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Chapter 16 AP Government Mrs. Papish. Civil Rights and Civil Liberties  Civil Liberties-Freedoms in the Bill of Rights, protections against government.

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Presentation on theme: "Chapter 16 AP Government Mrs. Papish. Civil Rights and Civil Liberties  Civil Liberties-Freedoms in the Bill of Rights, protections against government."— Presentation transcript:

1 Chapter 16 AP Government Mrs. Papish

2 Civil Rights and Civil Liberties  Civil Liberties-Freedoms in the Bill of Rights, protections against government interference, through 5 th and 14 th Amendment  Civil Rights-Constitutional rights of all persons, not just citizens, to due process and equal protection of the laws. Ex. Discrimination, protected by positive actions of government

3 Origin of Concept of Individual Rights

4 Rights in the Original Constitution 1. Writ of Habeas Corpus: “produce the body”- court order directing any official having a person in custody to produce the prisoner in court and explain why the prisoner is held


6 Ex Post Facto Laws and Bills of Attainder  Ex Post Facto laws-Prohibited-retroactive criminal law that works to the disadvantage of an individual  Bills of Attainder-legislative acts that inflict punishment without a trial

7 The Bill of Rights and the States  Bill of rights-product of the citizens of the U.S.  Applies only to the national government  Why not states?  Most had their own bill of rights, the states weren’t the one that was considered a threat to liberty--

8 Barron v. Baltimore 1833  The Supreme Court held that the Bill of Rights only restricts the National Government

9 14 th Amendment  Due Process Clause-no pers0n shall be deprived by a state of life, liberty, or property without due process of law  Gitlow v. New York-Revolutionary decision- 1 st time that U.S. Constitution protected freedom of speech by state and local government.

10 Gitlow v. New York  Gitlow, a Socialist, had been convicted of criminal anarchy after publishing a "Left Wing Manifesto."  The Court upheld his conviction on the basis that the government may suppress or punish speech when it directly advocates the unlawful overthrowing of the government.

11 Selective Incorporation  The pr0cess by which provisions of the Bill of Rights are brought within the scope of the Fourteenth Amendment and so applied to state and local government  Starting with Gitlow and through the 1960’s Court incorporates Bill of Rights to the States  Profoundly changes relationship of states to national government  Recent renewal in state constitutions as source of civil liberties/rights not in U.S. Constitution

12 Freedom of Religion  Establishment Clause  Vouchers and State Aid for Religious Schools  The Free Exercise Clause

13 Freedom of Religion  Establishment Clause-reaction to English system where head of state was head of church, intertwined  Designed to prevent three evils:  1. gov sponsorship of religion  2. government $ support of religion  3. government involvement in religious matters  Exercise Clause


15 Everson v. Board of Ed  Sig: sets the prevailing doctrine that creates a strict separation of church and state  ***Incorporated the establishment clause to the states through the 14 th amendment(due process)  “Wall of Separation”-busing does not violate this because it did not provide money for religious instruction

16 The Lemon Test  Lemon v. Kurtzman (1971) Stevens, Ginsburg, Breyer  Not always used

17 The Endorsement Test Sandra Day O’Connor  --establishment clause forbids government practice that a reasonable observer would view as endorsing religion, even if there is no coercion

18 Endorsement Test Applied  Nativity Scenes at Christmas –ok on private property even if it is a public display  Not ok on public property-endorsement by state of a religion

19 Non-preferential Test  Rehnquist, Scalia and Thomas believe that constitution does not prohibit government aid to all religions as long as individuals are not coerced into participation

20 Establishment Clause  State universities, schools districts prohibited from introducing devotional exercises into activities or curriculum  Does not prohibit prayer in public schools, students can pray as long as it is independent of school authorities  No display in school of Ten Commandments, Lord’s Prayer

21 Establishment, contin…  Evolution-state may not forbid teaching of it  “Creation Science” state may not require it  Engle v. Vitale No prayer in the classroom  Why do they open Congress with prayer?  As adults, legislators are not susceptible to religious indoctrination or peer pressure.

22 Vouchers and State Aid for Religious Education  Vouchers-money given by government to parents for payment of their children’s tuition in a public or private school of their choice  Tax credits for private schools not constitutional  Remedial help, standardized tests lunches transportation –ok  Vouchers—OK—not intentionally going to religious schools—96% of vouchers used at Catholic parochial schools

23 Vouchers: Does it pass the test?

24 The Free Exercise Clause  Article VI-no religious test required for any public office  First amendment thought to cast a mantle of protection around religious exercise

25 Free Exercise  Government has to have a “compelling interest” to justify infringing on someone’s religious practice  Practice of religion has had less protection than right to belief

26 The Free Exercise Clause Limits  Actions that violate social duties or disrupt social order are not covered under the Free Exercise Clause.  Examples:  Bigamy  Using poisonous snakes during religious ceremonies  Schoolchildren who have not been vaccinated Free Exercise Upheld  The Court has found many government actions to be counter to the Free Exercise Clause.  Examples:  Amish children cannot be forced to go to school after grade 8  Ministers are allowed to hold elective office  Unemployment benefits cannot be denied to someone who quit their job because of religious beliefs Chapter 16

27 End of the Compelling Interest Test  Employment Division v. Smith (1990) Rehnquist court says as long as the law doesn’t ban religious practices it may regulate actions of a religious group *Congress reacted to this controversy: Passed the RFRA 193 Religious Freedom Restoration Act—declared unconstitutional

28 Freedom of Speech

29 Free Speech and a Free People  Judging: Drawing the line  What is permitted, what is not?  Historical Constitutional Tests  Bad Tendency Test  Clear and Present Danger Test  Preferred Position Doctrine


31 Tests: Bad Tendency Test  Derived from English Common Law(judge made law) Freedom of speech can’t be used to allow speech that corrupts society or favors illegal action Too broad…fell out of favor

32 Clear and present danger test  Schenk v. United States(1919)  Established a new test: Does the speech present an immediate danger or lead to illegal acts?  Justice Oliver Wendell Holmes Jr. …Speech is fundamental to American democracy but does not protect shouting “Fire!” in a crowded theater.

33 Preferred Position Doctrine  Speech (expression)is given a preferred status among other 1 st Amendment freedoms  Judges have a duty to protect this preference Question remains: What is protected and what is not protected?

34 The Free Exchange of Ideas Chapter 19, Section 3 Freedom of Speech and Freedom of Press guarantees are meant to:  Protect each person’s right of free expression, whether spoken, written, or communicated in any other way. Symbolic speech upheld in Tinker v. Des Moines(1969)  Protect all persons’ right to a complete discussion of public affairs. Freedom of Speech and Press do not protect:  Libel, the false and malicious use of written words  Slander, the false and malicious use spoken words  Obscenity  Words that incite others to commit crimes

35 Seditious Speech Chapter 19, Section 3 Congress has enacted three major laws to prevent sedition and seditious speech:  The Alien and Sedition Acts—made scandalous or false criticism of the government illegal. Expired before Thomas Jefferson took office in 1801.  The Sedition Act of 1917—made it a crime to encourage disloyalty or spread anti-government ideas during a time of crisis. Upheld by the Supreme Court in instances of “clear and present danger.”  The Smith Act of 1940—forbade advocating violent overthrow of the government, and belonging knowingly to any group that does. The Supreme Court still upholds the constitutionality of the law, but over time has modified it so that it is difficult to enforce. Sedition is the crime of attempting to overthrow the government by force, or to disrupt its lawful activities by violent acts. Seditious speech is speech that urges such conduct.

36 Limits on Sedition laws  Seditious Action not protected, seditious libel is protected  New York Times v. Sullivan (1964)-landmark case  Can’t restrict abstract seditious speech  Public officials are limited in the damages they can seek for speech against them unless they can prove the only motive was malice “knowing disregard for the truth”  Private citizens must prove statements are false, public officials and figures must prove actual malice

37 Obscenity and Pornography  Obscenity is not protected.  Define obscenity?  Justice Stewart-”I know it when I see it”  Harlan-”One man’s vulgarity is another man’s lyric”

38 Obscenity and Pornography Obscenity Test laid out in Miller v. California, 1973 1) The average person finds that the work appeals to “prurient interests” judging from contemporary standards. 2) The work describes offensive sexual conduct that is specifically outlawed as obscene. 3) The work lacks serious value of any variety.

39 3. Serious Value?  LAPS Test…Does it have  1. Literary  2. Artistic  3. Political  4. Social value

40 Further interpretations include…  Child pornography not protected  Government can geographically restrict where adult commerce may take place in a community

41 Fighting Words  Inflict injury or breach the peace  What are not fighting words-those that create anger, alarm or resentment  Cohen v. California (1971)- “_____ the draft” on a sweatshirt worn in a federal courthouse.  Most recently courts have struck down laws against “hate speech”-racial, ethnic and gender slurs

42 Court Cases: Expression  U.S. O’Brien (1968)-burning draft cards can’t be protected by 1 st amendment because the government has an interest in raising armed forces  Brandenburg v. Ohio (1969)States may not forbid advocating action unless it is likely to produce “imminent lawless action”  Cohen v. California (1971) can’t censor words in a public place because they are expressing unpopular view (“F*** the Draft”

43 Court Cases: Expression  Bethel S. D. v. Fraser (1969) Suspending a student for violating a disruptive conduct rule such as student acceptance speech using explicit language and sexual metaphor is not a violation of 1 st amendment protections  Texas v. Johnson (1989) Flag burning is protected. Significance: even the most offensive symbolic speech is protected

44 Commercial Speech  Such as advertisements  Used to be unprotected by 1 st Amendment because of less value than political speech  Now states may forbid false, misleading ads

45 Protected Speech  Prior Restraint  Void for Vagueness  Least Drastic Means  Content and Viewpoint Neutrality

46 Prior Restraint  Censorship before publication-judges are very suspicious of this, presumption is that it is unconstitutional-gov’t must prove necessity Ok only in most sensitive instances of military or national security such as divulging location of troops or strategic info.

47 Prior Restraint In most cases, the government cannot curb ideas before they are expressed. It can punish ideas after they are expressed. The Supreme Court has held in several cases that the guarantee of a free press does not allow the government to exercise prior restraint on publication except in grave circumstances. In Near v. Minnesota, the Court protected the rights of even “miscreant purveyors of scandal.” No prior restraint, rare exception In New York Times v. United States, 1971, the government sought a court order to keep newspapers from printing “the Pentagon Papers” which had been stolen and leaked to the press. The Supreme Court found that the government couldn’t show that the papers endangered national security enough to justify prior restraint of publication. National security threat must be proven.

48 Prior Restraint in Schools  Hazelwood v. Kulmeier (1988)  School newspapers can be subject to prior restraint

49  Vagueness Doctrine- law can’t be so overly vague as to allow officials discretion as to what is protected and unprotected  Least Drastic Means Doctrine-If a law restricts freedom of expression when it can just as easily accomplish its purpose by other methods

50 Content Neutrality  Law can restrict time, place and manner but not refer to the content  R.A.V. v St. Paul (1992)  Wisconsin v. Mitchell (1993)


52 Freedom of the Press  Does freedom of the press give press the right to ignore legal requests or to withhold info?  Does the press have the right to access? In other words can they go wherever they want in pursuit of information?

53 Shield Laws  Some states protect press from divulging information that would compromise sources  SC- has not acknowledged right of press to ignore a subpoena

54 Does Press Have the Right to Know  SC has refused to recognize right of press to have access to all info  Press is not restricted from public trials-TV broadcast can be restricted  Sunshine laws- in many states  Classified information-to date, no prosecution of newspapers for publication

55 Right to Know  FOIA 1996; Freedom of Information Act  Full public access to all non-classified federal government records  If agency refuses, must prove why in court

56 Free Press Versus Fair Trials  Impartiality of jury v. freedom of press  Gag orders are ok on judges, lawyers, jurors not on press  SC has not stopped the freedom of press where it compromises impartiality  Has forbid TV and Radio in criminal proceedings

57 Media and Communications  Mail-can’t forbid free usage of mail or what is sent but can allow citizens to request blocking of mail from senders  Handbills-protected but can be limited in a reasonable way  Movies, Plays-no censorship unless obscenity restrictions but gov’t has burden to prove this

58 The Media Chapter 19, Section 3 2222 4444 1111

59 Broadcast and Cable  Broadcast-radio/TV-has least protection of all 1 st Amendment freedoms  FCC-regulates entire system by granting licenses and making regulations  FCC-can’t censor(prior restraint) but can impose penalties  Telecommunications Act 1996-competition for cable opened up; least restricted because of choice, public channels over airwaves not as protected

60 Internet  Starship Enterprise-Voyage to the unknown  Issues: copyright piracy, junk mail, personal privacy  Reno v. ACLU (1997)- SC strikes down portions of Communications Decency Act of 1996, indecent messages to anyone under 18 is a criminal offense; “can’t limit all communication to that which is acceptable to children under 18”

61 Freedom of Assembly  Time, Place and Manner Regulations-  Cannot censor what is said but may make “reasonable” restrictions for protests or parades.  Public Property-Supreme Court has divided into three categories  Public forums-streets, sidewalks, parks  Limited public forums-depends on who has access to these, students, teachers, employees  Nonpublic forums-court houses, prisons, schools

62 Public Forums and Assembly  No right to interfere or takeover a building in order to stage a protest, cannot interfere with the higher purpose of public education or court system by disrupting their proceedings  Civil disobedience is not a protected form of expression  Abortion protesters not protected where they interfered with the constitutionally protected right of a woman to secure an abortion—have allowed a “buffer zone” where protesters are not allowed

63 Public Property Chapter 19, Section 4 2222 3333 1111

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