Ch. 13 Constitutional Freedoms

Sedition Act of 1798- “crime to write,
utter, or publish any false, scandalous,
and malicious writing” to defame the
government or public officials

Espionage and Sedition Acts 1917-1918

Smith Act 1940- illegal to overthrow the
government
Ethnic, religious, and cultural
differences continue to grow
 Jews offended by a Nativity scene, a
group of figures arranged to represent
the birth of Jesus Christ
 All English
 Boy scouts – no homosexuals- 2000
decision based on free association
(which allows a private organization to
exclude whomever it wishes).

Civil liberties

Protection of Bill of Rights, due process
clause and the 14th Amendment
14th Amendment (1868)
Due Process clause: “no state shall deprive
any person of life, liberty, or property without
due process of law”
 this principle gives individuals a varying ability
to enforce their rights against alleged
violations by governments and their agents,
but normally not against other private
citizens.
 Equal protection clause: “no state shall deny
to any person within its jurisdiction the equal
protection of the laws”


Freedom of Expression (”Congress
shall make no law…abridging the
freedom of speech, or of the press, or
the right of people peaceably to
assemble, and to petition the
government for a redress of
grievances”)

Freedom of religion (“Congress shall
make no law respecting an
establishment of religion; or abridging
the free exercise thereof”)

Clearer of the two clauses
 Prohibits government from unduly interfering
with the free exercise of religion. The
meaning of these clauses may seem clear,
but their interpretation has led to a continuing
debate in American politics.
Limitations-for example are - polygamy, blood
transfusion, vaccinations, and child marriage.
Free Exercise Clause-1st Amendment
forbids laws “prohibiting the free exercise of
Religion”

Reynolds v. United States-George Reynolds a Mormon
who lived in Utah, had two wives and was convicted of polygamy. He
appealed to the U.S. Supreme Court.The case established that people
are not free to worship in ways that violate laws protecting the health,
safety, or morals of the community.

Oregon v. Smith-The Court denied unemployment benefits to
two counselors fired for using drugs as part of a religious ceremony. But
as Native Americans and members of the Native American Church, they
used peyote as part of their traditional worship service. Peyote is a mild
hallucinogenic drug derived from mescaline cactus. With the majority
opinion written by Justice Scalia, the Supreme Court ruled 6-3 in
1990 that the Oregon law was constitutional and that, therefore,
the denial of unemployment benefits was permissible. Of
particular importance was the fact that the Oregon law was not
directed at the Native Americans' religious practice specifically;
thus, it was deemed constitutional when applied to all citizens.
The Flag Salute Cases…

Flag Salute Cases- Minersville School District v.
Gobitis(1940)-Concerns whether children could be
forced to salute the American flag. Lillian and William
Gobitis were expelled for refusing to salute the flag.
They were Jehovah’s Witnesses, they believed
saluting the flag violated the Christian commandment
against bowing down to any graven image.The Court
upheld school regulation. The flag was a patriotic
symbol, the Court ruled, and requiring the salute did
not infringe on religious freedoms.
 West Virginia State Board of Education v.
Barnette(1943)-The Court overruled the Gobitis
decision and held such laws to be an unconstitutional
interference with the free exercise of religion.
Patriotism could be achieved w/o forcing people to
violate their religious beliefs.
Government involvement in religious activities is
constitutional if it meets the following tests:

Secular purpose-Primary effect neither advances nor
inhibits religion
 No excessive government entanglement with religion
 In 1801, Baptists in Connecticut-a state where the
Congregational Church was the official church-wrote to
T. Jefferson asking his views about religious liberty.
Jefferson wrote back strongly supporting the First
Amendment. He stated that by passing the First
Amendment, Americans had “Declared that their
legislature should “make no law respecting an
establishment of religion or prohibiting the free exercise Thomas Jefferson
there of”, thus building a wall of separation between
Church and State.”

1947- Everson v. Board Education-involved a
challenge to a New Jersey law allowing the
state to pay for busing students to parochial
schools. The court ruled that the New Jersey
law was constitutional. The court determined
that the law benefited students rather than
aided a religion directly.
 1947- Unconstitutional for public school to
have prayer in school
 1992- Unconstitutional for public school to
have rabbi or pastor pray at graduation
 2000 Santa Fe isd. V. Doe- The Supreme
Court ruled that public school districts cannot
let students lead stadium crowds in prayer
before football games.
Question: Does the Santa Fe Independent School
District's policy permitting student-led, studentinitiated prayer at football games violate the
Establishment Clause of the First Amendment?

Conclusion: Yes. In a 6-3 opinion delivered by
Justice John Paul Stevens, the Court held that the
District's policy permitting student-led, studentinitiated prayer at football games violates the
Establishment Clause. The Court concluded that the
football game prayers were public speech authorized
by a government policy and taking place on
government property at government-sponsored
school-related events and that the District's policy
involved both perceived and actual government
endorsement of the delivery of prayer at important
school events. Such speech is not properly
characterized as "private," wrote Justice Stevens for
the majority.

Westside Community Schools v.
Mergens(1990) the Court ruled- Although a
school may not itself lead or direct a religious
club, a school that permits a student-initiated
and student-led religious club to meet after
school, just as it permits any other student
group to do, does not convey the message of
state approval or endorsement of that
particular religion. (meet at the pole)
 Teaching the Theory of Evolution- In
Epperson v. Arkansas(1968) The justices
voided an Arkansas law that banned teaching
evolution in public schools. The court ruled
that “the state has no legitimate interest in
protecting any or all religions from views
distasteful to them.”
Question: Was Westside's prohibition against the
formation of a Christian club consistent with the
Establishment Clause, thereby rendering the Equal
Access Act unconstitutional?

Conclusion: No. In distinguishing between "curriculum" and
"noncurriculum student groups," the Court held that since
Westside permitted other noncurricular clubs, it was prohibited
under the Equal Access Act from denying equal access to any
after-school club based on the content of its speech. The
proposed Christian club would be a noncurriculum group since
no other course required students to become its members, its
subject matter would not actually be taught in classes, it did not
concern the school's cumulative body of courses, and its
members would not receive academic credit for their
participation. The Court added that the Equal Access Act was
constitutional because it served an overriding secular purpose
by prohibiting discrimination on the basis of philosophical,
political, or other types of speech. As such, the Act protected the
Christian club's formation even if its members engaged in
religious discussions.

Edwards v. Aguillard(1987) -the Supreme
Court struck down state legislatures that
required teaching the Bible’s account of
creation with evolution as an alternative. (it
endorsed a particular religion doctrine so it
violates the establishment clause)

Not all establishment clause issues concern
education- Lynch v. Donnelly(1984)-The
court allowed the city of Pawtucket, RI, to
display a Nativity scene with secular items
such as Christmas trees and a sleigh and
reindeer. In 1989 the Court ruled that a
publicly funded Nativity scene by itself
violated the Constitution.
Other related items…
 Released time religious instruction only
 Pay for textbooks, bus, buildings for both
parochial and private schools but not for
salary, reimburse for tuition, counseling, or
creationism books(can’t be used for religious
purpose)
 Recent ruling- vouchers given in Ohio to
attend private or religious school
 Since 1789- House & Senate opens each
session with a prayer
 Public schools cannot have a chaplain but
armed services can.
Dollar
bill- “In God we trust”
In the decades following the Civil War, “In God We Trust” appeared on most
coins. And since 1938, the motto has appeared on all American coinage.
The phrase, which is the nation’s official motto as well, has been caught in a
broader debate over just how high the wall separating church and state should
stand.
Most courts view the motto and the pledge as “ceremonial deism,” a legal term for
religious statements that are deemed to have lost their fundamental religious
character due to their longtime, customary use.
The Declaration of Independence, for instance, makes reference to God on more
than one occasion. And the same Congress that in 1789 passed the First
Amendment prohibition on the establishment of religion also started each day
with a prayer, as does the current Congress.
To answer such questions the Supreme Court has distinguished two general
categories of speech that the 1st Amendment protects:
Pure speech-The verbal expression of thought and opinion before an audience
that has chosen to listen.
Symbolic speech-involves using actions and symbols, in addition to or instead
of words, to express opinions.
Since the rights of free speech must be balanced against the need to protect
society, some restraints on speech exist. Cannot claim protection for an
otherwise illegal act on the grounds that it conveys a political message
(example: burning a draft card) However, statutes cannot make certain types of
symbolic speech illegal: e.g., flag burning is protected speech.
Regulating Speech-Congress and state
legislatures, for example, have outlawed
seditious speech-any speech urging
resistance to lawful authority or advocating
the overthrow of the government
Other Speech Not Protected-Defamatory
speech and “fighting words” fall outside of
the 1st Amendment.

Charles T. Schenck-the general secretary of the
Socialist Party was convicted of printing and
distributing leaflets that urged draftees to obstruct the
war effort during WWI
 Violating Espionage Act-”Willfully utter, print, write, or
publish any disloyal, profane, scurrilous or abusive
language”
 Justice Oliver Wendell Holmes – “clear and present
danger”
 first determined the meaning of the freedom of speech
protection of the First Amendment to the Constitution
of the United States. In a unanimous decision, the
Court ruled that there are certain limits to the First
Amendment’s guarantees of this freedom.

Clarence Brandenburg (leader of Ku Klux Klan in
Ohio)v. Ohio –He refused to stop a rally/cross
burning. The Supreme Court held that laws that
punish people for advocating social change
through violence violate the 1st amendment. The
Court than reversed the conviction of a member of
the Ku Klux Klan for holding a rally and making
strong derogatory statements against African
Americans and Jews.
 1977- Nazis in Skokie Illinois – right to speak
 1992- Supreme Court overturned Minnesota
statute- crime to display symbols or objectsswastika
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Defamatory Speech
Libel: a written false statement defaming another
Slander: a defamatory oral statement
Public figures must also show the words were
written with “actual malice”—with reckless disregard
for the truth or with knowledge that the words were
false
The Court has limited the right of public officials,
however, to recover damages for defamation.
The Court allowed some defamatory speech about
public officials for fear that criticism of government,
a basic constitutional right, might be silenced. In
later years this has extended to protection of
statements about public figures-political candidates,
entertainers and athletes, and even private citizens
who become newsworthy.
Not protected by 1st amendment
Miller v. California(1973)-Established the test
for determining if a book, movie, television
programs is obscene and thus unprotected by
the 1st Amendment.
 A work is obscene if:
 1) the avg. person would find that the work
taken as a whole appeals to prurient interests
2)the work defines or depicts sexual conduct
in a “patently offensive way” as determined
by state law and
 3) the work taken as a whole “lacks serious
literary, artistic, political, or scientific value.”


Government censorship of
information before it is
published or broadcast
Freedom of the Press…

Prior Restraint Forbidden-Censorship of information
before it is published-a common way for
government to control information and limit
freedom.(Can be restrained in the U.S. if it involves
national security)
 New York Times Co. v. United States-widely known as
the Pentagon Papers case. In 1971 a Pentagon employee
leaked to the NY Times a secret gov. report outlining the
U.S. involvement in Vietnam. (Some documents showed
proof that gov. officials had lied to the American people) The
gov. tried to stop further publication of the papers arguing
that national security would be endangered. The court ruled
that stopping publication would be prior restraint. One
Justice William O. Douglas, noted that “the dominant
purpose of the 1st Amendment was to prohibit the
widespread practice of governmental suppression of
embarrassing information”
Freedom of Assembly…

“The right of the people peaceably to
assemble, and to petition the
Government for a redress of
grievances”
Tree Sitter…
For 738 days forest activist Julia
 180 feet high in the
Butterfly Hill lived
canopy of an ancient redwood tree to
help make the world aware of the plight
of ancient forests. Julia, with great help
from steelworkers and
environmentalists, successfully
negotiated to permanently protect the
tree and a nearly three-acre buffer
zone. She came down to a world that
recognized her as a heroine and
powerful voice for the environment.
Julia's occupation of the over 1,000year-old tree known as Luna is only a
part of the actions taken over many
many years to save Headwaters Forest
and the 3% of the ancient redwood
ecosystem that remains.
Protecting Freedom of Assembly

Assembly on Public Property-Freedom of
assembly includes the right to parade and
demonstrate in public. It is possible they
could interfere with the rights of others who
use the same facilities(parks, streets, etc.)
For safety reasons, parades and
demonstrations are subject to government
regulations than exercises of pure speech
and other kinds of assembly. Permits are
usually required for groups who want to
parade or demonstrate.
 Other public facilities such as airports,
libraries, courthouses, schools, and
swimming pools also may be used for public
demonstrations.

The right to assemble does not allow a group to
convert private property to its own use, even if
the property is open to the public- Lloyd
Corporation v. Tanner(1972) – The Court ruled
that a group protesting the Vietnam War did not
have the right to gather in a shopping mall.
 Public Assembly and Disorder The Nazis in Skokie- Skokie officials, citizens
argued that the Nazis should not be allowed to
march. To prevent the march, the city required
the Nazis to post a $300,000 bond to get a
permit. The Nazis claimed this high bond
interfered with their freedoms. A federal
appeals court ruled that no community could
use parade permits to interfere with free speech
and assembly.

This case illustrates problems with what is
called the heckler’s veto-The public vetoes
the free speech and assembly rights of
unpopular groups by claiming demonstrations
will result in violence. Such claims may be
effective because gov. officials will almost
always find it easier to curb unpopular
demonstrations than to take measures to
prevent violence.
 This dilemma leads to two related
questions…
 Does the Constitution require the police to
protect unpopular groups when they incite
violence?
 May the police order demonstrators to
disperse in the interest of pubic safety?

Feiner v. New York
Feiner urged African Americans to fight for civil rights.
When the crowd he drew became hostile he was arrested
for disturbing the police. The Court upheld Feiner’s
conviction, ruling that the police had not acted to
suppress speech but to preserve public order.
Gregory v. City of Chicago
The Court has overturned the convictions of people whose
only offense has been to demonstrate peacefully in
support of unpopular causes.
Gregory, and African American activist, led a group of
marchers from city hall in downtown Chicago to the
mayor’s home. A crowd of 1,000 or more hostile all white
onlookers gathered. They began to heckle and throw
rocks and eggs at the marchers. The police ordered the
parade to disperse. Gregory refused and the group was
arrested for disorderly conduct. The Court overturned
these convictions. The Court ruled that the demonstrators
had been peaceful and had done no more than exercise
their right of assembly and petition. Neighborhood
residents, not the marchers had caused the disorder.
Examples of
people
protesting