Constitutional Freedoms Chapter 13 Constitutional Freedoms

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.

Constitutional Rights (cont.) Section 1 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.

Constitutional Rights (cont.) Section 1 Constitutional Rights (cont.) The Supreme Court interpreted the words due process to include other protections of the Bill of Rights: protection from unreasonable search and seizure the right of the accused to have a lawyer protection from cruel and unusual punishment

Debate: Prayer & Bible Reading in Public schools. 1. Engel v Debate: Prayer & Bible Reading in Public schools? 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)

To be constitutional, state aid to church schools must: . Lemon v. Kurtzman (1971)—Lemon Test—Is 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”  

No state can deprive any person of their 1st Amendment rights 1 No state can deprive any person of their 1st Amendment rights 1. Freedom of Speech 2. Freedom of the press 3. Freedom of Religion 4. Freedom of assembly

Everson v. Board of Education (1947)— Challenge to a New Jersey law allowing the state to pay for busing students to parochial schools Law was constitutional because the law benefited students rather than a religion directly.

Constitutional Rights (cont.) Section 1 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.

The Establishment Clause Section 2 The Establishment Clause The first clause of the First Amendment—the establishment clause—states that “Congress shall make no law respecting an establishment of religion.” The second clause—the free exercise clause—prohibits government from unduly interfering with the free exercise of religion. Under the Constitution, the task of resolving controversies surrounding church-state relations falls on the Supreme Court.

The Establishment Clause (cont.) Section 2 The Establishment Clause (cont.) Everson v. Board of Education involved a challenge to a New Jersey law allowing the state to pay for busing students to parochial schools—schools operated by a church or religious group. The Court ruled that the law was constitutional because it benefited students rather than religion directly.

The Establishment Clause (cont.) Section 2 The Establishment Clause (cont.) In Board of Education v. Allen the Court upheld state programs that provide secular, 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.

The Free Exercise Clause Section 2 The Free Exercise Clause In addition to banning an established church, the First Amendment forbids laws “prohibiting the free exercise” of religion. In the case of Reynolds v. United States, George Reynolds appealed his polygamy conviction, claiming that the law abridged, or limited, freedom of religion.

The Free Exercise Clause (cont.) Section 2 The Free Exercise Clause (cont.) The Court upheld his conviction and established that people are not free to worship in ways that violate laws that protect the health, safety, or morals of the community. The Court usually follows precedent, decisions made on the same issue in earlier cases.

. 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 Reason: To do so would threaten to undermine the Amish community.

Debate: Religious Expression & the Flag 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

Types of Speech Section 3 The First Amendment exists to protect the expression of unpopular ideas—popular ideas need little protection. Pure speech is the verbal expression of thought and opinion before an audience that has chosen to listen. Symbolic speech—sometimes called expressive conduct—involves the use of actions and symbols, in addition to or instead of words, to express opinions.

Symbolic Speech Tinker v. Des Moines School District (1969)—protects the rights to wear black armbands in school to protest the Vietnam war

Regulating Speech Section 3 Because free speech must be balanced against the need to protect society, some restraints on pure speech do exist. Congress and state legislatures have outlawed seditious speech—speech urging resistance to lawful authority or advocating the overthrow of the government. Civil Liberties and Terrorism

Regulating speech a. Clear & Present Danger Schenck v. United States (1919)—Clear & Present danger test the defendant’s anti draft rhetoric created a “clear 7 present danger” to the success of the war effort, it was not protected speech.

Regulating speech b. Bad Tendency Doctrine 1. 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

Regulating speech c. The Preferred Position Doctrine 1. 1940s—It holds that 1st Amendment freedoms are more basic than other freedoms. So any law limiting these freedoms should be ruled unconstitutional unless the government can show the law to be absolutely necessary.

Other Unprotected Speech Section 3 Other Unprotected Speech The First Amendment does not protect defamatory speech, or false speech that damages a person’s good name, character, or reputation. There are two types of defamatory speech: slander, which is spoken, and libel, which is written.

Figure 1

Speech not fully protected b. “Fighting Words” 1. Chaplinsky v. New Hampshire (1942)— Supreme Court ruled that the 1st amendment doe not protect words that are so insulting that they lead to immediate violence.

Speech not fully protected c. 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 School District v. Kuhlmeier (1988)—Court held that school officials have the right to regulate student speech in school sponsored newspapers, stage productions, & other activities.

Other Unprotected Speech (cont.) Section 3 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. Such “fighting words” do not constitute protected speech.

Prior Restraint Forbidden Section 4 Prior Restraint Forbidden Prior restraint is censorship of information before it is published. The Supreme Court has ruled that the press may be censored in advance only in cases relating directly to national security. Near v. Minnesota helped establish that free press means freedom from government censorship.

Near v. Minnesota (1931)—established the prior restraint doctrine. 1 Near v. Minnesota (1931)—established the prior restraint doctrine. 1. The doctrine protects the press from government attempts to block publication. New York Times Co. v. United States (1971)—reaffirmed the prior restraint doctrine established in Near v. Minnesota (1931) 1. Supreme Court refused to halt publication of the Pentagon Papers, which gave a detailed critical account of U.S. involvement in the Vietnam War.

Fair Trials and Free Press Section 4 Fair Trials and Free Press In Sheppard v. Maxwell the Supreme Court ruled that press coverage interfered with Sheppard’s right to a fair trial. When a jury is sequestered it is kept isolated until the trial ends. A gag order is an order by a judge barring the press from publishing certain types of information about a pending court case.

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

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 Shield laws—which protect reporters from disclosing confidential information or sources in state courts. There is still no federal shield law, but even state laws set limits on reporters

Fair Trials and Free Press (cont.) Section 4 Fair Trials and Free Press (cont.) In three 1972 cases that were considered together, the Supreme Court said that reporters have to surrender evidence because the First Amendment does not give them special privileges. To date, 30 states have passed shield laws—laws that give reporters some protection from disclosing their sources in state courts.

a. Radio & Television 1. Stations obtain license from the FCC (Federal Communicatin Commisions) 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)

Movies DICUSSION WITH MR. GRUBE… 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.

c. E-Mail & the Internet Reno v. American Civil Liberties Union (1997)— Court ruled that Internet speech deserves the same free speech protection as other print media

d. Obscenity Miller v. California (1973)—Court ruled that communities should set their own standards for obscenity in speech, pictures, & written material. however, the Court has since stepped in to overrule specific local acts, making it clear that a community’s right to censor is limited.

d. Advertising---Commercial Speech – speech with a profit motive 1 d. Advertising---Commercial Speech – speech with a profit motive 1. 1970s the government began to relax controls (Bigelow v. Virginia (1975))

Protecting Freedom of Assembly Section 5 Protecting Freedom of Assembly DeJonge v. Oregon established that: the right of assembly is as important as the rights of free speech and free press; and the due process clause of the Fourteenth Amendment protects freedom of assembly from state and local governments.

Protecting Freedom of Assembly (cont.) Section 5 Protecting Freedom of Assembly (cont.) Freedom of assembly includes the right to parade and demonstrate in public. To provide for public order and safety, many states and cities require that groups wanting to parade or demonstrate first obtain a permit.

1. Cox v. New Hampshire (1941) Supreme Court upheld a law that required a permit for a parade Reason: Intended to ensure that parades would not interfere with other citizens using the streets.   Lloyd Corporation v. Tanner (1972) Court ruled that a group protesting the Vietnam war did not have the right to gather in a shopping mall Right to assemble does not allow a group to use private property for its own use, even if the property is open to the public

Assembly and Disorder Section 5 A heckler’s veto is 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 established that police may disperse a demonstration and limit the freedom of assembly if it threatens the peace.

ASSEMBLY & DISORDER 2. Feiner v. New York (1951)—upheld the disorderly conviction of Irving Feiner a. Supreme Court ruled that the 1st amendment protected free speech , but not the right to use speech to incite a riot

D. Freedom of Association—the freedom to join a political party, an interest group, or any other organization 1. Whitney v. California (1927)—It argued that joining the Communist party presented a clear & present danger to the nation because the party promoted the violent take over of private property. 2. Later cases, the Court ruled that only actual preparation for use of force against the government was a just reason for limiting freedom of association.