Civil Liberties: First Amendment Freedoms

Section 1- The Unalienable Rights

Chapter 19

Framers of the Constitution said its was written to “secure the Blessings of Liberty to ourselves and our Posterity”.

Initial Constitution did not contain individual rights---Congress added 10 amendments (Bill of Rights) in 1789—13 and 14 amendments also added freedoms

Civil Liberties are protection against government or safety of person or property (speech, press, religion) and Civil Rights are positive acts of government (laws against discrimination by race, sex, or religious beliefs)—similar and often interchangeable

A Commitment to Freedom

U.S. has a limited government, much of it because of our personal freedoms

Our rights are only our rights as long as they do not infringe on the rights of others (Ex- Morse v. Frederick, 2007)---Supreme court upheld decision a school in Alaska acted properly by disciplining a student for a banner promoting drugs.

Some rights come in conflict (Ex- freedom of speech and fair trial)---High media coverage and fair trial?

All persons, includes aliens. Don’t get all rights (ex- travel freely throughout country

Limited Government

Bill of Rights meant to limit National Government, not state (Ex- #5- No person can be charged with a Capital crime, except by grand jury---State can use several methods)

States cannot deny basic rights of people because of the 14 Amendment—Due Process Clause. Supreme Court has ruled in most cases that the Bill of Rights is covered by 14th through a process of incorporation or merging (1st, 4th, 5th, 6th, 8th all incorporated, pg. 549)

Federalism and Individual Rights

Examples of Incorporation---Gitlow v. N.Y. (1925) published articles for the violent overthrow of government---However, several others were denied saying State law was unconstitutional and a violation of the 14th Amendment

9th Amendment---There are rights beyond those set out in the Constitution and several have been added (can not use evidence unlawfully obtained or right of a women to have an abortion)

Continued…

Freedom of Religion

Section 2

1st Amendment sets 2 guarantees of religious freedom—they cannot set a religion (Establishment Clause) or interfere with a religion (Free Exercise Clause)

Church and State are separated but not stranger. Government does not tax religious sects, chaplains in military, swear in to God, National Anthem, and coins make reference to God.

Remains a heated topic today---Supreme Court heard first Establishment Clause case in 1947. Some earlier cases (Pierce v. Society of Sister, Oregon law saying all children had to attend public school)---law denied

Religious Liberty and Separation of Church and State

Everson v. Board of Education (1947)- Supreme Court upheld law providing bussing for all students attending school in the state (public or parochial)

Release Time---Students can be released for religious classes as long as the classes are held off public facilities (Zorach v. Clawson, 1952)

7 major cases on use of prayer or bible in schools (pages 552 and 553)

Equal Access Act of 1984---All public schools that receive federal funding must allow religious groups to meet in the school the same as other groups

Religion and Education

Evolution- Epperson v. Arkansas, 1968- law struck down forbidding the teaching of Evolution.

Aid to Parochial Schools- Should the state aid these schools- Proponents say- should relieve parents of double burden (taxes and tuition), devote most of time to nonreligious studies, and relieve state of paying for some students---Opponents say- Parents have choice and should accept financial burden, cannot draw clear lines between church and state (religious beliefs effect teaching)

Religion in Education Cont…

Courts decide on aid to parochial schools by the lemon test 1) law must have a secular, not religious purpose 2) must neither advance or inhibit religion 3) must not foster an entanglement of government and religion

Most cases have been struck down for state aid to parochial schools. Ones that have been upheld are interpreters, state testing, tax breaks (available to all), and more recently vouchers (help low-income families)

Education/Religion Cont…

Seasonal Displays- Still sketchy- County of Allegheny v. ACLU held it unconstitutional of a large display celebrating Jesus and banner for God, at the same time upheld another display with a Christmas tree and religious figure at another city building

Chaplains- Both house of Congress and most state legislatures start with a prayer. Marsh v. Chambers (1983). This is legal, unlike in schools, because it has been done since colonial times and they are not susceptible to peer pressure like school children

Ten Commandments- Have been allowed if among other documents and if present for years---Found unconstitutional in other cases

Other Establishments

Everyone has the right to believe what ever they chose, but may not break the law, offend public morals, or threaten safety

First Supreme Court Case- Reynolds v. U.S.- had 2 wives (Mormon), which was illegal by federal law—he was convicted and it was upheld

U.S. has upheld many laws including requiring vaccination of school children, requiring certain business to be closed on Sunday, drafting those religiously opposed to war, etc.

Free Exercise Clause

Supreme Court has found some governments to be incompatible with the free exercise guarantee

Cantwell v. Conn. (1940)- requiring a person to get a permit to solicit money for religious cause. Amish do not need to attend school past 8th grade (Wisconsin v. Yoder, 1972).

Saluting the flag and saying the pledge have been back and forth throughout history. You do not have to say it, but cannot be disrespectful currently (Patriotism or Religion?)

Continued…

Freedom of Speech and Press

Section 3

1st and 14th Amendments- free speech and press serves two purpose 1) guarantee freedom of to express oneself and guarantee all persons a wide-range of discussion in public affairs

American form of government counts on people to make sound/reasoned decisions (need to be informed)

Not totally free- Cannot yell “fire” in a crowded building, print false or malicious words (libel) or speak these words (slander)

-Also illegal---printing and distributing obscene material, false advertising, and those that prompt someone to commit a crime.

Free Expression

Advocating the overthrow of a government is not protected

First to curb opposition of government- Alien Sedation Acts of 1798- Deported undesirable aliens (criticizing government)---Never renewed when expired

Sedation Act of 1917- WWI- made it illegal to interfere with draft, hinder the government, and publish disloyal/abusive language against government (can punish if immediate danger that criminal acts follow)

Smith Act of 1940- Illegal to advocate the overthrow of a government or teaches them to overthrow---Now can urge to believe but not urge to do something of this nature

Seditious Speech

Distribution of obscene material is illegal by state and federal law---what constitutes obscene (changes with the times)

Miller v. California (1973)---Obscene if 1) the average local person finds the work to excite lust 2) the work depicts or describes in an offensive way a form of sexual conduct in the anti-obscenity law 3) work as a whole lacks serious literary, artistic, political, or scientific value

Now most involve the internet

Obscenity

Usually can only punish after the remarks are made, little can be done prior to expression (prior restraint)

Examples of prior restraint- prohibit the distribution of political material on military bases without permission, CIA agents cannot publish material w/out permission, and preventing inmates of prison from receiving material that may cause discipline issues.

Schools also have a broad power of censorship---Supreme court found schools to have large editorial control over school-sponsored expressive activities

Prior Restraint

Confidentiality- Reports believe if forced to tell who their sources are, people will not talk. In recent years court has attempted to make them, but several journalist have gone to jail instead. (30 states have shield laws that give some protection)

Motion Pictures- Are not considered press and do not have the same rights. Some states have review boards (few exist today) and go by movies rating

Radio and Television- Both have extensive federal regulation (very limited 1st amendment protection)---they use public airwaves. The FCC cannot sop before broadcast, but can stop obscene language. Supreme Court said cable companies can sexually explicit before late night

The Media

The Supreme Court has heard a few cases involving the internet and all dealing with pornographic material. Initially no obscene or indecent material could be sent to minor under 18, later found unconstitutional (despite agreement with issue)----libraries receiving any aid have to block content

Symbolic speech- facial expression, carrying signs, etc.Picketing is legal if peaceful and promoting a legal

causeU.S. vs. Obrien (1968)- Acts can be punished if 1)

object is within governmental power 2) restrictions fit circumstances 3) Governments interest is not to stop dissent

Internet and Symbolic Speech

Tinker vs. Des Moines School District (1969)- legal to wear arm bands to protest war as long as peaceful

Flag burning, while controversial has been found to be legal by the Supreme Court (split decisions). Congress would have to amend Constitution

Commercial Speech- Speech for business purposes. Bigelow v. Virginia (1975) found illegal to have a law to stop advertising for abortions. Cannot advertise false/misleading information or illegal goods/services

Has allowed some non-illegal issues to be banned (cigarettes and snuff- 1970 and 1986) on radio and television

Court has decided both ways on issues (court split)

Symbolic Continued and Commercial Speech

Freedom of Assembly and Petition

Section 4

1st Amendment protects peoples right to assemble and petition or bring their views to the public’s attention---Must be peaceful (no violence, block streets, close a school, etc.)

More often than not, courts have found civil disobedience (purposely violate the law, but no violence) to be unconstitutional

Government can control time, place, and manner rules---ex- noise that disrupts schools or influences a court decision. Government rules must be content neutral (cannot regulate because of what is being said)

The Constitution’s Guarantees

Most demonstrations take place in public and have some conflict. Laws do require advance notice and permits for public demonstrations

Gregory v. Chicago (1969)- Comedian Dick Gregory and others marched to mayors house to demand the firing of city’s school superintendent and ending of de facto segregation. Bystanders became violent and protestors told to leave, refused and arrested. Conviction overturned because bystanders, not protestors caused the violence

Public Property

Abortion has been a recent issue---Laws upheld allowing a buffer zone around clinic that stops people from disallowing people to enter and “side-walk counseling”, not allowed to come within 8 feet of those wishing to enter

Private- Protestors do not have the right to trespass even to express political views---not allowed to handout political leaflets or ask to sign petitions without consent

People have the right to association. Membership lists to not need to be published, cannot be fired because of it

Public Property Cont. and Private

Freedom of association not unlimited. Boy Scouts of America v. Dale (2000), upheld the right of the association to exclude gays from organization---It is part of the organizations expressive rights or what they stand for---Cannot force an organization to contradict beliefs

Chapter Review on page 573

Freedom of Association Cont… and Review