Constitutional Freedoms

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Chapter 13

• Constitutional Freedoms

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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.

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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.

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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

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• 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 lords Prayer in public schools
• Reason Teachers whose salaries were paid by tax
  dollars conducted the activities in public
  buildings (Violated 1st Amendment)

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• . Lemon v. Kurtzman (1971)Lemon TestIs
  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
•  

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• 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

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• 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.

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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.

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Section 2
The Establishment Clause

• The first clause of the First Amendmentthe
  establishment clausestates that Congress shall
  make no law respecting an establishment of
  religion.

• The second clausethe free exercise
  clauseprohibits 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.

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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
  schoolsschools operated by a church or religious
  group.

• The Court ruled that the law was constitutional
  because it benefited students rather than
  religion directly.

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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.

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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.

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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.

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• . 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.

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• 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

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Section 3
Types of Speech

• The First Amendment exists to protect the
  expression of unpopular ideaspopular ideas need
  little protection.

• Pure speech is the verbal expression of thought
  and opinion before an audience that has chosen to
  listen.
• Symbolic speechsometimes called expressive
  conductinvolves the use of actions and symbols,
  in addition to or instead of words, to express
  opinions.

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Symbolic Speech

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

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Section 3
Regulating Speech

• 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 speechspeech urging resistance to
  lawful authority or advocating the overthrow of
  the government.

Civil Liberties and Terrorism
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Regulating speech

• a. Clear Present Danger
• Schenck v. United States (1919)Clear
  Present danger test
• the defendants anti draft rhetoric created a
  clear 7 present danger to the success of the
  war effort, it was not protected speech.

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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

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Regulating speech

• c. The Preferred Position Doctrine
• 1. 1940sIt 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.

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Section 3
Other Unprotected Speech

• The First Amendment does not protect defamatory
  speech, or false speech that damages a persons
  good name, character, or reputation. There are
  two types of defamatory speech

• slander, which is spoken, and
• libel, which is written.

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Figure 1
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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.

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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.
•  

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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.

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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.

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• 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.

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Section 4
Fair Trials and Free Press

• In Sheppard v. Maxwell the Supreme Court ruled
  that press coverage interfered with Sheppards
  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.

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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
  isolateduntil the trial is over

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• 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 lawswhich 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

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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 lawslaws
  that give reporters some protection from
  disclosing their sources in state courts.

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• 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. 1997Court 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)

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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.

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• 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

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• 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 communitys right to censor is limited.

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

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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.

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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.

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• 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

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Section 5
Assembly and Disorder

• A hecklers 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.

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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

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• D. Freedom of Associationthe 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.