Civil Liberties:
First Amendment Freedoms
Civil Liberties: First Amendment Freedoms
 Civil Liberties – protections against arbitrary
government actions (setting forth what the
government (can/cannot do). Civil liberties include
individual freedoms in the Bill of Rights [religion,
speech, press, assembly, petition, rights of accused,
etc.] So, civil liberties provide protection against
government interference.
Chapter Focus
1.
2.
3.
4.
5.
The relationship of civil rights and liberties to the concept of limited
government.
The importance of religious freedom in the U.S.
The scope of and limits on free speech and free press.
The relationship of the protection of civil rights and liberties to
national security.
The limits on the freedoms of assembly and petition.
The next 3 chapters are about our “Unalienable Rights” – our
specific rights which cannot be transferred to another person.
• In proclaiming independence, our forefathers declared:
“We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable rights,
that among these are life, liberty, and the pursuit of happiness.”
• Section 1. The Unalienable civil rights – the Bill of Rights
guarantee our civil liberties [5 freedoms].
•1 The courts are the major guardians of civil rights.
•2 Without the 5 freedoms of expression, democracy could not exist.
•3 Individual rights are included because the people demanded them.
• Section Focus:
• 1. Why are our individual rights in the constitution?
• 2. What factors limit individual freedom?
•
•
[speech has 3 limitations: can’t threaten the public order, can’t be offensive,
and can’t be obscene. Ex: Can’t shout “fire” in a crowded theater.]
3. What is the importance of Due Process? [follow the right procedures & laws]
Civil rights and Limited Government
This means the government has only those powers the people give it.
The framers limited government to protect the liberty of the people. The
Constitution is filled with guarantees of personal freedom and restrictions
placed on government.
• The difference between a democratic government and a dictatorial
government lies in the degree of government authority. Government
authority is unlimited in a dictatorship. Opposition is put down harshly.
All forms of expression must glorify the state.
• In our democratic government, government authority is closely limited.
Peaceable opposition to government is encouraged.
• Historical Background
• Our English ancestors waged a long struggle for individual freedom.
They brought this desire for freedom to America. When the constitution
was written, the Bill of Rights was added to your personal freedom.
Civil Rights Are Relative, Not Absolute
• Absolute Rights – right to do as he or she pleases [no one has this
right]. Freedom of speech does not mean absolute freedom of speech.
You can not use obscene language or slander someone. You can not
falsely shout “fire” in a crowded theatre and cause panic.
•4 Relative Rights – when you 5 have right to do as you please as long
as what is done does not interfere with the rights of others.
• Rights in Conflict – There are many situations where different rights
come into conflict with one another.
• A common example is Free Press v. Fair Trial.
– Sam Sheppard, a Cleveland osteopath [bone doctor],
was convicted of murdering his wife in 1954. There
was a lengthy trial. Reporters wrote many lurid details
including a lot of fiction about his love life. A Cleveland
newspaper pronounced that the police “have
convincing evidence to prove Dr. Sam Sheppard…was
the killer.” Sheppard claimed that the sensational
coverage had denied him a fair trial. The Court agreed
and overturned his conviction and ordered a new trial
where he was acquitted.
Persons To Whom Rights Are Guaranteed
Most rights extend to all people of the U.S. including the
foreign-born except during wartime.
• After Pearl Harbor, near hysteria gripped the West Coast,
as many people feared the Japanese would attack there.
There were 120,000 persons of Japanese descent and
70,000 of these were American citizens.
• In March, 1942, Roosevelt designated 40 miles inland
from the West Coast as a Military Area, to which person
6 [persons of Japanese descent] suspected of espionage
and sabotage could be excluded. There was also a curfew
for the Japanese from 8 p.m. to 6 p.m. They were to report
to “relocation” centers. Because they were forced to leave
their homes on short notice, they were forced to sell their
property and other possessions at a substantial loss.
• Fred Korematsu was living in the San Francisco area. He
had no criminal record and had been a loyal, law abiding
citizen. He failed to report to a relocation center, and was
arrested, then tried and convicted for violation of the order.
He appealed.
Location of the 10
Internment camps
Jerome camp in Arkansas
U.S. PAYS REPARATIONS Of
$20,000 TO JAPANESE
• In the late 1980s, President
Reagan signed into law a
bill that provided $20,000 to
every Japanese American
sent to a relocation camp.
• The checks were sent out in
1990 along with a note from
President Bush saying, “We
can never fully right the
wrongs of the past . . . we
now recognize that serious
wrongs were done to
Japanese Americans during
WWII.”
Today the U.S. is home to
more than 1,000,000 JapaneseAmericans
• In a 6-3 decision in 1943, the court ruled against
Fred Korematsu saying “hardships are a part of
war…all citizens…feel the impact of war in greater
or lesser degree.” It was justifiable as a “military
necessity.” President later gave Fred the “Medal
of Honor” for something he was sent to prison
for 50 years earlier. Fred passed away in 2005.
• This action has been criticized ever since. Not a
single case of American-born Japanese-American
disloyalty has ever been found. Today this is seen
as an act of discrimination and prejudice and a tragic mistake.
Congress, in 1988, agreed to give $20,000 to each living survivor.
This cost the government $1.25 billion.
Federalism and Civil Rights
Some rights are guaranteed against the national government only.
[Bill of rights]
Some rights are guaranteed against the States and local governments
only.
Many rights are guaranteed against both the States and the national
government.
The Modifying Effect of the 14th Amendment
• Even though the Bill of Rights do not apply to the States [but to the
7 national government], the States cannot deny basic civil liberties [our
five freedoms] to the people because their State constitutions contain
a Bill of Rights. Plus the 14th Amendment’s Due Process Clause
[correct procedures have been followed and everyone has had a right
to be heard – that is “fair and equal treatment under the law”] does
apply to the States. “No State shall…deprive any person of life, liberty,
or property without due process.” Due process means a person can
not be denied his basic rights.
•8 The court has “nationalized the Bill of Rights” by saying that its
protections apply to the States. In a long series of cases, starting in
1925, the Court has said States cannot abridge rights the federal
government can’t abridge.
• The Court has said that each of the First Amendment guarantees
covered by the 14th Amendment also applies to the States.
• In many cases, the Court declared a State law unconstitutional [over
1,000 times] as a violation of the 14th Amendment’s Due Process
Clause.
Modifying Effect of the 14th Amendment
[continued]
• The Court has given the 14th Amendment’s Due Process
coverage to:
•
•
•
•
5th’s ban on self-incrimination.
5th’s prohibition against double jeopardy
6th’s right of persons to confront witnesses against them.
6th’s guarantee of trial by jury where a serious crime is
involved.
• 6th’s guarantee to right to counsel.
[Gideon v. Wainwright [1963] – Gideon was an indigent who
not afford a lawyer. He was supposed to have broke into a pool
hall with the intent to steal. At first, with no lawyer, he went to
jail for five years. Later, with counsel, he was acquitted.
• 8th’s ban on cruel and unusual punishment.
Clarence Gideon
• The court has nationalized each of these guarantees,
saying that they apply against the States in the 14th
Amendment.
The movie “Gideon’s Trumpet”
How one lonely man, a poor
prisoner, took his case to the
Supreme court – and changed
the law of the U.S.
Clarence Gideon was a Florida man charged with breaking into the Bay Harbor
Pool Room and stealing coins from a vending machine (a felony). He asked for a
lawyer but Florida law allowed them only for capital crimes (like murder or rape
where you can be punished by death). He defended himself at the trial as best he
could. He was convicted and sentenced to five years in prison. He had served
time for four previous felonies.
From prison, using the prison library for research, he wrote an appeal to the
Supreme court of Florida, saying the denial of counsel in his trial violated his
constitutional rights. His petition was denied so he filed a petition with the
Supreme court, in the form of a pauper. The court reversed his conviction,
allowed him to be tried with a court-appointed lawyer before the same judge.
He was found innocent. [Gideon actually had a key so why would he break in].
The impact of this decision was that more than a thousand prisoners in Florida
and thousands all over the U.S., who had been convicted without counsel, were
set free. So, no matter how poor a person is, he has a right to a lawyer any time
a jail sentence is a possible punishment.
No Complete Listing Of Rights Is Possible.
•9 A catalog of our rights does not exist. The 9th amendment
says there are other rights beyond those found in the
constitution. Among those rights “retained by the people”
is the right of a person not to be tried on the basis of an
unlawful search or seizure.
• Section Focus:
• What are the guarantees of the First Amendment and
the extent of the separation of church and State?
The right to believe as one chooses in matter of religion is
10 protected against the national government by the 1st
Amendment and against the States by the 14th amendment.
Freedom of Expression is a indispensable to democracy.
Without it, there can not be a free society. The basic
freedom of religion, speech, press, assembly, petition are
all protected by the 1st Amendment.
• Religious freedom is guaranteed through the:
•11 Establishment clause – prohibits an
“establishment of an official religion.”
[In 1774, England established the church
of England as the official church of the
colonies].
•12 Free Exercise clause–forbids arbitrary
government interference in the “free
exercise of religion” and allows you to
hold no religious beliefs at all.
• 13 “…no religious test shall ever be required as a
qualification to any office.” The court held that a section
of the Maryland constitution requiring all public officials
in that State to declare a belief in the existence of God
was unconstitutional.
• Separation of Church and state – making no religion an official arm
of government.
• The Establishment Clause means “neither a State nor the Federal
government can set up a church. Neither can pass laws that aid one
religion, aid all religions, or prefer one religion over another.”
14
• The Establishment Clause, according to Thomas Jefferson, in 1802,
“sets up a wall of separation between church and State” but they
have a friendly relationship.
• Most of the cases involving the Establishment Clause have centered
15 on education or religion in schools.
•
1. Government encourages churches by exempting them from
federal, state and local taxes.
•
2. Chaplains serve in the armed forces.
•
3. Public officials take an oath in the name of God.
•
4. Sessions of government open with prayer including the Senate.
•
5. The National Anthem and coinage make reference to God.
• The problem with the Establishment clause was disagreements
over what actions promoted or helped establishment of religion. Two
issues have been involved in the controversy – aid to
religious schools and religious exercises in public schools.
Prayer Before High School Football Games
•
16
In 1989, the Supreme Court banned invocations before high school games by refusing
to review a 11th Circuit Court of Appeals ruling prohibiting pre-game prayer at a Georgia
High School. In the Bible Belt, high school football is not exactly a religion, but then it
is not exactly not one either. The Circuit court had said that prayers delivered over a
public address system violated the constitutional amendment requiring separation of
church and State. Although the ruling applied only to Georgia, Alabama and Florida, it
set a national precedent when the Supreme court refused to hear the case. Marfa High,
in West Texas, playing one week early, became the first Texas Public School to
challenge the ruling and opened the season with a prayer. During the game they didn’t
have a prayer as the shorthorns lost 34-0.
Here is the other team’s last touchdown. The score is 28-0.
A “Moment of Silence” in Public Schools
“The Supreme Court reached a decision on
silent prayer…They ruled that a moment of
silence is impossible in the public schools.”
Aid To Religious Schools
• The New Jersey School Bus Case of 1947 involved
a law that provided free bus transportation of
students to the school they attended, whether public
or parochial. In a 5-4 decision, the Court found the
policy was designed as a safety measure to promote
the safety and welfare of students no matter what
schools they might attend, not to benefit religion.
17 So, this is constitutional.
• This case set a precedent that not all forms of federal
and State aid to church schools are unconstitutional.
• The court allowed the loan of nonreligious textbooks,
like economics textbooks, to students attending
parochial schools. So Jefferson’s wall of separation
has some doors and windows in it.
• The Court ruled that State aid to supplement teacher’s
salaries in parochial schools was unconstitutional, as
were laws providing for reimbursement of tuition
cost to parents of those students and field trips.
Released Time To Attend Religious Classes
• Programs allowing students to be “released from school time to
attend religious classes” is legal. The classes can not be held on
public school grounds.
• So religious instruction is constitutional if carried on in private, not
public facilities.
• State aid to parochial schools has been ruled constitutional in such
areas as providing transportation, textbooks, or student lunches.
Other forms of aid, such as audio-visual equipment, teacher salaries,
and public payment for field trips have been found unconstitutional.
Recitation of Prayers and the reading of the Bible in Public
Schools - No
• The prayer issue is the most controversial arising from
the separation of church and State.
18
• Engel v. Vitale [Vi tal e’] [1962] – the Court outlawed
the use of nondenominational prayers in public schools,
whether voluntary or not. The NY State Board of
Regents skeletal prayer read:
Engel family
“Almighty God, we acknowledge our dependence upon Thee, and beg
Thy blessings upon us, our parents, our teachers, and our country.”
• In 1963, the court struck down a Pennsylvania law requiring each
school day to begin with Bible readings. It violated separation of
church and state.
• In 1980, the court struck down a Kentucky law requiring the
Ten Commandments to be posted in all public classrooms.
19 So, posting the 10 Commandments is unconstitutional.
• In 1985, the Court found Alabama’s “moment of silence”
20 unconstitutional. It had provided for one minute of
silence for “mediation or voluntary prayer,” at the
beginning of each school day. The reference to voluntary
prayer made it unacceptable. Many States still have a
moment of silence without referring to “voluntary prayer.”
• Despite these decisions, both organized prayer and Bible reading are
to be found in many public classrooms today. Fundamentalists have
agitated for a constitutional amendment permitting school prayer.
21
• The Court has been more generous in applying the Establishment
Clause to colleges and universities than to elementary and secondary
schools.
• Can there be chaplains in congress and the State legislatures – “Yes”
• The Court in 1983 said opening daily sessions of Congress or the
22 State legislatures is permissible. A paid chaplain with public funds
can say the prayer.
• Evolution – In 1968, the Court said evolution could be taught.
• Tax Exemptions For Churches and Their Property
• In 1970, the Court said this was legal.
• However, church-related schools that discriminate [like Bob Jones
University, who said this was part of their religious beliefs) on the
basis of race, can be denied a tax-exempt status. Bob Jones
University, a nonprofit private school of fundamentalist leanings in
South Carolina, denied admission to any applicants who were engaged in
•
an interracial marriage or who advocated interracial marriage or dating.
Bob Jones University v. U.S. [1983]
• Under the I.R.S. code of 1954, all educational institutions, regardless
of their admissions policies were exempted from paying federal taxes,
and contributions could be deducted as charitable contributions.
• The code was amended in 1970. Private schools with racially
discriminatory policies toward students were no longer considered
23 “charitable” organizations and can be denied tax-exempt status.
TEST #1- LEMON TEST (based on Lemon v. Kurtzman, 1971) - In order
for any government policy regarding religion it must pass a three-prong
test. This is the test commonly used to maintain separation of church and
Alton Lemon
24 state to avoid “excessive entanglement” of government with religion.
TEST QUESTION (PRONG) 1
Does the policy have any NONSECULAR (religious) purpose?
TEST QUESTION (PRONG) 2
Does the policy PROMOTE or
INHIBIT religion?
TEST QUESTION (PRONG) 3
Does the policy EXCESSIVELY
involve government with
religion?
YES- POLICY IS
UNCONSTITUTIONAL!
NO- GO ON TO
QUESTION 2
YES- POLICY IS
UNCONSTITUTIONAL!
NO- GO ON TO
QUESTION 3
YES- POLICY IS
UNCONSTITUTIONAL!
NO- POLICY IS
CONSTITUTIONAL!
• use money to fund
school buildings
• buy textbooks
• buy computers
• pay for lunches
• pay for buses
• pay to administer
standardized tests
• entitled to Title I
funding
• use money to pay
for field trips
• buy religious
textbooks or bibles
(for the purpose of
promoting a religion)
• pay teacher salaries
• etc.
Can public school teachers teach about religion in a public school?
Yes (Abington v. Schempp)
•The U.S. Supreme Court indicated that public school education may include teaching
about religion
•Education is not complete without a study of comparative religion or the history of
religion and its relationship to the advancement of civilization. The Bible is worthy of
study for its literary and historic qualities.
•Presented objectively as part of a secular program of education.
Can religious music be played in public schools?
Yes, if….
•If part of the curriculum and considered secular
•The use of art, drama, music or literature with religious themes is permissible if it serves
a sound educational goal in the curriculum.
•Such themes should be included on the basis of academic or aesthetic value, not as a
vehicle for promoting religious belief.
•School concerts that present a variety of selections may include religious music. Concerts
should avoid programs dominated by religious music, especially when these coincide with
a particular religious holiday.
May students distribute religious literature at a public school?
Yes
•Students have a right to distribute religious literature to their schoolmates on the same
terms as they are permitted to distribute other literature that is unrelated to school
curriculum or activities.
•Schools may impose the same reasonable time, place, and manner or other constitutional
restrictions on distribution of religious literature as they do on non-school literature
generally, but they may not single out religious literature for special regulation.
Agostini v. Felton (1997): public schools
could send teachers to parochial schools
to teach some special education classes
Zelman v. Simmons-Harris (2002): upheld
government vouchers used as tuition at
religious schools. The court held that a
government program does not obstruct
freedom of religion if aid goes directly to
the student or parent, who then chooses
a school
Kiryas Joel v. Grumet (1994): New York
had gone too far by creating a school
district favoring Hasidic Jews
1984 Equal Access Act: Opens
opportunity for schools to open doors to
religious groups if they open their doors
to other organizations
Town of “Joel”
Students may pray silently as much as they
wish.
Prayer at school graduations is prohibited.
Student led prayers at athletic events is
unconstitutional.
A “moment of silence” is fine… a moment of
“meditation of voluntary prayer” is not
acceptable.
The teaching of creationism is not permitted in
public schools.
Christmas nativity scenes alongside secular
symbols (Christmas trees, Santa Clauses,
menorahs) on public grounds… but if they
stand alone without secular symbols thy are
prohibited.
… drawing the line between neutrality and
promotion is a difficult and controversial task!
“…if it isn’t
unconstitutional.”
“Thank you for not
letting Michael Vick
be my owner…Amen
to that.”
• The Free Exercise of Religion – guarantees the right to
worship or believe what you want to believe in matters of
religion or to hold no religious beliefs at all.
• This clause says that you have an absolute right to believe
what you wish but do not have absolute rights to act as you wish.
• What if someone’s religion justifies using illegal drugs or
disturbing the peace. The Court once asked, “Suppose one
believes that human sacrifice were a necessary part of
religious worship.”
• In 1879, a Mormon in Utah had two wives. Polygamy was
allowed by his church, but it was prohibited by a federal
law banning the practice in the U.S. [It was a duty
according to Mormon beliefs but a crime by U.S. law. A
crime is not protected by the 1st Amendment.]
25
• The court said that doctrines of religious belief are not
superior to the law. People’s religious beliefs can not
violate the health, safety or morals of the community.
Other rulings on the Free Exercise Clause of Religion
1. School children can be required to be vaccinated even when
opposed by their parents. [Christian Scientists refused to
follow State laws. The welfare of the children comes before
the right of religious expression.]
2. “Blue laws” can be enforced.
3. Child labor laws must be enforced when
children are used to sell literature.
4. Those who have religious objections to military service
can be drafted. [If opposed to a particular war [not all
wars], you could not be exempt]
5. The Hare Krishna can be limited to a
booth or another fixed location for
fund raising.
6. The Air Force 26 can forbid an orthodox Jew from
wearing his skull cap while on active duty.
Wisconsin v. Yoder [1972] Amish – 100,00 in U.S. & Canada
Issue: Can the government require that parents send their children to
high school when parents believe this will conflict with their religious
beliefs and value system?
Jonas Yoder was the parent of a 14-year old child, and a member
of the Old Order Amish religion. The Amish are devoted to a
life in harmony with nature and the soil. This life is exemplified
by the simple life of the Christians.
The Amish reject so-called “worldly” culture, material things and competition.
They believe people should make their living by farming or a related activity.
They reject telephones, autos [use horse and buggy], newspapers, indoor
plumbing, electricity, radios, and TVs. Their ways of dressing and of speaking
set them apart from contemporary society. The men wear black wide-brimmed
hats, collarless black coats, and tight-fitting black trousers, and black high-top
shoes. Women wear high-necked solid colored dresses, long black coats, and
full black bonnets over white prayer caps. All the females wear dresses, even
when playing baseball. A woman’s hair cannot be exposed to the public – only
to her husband. They wear clothing fastened by hooks and eyes, instead of
buttons. Married men grow beards.
They have huge families where divorce is not permitted. Amish teachings forbid
going to war or holding public office. They have simple homes, without
mirrors, pictures, musical instruments, radios, telephones, or electric lights.
They provide for their old people and refuse all government aid in
the form of relief, farm subsidies, or old-age pensions. Practical
learning in farm and home management is considered to be of
greater value than formal education, which is usually limited to
the first eight grades. They worship in the home of a different
family member every two weeks. Services of about 250 Amish
last about four hours. The hymnbook contains words but no music.
Slow, involved, solemn chants are sung from memory. A traditional
foot-washing ceremony is performed at the communion section of the
prayer meeting.
They thought attending school thru the 8th grade was OK but
wanted their children to leave after the 8th grade, so they
would not be exposed to worldly influence by being
pressured to compete in class work and sports. These
families felt that sending the Amish children to high school
would take them away from the Amish community,
physically and emotionally.
Amish families are showing
signs of weakening. One in
four Amish family members
is leaving.
Some recently got out of jail
for drugs and took to the
flush toilets and running
water.
Wisconsin had a compulsory school attendance law
requiring students to attend school until the age of 16.
The Yoder family and other Amish members were
convicted and fined by local courts. They appealed,
claiming that the attendance law violated their free
exercise of religion [no interference with religious
beliefs].
The Wisconsin Supreme Court said the convictions violated the First
amendment. The U.S. Supreme Court upheld this decision, saying the
Amish had demonstrated a long history of success in getting along in
American society. Their mode of life should not be intruded upon by
the government. The Court ruled that their tradition of self-sufficiency
was essential to its faith and would be threatened by exposure to
modern education.
7. Amish children 27 can not be forced to attend school
beyond 8th grade.
8. A State can not forbid ministers to hold public office.
9. Certain religious sects in the Appalachian Mountains believe that the
handling of poisonous snakes is a test of faith. They are passed among
the devout during religious services. On several occasions, bitten
worshipers have died. State laws have been passed against snake
handling even though they interfere with the free exercise of religion.
Free Exercise Clause Rulings [continued]
10. Unemployment compensation 28 can not be denied to a worker
who quit a job involving conflict over religious beliefs.
A. A Seventh Day Adventist lost his job in a textile mill when she
refused to work on Saturdays, her Sabbath day.
B. A Jehovah’s Witness quit after he was transferred from one section
of the company that was being closed down to another that made gun
turrets for tanks. He said that his religious beliefs would not allow him
to work on war materials.
Pledge of Allegiance Debate
• The debate over whether the Pledge of Allegiance should
be made compulsory in our schools has been long on
rhetoric and short on history.
• We forgot a painful chapter of our past when people who
refused to recite the pledge were beaten, accused of
treason and attacked by mobs in their churches and
homes. It was a time when young children who refused to
recite the pledge out of religious conviction were expelled
from school.
The Old Way Of Pledging Allegiance To The Flag
• You used to have to point to the flag on “to the flag” but we quit this
in the 1940s because it resembled the way Germans were heiling
Hitler.
Here is the Pledge of Allegiance “Story”
• Minersville School District v. Gobitis [1940]
The Pledge first appeared in 1882 in a magazine called The
Youth’s Companion, to mark the 400th anniversary of
Columbus’s arrival. It was only sporadically recited for
many years but, after WWI, a number of States began to
make reciting the pledge compulsory in public schools.
• The main opposition came not from civil libertarians, but from religious
groups, chiefly the Jehovah’s Witnesses. Members felt they could not
in conscience pledge allegiance to the flag, which they regarded as a
“graven image.” Saluting anything but God was against their beliefs.
• In 1935, three Jehovah’s Witness children in Minersville, PA,
refused to recite the pledge at school because they saw it
as a violation of the Bible’s commandment against idolatry,
and were expelled. Two of them Lillian [10] and William
Gobitis [12], took their case to Court.
The Court ruled
against them 8-1.
• The Court said the flag was a symbol of national unity, and requiring
the salute was not an infringement on the free exercise of religion. The
one justice who dissented said, “the very essence of liberty…is the
freedom of the individual from compulsion…to bear false witness
against his religion.”
• The Court’s decision was severely criticized by the press and the legal
profession. More than 170 leading newspapers condemned the
decision while only a few supported it. Few Supreme court decisions
have had such a dramatic impact. Six days after the opinion was
handed down, a mob of 2,500 sacked and burned a Jehovah’s
Witnesses church in Kennebunk, Maine. On June 3, the decision had
been rendered, and on June 16, the citizens of Litchfield, Illinois,
attacked 60 Witnesses, who were put in jail for their own protection.
• On June 29, seven Jehovah’s Witnesses in W. VA, were rounded up by
the police chief, placed in the center of a mass Pledge of Allegiance
recital, force-fed large quantities of castor oil and marched out of town.
Throughout the country, people broke into the homes of Witnesses,
confronted them with flags and demanded they recite the pledge.
• The Gobitis decision was the subject of debate at the highest levels.
Robert Jackson, the attorney general, bitterly denounced the decision
at a Cabinet meeting. President Roosevelt and Mrs. Roosevelt
discussed the case with a Supreme court justice.
• Mrs. Roosevelt said that she was profoundly disturbed by an opinion
that forced little children to recite a pledge repugnant to their
conscience. The President said the action of local authorities was
“stupid, unnecessary and offensive.”
• Three years later, after hundreds of Witness children had been
expelled from school, the Court reversed itself in West Virginia State
Board of Education v. Barnette [1943]. The Court argued that while the
patriotism promoted by flag ceremonies was highly desirable, it could
be achieved without the State forcing people to violate their religious
beliefs.
• The Majority Opinion said, “If there is any fixed star in our
constitutional constellation,” they wrote, “it is that no official, high
or petty, can prescribe what shall be orthodox in politics, nationalism,
religion or other maters of opinion, or force citizens to confess by
word or act their faith therein.” This decision reversed the 1940
decision and ruled that laws requiring a flag salute were an
unconstitutional interference with the free exercise of religion.
• One judge put the problem in more human terms, by saying, “The flag
is dishonored by a salute by a child in a reluctant and terrified
obedience to a command of secular authority which clashes with the
dictates of conscience. The flag cherished by all our hearts should
not be soiled by the tears of a little child.”
• We might do well to reflect on the last five words of the Pledge of
Allegiance: liberty and justice for all.
• So, Jehovah’s Witnesses can not be made to pledge the flag.
29
Section 3. Freedom of Expression: SPEECH
[Right to express even the most unpopular or
unusual opinion] and PRESS: [Guarantees
people will have access to such opinions]
Section Focus:
What are the limitations on freedom of speech as regards:
obscenity, confidentiality, radio, TV and Internet, prior
restraint [censorship before the fact, or “curbing ideas
before they are expressed”, movies, and advertising?
• The freedoms of speech and press are not absolute
30
nor unlimited. Many reasonable restrictions are
placed on these rights.
• Protection of free speech and press by the 1st and 14th
Amendments serves two fundamentally important
purposes:
•
A. These two amendments guarantee to each person
a right to free expression.
•
B. They ensure to all persons a full, wide-ranging discussion of public
affairs. While the courts have strongly established the importance of
these freedoms, restrictions have been applied in cases concerning
obscenity, public safety, confidentiality, and the media’s use of public
air waves.
Censorship of High School Newspapers
• There are about 35,000 school newspapers. Many were censored by
school officials. Controversial material, such as criticism of school
policies, was often removed. When students complained, school
officials replied that school newspapers were supported by tax money.
The first amendment supposedly did not apply to high school
students.
• A few years ago, the Court held that high school students enjoy the
same first amendment rights as adults. They declared, “Students do
not shed their constitutional rights to freedom of speech and
expression at the schoolhouse gate.” Students could express their
views on any topic in school so long as they did not “materially and
substantially interfere with operations of the school.”
In 1988, the Supreme Court decided Hazelwood School District v.
Kuhlmeier. This decision gave high school officials greater authority
to censor school sponsored student publications if they chose to
do so. Hazelwood also requires school officials to demonstrate
some reasonable educational justification before they censor
anything. Hazelwood meant the students did not have full 1st
Amendment rights as regards school newspapers. So, students
31 do not have an absolute right to publish what they want.
• These four things are not protected at all by the
Constitution under free expression.
• A. Libel [libelous is a lie] – published report of falsehoods
32
•
•
•
•
that injure a person’s character. [printed word]
B. Slander [spoken word] –public utterances that
hold a person up for contempt, ridicule or hatred.
In other words, false or malicious words. Slander
has to be harmful in intent.
“You ignorant slut!!!”
C. Obscenity
D. False advertising
The Court has decided that libel laws may be applied one
way to private citizens and another way to public figures
and officials. A public official is prohibited from
“recovering damages for a defamatory falsehood relating
to his official conduct unless he proves that the statement
was made with ‘actual malice’ –that is, with knowledge that
it was false or with reckless disregard of whether it was
false or not.”
• The Court considers movie stars and other celebrities to
be “public figures”, making it difficult to sue gossip
columnists and other writers for libel. Private persons do
not have to prove malice. There must be proof that there
was reckless disregard for accuracy.
Obscenity
• There has been a problem deciding what is obscene.
A Supreme Court justice said, “I know it when I see it.”
Some might have thought the XFL cheerleaders were
obscene, but not the guys. They didn’t look right
without their poles. Many wanted to call it the XXXFL.
• In 1973, the court established a three-fold test to determine obscenity.
• 1. The dominant theme tends to excite lustful thoughts.
• 2. Must be patently offensive by affronting contemporary community
standards.
• 3. The work lacks serious social, literary, artistic, political or scientific
value. This one is hard to prove. What one person finds shocking may
be taken by others as having political or artistic value.
Roth v. United States (1957): Obscenity is not protected by
the First Amendment.
Deciding what is obscene is very difficult.
Cultural differences play a big role in what is acceptable…
What’s acceptable in San Francisco might not be acceptable
in Abilene, Texas!
In Miller v. California (1973), the Court held that obscene
materials are defined as those that…
1. the average person, applying contemporary community
standards, find, taken as a whole, appeal to the prurient
interest;
2. that depict or describe, in a patently offensive way,
sexual conduct specifically defined by applicable state
law;
3. and that, taken as a whole, lack serious literary, artistic,
political, or scientific value.
In other words, the determination of obscenity should be
determined by average people (juries) applying
contemporary standards of local (not national) standards
• A Georgia theater manager was convicted for
showing Carnal Knowledge. It was nominated
for the Academy Award. The Court ruled it was
not patently offensive.
[Jack Nicholson and Anne Margaret]
• In 1969, the Court said a person may watch or
read what he wants to in the privacy of his
own home.
• In 1971, the Court said you could not send obscene materials through
the mail or import from abroad. [You can buy obscene materials from
an “adult bookstore” but their items can not be mailed, shipped
across State lines, or legally imported. Nevertheless, they are always
well stocked.]
• So, a person can read or watch obscene materials in his own home
but can not obtain them through the mail.
• After many attempts to define obscenity, the Court ruled in 1973, that
local communities should be allowed to set their own standards for
obscenity. Former Chief Justice Burger wrote, “It is neither realistic
nor constitutionally sound to read the 1st Amendment as requiring that
the people of Maine or Mississippi accept…conduct found tolerable in
Las Vegas or New York City.”
33 Prior Restraint – censorship of material before
it is spoken or published. Censorship before the
fact. Being stopped before you do it.
Near v. Minnesota [1931] Prior restraints were ruled to be unconstitutional,
except in extremely limited circumstances such as national security
issues. The ruling came about after Jay Near's newspaper, the Saturday
Press, a small local paper that ran countless exposes of Minneapolis's
elected officials’ alleged illicit activities, including gambling, racketeering,
and graft, was silenced by the Minnesota Gag Law of 1925, also known as
The Public Nuisance Law. Near’s critics called his paper a scandal sheet,
and alleged that he tried to extort money threatening to publish attacks on
officials and others. In the Near case the Court held that the State had no
power to enjoin the publication of the paper in this way – that any such
action would be unconstitutional under the First Amendment.
• “Prior restraint” can not be placed on written or spoken words.
• The government can not curb ideas before they are expressed unless
in extreme cases as in wartime or when a publication is obscene or
incites readers to violence.
34
• So, prior restraint is usually illegal, except in extreme cases.
Confidentiality – protecting your sources [said in confidence]
• Confidentiality – News reporters withholding certain
information from the government. The courts have
rejected this as a constitutional right.
• Since the 1960s, over 200 reporters have refused to testify,
to protect their sources. [Otherwise, they can not get
anymore inside information].
• If they can not protect their sources, those sources will
not give them information they must have to keep the
public informed.
• William T. Farr of L.A., wrote an article about the 1970
murder trial of Charles Manson. When he refused to
answer questions about the article, he was jailed for
contempt of court.
• In 1972, the Court said that the 1st Amendment does not
grant any special privileges to reporters. They have to
respond to relevant questions put to them. Only Congress
or the State legislatures could exempt them. So
35 confidentiality is not a constitutional right.
36 30 States have passed “Shield laws,” giving
reporters some degree of protection against
having to disclose their sources or reveal
other confidential information.
• Prior to 1952, the court said freedom of press
protections did not apply to films. Movies are
a form of artistic endeavor protected by the 1st
Amendment. In 1952, the court said “liberty of
expression” by means of motion pictures is
guaranteed by the 1st and 14th Amendments. A
State or local government can ban an obscene
film if they can show at a hearing that it is obscene.
Prior censorship has been replaced by voluntary
classifications of films by the industry of G, PG,
PG-13, and R]
• Both radio and TV are subject to extensive federal regulation.
37
• Broadcasting has received the most limited 1st amendment protection
because they use the public’s property –the public electromagnetic
airwaves – to broadcast their materials. The F.C.C. may prohibit the use
of indecent language and it can consider that when a station applies for
the renewal of its license.
• “Filthy words” cannot be broadcast during primetime.
•
1. Fairness doctrine – radio and TV broadcasters must present all sides
of important public issues.
•
2. Equal-time doctrine – radio and TV broadcasters must make air time
available to all candidates for public office if they give it to one.
• Cable TV – the court has given cable television industry broader 1st
Amendment freedoms than those enjoyed by traditional TV. In 1987, the
court held that the States cannot regulate “indecent” cable
programming. It struck down a Utah law that prohibited the cable broadcast
of any sexually explicit or other “indecent material” between 7 a.m. and
midnight each day.
• The Federal Commission regulates the content,
nature, very existence of radio and TV broadcasting.
• Stations must devote some time to public service,
children’s programming, political candidates, or views
other than those the owners support
• Miami Herald Publishing Company v. Tornillo (1974).
The Court reversed a law in which Florida require
newspapers to provide space for political candidates to
reply to editorial criticism
• A radio station once tested George Carlin’s “Filthy
Words” that could never be said over the airways… the
Supreme Court upheld that these were words the FCC
could bar to protect children
• In 1992, the FCC fined Howard Stern $600,000 for
indecency
• The Telecommunications Act of 1996 requires cable
TV operators that carry primarily dedicated to sexually
oriented programming to fully scramble or block such
programs
• But, in 2000 in the United States v. Playboy
Entertainment Group the Court decided the government
did have a legitimate right to regulate sexually explicit
programming, but that it should be less restrictive
(target blocking) in which subscribers can ask cable
companies to block channels is more feasible.
The internet has thrown a wrench in the gears of Court
decision… it has generally been decided that the internet
is not a printing press and is not subject to free-speech
protections… it can be regulated.
Communications Decency Act (1996): the first attempt by the United States
Congress to regulate pornographic material on the Internet, in response to
public concerns in 1996. In 1997, the U.S. Supreme Court (Reno v. ACLU) partially
overturned the law in one of its landmark rulings regarding the Internet… it
made no exception for literary, political, artistic, or scientific merit (outlines in Miller)
• In 2002, the Court overturned a ban on virtual porn… so, to a degree it does view
the internet similar to print media, but in 1999 it upheld prohibitions on obscene
emails and faxes.
The Broadcast Decency Enforcement Act (2005) increased tenfold the
penalty that the FCC can impose, to $325,000. The legislation did not
change the broadcast decency standards that were already on the
books. It gave the FCC the means to enforce decency standards more effectively.
• The Court has opposed laws that have shut down nude dancing when zoning
ordinances prevented “all live performances”.
• They have upheld in cases when the effect on “overall expression” was minimal
• Feminists and Conservative Christians have formed alliances against
pornography arguing they are degrading and harmful to women… cities have
passed many of these ordinances, but State courts have shot them down on First
Amendment grounds… the Supreme Court has yet to hear a case of this matter.
To Summarize Internet Restrictions on Free Speech
In 1996, congress passed the Communications Decency Act, making it
illegal to transmit indecent material via the internet. The law was
challenged and went to the Supreme Court. In 1997, this act of Congress was
declared unconstitutional. So today, speech on the internet is virtually
unregulated.
38
• Symbolic Speech [nonverbal speech
through the use of symbols such as
flags, burning draft cards, buttons or
wearing armbands] a person’s
expression by conduct, rather than
oral or published form. The Court has
ruled some forms are acceptable
while others are not.
39
• Picketing –patrolling of a business site by workers on strike.
• Peaceful picketing is protected by the 1st and 14th Amendment.
• The Court in 1940 said it was not a crime to loiter about or
picket a place of business to influence others not to trade or
work there. However, picketing set in a background of
violence may be prevented. Peaceful picketing may be
restricted if it is for some illegal purpose.
• Murder, arson, and robbery can not be used as symbolic
speech.
39
• Burning
of draft cards to protest the Vietnam War
– The court in 1968, U. S. v. O’Brien [O’Brien
burned his card in front of a sizable crowd], said
you cannot violate a federal law that makes it a
crime to destroy or mutilate the cards.
40
• So, burning draft cards has been ruled a crime.
• Wearing of black armbands to class to
publicize their opposition to the war
41 is legal. Mary Beth Tinker, a 13-year old
Jr. High student, and two friends wore
black armbands in 1965 to protest the
Vietnam War. They refused to take
them off and were suspended.
Mary Beth & John Tinker
• The Court ruled in 1969, that suspension for wearing
armbands was unconstitutional. Said the Court, “It can
hardly be argued that either students or teachers shed
their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” They also said school
officials do not possess absolute authority over their students.
• So, it is legal to wear armbands to protest the war but you
cannot burn a draft card.
• Lower courts have relied on Tinker in rulings on
school attire, allowing nose rings and dyed hair,
for example, but disallowing a clothing displaying
a confederate flag.
OK
Not OK
• In 2007, the Court weighed in on another student expression
case, Frederick v. Morse, ruling that schools can limit student
speech that seems to advocate illegal drug use. The case
concerned Joseph Frederick, an 18-year old senior at JuneauDouglas High School in Alaska, who was suspended in 2002
for 10 days holding a 14-foot banner that said “Bong [water pipe
for marijuana] Hits 4 Jesus” while standing across the street
from the school during the Olympic torch relay.
•
•
•
•
•
Your belongings can be searched, but not arbitrarily.
Background: A 14-year old freshman girl at Piscataway High in New
Jersey, was caught smoking in a school bathroom by a teacher. The
principal questioned her and asked to see her purse. The police were
called and she admitted selling drugs at school.
Her case went to trial and she was found guilty of possession of marijuana and
placed on probation. She appealed her conviction, claiming that the search of
her purse violated her fourth Amendment protection against “unreasonable
searches and seizures.”
Ruling: The Court ruled in favor of the school. Students have “legitimate
expectations of privacy,” the court said, but that must be balanced with the
school’s responsibility for “maintaining, an environment in which learning can
take place.” The initial search of her purse for cigarettes was reasonable, the
Court said, based on the teacher’s report that she’d been smoking in the
bathroom. The discovery of rolling papers near the cigarettes in her purse
created a reasonable suspicion that she possessed marijuana, the Court said,
which justified further exploration.
Impact: This is the landmark case on search and seizure at school. School
officials may search a student’s property if they have a “reasonable suspicion”
that a school rule has been broken, or a student has committed or is in the process
of committing a crime. These are called “suspicion-based” searches. There are also
“suspicionless searches” in which everyone in a certain group is subject to a
search at school.
•
•
•
•
•
Teachers can use corporal punishment, if your locality allows it.
James Ingraham, a 14-year-old 8th grader at Drew Junior High School
in Miami, was taken to the principal’s office after a teacher accused him
of being rowdy in the school auditorium. The principal decided to give
him five swats with a paddle, but James said that he hadn’t done
anything wrong and refused to be punished. He was subsequently held
down while the principal gave him 20 swats.
While corporal punishment was permitted in the school district, James suffered
bruises that kept him out of school for 10 days and he had to seek medical
attention. James and his mother sued the principal and other school officials
claiming the paddling violated 8th amendment protections against “cruel and
unusual punishment.”
Ruling: The Court ruled against James. The Court said that reasonable physical
discipline at school doesn’t violate the Constitution. The 8th Amendment, the
Justices said, was designed to protect convicted criminals from excessive
punishment at the hands of the government - not schoolchildren who misbehave.
Impact: The Court did direct teachers and principals to be cautious and use
restraint when deciding whether to administer corporal punishment to
students. The Justices suggested that school officials consider the seriousness
of a student’s offense, the student’s attitude and past behavior, the age and
physical condition of the student, and the availability of a less severe but equally
effective means of discipline. 22 States currently permit corporal punishment
in public schools and 28 have banned the practice.
• Teens can be tried as adults.
•
•
Background: Morris Kent, 16, who had been on probation since
he was 14 for burglary and theft, was arrested and charged with
three home burglaries, three robberies, and two counts of rape in
Washington, D.D. Because of the seriousness of the charges and
Morris’s previous criminal history, the prosecutor moved to try
Morris in adult court.
Morris’s lawyer wanted the case to stay in juvenile court where the penalties were
much less severe. He had planned to argue that Morris had a mental illness that
should be taken into account when deciding where he would be tried. Without a
hearing, the judge sided with the prosecutor and sent Morris to adult court, where
he was found guilty and sentenced to 30 to 90 years in prison. Morris appealed,
arguing that the case should have remained in juvenile court.
• Ruling: The Court ruled against Morris, and said that a minor can be tried
and punished as an adult. However, the Justices said that in deciding
whether to remove a case from juvenile court, judges must weigh a variety
of factors, including the seriousness of the crime, the juvenile’s age; and
the defendant’s criminal background and mental state.
•
Impact: How the courts treat juveniles in the legal system varies from State to State.
In many States, those under 18 can be tried as adults for crimes such as murder,
sexual assault, or possession or sale of drugs, with punishments that range up to
life in prison without the possibility of parole. In 2005, the Court abolished the death
penalty for juvenile offenders, saying it violated the 8th Amendment’s protection
against “cruel and unusual punishments.”
• Zachary Guiles was suspended from
his Vermont middle school for
wearing a T-shirt that criticized
President Bush and bore images of
cocaine and a martini glass. The
Court upheld a ruling that the school
had no right to censor the shirt.
• After his suspension, Zachary returned to
school with duct tape covering the
offending images. An appeals court said
the school had no right to censor any part
of the shirt. In 2007, the Court said schools
could regulate student expression if it
advocated illegal drug use but that
schools could not censor political
speech.
Zachary Guiles
• In 1976, the Court said this is not a constitutional
right even if he believes his long hair is a means of
expressing his attitude and lifestyle.
• In 1976, The Court overturned a six-month
sentence for treating the American flag
“contemptuously.” So, using the flag
42
as an article of clothing is not a criminal
act.
• Flag burning – During the 1984 Republican
national convention in Dallas, Gregory
Johnson was arrested for burning a flag
during a demonstration in front of City Hall. Gregory Johnson
• Johnson was convicted under a Texas law that provides for a
jail term of up to one year and a fine up to $2,000 for
“seriously” offending another person by desecrating a State
or national object of veneration. The officers who arrested
Johnson testified they were “seriously offended” by his act.
• Was this a symbolic gesture a democratic nation must tolerate
or illegal?
• The Supreme Court in 1989 ruled
43 that flag burning is a form of
symbolic speech.
• So not all conduct [nonverbal speech]
can be justified as symbolic speech.
Before we look at the next slides, how
would you answer these questions?
1. Do citizens of States have to act as mobile billboards [display
State slogans on their license plates] or if they don’t like it,
can they cover it up?
2. Can abortion services be advertised in the newspaper?
3. Can prescription drug prices be advertised in the newspaper?
4. Can there be contraceptive advertising in the newspaper?
5. The government has banned cigarette ads on radio and TV
but can they ban tobacco and snuff advertising as well?
6. Can attorneys advertise their fees?
7. Can public utility companies insert statements on monthly
utility bills on controversial issues?
8. Can a political group put political pamphlets in your mailbox
without putting a stamp on it?
• Advertising – What Can Be Advertised?
• Do citizens of States have to act as “mobile billboards” by
having to display State slogans on auto license plates [or can
you cover it with tape if it conflicts with your moral beliefs?]
• In New Hampshire, some Jehovah’s Witnesses objected to the
State motto, “Live Free or Die,” having to be displayed on
their license plate because it conflicted with their religious
beliefs of “everlasting life.” One covered it with tape for 15
days. The court, in 1977, said they could cover the mottos.
• Commercial Speech (like advertising) is far more
restricted than religious, political, and other speech.
• The Federal Trade Commission (FTC) decides what goods may
be advertised on radio and TV… cultural changes have made a
big difference over the years (i.e. tampons commercials could not
run, but cigarette ads could).
• The FTC tries to ensure truth in advertising, but there are
often overt references to products improving one’s love life.
• Excedrin was forced though, to remove ads that
suggested it stopped pain “on pain other than
headache” based on tests given after child birth.
• The Courts have recently asserted that the Constitution
does protect free speech by overturning state laws banning
commercials on condoms, abortion, casino gambling, and
legal services.
• In 1975 the Court said it was legal.
• In 1976 the Court said it was legal.
• In 1977 the Court said this was legal.
• In 1970, the government banned cigarette
ads on radio and TV. In 1986, it added
chewing tobacco and snuff.
• In 1996, the Court unanimously struck down a State law
that prohibited ads in which liquor prices were listed.
• In 1977 the court said it was legal.
• In 1980 the court said this was legal.
• In 1981, the Court said this was not a constitutional right.
Before we look at the next slides, how
would you answer these questions?
1.
2.
3.
4.
5.
If an alien [member of a foreign nation] utters or publishes
false or scandalous statements with intent to defame the
government, can the president deport that alien?
Can a city publicly fund a Nativity scene on public property,
surrounded by commercial symbols of the Christmas
season [for ex, Santa and his sleigh].
As a protester, can you disrupt a classroom or shut down
a speaker?
Can the government force you to get a permit of advance
notice to hold a demonstration?
If the demonstrators are peaceful but the crowd is not, can
the demonstrators be arrested? Can the demonstration be
stopped?
• Focus: What are the limitations national security
imposes on freedom of expression?
• Are those who seek to destroy the U.S. protected
by constitutional guarantees?
• The government has the right to protect itself against internal
subversion [domestic threats to national security] while
preserving individual freedoms.
• So the nation must protect itself and preserve individual
freedoms at the same time.
• The government may punish
espionage [spying], sabotage
[hindering the war or defense
effort] and treason [giving aid
to the enemy].
Because sedition [undermining legal authority or
inciting rebellion against the government]
involves the use of spoken or written words, it
presents a more delicate problem. Here, there is
no violence or betrayal. The court has said that
seditious words must pose a “clear and present
danger.”
Alien and Sedition Acts of 1798. This act was intended to stifle
the opponents of John Adams and the Federalists. This was
congress first attempt to curb opposition to the U.S.
government. It was a crime to utter or publish false or
scandalous statements with intent to defame the
government. The President could deport any undesirable
alien. 25 people were fined or jailed for violating them. They
were unconstitutional and were later repealed.
• Espionage Act of 1917 – crime to encourage
disloyalty, interfere with the draft, obstruct
recruiting, incite insubordination in the armed
forces or hinder the sale of government bonds.
It made it a crime to willfully utter, print or write
any disloyal, profane, or scurrilous, or abusive language about
the government. It could result in a fine of $2,000 or two years
in jail. This law does turn out to be constitutional.
• Schenck v. U.S. 1919 – the court laid down the famous “clear
and present danger” test [government can restrain speech
only when it presents an immediate threat to public order.]
A nation has the right to protect itself by restricting
freedom of speech during wartime.
44
• So, there must be clear and present danger to arrest someone
for sedition.
• Charles Schenck, the General-Secretary of the
socialist party had sent 15,000 pamphlets urging
new draftees to resist the draft and not cooperate
in the war. He said draftees are little better than
convicts. The Court decided that urging draft
resistance posed a “clear and present danger
that…will bring about…evils that Congress has a right to
prevent.” he was convicted of obstructing the war effort. The
Court said “words can be weapons” and the clear and
present danger test holds that words can be outlawed if their
use creates an immediate danger that criminal acts will follow.
• Sedition [advocating the overthrow of the government by
mouth or print] during peacetime is possible.
• The Smith Act [1940] [a sedition law] – made it unlawful for
any person to advocate the violent overthrow of the government
or to be a member of a group with such an aim. The Court has
said this law was legal but prosecutions under it are difficult.
• Freedom of Assembly [the right of
people to unite many voices as one]
and petition.
• Focus
• What limitations exist on assembly and petition?
• It does not guarantee the right to:
• Incite others to violence, riot, block a public street,
close a school, or endanger life, property or public
order.
• Protesters are not free to disrupt the
classroom or to shout down a speaker.
• So, disturbing the peace or causing harm are not
protected.
Two facets:
1. Literal right to gather together in a group
2. Right to associate with those who share a
common interest.
1. Right to Assemble: Can conflict with other values if it
disrupts public order, traffic flow, peace and quiet, or
the freedom of bystanders to go about their business.
This right includes picketing, parading, and protest.
Groups must often apply for a permit and post a
bond of usually a few hundred dollars.
They must pledge to demonstrate at a time and place
that allows the police to prevent major disruptions.
There is virtually no limitations on the content of group
messages (Collins v. Smith, Skokie, IL.).
Harassment is not allowed… pro-life protesters have often been accused of
this, Particularly “Operation Rescue” who use extreme measures to prevent
women from obtaining abortions.
In 1994, Congress passed a law that focused on abortion clinic protestors
The Court also decided in 1988 that picketing residential property was off
limits.
• Government can enforce reasonable rules covering
assemblies to keep the public peace. These rules
must be precisely drawn and publicly administered.
You cannot make noise or cause any other diversion
near a school.
• You cannot conduct a demonstration near a
courthouse to influence court proceedings.
• The responsibility to keep a
demonstration from growing
into a riot or to control traffic
can be used as an excuse to
prevent speech.
• Demonstrations on jail premises may be forbidden.
• These demonstrations would take place on streets,
sidewalks, parks, and public building.
• Public property is used to bring the message to those
not aware of it and to reach those who may not agree
with them.
• Demonstrations usually involve some conflict
because a clash of ideas is normally present and
heat is normally generated.
• The Court has upheld laws requiring permits and
advance notice for demonstrations.
• Guidelines have been set on when to stop an
unpopular group when its activities have excited
others to violence.
• While under police protection, Dick led a group as they
marched, singing, changing, and carrying placards, from
city hall to the mayor’s home five miles away. They demanded
the firing of the city’s school superintendent and an end to
de facto segregation in the city’s schools.
• Hundreds of onlookers gathered and traded insults and threats. Rocks,
eggs, and other missiles were thrown at the marchers. Fearing violence,
police ordered Gregory and his group to disperse. They refused and
were arrested, and charged with disorderly conduct. The Court
unanimously overturned their conviction. It said the marchers had done no
more than exercise their constitutional rights of assembly and petition. The
disorders were caused by the residents and others, no but he
demonstrators.
• The Court said that as long as demonstrators act peacefully, they could not
45
be arrested under an ordinance making disorderly conduct a crime.
• Demonstrations on Private Property [like large shopping centers].
• Private property is not a place of public assembly where you can trespass to
46 express political views. Demonstrators do not have a right to ask people to
sign petitions or hand out political leaflets. The owners may allow this.
• Dick Gregory pushed the “Bahamian Diet” [weight loss powder]. He went
from 350 pounds [and 4 packs of cigarettes a day] to 135 pounds lbs.
courts are the major guardians of our civil rights.
1. The __________
1. Without freedom of expression, democracy (could/could not) exist.
3. Individual rights are included in the Constitution because the (people/Congress)
demanded it.
4. Our civil rights are (relative/absolute).
5. We (have/do not have) the right to do as we please as long as what is done
does not interfere with the rights of others.
6. During WWII, 120,000 (Japanese/Chinese) were placed in relocation centers.
They were later given ($10,000/$20,000/$50,000) each or about $1.25 billion.
7. The 10 amendments in the Bill of Rights were originally intended as restrictions
against the (State governments/national government) only.
8. The Supreme Court (has/has not) nationalized the Bill of Rights by saying that its
protections apply to the States in the 14th Amendment (Due Process clause of fair
and equal treatment.
9’.The (8th/9th/10th) Amendment says the American people retain other rights not
specifically enumerated by the Constitution.
10. The right to believe as one chooses [religion] is protected against the national
government by the (1st/14th) amendment and against the States by the (1st/14th)
Amendment.
11. The (free exercise/establishment) clause prohibits an establishment of religion.
12. The (free exercise/establishment) clause forbids arbitrary government interference
in the “free exercise of religion” and allows you to “hold no religious beliefs at all.”
13. A religious test (can/can not) be required as a qualification to political office.
14. The (free exercise/establishment) clause sets up a “wall of separation between
church and State”.
15. Most of the cases involving the Establishment Clause have centered on education
and (religion/racial relations).
16. Before a football game between two public school, it (is/is not) constitutional to
have a pre-game prayer.
17. It (is/is not) constitutional for the State of Texas to provide state aid to private
schools.
18. In 1962, the Supreme Court (outlawed/did not outlaw) nondenominational
prayer in public schools.
19. It (is/is not) constitutional to post the Ten Commandments in public school
classrooms.
20. A “moment of silence” is (constitutional/not constitutional) in the public school
classrooms.
21. The Supreme court (has/has not) been more generous in applying the
Establishment clause to colleges and universities than to elementary and
secondary schools.
22. It (is/is not) legal to open sessions of Congress or State legislatures with prayer.
23. A church related school that discriminates based on race (can/can not) be denied
a tax exempt status.
24. Aid to parochial schools must avoid a[an] (slander/libel/excessive entanglement)
of government with religion.
25. The Supreme Court has said that religious beliefs (are/are not) superior to the law.
26. The armed Forces (can/can not) forbid an orthodox Jew from wearing his skull
cap while on active duty.
27. Amish children (can/can not) be forced to attend school beyond the 8th grade.
28. Unemployment compensation (can/can not) be denied to a worker who quit a job
involving conflict over religious beliefs.
29. Jehovah’s Witnesses (can/can not) be made to pledge allegiance to the flag of
the U.S.
30. The freedoms of speech and press (are/are not) absolute and unlimited.
31. Students (have/do not have) an absolute right to publish what they want in a
school newspaper.
32. (Slander/Libel) is false, malicious printed words and (slander/libel) is false,
malicious spoken words.
33. (Slander/Libel/Prior Restraint) is censorship of material before it is spoken or
published unless it incites readers to violence.
34. Therefore, prior restraint has been held by the Supreme Court to be
(usually/absolutely) illegal.
35. Confidentiality [news reporters withholding certain information from the
government] (is/is not) a constitutional right.
36. (Symbolic/Shield) laws give reporters some degree of protection against having
to disclose their sources or reveal other confidential information.
37. Broadcasting [radio and TV] have received the (least/most) limited 1st Amendment
protection.
38. (Picketing/Symbolic speech) is expression of ideas by conduct rather than in
speech or print.
39. (Picketing/Symbolic speech) is a patrolling of a business site by
workers on strike.
40. Burning draft cards (has/has not) been ruled a crime.
41. Wearing armbands to protest something (is/is not) legal.
42. It (is/is not) a criminal act to wear the flag sewn on to the seat of your
pants.
43. Burning the American flag (is/is not) an acceptable form of symbolic
speech.
44. There (must be/must not be) clear and present danger to arrest
someone for sedition [advocating the overthrow of the government].
45. As long as demonstrators act peacefully, they (can/can not) be arrested
for disorderly conduct simply because others have reacted to their march
with violence [Gregory v. Chicago].
46. Demonstrators (do/do not) have a constitutional right to hand out political
literature and ask people to sign petitions at shopping centers or other
private property.
Civil Liberties – Chapter 19 – [Sections 1 & 2] [Small Test]
No 1. Is it legal to start the day in public schools with a
___
nondenominational prayer?
No 2. Can the government establish a certain religion in the State of Texas?
___
Yes 3. Can Congress open with a prayer?
___
Yes 4. Is it illegal to have a prayer over the loudspeaker before a
___
public high school football game.
Yes 5. Are churches exempt from taxes?
___
No 6. Is it legal for a State’s constitution to require all public officials to
___
declare a belief in the existence of God?
Yes 7. Is it legal for a public high student to hold no religious beliefs at all?
___
No 8. Can Amish children be forced to attend school beyond the 8th grade?
___
No 9. Can unemployment benefits be denied to a worker who quit his job
___
involving a conflict over religious beliefs?
No 10. Is it legal to read the Bible in public schools for religious purposes?
___
No 11. Can a State forbid a minister from holding public office?
___
No 12. Do you have the right to do as you please even if exercising
___
that right interferes with the rights of others?
No 13. Is it legal to have the 10 Commandments posted in a classroom?
___
No 14. Is there a complete listing of our rights in the Constitution?
___
No 15. Does a church-related college which discriminates on the basis
___
of race get tax-exempt status?
No
___16.
Is it constitutional to require a religious test as a
qualification for public office?
Yes 17. Can public officials take an oath in the name of God?
___
No 18. Is it constitutional for a public school student to
___
study religion [not on a historical or literary basis]
No 19. Are doctrines of religious belief superior to the
___
laws of the land?
Yes
___20.
Can parochial schools get State aid for transportation?
Yes
___21.
Can the Armed Forces forbid a Jew from wearing
his skull cap on active duty?
No 22. Is a “moment of silence” for voluntary prayer legal
___
in the public schools?
No 23. Can a Mormon have more than two wives because
___
his religion allows it?
Yes 24. Can religious objectors be drafted into the army?
___
Yes
___25.
Is it legal to teach evolution in the public schools?
#24. Welch, 1970, the Court held that the only person that could not be drafted were those
“whose consciences…would give them no rest if they allowed themselves to become part
of the instrument of war.”