Chapter 15
Order & Civil Liberties:
The Bill of Rights: Applied only to the National Government
1. What does the term Civil Liberties mean?
Civil Liberties = FREEDOMS- speech, religion, press
2. What does the term Civil Rights mean?
Rights guaranteed to the individual & protected by the government
Vote, jury trial, lawyer
I. Freedom of RELIGION
The first amendment guarantees freedom of religion in these 2 clauses:
A. Establishment Clause:
prohibits the government from establishing a religion
B. Free-Exercise Clause:
Prevents the government from getting involved in how religion is practiced
American freedom to believe in religion is unlimited,
but freedom to practice religion can be limited.
“Wall of Separation”- Supreme Court Quoted by TJ- Thomas Jefferson
1947 that wall breaks down in Everson v. B.O.E.
In 1947 the Supreme Court breached the “separation of church and state”
idea in the court case Everson v. B.O.E. which allowed for the free
transportation of private school children on public school buses.
In 1968 that breach widened even more when the government allowed
parochial school students to borrow public school textbooks.
Today: The wall is still breaking down---- see Freedom of religion hand out
****Churches/Religious groups can not get money directly from the government,
but can BENEFIT INDIRECTLY from the government
SECULAR : NON Religious
NON SECULAR: Religious
In 1971 The Supreme Court created a three pronged test for determining the
constitutionality of government programs under the establishment clause.
What was the name of the case that created this 3 pronged test?
__LEMON TEST______
What were the three points?
1. Must have a secular purpose
2. Must not inhibit religion
3. Must not excessively entangle government
In 1997 what Supreme Court case dramatically loosened even the Lemon Test
that was used as a guide for 25 years? Agostini v. Felton
What was the outcome of the case?
Allowed public school teachers to teach congressionally mandated secular
classes at private schools, paid for by public school funds.
In 2002 the court provided even more support for its tolerant position of the
establishment clause. List the case and explain its significance.
Zelman v. Simmons Harris- upheld a state school voucher program in which secular or
2002
sectarian schools could participate
What is the difference between:
SECULAR : NON Religious
NON SECULAR: Religious
1984 in Lynch v. Donnelly the S.C. allowed the “acknowledgement” of religious heritage
of the majority of Americans. What did they allow to be put on public property?
Nativity scene with commercial symbols of Christmas
However, in 1989 in the case of the County of Allegheny v. ACLU they allowed a
menorah to be displayed which was with other holiday decorations, but not a
crèche (nativity scene). That was alone in the courthouse.
SCHOOL PRAYER
Supreme Court has consistently equated school prayer with government support of
religion. 1962 what case outlawed the reciting of prayer in school?
Engle v. Vitale
In 1992 the Supreme Court struck down the reciting of prayer at graduation due to
Lee v. Weisman
In 2000 the Supreme Court struck down praying at what school location?
Santa Fe ISD vs. DOE
Football Field
In 1985 the Supreme Court outlawed silent meditation & Prayer in public schools due
to what case?
Wallace v. Jaffree
In 1984 Congress passed the Equal Access Act that allows students to have prayer
groups before and after school.
In _2001_ The Supreme Court rendered a verdict in accordance with the
Equal Access Act.
What if someone wanted a club for witches and wizards? Would this be allowed?
When was the phrase, “Under God” added to the Pledge of Allegiance? 1954
FREE EXERCISE
What exactly does free exercise mean?
You can practice your religion any way you want to as long as you don’t harm
anyone or anything.
Define Strict Scrutiny: The law may be upheld only if the government can demonstrate
that the law is justified by a “compelling government interest”
What happened in the case of Sherbert v. Verner (1963)
She was allowed unemployment benefits even though she couldn’t
work on her Sabbath-Saturday
The Supreme Court finally tips the balance of religious freedom in favor of Social Order
in this 1990 case that Native Americans wanted to be able to smoke, peyote, an illegal
substances because they felt it was a part of their religion.
What is the name of the case?
Employment Division v. Smith
What Act did Congress try to pass to require the government to satisfy the strict scrutiny
standard before it can institute measure that interfere with religious practices?
Religious Freedom Restoration Act (1993)
The Supreme Court deemed that Act unconstitutional in the case of
City of Borne, Texas v. Flores in 1997.
Gov’t must show a compelling interest
Limits on Religion:
Government Support of Religion:
Engle v. Vitale- prayer in school
Lemon test- 3 pronged test
Everson v. BOE- free busing for parochial students
Lynch v. Donnelly-Holiday Motifs allowed together
PA & no free textbooks for parochial school
Employment Division v. Smith
Agostini v. Felton-
No smoking peyote for religious purposes
City of Boerne v. Flores
ZELMAN v.
parochial schools use public teachers at
taxpayers expense
Simmons-Harris- vouchers
II. Freedom of SPEECH
What are the press and speech clauses of the first amendment called?
They are called the Free Expression Clause:
The government shall make no law…
….. abridging the freedom of Speech or the Press
However…… The Supreme Court has never agreed that this clause is absolutely true!
What court case established clear and present danger? (1919) Schenck v. U.S.
It upheld the 1917 Espionage ActSchenck, a Socialist sent leaflets urging men not to join the military,
the SC felt it obstructed military recruiting
What does clear and present danger mean?
If you pose a threat to national security you have no freedom of speech
Clear & Present Danger test put limits on most speech, but over the years,
those limits have faded away (see handout)
What was the outcome of the case- Abrams v. the United States in (1919)?
Russian Immigrant Abrams was an anarchist who passed out
anti WWI literature---He was found guilty of clear and present danger
Why did Justice Holmes dissent? He felt there was no IMMEDIATE THREAT
What is significant about the Landmark case in 1925 -Gitlow v. New York?
Gitlow urges Socialism violating a NY anarchy law Puts limits on “anarchy literature”,
but Free Speech starts to be incorporated on the state level
= Applying the Bill of Rights at the state level
Limits on Speech
Schenck v. US, Abrams v. US- Federal Law
Gitlow v. NY- State Law
In 1969 which case presents less use of clear and present danger restrictions?
Brandenberg v. Ohio
Why did it create even more latitude?
The court believed these KKK actions on videotape were not “immediate” threats
SYMBOLIC EXPRESSION
Nonverbal behavior is in general protected less than freedom of speech.
What did the Supreme Court decide in Tinker v. Des Moines in 1969?
Students can protest in school by wearing armbandsthey are not disrupting classes by this.
What did the Supreme Court decide in Texas v. Johnson in 1989?
You can burn a “venerated” object due to freedom of speech “Expressive speech”
Then Congress enacts the Flag Protection Act of 1989 but the Supreme Court in
1990 nullifies that act in what case?
U.S. v. Eichman
ORDER V. FREE SPEECH: Fighting words and threatening speech
What case in 1942 said that “fighting words” inflict injury and tend to incite an
“immediate” breach of the peace.----Chaplinsky v. New Hampshire
However, seven years later in 1949 the Supreme Court allows A. Terminiello to use
much worse words on the basis that speech that stirs people to anger, is protected
by the 1st amendment.
In a 1971 case of Cohen v. California,
He was allowed by the Supreme Court to wear a jacket with the phrase F*** the draft.
“one man’s vulgarity is another man’s lyric”
When does the Supreme Court decide a “true threat”?
A true threat must be “IMMEDIATE” and specific to the person being threatened.
What did the Supreme Court decide in the 1997 case Reno v. ACLU?
Free Speech is allowed in cyberspace. Even porn is protected.
What has been happening to freedom of religion and freedom of speech
in the 20th century?
Freedom of Expression has also been expanding
Cohen v. California, Tinker v. Des Moines, Reno v. ACLU
FREE SPEECH V. ORDER: Obscenity
How has the S.C. always viewed obscene material?
It’s material outside the bounds of Constitutional protection.
How did Justice Potter Stewart identify obscene material? I’ll know it when I see it!”
1973 Miller v. California established 3 points to determine what was and wasn’t obscene.
What are these 3 points?
a. if it appeals to a prurient (tendency to incite lustful thoughts) interests
b. portrays sexual conduct in an offensive way
c. lacks serious literary, artistic, political or scientific value
Obscenity
Is considered outside the bounds of constitutional protection
Definition of obscenity proves elusive.
Miller v. California sets a standard
III. Freedom of the Press
What did the case of NY Times v. Sullivan declare? (1964)
Freedom of the press takes precedence at least when the
defamed individual is a public official
The press granted Jay Near freedom of the press when he wanted to publish a
scandalous sheet attacking local officials. 1931 Near v. Minnesota
NY Times v. US “Pentagon Papers”
Why did the Supreme Court allow these papers to be published?
They couldn’t prove that printing the papers would have an immediate,
inevitable and irreparable harm.
The Supreme Court is not willing to provide the press with extraordinary
protections in one area. Journalists are not protected from the demands of
law enforcement in the area of criminal investigations.
The press has the most freedom of any entity!!
Prior Restraint: stopping something from being published
The Supreme Court says prior restraint
places an unacceptable burden on free press
Near v. Minnesota- the first time a newspaper was supported on the
state level Prior Restraint was not allowed.
NY Times v. US—The Pentagon Papers did not prove
“Immediate, Inevitable and Irreparable Harm”
Too bad for public officials and stars! It takes an awful lot to show actual
malice by the publishing firm.
What about reporter’s rights and CONFIDENTIALITY?????
Too bad- citizen’s have a duty to give their government whatever
testimony they are capable of giving. Journalists are not exempt from
this ESPECIALLY in areas of CRIMINAL CONDUCT
IV. Right to Assemble
Allowable usually with a permit
Applying THE BILL OF RIGHTS to the STATES
Which amendment links the bill of rights to the states?
14th Amendment
Which clause holds the states to the provisions of the bill of rights?
DUE PROCESS CLAUSE
Define Bills of Attainder: laws that make an individual guilty of a crime without a trial
Define ex post facto laws: laws that declare an action a crime after the law has
been passed
What Supreme Court case determined that double jeopardy and trial by jury were
fundamental rights to be protected by the states? (1937)
1st case---Palko found guilty life in prison 2nd case-found guilty by death penalty
Palko v. Connecticut- Palko died in the gas chamber in 1938
1969---Benton v. Maryland will overturn Palko case
EXPLAIN the S.C. cases that have contributed to the reshaping of constitutional
procedural safeguards in criminal cases.
1. Gideon v. Wainwright: the right to a lawyer in STATE cases,
due to the 6th Amendment
2. Miranda v. Arizona (1966) ensures protection against self incrimination when
Arrested --- 5th amendment
Wolf v. Colorado (1949) —states are NOT bound by the exclusionary rule
3. Mapp v. Ohio (1961) instituted the exclusionary rule in STATE cases
4. US v. Leon (1984) created the “good faith exception” to the exclusionary rule
V.
Applying the Bill of Rights to the States
The 14th Amendment is used for this purpose
1937 the Supreme Court would not apply the 14th amendment
“Due Process” to double jeopardy only to cases with
speech and the press
Criminal Proceedings
Duncan v. Louisiana- jury trials required in all state courts
(cases where conviction is more than 6 months)
Federal Juries must have 12 jurors
State Juries must have a minimum of 6 jurors
Gideon v. Wainwright- poor people deserve the right to counsel in state cases
The Federal Government always allowed the exclusionary rule
Exclusionary Rule: those items found not on the warrant are excluded
from the court
This rule did not apply to the states until--Wolf v. Colorado—states must decide how to use this
Mapp overturns Wolf v. Colorado
(1961) Mapp v. Ohio- forces all levels of government to use the
exclusionary rule
Good Faith Exception: those items found on good faith can be introduced
in courts----U.S. v. Leon
VI. The 9th Amendment—Unenumerated Rights
The Privacy question doesn’t come up until 1965 see study guide notes.
Abortion and homosexuality
The following cases defined the limits of government encroachment on personal
autonomy. What did each case allow?
1. Grizwald v. Connecticut (1965) Birth control “The pill” is allowed
2. Roe v. Wade (1973) Abortion is legal in the first trimester of a pregnancy
3. Webster v. Reproductive Health Services (1989)
denied the use of public employees or publicly funded facilities in the
performance of an abortion unless, the woman’s life is in danger
The Supreme Court said it does not protect _Homosexual__ relations between
consenting adults.
Bowers v. Hardwick: The Constitution does not protect
(1986)
homosexuals in the privacy of their own home
Lawrence & Garner vs. Texas: overturns Bowers v. Hardwick
(2003)