5Balancing Rights vs. Interest of Public Good Examples:Freedom of assembly. You do NOT have the right to riotExample: Freedom of press. Should press have right to report on a criminal investigation if it threatens the accused’s right to a fair trial?Example: Right to bear arms. Does this mean anyone can own any weapon?How does the gov. try to balance individual rights with the public good?Pass lawsCourts use judicial review
6Section 2: First Amendment Rights: Freedom of Religion
7The Establishment Clause “Congress shall make no law respecting an establishment of religion.”A. NO official religionB. NO favoring one religion over anotherC. We are too diverse for thisD. “separation between church and state”—T. Jefferson
8Court Cases RELIGION IN PUBLIC SCHOOLS McCollum v. Board of Education A. IllinoisBC. Religious instruction program unconstitutionally established religion because it received official supportEngle v. VitaleAB. Unconstitutional to have any officially sponsored prayer in school, even if voluntaryOther court casesNo Bible readingsNo moments of silence for meditation or prayer*STUDENTS ARE ALLOWED TO PRAY ON THEIR OWN AT SCHOOL!GOVERNMENT AID FOR RELIGIONSLemon v. KurtzmanA. Lemon Test1. Have a secular, or nonreligious, purpose2. Neither advance nor limit religion3. Not result in excessive government involvement with religion
9OYEZ—click on the links to read about the case McCollum v. BOEEngle v. VitaleLemon v. Kurtzman
10Freedom of Religion, continued Government Aid for ReligionParochial schools—schools run by churches or religious groupsSome believe gov. money should go to parochialsTaxpayersTuition would be less—choice of schoolsSome believe gov. money should NOT go to parochialsFamilies choose it$$$ would support religious educationCurrently—some money used for some servicesEx: busing, special education teachersLEMON TEST NOW USED!!!!!!!!!
11“In God We Trust” Congress opening session with prayer Should any of these be allowed?“In God We Trust”Nativity Scenes in front of Government BuildingsCongress opening session with prayer
12Taxes and Religiona. Property owned by churches is not taxedFor: it taxed, the gov. could limit the freedom of religionAgainst: puts all tax burden on the non-exemptb. Custom and Religion“In God We Trust”Nativity scenesOpening Congress with prayer*all seen as OK—SC says they represent most Americans’ deeply held beliefs
13The Free Exercise Clause “Congress shall make no law…prohibiting the free exercise of religion.”A person can choose his/her religion and beliefsReligious practices can be restricted ifThreaten health and safety of others (Ex: bigamy, vaccinations/medicine)
14Section 3: 1st Amendment Rights: Freedom of Speech and of the Press
15Early Case *John Stubbs case: he wrote a book criticizing a proposed marriage of Queen Elizabeth2. his hand was cut off
16United States—freedom of speech guaranteed **United States—freedom of speech guaranteed. However, individual rights must be balanced against other liberties.
17Treason and SeditionTreason—act of aiding and comforting an enemy of the USSedition—the use of language that encourages people to rebel against lawful gov.Both of these can be debated, depending on point of viewCourts have had to balance individual rights vs. national security
18Alien and Sedition Acts 1789Made it illegal to say anything “false, scandalous and malicious” against the gov or its officialsMany arrestedMany felt this went against 1st AmendmentExpired in 1801
19Clear and Present Danger Schenk v. United StatesWWIUse of US PS to distribute leaflets to encourage men not to join the draftSchenk found guilty of Alien and Sedition ActsOYEZ.ORG SCHENCK V. UNITED STATES
20Prior Restraintstopping someone from expressing an idea or providing info The gov. can not do thisEstablished in Near v Minnesota, 1931 (Click on this note to read about the case)1971—Pentagon PapersCourt ruled The New York Times could publish this info that dealt with the Vietnam War
21TrialsTrialsNews reporters have used First Amendment guarantee of a free press to avoid giving testimony about the identities of their news sources or about info they have discovered in their workCourts have refused to accept the argument that the 1st Amendment protects media from naming their sourcesBranzburg v HayesReporters have to name their sourcesShield laws: some states passed laws that allow reporters to protect the identity of their sources from state courts
22OYEZ—click on the link to read about the case Branzburg v. Hayes
23***Very hard to prove obscenity—people’s standards vary. LibelWritten defamation of a personSlanderSpoken defamation of a personObscenity—something sexually indecent and highly offensiveMiller v California, 1973Obscenity is materialIn which the major theme would be judged to appeal to indecent sexual desires by the average person applying “contemporary community standards”That shows in a clearly offensive way sexual behavior not allowed by state laws; andThat is “lacking serious literary, artistic, political, or scientific value.”***Very hard to prove obscenity—people’s standards vary.
24OYEZ—click on the link to read about the case Miller v. California
25LicensingRadio and TV have fewer 1st Amendment protections against gov actions than do newspapersThey broadcast over airwaves owned by the publicFederal Communications Commission (FCC)—gives licensesViolence/sex during certain hoursTV Ratings System*with satellite and cable TV, things have changed over recent yearsFalse advertisingCan not give false or misleading advertisementsEX: can’t say a product has health benefits when it does not
26Freedom of Speech and Individual Behavior Personal ConductThe following 3 cases deal with symbolic speechUnited States v O’Brien (1968)Burning draft cards was illegalMen did this to protest the Vietnam WarTinker v Des Moines (1969)Students had the right to wear black armbands to school in protest of the Vietnam War1990—court ruled that people can burn the American flag in protest—freedom of expression
27OYEZ—click on the link to read about the case United States v. O'BrienTinker v. Des Moines
28Hate SpeechThe expression of hatred or bias against a person, based on characteristics such as race, sex religion, or sexual orientationTough to enforce—however today, there are harsher penalties for those who commit hate violence.
29Section 4: Fundamental Freedoms Freedom of Assembly and Petition
30Demonstrations and Protests These are very commonEqual rightsAbortionHonoring certain groups or causesPURPOSE???Persuade gov officials and others to pursue certain goalsThese are protected by Bill of RightsGov can set boundaries to protect rights of others
31Assembly and Public Property Can not block streets, be too loud, etcFor parades—must get a permitPolice could end protests if they get violentEnd protests that could disrupt school activitiesSome protests allowed, even if unpopularSkokie case (1978)Skokie, IllinoisNeo-Nazi paradeMany in Skokie were Jews, including some who escaped the concentration campsParade was allowedKKK rallies are allowed in not violent
32OYEZ—click on the link to read about the case Skokie Case
33Assembly and Private Property Protests are very restricted on private propertyLloyd Corporation v Tanner1972Shopping mallProtestors trying to pass out literature opposing Vietnam WarCourt ruled mall owners could not allow them to do so
34OYEZ—click on the link to read about the case Lloyd Corporation v. Tanner
35Section 5: Assuring Individual Rights: Protecting Civil Liberties Due Process:gov. duty to follow fair procedures set by law when carrying out gov. functionscourts decide whether gov has acted with due process. In other words, courts determine whether gov uses its police power reasonably
362 types of due process Procedural Due Process gov must apply a law fairly and act according to procedures and rules set by that lawEx: “Save Our City” wants to hold a demonstration of the city’s lax pollution law. Gov. says they can, but must be before 6am outside city limit. IS THIS DUE PROCESS???????Substantive Due Processthe principle that a law must be fair and reasonable. The right to substantive due process requires a court to consider the fairness of the law itself.
37Due Process and the States Fifth amendment: protected people from federal government actions only (not from the states)After Civil War (1860’s) this changed14th Amendment: everyone born in the US is a US citizen and therefore has the right of due process (including freed slaves)Added to this amendment are the words “the states may not deprive any person of life, liberty, or property, without due process of law.”Gitlow v. New York (1925)—established that the states MUST respect the fundamental freedoms guaranteed by the Bill of RightsIn short, the due process clause limits the governments police power—or its authority to promote and to protect the health, safety, and welfare of the people. This power is exercised primarily by state and local governments.Ex: police officers have the police power to fight crime. However, they have to work within the framework of the Constitution on things like search and seizure—getting a warrant
38OYEZ—click on the link to read about the case Gitlow v. New York
39Protecting People From Government Intrusion ***4th Amendment—“the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
40Security at Home Exceptions Police must follow a certain set of rules if they want evidence to be used in a criminal trialSearch warrant—allows police to enter homes and search for certain itemsJudge will only issue if “probable cause” shownIf evidence collected without search warrant, evidence not allowedExclusionary ruleMapp v. Ohio (1961)—extended this to state trialsExceptionsEvidence ruled OK if the officer acted in “good faith”No warrant needed to search through garbageNo warrant needed to search things “in plain view”
41OYEZ—click on the link to read about the case Mapp v. Ohio
42Personal Security Exceptions 4th amendment prevents police from conducting unreasonable searches of people and their possessionsPolice can’t search someone for no reasonExceptionsCourt has allowed employee drug testsPolice do not need search warrant to search autos, boats, etcThese can be driven away!Sobriety checks
43Security and Private Communications 4th amendment protections have been extended to private conversationsCourt used to allow wiretaps without warrants (Olmstead v. United States, 1928)1967—this changedCourt ruled that a warrant was needed for wiretaps
44OYEZ—click on the link to read about the case Olmstead v United States
45Student RightsSchool officials need “reasonable” grounds to search lockers, etcNew Jersey v. T.L.O14 year old caught smokingSchool officials searched purse and found marijuanaCourt ruled school can search to guard students’ health and safety and keep order
46OYEZ—click on the link to read about the case New Jersey v. TLO
47Protecting the Right to Privacy 1928—wiretapping was legal.Justice Louis Brandies wrote for the minoritySaid it was wrong for the gov. to wiretap without a warrant1955—Supreme Court reversed itselfGriswold v. ConnecticutDealt with birth control being illegalThe Court said that such laws violated a married couple’s “zone of privacy created by several fundamental constitutional guarantees.”Another example: Roe v. WadeAbortion in the 1st 3 months
48OYEZ—click on the link to read about the case Roe v. Wade
49Section 6: Assuring Individual Rights: Rights of the Accused *The Framers of the Constitution wanted to guarantee that innocent people would not be wrongly convicted of crimesWrit of Habeas CorpusBill of attainderEx Post Facto LawsGrand jurySelf-incrimination
50Explanations Writ of Habeas Corpus Police must appear in court with the accused and show good reason to keep him or her in jailBill of attainderThe government may not pass laws directed at specific individualsThe United States v. Lovett (1946)Ex Post Facto LawsThe government may not pass laws that punish people for actins that were legal when they took placeGrand juryA person accused of a federal crime must be brought before a panel of citizens who decide if the government has enough evidence to try him or her on formal chargesSelf-incriminationAn accused person cannot be forced to proved evidence to support a criminal charge against himself of herselfMiranda v. Arizona (1966)Police must inform criminal suspects of their rightsErnesto Miranda—confessed to rape after 2 hours of questioningConfession ruled not allowed because he was not read his rights
51OYEZ—click on the link to read about the case Miranda v. Arizona
52Section 6: Assuring Individual Rights: Ensuring Fair Trials and Punishments ***Government MUST respect a person’s right to a fair trial and must act fairly when punishing people convicted of crimes***Which parts of the Constitution requires the government to respect the rights of a fair trial??? The Fifth, Sixth, Seventh, and Eighth Amendments! These give us the right to a speedy and public trial, the right to a trial by jury, the rights to an adequate defense, and restrictions on trying a person twice for the same crime.
53Right to a Fair Trial—5 items 1. Speedy Trial6th amendmentThe time period between the filing of formal charges and the start of a trial must be reasonableAccused is not in jail for extended periodEvidence won’t be lostExtensions can be allowed by the judge to allow attorneys to gain more evidenceAccused may be released on bail that is not excessiveOnce trial starts, bail money is returned (as long as accused shows up!)
54Right to a Fair Trial—5 items 2. Public TrialHelps prevent abuses of the lawHow about televising trials???OJ Simpson caseFor: it’s the public’s right to witness trialsAgainst: this case was a circus! Everybody got to watch it and it could influence the court proceedings!*IN OJ CASE, THE JURY WAS SEQUESTERED!
55Right to a Fair Trial—5 items 3, Trial by Jury6th Amendment, 7th Amendment, and Article III, Section 2 guarantees the right to a trial by juryPetit Jury—decides cases12Trial must be held in the district in which the crime was committedJury is a cross-section of the registered votersCan not be kept off jury because of race, sex, economic status, national origin, or religionChange of venueAccused can ask for change of venueThey think they will not get a fair trial in their home townEX: Timothy McVeigh—blew up a government building in Oklahoma CityHis trial was moved to DenverUnanimous (all 12 jurors) verdicts needed to convictBench trialAccused can waive right of trial by juryJudge decides the caseJudge can refuse this
56Right to a Fair Trial—5 items 4. Adequate DefenseSixth Amendment guarantees this rightPeople accused of crimes have the right toBe informed of the charges against themQuestion witnesses against them in courtPresent their own witnesses in court, andBe represented by counsel—a lawyer1932—Supreme Court ruled that the right to counsel was so critical in cases involving capital offenses that the government MUST provide lawyers for people who cannot afford them1963 Gideon v. WainwrightGideon accused of breaking into a pool hall with the intent to commit a misdemeanor.He was too poor to afford a lawyer, and requested that one be provided.Judge refused.He got 5 year sentence.Gideon mailed a petition about his case to the Supreme Court.Court said that Gideon’s 6th Amendment right was violatedgovernment MUST provide lawyer for anybody who can’t afford one1973: Court extended the right to counsel even furtherAccused person cannot be sent to jail for any offense unless he or she has either been represented by counsel or voluntarily given up that right
57OYEZ—click on the link to read about the case Gideon v. Wainwright
58Right to a Fair Trial—5 items 5. Double Jeopardy—can not be tried twice for the same crimeFifth Amendment guarantees this rightCan not be found innocent in state court, then tried again in federal courtCan not be found guilty, then put on trial again to get a harsher penaltyDoes NOT INCLUDESituation when a person breaks both a state and federal lawIf a jury does not give a verdict in 1st trial, you can be tried again
59Fair Punishment—8th Amendment Cruel and Unusual PunishmentWhat is cruel and unusual punishment? Whipping? Flogging? Quartering? Firing Squad? Electric Chair?Supreme Court says cruel and unusual punishment “is not fastened to the absolute but may acquire meaning as public opinion becomes enlightened by humane justice.”1969—overcrowding in prisons included as cruel and unusual
60Capital Punishment Is it cruel and unusual? Court said it is not cruel and unusual until the 1970’sFurman v. GeorgiaCourt said capital punishment against the 8th AmendmentToo many death penalty cases were influenced by race or other factors1976 Gregg v. GeorgiaGeorgia came up with a new system for death penalty cases2 parts—both decided by the juryConviction phasePenalty phaseAlso, the Supreme Court automatically reviews all death penalty cases
61OYEZ—click on the link to read about the case Furman v. GeorgiaGregg v. Georgia