American Government

Bill Of Rights

Arwan Wisnu P. C0306001

Muhammad Rizqi A. C0306035
Tri Wulandari S. C0306053
Al Qadrine Poetry Galih S. C0305009
Damar Adi Sasongko C0305020

ENGLISH DEPARTMENT
FACULTY OF LETTERS AND FINE ARTS
SEBELAS MARET UNIVERSITY
SURAKARTA
2009
 BILL OF RIGHTS
INTRODUCTION
In 1791, U.S. passed the first ten amendments to its Constitution. The first ten amendments are
also famous as the Bill of Rights. The passing of bill of rights actually had been tried when the
new U.S. constitution was being composed. But after a long history, the Bill of Rights was
finally passed in 1791. The passing of bill of right was to guarantee people’s unalienable right.
This paper is going to discuss about the history of the passing. Then it will discuss about rights
protected under the Constitution based on First Amendment including its application and debates
around it.

HISTORY

America is a country that fully concerned with their rights for hundreds of years.
American history cannot be separated from bills of rights. It had been started from the first
settlers from England that moved to America to find a freedom in religion. Even, Revolutionary
War, which brought America to its Independence, was caused by the right of representation and
self-determination

However, the Constitutional Convention did not find it necessary to include bill of rights
when they finished the draft of the Constitution of the United States. Hence, it made several
members of the convention were disappointed by this decision and refused to sign the document.
Afterwards, it emerged the Federalist and the Anti-Federalist. The Federalists were opposed to
adding a bill of rights. The Anti-Federalists rejected the new constitution because the lack of bill
of rights. The Anti-Federalist tries to convince the public to reject the Constitution with their
argument of the lack of a bill of rights. However, it seemed like to be rejected and also the
Federalist had more influence to the society and media. There were also some states that sent
suggestions to the Constitution to add an enumeration of certain rights for amendments. The
ratification messages of the states included many varying suggestions which could take the
attention of the Congress in its very first session.

It was very interesting and contradictive; James Madison who was so instrumental in the
creation of the Constitution drafted a bill of rights after winning a seat in the House of
Representatives. This might seem odd because Madison was one of those who advocated the
omission of the bill of rights. However as time goes by, Madison’s idea then gradually changed,
he began to think that it is necessary to include the Bill of Rights in the constitution He proposed
the draft of the bill into the House. In addition, he also used the creation of the bill as part of his
campaign. Madison tried to put forward the issue of the bill, but his efforts met some barriers
because of the House was still arguing about other tariffs and pressing issues. It made the issue
of the Bill of Right became low priority in the House’s debate. Madison finally had chance and
on June 8, 1789, he presented his draft of a bill of rights to get the discussion moving. After
debated at length, the House approved 17 articles of amendment.

2
 From June to September, both houses of Congress debated Madison's list, along with the
lists presented by the states. The Rights were listed, removed, modified, and adjusted. The
Senate took up the bill and reduced the number to 12, by combining some and rejecting others.
The House accepted the Senate's changes, voting on September 24th and 25th, 1789. Eventually,
both houses agreed on twelve articles of amendment and sent them to the states for ratification.
Two years later, in 1791, the last ten of these original twelve articles were ratified by the states
and they became a part of the Constitution. The first two articles were not accepted by enough
states. All ten of the original amendments ratified on December 15, 1791. The amendments were
added to the end of the original document, rather than inserted in the text, as Madison had
envisioned.

FREEDOM OF RELIGION
Wall of Separation
The first words of the first amendment states that “Congress shall make no law respecting an
establishment of religion”, this means that the Supreme Court created “a wall of separation”
between the church and the states, to prohibit any law or governmental action designed to give
any benefit on religion even if all sect are treated the same. The constitution simply prohibits
favoritism toward a particular religion. It does not prohibit governmental encouragement of
religious activities, even support for religious organizations.
In keeping with the constitutional separation of church and state, the U.S. Supreme Court
historically has struck down legislation that allocates public funds for private schools. In the case
Lemon v. Kurtzman (1971), the Court adopted a three-part test for any valid use of public funds
to aid private schools. The Court ruled that school-financing legislation must have a secular
purpose, it must neither advance nor inhibit religion, and it must avoid excessive governmental
entanglement with religious concerns.
Because of the establishment clause, states and of course, public schools may not introduce any
kind of devotional exercises into public schools curriculum. But the Supreme Court sometimes
said that it is not unconstitutional to have prayer in public schools, what is unconstitutional is
sponsorship or encouragement of prayer by public schools authorities.
The constitution does not prevent the study of bible or of religion in public school as part of
secular program of education and Sunday public school closing laws called “blue laws” are also
constitutional for encouraging day of rest, recreation, and family togetherness. Tax immunity for
church property and for other nonprofit institution is also constitutional.
The Supreme Court has also approved using tax funds to provide students attending elementary
and secondary church operated schools (except for those deny admission because of race or
religion) with textbooks, standardized test, lunches, transportation into and from schools,
diagnostic services and etc. but the tax funds may not be used to pay teacher salaries, to provide
equipments, to provide counseling for students, to produce teacher prepared test, to repair
facilities, or to and from field trips.

3
All Persons May Worship As They Choose
The constitution not only forbids the establishment of religion but it also forbids Congress and
the states from passing any law “prohibiting the free exercise thereof” “The court has struggled
to find neutral course between the two religion clauses, both of which are cast in absolute terms,
and either of which, if expanded to a logical extreme, would tend to clash with the other” A law
that requires persons to do something that is contrary to the teachings of their religion interfere
with their free exercise of religion . But to immunize them from the law because of their
religious conviction may be to favor religion and offend the establishment clause.
The right to hold any or no religious beliefs is one of few absolute rights. The government has no
authority to force the acceptance or to censor any faith. A state may not force a religious belief or
nor deny persons any right because of their belief or lack of them. Requiring religious oath as a
condition of public employment or as prerequisite to running for public office is unconstitutional.
Disputes involving the two religion clauses promise to become even more complicated as
governmental actions grow more pervasive and nontraditional religious groups grow in number.
These are difficult dispute to resolve, because they involve matters about which people believe
deeply.

FREEDOM OF SPEECH
Government by the people is based on every person’s right to speak in a free way, to organize in
groups, to question the decisions of the government, and to campaign openly against it. Only
through free and uncensored expression of opinion can government be kept responsive to the
electorate and political power is transferred carefully. Elections, separation of power, and
constitutional guarantees are meaningless unless all citizens have right to speak frankly and to
hear and judge for themselves the worth of what others have to say.
Even though the first amendment denies Congress the power to pass any law abridging freedom
of speech, the amendment has never been interpreted in such sweeping terms. Like almost all
right, the right to freedom of speech and of the press is limited. In discussing the constitutional
power of the government to regulate speech, it is useful to distinguish among belief, speech, and
action. Speech stands in between belief and action. It is not an absolute right, as is belief, but
neither it is as exposed to governmental restraint as is action. Speech that is obscene, libelous, or
seditious, and speech of fighting words is not entitled to constitutional protection though the
debate is still going on questioning what fits and what does not fit the categories above.
To be protected under constitution, a speech must meet some tests. In the past, speech must be
free from the following criteria:
- The bad tendency doctrine: The Constitution authorizes legislatures to forbid speech that
has bad tendency to illegal action. For example, public utterances containing abusive
racial may be banned for it may trigger violence.
- The clear and present danger doctrine: The Congress has a right to prevent speech
containing a clear and present danger that will produce harms. For example, shouting
‘Fire” in a crowd will make people panic.

4
 - The Preferred Position Interpretation: it believes that freedom of speech is not limited.
Speech can be limited only if government can show imminent and substantive evils in it.
Nowadays, speech is tested in terms of:
- Prior restraint
- Vagueness
- Overbreadth
- Least Drastic Means
- Content neutral
- Centrality of political speech
Nevertheless, it is judge who holds control on testing the constitutionality of a speech, not the
doctrines nor the other tests above.

FREEDOM OF PRESS
The life of modern days cannot be separated from the media. It becomes an important aspect of
our life. It becomes one way of communication between people. Knowing the power of the
media, Constitution, unsurprisingly speaks about freedom of press.
Freedom of press is also not an absolute right concerning whether press has unconstitutional
rights to access information from any kind of sources without violating the other’s private right.
Hence, it has become a hot debate of the Court. Press cannot access information that is
confidentiality is declared by the President because it may jeopardize the national security. Press
can only access documents that are declared as public documents. Vice versa, press also tends to
have the same privilege not to give information to government although they actually do not
have the privilege to do so. They do so because they state that if they publish where and how
they get information, it will endanger them to get more news.
Most of the states in the U.S. allow press to record or document any trial process for the sake of
publicity but this does not mean that the defendant have a right to exclude press from the trial.
When press exaggerates the publication of one’s trial, Courts may deny the right of press to
record a trial.

THE OTHER MEDIA AND OTHER MESSAGES

Freedom of speech and freedom of press relate closely to the media where they are expressed.
When the constitution was written, “the press” only referred to the existing media at that time,
for example: leaflets, newspapers, and books. However, nowadays media evolves into more
types than they were at the time constitution was written. In this part, how constitution reacts to
the development of media will be discussed.

5
The Mails
Justice Holmes stated that the use of mail is as much as important as the use of our tongues to
express our ideas. Some cases arouse around this mailing area. In 1965, Congress declared acts
passed by Congress, stating to detain foreign mails of communist propaganda and to deliver
these materials only upon the addressee’s request as unconstitutional. The same goes in laws
authorizing postal authorities to determine obscenity and to exclude such materials from the
mails, as well as prohibiting the mailing of unsolicited advertisements for contraceptives.
However, laws authorizing household censorship asking the postmaster to stop sending mail
containing sexual or erotic content are given.

Motion Pictures
Prior censorship of a film is not necessarily unconstitutional. The difficulties lie on how
government gives proof of a film obscene or not since the definition of obscenity is blurred.
Obscenity itself will be explained more elaborately at the later part of the paper. Today, prior
censorship is largely replaced by the film classification system.

Radio and Television

“Of all forms of communication, it is broadcasting that has received the most limited First
Amendment protection”. Government established Federal Communication Commission (FCC) to
regulate broadcasting. FCC grants licenses for the use of airwaves and regulates the use of it. The
FCC firstly adopted fairness doctrine requiring broadcasters to cover issues of public
significance and to reflect differing viewpoints. Congress also imposed the equal-time
requirement to the broadcasting world ensuring that all candidates for public office had equal
airtime. In 1987, the Fairness doctrine was left by FCC. The equal-time requirement is now also
put in a debate. There were many disputes concerning broadcasting area. One of them was the
right to buy an airtime. Congress stated that legally person(s) might buy airtime. This notion was
challenged by both justices and the Court. They based on the Communication Act that gives
nobody the right to buy airtime. They also argued that if one might buy airtime, radio and
television would only be monopolized with those who had much money.

Handbills, Sound Trucks, and Billboards

Written materials such as leaflets, pamphlets, and handbills are constitutionally protected for
their history to pursue liberty. However, reasonable content neutral regulation can be imposed on
them. While sound trucks emitting loud and raucous noises may be banned. Billboards are also
constitutionally protected, moreover for the noncommercial ones.

Picketing
Picketing is controlled because it is a mixture of a protected and unprotected element speech and
conduct.

Commercial Speech
Commercial speech – advertising speech – is constitutionally protected. However, it is not
allowed to advertise illegal goods as well as false and misleading contents. When it comes in the
6
political area, prohibiting false and misleading political news are unconstitutional since there is
nor right and wrong in politics. For example, Puerto Rico government banned the advertisement
of casinos in Puerto Rico but allowed it outside their area. It can stimulate foreign visitors and
discourage domestic visitors.

Symbolic Speech
Conduct can be labeled as speech when it expresses an idea and therefore be protected by
constitution. However, symbolic speech can still be prohibited or regulated under following
conditions:

if the conduct itself may be regulated

if the regulation is content neutral

if the regulation is narrowly drawn to further a substantial governmental interest

if this interest is unrelated to the suppression of free speech

if ample alternative channels for communication of information are left open
Students may wear black armbands to protest Vietnam War. School authorities, government,
cannot prohibit it.

LIBEL, OBSCENITY, AND FIGHTING WORDS

As we have discussed earlier, there are some speeches that are not protected under constitutions.
What about libel, obscenity, and fighting words? Constitution does not deal with such matters,
but still debates around them still occur.

Libel
At the old days, newspaper publishers and editors feared that their news would be sued under
libel charges by government or individuals. However, today, the circumstance has changed that it
is hard to win a libel suit against newspaper. Public officials or public figures can still sue
newspaper publisher or editor. But to win it, rigid proof of what is written is not based on facts
and only written based on malice is needed. Individuals may also sue if they have the same proof
conditions.

Obscenity
Obscenity has been an ongoing debate in U.S. Conservative views obscenity undermine moral
standard, so as the religious ones. Some feminists view it as a basis of discrimination. Obscene
publication is not protected by Constitution. However, it is so hard to define a work as obscene
or not. To call a work as obscene, it must meet these three conditions, as proposed by Miller v.
California case:

7
(1) The average person, applying contemporary standards of the particular community,
would find that the work, taken as a whole, appeals to prurient interest in sex
(2) It depicts or describes in a patently offensive way sexual conduct specifically defined by
applicable law or authoritatively construed
(3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Hardcore-sexual conduct is hereby not protected under constitution. While soft-core sexual
conduct, including “dirty books” and X-Rated movies, is protected by Constitution since their
very production is intended merely to entertain, not to arise sexual desire of the viewer. Nude
dancing is also protected by Constitution since it is under the umbrella of entertainment.

Pornography
Pornography was firstly coined with obscenity. However, pornography is now narrowed by the
definition provided by the feminists stating pornographic materials depict sexually explicit
pictures or words that depict women as sexual objects who enjoy pain and humiliation or that
present abuse of women as sexual stimulus for men. With this definition, pornography is now
narrowed to women. Hence, feminists try to usher passing of the antipornography law.
Indianapolis has ever imposed the antipornography law, but the law was declared
unconstitutional by the Supreme Court without opinion. Action against pornography is done not
only through formal ways, by passing laws, but also through informal ways in such forms as
threats by feminists and police to retailer selling pornographic materials. What the Constitution
forbids is the use of coercive powers of government to keep adults from seeing or reading what
they wish to see or read.

Fighting Words
Fighting words refer to speech that tends to trigger violence. Hence, persons uttering fighting
words might be punished under Constitution. The use of four-letter word in a t-shirt is
permissible as long as it is not addressed to particular person that may cause violence.

FREEDOM OF ASSEMBLY
In the Bill of Rights, there is a regulation talking about human right to assemble peaceably, to
petition the government, and to associate.
“The right to assemble peaceably applies not only to meetings in private homes and meeting
halls, but to gatherings held in public streets and parks, which since…. Time out of mind have
been used for purposes of assembly…. and discussing public questions.”
However, there were always classic problems regarding these rights, as the case of Frank
Collins, Iranians follower, Martin Luther King Jr.’s demonstrations had invited the judicial
authorities and also police to secure their demonstrations. This meant that the rights were not
absolutely given without any consideration, in case if the demonstrations could incite people in
streets battle or violence, police have rights to disperse it.

8
The Supreme Court has divided public properties into three categories:
- Public forums
- Limited public forums
- Nonpublic forums
Public places are associated with free exercises and expressive activities like streets, sidewalks,
and parks. The demonstrator can use them without restrictive laws unless they are viewpoint
neutral and compelling with government interest. Limited public forums open for assembly and
speech, but they are opened for limited purposes with limited amount of time, and even limited
class of speaker. In the public facilities like school, hospital, airport, etc, persons can assemble as
long as within the normal bounds of conduct and those activities are appropriate with the
purposed served by the forum and are viewpoint neutral. Meanwhile, for the non-public places or
private properties, people cannot function it as the places to assemble in the purpose of
expressing idea for their own uses. Either with private properties with a larger scale or size like
private owned mall, the place cannot be used as places to handout political leaflets. However, the
states and cities have rights to obligate the owner to permit their use for peaceful political
purposes as long as they do not interfere with the primary commercial purposes of the owner.

FREEDOM OF PETITION
The rights to petition the government to redress or grievance is guaranteed by the constitution.
This right to petition in here does not mean the right to commit libel with impunity. The petition,
which contains with kind of libelous words and falsehoods, will be held accountable in damage
suits.

FREEDOM OF ASSOCIATION
The freedom of association was not mentioned clearly in the Constitution, but it is not a question
anymore considering that the right to associate relates to the freedom of speech. The right to
associate is the important element of liberty, although this right often evokes a conflict with
government’s protection to the people against the discrimination.
There were also many conflicts about the right to associate with the regulation of government
forbidding the federal employee to actively campaign or take leadership roles in political parties
(Hatch Acts). This was meant to protect the federal employees from coercion of political parties
power, and also in order to make a neutral civil service.
Another case which was against this right was the regulations of government in limiting the
amount of money which can be spend by the political parties in campaigning and extending their
political views. In results, these debates lead to the decision of limitation of to the presidential
candidates coordinated groups which has been given federal funds, and not to independent
groups or committees of the candidates.

Subversive conduct and seditious speech

The regulation of the subversive conducts was aimed to the infractions such as violence,
espionage, sabotage, or treason. Constitution in this case created a specific definition of traitors
considering that there are large scales in different cases in defining a traitor. Therefore the
9
definition of treason in constitution means that the treasons consist only of the overt acts of
giving aid and comfort to the enemies of the United States or levying war against it.
Some other subversive conducts are:

Engage in espionage and sabotage

Crossing interstate boundaries or use the mails or interstate facilities to bomb buildings
and schools.

Crossing state lines or use interstate facilities with the intent to incite a riot.
It is one thing to punish persons for what they do; it is quite another to punish them for what they
say. The definition of seditious speech in here means the speech that intend to incite the
disaffection against the government, raise discontent among the people, promote feelings of ill
will between different classes. However, the controversy was appealed in the meaning itself,
because for instance, if someone charged the government’s ministers with being corrupt, and in
fact they were corrupt, such a charge would more likely cause discontent among the people than
if it were false. Then in the 1798, seven years after the first amendment, Congress passed the first
national sedition law. The sedition act made it a crime to utter false, scandalous, or malicious
statements intended to bring the government or any of its officers into disrepute. By the
establishment of this act, many people who had radical ideas found themselves into trouble; even
some of them went to jail. But then in the 1940, the Smith act was expressed and that was the
first peacetime sedition law. The smith act forbids persons to advocate overthrow of the
government with the intent to bring it about: to distribute, with disloyal intent, matter teaching or
advising the overthrow of government by violence and to organize knowingly or to help organize
any group having such purposes.

CONCLUSION
Human rights have always been important matters in U.S. As what has stated before, all great
things in U.S. happen to defend and justify human right. For example revolutionary war, black
movement, women movement, and other movements that base their action on defending their
human right. The First Amendment guaranteeing people’s right has been passed in 1791, but the
practice is not always as easy as it is said. The clearest example is that black people gain their
equality in 1865, 74 years after the first amendment. With the Bill of Rights, the citizen of U.S.
also cannot have an absolute freedom of their human rights. Rather, their freedom is authorized
by government. Until now, even U.S. government still learns how to treat their people without
violating their right. So as U.S. citizens learn act without violating Constitution.

Sources:
Government by the people
http://www.usconstitution.net

10