“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” From

1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” From the 1st Amendment

2. Establishment Clause and Free Exercise Clause

3. Which of the following do you think violates the 1st amendment? • A daily moment of silence in public schools • The prohibition of alcohol sales on Sundays • The teaching of creationism in public schools • A “voucher” program for private schools • A nativity scene in the U.S. Congress

4. Does the phrase, "under God," in the pledge of allegiance violate the 1st Amendment?

5. Symbolic Speech

6. Should you be allowed to burn the flag?

7. Texas v. Johnson (1989) If “there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” – From the majority opinion

8. Proposed amendment: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

9. An amendment to the Constitution barring the burning of the flag should be ratified. Agree or disagree?

10. United States v. O’Brien (1968) 1965 Amendment to the Selective Service Act prohibited burning of draft cards, a common form of protest by anti-Vietnam War activists in the 1960s.

11. United States v. O’Brien (1968) • Restriction of speech by government is OK IF. . . • “it furthers an important or substantial governmental interest” • it prohibits no more speech than is essential to further that interest. Chief Justice Earl Warren (1953-1969)

12. Other Restrictions on Freedom of Speech

13. Obscenity and Pornography • Miller v. California (1973) • The Miller test to determine whether a work can be prohibited/restricted by a government must ask: • “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by . . . law” and . . . • “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value” (SLAPS test)

14. Freedom of the Press • New York Times Company v. United States (1971) • Nixon-era case involved “top secret” documents about U.S. involvement in Vietnam (the “Pentagon Papers”) • Maintained the inappropriateness of “prior restraint” by government, even for the sake of “national security.”

15. Freedom of the Press • New York Times v. Sullivan (1964) • Revolutionized libel law in the U.S. • What is libel? • Case description: Advertisement in newspaper by Committee to Defend Martin Luther King alleged acts of racism by police commissioner Sullivan in Montgomery, Alabama.

16. Freedom of the Press • New York Times v. Sullivan (1964) • Supreme Court ruling: When public officials sue for libel, individuals must show that a publication acted with “actual malice” and “knowledge that [what it printed] was false or with reckless disregard for whether it was false or not.”

17. It is far worse to convict an innocent man than to let a guilty man go free. Agree or disagree?

18. Rights of The Accused

19. Rights in the Original Constitution • Habeas corpus • Bills of attainder • Ex post facto law

20. Due Process of Law -- Hypotheticals • Clear evidence of a person’s criminal activity is obtained without a warrant. The person is convicted of the crime and given a prison sentence. • The government develops a truth serum and forces every suspect to take it once arrested. • A poor person is unable to afford an attorney. • A black man is convicted by an all-white jury in a majority black county.

21. Due Process of Law -- Hypotheticals • Police create a roadblock and use trained dogs to look for drugs in cars. • A public hospital tests maternity patients for illegal drug use without their consent. • The police use thermal-imaging devices to detect suspicious patterns of heat emerging from private homes without a search warrant.

22. What is "due process of law"?

23. Due Process of Law • Procedural due process: procedures regarding rights of the accused from the Constitution must be followed by the government • Substantive due process: we are all guaranteed a fair trial and fair treatment by the government when accused of a crime

24. 4th, 5th, and 6th Amendments • Protection against unreasonable searches and seizures • Warrants issued only with probable cause • Indictment by Grand Jury for major crimes • No double jeopardy • No forced self-incrimination • Speedy and public trial • Trial by jury • Must be informed of charges against you • Right to confront accusers • Right to force witnesses in your favor to testify (i.e. subpoena) • Right to an attorney

25. Implied Right to Privacy Implied Right to Privacy—should privacy be protected by due process? • 1965: Griswold v. Connecticut—a state cannot infringe on marital privacy, in this case regarding birth control • 1973: Roe v. Wade—right to an abortion 4th: privacy of our “persons” 9th: certain rights are retained by the people, even though not enumerated 14th: protections from Bill of Rights are extended to state governments • 1989: Webster v. Reproductive Health Services—prohibits public employees from performing abortions • 1991: Hyde Amendment (amended a federal law, not the Constitution)—federal funds can’t be used for abortions (example-medicaid) • 1992: Planned Parenthood v. Casey—upheld some state restrictions— 24 hour waiting period consent of one parent for minors information about alternatives to abortion must be given out BUT--reiterated the protection of the right to an abortion

26. 14th Amendment • “… No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

27. 14th Amendment • Many civil rights cases and criminal rights cases have used the phrases from the 14th amendment as a basis for the argument, along with amendments from the Bill of Rights. Example: • Gideon v. Wainwright, 1963—6th and 14th amendments (right to counsel, due process) • Brown v. Board of Education, 1954—14th amendment (equal protection of the laws)

28. Civil Rights Civil Rights: protections from discrimination based on race, gender, or other minority status • 1896: Plessy v. Ferguson—continued segregation (“separate, but equal is constitutional”) • 1954: Brown v. Board of Education of Topeka, Kansas—overturned segregation (schools must desegregate with “all deliberate speed”) How could two courts use the same amendment—the 14th—but come up with two different rulings? (the Court took a “narrow view” in the Plessy decision) • 1964: Civil Rights Act: banned discrimination in public accommodations and all federally funded programs; prohibited discrimination in hiring based on race and gender. Punishment: funding will be cut off; lawsuits can be brought against states (confirmed by the Court in Heart of Atlanta Motel v. U.S.) • 1964: 24th amendment—poll taxes eliminated • 1965: Voting Rights Act: federal observers sent to register blacks to vote; banned literacy tests • 1971: Busing is a means for achieving integration of schools --Swann v. Charlotte- Mecklenburg • 1982: Voting Rights Act: states under Justice Dept. mandate required to create minority-majority congressional districts (1995—the Court says minority- majority districts don’t pass strict scrutiny test; no compelling govt. interest)

29. Affirmative Action Affirmative Action: meant to further integration by helping minorities get a foothold in business, education, etc. BUT equality of opportunities or equality of results? • Bakke v. U.C. at Davis, 1978 quotas are unconstitutional, but race can be used as an admissions factor • Adarand Constructors v. Pena, 1995 all levels of government must show a “compelling government interest” to create an affirmative action program • Civil rights legislation and Court rulings have eliminated de jure segregation (segregation by law), but not defacto segregation (segregation by fact) “white flight” occurred—movement from the cities out to the suburbs by whites

30. Civil Rights—other than race • Women • 19th amendment (1920): right to vote • Equal Pay Act (1963) • Title IX, Higher Education Act (1972): discrimination on the basis of race and gender in federally funded education programs is unconstitutional • Civil Rights Restoration Act (1988) cuts off all federal funding to entire school (not just for specific programs) if title IX is violated  • U.S. v. Virginia, 1996 Can a public school (VMI) that receives government money discriminate against women? Can a separate program for women fulfill the state’s duties? Court said “no” and “no” • Americans with Disabilities Act, 1990—businesses with more than 24 employees must make the business accessible to handicapped; all public buildings must be accessible to handicapped (unfunded mandate) • Family and Medical Leave Act, 1993—12 weeks unpaid leave for birth, adoption or family illness (men and women)