Ch. 13 Constitutional Freedoms

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Ch. 13 Constitutional Freedoms
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Acts

• Sedition Act of 1798- crime to write, utter, or
  publish any false, scandalous, and malicious
  writing to defame the government or public
  officials
• Espionage and Sedition Acts 1917-1918
• Smith Act 1940- illegal to overthrow the
  government

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Cultural Conflicts

• Ethnic, religious, and cultural differences
  continue to grow
• Jews offended by a Nativity scene, a group of
  figures arranged to represent the birth of Jesus
  Christ
• All English
• Boy scouts no homosexuals- 2000 decision based
  on free association (which allows a private
  organization to exclude whomever it wishes).

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Civil liberties

• Protection of Bill of Rights, due process clause
  and the 14th Amendment

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14th Amendment (1868)

• Due Process clause no state shall deprive any
  person of life, liberty, or property without due
  process of law
• this principle gives individuals a varying
  ability to enforce their rights against alleged
  violations by governments and their agents, but
  normally not against other private citizens.
• Equal protection clause no state shall deny to
  any person within its jurisdiction the equal
  protection of the laws

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First Amendment

• Freedom of Expression (Congress shall make no
  lawabridging the freedom of speech, or of the
  press, or the right of people peaceably to
  assemble, and to petition the government for a
  redress of grievances)

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• Freedom of religion (Congress shall make no law
  respecting an establishment of religion or
  abridging the free exercise thereof)

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Church and State
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What does the free exercise clause of the 1st
amendment refer to?
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Free Exercise clause

• Clearer of the two clauses
• Prohibits government from unduly interfering with
  the free exercise of religion. The meaning of
  these clauses may seem clear, but their
  interpretation has led to a continuing debate in
  American politics.
• Limitations-for example are - polygamy, blood
  transfusion, vaccinations, and child marriage.

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Free Exercise Clause-1st Amendment forbids laws
prohibiting the free exercise of Religion

• Reynolds v. United States-George Reynolds a
  Mormon who lived in Utah, had two wives and was
  convicted of polygamy. He appealed to the U.S.
  Supreme Court.The case established that people
  are not free to worship in ways that violate laws
  protecting the health, safety, or morals of the
  community.
• Oregon v. Smith-The Court denied unemployment
  benefits to two counselors fired for using drugs
  as part of a religious ceremony. But as Native
  Americans and members of the Native American
  Church, they used peyote as part of their
  traditional worship service. Peyote is a mild
  hallucinogenic drug derived from mescaline
  cactus. With the majority opinion written by
  Justice Scalia, the Supreme Court ruled 6-3 in
  1990 that the Oregon law was constitutional and
  that, therefore, the denial of unemployment
  benefits was permissible. Of particular
  importance was the fact that the Oregon law was
  not directed at the Native Americans' religious
  practice specifically thus, it was deemed
  constitutional when applied to all citizens.

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The Flag Salute Cases

• Flag Salute Cases- Minersville School District v.
  Gobitis(1940)-Concerns whether children could be
  forced to salute the American flag. Lillian and
  William Gobitis were expelled for refusing to
  salute the flag. They were Jehovahs Witnesses,
  they believed saluting the flag violated the
  Christian commandment against bowing down to any
  graven image.The Court upheld school regulation.
  The flag was a patriotic symbol, the Court ruled,
  and requiring the salute did not infringe on
  religious freedoms.
• West Virginia State Board of Education v.
  Barnette(1943)-The Court overruled the Gobitis
  decision and held such laws to be an
  unconstitutional interference with the free
  exercise of religion. Patriotism could be
  achieved w/o forcing people to violate their
  religious beliefs.

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What is the Establishment Clause?
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Establishment Clause
separation of church and state

• Government involvement in religious activities is
  constitutional if it meets the following tests
• Secular purpose-Primary effect neither advances
  nor inhibits religion
• No excessive government entanglement with
  religion
• In 1801, Baptists in Connecticut-a state where
  the Congregational Church was the official
  church-wrote to T. Jefferson asking his views
  about religious liberty. Jefferson wrote back
  strongly supporting the First Amendment. He
  stated that by passing the First Amendment,
  Americans had Declared that their legislature
  should make no law respecting an establishment
  of religion or prohibiting the free exercise
  there of, thus building a wall of separation
  between Church and State.

Thomas Jefferson
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Cases

• 1947- Everson v. Board Education-involved a
  challenge to a New Jersey law allowing the state
  to pay for busing students to parochial schools.
  The court ruled that the New Jersey law was
  constitutional. The court determined that the
  law benefited students rather than aided a
  religion directly.
• 1947- Unconstitutional for public school to have
  prayer in school
• 1992- Unconstitutional for public school to have
  rabbi or pastor pray at graduation
• 2000 Santa Fe isd. V. Doe- The Supreme Court
  ruled that public school districts cannot let
  students lead stadium crowds in prayer before
  football games.

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Question Does the Santa Fe Independent School
District's policy permitting student-led,
student-initiated prayer at football games
violate the Establishment Clause of the First
Amendment?

• Conclusion Yes. In a 6-3 opinion delivered by
  Justice John Paul Stevens, the Court held that
  the District's policy permitting student-led,
  student-initiated prayer at football games
  violates the Establishment Clause. The Court
  concluded that the football game prayers were
  public speech authorized by a government policy
  and taking place on government property at
  government-sponsored school-related events and
  that the District's policy involved both
  perceived and actual government endorsement of
  the delivery of prayer at important school
  events. Such speech is not properly characterized
  as "private," wrote Justice Stevens for the
  majority.

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• Westside Community Schools v. Mergens(1990) the
  Court ruled- Although a school may not itself
  lead or direct a religious club, a school that
  permits a student-initiated and student-led
  religious club to meet after school, just as it
  permits any other student group to do, does not
  convey the message of state approval or
  endorsement of that particular religion. (meet at
  the pole)
• Teaching the Theory of Evolution- In Epperson v.
  Arkansas(1968) The justices voided an Arkansas
  law that banned teaching evolution in public
  schools. The court ruled that the state has no
  legitimate interest in protecting any or all
  religions from views distasteful to them.

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Question Was Westside's prohibition against the
formation of a Christian club consistent with the
Establishment Clause, thereby rendering the Equal
Access Act unconstitutional?

• Conclusion No. In distinguishing between
  "curriculum" and "noncurriculum student groups,"
  the Court held that since Westside permitted
  other noncurricular clubs, it was prohibited
  under the Equal Access Act from denying equal
  access to any after-school club based on the
  content of its speech. The proposed Christian
  club would be a noncurriculum group since no
  other course required students to become its
  members, its subject matter would not actually be
  taught in classes, it did not concern the
  school's cumulative body of courses, and its
  members would not receive academic credit for
  their participation. The Court added that the
  Equal Access Act was constitutional because it
  served an overriding secular purpose by
  prohibiting discrimination on the basis of
  philosophical, political, or other types of
  speech. As such, the Act protected the Christian
  club's formation even if its members engaged in
  religious discussions.

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• Edwards v. Aguillard(1987) -the Supreme Court
  struck down state legislatures that required
  teaching the Bibles account of creation with
  evolution as an alternative. (it endorsed a
  particular religion doctrine so it violates the
  establishment clause)
• Not all establishment clause issues concern
  education- Lynch v. Donnelly(1984)-The court
  allowed the city of Pawtucket, RI, to display a
  Nativity scene with secular items such as
  Christmas trees and a sleigh and reindeer. In
  1989 the Court ruled that a publicly funded
  Nativity scene by itself violated the
  Constitution.

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• Other related items
• Released time religious instruction only
• Pay for textbooks, bus, buildings for both
  parochial and private schools but not for salary,
  reimburse for tuition, counseling, or creationism
  books(cant be used for religious purpose)
• Recent ruling- vouchers given in Ohio to attend
  private or religious school
• Since 1789- House Senate opens each session
  with a prayer
• Public schools cannot have a chaplain but armed
  services can.

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• Dollar bill- In God we trust

In the decades following the Civil War, In God
We Trust appeared on most coins. And since 1938,
the motto has appeared on all American coinage.
The phrase, which is the nations official motto
as well, has been caught in a broader debate over
just how high the wall separating church and
state should stand.Most courts view the motto
and the pledge as ceremonial deism, a legal
term for religious statements that are deemed to
have lost their fundamental religious character
due to their longtime, customary use.The
Declaration of Independence, for instance, makes
reference to God on more than one occasion. And
the same Congress that in 1789 passed the First
Amendment prohibition on the establishment of
religion also started each day with a prayer, as
does the current Congress.
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What is speech?
To answer such questions the Supreme Court has
distinguished two general categories of speech
that the 1st Amendment protects Pure speech-The
verbal expression of thought and opinion before
an audience that has chosen to listen. Symbolic
speech-involves using actions and symbols, in
addition to or instead of words, to express
opinions. Since the rights of free speech must be
balanced against the need to protect society,
some restraints on speech exist. Cannot claim
protection for an otherwise illegal act on the
grounds that it conveys a political message
(example burning a draft card) However, statutes
cannot make certain types of symbolic speech
illegal e.g., flag burning is protected speech.
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Regulating Speech-Congress and state
legislatures, for example, have outlawed
seditious speech-any speech urging resistance to
lawful authority or advocating the overthrow of
the government Other Speech Not
Protected-Defamatory speech and fighting words
fall outside of the 1st Amendment.
false advertising
obscenity
symbolic speech
libel
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Schenck v. U.S.

• Charles T. Schenck-the general secretary of the
  Socialist Party was convicted of printing and
  distributing leaflets that urged draftees to
  obstruct the war effort during WWI
• Violating Espionage Act-Willfully utter, print,
  write, or publish any disloyal, profane,
  scurrilous or abusive language
• Justice Oliver Wendell Holmes clear and
  present danger
• first determined the meaning of the freedom of
  speech protection of the First Amendment to the
  Constitution of the United States. In a unanimous
  decision, the Court ruled that there are certain
  limits to the First Amendments guarantees of
  this freedom.

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Other cases

• Clarence Brandenburg (leader of Ku Klux Klan in
  Ohio)v. Ohio He refused to stop a rally/cross
  burning. The Supreme Court held that laws that
  punish people for advocating social change
  through violence violate the 1st amendment. The
  Court than reversed the conviction of a member of
  the Ku Klux Klan for holding a rally and making
  strong derogatory statements against African
  Americans and Jews.
• 1977- Nazis in Skokie Illinois right to speak
• 1992- Supreme Court overturned Minnesota statute-
  crime to display symbols or objects- swastika

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• Defamatory Speech
• Libel a written false statement defaming another
• Slander a defamatory oral statement
• Public figures must also show the words were
  written with actual malicewith reckless
  disregard for the truth or with knowledge that
  the words were false
• The Court has limited the right of public
  officials, however, to recover damages for
  defamation.
• The Court allowed some defamatory speech about
  public officials for fear that criticism of
  government, a basic constitutional right, might
  be silenced. In later years this has extended to
  protection of statements about public
  figures-political candidates, entertainers and
  athletes, and even private citizens who become
  newsworthy.

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Obscenity

• Not protected by 1st amendment
• Miller v. California(1973)-Established the test
  for determining if a book, movie, television
  programs is obscene and thus unprotected by the
  1st Amendment.
• A work is obscene if
• 1) the avg. person would find that the work taken
  as a whole appeals to prurient interests 2)the
  work defines or depicts sexual conduct in a
  patently offensive way as determined by state
  law and
• 3) the work taken as a whole lacks serious
  literary, artistic, political, or scientific
  value.

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Prior Restraint
Government censorship of information before it is
published or broadcast
rules telling a newspaper what it can publish
Freedom from censorship
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Freedom of the Press

• Prior Restraint Forbidden-Censorship of
  information before it is published-a common way
  for government to control information and limit
  freedom.(Can be restrained in the U.S. if it
  involves national security)
• New York Times Co. v. United States-widely known
  as the Pentagon Papers case. In 1971 a Pentagon
  employee leaked to the NY Times a secret gov.
  report outlining the U.S. involvement in Vietnam.
  (Some documents showed proof that gov. officials
  had lied to the American people) The gov. tried
  to stop further publication of the papers arguing
  that national security would be endangered. The
  court ruled that stopping publication would be
  prior restraint. One Justice William O. Douglas,
  noted that the dominant purpose of the 1st
  Amendment was to prohibit the widespread practice
  of governmental suppression of embarrassing
  information

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Freedom of Assembly

• The right of the people peaceably to assemble,
  and to petition the Government for a redress of
  grievances

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Tree Sitter
For 738 days forest activist Julia Butterfly Hill
lived 180 feet high in the canopy of an ancient
redwood tree to help make the world aware of the
plight of ancient forests. Julia, with great help
from steelworkers and environmentalists,
successfully negotiated to permanently protect
the tree and a nearly three-acre buffer zone. She
came down to a world that recognized her as a
heroine and powerful voice for the
environment. Julia's occupation of the over
1,000-year-old tree known as Luna is only a part
of the actions taken over many many years to save
Headwaters Forest and the 3 of the ancient
redwood ecosystem that remains.

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Protecting Freedom of Assembly

• Assembly on Public Property-Freedom of assembly
  includes the right to parade and demonstrate in
  public. It is possible they could interfere with
  the rights of others who use the same
  facilities(parks, streets, etc.) For safety
  reasons, parades and demonstrations are subject
  to government regulations than exercises of pure
  speech and other kinds of assembly. Permits are
  usually required for groups who want to parade or
  demonstrate.
• Other public facilities such as airports,
  libraries, courthouses, schools, and swimming
  pools also may be used for public demonstrations.

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• The right to assemble does not allow a group to
  convert private property to its own use, even if
  the property is open to the public- Lloyd
  Corporation v. Tanner(1972) The Court ruled
  that a group protesting the Vietnam War did not
  have the right to gather in a shopping mall.
• Public Assembly and Disorder-
• The Nazis in Skokie- Skokie officials, citizens
  argued that the Nazis should not be allowed to
  march. To prevent the march, the city required
  the Nazis to post a 300,000 bond to get a
  permit. The Nazis claimed this high bond
  interfered with their freedoms. A federal
  appeals court ruled that no community could use
  parade permits to interfere with free speech and
  assembly.

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• This case illustrates problems with what is
  called the hecklers veto-The public vetoes the
  free speech and assembly rights of unpopular
  groups by claiming demonstrations will result in
  violence. Such claims may be effective because
  gov. officials will almost always find it easier
  to curb unpopular demonstrations than to take
  measures to prevent violence.
• This dilemma leads to two related questions
• Does the Constitution require the police to
  protect unpopular groups when they incite
  violence?
• May the police order demonstrators to disperse in
  the interest of pubic safety?

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• Feiner v. New York
• Feiner urged African Americans to fight for
  civil rights. When the crowd he drew became
  hostile he was arrested for disturbing the
  police. The Court upheld Feiners conviction,
  ruling that the police had not acted to suppress
  speech but to preserve public order.
• Gregory v. City of Chicago
• The Court has overturned the convictions of
  people whose only offense has been to demonstrate
  peacefully in support of unpopular causes.
• Gregory, and African American activist, led a
  group of marchers from city hall in downtown
  Chicago to the mayors home. A crowd of 1,000 or
  more hostile all white onlookers gathered. They
  began to heckle and throw rocks and eggs at the
  marchers. The police ordered the parade to
  disperse. Gregory refused and the group was
  arrested for disorderly conduct. The Court
  overturned these convictions. The Court ruled
  that the demonstrators had been peaceful and had
  done no more than exercise their right of
  assembly and petition. Neighborhood residents,
  not the marchers had caused the disorder.

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Examples of people protesting