Freedom of Speech

The right to free speech is guaranteed by the First Amendment to the Constitution, which states that "Congress shall make no law abridging the freedom of speech." This does not mean that the government is forbidden from making any laws that affect any speech. There are some kinds of speech, like obscenity, that the Supreme Court has allowed the government to regulate. Some of the other types of speech that the Supreme Court has permitted the government to regulate are commercial speech (television, print and radio advertising) and fighting words. These types of speech are considered to be unprotected by the First Amendment.

The government cannot interfere with speech that is protected by the First Amendment. Generally, the Supreme Court has stated that the government cannot make laws that in any way interfere with the ideas that are expressed in speech or the content of the speech. There are times, however, when the government makes a law that is not meant to but does interfere with speech. For example, your town council passes an ordinance stating that no banners may be hung on the outside of buildings. The council passed this law because it felt that such decorations on the outside of buildings are unsightly. The council was obviously not trying to prohibit anyone from expressing ideas, but a law prohibiting anyone from hanging banners on a building (including their own home) has the effect of interfering with speech. What if you wanted to hang a banner on your home that said "Save the Rainforest" or "Elect Smith to Town Council"? The ordinance prevents this and therefore interferes with the right to free speech. In this kind of situation, the Supreme Court has developed tests or standards which will be applied to the law in order to determine if the law is unconstitutional. Normally, the court will look at: the reasons why the law was passed (what the government is trying to accomplish with the law); how much of an effect the law has on the right to free speech; and possible alternatives to the law that would be less of an interference with free speech.

Essentially, the government must not pass any law that is meant to directly regulate speech protected by the First Amendment or that has the effect of regulating speech protected by the First Amendment. However, the government is free to regulate speech that the Supreme Court has labeled "unprotected speech" (obscenity, commercial speech, fighting words).

Freedom of Religion

In addition to freedom of speech, the First Amendment guarantees the freedom of religion. This means that an individual is free to exercise his or her religious beliefs without substantial interference from the government. It does not matter which religion a person belongs to or even whether a person belongs to any organized religion. If a person has a genuine religious belief, the exercise of that belief will be protected by the First Amendment.

Normally, a person's right to freedom of religion is violated by a law if the government does not have a sufficient nonreligious or secular reason for passing the law and/or the government could have enacted a law that achieves the same secular purpose as the original law without interfering as much with the free exercise of religion.

Equal Protection of the Law

The Fourteenth Amendment to the Constitution guarantees equal protection of the law. Generally, this means that the government cannot pass laws that arbitrarily discriminate against people because they belong to a particular group or class of people without sufficient justification. The amount of justification that the government must give for a discriminatory law depends upon what group of people the government has singled out.

Generally, the Fourteenth Amendment is used to protect against racial and gender discrimination by the government. Whether or not the right to equal protection of the laws is violated by a law depends on the purpose of the law, the group of people who have been singled out or discriminated against by the law, and whether or not the government could have found another way to achieve the purpose of the law without differentiating between groups of people. It is very difficult for the government to justify a law that is racially discriminatory, and normally such a law will be a violation of the Fourteenth Amendment. Laws that single out people on the basis of sex are also difficult to justify, but not as difficult as a racially discriminatory law. Laws that single out people because they belong to other groups are generally much easier to justify and will often not violate the Fourteenth Amendment. Examples of other groups that the government can single out are adults and children or aliens and citizens.

Because the Fourteenth Amendment does not always protect certain classes of people to the extent that may be necessary or acceptable to American society, Congress has passed laws that require equal treatment for certain people by both the government and private institutions. The most notable of these statutes are the Americans with Disabilities Act and the Age Discrimination in Employment Act. These acts protect people from being discriminated against in particular situations because of their age or because they suffer from a disability.

There are also groups of people who have no protection from discrimination anywhere in either the Fourteenth Amendment or in federal law. The most notable of these groups is homosexuals. The Fourteenth Amendment does not guarantee equal protection of the laws for people based on their sexual orientation, and there has been no law passed by Congress that prohibits discrimination against individuals because of their sexual orientation.

Due Process of the Law

The Fourteenth and Fifth Amendments guarantee that individuals will be provided with due process of the law whenever they are being deprived of an interest in property or liberty by the government. Property and liberty interests are defined by the courts and include a wide range of interests. Property interests can include proprietary interests and entitlements, such as government benefits. Liberty interests can include: freedom from bodily restraint; the right to enter into contracts; the right to engage in the common occupations of life; the right to acquire knowledge; the right to marry; the right to establish a home; and the right to raise children (This list is taken from a Supreme Court ruling in Meyer v. Nebraska decided in 1923).

When the government is depriving an individual of a property or liberty interest, it must follow procedures that are fair to that individual. The type of procedure that must be used and what is considered fair depend upon each particular situation. Whenever someone challenges a governmental deprivation of a property or liberty interest, a court will look at the facts surrounding that particular situation and determine whether or not the procedure used by the government is fair enough or whether that person's right to due process has been violated.