Chapter 15First Amendment Freedoms

First Amendment Freedoms“Congress shall make no law respecting an establishment of religion, or prohibition the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceable to assemble, and to petition the Government for redress of grievances”

civil libertiesconstitutionally protected freedoms of all person against government restraint

consciencereligionexpression

protected by the 1st Amendment equal protection clause of the 5th Amendment 14th Amendment

civil rightsconstitutional rights of all persons, not just citizens, to due process and the equal protection of the law

right not to be discriminated against by gov’t on account of race, religion, gender

protected by the due process and equal protection clauses in the 5th and 14th

civil rights laws of national and state government

Legal privilegesgranted by governments

may be subject to conditions or restrictions

example: welfare benefits and drivers licenses

Rights in the Original Constitution

writ of habeas corpus“produce the body

court order directing the official holding the prisoner to bring him to a court official and explain why they are being held

Antiterrorism and Effective Death Penalty Act of 1996

restricts the # of times a person may be granted habeas corpus review, stop most appeals @ the level of the US Court of Appeals, requires fed. judges to defer the decisions of st. judges unless they are clearly “unreasonable”

“enemy combatants” - Court held had a right to an independent tribunal to review their detention Hamdan v Rumsfeld 2006 - Court held the Bush admin couldn’t try enemy combatants by military commissions, rather civilian or courts martial, and couldn’t ignore the Geneva Conventions rules re: the accused right to see the evidence

Rights in the Original Constitutionex post facto laws

retroactive criminal law, increasing punishment after crime committed, lessening the proof necess. to convict for a crime after, prosecution of crime after the statute of limitation expireddoes not prevent the retroactive application of laws th at work to the benefit of an accused person

Bill of attainderlegislative acts inflicting punishment, deprivation of property w/o trial

Bill of Rights and the StatesFederalists didn’t feel a B.of R. was necess. b/c the Const. establ. a limited gov’t that wouldn’t intrude on individual rightsAnti-feds. were suspicious and not persuaded

Fed’s promised to correct deficiency in the 1st session of Congress12 Amendments proposed, 10 accepted.... Bill of Rights

Originally the B. of R. only applied to the national government b/c framers were confident citizens could control their own state officials & b/c most states const.’s already had bills of rights

the 14th Amendment would later be added after the civil war 1868, it’s due process clause would limit the states from depriving life, lib., property like the B. o R. did on the the national levelthe High Court refused to interpret it this way until Gitlow v. New York (1925)

“freedom of speech and the press were protected by the due process clause from impairment by the states”

Bill of Rights and the States

Gitlow case - decision was the 1st time the Constitution protected freedom of speech from abridgment by state and local govt.sSelective Incorporation when provisions of the Bill of Rights are brought within the scope of the 14th Amend. and applied to state and local gov.

increased during the 1930s through the 1960s

See table 15-2

Bill of Rights and the StatesGitlow case - decision was the 1st time the Constitution protected freedom of speech from abridgment by state and local govt.sSelective Incorporation when provisions of the Bill of Rights are brought within the scope of the 14th Amend. and applied to state and local gov.

increased during the 1930s through the 1960saltered the relationship between the national government and the states, made the federal courts the most important protectors of out liberties

new judicial federalism - advocates for state constit. to be the independ. source of protections to civil liberties and rights. Believe that the Constit. should set minimum but not maximum standards for protecting our rights

See table 15-2

Freedom of Religionestablishment clause- forbids the establishment of a state religion

designed to prevent 3 evilsgov’t. sponsorship of religiongov’t. financial support of religiongov’t. involvement in religious matters

does not prevent gov’t from “accommodating” religious needs

Everson v. Board of Educaiton of Ewing Township (1947)establishment clause creates a “wall of separation” between church and stateprohibits gov’t action that would benefit any religion

Religious Freedom

Freedom of ReligionLemon v. Kurtzman (1971)

three part testa law must have a secular legislative purposemustn’t advance or prohibit religionmust avoid “excessive government entanglement with religion”

referred to as the Lemon Testanother litmus test, put forth by Justice Sandra Day O’Connor is the endorsement test

she believes the establishment clause forbids governmental practice that a reasonable observer would view as endorsement, even if there is no coercion

Freedom of Religionno nativity scenes on City Hall - impression of endorsement

conservative justices (Rehnquist, Scalia, Thomas) support a non-preferentialist test : Const. prohibits favoritism but does not prohibit aid to all religionsliberal Justices tend to support a strict separation

establishment clause forbids states from devotional exercises in public school curriculum, graduation, and before events like football games

not unconstitutional if student led prayerunconstitutional if sponsored and encouraged by public school officials

Freedom of ReligionStone v Graham (1980)

public displays of 10 Commandments is unconstitutional

Conflicting Decisions 2005Van Orden v. Perry

constitutional b/c had been there for 40 yrs w/ no complaintMcCreary v. ACLU of Kentucky

unconstitutional to erect 10 commandments in a courthouse they immediately were controversial - appeared as an endorsement

Freedom of ReligionElk Grove Unified School District v. Newdow

“under God”Court avoided ruling on issue b/c the plaintiff wasn’t the legal guardian

One thing is certain...... the debate and lawsuits on this topic will continue

Vouchers and State Aid for Religious Schools

Should states provide public dollars to provide financial assistance for students to attend religious schools????

What if a parent wanted to send their child to an Islamic madrasa ?college level: tax $ may be used to construct buildings and operate educat. programs at church relate schools

cant be used for : buildings used for relgious purposesfor teaching religious subjects

Vouchers and State Aid for Religious Schools

elementary and secondary schoolsconstitutional problems are more complicated on this levelstudents are younger and more susceptible to indoctrination

some states have provided tax credits or deductions for parents who send their children to private, largely religious-run schools

credits to parents of children attending nonpublic religious schools are unconstitutionalparents taking deductions from their personal state income tax for tuition is constitutional

Vouchers and State Aid for Religious Schools

Supreme Court has allowed the use of tax $ to provide students at religious schools with

textbooks, standardized tests, lunches, transportation to and from schooldiagnostic services, sign language interpreters, remedial teachers/enrichment teachers, computers and softwareVouchers:

$ given to parents to offset some of the tuition costs of sending their children to private schools, typically used to provided opportunities for students living in rural areas or in school districts with track records of low performing schools

Vouchers and State Aid for Religious SchoolsOpponents argue

violate the establishment clauseSupporters argue

denial of vouchers violates the free exercise clauseZelman v. Simmons-Harris (2002) 5-4 vote

found Ohio’s voucher program neutral an permissibleprovides low income families vouchers up to $2,250 per child for private or public (96% went to religious schools)2006 Florida Supreme Court declared it’s voucher program unconstitutional b/c it reduced the funding for public schools

Free Exercise Clause

no government can compel someone to accept any creed or to deny them of their rights b/c of what they do not believe

“No religious test shall ever be required as a qualification to any office or public truest under the United States” Article VI

Employment Division v. Smith (1990) Court altered the interpretation of the exercise clause

as long as a law doesn’t single out or ban religious practices it can be applied even if it burdens a particular practice

Free Speech and Free People

nation is based on people’s right to speak freely,to organize in groups,question decisions of government, campaign against them

free speech is not just our right to express ourselves, it is also the right of others to hear usJohn Stuart Mill (economist and political theorist)

“the evil of silencing the expression of opinion, is that it is robbing the human race..... if the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong , they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”

Free Speech and Free PeopleCourts have never interpreted the amendment and right in absolute terms

free speech and the press are limitedmust understand the difference between belief, speech and actionbelief

free to believe whatever we wishcan not punish you for your beliefs or interfere with freedom of conscience

actiongovernment may restrain, “right to swing your fist ends where the nose begins”

speechlies between belief and action: not a absolute right like belief, but not as exposed to govt. restraint as actionsome speech is not entitled to protection

Historical Constitutional TestsBad Tendency Test

English common lawspeech that corrupts society, leads to crime

Clear and Present Dangerformulated in Schenck v. USA (1919)govt can only interfere if words uttered create a “clear and present danger”speech leading to riots, destruction of property, corruption of elections

Preferred Position Doctrine1940s the Court applied 1st Amendment guarantees to the states: use of words and pictures should rarely if ever be curtailed b/c free speech is essential to democracyonly thing punishable should be actions

Non-protected and Protected

some speech is not entitled to protectionlibel, obscenity, fighting words, commercial speechlibel: written defamation or false statementsseditious libel: defaming, criticizing, and advocating the overthrow of government was once subject to criminal penalties..... but no longerdeclared unconstitutional by the court in the case of NY Times v. Sullivan in 1964seditious action on the other hand is illegal and punishable Bush admin threatened prosecutions of the NY Times for disclosing information about the Iraq War

Non-protected and Protected

only way for public officials to collect damages - prove that there was “actual malice” in the statements (make with a knowledge or reckless disregard for the truth)

standards for libel charges brought by private citizens aren’t as rigorous

can collect damages w/o having to prove actual maliceprove statements were false and negligently published

Obscenity and Pornography : “One man’s vulgarity is another man’s lyric”

Miller v. California (1973)definition of obscenity: if the average person, based on contemporary time, would find the work appeals to an excessive interest in sexdepicts in a patently offensive way sexual conduct defined by applicable law (legislatively defined act)the work, taken as a whole, lacks literary, artistic, political, or scientific value

Non-protected and Protected

Court has held that child pornography is not protected by the 1st Amendment

exploitation of minorsFighting Words

unprotected b/c their very utterance may inflict injury or tend to incite an immediate breech of the peacethis does not include Yo Momma Jokes :)ex: Cross Burnings may be punishable b/c it is a form of intimidation

Commercial Speechadvertisements, etc., used to be less protected b/c it was deemed to have lesser value than political speechnow has more protections, exception - false advertisement

Protected SpeechJudges are most suspicious of prior restraint

censorship imposed before a speech is made, published in a newspaper, shown in a motion pictureonly approved prior restraint relate to military and national security mattershigh school authorities control over student newspapers and yearbooks

Void for vaguenesslaws that are so vague that people don’t know if speech would violate them - hence stifles speech

Protected Speech

Least Drastic MeansEven for an important purpose, legislatures can’t pass laws that impinge on 1st Amend. freedoms if there are other means available

Content and Viewpoint NeutralityLaws need to content-neutral or viewpoint-neutral, that is, laws that apply to all kinds of speech and to all views – these are more likely to be found constitutional

Freedom of the PressCourts have protected the right to publish information, no matter how it was gathered…….. Greenwald

Does the Press Have a right to withhold Information?Reporters have declared they have the right to keep inf. from grand juries, & legislative and investigating committees.Claim w/o this right they wouldn’t be able to get the information they need to keep the public informed

Supreme Court has refused to acknowledge that reporters and public officials have the right to

Freedom of the PressPress shield laws: passed by some states to protect reporters

from state court subpoenasDoes the press have a right to know?

Investigative reporters: entering food processing plants, day care centers, mental hospitals

Supreme Court has refused to acknowledge that the press has a Constitutional right to know- has conceded that reporters have a right to be in criminal trials

Sunshine Laws: many state have passed, requiring government agencies to open their meetings to the public

- Congress has authorized the president to establish a classification system of secret information – it is a criminal act to divulge classified information

Freedom of the PressFOIA – Freedom of Information Act 1966

Makes records available to the public – w/ certain exemptions

Financial transactionsPersonnel recordsCriminal investigations filesInteroffice memosLetters used in decision makingClinton revised the Act - automatic declassification of almost all documents after 25 years- 90% of the 250,000 docs. req. have been granted

Electronic Freedom of Information Act 1996- put the files online and establ. a index of their records

Free Press Versus Fair TrailsReporters describe crimes in vivid details This may inflame public opinion and make it hard to find a panel of impartial jurors

“gag orders”may be closed to the press in rare cases

Media & CommunicationMail- 1965 Court struck down an act requiring postmasters to detain foreign mailings w/ “communist” propaganda- govt censorship of mail is unconstitutional- mailboxes can only be used for materials sent through he US mail (does FedEX drop your packages in your mailbox?)

Media & Communication

Handbills, Sound Trucks, BillboardsReligious and political pamphlets, leaflets, and handbills have been historic weapons in defense of libertyThey have been found to be constitutionally protected

Motion Pictures and PlaysIt is the burden of the government to prove to the court that the particular film in question is obscenePlays, concerts, revues are also entitled to Const. protection

Broadcast and Cable Communicationsbroad. receives the least 1st Amend protection

Since federal funds are distributed to commercial broadcasts the FCC regulates theme and can levy finesCable TV has greater protection b/c homeowners can block unwanted programming

Telecommunications and the Internet

Reno v. American Civil Liberties Union 1997COPA Child Online Protection Act 1998

Makes criminal for web sites to make available to anyone under the age of 17 sexually explicit material considered “harmful to minors” based on “community standards” ……. Depends on the community, seems vague

Freedom of Assembly- even if the goal of the protest is not socially acceptable to the society at large (Neo Nazis, KKK, “Million Youth March” racist anti-semite: Khallid Abdul Muhammad) it will usually be allowed if the proper permits are granted

- Not always “bad guys” whose right to assemble has had to be protected by the courts…….. MLK & the civil rights movement, Occupy Wall Street

Surveillance of Protests

• It was revealed that an internal Department of Homeland Security report warned that Occupy Wall Street protests were a potential source of violence; the report stated that "mass gatherings associated with public protest movements can have disruptive effects on transportation, commercial, and government services, especially when staged in major metropolitan areas". The DHS keeps a file on the movement and monitors social media for information, according to leaked emails released by Wikileaks.[162][163]

Public Forums an Time, Place, and Manner Regulations

Protects the right to speak, doesn’t protect the right to communicate views to everyone, in every place, at every time they wish

Gov’ts cant censor what can be said, can make “reasonable” time, place, and manner regulations for protests and paradesPublic forums – places were free exercise is accepted (streets, sidewalks)Limited public forums – limited availability

Difference between Liberties and Rights

• Civil liberties are protections against government actions. 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. Amendment I gives the individual "liberty" from the actions of the government.

• Civil rights, in contrast, refer to positive actions of government should take to create equal conditions for all Americans. The term "civil rights" is often associated with the protection of minority groups, such as African Americans, Hispanics, and women. The government counterbalances the "majority rule" tendency in a democracy that often finds minorities outvoted.