Constitutional Rights

1. Constitutional Rights Human Rights: fundamental freedoms that lie at the heart of the American Political System (Rights you are born with, not given by government)

2. Constitutional Rights • The Bill of Rights guarantees basic rights to all people. • The “Government” cannot abuse the rights of individuals. This LIMITS THE POWER OF FED GOV’T • The Bill of Rights was originally intended to offer protection against the actions of the federal government • The Bill of Rights was not originally directed at state or local governments • 14th Amendment extended the rights guaranteed in the Bill of Rights to state and local governments • Due Process: No right can be denied without going through “DUE PROCESS OF LAW”

3. The Bill of Rights • 1st: Freedom of Expression (Speech, Press, Religion, Assembly, Petition) • 2nd: Right to Bear Arms • 3rd: Right against quartering troops • 4th: Freedom from unreasonable searches and seizures • 5th: Right to due process, grand jury, against self- incrimination, eminent domain • 6th: Right to a fair trial • 7th: Right to a Civil Trial, Jury Trial • 8th: Right against Cruel and Unusual Punishment • 9th: Rights reserved to the People • 10th: Rights reserved to the State

4. Freedom of Religion • 2 “Clauses” • 1) The Establishment Clause: “Congress shall make no law respecting an establishment of religion” • 2) The Free Exercise Clause: . . . “or prohibiting the free exercise thereof.”

5. The Establishment Clause • Religion in Public Life • Everson v. Board of Education • State paying for parochial schools not constitutional • State Aid to Parochial Schools • Some programs OK some are not (religious instruction) • Release Time for Students • Release time for religious instruction OK if on private property • School Prayer Cases • Engel v. Vitale (banned school prayer) • Abington v. Schempp (banned school prayer) • Wallace v. Jaffee (moment of silence) • Equal Access Act • Student groups have equal access to school facilities • Teaching the Theory of Evolution • Schools cannot “endorse” a particular religious doctrine • Other Establishment Issues • Nativity Scene on public property, funded with public monies

6. Free Exercise ClausePeople are not free to worship in ways that violate laws that protect the health, safety, or morals of the community • Religious Practice • Cannot place limits on HOW/IF you practice a religion unless you pose a danger to yourself or others • Compulsory Vaccinations/Medical Treatment • Home Schooling • Religious Expression and the Flag • Pledge of Allegiance • Required by state to say PofA • Cannot force students to say/participate • Students/Teachers at School • Saying a prayer • Wearing a Cross

7. Freedom of Speech • Types of Speech • 1) Pure Speech: The words, themselves, are protected • 2) Symbolic Speech: Actions and symbols that present speech are protected • TINKER v. DES MOINES SCHOOL DISTRICT (right to wear armbands at school) • TEXAS v. JOHNSON (flag burning) • FRISBY v. SCHULTZ (City can limit WHERE free speech is exercised) • HILL v. COLORADO (Limits how close to a medical facility protesters can approach patients)

8. Regulating Speech • Sedition (Speech urging resistance to lawful authority or advocating the overthrow of the government) • Hate groups pushing to act out against the government in violent ways • Just saying the government should end is not enough • Clear and Present Danger (Speech that presents a “clear and present danger” balances public safety with free speech) • “Fire” in a crowded theater • Breaking news of where/when military attack will occur • NOT – interfering with draft literature during WWI • Other forms of Unprotected Speech • Defamation: false speech that damages a person’s good name, character, or reputation • SLANDER: Spoken • LIBEL: Written • “Fighting Words” are words that “tends to incite an immediate breach of the peace”

9. Student Speech • Key Cases • 1) Tinker v. DesMoines: • Students DO NOT give up their rights while in school • 2) Hazelwood School District v. Kuhlmeier • School officials have broad authority to regulate student speech in school-sponsored newspapers, theatrical productions and other activities • 3) Bethel School District v. Fraser • Students can be suspended for lewd or indecent speech at school events • 4) Morse v. Frederick • Students may be punished for displaying a banner at a school-sponsored event that officials believed condoned the use of illegal drugs

10. Freedom of the Press***Allows speech to be published, broadcast, circulated***Includes: magazines, radio, TV, the Internet, newspapers, etc • Prior Restraint – censorship of information BEFORE it is published – is a common way for governments to control information and limit freedom • In the United States, the Court has ruled the press may be censored in advance only in cases relating directly to national security • Near v. Minnesota: A Minnesota law made it illegal to anything “malicious, scandalous, or defamatory. The Court ruled it unconstitutional because it involved prior restraint. You can sue AFTER, but not before something is printed • New York Times Co. v United States: “Pentagon Papers” US government sued to stop the printing of an article showing the government had lied about the casualty numbers from Vietnam. The Court ruled this would be prior restraint and ruled against the government. “The press is to serve the governed not the governors. . . The press was protected so that it could bare the secrets of the government and inform the people.” Justice Hugo Black, 1971

11. Free Trials and Free Press • Sheppard v. Maxwell: Press coverage may make getting a fair trial next to impossible. The Court ruled the judges could restrain coverage in some cases: • Move the trial to reduce pretrial press * Limit the number of reporters in the courtroom • Control the reporter’s conduct in the courtroom * Isolate witnesses and jurors from the press • Sequester the jury until the case in done • Gag Orders Unconstitutional: An order by the judge to limit what the press can print during the trial. The Court ruled the law to ‘too vague’. Gag orders can be issued to the lawyers. • Press Access to Trials: Press/public access can be limited if the judge found a “reasonable probability” that publicity would harm the defendant’s right to a fair trial. This is very hard to prove. • Protecting News Sources: Confidential sources are critical to reporters. Courts have, in the past, ordered reporters to name their sources in trials. Protecting the identity of a source is now protected in 30 states. “SHIELD LAWS” give the reporter legal protection from having to name their sources

12. Free Press Issues • Radio, TV, and Movies (public airways) • Public sites do not enjoy as much freedom • FCC can punish stations that broadcast obscene or indecent language • Cable deserves more 1st Amendment freedoms but less than magazines and newspapers • E-mail and the Internet (highest level of protection to print media) • The Court ruled against limits on the Internet and pornography saying “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” • Obscenity • Society has a right to be protected from obscene pictures and speech • Local Communities can set their own standards for obscenity • Advertising (“Commercial Speech” is given less protection) • Advertisers have faced government regulation of their industry • Since the mid 1970’s, limitations on advertisements must be justified to stand

13. Freedom of Assembly & Petition“the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.” • This applies to public and private meetings • This means the right to make views known to public officials and other by such means as petitions letters lobbying, and carrying sign s I a parade and marching. • First upheld in 1937 in DeJonge v. Oregon. A public meeting to discuss communist views was deemed illegal. The Court ruled for DeJonge saying “peaceable assembly for lawful discussion cannot be made a crime.” • 2 legal principles established • 1) The Right to Assemble is as important as the rights of free speech and free press • 2) The 14th Amendment’s “DUE PROCESS” protects freedom of assembly • from state and local laws

14. Freedom of Assembly • Assembly on Public Property: Rights to Assembly on PUBLIC lands • When assembly advocates an unpopular idea, potential problems exist • Government regulation has been upheld because of high potential of violence • Limits on Demonstrations • A permit can be required (of all assemblies) • The permit must be to protect public safety not limit the ability to express viewpoints in public • Other Limits on Public Assembly • Additional limits have been placed on certain public places (airports, libraries, courthouses, schools, county jail, etc) • Limits can be placed if exercising your right limits the rights of another (school demonstration cannot interfere with ability to teach classes, demonstration at a trial cannot interfere with the right to a fair trial) • Assembly and Property Rights • Cannot use private property that you don’t own without permission (Abortion Protests outside a clinic that provides abortions)

15. Assembly and “Disorder” • Nazis in Stokie • City leaders tried to deny group permit for a march celebrating Hitlers birthday • Claimed march would cause great pain to Jewish residents • To prevent the march, the city charged the group $350,000 bond for a parade permit • The group sued, saying it was limiting their free speech • “Heckler’s Veto” public outcry against unpopular speech claiming possible violence • Feiner v. New York • Feiner gave an unpopular speech in 1950. Police asked Feiner to stop speaking when the crowd became large and threatening. When he refused, the police arrested him for disturbing the peace. • The Court ruled with the police, saying they had the responsibility to preserve pubic order • Gregory v. City of Chicago • The Court ruled that “keeping the peace” was not a valid reason for denying a permit for a march • Gregory marched to call for the firing of the school superintendent. The potential of violence, not from the marchers, but from those who gathered to harass the marchers caused the police to demand the marchers disperse. • When they refused, they were arrested. • The convictions were overturned saying the marchers had done nothing but exercise their right to free speech and assembly

16. Writing Assignment • “Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection.” Neal Boortz • Explain what this quote means. Give examples from the text to support you explanation

17. Freedom of Association • Does the Constitution protect an individual’s right to join an organization that the government considers ‘subversive’? • Can the government restrict the right of assembly and association in order to protect the nation’s security? • Whitney v. California, 1927 • Whitney attended a convention for Communists • The Communist Party advocated workers using violent means to take over control of property • Whitney was convicted of breaking a California law just by being a member • The Court ruled Whitney was not guilty of personally pressing for violence to overthrow the government • During the 1950’s, the US government began arresting people for belonging to the Communist Party. • Rulings that only actual preparations for the use of force against the government were in fact punishable

18. Freedom to Petition • As a citizen, you have the right to go to your government and petition for change • Change in laws • Change in leadership • Change in policy • To fix a problem created by the government

19. 2nd Amendment • 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 • Controversial • Gun Rights vs. Gun Control • Security of a free state vs. right of the people • Limits • Guns designed to kill large number of people • Military weaponry

20. 4th Amendment • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated • Search Warrants • Go before a judge or magistrate • Swear on evidence presented • State where and what to be searched for

21. 5th Amendment • Grand Jury: must show evidence of crime before a trial for infamous crimes • Double Jeopardy: cannot be tried for the same crime twice • Right against self-incrimination: The government must prove you did something. You do not have to prove your innocence • Eminent domain: The government can take property if it is for a vital public project • Due Process: The government must go through specific processes before they take your life, liberty or property

22. 6th Amendment • Right to a speedy and fair trial • Speedy & Public Trial by an impartial jury • Fair • Right to Counsel • Right to know the charges • Right to call witnesses in their behalf • Right to confront witnesses against you

23. 7th Amendment • Right to trial by jury for a civil suit • Right to a civil trial for $20 or more

24. 8th Amendment • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted • Bail • Humane treatment whenever in the custody of the government

25. 9th & 10th Amendments • 9th – Rights reserved to the people • The Founding Fathers knew they could not list every right the people would ever have. • This allowed the Constitution to address things the future might bring • 10th – Rights reserved to the States • 17 Powers of Congress & the Duties of the President and the Supreme Court are listing in the Constitution • This reserves all other power to the states

26. Essays for Chapter 13-14 Essays: Pick two of the following three essays to answer fully. 1) Freedom of Speech is one of the most protected rights you have as a citizen of the United States. But that freedom only reaches so far. It was once said that you don’t have the right to yell “FIRE” in a crowded theater. What was meant by that as it pertains to free speech? 2) Justice O.W. Holmes said, “The First Amendment is not to protect free thought for those who agree with us but freedom for the thought that we hate.” This statement was designed to show that we must really be careful to protect the speech we disagree with. Why is that so important? Give examples 3) Should government money be used on any religious item? (I am not looking for your opinion to be one way or another. I am looking for the reasons you believe the way you do) Give examples • Extra Credit: Write down what right(s) each of the first 10 (Bill of Rights) amendment guarantees

27. Thanks for a GREAT class