisk og anarkistisk filosofi. Sledes er mange libertarianere enten tilhngere af en minarkistisk statsform eller et markedsanarki.

Libertarianismen er traditionelt blevet forsvaret enten p grundlag af konsekventialistiske principper eller som en rent naturretlig doktrin. Stttere af den frstnvnte tilgang betegner ofte sig selv som klassisk liberale, medens tilhngere af sidstnvnte slet og ret holder sig til “libertarianere”.[Kilde mangler]

Termen “libertarianer” er meget udbredt i USA, hvor begrebet liberal er mere flertydigt end i visse andre dele af den vestlige verden. I Danmark er det sledes ikke unormalt for personer, som tilslutter sig denne gren af liberalismen, blot at kalde sig selv for liberale. En forgelse af tilgngeligheden af isr amerikansk litteratur om emnet synes dog at vidne om, at termen vinder strre indpas i dansk sprogbrug.[Kilde mangler]

Den frste registrerede brug af termen i en politisk sammenhng, var i 1857 i forbindelse med en oversttelse af det franske ord libertaire til libertarian p engelsk, af den franske anarko-kommunist Joseph Djacque[1]. Termen blev i 1890ernes Frankrig populr som et middel til at undg konsekvenserne af den anti-anarkistiske lovgivning (les lois sclrates).

P omtrent samme tid i USA, begyndte termen ligeledes at sl rod blandt anarkistiske kommunister, og politologen Peter Kropotkin skrev i sin artikel om anarkisme i Encyclopaedia Britannica 1911-udgave:

Det ville vre umuligt p denne plads til fulde at prsentere p den ene side de anarkistiske ideer i den moderne litteratur, og p den anden side den indflydelse, som de libertre ideer har haft, p nutidige forfatteres udvikling af anarkismen[2].

I dag beskriver anarkistiske kommunister, libertre socialister og venstre-libertarianere fortsat sig selv som libertarianere, der ganske vist er imod den private ejendomsret, men som samtidig vender sig imod statslig magtanvendelse for at afskaffe den.

Under Den Store Depression i frste halvdel af 1900-tallet havde en rkke konomer og filosoffer, heriblandt John Maynard Keynes og John Dewey, begyndt at overtage og omdefinere liberalismen. Igennem den skaldte socialliberalisme (ogs kaldet nyliberalisme, hvilket dog ikke m forveksles med det nutidige ord neoliberalisme) fremsatte de argumenter for, hvordan en konomisk krise kunne undgs eller formindskes, hvis blot statsmagten begyndte at intervenere i det konomiske liv. Denne konomiske opfattelse, kaldet keynesianisme, vandt indpas verden over og USA’s prsident Franklin D. Roosevelt planlagde sin New Deal p grundlag af dens principper.

Da omfanget af konomer og filosoffer, som kaldte sig selv liberale, men samtidig stttede en strk statslig indblanding i det konomiske liv steg kraftigt i disse r, blev ordet “liberalisme” i stadig hjere grad sammenkdet med etatisme, eller endog socialisme; hvilket stadig er tilfldet i nutidens USA og Storbritannien.

De personer, som stadig fastholdt tiltroen til oplysningstidens idealer om personlig frihed og privat ejendomsret stod sledes i et dilemma, da verden omkring dem havde defineret deres filosofiske grundlag p ny. Nogle begyndte derfor at kalde sig “klassisk liberale”, andre “konservative”.

Striden om hvad man skulle kalde sit filosofiske grundlag frte til en strre leksikal debat under og efter Den Store Depression blandt isr amerikanske og strigske liberalister.

I denne debat var den strigske konom og jurist Ludwig von Mises aktiv i sine bestrbelser p, at udrydde hvad han opfattede som intellektuel og praktisk forvirring. Iflge von Mises var det ikke blot et ord der var p spil, men en betydningsfuld forskel imellem den forholdsvist uforstyrrede markedskonomi og en statsstyret planlgningskonomi.

I sin bog Liberalismus fra 1927 gjorde von Mises op med de skaldte moderne liberale som mente, at politik alene handlede om et ml, f.eks. konomisk lighed. Heroverfor fremsatte von Mises den pstand, at politik slet ikke handlede om et ml i sig selv, men om de midler, hvormed et ml skal opns. Socialister og liberalister kunne sledes meget vel have samme ml, f.eks. menneskelig lykke, men midlet til at opn dette var vidt forskelligt.

For at understrege denne forskel, begyndte Leonard Read, der i 1937 havde grundlagt den liberale uddannelsesinstitution Foundation for Economic Education, i 1940erne, at omtale sin filosofiske opfattelse som “libertariansk” fordi han mente, folk ville misfortolke “klassisk”, i klassisk liberal, p en sdan mde, at de ville tro, der var tale om et antikt og utidssvarende filosofisk system[3]. I 1955 skrev Dean Russell en artikel, hvori han funderede over, hvad han skulle kalde sdan en som sig selv, der var tilhnger af den klassisk liberale filosofi. Han foreslog:

Lad os, som elsker frihed, tage patent p det gode navn “libertarianer”.[4]

Visse fremtrdende personligheder indenfor den libertarianske verden fortsatte dog med at betegne sig selv som klassisk liberale. Blandt disse var netop Ludwig von Mises og Friedrich Hayek, der begge i deres intellektuelle arbejde havde identificeret socialismen og fascismens kollektivistiske grundlag, som vrende i familie med totalitarismen.

Ayn Rands internationale bestsellere The Fountainhead (1943) og Atlas Shrugged (1957), samt hendes bger om den objektivistiske filosofi, affdte en fornyet interesse i de libertarianske ideer om frihed og kapitalisme[5] .

I 1958 udgav den britiske akademiker Isaiah Berlin sin essay Two Concepts of Liberty hvori han opstillede to forskellige definitioner af frihed: Positiv og negativ frihed. Hvor klassiske liberale arbejde for at sikre frihed i en negativ forstand, det vil sige frihed fra tvang, forsgte den skaldt moderne liberalisme og socialismen at opn frihed i sin positive betydning, ved at sikre mennesker en frihed til at opn en mulighed.

J. S. Mill’s Liberty, Spencer’s Individual versus the State, Marc Guyau’s Morality without Obligation or Sanction, and Fouille’s La Morale, I’art et la religion, the works of Multatuli (E. Douwes Dekker), Richard Wagner’s Art and Revolution, the works of Nietzsche, Emerson, W. Lloyd Garrison, Thoreau, Alexander Herzen, Edward Carpenter and so on; and in the domain of fiction, the dramas of Ibsen, the poetry of Walt Whitman, Tolstoy’s War and Peace, Zola’s Paris and Le Travail, the latest works of Merezhkovsky, and an infinity of works of less known authors, are full of ideas which show how closely anarchism is interwoven with the work that is going on in modern thought in the same direction of enfranchisement of man from the bonds of the state as well as from those of capitalism.

Many of us call ourselves “liberals,” And it is true that the word “liberal” once described persons who respected the individual and feared the use of mass compulsions. But the leftists have now corrupted that once-proud term to identify themselves and their program of more government ownership of property and more controls over persons. As a result, those of us who believe in freedom must explain that when we call ourselves liberals, we mean liberals in the uncorrupted classical sense. At best, this is awkward, subject to misunderstanding. Here is a suggestion: Let those of us who love liberty trademark and reserve for our own use the good and honorable word “libertarian.”

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FIRST AMENDMENT – U.S. Government Publishing Office

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Jan 162016
 

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Y+^%^a vol)Z$0v1 K]n;U)?>JD0Ndlpu:p|@CDmP;QTe,rRQ5LNi!hcXS:=kgCn, vFS*{Vib$inX5XH’+rL/(%v@2y^,!ftppW($JM9Ie }pD:&fpmb0!SVI=eIe!e$L;}e~&zG{L1]eYO’w>>y4a=t!_va4~OAa endstream endobj 43 0 obj > endobj 44 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 45 0 obj >stream HWr8-]RjkG5lDB9= mx6M$hstRZ`ZU”_Q|M=~Mo qEa>|E[E,S, rW?y9^?lE[o53)[!+gCQdqKVha6%Y M0E oQA0iLO?Y)M#JzZJ4w7,{E(;^aJ,T )JU4]n,d”8KeK,ZgWc’80*KmGnEVX KG!N^)98Pju0(%6,AU%Z6″=#J~[AfX 63]_x E%R4NE’X”9mF WYy8`9Rq]2c/]T`Z$w/gKF{hrRhu6$J$TX #XNU4}Lj’ i#(8M@O 0S’9Jgd!N8aB+B5/rXmAF^j>AG~g%r*}6i?8-y9e( f^}F^#MeQfHkbQ5!H%!}F8bP=yOinJCMp?JC^y’1tc6iecjmSusYGpQAo=.oBR$}j4+H+4b2DpICgg.9eEQ[;3[1I=$.1Jy.0)^D rHN}bNLrSKkJiUV5ji{%nNBcn00_:H^;Qr+>pp,&”JO5TC [aR2LMpD gmv uS~’VpRB`+ I#Fq^GbwYo%CQ),F`1qHg{ 7#DUsuo3ks1^#otuB*E[//{D m}c8t^Xe316Ntl%4Eur>@::}sAG&?XNt F`OO(BIi:$hntg4vupAaA,]Sr G~1h.S-;QJ ]?/(l6z*:YU:e’WHs_-+V=G”VgE`}sF[_:.Y>g!/DJe.^|w0NoO{|zZ>w/{z3R endstream endobj 46 0 obj > endobj 47 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 48 0 obj >stream HW]3vRE^y>/?9%K[q’7UQ5f’/=hy>0Z8O”e9si3{eQ{qJ:)3>[OlMl|7q4Iqd@jN-T&Z/9’z9[R955EMaR/Nv.6?4naylr[i[F[QJ4!u-WkXO]}U*4bnH/kLiC S,mVu;R)mUDC27]t WT34dy23ZBIsk$^L V !4X|6 3GnhnZIDk}?7T rs9X@!_T’],fexA=yG( rn25r’0*ZX .4pg;fCPQ?_DLMVu#8^+q-dgo^w&IK^6%_JRww>{k> endobj 50 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 51 0 obj >stream HWr>TlYrZdp$9([>(r4Nw>xITVhIW0,XHXYdx_g,,{‘Khm!KW7WowE?]Kr}.)AkW+0~H@rD7_R-,I2Zf}a%d!)s”KsLtmo =8I &23 |}{xYj5X}WsMZOWZb#-ZZi.6]}$ `87Ij’hFV(W[&zCge B4*{3 ld!H&65 ‘aQb5A >[h+O#lF10’cOZ>42QZ ;0xVco’S tABAT# r’sUG(;bF/@GMP:7,|^^xhN@L/gE /%]gkg/R$;L#(}*#~ 4ynZi` G!Q06`Xq8m)n9Hm=JHly1H{ i’w3]ys0e)DY+dLco j!t87ut 9Za{yrE 6w^*2[1>@~LO.”Z$#nlnnMp|>9M+Emw^H;W ]DQ;s ?_k H{`)i#4.i:%q4/ *Iz =6j5J3>N&x3z> endobj 53 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 54 0 obj >stream HW]wx{d8Mv>@$$!! -H})ym;6Esg.h^^BU&wr= 8E9K![m&n2oO$c,c}Ab]}_)_,)[,U~gGt?>Yb{=U}0FS&>{=B1mF5″wwq&pj{N5{p@?}EiGT* -vUut7Rd[ijh3zrQ tq[7m.lAYf&A’>*ZREbA~i~G?#(*V9$wIg-H::i78 Z5/7ZFD>vF2Y*o|v@KYZA”7%wB{uo|rlu-EK'{>Z, SV&mt#kit 8|3+rI#1mdmnhZ#ztSz,z5TM’+sit;L;[A”gmd!dCt[2[W5zlk&64BSL^ A:GJfPw>DxAaaUM-!z(t#i#87;v}S(5_M1IMzo+{L(55 FWmv*#ntR0em(6yr#8=P xWD-(U:NR(CB v6SgB ‘bbpOPZeil+pVQ;Htgk0’z(q$:#cg~HS:-reHy~=.r o W#v^5bJc Ip’u&p h)&il5Y } “`C122q5j5FE1!p’,J^IGQhNOp/6R1J?>ggt!,’ccbFi7Doe1Zu ZEF^yp4^K|8>,:ENP:4 X{ao.NeJlJ6Q}VsKi;ZJ}gu(F ^wu]’V> endobj 56 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 57 0 obj >stream HW]w6x~g9cIk’kk7u`P @mmS;93wp73U+-7$Z%,3HRYlf!Y^_R2}!O_g4tY1FSgAnpg?, |/GABc+/!f@4 ‘I4`,%XVa;PXYfIguXh;uEvQBf?W4/egY=$ZR5]JX,(be.!wk1lek1 `%mv[“[r/HgDEZEZdYd-.yrlnhw’%YArueT3’q9igQS,~6OyJ@dS]J|-T|w2lD+6w0fO5Qb#4MEU Y(uCtCm%*#-Xj1{>?a?[?:#”$z*!j%IooVhXx,R0%<:ctbpd zo klsa>FB+=bd;:haAsMDu,tJ4@Bf|rZZm|R?gWM@CU>1IUCnsP5KzYsZZiU+ka% f_%ye/g6N~EJFr89lC^jKkp.=eY2|:y =Z%3Y:Zj1 YhVBO”?F$”4@ObN7^>=(&bX8;(zT}EY (7 KGr2(S?e;IEH #7P._>tQ 1Xwf4luWYC’tS7$M);iA$veBv”zuU>qMFE`pJV_KnhwMYWa&W[K,KpO$4>$g?]~rk#q{y5* q8;_1j endstream endobj 58 0 obj > endobj 59 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 60 0 obj >stream HW[sxt:2C”Ng&vR[m”! TR’;)wg$B~;_fod)uUYj/ZVlj5{~g/8-3mg_r5nv {u}wIjyWfo]rn/c$m2b>q”eAg?[ ^8,9E “t JVzJK8dEa]#Qm MFvO]p w@9<:anf6u8i mlg>&cv^7?”wc`=,OVV |D0x|Ee6wVhKbSW{+}h%qUw”; jiKpD+nU33V9 dki20tOC*dIT[JyW bK$_{r=WE- /a2HbZ .R\s`@0hK=W*WPJ3q KWdV”{O,)]X[~R2mCCI]@MC[Y#’E8KJU3u[qs.3N+ f> ;]=!.%PV;e&KLdzP$Cy.nhx&At{-3vm$’0#|-,Jh&hmz4=Z”e(tAqEI}CwR)ahT9QvdS/3(IqnuRJ!,9IES[2GwA0#Z{*wqwj:Owh#T#=0w^ )-{c-;r RmG55UJNI%VfKlJYTD X{i,”gKta2d9I^+^f-4vTs8,X#m”Qm1″7uwh&`|(KKm%p.Z3fQLwz2x$ * amf)iw5;P`G7N5JR+X!{UybqJ hqXeSRS sxT[3wW7uaCE”w@LvWwD;L+)jqq^ AZ /WQr$hK.e%l(uwQ+@gO~xwAt^eh_0r5 endstream endobj 61 0 obj > endobj 62 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 63 0 obj >stream HWrIC=m l0T/[y=Y7iwc*+YfDU^)YF)fWsr=sf/~9ncbf65>/S0pl~:sl}l6uBWY2oa^bdf o62 l_~Y6svalN9-L0 &gnXv3c:fNXAb9&-[y{=c$8L`gjv9$Qsd{}y#gNpd?~[/aNhE.Nt, `U&K|( 4pc])]HM’FVmP^’,^gsy-@9;4BZ1bVd2ce+|yXRe#2zcKdyN=QNUX]Q6s|ayUnlpt8iESMq Ja+vJgKXokFFnC8l/> %_a_Pv0`s :$RPqEg,;i;pq5lD`g5?YN5eG~B(7:A98z`^(‘;jx+2xX;YJ@]5uK|T WGJDLQ~d5Bx*}BM5`b3[9v[~ke_We 9@)QgGO=cShKn@}CCU%!zp=UPxSp’rV9D&3F0 mgtT8wr&! z[s>eUL_N:$S1*Jfp@+Y;L#oc$%@ D#{Pz3U/VhixQ x8R]LyPDDw1RENG`J3Bga{l })y&[. s_tyjH|’3;]`$?%)(2O$DR8$a^CHRwP `)j H=|(G +’J@pz90=wIE8’r^-{]*]9)Pf,8bo AX~@(:dVWQJNQWkOS[GJqm $1lLR_z]2~”H=S+i&@6Ha6k9W9vIx1Xv^F |vD~ q?(N_v5 &l&V~c4t:uf:6O3/$b7q’mw+!#.~> endobj 65 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 66 0 obj >stream HW]sx$H8^’LNg0 IHH@R{./;kgLsoWEX#C/v/YieA],y^6Y,sV9 3/2w? $N#ca*uY?2x=}g=2CY=yNBZQ6;m[[^@Bfz/3aukv#/Z*QSfw,UU?+qg#8U61lq;ll]u;JilBP ~T0K6%FOR!S!XBOoQa^dT 6S{SBE{O[749( ” HWVubd;4At9!Q q0 hB7W,oQ#)j7LRm=~?WX ;g]Y3L)S’)Y}TWV(4&,F0^X_(^OUnJf. -p-)=QlE1|W:~VXMkYRzzrJgi}mD3?M(E;x8XQ`npF95GI, %?LCTXgE|W^6sc{~i;QMk+RiIf_S!%^}kgz{{{”z$%)jbkQ28Ora:pX6eW;8EbAT Bb/*`#Fqoi"is o-"[2,qLBd_SA|/?]zg~nUX:gtok4M`OOMEWxw0.o^9Kw1%s=unv}?e@L endstream endobj 67 0 obj > endobj 68 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 69 0 obj >stream HWrJC?M#tSS!pNEG,]FlU|=y}mW9}~>^}Ee1%9%W,~j^}`/.H _-d~f}g,`09H3ej:ZgR/cc[!Xefu@J3s= vM+s%TI%`8alQ|i87W :ENt?9};`GLmpXeZjFTm3CsZYo; S%UZ(L^(uc5x*^C zM " ;cjZv XYM;g 8mUdeHEZgGUV%BGM.,q(5tN?0BMKkft tH7lenv2/>NGO|A8AYh#Mb7t,’2kK G&JtF6~Nz ?/T_`YMh2R3+S4b>Aihnn}`s2NuEkY+Fi`-rx2=$4_hS’UC?pCc&@!TI)Z86D_H9v%hMf$6qR%cjS|I~I~gH#?{,0Wo[|79WQWgsc]+@^3′ endstream endobj 70 0 obj > endobj 71 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 72 0 obj >stream HWrs(sY7g[*c;yAz}IC1bw/o.=go/v]^^Nadr63ld_xQ{q|eWdfrM.+r|!*?MMB&OSeG1q3?g `pf-3Q It`(KU5LVlV:KyG]P W+Rj} ;|’]”,vZV`J?jY4mW @Ms[weV o6MMJ6*d5a=$N8N?=>n*r3jzYqci1c F=(u#abKvF?:?p>:LN~ugvz/g$ugvNBxjh,11M(1UR9’1Ng03’~O7u1f-of-:}P^IMc;=BZ(R3cSnRgYWLuJ`kCV82$7BBK~;44-]R[6R”uT: 7;& p[I5&_(kTZA?-dk t*L-*EV-3B-(bkQGf+aT7G~SPKzH@,Vm@^dPJx [wOFgF FyqY(= 8BGNg454yLmQXt-:FX%AF0evRqZzPODK/.M5QTwD%o~=Y7Szn8 N=-urY=`l=`AQD&Py*IQV&i(zy”A^8 Unc3:tK’M{f,y/&KZZ8g #`FgHN%o?O3Ya ‘ E/uqOw}Olge|F &`C7bU7″Qqp9_$D35157ghR4’9D^{;{ uXmM17D[pxbOt;iR6`BBi`s6Ah”B(3>=0v$Vxhaq+S[C !6a4@Lc2-E’ V0R hNeG+QT_Z8nGDhuK+uV$>ffqSt^dP 4Q-+$ xPPGQhK>UfNPk{1EBQM) n&=QG[b4U^V`/8 i9wA}vC|P*Y qGY*tRxjY>J&P#hU$,njXC1eKQT5}fx_.qcK_^S4$m?{_|nrQ>tNm-w’fMO|d_yw=>n>fy^’O endstream endobj 73 0 obj > endobj 74 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 75 0 obj >stream HWr8)!]SSt$ekI P$v9 ER:uBQWTlQ8[x|/$,Bl}%g9>:~X|?;i#1/}_.x3]~:;;m#kga;]s#2O,c/eKLI llY^6ln3E^’8*XKy'”U{4f#nM*U(&KE/Y0Y5ZrLLZw6′{A2jICG],?VWxC/x`u/oyM%kkkYWD5Mz W50`Pj|6F” ]tidxdvikxba-G4p+3Y42JHf}sj]UHa,TT5mP`>9iL/!BF;wU7Vm]zc~h{bKF>|ZD0^g8>v;yz l$6bKml;Qy0G#UX[ J_X};3Z=Ya(X9mPic9YBDQRW[C;’R=HF@vV%GPbf%]k]R? 8ETSO,mqQmvqH{Ta{x >+|S+,> endobj 77 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 78 0 obj >stream HWr8-!#{8XUS34iY’inlYIt>}F>^RYFoFn,fU4Mb5ej]799^$tre~(d|a} Kywoz>W?zs1 ^a9;_cV”cI2V|Z3lc.4I%){w>eVp^7>IT{v:$S)Oofk9p9KQ841{hy1&S-D6JarIW* ^D(a^JZ1FoB 349^:34Jn2T3 sl}JZ]dq%*bx1tt~Wn-nDaN1T,FQ@@,AapA ABtADZsEoJ#nXyx.5r’/a8 5nJVU00YKLV)sWVbO4u-bfW’=I>jwctYk[(#’E=FI,a-PiIV$X”|Ba*vyLMuL{*n(AeV;Nm*> endobj 80 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 81 0 obj >stream HWrJ~J!.p 03m7iI1>svwLB|QZk2e^jVKF’X| (J’|Z h]bG’?NGo_V*VK1kK}$o-^Kizv 2 z^j,j]9:=phmi4~@j&J+Ct&vF.he5w(Qfk;P~@*h #DNJ56>1^B,nYYBfOUrovJK,wUgoH. ax09_Y)Esc_n,]6 c|o-vw_qg|Jkf~dnA,>AFv{dc’S O”xB!IiN-=q9=8?y:z&?g}ab[SW?>wai.} 0QY endstream endobj 82 0 obj > endobj 83 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 84 0 obj >stream HWKwLs3+0o,Rn%zX-r|! u$M)H)VG11;#97-te*06VN+Y]t-KDnlxwWe{vtDQ-YGCK’|3;{$a=!TU#!L*.)duZv+v[+yV(.oUu]nKE}_ 7v S0Mkx 9S(!s]!^d{Ym+V;:W”ky#qUP+a%QjVf’[?JN7tGYC70c9?`b:~u:e5bjfKF{NN9PU(J/r7 mxbF?Za}]+@~2 KrEwU$#dA .t_l[7%9H1[[(pvR9″O{$Aaml 5^~n7n=]7ol’m!M’9#Q; 3}’ovI#7(,$*Qd%Z=0*+”8h)em’uu@bsO+]GUcyGdcKv9NMG%i[PP[`uL”PAv Q2Qkuj:Z=hSi&~Gp(jV{*rvsufl Q.n ]#?HL3^3;YWnO#&3C=c|(iz4.9]{LC} “U2re{us’zX3N,UC’i4N)KvXgif.ji3t> endobj 86 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 87 0 obj >stream HWv8!)R”9sNNO^Y”$C {|rGI’m”qFE]JnQrdWElE1~D)[lG![ZbI{E4;_>Bwi%8cA//o^E|7oKv?rq0v76gaG}>E!GE1bJ|npDVD-?4#|@8 :e r%zXT ez.3:v[Q5eOY#>SJcH0U5$KKI$9fc%Aw4Hy>2.-L%]A+5ea:-:m08]+2^uLo-}1Qf{)mTOOhQ5 `v”iIcM”,CVaKb/ “AY@id(K#3 fsg%/k[9bp-5Z?[8vcT|FBf61~mIRu}C}U|2exdkpKj;W$M6F_{P#gw’!F:_TPT6Q8Wvzd,C,:fFA,,fGk%QTi!/R ~u26MaUHgMj’1]2[q_m0kySQwfO >g.aT)7%WE96qqQAVNoi[F^Eu]Gp /q/ih^?.sf[#uk.] k?{w k7w%[FAO )^z

6b_ xAb1_ -N$A:zQc,4 rW rXnU][ms) Oc4#2;?`Cd2e/L$b93Acm )UJ`;hG4,[D.uQ k#BmOsI“!ju.ZdX’=v(cy’?F$PNUl]Uv4jaB>PN!;jSRDwo*fFJ(YMdU-KzOiMGUF%)6=*txP#u%)Fjsj|Btc82uCr1l#LKe;au/V]x o| m>F X(WXO@,Y}(saJ2^h&bY2iET8mB]7fE1y3_WqfWq$cBv4Ue7(Fg3xeBU-&7tO9w`qnlri8fFCFbQGT|0cH>Ps>z1XoYn_l-cUpw:^ZY_fn7M0.Yte{W*_t o 69{ ‘^fkp1,6aUV’KXmW/+gNzG N~z!7I”}xO.3> endobj 101 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 102 0 obj >stream HWr8C?:[2V%Mjr[;$$s$*8!D_Gd-n;S%uFE4_B4IL4zruDK%0M?]I)eZG}So~0?fl~[a g vl={H(“”(oX S+bt6W*j4m1%IH ‘tsFzSj)RZfyF{ },vn~g.;O7}:VM4o:%SG0eTIu@/551Jkx7F;qh)R )&“;8Sk6V6z=ZDemRw($c`o#*f-XKB(uwtkXk(#’443{!”srym0LPf?15$^ujKKL:hh>2jYC;^j]67@e&.E}k=h5gzx@5yWIw0BVF,FQo3Nxz{K;^bOM=oGI`Z67G`sS endstream endobj 103 0 obj > endobj 104 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 105 0 obj >stream HW]sx;2on3#sL”! 1Iu~HoIK$v8{{QF>KU(-Kh2-jc[m&/YlUNO]/=Jst}f3a3bvq?+q_>MbLbu0X5~n;s-eclY9s1Y0-rp DIM&:/vRl-HOMkBe^L5!sTKj$:g~b1c({j W~q*B.AM#_FOTVG^//?)u6?T Nfo*xL-+JMH8T71 TdmVX9sfhuhwBAw$rf>tM$6>I!zkaF v-[ N@A/Cpl,uCX,F1[[c6oNhxf@g #”^vyOvp-JF ]Xyf K3;]oV0[ TIGtY'{bN-%Rl+(^~ I!JJSOz0Lgd}Z;| {mKl$:{eSm’NR2c@xsY5Mh93 rN#AN=om>MaVgSdP{o{9c4XCo`8YYf`RSaWm[R!LIrQ2bV~rI+/DK?4;@ef15sa}%jN,OzZAB_yI=~ ‘h9n~2pYvvz)o0gANBc+V>> endobj 107 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 108 0 obj >stream HWrJC?)Gn*9S5,I|8z_^{xu_R*QN)6f|?~Q>mo=ozcZENX9’___yZWKviflpY[o` 7:%.+C^ U^kOlul3L! XD?0/ 8q pR>d7CtY,X?B[GH?”Kc3SQ4BYRD0po;sl’]^uLoKr ;duAZOfo76:%KcIaE,+e , ]8`/Vk9Qvbi?1{&P@;C8=Hv!N6L>u2udowQ-GnX~exMO~irlHFW35i`W!SdHF((9szhj0v2VH#F?JNnQoGPv-HwuJQjhhX)$QDd=L8C)e`uFr=pLGSm@=gmnvhE3g@WM)uF#-; 43]2Ij%iULvI;r(,SZkO8ynG 5Pqh7ac8q2@!Ka pB`P+?q8=u]WXR0;’h D7{N#GaDK?&{r”weyN2^>9g_7}R?5|y$:&zzb3EQez_f3`%p,Mg5HU-Zs2Gr&+7(kMVxv*NX4}RR#6i-V4Vg5(v(I+t^% .gDVFo^&j-Uw,!]i|1 lvF]bN>~{ twb+rOAvPNhK) NUb ukFtJ!”N(FYLV4-IC’u”JdY  BeB$ ArhrhE> endobj 110 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 111 0 obj >stream HWr8-qfjN’bd”! $(;[x+mi/`EM’S_U~LU[TRD.wxwh/3mp7*MdZ2uN:)aAeM5lndfmDW ?> endobj 323 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 324 0 obj >stream HWvHC.fa[+cfUI)kXO,eFq_G/xgJ,Q!J)dr{D7:JR),b2;z::&h_2({+|Mzu?!ogoO,” w83G jZT$MiTQBkO)$ly$IK7T:ID}2qJ9Ws)[“o%D=BD/ I]G8Ev’T4ft4=^KsA?6f8y9GU#Mhc-&xktq6JX`R!2!{OCs*b8gO&^=/Ls05i%9!swmX[CJ..I{4Jn)Mq[q’u0 Vl 0`3(TF^&](‘CLGtf Ds|B4?D;L{f;O+!q]NIQ2qW7tMhkd’+ar0w*]”#pMhgPeF{1[)IGUb_ Xw?Of[Tsd60%Hs ` s1qXkeg15jv3FJf$*0;t}Ip0Bws^PlXjXU%q_}c*w^emsa=%/aL”~^-T~002DKdjY|Toe@l}plq2aqRfV(3+&t_xnEB3od7{ZZs1;Nz(NVc$N:KGamO#~Q=uc8mu};}a70niD.0agrQl[/D[;{vC ‘n,Y8V^7ij. l41XfLx)vxOsF k’7’8EcFey=~gYHcpRUPV11? ;vEyA |mZQ^sp%C5c-qCm5Sb’dL.T]@J0,1)n(T*ZKn8}4’W!&0Rf(as^GQh8biK /j)?IT&Ia/%S[aPnQ 5w,WaP0g0ugaW =1*” #-Z=R34tQkMcsrA ` K)~X G&*$P6O[“IUas|IcTC50F*s_P!@zEFt) |5 Q!usww,”> }i$f642W6gs[miu”6c%B`I8 uwle=//q]uj+> endobj 326 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 327 0 obj >stream HWrFC?S}LM”*3gl?4&1 9’n$mYmZ;q^[(3%;yly>s m4~^~vy^jsK”‘ q,2g.k?/~9{w}qn~80gs%l’b{}cSM&&;Q((!Y$nq#?2g4aunzei 8u=8cdm(sS(}wpp9e9sSg8gO 6> NNn{1ngpiPRl&x!e@1-v’&Nb#’.05z2,CtA9`UX1 [|ds9FL{C%F~2enR!^PQj)999UQ9Qddu5n^hZSsT3gb|je3x0~x]hft2]mv)vr% l+|iv2n-[eUQ|%(ee)4bwgKA q B`S+MIK-ZhUr’-L`X,45Ea)=le- h3zc=”IiGca8Oa`jP!’r_+f/haOsE=wo{isk *”z=MP$(mzdQVTsPkZ p?7:-VwC]~’~]2;4h 5$m=o=)?Fgn9 cr/5la[djf49q%7s,|^:M+Zs(58KxnV{[kNjJNC;O$!P6E.+;kb9%&AeiFN6j+u|YE1RdW’@f ,tKW.HgvsHBnZ” ih*SXMYN>$tN:I@;Q7IAOyFTH~TyIOo82QUp_vwTJ{%wJa9D a>ZJu2[H)$r[gt&uq’ Q(FA9H{)t@NMB4fw+5k06 tVy}rN F-qtG&IG|f.9> endobj 329 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 330 0 obj >stream HW]sH1l%Z B%yP KI1~-3q$$n}?9’2/+RM34M^M’H4OK&MW5fnr&LMNc; Dc[` Wn^gJOW~|WWR[5~WrD@;>l” Q0&”‘ &@$>PYOAl^I&l5=rS5T6iJ}UYf],ocMtrQx.?z2xg`3:3Dx3}9I|y;”Oc=;O; NNi|ox7p`z:W{“]cqvtO5ZdrP ?;m+UfQ”L`JotW}XPLASH) 6N+gUY7&F7|zVZ*iSt2F>; :d*wE+_7ia^u3r[3e.]Y03L.VI)#@hlNW%h$h}=/UyhP:R8Or,N7n.X=` >#JrwHKLH01-Y,nYmfAZENL(P ~zZybGWCMSa@f]’v?9wIf”I;Y@0xF`/Z-6bw9n7%`^)5+W6`YK,03eREb`Nj> endobj 332 0 obj >/ProcSet[/PDF/Text]/ExtGState>>> endobj 333 0 obj >stream HWv8vFA}

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FIRST AMENDMENT – U.S. Government Publishing Office

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Freedom of Speech and Press: Exceptions to the First Amendment

 Misc  Comments Off on Freedom of Speech and Press: Exceptions to the First Amendment
Dec 252015
 

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Freedom of Speech and Press: Exceptions to the First Amendment

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Agency fees, the First Amendment and Rauners executive …

 Misc  Comments Off on Agency fees, the First Amendment and Rauners executive …
Dec 182015
 

Gov. Bruce Rauner issued an executive order on Feb. 9 directing state agencies to stop taking fair share union fees, also known as agency fees, from state employees who have chosen not to join the union.

The executive order builds on the logic of the U.S. Supreme Court case Harris v. Quinn, which held that the First Amendment prohibits the state from forcing people who receive a government subsidy, but who are not actual government employees, to pay union fees. The reasoning of this case should apply to nonunion government employees as well. All speech by public-sector unions, including collective bargaining, is political because it affects public policy. Forcing nonunion employees to support a union means forcing them to pay for such political speech, and therefore violates the First Amendment.

Unions and their supporters, however, argue that agency fees are justified because they prevent nonunion employees from free riding, a term unions use to imply that agency-fee payers are unfairly benefiting from union services. They claim these fees provide for nonunion employees share of the cost of collective bargaining, contract administration, and the pursuance of matters affecting wages, hours and conditions of employment.

There are two big problems with this argument: First, attempts to prevent free riding cannot justify forcing a person to pay for union lobbying or political speech, even if it might benefit that person, because doing so violates that persons rights to free speech and free association under the First Amendment. Second, many nonunion employees might not want the services the union provides or find them beneficial.

Individuals have different circumstances, needs and wants not every state worker necessarily favors greater spending and bigger government. Some workers may object to the unions services because they believe it leads to unnecessary government spending, which is unsustainable in the states current financial situation. Others may prefer 401(k)-style retirement plans because they dont want their retirement plans being mismanaged by the government.

Employees also might not like the way the union manages its money. For example, AFSCME spent only 51 cents of every dollar in union dues on representation of workers in 2013, while most of the rest of the money went to administration, overhead, and political and lobbying activities. Also in 2013, the Service Employees International Union Healthcare Illinois-Indiana spent $1.5 million out of its $46.2 million budget on hotels, air travel, rental cars, restaurants and catering. And the Illinois Education Association, the states biggest teachers union, devoted just 26 percent of its budget to representation in 2014, with nearly 70 percent going to administration and overhead and 3 percent to political activities.

State law allows, but does not require, unions to deduct agency fees. The 196-page collective-bargaining agreement for the American Federation of State, County and Municipal Employees contains provisions that require the deduction of agency fees from nonunion employees. Its not hard to imagine why a nonunion employee might object to unions obtaining the power to collect agency fees via the collective-bargaining process, while justifying such fees from nonunion employees as the cost of collective bargaining.

Further, there is no reason to believe agency fees are being used for purely nonpolitical activities. Unions get to decide for themselves which expenses are chargeable to nonmembers, and often categorize purely political activities as representational. In some cases, unions have categorized contributions to groups whose activities consist of running issue campaigns as representational activities. Nonmember employees generally cant afford to spend the time and money required to challenge these determinations, so they are in effect forced to pay for union politics even if they choose to opt out.

Agency fees are wrong because they force people to pay for services they may not want or find beneficial, and compel people to pay for union political speech, in violation of their First Amendment rights. While some government employees may find union representation beneficial, nonunion employees dont have a choice. The unions could avoid these First Amendment issues by simply allowing these employees to opt out of the unions representation, and not receive union services, under one or none policies.

If they dont, the U.S. Supreme Court should take up a case involving agency fees, and issue an opinion protecting nonunion employees First Amendment rights. When it comes to collecting fair share fees, abolishing the practice would be the only outcome thats truly fair to workers across the country.

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Agency fees, the First Amendment and Rauners executive …

University of Illinois Repeals the First Amendment for Its …

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Dec 182015
 

Late Friday afternoon (August 22), the University of Illinois broke its three-week long silence on the controversy regarding the Chancellor’s revocation of a tenured offer to Steven Salaita, who had accepted a faculty position in the American Indian Studies Program at the flagship campus at Urbana-Champaign. Chancellor Phyllis Wise and Board of Trustees Chairman Christopher Kennedy both issued statements explaining the revocation, but in terms far more alarming than the original decision itself. It is not an exaggeration to say that the Chancellor and the Board of Trustees have now declared that the First Amendment does not apply to any tenured faculty at the University of Illinois.

A bit of background to Friday’s bombshell statements. Last October, Professor Salaita, then teaching at Virginia Tech, accepted a tenured offer from the Urbana-Champaign campus. He went through the regular appointments process at the University of Illinois, and received approval by the relevant departments and deans after a review of his scholarship and teaching. The offer, which he accepted, was conditional on approval by the Board of Trustees. Such approval clauses are typical in all teaching contracts and had, previously, been pro forma at Illinois, as they are at all serious universities: it is not the job of the Board of Trustees of a research institution to second-guess the judgment of academics and scholars. Well before the Board took the matter up, even University officials were describing Salaita as a faculty member, and he moved to Illinois and was scheduled to teach two classes this fall.

Salaita also has a Twitter account. “Tweets” are limited to 140 characters, so the medium is conducive primarily to spontaneous and superficial commentary. As a Palestinian-American and scholar of colonialism, Salaita tweeted extensively about the Israeli attack on Gaza. Contrary to the initial misrepresentations put into circulation by far right websites, none of the tweets were either anti-semitic or incitements to violence. Some were vulgar, some juvenile, some insulting, some banal. The First Amendment unequivocally protects Salaita’s right to express every one of those opinions on a matter of public concern, and to do so, if he wants, with vulgarity and insults. As a matter of American constitutional law, this is not a close case.

Part of the First Amendment’s protection of such speech is that government, including a state university, is prohibited from punishing the speaker for his expression or viewpoint. Revoking a job offer because of such speech would, again, be clearly unconstitutional. Salaita’s constitutional and contractual claims will no doubt be adjudicated in court, and the University should lose.

That now brings us to Friday’s shocking statements. Chancellor Wise declared that “we cannot… tolerate… personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” Yet as a matter of well-settled American constitutional law, the University of Illinois must tolerate “words… that demean and abuse either viewpoints themselves or those who express them.” The University has no choice, both as a matter of constitutional law and as a matter of its contractual commitment with its faculty to academic freedom. Scathing critiques of both viewpoints and authors abound in almost all scholarly fields; it would be the end of serious scholarly inquiry and debate were administrators to become the arbiters of “good manners.” More simply, it would be illegal for the University to start punishing its faculty for failure to live up to the Chancellor’s expectations for “civil” speech and disagreement.

The university, of course, need not and should not tolerate the mistreatment of students in the classroom, but there is no evidence of any such pedagogical misconduct in this case; indeed, the public evidence is that Salaita is a successful and popular teacher. No serious university evaluates pedagogical fitness based on speculative inferences from twitter accounts, yet the Chancellor’s statement implies that this is what Illinois has done in this instance. Faculty have pedagogical and professional obligations to their students, but that does not include the obligation to refrain from expressing views, whether about matters of public concern or matters within the purview of a faculty member’s scholarship, that some student somewhere might find upsetting, leading that student to conclude that that faculty member might not “value[] that student as a human being.” A student’s entitlement is to be treated seriously and professionally in the classroom; students have no entitlement to never find the views of their professors offensive or upsetting.

Chairman Kennedy’s statement is even worse than the Chancellor’s. While endorsing the Chancellor’s abrogation of the constitutional and contractual rights of the faculty, he goes even further, declaring that “there can be no place” for “disrespectful and demeaning speech” “in our democracy, and therefore, there will be no place for it in our university.” We may certainly hope for more civility in public life, but “disrespectful and demeaning speech” not only has an extensive presence in our democracy (as everyone knows), it has a constitutionally protected place as well, as the United States Supreme Court has repeatedly affirmed. Yet Chairman Kennedy says he believes only in “free speech tempered in respect for human rights.” But there is no doctrine of “free speech tempered in respect for human rights” in American constitutional law. It is a national embarrassment that a public official, the Chairman of the University of Illinois’s Board of Trustees, apparently does not know even the basic facts about the American constitutional system.

At moments like this, one wonders: Where are the lawyers? Chancellor Wise and Chairman Kennedy have made statements that commit the University of Illinois to illegal because unconstitutional courses of action. They should resign, or be removed from office, before doing further damage to one of the nation’s great research universities. Their public statements make clear they are unfit to lead academic institutions in which both freedom of speech and freedom of research and inquiry are upheld.

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10 Different Types of Libertarianism

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Dec 172015
 

By Tom Head

Anarcho-Capitalism:

Anarcho-capitalists believe that governments monopolize services that would be better left to corporations, and should be abolished entirely in favor of a system in which corporations provide services we associate with the government. The popular sci-fi novel Jennifer Government describes a system that is very close to anarcho-capitalist.

Civil Libertarianism:

Civil libertarians believe that the government should not pass laws that restrict, oppress, or selectively fail to protect people in their day-to-day lives.

Their position can best be summed up by Justice Oliver Wendell Holmes’ statement that “a man’s right to swing his fist ends where my nose begins.” In the United States, the American Civil Liberties Union represents the interests of civil libertarians. Civil libertarians may or may not also be fiscal libertarians.

Classical Liberalism:

Classical liberals agree with the words of the Declaration of Independence: That all people have basic human rights, and that the sole legitimate function of government is to protect those rights. Most of the Founding Fathers, and most of the European philosophers who influenced them, were classical liberals.

Fiscal Libertarianism:

Fiscal libertarians (also referred to as laissez-faire capitalists) believe in free trade, low (or nonexistent) taxes, and minimal (or nonexistent) corporate regulation. Most traditional Republicans are moderate fiscal libertarians.

Geolibertarianism:

Geolibertarians (also called “one-taxers”) are fiscal libertarians who believe that land can never be owned, but may be rented. They generally propose the abolition of all income and sales taxes in favor of a single land rental tax, with the revenue used to support collective interests (such as military defense) as determined through a democratic process.

Libertarian Socialism:

Libertarian socialists agree with anarcho-capitalists that government is a monopoly and should be abolished, but they believe that nations should be ruled instead by work-share cooperatives or labor unions instead of corporations. The philosopher Noam Chomsky is the best known American libertarian socialist.

Minarchism:

Like anarcho-capitalists and libertarian socialists, minarchists believe that most functions currently served by the government should be served by smaller, non-government groups–but they believe that a government is still needed to serve a few collective needs, such as military defense.

Neolibertarianism:

Neolibertarians are fiscal libertarians who support a strong military, and believe that the U.S. government should use that military to overthrow dangerous and oppressive regimes. It is their emphasis on military intervention that distinguishes them from paleolibertarians (see below), and gives them reason to make common cause with neoconservatives.

Objectivism:

The Objectivist movement was founded by the Russian-American novelist Ayn Rand (1905-1982), author of Atlas Shrugged and The Fountainhead, who incorporated fiscal libertarianism into a broader philosophy emphasizing rugged individualism and what she called “the virtue of selfishness.”

Paleolibertarianism:

Paleolibertarians differ from neolibertarians (see above) in that they are isolationists who do not believe that the United States should become entangled in international affairs. They also tend to be suspicious of international coalitions such as the United Nations, liberal immigration policies, and other potential threats to cultural stability.

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10 Different Types of Libertarianism

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Introducing Libertarianism: A Reading List …

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Dec 142015
 

November 3, 2011 essays

The eight books on this list offer a thorough but accessible introduction to libertarianism.

Libertarianismits theory, its practiceis an awfully big topic. This reading list gives you a place to start. A combination of newcomers and established classics, these books offer accessible introductions to variety of libertarian thought, from philosophy to history to economics.

Libertarianism: A Primer by David Boaz

Boazs book provides exactly what its title promises.Libertarianism: A Primer is a quick and easy read, but its also a remarkably thorough introduction to libertarianism. It covers the historical roots of libertarianism and the basics of libertarian political philosophy and economic thinking. Boaz then applies these ideas to major policy areas, showing how free association and free markets, not government coercion and bureaucracy, can solve our most pressing social issues.

The Law by Frdric Bastiat

Everything this 19th century Frenchman wrote is worth readingand The Law is a great place to start. Bastiats knack is tackling head-on, with great wit and clarity, the fundamental errors and hidden interests behind much economic and political thinking. With The Law, published in 1850, his target is legal plunder or state-authorized confiscation of property. The law exists to protect our basic rights, Bastiat argues. When it instead becomes a means of coerced redistribution, the law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others.

The Machinery of Freedom: Guide to a Radical Capitalism by David Friedman

Libertarianism represents a spectrum of political philosophies, all sharing a general presumption of liberty. These philosophies vary in how much of a role they grant the state. Classical liberals, for instance, allow government to tax for the provision of many services, including education and social safety nets. Minarchists see governments only legitimate role as providing rights protection in the form of police, courts, and national defense. At the extreme are the anarcho-capitalists, who would abolish the state altogether and replace it with purely private and voluntary provision of services, including for the law itself. David Friedmans The Machinery of Freedom offers an introduction to anarcho-capitalism, arguing from a consequentialist perspective that the state is both unnecessary for achieving a desirable society and that it in fact makes the world worse through its actions. The questions Friedman raises and the analysis he offers will benefit any student of liberty.

Free to Choose: A Personal Statement by Milton Friedman and Rose Friedman

Published as the companion volume to the 10-hour documentary of the same name, Free to Choose was one of the bestselling books of 1980. Here Nobel laureate Milton Friedman and his wife, Rose, give a spirited and readable critique of the interventionist state, focusing on concrete examples and explanations. Free to Choose is an excellent introduction to the productive power unleashed by freedomand also a primer on the economic analysis of public policy. The Friedmans examine the workings of markets, look at how well-meaning policies like the minimum wage hurt the poor, and explain the causes of the Great Depression. Covering much the same ground as the documentary series, though in more depth, Free to Choose is a perfect introduction not only to the thought of Milton Friedman, one of the 20th centurys foremost champions of liberty, but also to the under-appreciated and often misunderstood benefits of laissez faire.

Eat the Rich: A Treatise on Economics by P. J. ORourke

Proving that economics need not be a dry, textbook affair, P. J. ORourkes Eat the Rich sets out to answer the critical question, Why do some places prosper and thrive while others just suck? ORourke, one of Americas premier humorists, travels the world, visiting Wall Street, Albania, Sweden, Cuba, Russia, Tanzania, Hong Kong, and Shanghai, and uses his experiences to untangle the relationship between markets, political institutions, and culture. While Eat the Rich is a breezy and hilarious read, it is far from facile. ORourkes explorations and the insights he draws from them make the book live up to its subtitle, A Treatise on Economics. If youve never taken Econ 101 and the thought of supply and demand curves makes you want to nod off, Eat the Richis a perfect book.

Atlas Shrugged by Ayn Rand

A perennial bestseller since its publication in 1957, Ayn Rands mammoth novel Atlas Shrugged has probably turned more people on to libertarianism than any other book. Atlas Shrugged explores a dystopian future, where the government has enthusiastically embraced collectivism in the name of fairness and equality and leading innovators, industrialists, and artists have begun disappearing. The book served as Rands platform for promoting Objectivism, her comprehensive philosophy of rational selfishness. While Rands philosophy remains deeply divisive to this day, it is impossible to deny the enormous impact shes had on promoting the benefits of free markets and dynamic capitalism.

The Rational Optimist: How Prosperity Evolves by Matt Ridley

The newest book on this list, Matt Ridleys The Rational Optimistemploys the grand sweep of human history and pre-history to argue for the incredible significance of free tradeand against those who would seek to restrict it. In so doing, Ridley offers what amounts to a book-length answer to the question, Why are people rich? Most humans who have ever lived did so in unimaginable poverty. It was only recently that standards of living began their remarkableand acceleratingclimb. What happened? Free exchange. Just as sex made biological evolution cumulative, Ridley writes, so exchange made cultural evolution cumulative and intelligence collective, and that there is therefore an inexorable tide in the affairs of men and women discernible beneath the chaos of their actions.

Basic Economics: A Common Sense Guide to the Economy by Thomas Sowell

While the libertarian vision is much more than just free markets, economic thinking greatly informs the libertarian approach to public policy. When youre ready to move beyond the brief introduction provided by P. J. ORourkes Eat the Rich, Thomas Sowells Basic Economics is the ideal place to turn. Sowell presents the fundamentals of economic reasoning in clear, jargon-free prose. He addresses everything from incentives and the role of prices, to international trade, monetary policy, and the banking system. Sowell shows how so many government programs, enacted with the best of intentions, run afoul of simple economic truths and, as a result, often do far more harm than good.

Aaron Ross Powell is a research fellow and editor of Libertarianism.org, a project of the Cato Institute. Libertarianism.org presents introductory material as well as new scholarship related to libertarian philosophy, theory, and history. Powells writing has appeared in Liberty and The Cato Journal. He earned a JD from the University of Denver.

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The Libertarianism FAQ – catb.org

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Dec 142015
 

There are a number of standard questions about libertarianism that have been periodically resurfacing in the politics groups for years. This posting attempts to answer some of them. I make no claim that the answers are complete, nor that they reflect a (nonexistent) unanimity among libertarians; the issues touched on here are tremendously complex. This posting will be useful, however, if it successfully conveys the flavor of libertarian thought and gives some indication of what most libertarians believe.

The word means approximately “believer in liberty”. Libertarians believe in individual conscience and individual choice, and reject the use of force or fraud to compel others except in response to force or fraud. (This latter is called the “Non-Coercion Principle” and is the one thing all libertarians agree on.)

Help individuals take more control over their own lives. Take the state (and other self-appointed representatives of “society”) out of private decisions. Abolish both halves of the welfare/warfare bureaucracy (privatizing real services) and liberate the 7/8ths of our wealth that’s now soaked up by the costs of a bloated and ineffective government, to make us all richer and freer. Oppose tyranny everywhere, whether it’s the obvious variety driven by greed and power-lust or the subtler, well-intentioned kinds that coerce people “for their own good” but against their wills.

Modern libertarianism has multiple roots. Perhaps the oldest is the minimal-government republicanism of the U.S.’s founding revolutionaries, especially Thomas Jefferson and the Anti-Federalists. Adam Smith, John Stuart Mill and the “classical liberals” of the eighteenth and nineteenth centuries were another key influence. More recently, Ayn Rand’s philosophy of “ethical egoism” and the Austrian School of free-market capitalist economics have both contributed important ideas. Libertarianism is alone among 20th-century secular radicalisms in owing virtually nothing to Marxism.

Once upon a time (in the 1800s), “liberal” and “libertarian” meant the same thing; “liberals” were individualist, distrustful of state power, pro-free- market, and opposed to the entrenched privilege of the feudal and mercantilist system. After 1870, the “liberals” were gradually seduced (primarily by the Fabian socialists) into believing that the state could and should be used to guarantee “social justice”. They largely forgot about individual freedom, especially economic freedom, and nowadays spend most of their time justifying higher taxes, bigger government, and more regulation. Libertarians call this socialism without the brand label and want no part of it.

For starters, by not being conservative. Most libertarians have no interest in returning to an idealized past. More generally, libertarians hold no brief for the right wing’s rather overt militarist, racist, sexist, and authoritarian tendencies and reject conservative attempts to “legislate morality” with censorship, drug laws, and obnoxious Bible-thumping. Though libertarians believe in free-enterprise capitalism, we also refuse to stooge for the military-industrial complex as conservatives are wont to do.

Libertarians want to abolish as much government as they practically can. About 3/4 are “minarchists” who favor stripping government of most of its accumulated power to meddle, leaving only the police and courts for law enforcement and a sharply reduced military for national defense (nowadays some might also leave special powers for environmental enforcement). The other 1/4 (including the author of this FAQ) are out-and-out anarchists who believe that “limited government” is a delusion and the free market can provide better law, order, and security than any goverment monopoly.

Also, current libertarian political candidates recognize that you can’t demolish a government as large as ours overnight, and that great care must be taken in dismantling it carefully. For example, libertarians believe in open borders, but unrestricted immigration now would attract in a huge mass of welfare clients, so most libertarians would start by abolishing welfare programs before opening the borders. Libertarians don’t believe in tax-funded education, but most favor the current “parental choice” laws and voucher systems as a step in the right direction.

Progress in freedom and prosperity is made in steps. The Magna Carta, which for the first time put limits on a monarchy, was a great step forward in human rights. The parliamentary system was another great step. The U.S. Constitution and Bill of Rights, which affirmed that even a democratically-elected government couldn’t take away certain inalienable rights of individuals, was probably the single most important advance so far. But the journey isn’t over.

All Libertarians are libertarians, but not the reverse. A libertarian is a person who believes in the Non-Coercion Principle and the libertarian program. A Libertarian is a person who believes the existing political system is a proper and effective means of implementing those principles; specifically, “Libertarian” usually means a member of the Libertarian Party, the U.S.’s largest and most successful third party. Small-ell libertarians are those who consider the Libertarian Party tactically ineffective, or who reject the political system generally and view democracy as “the tyranny of the majority”.

By privatizing them. Taxation is theft — if we must have a government, it should live on user fees, lotteries, and endowments. A government that’s too big to function without resorting to extortion is a government that’s too big, period. Insurance companies (stripped of the state-conferred immunities that make them arrogant) could use the free market to spread most of the risks we now “socialize” through government, and make a profit doing so.

Enforce contracts. Anarcho-libertarians believe the “government” in this sense can be a loose network of rent-a-cops, insurance companies, and for-profit arbitration boards operating under a shared legal code; minarchists believe more centralization would be necessary and envision something much like a Jeffersonian constitional government. All libertarians want to live in a society based (far more than ours now is) on free trade and mutual voluntary contract; the government’s job would be strictly to referee, and use the absolute minimum of force necessary to keep the peace.

Most libertarians are strongly in favor of abortion rights (the Libertarian Party often shows up at pro-rights rallies with banners that say “We’re Pro-Choice on Everything!”). Many libertarians are personally opposed to abortion, but reject governmental meddling in a decision that should be private between a woman and her physician. Most libertarians also oppose government funding of abortions, on the grounds that “pro-lifers” should not have to subsidize with their money behavior they consider to be murder.

Libertarians believe that every human being is entitled to equality before the law and fair treatment as an individual responsible for his or her own actions. We oppose racism, sexism, and sexual-preference bigotry, whether perpetrated by private individuals or (especially) by government. We reject racial discrimination, whether in its ugly traditional forms or in its newer guises as Affirmative Action quotas and “diversity” rules.

We recognize that there will always be bigotry and hatred in the world, just as there will always be fear and stupidity; but one cannot use laws to force understanding any more than one can use laws to force courage or intelligence. The only fair laws are those that never mention the words “black” or “white”; “man” or “woman”; “gay” or “straight”. When people use bigotry as an excuse to commit force or fraud, it is the act itself which is the crime, and deserves punishment, not the motive behind it.

Consistently opposed. The revolutionaries who kicked out King George based their call for insurrection on the idea that Americans have not only the right but the duty to oppose a tyrannical government with force — and that duty implies readiness to use force. This is why Thomas Jefferson said that “Firearms are the American yeoman’s liberty teeth” and, in common with many of the Founding Fathers, asserted that an armed citizenry is the securest guarantee of freedom. Libertarians assert that “gun control” is a propagandist’s lie for “people control”, and even if it worked for reducing crime and violence (which it does not; when it’s a crime to own guns, only criminals own them) it would be a fatally bad bargain.

Libertarians are opposed to any government-enforced limits on free expression whatsoever; we take an absolutist line on the First Amendment. On the other hand, we reject the “liberal” idea that refusing to subsidize a controversial artist is censorship. Thus, we would strike down all anti-pornography laws as unwarranted interference with private and voluntary acts (leaving in place laws punishing, for example, coercion of minors for the production of pornography). We would also end all government funding of art; the label of “artist” confers no special right to a living at public expense.

We believe the draft is slavery, pure and simple, and ought to be prohibited as “involuntary servitude” by the 13th Amendment. Any nation that cannot find enough volunteers to defend it among its citizenry does not deserve to survive.

That all drugs should be legalized. Drug-related crime (which is over 85% of all crime) is caused not by drugs but by drug laws that make the stuff expensive and a monopoly of criminals. This stance isn’t “approving” of drugs any more than defending free speech is “approving” of Nazi propaganda; it’s just realism — prohibition doesn’t work. And the very worst hazard of the drug war may be the expansion of police powers through confiscation laws, “no-knock” warrants and other “anti-drug” measures. These tactics can’t stop the drug trade, but they are making a mockery of our supposed Constitutional freedoms.

Libertarians would leave in place laws against actions which directly endanger the physical safety of others, like driving under the influence of drugs, or carrying a firearm under the influence.

First of all, stop creating them as our government does with military contractors and government-subsidized industries. Second, create a more fluid economic environment in which they’d break up. This happens naturally in a free market; even in ours, with taxes and regulatory policies that encourage gigantism, it’s quite rare for a company to stay in the biggest 500 for longer than twenty years. We’d abolish the limited-liability shield laws to make corporate officers and stockholders fully responsible for a corporation’s actions. We’d make it impossible for corporations to grow fat on “sweetheart deals” paid for with taxpayers’ money; we’d lower the cost of capital (by cutting taxes) and regulatory compliance (by repealing regulations that presume guilt until you prove your innocence), encouraging entrepreneurship and letting economic conditions (rather than government favoritism) determine the optimum size of the business unit.

Who owns the trees? The disastrous state of the environment in what was formerly the Soviet Union illustrates the truism that a resource theoretically “owned” by everyone is valued by no one. Ecological awareness is a fine thing, but without strong private-property rights no one can afford to care enough to conserve. Libertarians believe that the only effective way to save the Earth is to give everyone economic incentives to save their little bit of it.

No. What favors the rich is the system we have now — a fiction of strong property rights covering a reality of property by government fiat; the government can take away your “rights” by eminent domain, condemnation, taxation, regulation and a thousand other means. Because the rich have more money and time to spend on influencing and subverting government, such a system inevitably means they gain at others’ expense. A strong government always becomes the tool of privilege. Stronger property rights and a smaller government would weaken the power elite that inevitably seeks to seduce government and bend it to their own self-serving purposes — an elite far more dangerous than any ordinary criminal class.

No, though abandoning the poor might be merciful compared to what government has done to them. As the level of “anti-poverty” spending in this country has risen, so has poverty. Government bureaucracies have no incentive to lift people out of dependency and every incentive to keep them in it; after all, more poverty means a bigger budget and more power for the bureaucrats. Libertarians want to break this cycle by abolishing all income-transfer programs and allowing people to keep what they earn instead of taxing it away from them. The wealth freed up would go directly to the private sector, creating jobs for the poor, decreasing the demand on private charity, and increasing charitable giving. The results might diminish poverty or they might leave it at today’s levels — but it’s hard to see how they could be any less effective than the present wretched system.

This issue makes minarchists out of a lot of would-be anarchists. One view is that in a libertarian society everyone would be heavily armed, making invasion or usurpation by a domestic tyrant excessively risky. This is what the Founding Fathers clearly intended for the U.S. (the Constitution made no provision for a standing army, entrusting defense primarily to a militia consisting of the entirety of the armed citizenry). It works today in Switzerland (also furnishing one of the strongest anti-gun-control arguments). The key elements in libertarian-anarchist defense against an invader would be: a widespread ideology (libertarianism) that encourages resistance; ready availability of deadly weapons; and no structures of government that an invader can take over and use to rule indirectly. Think about the Afghans, the Viet Cong, the Minutemen — would you want to invade a country full of dedicated, heavily armed libertarians? :-)

Minarchist libertarians are less radical, observe that U.S. territory could certainly be protected effectively with a military costing less than half of the bloated U.S. military budget.

Voluntary cooperation is a wonderful thing, and we encourage it whenever we can. Despite the tired old tag line about “dog-eat-dog competition” and the presence of government intervention, the relatively free market of today’s capitalism is the most spectacular argument for voluntary cooperation in history; millions, even billions of people coordinating with each other every day to satisfy each others’ needs and create untold wealth.

What we oppose is the mockeries politicians and other criminals call cooperation but impose by force; there is no “cooperation” in taxation or the draft or censorship any more than you and I are “cooperating” when I put a gun to your head and steal your wallet.

Think about freedom, and act on your thoughts. Spend your dollars wisely. Oppose the expansion of state power. Promote “bottom-up” solutions to public problems, solutions that empower individuals rather than demanding intervention by force of government. Give to private charity. Join a libertarian organization; the Libertarian Party, or the Advocates for Self-Government, or the Reason Foundation. Start your own business; create wealth and celebrate others who create wealth. Support voluntary cooperation.

No one knows. Your author thinks libertarianism is about where constitutional republicanism was in 1750 — a solution waiting for its moment, a toy of political theorists and a few visionaries waiting for the people and leaders who can actualize it. The collapse of Communism and the triumph of capitalist economics will certainly help, by throwing central planning and the “nanny state” into a disrepute that may be permanent. Some libertarians believe we are headed for technological and economic changes so shattering that no statist ideology can possibly survive them (in particular, most of the nanotechnology “underground” is hard-core libertarian). Only time will tell.

There’s an excellent FAQ on anarchist theory and history at http://www.princeton.edu/~bdcaplan/anarfaq.htm with links to many other Web documents.

Peter McWilliams’s wise and funny book Ain’t Nobody’s Business If You Do is worth a read.

Friedman, Milton and Friedman, Rose, Free to Choose: A Personal Statement (Harcourt Brace Jovanovich, 1980).

Hayek, Friedrich A. The Constitution of Liberty (Henry Regnery Company, 1960).

Hayek, Friedrich A. The Road to Serfdom (University of Chicago Press, 1944).

Lomasky, Loren, Persons, Rights, and the Moral Community (Oxford University Press, 1987).

Machan, Tibor, Individuals and Their Rights (Open Court, 1989).

Murray, Charles A. In Pursuit of Happiness and Good Government (Simon and Schuster, 1988).

Rasmussen, Douglas B. and Den Uyl, Douglas J., Liberty and Nature (Open Court, 1991).

Rothbard, Murray N. For a New Liberty: The Libertarian Manifesto, 2nd ed (Macmillan, 1978).

Reason. Editorial contact: 3415 S. Sepulveda Blvd., Suite 400, Los Angeles, CA 90034. Subscriptions: PO Box 526, Mt. Morris, IL 61054

Liberty. PO Box 1167, Port Townsend, WA 98368.

1202 N. Tenn. St., Suite 202 Cartersville, GA 30120

3415 S. Sepulveda Blvd., Suite 400, Los Angeles, CA 90034

1000 Massachusetts Ave, NW, Washington, DC 20001-5403

938 Howard St. San Francisco, Suite 202, CA 94103

818 S. Grand Ave., Suite 202, Los Angeles, CA 90017

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Libertarianism and Objectivism – Wikipedia, the free …

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Nov 032015
 

Ayn Rand’s philosophy of Objectivism has been and continues to be a major influence on the libertarian movement, particularly in the United States. Many libertarians justify their political views using aspects of Objectivism.[1] However, the views of Rand and her philosophy among prominent libertarians are mixed and many Objectivists are hostile to non-Objectivist libertarians in general.[2]

Some libertarians, including Murray Rothbard and Walter Block, hold the view that the non-aggression principle is an irreducible concept: it is not the logical result of any given ethical philosophy but, rather, is self-evident as any other axiom is. Rand, too, argued that liberty was a precondition of virtuous conduct,[3] but argued that her non-aggression principle itself derived from a complex set of previous knowledge and values. For this reason, Objectivists refer to the non-aggression principle as such, while libertarians who agree with Rothbard’s argument call it “the non-aggression axiom.” Rothbard and other anarcho-capitalists hold that government requires non-voluntary taxation to function and that in all known historical cases, the state was established by force rather than social contract.[4] They thus consider the establishment and maintenance of the night-watchman state supported by Objectivists to be in violation of the non-aggression principle. On the other hand, Rand believes that government can in principle be funded through voluntary means.[5]

Jennifer Burns in her biography Goddess of the Market: Ayn Rand and the American Right, notes how Rand’s position that “Native Americans were savages”, and that as a result “European colonists had a right to seize their land because native tribes did not recognize individual rights”, was one of the views that “particularly outraged libertarians.”[6] Burns also notes how Rand’s position that “Palestinians had no rights and that it was moral to support Israel, the sole outpost of civilization in a region ruled by barbarism”, was also a controversial position amongst libertarians, who at the time were a large portion of Rand’s fan base.[6]

Libertarians and Objectivists often disagree about matters of foreign policy. Rand’s rejection of what she deemed to be “primitivism” extended to the Middle East peace process in the 1970s.[6][7] Following the Arab-Israeli War of 1973, Rand denounced Arabs as “primitive” and “one of the least developed cultures” who “are typically nomads.”[7] Consequently, Rand contended Arab resentment for Israel was a result of the Jewish state being “the sole beachhead of modern science and civilization on their (Arabs) continent”, while decreeing that “when you have civilized men fighting savages, you support the civilized men, no matter who they are.”[7] Many libertarians were highly critical of Israeli government at the time.[citation needed]

Most scholars of the libertarian Cato Institute have opposed military intervention against Iran,[8] while the Objectivist Ayn Rand Institute has supported forceful intervention in Iran.[9][10]

The United States Libertarian Party’s first candidate for president of the United States, John Hospers, credited Rand as a major force in shaping his own political beliefs.[11]David Boaz, executive vice president of the Cato Institute, an American libertarian think tank, described Rand’s work as “squarely within the libertarian tradition” and that some libertarians are put off by “the starkness of her presentation and by her cult following.”[12]Milton Friedman described Rand as “an utterly intolerant and dogmatic person who did a great deal of good.”[13] One Rand biographer quoted Murray Rothbard as saying that he was “in agreement basically with all [Rand’s] philosophy,” and saying that it was Rand who had “convinced him of the theory of natural rights…”[14] Rothbard would later become a particularly harsh critic of Rand, writing in The Sociology of the Ayn Rand Cult that:

The major lesson of the history of the [objectivist] movement to libertarians is that It Can Happen Here, that libertarians, despite explicit devotion to reason and individuality, are not exempt from the mystical and totalitarian cultism that pervades other ideological as well as religious movements. Hopefully, libertarians, once bitten by the virus, may now prove immune.[15]

Some Objectivists have argued that Objectivism is not limited to Rand’s own positions on philosophical issues and are willing to work with and identify with the libertarian movement. This stance is most clearly identified with David Kelley (who separated from the Ayn Rand Institute because of disagreements over the relationship between Objectivists and libertarians), Chris Sciabarra, Barbara Branden (Nathaniel Branden’s former wife), and others. Kelley’s Atlas Society has focused on building a closer relationship between “open Objectivists” and the libertarian movement.[citation needed]

Rand condemned libertarianism as being a greater threat to freedom and capitalism than both modern liberalism and conservatism.[16] Rand regarded Objectivism as an integrated philosophical system. Libertarianism, in contrast, is a political philosophy which confines its attention to matters of public policy. For example, Objectivism argues positions in metaphysics, epistemology, and ethics, whereas libertarianism does not address such questions. Rand believed that political advocacy could not succeed without addressing what she saw as its methodological prerequisites. Rand rejected any affiliation with the libertarian movement and many other Objectivists have done so as well.[17]

Rand said of libertarians that:

They’re not defenders of capitalism. They’re a group of publicity seekers…. Most of them are my enemies… I’ve read nothing by Libertarians (when I read them, in the early years) that wasn’t my ideas badly mishandledi.e., the teeth pulled out of themwith no credit given.”[16]

In a 1981 interview, Rand described libertarians as “a monstrous, disgusting bunch of people” who “plagiarize my ideas when that fits their purpose.”[16]

Responding to a question about the Libertarian Party in 1976, Rand said:

The trouble with the world today is philosophical: only the right philosophy can save us. But this party plagiarizes some of my ideas, mixes them with the exact oppositewith religionists, anarchists and every intellectual misfit and scum they can findand call themselves libertarians and run for office.”[18]

In 2011, Yaron Brook, president of the Ayn Rand Institute, spoke at the Foundation for Economic Education.[19] He was a keynote speaker at FreedomFest 2012.[20] He appeared on ReasonTV on July 26, 2012.[21]

Ayn Rand Institute board member John Allison spoke at the Cato Club 200 Retreat in September 2012,[22] contributed “The Real Causes of the Financial Crisis” to Cato’s Letter,[23] and spoke at Cato’s Monetary Conference in November, 2011.[24]

On June 25, 2012, the Cato Institute announced that John Allison would become its next president.[25] In Cato’s public announcement, Allison was described as a “revered libertarian.” In communication to Cato employees, he wrote, “I believe almost all the name calling between libertarians and objectivists is irrational. I have come to appreciate that all objectivists are libertarians, but not all libertarians are objectivists.”[26]

On October 15, 2012, Brook explained the changes to The American Conservative:

I dont think theres been a significant change in terms of our attitude towards libertarians. Two things have happened. Weve grown, and weve gotten to a size where we dont just do educational programs, we do a lot more outreach and a lot more policy and working with other organizations. I also believe the libertarian movement has changed. Its become less influenced by Rothbard, less influenced by the anarchist, crazy for lack of a better word, wing of libertarianism. As a consequence, because were bigger and doing more things and because libertarianism has become more reasonable, we are doing more work with them than we have in the past. But I dont think ideologically anything of substance has changed at the Institute.[27]

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Libertarianism: What Everyone Needs to Know

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Nov 022015
 

Historically, Americans have seen libertarians as far outside the mainstream, but with the rise of the Tea Party movement, libertarian principles have risen to the forefront of Republican politics. But libertarianism is more than the philosophy of individual freedom and unfettered markets that Republicans have embraced. Indeed, as Jason Brennan points out, libertarianism is a quite different–and far richer–system of thought than most of us suspect.

In this timely new entry in Oxford’s acclaimed series What Everyone Needs to Know, Brennan offers a nuanced portrait of libertarianism, proceeding through a series of questions to illuminate the essential elements of libertarianism and the problems the philosophy addresses, including such topics as the Value of Liberty, Human Nature and Ethics, Economic Liberty, Civil Rights, Social Justice and the Poor, Government and Democracy, and Contemporary Politics. Brennan asks the most fundamental and challenging questions: What do Libertarians think liberty is? Do libertarians think everyone should be selfish? Are libertarians just out to protect the interests of big business? What do libertarians think we should do about racial injustice? What would libertarians do about pollution? Are Tea Party activists true libertarians? As he sheds light on libertarian beliefs, Brennan overturns numerous misconceptions. Libertarianism is not about simple-minded paranoia about government, he writes. Rather, it celebrates the ideal of peaceful cooperation among free and equal people. Libertarians believe that the rich always capture political power; they want to minimize the power available to them in order to protect the weak. Brennan argues that libertarians are, in fact, animated by benevolence and a deep concern for the poor.

Clear, concise, and incisively written, this volume explains a vitally important philosophy in American history–and a potent force in contemporary politics.

What Everyone Needs to Know is a registered trademark of Oxford University Press.

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First Amendment – constitution | Laws.com

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Oct 282015
 

The First Amendment of the United States Constitution is contained in the Bill of Rights. The First Amendment has proven to be one of the most fundamental and important in respects to the rights attributed to the populace of the United States. Originally, the First Amendment was implemented and applied solely to Congress. However, by the beginning of the twentieth century, it was upheld that the First Amendment is to apply to all forms of government, including state and local levels. The Supreme Court decided that the Fourteenth Amendment Due Process Clause would apply to the 1st Amendment, and thus rendering such a decision.

As stated in the United States Constitution, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Though a relatively short and concise assertion, the text provides for quite an encompassing set of rights that protect the citizens of the United States, and some of the most important and basic human rights. The First Amendment has many clauses that relate to each of the concepts that it sets out to protect. Religion is discussed in two clauses, one regarding the establishment of religion, and the other the free exercise of religion.

This proves to be one of the most important rights to secure by the Fathers of the Constitution, for so many people of European descent immigrated to the American Colonies to avoid religious persecution, and to find a safe haven to practice their religion of choice without any dire consequences. The First Amendment prohibits the government to establish a formal or national religion for the nation. It also addresses that there will be no preference of any particular religion, including the practice of no religion, or non religion.

The 1st Amendment guarantees the people of the United States the free exercise of religion, without interference from governmental factions. This right would also extend to any organization or individual infringing on such right, and would be deemed as unconstitutional.

One of the most commonly referred to clauses under the 1st Amendment is the freedom of speech. This clause has proven to be of great importance, particularly in the twentieth century and continues on with such regard in our lifetime. Under the text of the First Amendment, many issues are addressed regarding Freedom of Speech, and restrictions to exist in which such a practice may prove to be harmful to the general population or public. An example is the concept of sedition, and how this conduct can lead to insurrection against the government.

Other concepts also addressed include commercial speech, political speech, obscenity, libel, slander, and symbolic speech, such as the desecration of the American Flag. Under the First Amendment, there have been important and key court cases that have established a form precedence in how to apply the Amendment to these kinds of circumstances. The Freedom of the press is also included, and subject to similar restrictions as the freedom of speech.

The rights to petition and assembly often seem to be overlooked, for freedom of religion and speech are most commonly associated with the 1st Amendment. The right to petition is important because it gives citizens the opportunity to address their government in issues that have relevance and importance to the commonwealth. The formulation of an assembly, under the First Amendment, can be interpreted as citizens gathering and unifying for the purpose of communicating views or opinions on national issues, and for the relaying of pertinent information. The right to assembly is often related to that of petition, in such a way where citizens may assemble in the process of petitioning the government.

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First Amendment – National Constitution Center

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Oct 282015
 

Clauses of the First Amendment

The Establishment Clause

Americas early settlers came from a variety of religious backgrounds: Puritans predominated in New England; Anglicans predominated in the South; Quakers and Lutherans flocked especially to Pennsylvania; Roman Catholics settled mostly in Maryland; Presbyterians were most numerous in the middle colonies; and there were Jewish congregations in five cities.

During colonial times, the Church of England was established by law in all of the southern colonies, while localized Puritan (or Congregationalist) establishments held sway in most New England states. In those colonies, clergy were appointed and disciplined by colonial authorities and colonists were required to pay religious taxes and (often) to attend church services. Dissenters were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York had no established church.

After Independence, there was widespread agreement that there should be no nationally established church. The Establishment Clause of the First Amendment, principally authored by James Madison, reflects this consensus. The language of the Establishment Clause itself applies only to the federal government (Congress shall pass no law respecting an establishment of religion). All states disestablished religion by 1833, and in the 1940s the Supreme Court held that disestablishment applies to state governments through the Fourteenth Amendment.

Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organizations selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification. Beyond that, the meaning of the Amendment is often hotly contested, and Establishment cases in the Supreme Court often lead to 5-4 splits.

The Lemon Test

In 1971, the Supreme Court surveyed its previous Establishment Clause cases and identified three factors that identify when a government practice violates the Establishment Clause: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion. Lemon v. Kurtzman (1971). In the years since Lemon, the test has been much criticized and the Court often decides Establishment Clause cases without reference to it. Yet the Justices have not overruled the Lemon test, meaning the lower courts remain obliged to use it. In some specific areas of controversy, however, the Court has adopted specific, more targeted tests to replace Lemon.

The vast majority of Establishment Clause cases have fallen in four areas: monetary aid to religious education or other social welfare activities conducted by religious institutions; government-sponsored prayer; accommodation of religious dissenters from generally-applicable laws; and government owned or sponsored religious symbols.

Aid to religious institutions

Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.

After two early decisions upholding state statutes allowing students who attend private religious schools to receive transportation, Everson v. Board of Education (1947), and textbook subsidies available to all elementary and secondary students, Board of Education v. Allen (1968), the Court attempted for about fifteen years to draw increasingly sharp lines against the use of tax-funded assistance for the religious aspects of education. At one point the Court even forbade public school teaching specialists from going on the premises of religious schools to provide remedial assistance. Aguilar v. Felton (1985). More recently, the Court has upheld programs that provide aid to educational or social programs on a neutral basis only as a result of the genuine and independent choices of private individuals. Zelman v. Simmons-Harris (2002). Indeed, the Court has held that it is unconstitutional under free speech or free exercise principles to exclude otherwise eligible recipients from government assistance solely because their activity is religious in nature. Rosenberger v. University of Virginia (1995).

Government-sponsored prayer

The Courts best-known Establishment Clause decisions held it unconstitutional for public schools to lead schoolchildren in prayer or Bible reading, even on an ostensibly voluntary basis. Engel v. Vitale (1962); Abington School District v. Schempp (1963). Although these decisions were highly controversial among the public (less so among scholars), the Court has not backed down. Instead it has extended the prohibition to prayers at graduation ceremonies, Lee v. Weisman (1992), and football games, Santa Fe Independent School District v. Doe (2000).

In less coercive settings involving adults, the Court has generally allowed government-sponsored prayer. In Marsh v. Chambers (1983), the Court upheld legislative prayer, specifically because it was steeped in history. More recently, the Court approved an opening prayer or statement at town council meetings, where the Town represented that it would accept any prayers of any faith. Town of Greece v. Galloway (2014).

Accommodation of religion

Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions. While the Court held that a state sales tax exemption limited to religious publications was unconstitutional in Texas Monthly, Inc. v. Bullock (1989), it unanimously upheld the exemption of religious organizations from prohibitions on employment discrimination for ministers. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws. A unanimous Court upheld this approach for prisoners against a claim that granting religious accommodations violates the Establishment Clause, reasoning that RLUIPA alleviates exceptional government-created burdens on private religious exercise in prisons. Cutter v. Wilkinson (2005).

The Court in Cutter left open the question whether such a regime applied to land use is constitutional and it also left open the possibility that even some applications in prisons may be unconstitutional if they are not even-handed among religions or impose too extreme a burden on non-believers. The Courts recent 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014), holding that RFRA exempts for-profit employers from paying for insurance coverage of contraceptive drugs that they believe are abortion-inducing, has reinvigorated the debate over such laws.

Government-sponsored religious symbols

The cases involving governmental displays of religious symbolssuch as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public landhave generated much debate. The most prominent approach in more recent cases is called the endorsement test; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.

The Courts decisions in this arena are often closely divided. They also illustrate that the Court has declined to take a rigid, absolutist view of the separation of church and state. In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it engenders a friendly community spirit of good will in keeping with the season. But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was indisputably religiousindeed sectarian. In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an officials description of the Ten Commandments as the embodiment of ethics in Christ, was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005). Only one Justice was in the majority in both cases.

More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic.

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state.

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution.

The Establishment Clause: A Check on Religious Tyranny by Marci A. Hamilton

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights (of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right) has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams. Franklin saw a pattern:

If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romish Church, but practiced it upon the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves both here [England] and in New England.

Benjamin Franklin, Letter to the London Packet (June 3, 1772).

The father of the Constitution and primary drafter of the First Amendment, James Madison, in his most important document on the topic, Memorial and Remonstrance against Religious Assessments (1785), stated:

During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. . . . What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people.

Two years later, John Adams described the states as having been derived from reason, not religious belief:

It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the influence of Heaven, any more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. . . .Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.

The Works of John Adams, Second President of the United States, Vol. 4, 292-93 (Charles C. Little & James Brown, eds., 1851).

Massachusetts and Pennsylvania are examples of early discord. In Massachusetts, the Congregationalist establishment enforced taxation on all believers and expelled or even put to death dissenters. Baptist clergy became the first in the United States to advocate for a separation of church and state and an absolute right to believe what one chooses. Baptist pastor John Leland was an eloquent and forceful proponent of the freedom of conscience and the separation of church and state. For him, America was not a Christian nation, but rather should recognize the equality of all believers, whether Jews, Turks, Pagans [or] Christians. Government should protect every man in thinking and speaking freely, and see that one does not abuse another. He proposed an amendment to the Massachusetts Constitution in 1794 because of the evils . . . occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics.”

Pennsylvania, dubbed the Holy Experiment by founder William Penn, was politically controlled by Quakers, who advocated tolerance of all believers and the mutual co-existence of differing faiths, but who made their Christianity a prerequisite for public office, only permitted Christians to vote, and forbade work on the Sabbath. Even so, the Quakers set in motion a principle that became a mainstay in religious liberty jurisprudence: the government may not coerce citizens to believe what they are unwilling to believe. If one looks carefully into the history of the United States religious experiment, one also uncovers a widely-shared view that too much liberty, or licentiousness, is as bad as no liberty. According to historian John Philip Reid, those in the eighteenth century had as great a duty to oppose licentiousness as to defend liberty.

Establishment Clause Doctrine

The Establishment Clause has yielded a wide array of doctrines (legal theories articulated by courts), each of which is largely distinct from the others, some of which are described in Professor McConnells and my joint contribution on the Establishment Clause. The reason for this proliferation of distinct doctrines is that the Establishment Clause is rooted in a concept of separating the power of church and state. These are the two most authoritative forces of human existence, and drawing a boundary line between them is not easy. The further complication is that the exercise of power is fluid, which leads both state and church to alter their positions to gain power either one over the other or as a union in opposition to the general public or particular minorities.

The separation of church and state does not mean that there is an impermeable wall between the two, but rather that the Framers fundamentally understood that the union of power between church and state would lead inevitably to tyranny. The established churches of Europe were well-known to the Founding era and the Framers and undoubtedly contributed to James Madisons inclusion of the Establishment Clause in the First Amendment, and its ratification. The following are some of the most important principles.

The Government May Not Delegate Governing Authority to Religious Entities

The Court has been sensitive to incipient establishments of religion. A Massachusetts law delegated authority to churches and schools to determine who could receive a liquor license within 500 feet of their buildings. The Supreme Court struck down the law, because it delegated to churches zoning power, which belongs to state and local government, not private entities. Larkin v. Grendels Den, Inc. (1982). According to the Court: The law substitutes the unilateral and absolute power of a church for the reasoned decision making of a public legislative body . . . on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of [p]olitical fragmentation and divisiveness along religious lines.

In another scenario, the Supreme Court rejected an attempt to define political boundaries solely according to religion. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the state of New York designated the neighborhood boundaries of Satmar Hasidim Orthodox Jews in Kiryas Joel Village as a public school district to itself. Thus, the boundary was determined solely by religious identity, in part because the community did not want their children to be exposed to children outside the faith. The Court invalidated the school district because political boundaries identified solely by reference to religion violate the Establishment Clause.

There Is No Such Thing as Church Autonomy Although There Is a Doctrine that Forbids the Courts from Determining What Religious Organizations Believe

In recent years, religious litigants have asserted a right to church autonomythat churches should not be subject to governmental regulationin a wide variety of cases, and in particular in cases involving the sexual abuse of children by clergy. The phrase, however, is misleading. The Supreme Court has never interpreted the First Amendment to confer on religious organizations a right to autonomy from the law. In fact, in the case in which they have most recently demanded such a right, arguing religious ministers should be exempt from laws prohibiting employment discrimination, the Court majority did not embrace the theory, not even using the term once. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

The courts are forbidden, however, from getting involved in determining what a religious organization believes, how it organizes itself internally, or who it chooses to be ministers of the faith. Therefore, if the dispute brought to a court can only be resolved by a judge or jury settling an intra-church, ecclesiastical dispute, the dispute is beyond judicial consideration. This is a corollary to the absolute right to believe what one chooses; it is not a right to be above the laws that apply to everyone else. There is extraordinary slippage in legal briefs in numerous cases where the entity is arguing for autonomy, but what they really mean is freedom from the law, per se. For the Court and basic common sense, these are arguments for placing religion above the law, and in violation of the Establishment Clause. They are also fundamentally at odds with the common sense of the Framing generation that understood so well the evils of religious tyranny.

The Establishment Clause: Co-Guarantor of Religious Freedom by Michael McConnell

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution. Unlike most of the Constitution, it refers to a legal arrangement, the establishment of religion, which has not existed in the United States in almost two centuries. We understand what freedom of speech is, we know what private property” is, and we know what searches and seizures are, but most of us have no familiarity with what an establishment of religion would be.

The Church by Law Established in Britain was a church under control of the government. The monarch was (and is) the supreme head of the established church and chooses its leadership; Parliament enacted its Articles of Faith; the state composed or directed the content of its prayers and liturgy; clergy had to take an oath of allegiance to the king or queen; and not surprisingly, the established church was used to inculcate the idea that British subjects had a religious as well as a civic obligation to obey royal authority. The established church was a bit like a government-controlled press: it was a means by which the government could mold public opinion.

British subjects (including Americans in eight of the colonies) were legally required to attend and financially support the established church, ministers were licensed or selected by the government, and the content of church services was partially dictated by the state.

The establishment of religion was bad for liberty and it was bad for religion, too. It was opposed by a coalition of the most fervently evangelical religious sects in America (especially the Baptists), who thought the hand of government was poisonous to genuine religion, joined by the enlightenment and often deist elite (like Thomas Jefferson and Benjamin Franklin), who thought church and state should be separate, and by the leadership of minority religions, who worried that government involvement would disadvantage them. Accordingly, there was virtually no opposition to abolishing establishment of religion at the national level. Establishments survived for a while in a few states, but the last state (Massachusetts) ended its establishment in 1833.

The abolition of establishment of religion entails a number of obvious and uncontroversial elements. Individuals may not be required to contribute to, attend, or participate in religious activities. These must be voluntary. The government may not control the doctrine, liturgy, or personnel of religious organizations. These must be free of state control. Other issues are harder.

For a few decades between the late 1960s and the early 1990s, the Supreme Court attempted to forbid states to provide tax subsidies to schools that teach religious doctrine along with ordinary secular subjects. Most of these schools were Roman Catholic. This effort was largely based on a misinterpretation of history, egged on by residual anti-Catholicism. The Justices said that neutral aid to schools is just like a 1785 effort to force Virginians to contribute to the church of their choice. The analogy, however, made little sense: there is all the difference in the world between funding churches because they inculcate religion and funding schools because they provide education. In fact, the history of the early republic shows that states (and later the federal government, during Reconstruction) funded education by subsidizing all schools on a nondiscriminatory basis, and no one ever suggested this violated the non-establishment principle. By 2002, in Zelman v. Simmons-Harris, the Supreme Court returned to this original idea, allowing the government to fund schools on a neutral basis so long as the choice of religious schools was left to voluntary choice. Not only was ruling this true to history, it also best serves the ideal of religious freedom, making it possible for families to choose the type of education they want for their children.

It is sometimes suggested that laws making special accommodations for people whose religious beliefs are at odds with government policy violate the Establishment Clause, on the theory that these accommodations privilege or advance religion. This is a recently-minted idea, and not a sensible one. In all cases of accommodation, the religion involved is dissenting from prevailing policy, which means, by definition, that the religion is not dominating society. The idea that making exceptions for the benefit of people whose beliefs conflict with the majority somehow establishes religion is a plain distortion of the words. And the Supreme Court has unanimously held that religious accommodations are permissible so long as they lift a governmental obstacle to the exercise of religion, take account of costs to others, and do not favor one faith over another. Nonetheless, when religions take unpopular stances on hot-button issues (for example, regarding abortion-inducing contraceptives or same-sex marriage), critics are quick to assert that it violates the Constitution to accommodate their differences, no matter how little support that position has in history or Supreme Court precedent.

The fundamental error is to think that the Establishment Clause is designed to reduce the role of religion in American life. A better understanding is captured in this statement by Justice William O. Douglas of the Supreme Court: this country sponsor[s] an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. Zorach v. Clauson (1952).

The Free Exercise Clause

Many settlers from Europe braved the hardships of immigration to the American colonies to escape religious persecution in their home countries and to secure the freedom to worship according to their own conscience and conviction. Although the colonists often understood freedom of religion more narrowly than we do today, support for protection of some conception of religious freedom was broad and deep. By the time of Independence and the construction of a new Constitution, freedom of religion was among the most widely recognized inalienable rights, protected in some fashion by state bills of rights and judicial decisions. James Madison, for example, the principal author of the First Amendment, eloquently expressed his support for such a provision in Virginia: It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.

Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the free exercise of religion. This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.

From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or exempted from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.

The Supreme Court first addressed the question in a series of cases involving nineteenth-century laws aimed at suppressing the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints (LDS), also known as Mormons. The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Reynolds v. United States (1878). What followed was perhaps the most extreme government assault on religious freedom in American history. Hundreds of church leaders were jailed, rank-and-file Mormons were deprived of their right to vote, and Congress dissolved the LDS Church and expropriated most of its property, until the church finally agreed to abandon polygamy.

The belief-action distinction ignored the Free Exercise Clauses obvious protection of religious practice, but spoke to the concern that allowing believers to disobey laws that bind everyone else would undermine the value of a government of laws applied to all. Doing so, Reynolds warned, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Reynolds influenced the meaning of the Free Exercise Clause well into the twentieth century. In 1940, for example, the Court extended the Clausewhich by its terms constrains only the federal governmentto limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not unduly infringe religious exercise, the Court reiterated that [c]onduct remains subject to regulation for the protection of society, citing Reynolds as authority. Similarly, the Court held in 1961 that the Free Exercise Clause did not exempt an orthodox Jewish merchant from Sunday closing laws, again citing Reynolds.

In the 1960s and early 1970s, the Court shifted, strengthening protection for religious conduct by construing the Free Exercise Clause to protect a right of religious believers to exemption from generally applicable laws which burden religious exercise. The Court held that the government may not enforce even a religiously-neutral law that applies generally to all or most of society unless the public interest in enforcement is compelling. Wisconsin v. Yoder (1972). Yoder thus held that Amish families could not be punished for refusing to send their children to school beyond the age of 14.

Although the language of this compelling-interest test suggested powerful protections for religion, these were never fully realized. The cases in which the Supreme Court denied exemptions outnumbered those in which it granted them. Aside from Yoder, the Court exempted believers from availability for work requirements, which denied unemployment benefits to workers terminated for prioritizing religious practices over job requirements. But it denied exemptions to believers and religious organizations which found their religious practices burdened by conditions for federal tax exemption, military uniform regulations, federal minimum wage laws, state prison regulations, state sales taxes, federal administration of public lands, and mandatory taxation and other requirements of the Social Security system. In all of these cases the Court found, often controversially, either that the governments interest in enforcement was compelling, or that the law in question did not constitute a legally-recognizable burden on religious practice.

In 1990, the Supreme Court changed course yet again, holding that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Employment Division v. Smith (1990). Though it did not return to the belief-action distinction, the Court echoed Reynolds concern that religious exemptions permit a person, by virtue of his beliefs, to become a law unto himself, contradicting both constitutional tradition and common sense. Any exceptions to religiously-neutral and generally-applicable laws, therefore, must come from the political process. Smith went on to hold that the Free Exercise Clause does not protect the sacramental use of peyote, a hallucinogenic drug, by members of the Native American Church.

Smith proved to be controversial. In 1993, overwhelming majorities in Congress voted to reinstate the pre-Smith compelling-interest test by statute with the Religious Freedom Restoration Act (RFRA). RFRA authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions, unless the government can show that the law is the least restrictive means of furthering a compelling governmental interest. Almost half of the states have passed similar lawsstate RFRAsapplicable to their own laws. In 1997 the Supreme Court held that Congress had constitutional authority only to apply RFRA to federal laws, and not to state or local laws. Congress then enacted a narrower law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies the compelling-interest test to state laws affecting prisoners and land use. RFRA and RLUIPA have afforded exemptions in a wide range of federal and state contextsfrom kosher and halal diets for prisoners, to relief from zoning and landmark regulations on churches and ministries, to exemptions from jury service.

Although some exemption claims brought under these religious freedom statutes have been relatively uncontroversialthe Supreme Court unanimously protected the right of a tiny religious sect to use a hallucinogenic drug prohibited by federal law and the right of a Muslim prisoner to wear a half-inch beard prohibited by state prison rulessome touch on highly contested moral questions. For example, the Court by a 5-4 vote excused a commercial family-owned corporation from complying with the contraception mandate, a regulation which required the corporations health insurance plan to cover what its owners believe are abortion-inducing drugs. Burwell v. Hobby Lobby Stores Inc. (2014). In the wake of Hobby Lobby and the Courts subsequent determination that states may not deny gays and lesbians the right to civil marriage, state RFRAs have become a flashpoint in conflicts over whether commercial vendors with religious objections may refuse their products and services to same-sex weddings.

Besides RFRA and other exemption statutes, the Free Exercise Clause itself, even after Smith, continues to provide protection for believers against burdens on religious exercise from laws that target religious practices, or that disadvantage religion in discretionary, case-by-case decision making. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), for example, the Court unanimously struck down a local ordinance against the unnecessary killing of animals in a ritual or ceremonya law that was drawn to apply only to a small and unpopular religious sect whose worship includes animal sacrifice.

The Court recently recognized that the Free Exercise Clause (along with the Establishment Clause) required a religious exemption from a neutral and general federal antidiscrimination law that interfered with a churchs freedom to select its own ministers. The Court distinguished Smith on the ground that it involved government regulation of only outward physical acts, while this case concerns government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012).

It remains unclear whether Lukumi and Hosanna-Tabor are narrow exceptions to Smiths general presumption against religious exemptions, or foreshadow yet another shift towards a more exemption-friendly free exercise doctrine.

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution.

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well.

Religious Liberty Is Equal Liberty by Frederick Gedicks

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution. The Free Exercise Clause was thus an exceptional political achievement, imposing a constitutional norm of civic equality by prohibiting the federal government from interfering with all religious exerciseregardless of affiliation.

Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain equal title to the free exercise of Religion according to the dictates of conscience without the governments subjecting some to peculiar burdens or granting to others peculiar exemptions. A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate religious exemptions that would excuse believers from complying with neutral and general laws that constrain the rest of society.

The Supreme Court has historically left the question of religious exemptions to Congress and the state legislatures. The first judicially-ordered exemptions arose in the 1960s and early 1970s, when the Supreme Court held the Free Exercise Clause required religious exemptions for Amish families who objected to sending their children to high school, and for employees who were denied unemployment benefits when they lost their jobs for refusing to work on their Sabbath. This doctrine of judicially-ordered exemptions, however, was an historical aberration. In Employment Division v. Smith (1990), the Court considered a claim by members of a Native American religion who lost their jobs as drug counselors for using an illegal drug in a religious ritual. The Court abandoned its new doctrine of religious exemptions, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline. Notwithstanding the narrow ministerial exception recognized in Hosanna-Tabor Evangelical Church & School v. EEOC (2012), the Court has repeatedly affirmed Smith and the century of precedent cited in that case, and has shown no inclination to overturn its basic principle that neutral and general laws should apply equally to all, regardless of religious belief or unbelief.

The growth of social welfare entitlements and religious diversity in the United States has underscored the wisdom of the Smith rule. Exempting believers from social welfare laws may give them a competitive advantage, and also may harm those whom the law was designed to protect or benefit.

For example, the Court refused to exempt an Amish employer from paying Social Security taxes for his employees, reasoning that doing so would impose the employers religious faith on the employees by reducing their social security benefits regardless of whether they shared their employers religious objection to government entitlement programs. United States v. Lee (1982). Similarly, the Court refused to exempt a religious employer from federal minimum wage laws, because doing so would give the employer an advantage over competitors and depress the wages of all employees in local labor markets. Tony & Susan Alamo Foundation v. Secretary of Labor (1985).

Read the full discussion here.

The Court seems poised to adopt this third-party burden principle in decisions interpreting the 1993 Religious Freedom Restoration Act (RFRA) as well. Five Justices in Burwell v. Hobby Lobby Stores, Inc. (2014), expressly stated that RFRA exemptions imposing significant costs on others are not allowed. The majority opinion likewise acknowledged that courts must take adequate account of third-party burdens before ordering a RFRA exemption.

The growth of religious diversity makes a religious exemption regime doubly impractical. The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors were presumptively entitled to exemption from any burdensome law, religious exemptions would threaten to swallow the rule of law, which presupposes its equal application to everyone. As the Court observed in Lee, a religiously diverse social welfare state cannot shield every person . . . from all the burdens incident to exercising every aspect of the right to practice religious beliefs.

Even under the equal-liberty regime contemplated by the Founders and restored by Smith, government remains subject to important constraints that protect religious liberty. Religious gerrymanders, or laws that single out particular religions for burdens not imposed on other religions or on comparable secular conduct, must satisfy strict scrutiny under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Sherbert v. Verner (1963). Under RFRA and the related Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal government and often the state governments are prohibited from burdening religious exercise without adequate justification. Holt v. Hobbs (2015); Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2005). And, like judicially-ordered exemptions, legislative exemptions that impose material costs on others in order to protect believers free exercise interests may be invalid under the Establishment Clause, which protects believers and unbelievers alike from bearing the burdens of practicing someone elses religion. Estate of Thornton v. Caldor (1985).

If exemptions are to be afforded to those whose religious practices are burdened by neutral and general laws, they should generally not be granted by courts, but by the politically accountable branches of the federal and state governments. These branches are better situated to weigh and balance the competing interests of believers and others in a complex and religiously-diverse society.

Free Exercise: A Vital Protection for Diversity and Freedom by Michael McConnell

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well. The government cannot use its authority to forbid Americans to conduct their lives in accordance with their religious beliefs or to require them to engage in actions contrary to religious conscience even when the vast majority of their countrymen regard those beliefs as backward, mistaken, or even immoral.

Unfortunately, in the last few years and especially since the Supreme Courts decision requiring states to recognize same-sex marriage this consensus in favor of tolerance has been slipping. All too often, we hear demands that religious people and religious institutions such as colleges or adoption agencies must join the state in recognizing same-sex marriages (or performing abortions or supplying contraceptives, or whatever the issues happen to be), or lose their right to operate.

That has not been the American way. When this country severed its ties with the British Empire, one thing that went with it was the established church. To an unprecedented degree, the young United States not only tolerated but actively welcomed people of all faiths. For example, despite his annoyance with the Quakers for their refusal to support the revolutionary war effort, Washington wrote to a Quaker Society to express his wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit. Letter to the Annual Meeting of Quakers (1789).

What would it mean to have a regime of free exercise of religion? No one knew; there had been no such thing before. It quickly became clear that it was not enough just to cease persecution or discrimination against religious minorities. Just two years after the ink was dry on the First Amendment, the leader of the Jewish community in Philadelphia went to court and asked, under authority of his states free exercise clause, to be excused from complying with a subpoena to appear in court on his day of sabbath. He did not ask that the state cease to do official business on Saturday, but he did ask the court to make an exception an accommodation that would enable him to be faithful to the Jewish law.

This would become the central interpretive question under the Free Exercise Clause: Does it give Americans whose religions conflict with government practices the right to ask for special accommodation, assuming an accommodation can be made without great harm to the public interest or the rights of others?

Read the full discussion here.

In the early years, some religious claimants won and some lost. The Mormon Church lost in a big way, in the first such case to reach the United States Supreme Court. Reynolds v. United States (1878). In 1963, the Supreme Court held that the Free Exercise Clause of the First Amendment does require the government to make accommodations for religious exercise, subject as always to limitations based on the public interest and the rights of others. Sherbert v. Verner (1963). In 1990, the Court shifted to the opposite view, in a case involving the sacramental use of peyote by members of the Native American Church. Employment Division v. Smith (1990).

Today we have a patchwork of rules. When the federal government is involved, legislation called the Religious Freedom Restoration Act grants us the right to seek appropriate accommodation when our religious practices conflict with government policy. About half the states have similar rules, and a similar rule protects prisoners like the Muslim prisoner who recently won the right to wear a half-inch beard in accordance with Islamic law, by a 9-0 vote in the Supreme Court. Holt v. Hobbs (2015).

The range of claims has been as diverse as the religious demography of the country. A small Brazilian sect won the right to use a hallucinogenic drug in worship ceremonies; Amish farmers have won exceptions from traffic rules; Muslim soldiers have been given special accommodation when fasting for Ramadan; Orthodox Jewish boys won the right to wear their skullcaps when playing high school basketball; a Jehovahs Witness won the right to unemployment compensation after he quit rather than working to produce tank turrets; a Mormon acting student won the right to refuse roles involving nudity or profanity; and in the most controversial recent case, a family-owned business with religious objections to paying for abortion-inducing drugs persuaded the Supreme Court that the government should make those contraceptives available without forcing them to be involved.

In all these cases, courts or agencies came to the conclusion that religious exercise could be accommodated with little or no harm to the public interest or to others. As Justice Sandra Day OConnor (joined by liberal lions Brennan, Marshall, and Blackmun) wrote: courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests. Employment Division v. Smith (1989) (concurring opinion).

At a time when the Supreme Courts same-sex marriage decision has allowed many millions of Americans to live their lives in accordance with their own identity, it would be tragic if we turned our backs on the right to live in accordance with our religious conviction, which is also part of who we are. A robust protection for free exercise of religion is not only part of the American tradition, it is vital to our protection for diversity and freedom.

Freedom of Speech and the Press

Congress shall make no law . . . abridging the freedom of speech, or of the press. What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says Congress, the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted speech and press broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its contentthat is, when the government targets the speakers messagegenerally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information the people should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

The rest is here:
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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.

The Newseum Institutes First Amendment Center, with offices at the Newseum in Washington, D.C. and at the John Seigenthaler Center, on the Vanderbilt University campus, in Nashville, Tenn., serves as a forum for the study and exploration of free-expression issues through education, information and entertainment.

Founded by John Seigenthaler on Dec. 15, 1991, the 200th anniversary of the ratification of the Bill of Rights to the U.S. Constitution, the Center provides education and information to the public and groups, including First Amendment scholars and experts, educators, government policy makers, legal experts and students. The Center is nonpartisan and does not lobby, litigate or provide legal advice. It has become one of the most authoritative sources of news, information and commentary in the nation on First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues.

For older articles and commentary, please visit the First Amendment Centers archival site.

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The First Amendment to the U.S. Constitution the cornerstone of American democracy is the focus of the Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition.

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FREEDOM OF EXPRESSION–SPEECH AND PRESS

Adoption and the Common Law Background

Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: ”The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”1 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: ”The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.”2 In this form it went to the Senate, which rewrote it to read: ”That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.”3 Subsequently, the religion clauses and these clauses were combined by the Senate.4 The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate.5 In the course of debate, Madison warned against the dangers which would arise ”from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.”6 That the ”simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. ”The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.”7

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment,8 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act9 and the use by the Adams Administration of the Act to prosecute its political opponents,10 something of a libertarian theory of freedom of speech and press,11 which, however much the Jeffersonians may have departed from it upon assuming power,12 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I.13 Thus, in 1907, Justice Holmes could observe that even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, ”still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . . . . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.”14 But as Justice Holmes also observed, ”[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.”15

But in Schenck v. United States,16 the first of the post-World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as prior restraint. ”It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Justice Holmes along with Justice Brandeis soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech which offered no threat of danger to organized institutions.17 But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the States to suppress speech and press that the doctrines developed.18 At first, Holmes and Brandeis remained in dissent, but in Fiske v. Kansas,19 the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California,20 a state law was voided on grounds of its interference with free speech.21 State common law was also voided, the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law.22 Development over the years since has been uneven, but by 1964 the Court could say with unanimity: ”we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”23 And in 1969, it was said that the cases ”have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”24 This development and its myriad applications are elaborated in the following sections. The First Amendment by its terms applies only to laws enacted by Congress, and not to the actions of private persons. Supp.15 This leads to a ”state action” (or ”governmental action”) limitation similar to that applicable to the Fourteenth Amendment. Supp.16 The limitation has seldom been litigated in the First Amendment context, but there is no obvious reason why analysis should differ markedly from Fourteenth Amendment state action analysis. Both contexts require ”cautious analysis of the quality and degree of Government relationship to the particular acts in question.” Supp.17 In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that ”[t]he Constitution constrains governmental action ‘by whatever instruments or in whatever modes that action may be taken.’. . . [a]nd under whatever congressional label.”Supp.18 The relationship of the government to broadcast licensees affords other opportunities to explore the breadth of ”governmental action.”Supp.19

Footnotes

[Footnote 1] 1 Annals of Congress 434 (1789). Madison had also proposed language limiting the power of the States in a number of respects, including a guarantee of freedom of the press, Id. at 435. Although passed by the House, the amendment was defeated by the Senate, supra, p.957.

[Footnote 2] Id. at 731 (August 15, 1789).

[Footnote 3] The Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971).

[Footnote 4] Id. at 1153.

[Footnote 5] The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There are no records of debates in the States on ratification.

[Footnote 6] Id. at 738.

[Footnote 7] 4 W. Blackstone’s Commentaries on the Laws of England 151-52 (T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the Constitution of the United States 1874-86 (Boston: 1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

[Footnote 8] It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of ”[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant, James Madison–Father of the Constitution 1787-1800, 416-20 (1950). ”If we advert to the nature of republican government,” Madison told the House, ”we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Congress 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: ”A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: ”The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers, supra, at 367.

[Footnote 9] The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who would ”write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith, Freedom’s Fetters–The Alien and Sedition Laws and American Civil Liberties (1956).

[Footnote 10] Id. at 159 et seq.

[Footnote 11] L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History, ch. 6 (Cambridge, 1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence of a Free Press (1985), a revised and enlarged edition of Legacy of Suppression, in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts.

[Footnote 12] L. Levy, Jefferson and Civil Liberties–The Darker Side (Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: ”The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).

[Footnote 13] New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ”a national awareness of the central meaning of the First Amendment,” id. at 273, which is that the ”right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275. This ”central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. ”Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).

[Footnote 14] Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis original). Justice Frankfurter had similar views in 1951: ”The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521-522, 524 (1951) (concurring opinion). The internal quotation is from Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

[Footnote 15] Patterson v. Colorado, 205 U.S. 454, 461 (1907).

[Footnote 16] 249 U.S. 47, 51-52 (1919) (citations omitted).

[Footnote 17] Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920).

[Footnote 18] Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles.

[Footnote 19] 274 U.S. 380 (1927).

[Footnote 20] 283 U.S. 359 (1931). By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United States v. Robel, 389 U.S. 258 (1967).

[Footnote 21] And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).

[Footnote 22] Bridges v. California, 314 U.S. 252, 263-68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

[Footnote 23] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[Footnote 24] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

[Footnote 15 (1996 Supplement)] Through interpretation of the Fourteenth Amendment, the prohibition extends to the States as well. See discussion on incorporation, main text, pp. 957-64.

[Footnote 16 (1996 Supplement)] See discussion on state action, main text, pp.1786-1802.

[Footnote 17 (1996 Supplement)] CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973) (opinion of Chief Justice Burger).

[Footnote 18 (1996 Supplement)] Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961, 971 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346-47 (1880)). The Court refused to be bound by the statement in Amtrak’s authorizing statute that the corporation is ”not . . . an agency or establishment of the United States Government.” This assertion can be effective ”only for purposes of matters that are within Congress’ control,” the Court explained. ”It is not for Congress to make the final determination of Amtrak’s status as a governmental entity for purposes of determining the constitutional rights of citizens affected by its actions.” 115 S. Ct. at 971.

[Footnote 19 (1996 Supplement)] In CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973), the Court held that a broadcast licensee could refuse to carry a paid editorial advertisement. Chief Justice Burger, joined only by Justices Stewart and Rehnquist in that portion of his opinion, reasoned that a licensee’s refusal to accept such an ad did not constitute ”governmental action” for purposes of the First Amendment. ”The First Amendment does not reach acts of private parties in every instance where the Congress or the [Federal Communications] Commission has merely permitted or failed to prohibit such acts.” Id. at 119.

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