Chapter 15

1. Chapter 15 Constitutional Freedoms

2. Your First Amendment Rights • 1. Freedom of speech • 2. Freedom of the press • 3. Freedom of religion • 4. Freedom of assembly • 5. Freedom to petition the government • Importance: Hold the Government accountable

3. Types of Speech • The First Amendment was added to protect the expression of unpopular ideas • Verbal and non-verbal • Pure Speech – verbal expression to an audience that has chosen to listen • Symbolic Speech – speech that uses actions and symbols. (expressive conduct)

4. When can government limit or regulate expressive conduct? • If the regulation is within the constitutional power of government. • If the government has a substantial interest unrelated to suppression of speech. • If there are ample alternative ways to communicate.

5. Symbolic Speech • Symbolic speech has less protection than “pure speech” • Protected: picketing, flag burning, black armbands • Not protected: burning draft cards, burning a cross with the intent to intimidate, camping on the capitol mall • The standard: content neutral, the government limits the minimum speech needed to protect a governmental interest

6. Tinker v Des Moines (1969) • Students wore black arm band to protest Vietnam War. • The students were suspended from school for violating the school’s dress code. • Their parents sued the school district! • The Tinkers claimed suspension violated their first amendment right to Free Speech. • What do you think? Can the school district tell kids what they can and can not wear?

7. Court Room Decisions • Tinker v. Des Moines (1969)- Court ruled that students could wear black armbands in protest of Vietnam war • What type of speech is this case?

8. Regulating Speech

9. Symbolic Speech Cases • Stromberg v. California (1939) – California State Law did not allow a RED Flag to be displayed (Communism) • Supreme Court – Unconstitutional. • US v. O’Brien (1968) – Protestors burned their draft cards to protest the Vietnam War. Law required them to keep their draft card. Did not violated 1st Amendment right- It was in interest of the government and they could of expressed ideas differently. • Texas v. Johnson (1989) – Protestor burned the American Flag. Texas law claimed this an illegal act. • Flag burning law is illegal.

10. Other Unprotected Speech • The First Amendment does not protect • Obscenity – violates recognized standards of decency • Lacks serious literacy, artistic, political, or scientific value • defamatory speech, or false speech that damages a person’s good name, character, or reputation. • Libel, the false and malicious use of written words • Slander, the false and malicious use spoken words

11. Other Unprotected Speech (cont.) • The Court has limited the right of public officials to recover damages from defamation. • In 1942 the Supreme Court ruled that some words are so insulting that they provoke immediate violence. Fighting Words Offensive, derisive, annoying, etc. Words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

12. Commercial Speech is speech for business purposes, usually advertising. • The 1st and 14th Amendments protect advertising, but not false or misleading advertising.

13. Regulating Speech • Clear and Present Danger Rule: 1st Amendment does not protect those forms of expression that pose a clear and present danger of bringing about some evil that government has a right to prevent. • Ex. saying things that will create danger to society, such as during wartime like interfering with the draft • The Sedition Act of 1917—made it a crime to encourage disloyalty or spread anti-government ideas during a time of crisis. • Schenck v United States, 1919 - Charles Schenck, a Socialist Party member, sent letters to 15,000 men who had been drafted, urging them to resist the call to military service. • He was found guilty of obstructing the war effort. The Supreme Court upheld the ruling, establishing the “clear and present danger” rule. • Justice Holmes wrote “Words can be weapons…. The questions is whether the words…. Create a clear and present danger…”

14. Speech Not Fully Protected • Student Speech • Bethel School District v. Fraser (1986)—Supreme Court ruled that the 1st amendment does not prevent school officials from suspending students who use indecent language at school events. • Hazelwood v. Kuhlmeier (1988) The Supreme Court says that schools have broad authority to regulate student speech in school-sponsored newspapers, theatrical productions, and other activities. These things are “part of the curriculum,” not an individual’s personal expression of thought.

15. Regulating Speech (cont) • 2. Bad Tendency Doctrine • Gitlow v. New York (1925)—the Supreme Court ruled that speech could be restricted even if it had only a tendency to lead to illegal action. Since 1920s the bad tendency doctrine has lost support from the Supreme Court • Example: Yelling “Fire” in a crowded theater.

16. Freedom of Press, Assembly and Petition Section 2

17. Freedom of the Press What does press and media include? • Books • Newspapers • Magazines • Radio • Television • Internet

18. Radio and Television • 1.Stations obtain license from the FCC (Federal Communication Commissions) • 2.FCC requires stations to follow certain guidelines in presenting programs • 3.1997—Court ruled that cable television has more 1st amendment protection from government regulation than other broadcasters, but not as much as publishers of newspapers & magazines. • (Turner Broadcasting System v. FCC (1997)

19. Freedom of the Press • Protected from Government Censorship • Publications are prohibited by the government, when they find it offensive • Can the government control/limit the media from disclosing of information? • Prior Restraint – when information is censored before it can be published. • Causes irreparable harm • Near v. Minnesota helped establish that free press means freedom from government censorship. • New York Times Co. v. United States (1971)—reaffirmed the prior restraint doctrine established in Near v. Minnesota (1931) • Supreme Court refused to halt publication of the Pentagon Papers, which gave a detailed critical account of U.S. involvement in the Vietnam War. • Supreme Court refused to halt publication of the Pentagon Papers, which gave a detailed critical account of U.S. involvement in the Vietnam War.

20. Fair Trials and Free Press • Press and Courts • Can the press publish information that influences the outcome of a case? • Interfere with the 6th Amendment – right to a fair trial • Nebraska Press Association v. Stuart (1976) • Judge feared media coverage would influence of murder case • Supreme court said the “Gag Order” was to vague • Gag Order – order from a judge prohibiting the media from publishing court case information • In Sheppard v. Maxwell the Supreme Court ruled that press coverage interfered with Sheppard’s right to a fair trial. • Sequestered – hold the court case in isolation from media • When a jury is sequestered it is kept isolated until the trial ends.

21. Press Issues At Trials • To restrain press coverage of a trial, the Court suggested the following measures: • 1. Moving the trial to reduce pretrial publicity. • 2. Limiting the number of reporters in the courtroom • 3. Placing controls on reporters’ conduct in the courtroom • 4. Isolating witnesses and jurors from the press • 5. Having the jury sequestered-kept isolated—until the trial is over

22. Protecting News Sources • Many reporters argue that freedom of the press gives them the right to refuse to reveal confidential sources. • In 3 1972 cases, the Supreme Court held that reporters have no such right, but added that Congress & states can give reporters this protection. • 30 states have passed which protect reporters from disclosing Shield laws—confidential information or sources in state courts. There is still no federal shield law, but even state laws set limits on reporters

23. Petition and Assembly • Assemble and Petition – right to organize and express grievances • Petition – as the government to take action or refrain from taking action • Petition, lawsuit, letter or email, testifying in court, collecting signatures. • Assembly – participate in protests, parades, to show support or opposition against the government. • Gatherings must be peaceful • Sometimes a permit is required • Can reasonably regulate the time, place and manner of assemblies

24. Assembly on Public Property May use parks, streets, sidewalks, etc. May interfere with the rights of public to use these public facilities. May advocate unpopular causes. May provoke violent response from observers. Therefore, parades & demonstrations are subject to some government regulation.

25. Protecting Assembly And Disorder • heckler’s vetois a term used to describe when the public vetoes the free speech and assembly rights of unpopular groups by claiming that demonstrations will result in violence • Feiner v. New York • Speaking on a street in Syracuse, Feiner urged African Americans to fight for civil rights. • Made derogatory remarks about Truman, the American Legion, and local politicians. • Three times, the police told Feiner to stop speaking because he was inciting a riot. • He refused and was arrested for disturbing the peace (not because of the content of his speech). Were his free speech and assembly rights violated? • Police may disperse a demonstration • Threatens peace

26. Assembly and Disorder Nazis in Skokie, Illinois Collins v. Smith (1977) • Small group of Nazis (25-30) filed for parade permit in suburb of Chicago with many Holocaust survivors. • Because of fear/threat of violence from observers, city required $300,000 bond for parade permit to pay for police protection, potential damage, etc. • ACLU assisted the Nazis in challenging the amount of the bond as an attempt by the city to limit the Nazi’s freedom of speech and assembly. • Supreme Court said that no community can use parade permits to interfere with or stifle free speech and assembly. In the end, the Nazi’s decided to hold their demonstration in Chicago. Few people attended and there was little newspaper coverage.

27. E-mail, the Internet and Movies • Reno v. American Civil Liberties Union (1997)—Court ruled that Internet speech deserves the same free speech protection as other print media • Movies Burstyn v. Wilson (1952)—Supreme Court ruled that the 1st 7 14th Amendments guarantee motion pictures “liberty of expression” However, the Court also ruled that movies may be treated differently than books or newspapers.

28. Freedom of Religion • 15.3

29. Religious freedom has two important clauses: • Establishment Clause “Congress shall make no law respecting an establishment of religion” This says Congress cannot set up churches, favor any religion over another, force anyone to believe in or practice a faith, or promote any religion. The government cannot pass laws that promote or help certain religions. It must remain neutral to all religions, and to those who have no religion. Thomas Jefferson once referred to the establishment clause as “a wall of separation between church and state.” This wall of separation is not complete (absolute) • Free-Exercise Clause “or prohibiting the free exercise there of” • Free to practice a religion • Free to believe what ever we choose…cannot freely act on those beliefs

30. Religion is, and always has been, a part of public life in the U.S.

31. Washington Praying at Valley Forge

32. Examples of Religion in Public Life • Oaths of office in the name of God • Money has “In God We Trust” • Pledge of Allegiance has “under God” • Congress opens daily sessions with prayer. • Chaplains in the military paid by the government. • Tax-exempt status for church property • Tax-exemption for contributions to religious groups

33. Controversy about religion in public life Can taxes pay for busing students to a parochial school? Yes:Everson v. Board of Education (1947) Can taxes pay for busing parochial students on a field trip? No:Wolman v. Walter (1977) Can taxes pay for textbooks for parochial schools? Yes (for secular books): Board of Education v. Allen (1968)

34. Controversy about religion in public life • Can parents deduct tuition, textbooks and transportation to and from parochial schools from state income taxes? Yes:Mueller v. Allen (1983) • Can the state use taxes to provide computers, library books, and other equipment to parochial schools? Yes, as long as not used for religious purposes: Mitchell v. Helms (2000)

35. Students & Religion As students, it’s important to know your religious rights in school. • You are free to pray alone or in groups, as long as the activity is not disruptive and does not infringe upon the rights of others. • As long as it is not disruptive, disrespectful of the rights of other students, and does not pressure or coerce others, you can exercise your faith. • Schools cannot organize religious activities. This includes making students pray.

36. The Establishment Clause • Everson v. Board of Education involved a challenge to a New Jersey law allowing the state to pay for busing students to parochialschools—schools operated by a church or religious group. • The Court ruled that the law was constitutional because it benefited students rather than religion directly. • In Board of Education v. Allenthe Court upheld state programs that providesecular, or nonreligious, textbooks to parochial schools. • Other important controversial cases involving religion address release times for students, school prayer, and the teaching of the theory of evolution.

37. Religious Landmark Court Cases • 1. Minersville School District v. Gobitis (1940) Court ruled that requiring children to salute the flag did not infringe on religious freedom • 2. West Virginia State Board of education v. Barnette (1943) overturned Gobitis decision. Court concluded that patriotism could be taught without forcing people to violate their religious beliefs • 3.Wisconsin v. Yoder (1972) Court declared that the state could not require Amish parents to send their children to public school beyond the 8th grade

38. The Establishment Clause Court Cases • 1. Engel v. Vitale (1962) • The Court ruled that a nondenominational prayer used in a public school is unconstitutional • 2. Abington School District v. Schempp (1963) & Murray v. Curlett (1963) • Court banned school sponsored Bible reading & recitation of the lord’s Prayer in public schools • Reason: Teachers whose salaries were paid by tax dollars conducted the activities in public buildings (Violated 1st Amendment)

39. The Establishment Clause Cases (cont) • Lemon v. Kurtzman (1971)—Lemon Test—Is the establishment clause being violated? • To be constitutional, state aid to church schools must: • - have a clear secular, nonreligious purpose • - neither advance a religion nor discourage the • practice of a religion. • - avoid “excessive government entanglement with • religion”

40. 14th Amendment 15.4

41. 14th Amendment • Three important items from the 14th Amendment • Granted citizenship to all persons born in the US • Guaranteed due process of law from all state governments • Guaranteed equal protection of the laws by all state governments

42. Constitutional Rights • The belief in human rights, or fundamental freedoms, lies at the heart of the American political system. • The Constitution of the United States guarantees certain basic rights in the Bill of Rights, comprised of the first 10 amendments, and in several additional amendments.

43. Constitutional Rights (cont.) • The Bill of Rights was not originally intended to limit state and local governments. • The Supreme Court has interpreted the due process clause of the Fourteenth Amendment to apply the guarantees of the Bill of Rights to state and local governments.

44. Constitutional Rights (cont.) • The process by which the Bill of Rights was extended to the states and localities is incorporation. • The incorporation of the Bill of Rights means that U.S. citizens in every part of the country have the same basic rights. • In practice, nationalization means that citizens who believe that a state or local authority has denied them their basic rights may take their case to a federal court.

45. Citizenship • African Americans • Dred Scott v Sandford (1857) – enslaved man could not sue the federal courts • African Americans not US citizens when Constitution was written. • 14th Amendment after the civil war. • Native Americans • 14th Amendment did not apply • Allotment Act 1887 – gave Native Americans all benefits of land ownership. • Indian Citizenship Act 1924 – citizenship to all Native Americans born in the US.

46. 14th Amendment • No state shall deny to any person within its jurisdiction the equal protection of the laws” • Original purpose: protect the rights of former slaves and free blacks • Made state govt’s protect citizens’ Constitutional rights • Limited the power of state govt’s after the Civil War

47. Jim Crow Laws • Plessy v Fergusson 1896 – States allowed to segregate based on race • Provide similar services • Brown vs. Board of Education (1954) • “Separate educational facilities are inherently unequal” • Overturned Plessy decision • Outlawed segregation in every state

48. Due Process • Procedural – government must follow fair procedures if it is going to deprive someone of life, liberty, or property. • Guarantees a fair court trial • Right to an attorney, jury • Substantive – laws must be fair, cannot interfere with a basic right • Speech, press, religion, fair trial, marry, travel, educate children • Government can create a law about a fundamental right • EX: Voting – Voter Fraud • Equal protection clause – law that unfairly discriminates against a specific group.

49. The Meaning of Due Process