Chapter 18
Civil Liberties

WHO GOVERNS?
1. Why do the courts play so large a role
in deciding what our civil liberties
should be?

TO WHAT ENDS?
1. Why not display religious symbols on
government property?
2. If a person confesses to committing a
crime, why is that confession
sometimes not used in court?
3. Does the Patriot Act reduce our
liberties?
The Bill of Rights


States feared that what the federal
government had offered in the
Constitution was not enough.
States wanted the Bill of Rights to be
added to the document.
• The Bill of Rights being added made it
so it applied both to states and the
national government.
The Bill of Rights

It was an important limitation on
popular rule.
• It says that there are certain things that
the government can not do even if the
majority wants it done.
The Bill of Rights




Bill of Rights Rap
1) While the rights spelled out in the Bill of Rights
are all important, which is the least important to
you? Why?
2) Which of the rights in the Bill of Rights is most
important to you? Why?
3) Do you think a video like this, if made more
generally available, would help people
understand their rights better? Why or why not
Culture and Civil Liberties

Rights in Conflict
• We think that the BoR is a document
that protects all of our rights all of the
time.


Is this the case???????
Often our competing rights conflict
• Dr. Sheppard vs. Radio
• Pentagon Papers
• Kunz vs. Jews
• Liberty Entrepreneurs



Sedition Acts of 1798
Espionage acts of 1917
Smith Act of 1940
Culture and Civil Liberties

Cultural Conflicts
• The United State use to give rights to
only one group, white protestants.
• Immigration changed that.
Annual Legal Immigration, 18502005
Note: Figures for 1989 and 1990 include persons granted permanent residence
under the legalization program of the Immigration and Reform and Control Act of
1986. Source: Office of Immigration Statistics, 2005 Yearbook of Immigration
Statistics. (Washington, D.C.: Department of Homeland Security, 2006), p. 5.
Cultural Conflicts
Continued….

Ethnic, Religious, and Cultural
Differences:
• Give rise to how freedoms are meant.


Jews and the Nativity Scene
English speaking people believe that schools
should make all students learn English.
Civil Rights and Liberties

Applying the Bill of Rights to the
States
• Due process of law
• Equal protection of the law
• Selective incorporation
Interpreting and Applying the
First Amendment




Freedom of
expression
Freedom of religion
Prior restraint
Clear-and-present
danger test
Freedom Of Expression

First Amendment
• “Congress shall make no
law…….abridging the freedom of speech
or the press, or the right of people
peaceably to assemble, and to petition
the government for a redress of
grievances”.
Speech and National Security

William Blackstone said….
• “A free press is essential to a free state,
but the freedom of that the press should
enjoy is the freedom of prior restraint.”

That is a press should be free from
censorship, or rules.
• Attempts to limit press
 The Sedition Act 1798.
 Schneck and the Espionage Act of 1919
Schneck vs United States


Schneck mailed circulars to men
eligible for the draft, urging them to
resist in 1919.
Can the government stop him????
The KKK


Clarence Brandenburg, a leader of
the KKK in Ohio, staged a cross
burning rally during which he reviled
Blacks and Jews.
Protected or not?
Clear and Present Danger
Test

Justice Holmes
• Clear and Present Danger Test


“The question in every case is whether the
words used are used in such circumstances
and are of such a nature as to create a clear
and present danger that they will bring
about the substantive evils that congress
has the right to prevent.”
Schneck leaflets did create a clear and
present danger.
Women picketed in front
of the White House,
urging President Warren
Harding to release
political radicals
arrested during his
administration. p. 104
Bettmann/CORBIS
Regulating Speech

Seditious Speech
• Any speech urging resistance to lawful
authority.

Can be regulated
Opposite Argument

While some argue for the clear and
present danger test others feel that
the Prefered Doctrine has supreme
power.
• Prefered Doctrine

Holds that the first amendment freedoms
are more fundamental than any other
freedoms and thus should at all costs be
protected.
What is Speech?

Libel
• A written statement

Slander:
• Spoken statement

Obscenity
• Not protected
• What is abscene?

Symbolic Speech
Tim Boyle/Newsmakers/Getty Images
A Ku Klux Klan member uses
his constitutional right to free
speech to utter “white power”
chants in Skokie, Illinois, p.
105 .
“Symbolic speech”: when
young men burned their
draft cards during the
1960s to protest the
Vietnam War, the
Supreme Court ruled
that it was an illegal act
for which they could be
punished. p. 108
Bettmann/CORBIS
Tinker vs Des Moinse

Tinker vs Des Moinse
• Arm Bands

Bethal SD v Frasure
• Suspended for lewd behavior

Hazelwood SD v Kuhlmeier
• Control school sponsored news papers
Copyright © 2011 Cengage
Commercial and
Youthful Speech



p. 109
Corporations
Interest Groups
Youth
Flag Burning

Watch Video
Press

In many nations prior restraint
exists.
• Near vs. Minnisota
• NY Times vs. United States
Times they are limited

Fair Trials and free press.
• Sometimes the first amendment
interferes with the sixth amendment,
the right to a fair trial.
• Sheppard vs. Maxwell
• Ways to control






Move trial
Limit reporters in courtroom
Place controls on reporters conduct.
Isolate witnesses and jurors.
Have jury sequestered.
Gag orders
News Sources

The government does protect news
sources.
Free Press Issues

FCC
• Regulates tv and radio.
• Motion pictures

Requires ratings.
Freedom of Speech




Freedom of Speech and Campus
1) Does your campus have a campus speech
code?
2) Do you think Ohio State’s sexual harassment
speech code, as reported by the students, is
needed on a campus to protect students who
may be harassed sexually? Why or why not?
3) Where would you draw the line between
sexually harassing speech and sexually offensive
speech that is not harassing?
Nazis and Skocki




Nazis and Skocki
1) Do you agree or disagree that the First Amendment
should protect offensive or hate speech? Why or why not?
2) Would you position on question #1 change if that speech
then led to violence?
3) What was the American Civil Liberties Union’s position on
the Nazi group’s right to demonstrate?
Did you know Did you know
The Supreme Court in 1962 ruled 6
to 1 against allowing prayers in
public schools. The specific case
dealing with this issue was Engle v.
Vitale, for which Justice Hugo Black
wrote the Court’s opinion, finding
that school prayers violated the
establishment clause of the First
Amendment.
Religion



Has been and will continue to be a major
part of American culture.
Amendment One protects freedom of
religion.
First Clause of the Amendment:
• Establishment Clause: “Congress shall make
no law respecting an establishment of
religion.”

Second Clause of the Amendment:
• Free Exercise Clause: “prohibits government
from unduly interfering with the free exercise
of religion.”
JFK Church and State?


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
JFK
1) Why do you think Kennedy’s first point was
that the Pope should not tell politicians what to
do?
2) Do you agree or disagree with the idea that
America should not officially be religious? Why?
3) Do you think Kennedy’s statements on the role
of religion in the lives of elected officials would be
supported by most politicians today? Why or why
not?
Founding Fathers

Jefferson and others believed that:
• The first amendment builds, “a wall of
separation between Church and State.”
• What does this mean?
• This has and will always be a
controversy.
Religion in Public Life



Religion has been a long part of American
life.
Article VI of the Constitution bans religious
qualifications for holding office.
However we……….
• Money:

In God We Trust.
• Pledge:

One nation under God.
• Religions:

Tax Exempt
Everson vs. Board of Education
1942


School district transports all children to
school, including religious schools.
Taxpayers are paying for the school bus
and driver, however, the the church is not
being charged for their kids to ride the
bus.
Parochial Schools:
• Schools operated by a church or religious
group.

Supreme Court ruling: ruled that religious
students could ride the buses. It benefited
the students not the church.
State Aid to Parochial
Schools


Some of the biggest arguments come
from whether or not a state can give aid
to church schools.
Since Everson:
• States have given money to church schools
for:


Drivers education and lunch.
Some cases have been taken to court.
• Courts have decided both ways.
• Example:
 Board of Education vs. Allen (1968): upheld that
the states could provide non religious textbooks to
church schools.
 Meek vs. Pittenger (1975): rejected the notion that
a state could purchase instructional materials for
religious schools.
Lemon vs. Kurtzman


Created a three part test called the
Lemon Test:
The Lemon Test
• Three questions must be answered:



Does the aid have a clear non religious
purpose?
Does it neither advance nor inhibit religion?
Does it avoid excessive government
entanglement with religion?
Levitt vs Committee for Public
Education (1973)



The state of New York wanted to
spend money to help religious
schools develop testing programs.
Decision: Unconstitutional
Reason: the school was preparing
the tests and the courts feared they
may be about religious matters.
Committee for Public
Education vs. Regan (1980)



New York pays religious schools to
administer and grade state tests.
Decision: Constitutional
Reason: State prepared tests and
the tests were administered by the
school.
McCollum vs. Board of
Education (1948)


The public schools in Champaign, Illinois,
had a program in which religion teachers
came into the schools once a week and
gave religious instruction in a school
classroom.
Decision:
• Unconstitutional
• Why?

Classrooms are tax supported public facilities.
Zorach v. Clauson



New York City allowed students to
leave school during school hours to
go across the street to receive
religious instruction.
Decision: Constitutional
Why?
• Legal if it is carried on at a private
location.
Engel v. Vitale



The New York school district handed
down a school prayer that it urged
schools to use:”Almighty God, we
acknowledge our dependence upon
Thee, and we beg Thy blessings upon
us, our parents, our teachers, and our
country.”
Decision: Unconstitutional
Why?
• Justice Hugo Black Stated:”In this country it is no part for
the business of government to compose official prayers for
any group of the American people to recite as part of a
religious program carried on by government.”
• Other Argument:

Potter Stewart wrote:”I cannot see how an official religion is
established by letting people pray.
Other School Prayer

Abington School District v. Schempp
• Banned school sponsored Bible reading and
recitation of the Lords Prayer in public schools.


Tax paid teachers conducted the activities in public
buildings.
In 1995, the courts struck down an
Alabama law requiring teachers to observe
a moment of silence for meditation or
prayer.
• Some states have passed moment of silence
laws that are used instead of prayers.
Westside Community School v. Mergens




A student wished to start a club where
students could pray and read the bible
together at school.
Participation would be voluntary.
Participants would use a classroom in the
school.
Decision:
• Constitutional
• “Although a school may not itself lead or direct
a religious club, a school that permits a
student initiated and student led religious club
to meet after school, just as it permits any
other student group to do, does not convey
the message of state approval endorsement of
the religion.” Justice Sandra Day O’Conner
Equal Access Act

Equal Access Act:
• Allows public high schools receiving
federal funds to permit student religious
groups to hold meetings in the school.
Teaching Evolution

Epperson v. Arkansas
• Should a school teach evolution?


Yes they can. The courts banned a law that
banned the teaching of evolution.
Edwards v. Aguillard:
• Should schools also be allowed to teach
the Bible story of creation?

No they can not. This endorses a particular
religious doctrine.
Religion and School




The Creation Story and School
1) Do you agree or disagree with Dr. Forrest’s statement
that teaching intelligent design in the public schools is a
violation of religious freedom? Why?
2) What does Dr. Forrest mean when she says that
Creationists believe that the theory of evolution has
atheistic implications?
3) Would teaching intelligent design in public schools be a
violation of government neutrality with regard to religion?
Why or why not?
How about Christmas

Lunch v. Donnelly
• Public Christmas display in town.
• Allowed the town to have a nativity
scene.

Allegheny County v. ACLU
• A publicly funded nativity scene violated
that establishment clause.
Religious Practices

Religious Practice:
• May be limited if it conflicts with laws.
• Reynolds v. United States:



Reynolds, a Mormon who lived in Utah, had
two wife's and was conflicted of polygamy.
Reynolds appealed the state law.
Courts said: people are not allowed to do
what they want based off of religion if it is in
conflict with the health, safety, and morals
of the community.
Oregon v. Smith

Denied unemployment benefits to a
guy who was fired for using drugs as
a religious ceremony.
Wisconsin vs Yoder
1972


Amish refuse to send kids to school.
State law required mandatory
education until the age of 16. Amish
argument-state law is a threat to
religious way of life.
Supreme Court decision: State law
overruled and Amish allowed to
home school.
Flag Saluting Cases

Minersville School District v. Gobitis
• William and Lillian Gobitis, ages 10 and
12 were expelled for not saluting the
flag.
• Saluting the flag violated the Christian
believe of not bowing down to any
graven image.
• The Court upheld the school regulation
to stand and say the pledge.
West Virginia vs. State Board
of Education vs. Burnette
1943
School district compelled students to
salute United States flag. Jehovah
Witness objected because of the belief
of not bowing to any graven images.
Does mandatory regulations which go
against religious grounds violate our 1st
amendment?
Supreme Court ruling: Illegal
So what are our guidelines on pledge to
the United States flag?
Sherbet vs.Verner
1963


7th Day Adventist fined for refusal to
work on Saturday. He was denied
his unemployment compensation.
Supreme Court ruling: Ruling stands,
can’t change the system.
US vs Ballard
1944



Ballard arrested for using the US
mailing system to obtain money
under false pretense.
Ballard had his own church and felt
he was a divine messenger. He felt
that he was told to solicit money to
carry out God’ work.
Supreme Court Ruling: legal
Native American Church vs
Oregon (1989)



Native American arrested for the use of
peyote. Also arrested for snake handling.
Both of which were done in conjunction of
religious ceremonies.
People have died from both of these. If
we legalize it why not legalize pot or crack
in the name of religion.
Oregon State Law: Illegal to possess
peyote and or use it.
The Free Exercise Clause’s
Landmark Rulings



The Supreme Court makes an important
distinction between religious belief and
practice.
Religious freedom cannot justify behavior or
practices that violate laws protecting the
health, safety, or morals of the community.
Amish parents could not be forced
to send children to public school
beyond 8th grade; children of
Jehovah’s Witnesses could not be
What is Precedent?




School Board vs.
Gobitis (1940)
School expelled a
10 and 12 Jehovah
Witness for not
saluting the flag.
Courted ruled:
Did not infringe of
religious freedom.



W. Virginia Board
of Edu. Vs.
Barnette 1943
Jehovah Witnesses
appealed prior
case.
Unconstitutional.
Ruled in favor of
religious
protection.
Why didn’t they follow prior
precedent?
 As one justice put it,”When
convinced of former error,
this Court has never felt
constrained to follow
precedent.
Crime and Due Process


The Exclusionary Rule
Search and Seizure
Copyright © 2011 Cengage
JASON REED/Reuters/Landov
The Threat Operations Center at the National Security Agency in
Fort Meade, Virginia. p. 114
Copyright © 2011 Cengage
WHAT WOULD YOU DO?
MEMORANDUM
To: Rebecca Saikia, Supreme Court justice
From: David Wilson, law clerk
Subject: Patriot Act and libraries
The Patriot Act allows the FBI to seek the records of possible
terrorists from banks, businesses, and libraries. Many libraries
claim this will harm the constitutional rights of Americans. You
support these rights, but are also aware of the need to protect
national security.
Copyright © 2011 Cengage
WHAT WOULD YOU DO?
Arguments supporting the Patriot Act:
1. The Patriot Act does not target individuals who have not
violated a criminal law and who do not threaten human life.
2. For the FBI to collect information about borrowers, it must
first obtain permission from a federal judge.
3. Terrorists may use libraries to study and plan activities that
threaten national security.
Copyright © 2011 Cengage
WHAT WOULD YOU DO?
Arguments against the Patriot Act:
1. Freedom of speech and expression are fundamental
constitutional guarantees that should not be infringed.
2. The law might harm groups engaged in peaceful protests.
3. The law allows the government to delay notifying people
that their borrowing habits are being investigated.
Copyright © 2011 Cengage
WHAT WOULD YOU DO?
Your decision:
Uphold this provision?
Overturn this provision?
Copyright © 2011 Cengage
Crime and Due Process




Confessions and Self-Incrimination
Relaxing the Exclusionary Rule
Terrorism and Civil Liberties
Searches without Warrants
Copyright © 2011 Cengage
p. 119
Copyright © 2011 Cengage
JOE SKIPPER/ Reuters/ Corbis
Inside a cell at the terrorist prison in Guantanamo,
where Muslim inmates receive a copy of the Koran,
a chess set, and an arrow pointing toward Mecca.
p. 119
Copyright © 2011 Cengage
Copyright © 2011 Cengage