Civil Liberties and Public Policy

Civil Liberties and Public Policy

Civil Liberties • These are individual and constitutional protections against the government. • Civil Liberties are written down in the Bill of Rights – First 10 Amendments. • The protections appear simple but in reality are very complex. • The courts, police and legislature help to define their meaning.

The Bill of Rights – Then and Now • Bill of Rights were added in 1789 and ratified by states in 1791. • Political scientists have found people support rights in theory but it wavers in practice. • Ex: Teaching about homosexuality in school, having the KKK walk in a hometown parade. • Question – How to balance civil liberties and societal values?

Amendment I Freedom of Religion, Speech, Assembly and Petition • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II Right to Bear Arms • A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

Amendment III Quartering of Soldiers • No Soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV Searches and Seizures • The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.

Amendment V Grand Juries, Double Jeopardy, Self-Incrimination No person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger: nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

Amendment V - Continued Due Process, Eminent Domain • Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI Criminal Court Procedures • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusations; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII Trial by Jury in Common-Law Cases • In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States.

Amendment VIII Bails, Fines, and Punishments • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX Rights Retained by the People • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X • The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Bill of Rights & States • What happens when a state passes a law violating one of the rights protected by the federal Bill of Rights and the state’s constitution does not prohibit the abridgement of freedom? • Wonder twins found out in 1833 and 1925…

Barron v. Baltimore John Barron was a co-owner of a port in the harbor of Baltimore. As the city developed sand accumulated into the harbor and the deep waters that Barron thrived on to keep his dock functioning had been destroyed. He sued the city to recover a portion of his financial losses. Argued Date: February 11, 1833 Decided Date: February 16, 1833 The location in the Constitution that this case refers to is the Fifth Amendment. This case was decided based on the specificities of the governmental limitations addressed in this amendment. The main question presented to the Supreme Court was whether the 5th Amendment denies the states as well as the national government the right to take private property for public use without justly compensating the property’s owner. The court decided in favor of the Mayor and the City Council of Baltimore (7-0) without even hearing the City of Baltimore’s arguments. Justice Marshall argued that the the Fifth Amendment intends to limit national governmental powers but is not applicable to what state or local governments can do. Barron’s port (called a wharf at the time)

Gitlow v. New York • Brief History: Benjamin Gitlow was arrested for the publication and circulation of sixteen thousand copies of the Left-Wing Manifesto. Gitlow was arrested under violation of the New York Criminal Anarchy Law of 1902. • Main Question Presented to the Supreme Court: Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment? • Holding: The Supreme Court ruled in favor of Gitlow stating that the first amendment is among the many person liberties one has and it is protected by the due process clause of the fourteenth amendment. • Argued April 12, 1923. Reargued November 23, 1923. Decided June 8, 1925 • Location in Constitution: First Amendment is protected by fourteenth amendment. (Rights of Citizens)

Bill of Rights & States Outcome: Barron v. Baltimore – Restrained only the national government, not the states and cities. Gitlow v. New York – relied on the 14th Amendment to incorporate the 1st Amendment to the states. In effect, the court interpreted that the due process clause was binding to the states. Initially only first part of the 1st Amendment. Began the development of the incorporation doctrine. The legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the 14th Amendment.

Freedom of Religion • 1st Amendment contains 2 elements for freedom of religion: • Establishment: creating any religion. • Free Exercise: freedom to worship or not worship. • These freedoms can conflict: • Gov’t providing chaplains on military bases – some accuse gov’t of establishing a religion in order to ensure members of armed forces can freely practice their religion.

Freedom of Religion • What did the founders of the USA mean by the religion clause? • It is clear a national religion was prohibited. • Some argue it meant one religion was not favored over another. • Jefferson argued that there is a “wall of separation” between church and state. Forbidding favoritism and support from the gov’t.

Freedom of Religion & Schools • What happens when religion is mixed with education? • Great concern over gov’t aid to church-related schools and prayer in schools. • Proponents argue that gov’t aid does not favor a specific religion. • Opponents argue the Roman Catholic Church has the largest religious school system in US which receives most of the aid. • In 1965 LBJ obtained passage of the 1st large aid to parochial elementary and secondary schools. • Main idea- money went to student, not schools and should follow students.

Lemon V. Kurtzman Facts of the case In Pennsylvania, a law provided money to teachers who taught secular subjects in non-public schools (this included parochial schools) In Rhode Island, the state provided salary supplements of 15% to teachers in non-public schools Question before the court: Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church- related educational institutions"? Ruling: 8 justices voted for Lemon, 0 for Kurtzman, which meant that the SCOTUS unanimously found that R.I. and PA did violate the establishment clause, located in the first amendment of the Constitution, which says, “Congress shall make no law respecting the establishment of a religion…”

Reasoning • The majority set forth a 3 part test for laws and the establishment clause • The government's action must have a secular legislative purpose; • The government's action must not have the primary effect of either advancing or inhibiting religion; • The government's action must not result in an "excessive government entanglement" with religion

Freedom of Religion & Schools • Lemon v. Kurtzman • Since this case court has a fine line over permissible aid. • Supreme Court has allowed religiously affiliated universities to construct buildings with public funds. • Parochial schools can use funds for instructional equipment, text books, lunches, transportation and standardized testing. • Parochial schools can not use funds to pay teacher salaries or for transportation on a field trip. • Reasoning for above decisions: buildings, text books and lunches is easily not used for religious education. However a teacher in the classroom or a field trip could have religious implications which go against the constitution. • Since 1997 the constraints have loosened enough to have teachers sent to parochial schools in order to instruct students in remedial and supplemental classes for needy children.

Zelman v. Simmons-Harris (2002) • School Voucher – A government project grant given to parents in order to help cover their child’s educational costs. • In Cleveland, Ohio, 96% of the students receiving school vouchers were enrolled in private, religiously affiliated schools. Ohio taxpayers argued that this was a violation of the First Amendment: “Congress shall make no law respecting an establishment of religion”. Question presented to Supreme Court: Does Ohio’s school voucher program violate the Establishment Clause of the First Amendment? The Court’s Decision: A 5-4 decision was giving stating that the program did not violate the First Amendment. The court developed a five part test in order to test the constitutionality of a voucher program: • The program must have a valid secular purpose • Aid must go to parents and not to the schools • A broad class of beneficiaries must be covered • The program must be neutral with respect to religion • There must be adequate nonreligious options

Freedom of Religion & Schools • Controversy over religion is not limited to public schools. • New York was stopped in creating a public school district to benefit a Hasidic Jews. • Supreme Court is also opening activities for public schools to religious activities. • Ex: Universities that allow student groups to use school facilities must allow religious student groups to use facilities for worship. • Ex: 1984 Equal Access Act – Congress passed indicating any school that receives federal funds and allows student meetings in their facility then it must allow religious worship in the facility. • Public schools that rent space must include religious organizations.

Freedom of Religion & Schools • Supreme Court opening public facilities for religious activities continued. • U of VA was required to subsidize a religious magazine as they do other student publications. • Threshold is higher when public funds are used directly to support education: Ex: A school will not have a religious instructor come into the school but will allow a student to leave to receive religious instruction.

Engel v. Vitale The court case of Engel v. Vitale was brought to the United States Supreme Court in 1962 regarding families of the public school students of New Hyde Park, New York, who argued that the voluntary prayer being used in the morning at the school went against their religious beliefs. The main question at hand for this case was, “Does the reading of a nondenominational prayer at the start of the school day violate the ‘establishment of religion’ clause of the First Amendment?” The court ruled that the voluntary prayer in the school was unconstitutional by a vote of 6-1. Arguments for the case took place on April 3rd, 1962, and the decision was made on June 25th, 1962. This case revolved around the argument that the prayer was violating the Establishment Clause of the First Amendment to the United States Constitution, which says, “Congress shall make no law respecting an establishment of religion."

School District of Abington Township PA v. Schempp Year/Date • Started when Edward Schempp, a Unitarian Universalist and a resident of Abington Township, PA filed a suit against the Abington School District • Goal was to prohibit the enforcement of PA state law that required his children to hear and sometimes read parts of the Bible as part of their public school education. • Claimed that this law violated his family’s rights under the first and Fourteenth Amendments. • The law was that school districts had to perform Bible readings in the morning before classes began. • District ruled in Schempp’s favor, but the school district appealed it. • During the time of the appeal, Schempp continued his belief claiming that the amendment of the law did not change its nature as an unconstitutional establishment of religion, which is how it reached the Supreme Court Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments? This case was argued on February 27th to the 28th. It was officially decided on June 17, 1963 Holding Court decides 9-1 in favor of Edward Schempp and declared that school-sponsored Bible reading in public schools of the US was unconstitutional

Freedom of Religion & Schools • So where is the line? • It is not illegal to pray in public school. The constitution forbids encouragement of prayer. • Ex: 1992 school-sponsored prayer during graduation violates separation of church and state. • Ex: 2000 student led prayers at a football games are a violation.

Freedom of Religion & Schools • Recently religious controversies have been greater. • Due to fundamental Christian Groups becoming more involved in politics. • Schools have ignored Supreme Courts ban on school prayer and allow it in classrooms. • There is a push for a Constitutional Amendment to allow school prayer. • Fundamental Christian Groups are pushing to teach Creationism. • In 1968 Darwin’s theory of evolution cannot be prohibited by Supreme Court. • Requiring Intelligent Design as an alternative has been struck down by the court too.

Freedom of Religion • Supreme Court struggles to interpret religion in other areas of society. • In 2005 KY counties violated religious neutrality by posting 10 Commandments in courthouses. • Court decided that the counties were trying to “advance religion” • In 2005 TX state capital included a monolith inscribed with the 10 Commandments along with 21 historical markers and 17 monuments. • Court decided that Texas placement of texts was far more passive and served a legitimate historical purpose.

Freedom of Religion • Displays of religious symbols during holidays on public property has caused great debate. • Court has ruled that displays of religious symbols next to secular symbols are acceptable. However, if the secular symbols do not exist then it appears there is an endorsement of religion. • Courts position is that the Constitution does not require complete separation of church and state. • The court mandates accommodation of all religions and forbids hostility toward any. • The courts largest problem is drawing the line between neutrality and promotion. tlkbqzcr

Freedom of Religion • Freedom to exercise ones religion appears simple but it is not. • Going to church, temple or a little voodoo is easy to accept. • Religions can forbid actions society thinks are necessary or may require action that society finds unacceptable. • Having several wives or using drugs in a ceremony. • Amish parent’s refusing to send children to public school. • Jehovah’s Witness / Christian Scientists not accepting blood transfusions.

Freedom of Religion • The courts are more cautious about the right to practice a belief. • The courts have stopped some practices: • Ex: Laws and regulations forbidding polygamy, prohibiting business activities on Sunday, denying tax exemptions to religious schools that discriminate based on race, allowing building of roads through sacred Native American grounds.

Freedom of Religion • Congress and the Supreme Court have also provided protections to religious practices. • Amish parents can take their children out of school after 8th grade. • Ideology – Amish children would not burden state. Religion precedence over education. • Jehovah’s Witnesses not required to participate in flag-saluting ceremonies. • Conscientious objectors to war on religious grounds. • Sacrificing animals for religious reasons is allowed. • Ideology – Gov’t permits other forms of killing animals may not ban sacrifices or ritual killings.

Freedom of Expression • Democracy depends on free expression of ideas. • Americans pride themselves on this idea. • Courts consistently must decide the line separating permissible from unacceptable speech. • Can the gov’t sensor speech that they think violates the law? • What constitutes speech or press within the meaning of the 1st Amendment that should be protected? • Obscenity, libel, incitements to violence and overthrow of the gov’t are not protected. • What is considered obscene or incitement?

Freedom of Expression Questions regarding Speech • Expression is a balance in society. • Speech vs. Public Order • Speech vs. National Security • Speech vs. Fair Trial • Should commercial speech receive the same protections as religious and political speech? • Should public airways be regulated?

Freedom of Speech • 1st Amendment ensures a person’s right to publish material without prior restraint. • Prior restraint – gov’t preventing material from being published or censored.

Near V. Minnesota January 1931- June, 1931 Jay Near was attacked by the local officials in Minneapolis for publishing a scandal sheet. His articles were said to be implicated with gangsters. Near was prevented by Minnesota officials from publishing his newspapers under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Does the Minnesota "gag law" violate the free press provision of the First Amendment?

Near V. Minnesota • The Supreme Court Concluded that the law was unconstitutional because it violated freedom of the press. • This can be found in the First Amendment: Freedom of religion, speech, and press. • The government can not prohibit you from publishing something, even before it has been published. • You can publish an article, but you can be sued for defamation after the fact.

Freedom of Expression • Prior restraint depends on the individual or group. • Students in public school may be limited more than adults in other settings. • 1988 School Newspapers were not a public forum and cannot be regulated “any reasonable manner” by school officials. • 2007 School environment has special characteristics and gov’t interest to stop drug abuse. Allow schools to restrict expression regarded as promoting this abuse.

Freedom of Expression • Wartime brings censorship. • Public supports censorship during wartime. • Ex: Newspapers being sued for troop movement would be supported. • Supreme Court upheld restrictions on publishing names of national security. • CIA agents have been sued for breaking contractual obligations with regard to submitting books for censorship. Books had no classified information. Gov’t was successful. • Generally courts do not prohibit publication of national security information. • Ex: Pentagon Papers were allowed to be published.

Schenck v. United States • During World War I, Charles Schenck, Secretary of the Socialist Party of America, mailed circulars to draftees which stated that the draft was a wrong “motivated by the capitalist system” and urged them to repeal the Conscription Act • Schenck was charged with conspiracy to violate the Espionage Act • Argued on January 9, 1919 • Decided on March 3, 1919 • Main question: Are Schenck’s actions (words, expressions) protected by the free speech clause of the First Amendment?

Holding Decision: 9 votes for United States, 0 votes for Schneck (right) Location in the constitution: U.S. Constitution Amendment 1, 1917 Espionage Act The unanimous court concluded that Schneck was not protected by the First Amendment in this situation. During wartime, “utterances tolerable in peacetime could be punished.” Established “clear and present danger” test

Free Speech and Public Order • 1950’s confronted speech and public order. • Second red scare in 40’s and 50’s. Many people believed “commies” were inside the gov’t. • National gov’t determined to jail leaders of communist party. Ex: Joe McCarthy going after subversives based on Smith Act (forbade violent overthrow of gov’t) • Supreme Court upheld many prison sentences of communist party leaders even without evidence of urging people to commit violence. • Activities by this group similar to yelling fire in empty theater not crowded. • Court believed “Commie” takeover more dangerous than limiting speech. • National Security more important that Speech.

Free Speech and Public Order • The 50’s climate changed and court made it more difficult to prosecute dissenters under Smith Act. • Court changed ruling later finding it permissible to advocate the violent overthrow of the gov’t in the abstract but not to incite anyone to imminent lawless action. • The 60’s brought waves of protest. • Recently there have been protests against Iraq which included passing out leaflets and gathering signatures (must be done in public places). • Constitutional protections are reduced and not guaranteed on private property . Ex: Shopping Center • Politicking and posting signs on private property have been upheld.

Speech and Obscenity • Deciding what is obscene is challenging. • Public standards change over time, place and person to person. • Ex: MTV would be banned 2 decades ago. • Huckleberry Finn and Tarzan have been banned. • The court has tried to define obscene in different court cases.

Argued: Monday, April 22, 1957 Decided: Monday, June 24, 1957 Roth v. United States • Background: • Samuel Roth operated a business that sold sexually explicit pictures, books, and magazines. • Federal law at the time prohibited sending material through the U.S. mail that would "stir sexual impulses.” • Roth was convicted of sending obscene advertising and an obscene book through the mail (at the Supreme Court, Roth's case was combined with Alberts v. California). Constitution: The case involved the freedom of expression and whether obscene material was protected under the 1st Amendment, specifically freedom of speech. Question: Did the federal obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? • Decision: 6 votes for the U.S., 3 votes against • Justice William J. Brennan, Jr., said obscenity is not protected by the freedom of speech. • In order to be deemed obscene, a work had to be “utterly without redeeming social value.” • The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Following the jury's verdict of the Mapplethorpe Obscenity Trial (1990), hundreds of protesters demonstrated outside the Cincinnati Arts Center.

Miller v. California In 1971, Marvin Miller was charged under a California law for distributing ‘obscene’ material in the adult advertisements he was sending in mail. He appealed his case up to the Supreme Court. Question before the Supreme Court: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Decision: 5-4 vote that First Amendment does not protect obscene material. Modified rules for obscenity: "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.“ Decided: June 21, 1973 (Burger Court) Location in Constitution: First Amendment, “Congress shall make no law… abridging freedom of speech”

Civil Liberties and Public Policy