Ch. 13 Constitutional Freedoms

1. Ch. 13 Constitutional Freedoms

2. 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

3. 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).

4. Civil liberties • Protection of Bill of Rights, due process clause and the 14th Amendment

5. 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”

6. First Amendment • Freedom of Expression (”Congress shall make no law…abridging 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”)

7. Freedom of religion (“Congress shall make no law respecting an establishment of religion; or abridging the free exercise thereof”)

8. Church and State

9. What does the free exercise clause of the 1st amendment refer to?

10. 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.

11. Free Exercise Clause-1stAmendment 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.

12. 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 Jehovah’s 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.

13. What is the Establishment Clause?

14. 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

15. 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.

16. 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.

17. 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.”

18. 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.

19. Edwards v. Aguillard(1987)-the Supreme Court struck down state legislatures that required teaching the Bible’s 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.

20. 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(can’t 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.

21. 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 nation’s 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.

22. 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.

23. 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

24. 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 Amendment’s guarantees of this freedom.

25. 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

26. 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 malice”—with 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.

27. 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.”

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

29. 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”

30. Freedom of Assembly… • “The right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

31. 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.

32. 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.

33. 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.

34. This case illustrates problems with what is called the heckler’s 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?

35. 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 Feiner’s 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 mayor’s 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.

36. Examples of people protesting