AP U.S. Government and Politics · Lesson 1

Incorporation and the First Amendment

Know Know it

Civil liberties protect individuals from the government. Most are in the Bill of Rights, the first ten amendments, ratified in 1791. At first these limits bound only the national government: in Barron v. Baltimore (1833), the Court said so directly.

The Fourteenth Amendment (1868) bars any state from taking life, liberty or property without due process of law. Over the twentieth century the Court used this due process clause to apply most Bill of Rights protections to the states, one right at a time. This is selective incorporation. Gitlow v. New York (1925) treated freedom of speech as binding on states, and McDonald v. Chicago (2010) did the same for the Second Amendment.

The First Amendment protects religion in two ways. The establishment clause bars government from sponsoring religion; in Engel v. Vitale (1962), a state-written prayer in public schools was struck down. The free exercise clause protects practicing a faith; in Wisconsin v. Yoder (1972), Amish parents won the right to end their children's schooling after eighth grade.

Free speech is broad but not absolute. Schenck v. United States (1919) upheld a conviction for anti-draft leaflets, using the clear and present danger test. Later, in Brandenburg v. Ohio (1969), the Court protected advocacy unless it is aimed at and likely to cause imminent lawless action. Symbolic speech counts too: Tinker v. Des Moines (1969) protected students' protest armbands. For the press, New York Times Co. v. United States (1971) shows the strong rule against prior restraint.

First Amendment and incorporation cases to know
CaseYearWhat the Court decided
Engel v. Vitale1962A prayer written by state officials and led in public schools violates the establishment clause, even if students may stay silent
Wisconsin v. Yoder1972The free exercise clause shields Amish parents from a law requiring school past eighth grade
Schenck v. United States1919Speech that creates a clear and present danger, such as urging draft resistance in wartime, can be punished
Tinker v. Des Moines1969Public school students keep free speech rights; their armband protest was protected because it did not substantially disrupt school
New York Times Co. v. United States1971The government did not meet its heavy burden to block newspapers from printing the Pentagon Papers

Trap Voluntary does not save school prayer

In Engel, students could stay silent or leave, and the prayer named no church. It was still unconstitutional, because the state wrote it and the public school led it. The problem is government sponsorship, not whether anyone is forced to pray.

Worked example Easy

What does the process of selective incorporation do?

  1. It lets Congress add new rights to the Bill of Rights by passing an ordinary statute
  2. It applies Bill of Rights limits to state governmentsAnswer
  3. It requires every state to write and adopt its own separate bill of rights
  4. It lets each state choose which federal rights its courts will enforce

How to solve it

  1. Recall the problem: the Bill of Rights first limited only the national government.
  2. Incorporation is how those limits came to reach the states, through the Fourteenth Amendment.

Why each choice is right or wrong

  • A. Incorrect. Congress cannot add to the Bill of Rights by statute; changing the Constitution takes an amendment.
  • B. Correct. Selective incorporation uses the Fourteenth Amendment's due process clause to make Bill of Rights protections bind the states, one right at a time.
  • C. Incorrect. Requiring states to write their own bills of rights is not incorporation, which applies the federal Bill of Rights itself.
  • D. Incorrect. States do not pick which rights to honor; once a right is incorporated, every state must respect it.

Explain Explain it

Task verbs: identify, explain

To explain a case, give its holding in one plain sentence, then link a fact in the new situation to that holding. Ask two questions about any First Amendment scenario: which clause is at stake, and has the government sponsored, punished or blocked something?

Worked example Medium

Each morning a public high school principal reads a short prayer, written by the school board, over the loudspeaker. Students who object may leave the room. Which clause and case most directly apply?

  1. The free exercise clause, as in Wisconsin v. Yoder
  2. The establishment clause, as in Engel v. VitaleAnswer
  3. The free speech clause, as in Schenck v. United States
  4. The equal protection clause, as in Brown v. Board of Education

How to solve it

  1. Ask what the government is doing: a public school is leading a prayer it wrote.
  2. Government sponsoring religion raises the establishment clause.
  3. The option to leave does not matter, as the trap above shows; Engel is the matching case.

Why each choice is right or wrong

  • A. Incorrect. Wisconsin v. Yoder protected a family's own religious practice, while here a public school is sponsoring a prayer.
  • B. Correct. A prayer written by government officials and led in a public school is state sponsorship of religion, which Engel struck down even with an option to opt out.
  • C. Incorrect. Schenck concerned punishing dangerous speech in wartime, and no one here is being punished for speaking.
  • D. Incorrect. Brown concerned racial segregation in schools, not a school leading a religious prayer.

Explain Your turn

Using Tinker v. Des Moines (1969) and Schenck v. United States (1919), explain how the Court has treated freedom of speech as protected but not unlimited.

Write it, then compare. Nothing you type here is saved or graded.

Compare with a model answer

A full answer does this

  • Says that Tinker protected students' symbolic political speech at school
  • Says that Schenck allowed government to punish some speech

Model answer

In Tinker, the Court ruled that students who wore black armbands to protest the Vietnam War were engaged in protected symbolic speech, so the school could not punish them unless the protest substantially disrupted school. In Schenck, though, the Court upheld a conviction for wartime anti-draft leaflets, saying speech that creates a clear and present danger can be punished. Together the cases show speech is strongly protected but has limits.

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