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Civil Liberties and Public Policy Chapter 5. Incorporation Doctrine Legal concept under which Supreme Court has applied the Bill of Rights to the states.

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Presentation on theme: "Civil Liberties and Public Policy Chapter 5. Incorporation Doctrine Legal concept under which Supreme Court has applied the Bill of Rights to the states."— Presentation transcript:

1 Civil Liberties and Public Policy Chapter 5

2 Incorporation Doctrine Legal concept under which Supreme Court has applied the Bill of Rights to the states via 14 th amendment. Gitlow v. New York (1925) – Guarantees of free speech and free press apply to the states. Palko v. Connecticut (1937) – Certain rights should be applied to the states, because they represent the very essence of a scheme of ordered liberty, and are principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.

3 Selective Incorporation Gitlow and Palko begin this process. Some, but not all, federal rights are applied to the states. Which rights are considered fundamental? – The right to bear arms – The right to not have soldiers forcibly quartered in private homes – The right to be indicted by a grand jury before being tried for a serious crime. – The right to a jury trial in civil cases – The ban on excessive bail and fines

4 Freedom of Religion: Establishment clause Congress shall make no law respecting an establishment of religion Some believe it means that the government cant favor one religion over another Others, such as Jefferson, believe it means there is a wall of separation between church and state

5 Freedom of Religion: Establishment clause Lemon v. Kurtzman (1971): aid to church related schools must: Have a secular legislative purpose Neither advance or inhibit religion Not foster an excessive entanglement with religion Tax funds may be used to provide parochial students with texts, computers, lunches, transportation to and from school, and to administer standardized testing services Tax funds may not be used to pay teacher salaries or fund field trips

6 Freedom of Religion: Establishment clause Agostini v. Felton (1997): public schools could send teachers into parochial schools to teach remedial and supplemental classes to needy students Zelman v. Simmons-Harris (2002): allowed vouchers to pay religious school tuition Public educational institutions must allow religious meetings in school if it provides space for other groups under Equal Access Act (1984) Religious teachers cannot enter schools to teach religion during school day, but students can leave school during the school day to receive religious instruction

7 Freedom of Religion: Establishment clause Engel v.Vitale (1962) and School District of Abington Township, PA v. Schempp (1963): Voluntary recitation of prayers or bible readings is not allowed in public schools Silent prayer is allowed as long as it is individual and not led by others Teaching creation science is unconstitutional Nativity scenes, when they have a secular purpose or provide little or no benefit to religion, are allowed

8 Freedom of Religion: Free Exercise Clause Employment Division v. Smith (1988): State laws interfering with religious practices but not specifically aimed at religion are constitutional The laws cannot single out and ban religious practices because they are engaged in for religious reasons, or only because of the religious belief they display A general law may be applied to conduct even if the conduct is religiously inspired

9 Freedom of Expression: No Prior Restraint Allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered Near v. Minnesota (1931): Jay Near's newspaper had many articles on Minneapolis' elected officials illegal activities (gambling, racketeering, and graft) Minnesota Gag Law (1925), The Public Nuisance Law, was applied. Nears critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others Supreme Court overturned decision

10 Freedom of Expression: Free Speech and Public Order Schenck v. United States (1919): Distributed pamphlets urging people to resist draft Government could limit free speech if there is a clear and present danger (Holmes) Dennis v.United States (1951): upheld prison sentences for Communist Party leaders conspiring to advocate violent overthrow of government Yates v United States (1957) and Brandenburg v. Ohio (1969): can advocate violent overthrow of the government in the abstract, but not to incite anyone to imminent lawless action

11 Freedom of Expression: Free Press and Fair Trial Shield Laws protect reporters from having to divulge sources or surrender notes Branzburg v. Hayes (1972): right of a free trial preempts reporters rights in the absence of shield laws Zurcher v. Stanford Daily (1978): proper search warrant can be applied to a newspaper

12 Freedom of Expression: Obscenity Roth v. United States (1957): obscenity is not within the area of constitutionally protected speech or press I know it when I see it –Justice Potter Stewart Miller v. California (1973): Materials are obscene if: o The work, taken as a whole, appealed to a prurient interest in sex o The work showed potentially offensive sexual conduct that was specifically defined by an obscenity law o The work, taken as a whole, lacked serious literary, artistic, political, or scientific value Decisions should be determined by local, not national community

13 Freedom of Expression: Libel and Slander Publication or spoken false statements that defame a persons reputation New York Times v. Sullivan (1964): statements about public figures are libelous only if made with malice and reckless disregard for truth Private individuals have a lower standard to meet

14 Freedom of Expression: Symbolic Speech Tinker v. Des Moines (1965): students can wear armbands to protest the war Texas v. Johnson (1989): permissible to burn flag as a symbolic gesture

15 Freedom of Expression: Commercial Speech Truth in advertising

16 Freedom of Expression: Right to Assemble Picketing, protesting, forming interest groups, political parties, and professional associations Cannot assemble if it disrupts public order Collins v. Smith: Nazi group allowed to march in Skokie, Illinois

17 Defendants Rights Exclusionary rule: evidence cannot be used if it was not constitutionally obtained Mapp v. Ohio (1961): protection against unreasonable search and seizure Miranda v. Arizona (1966): protect against self incrimination Gideon v. Wainright (1963): right to a lawyer

18 Cruel and Unusual Punishment Woodson v. North Carolina (1976): ruled against mandatory death penalties Furman v. Georgia (1972): death penalty not cruel and unusual, but overturned Georgias death penalty because its imposition was freakish and random Gregg v. Georgia (1976): Death penalty not cruel and unusual McCleskey v. Kemp (1987): death penalty does not violate 14 th amendment because minorities were more likely to receive death penalty

19 Right to Privacy Not in the Bill of Rights Griswold v. Connecticut (1965): doctor and family planning specialist were arrested for disseminating birth control devices. Supreme Court overruled: various portions of the Bill of Rights cast penumbras(unstated liberties) implied by the explicitly stated rights Roe v. Wade (1973): Almost no regulations during first trimester Protecting womans health during second trimester Prohibitions permitted unless life or health of mother at stake

20 Right to Privacy Planned Parenthood v. Casey (1992): Permits more regulation of abortion: 24-hour waiting period Parental or judicial consent for minors Presenting information about the risks of the operation Abortions performed only in hospitals and clinics (not doctors offices)

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