Chapter 19: Civil Liberties: First Amendment Freedoms



Chapter 19: Civil Liberties: First Amendment Freedoms

According to Americans for Responsible Television, the typical high school senior today has seen an astonishing 33,000 murders and some 200,000 other acts of violence on television to this point in their lives.

Section 1: The Unalienable Rights

I. Rights and Liberties in American Political Thought

A. The Revolutionary War was fought over personal freedoms

B. In order for the Constitution to be ratified, a Bill of Rights had to be added

1. The first 10 amendments to the Constitution

2. Deal with individual freedoms

C. Civil Rights and Civil Liberties

1. Civil liberties

a. Protections against government

b. Guarantees of safety of persons, opinions, and property from the arbitrary acts of government

2. Civil rights

a. Positive acts of government that seek to make constitutional guarantees a reality for all people

II. Individual Rights and the Principle of Limited Government

III. Relativity of Individual Rights

A. No one has the right to do what he/she pleases

B. All persons have the right to do s they please as long as they do not infringe on the rights of others

IV. When Rights Conflict

A. Freedom of the press versus the right to a fair trial

B. Dr. Samuel Sheppard case (The Fugitive), high profile trials

V. Persons to Whom Rights Are Guaranteed

A. Extended to all persons

1. Aliens too (foreign born residents, non citizens) have certain rights

2. WWII-Japanese “War Relocation” Camps

a. 1988-government admitted this was wrong and agreed to pay $20,000 to each of the internees still alive

VI. Federalism and Individual Rights

A. The Scope of the Bill of Rights

1. Meant to restrict the national government, not necessarily the states

B. The Modifying Effect of the 14th Amendment

1. Due Process Clause

a. “No State shall...deprive any person of life, liberty, or property, without due process of law...”

b. See cases dealing with this on page 489

VII. The Role of the 9th Amendment

A. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”

Section 2: The Freedom of Religion

First Amendment to the Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I. Religion and the Bill of Rights

A. Guarantees Americans the right to practice any religion, or none at all.

II. Separation of Church and State

A. Establishment Clause

1. Sets up a “wall of separation between church and state”

B. Released Time

1. Programs that allow public schools to release students from school time to attend religious classes

2. In 1948, the Court struck this down, but in 1952 it allowed release time

C. Prayers and the Bible

1. Major cases:

a. Engel v. Vitale, 1962-Court outlawed the use, even on a voluntary basis, of a prayer written by the New York State Board of Regents

b. Stone v. Graham, 1980-Court ruled that a Kentucky law that required that copies of the Ten Commandments be posted in all public school classrooms was unconstitutional

c. Wallace v. Jaffree, 1985-Court ruled that Alabama’s “moment of silence law” was unconstitutional

d. Lee v. Weisman, 1992-Court ruled that the offering of prayer as part of a public school graduation ceremony was unconstitutional (Rhode Island)

D. Student Religious Groups

1. Equal Access Act of 1984

a. Statute declares that any public high school that receives federal funds must allow student religious groups to meet in the school on the same terms that it sets for other student organizations

E. Evolution

1. Court has ruled that evolution may be taught in classrooms and has overturned state laws to the contrary

F. Seasonal Displays

1. The Court has upheld displays that include non religious decorations

G. Chaplains in Congress and the State Legislatures

1. Prayer has been allowed in Congress and State Legislatures

a. Tradition

b. Legislators, unlike schoolchildren, are not “susceptible to religious indoctrination or peer pressure”

H. Tax Exemptions

1. Court has upheld tax exemptions given to religious bodies

I. State Aid to Parochial Schools

1. The Lemon Test (Lemon v. Kurtzman, 1971)

a. The purpose of the aid must be clearly secular (non religious)

b. Its primary effect must neither advance nor inhibit religion

c. It must avoid an “excessive entanglement of government with religion”

III. The Free Exercise of Religion

A. Free Exercise Clause

1. Guarantees to each person the right to believe whatever that person chooses to believe in matters of religion

2. Restrictions

a. One cannot violate criminal laws, offend public morals, or otherwise threaten the health, welfare, or safety of the community

Section 3: Freedom of Speech and Press

I. Democracy and Freedom of Expression

A. 1st and 14th Amendments protections of free speech and free press serve two purposes:

1. To guarantee to each person a right of free expression

2. To ensure to all persons a full, wide-ranging discussion of public affairs

B. Restrictions

1. Libel

a. False and malicious use of printed words

2. Slander

a. False and malicious use of spoken words

II. Obscenity

A. What language in printed matter, films, and other materials are obscene? What restrictions can be properly placed on such materials?

B. Miller v. California-1973

A book, film, recording, or other piece of material is legally obscene if:

1. “The average person applying contemporary community standards” finds that the work, taken as a whole, “appeals to the prurient interest” (excite lust)

2. “The work depicts or describes, in a patently offensive way” a form of sexual conduct specifically dealt with in an anti-obscenity law

3. “The work, taken as a whole, lacks serious literary, artistic, political, or scientific value”

C. See some of the cases on page 500-501

III. Prior Restraint

A. The government cannot, except in the most extreme cases, curb ideas before they are expressed

1. In times of war or to protect national interests

B. School Newspapers

1. The court has ruled that school officials have a broad power to exercise editorial power over style and content.

IV. Confidentiality

A. Should reporters have to reveal their sources in court?

1. The Supreme Court says yes (Branzburg v. Hayes, 1972)

2. Shield Laws (30 states have)

a. Give reporters some protection against having to disclose their sources or reveal other confidential information in legal proceedings in those states.

V. Motion Pictures

A. Ratings system, which is a self-imposed censorship by the motion pictures industry, has been upheld in courts

1. Local communities can ban “obscene” movies through a local movie review board

2. Few exist today

VI. Radio and Television

A. Subject to extensive federal regulation (FCC)

B. They are property of the public, not private

1. Cable television is being given broader rights

VII. Symbolic Speech

A. Replacing words with actions and objects; expression by conduct

1. Picketing

a. Patrolling of a business site by workers who are on strike

B. Example: burning draft cards, flag, wearing armbands

1. Acts can be punished if:

a. The object of the protest is within the constitutional powers of the government

b. Whatever restriction is placed on expression is no greater than necessary in the circumstances

c. The government’s real interest in the matter is not to squelch dissent

C. Flag Burning is a very divisive issue; to date, the Court has allowed it

VIII. Commercial Speech

A. Speech for Business purposes (advertising)

B. Government prohibits false and misleading advertisements, and the advertising of illegal goods or services

Section 4: Freedom of Expression and National Security

I. Punishable Acts

A. Espionage

1. The practice of spying for a foreign power

B. Sabotage

1. Involves an act of destruction intended to hinder a nation’s war or defense effort

C. Treason

1. Levying war against the nation or supporting its enemies

D. Sedition

1. The incitement of resistance to lawful authority

II. The Alien and Sedition Acts

A. 1798-Gave the President the power to deport undesirable aliens and made “any false, scandalous, and malicious” criticism of the government a crime

B. Would have been unconstitutional, but were never tested

III. Seditious Acts in Wartime

A. Espionage Act of 1917

1. Made it a crime to encourage disloyalty, interfere with the draft, obstruct recruiting, incite insubordination in the armed forces, or hinder the sale of government bonds

2. Challenged in Schenck v. United States-1919

a. Conviction of Schenck was upheld

b. Justice Oliver Wendell Holmes established the “clear and present danger” rule

1) Words can be outlawed, and those who utter them can be punished when the words they use trigger an immediate danger that criminal acts will follow

IV. Sedition in Peacetime

A. Smith Act-1940

1. Makes it unlawful for any person to teach or advocate the violent overthrow of government in the U.S. or to organize or knowingly be a member of any group with such an aim

2. After a number of appeals, the Court upheld the constitutionality of the law, but construed its provisions so that enforcement was practically impossible

B. McCarran Act of 1950

1. Required every “communist-front” and “communist-action” organization to register with the Attorney General

2. Created the Subversive Activities Control Board

a. Ordered the Communist party to register in 1953, but the party never did (Why?)

b. Court limited the effectiveness of this Act

C. Communist Control Act of 1954

1. Declares the Communist party in this country to be “a conspiracy to overthrow the Government of the United States”

2. A reaction to McCarthy

Section 5: Freedom of Assembly and Petition

I. The Constitution’s Guarantees

“Peaceable assembly for lawful discussion cannot be made a crime.”

A. Assembly and Petition

1. To gather with one another to express their views on public matters

2. The key is peaceable assemble

II. Time—Place—Manner Regulations

A. Cities and counties can restrict the freedom to assemble in certain ways, but these restrictions must be across the board

B. Restrictions

1. Making a noise or causing any other diversion near a school if that action disrupts school activities

2. Forbids parades near a courthouse when they are intended to influence the court proceedings

3. Rules for keeping the public peace must be precisely drawn and fairly administered

4. Government cannot regulate assemblies on the basis of what might be said there (fees must be uniform)

III. Demonstrations on Public Property

A. The Supreme Court has upheld laws that require advance notice and permits for demonstrations in public places

B. The problem comes when demonstrations turn violent

1. Then both the protesters and members of the public, could be arrested

2. Abortion is the most protested ideal today

IV. Right of Assembly and Private Property

A. The rights of assembly and petition do not give people a right to trespass on private property, even if they wish to express political views

B. A State supreme court may interpret the provisions of that State’s own constitution in such a way as to require the owners of shopping centers to allow the reasonable exercise of the right of petition on their private property

V. Freedom of Association

A. The right to associate with others to promote political, economic, and other social causes is protected

B. 1958 NAACP v. Alabama

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