1st Amendment Freedoms

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• 1st Amendment Freedoms
• Remember, the Bill of Rights was added AFTER the
  ratification of the Constitution, however the
  Framers did spell out some specific rights in the
  Constitution
• Writ of Habeas Corpus
• produce the body whereby an official (police,
  agents, etc) must produce the prisoner in court
  and tell the court why he/she is being held
• Protection again ex post facto laws (after the
  fact)
• This would be where a person is arrested for an
  act he/she committed when the act was NOT a
  crime, but now is
• Bill of Attainder
• This is where Congress (or the president)
  inflicts punishment on a specific group without a
  trial.
• When the Bill of Rights was ratified, it did NOT
  apply to the states until the Due Process Clause
  of the 14th Amendment told the states they must
  comply

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This was a result of the case Gitlow v. New York
whereby the Supreme Court ruled that selective
incorporation of the Bill of Rights MUST apply to
the states

• Freedom of Religion
• There cannot be an establishment of religion
• The Establishment Clause is in the Constitution
  to prevent three things
• government sponsorship of religion
• government financial support of religion
• government involvement in religious matters
• There have been many court battles over the
  Clause
• Everson v. Board of Education of Ewing Township
  (1947) was the case that brought the Separate of
  Church and State clause into effect
• It was strengthen with Lemon v. Kurtzman which
  laid down a three-part test
• A law must have a secular legislative purpose
• it must neither advance nor inhibit religion
• it must avoid excessive government entanglement
  with religion
• Sandra Day OConnor made the endorsement test
  forbidding governmental practices that a
  reasonable observer would view as endorsing
  religion

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• Vouchers and State Aid for Religious Schools
• Vouchers (public money for private school) has
  been a large debate
• It was part of the NCLB act
• The Supreme Court upheld the voucher system
• THE FREE EXERCISE CLAUSE
• The government cannot deny us any right because
  of our beliefs or lack of them
• There is a catch
• If worship of a religion or religious activity
  violates laws protecting the health, safety or
  morals of the community, it is not allowed

FREE SPEECH AND FREE PEOPLE There are different
types of speech Pure- verbal communication of
ideas Symbolic Speech- nonverbal (wearing
armband, burn draft card, etc) Does the Court
draw the line somewhere? THEY MUST ASK
THEMSELVES THE QUESTION did someone step over
the line?
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• There were three constitutional test developed in
  the early 1900s
• (THEY NO LONGER APPLY)
• 1. The Bad Tendency Test
• Judges presumed it was reasonable to forbid
  speech that has a tendency to corrupt society or
  cause people to engage in an illegal act
• 2. The Clear and Present Danger Test
• The Government should not be allowed to interfere
  with speech unless it can prove that the speech
  present an immediate danger
• (i.e. To yell FIRE!! inside a theatre)
• 3. The Preferred Position Doctrine
• This was interpreted that freedom of expression
  is so essential to democracy that governments
  should not punish persons for what they say, only
  for what they do

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NON-PROTECTED AND PROTECTED SPEECH Libel,
obscenity, fight words, and commercial speech are
NONPROTECTED LIBEL Libel is written defamation
of another person (remember it is not easy to be
convicted of libel) Sedition can get you into
trouble as well You need to know the difference
between seditious speech and seditious
action OBSCENITY AND PORNOGRAPHY
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FIGHTING WORDS They are unprotected because
their very utterance may inflict injury or tend
to incite an immediate breach of
peace COMMERCIAL SPEECH There is less
protection for Commercial Speech, and it is done
mostly to discourage false and misleading
ads Protected Speech The Supreme Court usually
following the following doctrines to measure the
limits of the governments power to regulate
speech 1. Prior Restraint Unless it relates to
military or national security, Prior Restraint
(censorship before publication) is
unconstitutional 2. Void for Vagueness A law
cannot be so vague that a person does not know if
they are violating a law or not.
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3. Least Drastic Means The Government must take
the least drastic way to deal with a problem they
would like to regulate Remember, taking away
someones free speech would be the most drastic
option 4. Content and Viewpoint
Neutrality Basically, if you are going to
regulate what someone can do via freedom of
speech (book uses the example of posting
handbills on telephone poles), you cannot
discriminate against a certain viewpoint or
certain content just because you dont like it
Freedom of the Press The courts usually allow the
press print whatever no matter how they get it,
but journalist do not believe this is
enough They think freedom of the press also
allow them to ignore legal requests and to
withhold information. They also feel that the
1st Amendment gives them a right to access (go
wherever they want to get info)
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• DOES THE PRESS HAVE THE RIGHT TO WITHHOLD
  INFORMATION? (grand juries, legislative
  committees, etc)
• The Supreme Court says no
• But, Congress and the States can make Shield
  Laws allow some protection for reports and their
  sources
• DOES THE PRESS HAVE RIGHT TO KNOW?
• Can they go wherever they want?
• Some states have made Sunshine laws making all
  agencies to open their meetings to the public
  (and press)

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• FREEDOM OF ASSEMBLY
• Everyone is entitled to it, but you cannot
  communicate your views to everyone, in every
  place, at every time
• Governments cannot censor what can be said, but
  they can make reasonable time, place, and
  manner regulations
• The Supreme Court has divided public property
  into three categories
• Public Forums- Usually streets, sidewalks, parks.
  
• Limited Public Forums- These areas are available
  for assembly and speech for
• a limited purpose, and you can also limit the
  speakers (i.e. only students, etc)
• Non Public Forums- libraries, courthouse,
  prisons, swimming pools, etc that
• are open to the public, but are not really public
  forums
• A big issue has been civil disobedience
  (deliberate refusal to obey a law or comply with
  the orders of public officials as a means of
  expressing opposition)

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• DUE PROCESS RIGHTS
• The 5th and 14th Amendment says that the
  government will not deny any person life,
  liberty, or property without due process of law
• What is Due Process? That is up for
  interpretation
• The book defines it as the established rules and
  regulations that restrain people in government
  who exercise power.
• Two types
• 1. Procedural Due Process
• This is the way in which a law is applied
  (basically a trial, but it does not
• apply only to criminal cases)
• The government can also violate procedural due
  process is a law is too vague
• 2. Substantive Due Process
• This says that there are certain things
  government should not be allowed to do
• Puts limits on the legislative branch because
  they make the laws
• Means that an unreasonable law, even if it went
  though the proper channels,
• is unconstitutional

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• PRIVACY RIGHTS
• One of the most important extensions of
  substantive due process in the last 40 years has
  been the protection of privacy
• The word Privacy is not in the Bill of Rights,
  but in Griswold v. Connecticut (65), the S.C.
  pulled together parts of the 1st, 3rd, 4th, 5th,
  9th, and 14th Amendment to say that the right to
  privacy is protected
• There are three aspects of the right to privacy
• The right to be free form governmental
  surveillance and intrusion, especially
• in marital matters
• The right not to have private affairs made public
  by the government
• The right to be free in thought and belief from
  governmental regulations

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• Now, lets apply it
• ABORTION RIGHTS
• The Roe v. Wade decision says
• During the 1st Trimester, the government cannot
  interfere
• During the 2nd trimester, the states can make
  reasonable regulation about
• how where, and when abortions may be performed
• During the 3rd Trimester, when the fetus can live
  outside the womb, the states
• can prohibit abortions altogether (except to
  protect the health of the mother)
• Number 2 is a little vague
• It was clarified in Planned Parenthood v. Casey
  (1992)
• The court said that state can prohibit the use of
  state funds and facilities for performing
  abortions, and make a minors right conditional
  on her first
• notifying a parent(s) or a judge
• A state may not condition a womans right to an
  abortion on her first notifying her husband

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• CITIZENSHIP RIGHTS
• How do you obtain citizenship?
• Be born here
• 2. Naturalization (legal process to get
  citizenship)
• You must adhere to the following qualifications
  (besides being 18)
• must enter the U.S. legally
• be of good moral character
• must declare their support of the principles of
  American government
• read, write, and speak English
• Know basic knowledge of US history and government
• If a person is 18, can read, write, and speak
  English and has lived in US for 5 continuous
  years, he/she may file a petition requesting
  citizenship
• There is then a hearing about background and
  character and the person is asked questions about
  US govt and history
• Finally, they attend a final hearing where they
  swear an oath of allegiance to the laws and
  Constitution of the US.

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• Dual Citizenship can also occur
• RIGHTS OF AMERICAN CITIZENS- The Bill of Rights
  are given to all American citizens, however,
  exceptions may apply
• Right to live and travel in the US
• The right to Travel Abroad
• RIGHTS OF ALIENS
• We the PEOPLE

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• RIGHTS OF PERSONS ACCUSED OF CRIMES
• Rights of persons accused of crimes are spelled
  out in Amendments 4, 5, 6 and 8
• 4th Amendment
• Put limits on investigations
• People have the right to be secure in their
  person, houses, papers, and effect
• against unreasonable searches and seizuresand
  no warrants shall issue, but
• upon probable causedescribing the place to be
  searched and the persons or
• things to be seized.

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• Searches are generally considered to be
  reasonable under 2 circumstances
• 1. Police/Agents have a search warrant
• It is an order from a judge allowing the search
• It only can be issued if there is a good reason
  (probable cause) to
• believe that searching a place may provide
  evidence in a criminal case
• 2. Individual has been lawfully arrested
• Arrests in which a judge has issued an arrest
  warrant, a crime has been
• committed in front of an official, or if an
  officer has probable cause to
• believe that an individual has committed a
  serious crime.
• Mapp v. Ohio established the Exclusionary Rule.
  It is the principle that evidence gathered
  illegally cannot be used in a trial
• It has been relaxed in recent yearsUS v. Leon
  said that as long as the police act in good
  faith when they request a warrant, the evidence
  they collect may be used in court even if the
  warrant is defective (i.e. the judge screwed up)

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• Exceptions to the general rule against
  warrantless searches
• 1. The Plain-View Rule
• Officers can seized something if they can see it
  or if they thing something
• was used in a crime
• 2. Exigent Circumstances
• When offices do not have time to secure a warrant
  before evidence is
• destroyed, when a criminal escapes, or when
  there is need to protect the
• public, they can seize evidence
• 3. The Auto Exception
• If an officer believes a car is being used to
  commit a crime, even a traffic
• offense, they may stop the car, detain the
  person, and search them, containers
• or packages without a warrant

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THE 4TH AMENDMENT IN HIGH SCHOOLS The Supreme
Court ruled in New Jersey v. T.L.O. that school
officials do NOT need warrants or probable cause
to search students or their property. All they
need are reasonable ground to believe the search
will uncover evidence that a student has broken
school rules.
5th amendment A person cannot be charged with a
serious crime unless a grand jury investigation
takes place (indictment is made) Double Jeopardy
cannot be used You have the right to remain
silent plead the fifthrefusing to answer on the
grounds of self-incrimination Courts have also
told police to issue warnings or rights known as
Miranda Rights to people they arrest
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6th amendment Right to counsel Right to a fair
trial by a jury of your peers Speedy trial (once
a person is arrested, the beginning of their
trial cannot be more than 100 days) 8th
amendment no excessive bail No Cruel and unusual
punishment (capital punishment is allowed)
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• Equal Rights Under the Law-
• The Framers wanted to protect our Natural
  Rights
• These rights are for ALL PEOPLE, not just
  citizens (sometimes called human rights)
• There is a distinction between Civil Liberties
  and Civil Rights
• Civil Liberties is a term that refers to your
  actual freedom (speech, religion, and expression)
• Civil Rights is your right NOT to be
  discriminated against because of race, religion,
  gender, etc
• The Constitution
• Ensures that government officials do not
  discriminate against us
• grants national and state governments the power
  to protect civil rights

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• EQUALITY AND EQUAL RIGHTS
• Some say equality is indefinable
• It can include
• Equality of Opportunity- no one is discriminated
  against because of race, ethnic origin, religion,
  gender, sexual orientation
• Equality of starting conditions- everyone should
  be born into a situation in which they can
  succeed. If not, the government sometimes helps
  (i.e. Head Start programs)
• Equality between groups- If there is a disparity
  between wealth groups need programs like
  Affirmative Action to provide special help to
  those who have been discriminated against.
• Equality of results- There are two views
• There should be a safety net so that no one
  falls below. Everyone should have the same
  amount (or close to) of material goods
• No matter the situation, if you work hard things
  will get better

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• THE QUEST FOR EQUAL JUSTICE
• Racial Equality
• Womens Rights
• Hispanics
• Asian Americans
• Native Americans
• EQUAL PROTECTION OF THE LAWS
• The equal protection clause in the 14th Amendment
  says that the 5th
• Amendment also applies to the states
• The government may not use unreasonable
  classifications of people
• It is unreasonable when there is no relation
  between the classes it creates and
• the government goal

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• VOTING RIGHTS
• Some voting initiatives have been declared
  illegal
• White primaries
• Racial gerrymandering
• Poll tax
• Literacy test
• The Voting Rights Act of 1965 prohibited voting
  qualifications that result in a denial of that
  right to any citizen because of race and color

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• EDUCATION RIGHTS
• Jim Crow Laws were around, and Plessy v. Ferguson
  said that separate is OK, but it must be equal
• Then, the Brown v. Board decision in 1954
  desegregated schools
• Problem was that blacks and whites were in
  separate neighborhoods and so
• some federal courts began busing students back
  and forth
• The S.C. said that busing was OK only if it was a
  result of officially sanctioned segregation or de
  jure segregation
• The S.C. refused to permit federal judges to
  order busing because of de facto segregation (or
  segregation resulting from economic or social
  conditions)

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• Equal Protection Under the Law
• What does equal protection mean?
• It basically means that governments cannot draw
  unreasonable distinctions among different groups
  of people
• Well, Unreasonable is the key wordthe government
  must classify or draw distinctions among the
  categories of people
• Can a state put a large tax on cigarettes? It
  taxes smokers, but not non-smokers

• The S.C. has made basic guidelines for
  considering when a state law or action might
  violate the equal protection clause
• 1. RATIONAL BASIS TEST
• The state must have a good reason to justify the
  classification of someone
• It must be reasonably related
• For examplenot allowing redheads to drive a car
  would violate the Equal Protection Clause because
  there is no relationship between the two
• BUT, not allowing 16 year olds to have more than
  one person in the car with them would not violate
  it because there is a relationship between the
  amount of people in a young persons car and the
  frequency of accidents

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• 2. Suspect Classifications
• This is when a classification is based on race or
  national origin
• (i.e. saying that blacks, not whites must ride in
  the back of a bus)
• 3. Fundamental Rights
• There are rights that go to the heart of the
  American system or are indispensable in a just
  system
• Some examples of these rights are the right to
  travel freely, right to vote, and the 1st
  Amendment rights
• PROVING INTENT TO DISCRIMINATE
• Discrimination is when individuals are treated
  unfairly just because of their race, gender,
  ethnic group, age, physical disabling, religion,
  sexual orientation)
• They way prove this has happened is that you must
  show that an intent to discriminate motivated the
  states action

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• Challenges for Civil Liberties
• Affirmative Action
• Government policy that directly or indirectly
  give a preference to minorities, women, or the
  physically challenged in order to make up for
  past discrimination caused by society as a whole
• In Education
• The Supreme Court said in University of Calf v.
  Bakke that race can play a role in admission as
  long as they DID NOT set aside a specific number
  of students by using a quota
• It is used in the workforce as well
• Some call it reverse discrimination
• The Right to Privacy
• It is no where in the Constitution, but the S.C.
  said that it is allowed
• This has opened the door for many things, but not
  gay rights