Constitutional Rights
• The belief in human rights, or fundamental
freedoms, lies at the heart of the American
political system.
• The Constitution of the United States
guarantees certain basic rights in the Bill
of Rights, comprised of the first 10
amendments, and in several additional
amendments.
SECTION 1
Constitutional Rights (cont.)
• The Bill of Rights was not originally intended
to limit state and local governments.
• The Supreme Court has interpreted the
due process clause of the Fourteenth
Amendment to apply the guarantees of the
Bill of Rights to state and local
governments.
SECTION 1
Constitutional Rights (cont.)
• The Supreme Court interpreted the words
due process to include other protections of
the Bill of Rights:
− protection from unreasonable search
and seizure
− the right of the accused to have a lawyer
− protection from cruel and unusual
punishment
Debate: Prayer & Bible Reading in Public schools?
1. Engel v. Vitale (1962)
The Court ruled that a nondenominational prayer used in a public
school is unconstitutional
2. Abington School District v. Schempp (1963) & Murray v. Curlett
(1963)
Court banned school sponsored Bible reading & recitation of the
lord’s Prayer in public schools
Reason: Teachers whose salaries were paid by tax dollars conducted
the activities in public buildings (Violated 1st Amendment)
. Lemon v. Kurtzman (1971)—Lemon Test—Is establishment clause
being violated?
To be constitutional, state aid to church schools must:
-have a clear secular, nonreligious purpose
-neither advance a religion nor discourage the practice of a religion.
-Avoid “excessive government entanglement with religion”
No state can deprive any person of their 1st Amendment
rights
1. Freedom of Speech
2. Freedom of the press
3. Freedom of Religion
4. Freedom of assembly
Everson v. Board of Education (1947)—
Challenge to a New Jersey law allowing the
state to pay for busing students to parochial
schools
Law was constitutional because the law
benefited students rather than a religion
directly.
SECTION 1
Constitutional Rights (cont.)
• The process by which the Bill of Rights was
extended to the states and localities is
incorporation.
• The incorporation of the Bill of Rights means
that U.S. citizens in every part of the country
have the same basic rights.
• In practice, nationalization means that
citizens who believe that a state or local
authority has denied them their basic rights
may take their case to a federal court.
SECTION 2
The Establishment Clause
• The first clause of the First Amendment—
the establishment clause—states that
“Congress shall make no law respecting
an establishment of religion.”
• The second clause—the free exercise
clause—prohibits government from unduly
interfering with the free exercise of religion.
• Under the Constitution, the task of resolving
controversies surrounding church-state
relations falls on the Supreme Court.
SECTION 2
The Establishment Clause (cont.)
• Everson v. Board of Education involved a
challenge to a New Jersey law allowing the
state to pay for busing students to parochial
schools—schools operated by a church or
religious group.
• The Court ruled that the law was
constitutional because it benefited
students rather than religion directly.
SECTION 2
The Establishment Clause (cont.)
• In Board of Education v. Allen the Court
upheld state programs that provide secular,
or nonreligious, textbooks to parochial
schools.
• Other important controversial cases involving
religion address release times for students,
school prayer, and the teaching of the theory
of evolution.
SECTION 2
The Free Exercise Clause
• In addition to banning an established church,
the First Amendment forbids laws “prohibiting
the free exercise” of religion.
• In the case of Reynolds v. United States,
George Reynolds appealed his polygamy
conviction, claiming that the law abridged,
or limited, freedom of religion.
SECTION 2
The Free Exercise Clause (cont.)
• The Court upheld his conviction and
established that people are not free to
worship in ways that violate laws that
protect the health, safety, or morals of the
community.
• The Court usually follows precedent,
decisions made on the same issue in
earlier cases.
. Wisconsin v. Yoder (1972)
Court declared that the state could not require
Amish parents to send their children to public
school beyond the 8th grade
Reason: To do so would threaten to undermine
the Amish community.
Debate: Religious Expression & the Flag
1. Minersville School District v. Gobitis (1940)
Court ruled that requiring children to salute the flag did not
infringe on religious freedom
2. West Virginia State Board of education v. Barnette
(1943)
 overturned Gobitis decision
 Court concluded that patriotism could be taught without
forcing people to violate their religious beliefs
SECTION 3
Types of Speech
• The First Amendment exists to protect the
expression of unpopular ideas—popular
ideas need little protection.
• Pure speech is the verbal expression of
thought and opinion before an audience
that has chosen to listen.
• Symbolic speech—sometimes called
expressive conduct—involves the use of
actions and symbols, in addition to or
instead of words, to express opinions.
SYMBOLIC SPEECH
Tinker v. Des Moines School District
(1969)—protects the rights to wear
black armbands in school to
protest the Vietnam war
SECTION 3
Regulating Speech
• Because free speech must be balanced
against the need to protect society, some
restraints on pure speech do exist.
• Congress and state legislatures have
outlawed seditious speech—speech urging
resistance to lawful authority or advocating
the overthrow of the government.
Civil Liberties and Terrorism
REGULATING SPEECH
a. Clear & Present Danger
Schenck v. United States (1919)—Clear &
Present danger test
the defendant’s anti draft rhetoric created a
“clear 7 present danger” to the success of the
war effort, it was not protected speech.
REGULATING SPEECH
b. Bad Tendency Doctrine
1. Gitlow v. New York (1925)—the Supreme
Court ruled that speech could be restricted
even if it had only a tendency to lead to illegal
action
since 1920s the bad tendency doctrine has lost
support from the supreme Court
REGULATING SPEECH
c. The Preferred Position Doctrine
1. 1940s—It holds that 1st Amendment
freedoms are more basic than other
freedoms. So any law limiting these freedoms
should be ruled unconstitutional unless the
government can show the law to be absolutely
necessary.
SECTION 3
Other Unprotected Speech
• The First Amendment does not protect
defamatory speech, or false speech that
damages a person’s good name, character,
or reputation. There are two types of
defamatory speech:
– slander, which is spoken, and
– libel, which is written.
FIGURE 1
SPEECH NOT FULLY PROTECTED
b. “Fighting Words”
1. Chaplinsky v. New Hampshire (1942)—
Supreme Court ruled that the 1st amendment
doe not protect words that are so insulting
that they lead to immediate violence.
SPEECH NOT FULLY PROTECTED
c. Student Speech
 Bethel School District v. Fraser (1986)—Supreme Court ruled
that the 1st amendment does not prevent school officials from
suspending students who use indecent language at school
events.
 Hazelwood School District v. Kuhlmeier (1988)—Court held that
school officials have the right to regulate student speech in
school sponsored newspapers, stage productions, & other
activities.
SECTION 3
Other Unprotected Speech (cont.)
• The Court has limited the right of public
officials to recover damages from
defamation.
• In 1942 the Supreme Court ruled that
some words are so insulting that they
provoke immediate violence.
• Such “fighting words” do not constitute
protected speech.
SECTION 4
Prior Restraint Forbidden
• Prior restraint is censorship of
information before it is published.
• The Supreme Court has ruled that the
press may be censored in advance only in
cases relating directly to national security.
• Near v. Minnesota helped establish that
free press means freedom from
government censorship.
Near v. Minnesota (1931)—established the prior restraint doctrine.
1. The doctrine protects the press from government attempts to block
publication.
New York Times Co. v. United States (1971)—reaffirmed the prior
restraint doctrine established in Near v. Minnesota (1931)
1. Supreme Court refused to halt publication of the Pentagon Papers,
which gave a detailed critical account of U.S. involvement in the Vietnam
War.
SECTION 4
Fair Trials and Free Press
• In Sheppard v. Maxwell the Supreme Court
ruled that press coverage interfered with
Sheppard’s right to a fair trial.
• When a jury is sequestered it is kept
isolated until the trial ends.
• A gag order is an order by a judge barring
the press from publishing certain types of
information about a pending court case.
PRESS ISSUES AT TRIALS
To restrain press coverage of a trial, the Court suggested the
following measures:
1. Moving the trial to reduce pretrial publicity.
2. Limiting the number of reporters in the courtroom
3. Placing controls on reporters’ conduct in the courtroom
4. Isolating witnesses and jurors from the press
5. Having the jury sequestered-kept isolated—until the trial is
over
Protecting news Sources:
Many reporters argue that freedom of the press gives them
the right to refuse to reveal confidential sources. In 3
1972 cases, the Supreme Court held that reporters have
no such right, but added that Congress & states can give
reporters this protection. 30 states have passed Shield
laws—which protect reporters from disclosing confidential
information or sources in state courts. There is still no
federal shield law, but even state laws set limits on
reporters
SECTION 4
Fair Trials and Free Press (cont.)
• In three 1972 cases that were considered
together, the Supreme Court said that
reporters have to surrender evidence
because the First Amendment does not
give them special privileges.
• To date, 30 states have passed shield
laws—laws that give reporters some
protection from disclosing their sources in
state courts.
a. Radio & Television
1. Stations obtain license from the FCC (Federal Communicatin
Commisions)
2. FCC requires stations to follow certain guidelines in presenting
programs
3. 1997—Court ruled that cable television has more 1st
amendment protection from government regulation than other
broadcasters, but not as much as publishers of newspapers &
magazines.
(Turner Broadcasting System v. FCC (1997)
MOVIES
DICUSSION WITH MR. GRUBE…
Burstyn v. Wilson (1952)—Supreme Court ruled that the
1st 7 14th Amendments guarantee motion pictures
“liberty of expression” However, the Court also ruled
that movies may be treated differently than books or
newspapers.
c. E-Mail & the Internet
Reno v. American Civil Liberties Union (1997)—
Court ruled that Internet speech deserves the
same free speech protection as other print
media
d. Obscenity
Miller v. California (1973)—Court ruled that communities
should set their own standards for obscenity in
speech, pictures, & written material.
 however, the Court has since stepped in to overrule
specific local acts, making it clear that a community’s
right to censor is limited.
d.Advertising---Commercial Speech –
speech with a profit motive
1.1970s the government began to relax
controls (Bigelow v. Virginia (1975))
SECTION 5
Protecting Freedom of Assembly
• DeJonge v. Oregon established that:
– the right of assembly is as important as
the rights of free speech and free press;
and
– the due process clause of the
Fourteenth Amendment protects
freedom of assembly from state and
local governments.
SECTION 5
Protecting Freedom of Assembly (cont.)
• Freedom of assembly includes the right to
parade and demonstrate in public.
• To provide for public order and safety,
many states and cities require that groups
wanting to parade or demonstrate first
obtain a permit.
1. Cox v. New Hampshire (1941)
Supreme Court upheld a law that required a permit for a parade
Reason: Intended to ensure that parades would not interfere with other
citizens using the streets.
 Lloyd Corporation v. Tanner (1972)
 Court ruled that a group protesting the Vietnam war did not have the
right to gather in a shopping mall
 Right to assemble does not allow a group to use private property
for its own use, even if the property is open to the public
SECTION 5
Assembly and Disorder
• A heckler’s veto is a term used to
describe when the public vetoes the free
speech and assembly rights of unpopular
groups by claiming that demonstrations
will result in violence.
• Feiner v. New York established that police
may disperse a demonstration and limit
the freedom of assembly if it threatens the
peace.
ASSEMBLY & DISORDER
2. Feiner v. New York (1951)—upheld the
disorderly conviction of Irving Feiner
a. Supreme Court ruled that the 1st amendment
protected free speech , but not the right to use
speech to incite a riot
D. Freedom of Association—the freedom to join a political party, an
interest group, or any other organization
1. Whitney v. California (1927)—It argued that joining the
Communist party presented a clear & present danger to the
nation because the party promoted the violent take over of
private property.
2. Later cases, the Court ruled that only actual preparation for use
of force against the government was a just reason for limiting
freedom of association.