Civil Liberties

Goals of the presentation: Define civil liberty Explain how this issue is relevant today Discuss conflicts (Rights in conflicts, cultural conflicts) to display relevance

Review: Why no Bill of Rights originally? What were the Bill of Rights intended to do?

Civil Liberties…a definition: The protections the Constitution provides against the abuse of government power For example, the First Amendment of the Bill of Rights guarantees citizens the right to practice whatever religion they please. Government, then, cannot interfere in an individual's freedom of worship – Basically, Liberty from government intrusion

Rights in Conflict

Westboro Baptist Church

Speech vs maintaining safe school environment

War as a catalyst to restrict rights Sedition Act of 1798 Espionage and Sedition Acts Smith Act of 1940, Internal Security Act 1950, Communist Control Act 1954 Goal of each was to limit free speech to protect the nation…

Cultural Conflicts Immigration(Irish following the Potato Famine, Jews at the beginning of the 20 th century and Hispanics more recently) Strengthening of sub-cultures different views as to the meaning and scope of certain constitutionally protected freedoms – Jewish groups and the manger scene – bilingual education? – Homosexuals as Boy Scout leaders?

Selective Incorporation Definition? 14 th Amendment: no state shall deprive any person of life, liberty, or property without due process of law and that no state shall deny to any person within its jurisdiction the equal protection of the laws – But Bill of Rights will not be applied until the courts get involved… even then it was one piece at a time.

Selective Incorporation: The Biggies Gitlow v. New York – Supreme Court found that Gitlow was guilty of his crimes – the court also found that the states were not allowed to deny their residents speech and press rights because they are “fundamental personal rights” Palko v. Connecticut – Held up conviction, but certain rights should be applied to the states because they “represented the very essence of a scheme of ordered liberty”

Freedom of expression… in the proper location only?

Freedom of Expression: Tests used by the courts Clear and present danger test (the question of sedition) – Schenk v. US, 1919 – Speech can be suppressed only if there is an imminent threat to society – Ex: falsely shouting “Fire!” in a crowded theater

Freedom of Expression: Tests used by the courts Preferred position – Free speech is of utmost importance and should therefore occupy a “preferred position” above other values  government should almost never restrict it

Freedom of Expression: Tests used by the courts Prior Restraint – Blocking speech before it is given – Such action is presumed by courts to be unconstitutional – EX: Pentagon Papers case

Freedom of Expression: Tests used by the courts Neutrality – must not favor one group more than another Clarity – definitions and instructions must be clear (for acquiring permits or in defining obscenity) Least-restrictive means – restrict the least amount of freedoms as possible… only the bare minimum

What about Symbolic Speech? Texas v. Johnson, 1989: flag burning okay – One vote away from sending an amendment to the states in 2006…would have been interesting! U.S. v. O’Brien, 1968: cannot burn your draft card… wait a minute! How is that different than the flag?

What speech is not automatically protected? Slander/Libel…but… – False statement – Harm – If politician or in the limelight: “actual malice” – Victim has to prove that he/she is the victim Obscenity… well, kind of… Symbolic Speech False advertising… because that makes everybody angry

Church and state Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Church and State Free exercise clause- no state interference – Law may not impose special burdens on religion – But no religious exemptions from laws binding all other citizens

Free exercise clause in practice – Polygamy (Reynolds v. US) – Not vaccinating children before they enter school – Christian Scientists – Refusal to pay Social Security taxes - Amish Religious practices that have been permitted – Not saluting the flag in public school – Jehovah’s Witnesses – Not attending school after 8 th grade (Amish)

Establishment Clause government may NOT establish an official religion – Congress at the time: simply “no national religion” – Jefferson’s view: “wall of separation”-letter to the Danbury Baptist Association in 1801 – Ambiguous phrasing of First Amendment requires Court interpretation

Establishment Clause in practice Three-part test for constitutional aid (Lemon) – Secular purpose – Primary effect neither advances nor inhibits religion – No excessive government entanglement with religion No Prayer in public schools (Engel v. Vitale) No Ten Commandments at Kentucky ct building, but okay outside the Texas state capital.