CIVIL LIBERTIES
First Amendment
Freedoms
“All through the years we have had to fight for
civil liberty, and we know that there are times
when the light grows rather dim, and every
time that happens democracy is in danger.”
Eleanor Roosevelt
Democracy can’t exist w/out civil liberty -- w/out
individual freedom
Democracy can’t exist w/out authority – w/out
government
Striking balance between freedom & authority is
democracy’s challenge
Candy Canes & 1st Amendment
Student members of a Bible club at Westfield High
School in MA were suspended for attaching a
religious message to candy canes distributed at
school.
Administrators believed the Constitution required
them to censor the religious speech of students.
Students, supported by Justice Dept & Am Civil
Liberties Union (ACLU), sued the school.
YOUR THOUGHTS
Federal court ruled students’ free speech rights were
violated.
In short, the court stated that, only school-sponsored
religious speech is unconstitutional.
UNALIENABLE RIGHTS
Walter Barnette a Jehovah’s Witness told his
children not to salute the flag or recite the PofA.
Toyosaburo Korematsu a US citizen interned by
government during WWII. Sent to prison for
possessing “lewd & lascivious books.”
Clarence Earl Gideon jailed for breaking into &
entering a poolroom.
Each played important part with our rights.
Commitment to Freedom
• Constitution guarantees rights & liberties to us
• Civil liberties
• Protections against government
• Ex: freedom of religion, speech & press & guarantee
of fair trial
• Civil rights
• Positive acts of government seeking to make
constitutional guarantees a reality
• Ex: prohibit discrimination of race, sex, religion, or
national origin
Limited Government
• Ex: of US government being limited
• Guarantees of personal freedom are restriction on the
power of government to do something
Rights Relative, Not Absolute
• Constitution guarantees rights for all -- no one
has right to do whatever
• Right to do as please as long as does not trespass on
others rights
• Ex: right of free speech -- can be punished for using
obscene language, using words that causes a person to
commit a crime
Rights Conflicting
• Ex: freedom of press vs. right of fair trial
• Man convicted of murdering wife
• Trial lengthy & highly publicized by national media
• Man appealed claiming media coverage denied him of
fair trial
• Supreme Court agreed & conviction overturned w/new
trial granted
Whom Rights Guaranteed
• Most rights extended to all
• Supreme Court often states “persons” includes
aliens & citizens
• Not all rights given to aliens
• Ex: citizens right to travel – aliens travel restricted
• Bombing of Pearl Harbor those of Japanese descent
living on Pacific Coast forcibly moved inland
• 1944 Supreme Court upheld the forced move stating
“wartime emergency measure”
Question
Today’s war on terrorism creates political climate
similar to WWII.
Have we learned from then?
Will rights of Muslims & other Middle Eastern
people be respected by government while fighting
terrorism?
FREEDOM OF RELIGION
Freedom of Expression
• Protected by 1st amendment
• Bill of Rights provides religious freedom
• 1st & 14th amendment give 2 guarantees of
religious freedom
• Establishment of religion (establishment clause)
• Arbitrary interference by government
• No religious test ever required for qualification to hold
public office
Separation of Church & State
• Constitution separates church & state
• Property and contributions to religious sects free
from federal, state & local taxes
• Chaplains part of military
• Public officials take an oath
• Congress, state legislatures & city councils open
w/prayer
Pierce v. Society of Sisters
• In 1925, an Oregon compulsory school attendance
law was declared unconstitutional
• Law required parents to send children to public
schools
• Law intended to get rid of private, especially
parochial (church) schools
• Court made decision based on unreasonable
interference w/liberty of parents to direct
upbringing of children – Conflict w/Amendment
14
Religion & Education
• Everson v. Board of Education (NJ School Bus
Case)
• Court upheld state law providing for public, taxsupported busing of students going to ANY
school (including parochial)
• Critics felt parochial schools did not pay for
busing allowing them to use $ for other things
such as religious purposes
• Court felt safety issue benefitting kids, no matter
school attending
Student Religious Groups
• Equal Access Act 1984
• Any public high school receiving federal funds must
allow student religious groups just like any other
group
Evolution
• Epperson v. Arkansas, 1968
• Court struck down state law not allowing teaching of
evolution
• Edwards v. Aguillard, 1981
• Struck down Louisiana law stating that when evolution
is taught creation science must be taught
$ to Parochial Schools
• Since parents have right to send kids where they
want – then states must give $ to non-public
• Parents sending kids to non-public are paying
taxes for public schools – this relieves double
burden
• Critics argue parents sending kids to non-public
should accept financial responsibility for choice
• Public funds cannot be used to pay teacher
salaries in non-public schools
Free Exercise Clause
• Guarantees all the right to believe what he/she
chooses regarding religion
• Protected by 1st & 14th amendment
• Does not give right to violate criminal laws,
offend public morals, or safety to community
• Reynolds vs. US, 1879
• Reynolds, a Mormon, had 2 wives
• Polygamy his religious beliefs
• Not allowed by federal law
• Reynolds convicted
• Reynolds appealed
• Argued law violated his right to free exercise of religious
beliefs
• Supreme court disagreed
• Violation of social duties
• Laws upheld requiring vaccination of kids to
attend school
• Laws upheld forbidding use of poisonous snakes
in religious rites
• Laws upheld requiring businesses being closed on
Sundays (blue laws)
• Court stated Air Force can deny an Orthodox Jew
the right in wearing his yarmulke (skull cap) on
active duty
• 2004 Supreme court stated that a state providing $
to students attending public colleges and
universities are not required to provide $ to
students becoming ministers
• Supreme court decided Amish children not forced
to attend school beyond 8th grade
• Due to sect’s centuries-old “self-sufficient agrarian
lifestyle essential to their religion
• Person cannot be denied unemployment $ benefits
who quit job due to conflict w/religious beliefs
• Minersville School District vs. Gobitis, 1940
• Gobitis, a Jehovah Witness, told his children did not
have to salute flag.
• Stating violation of Bible’s commandment against
idolatry (religious worship of idols)
• His children were expelled
• Supreme Court ruled in favor of school board stating
lawful attempt to promote patriotism & national unity
• 3 years later decision reversed
FREEDOM OF SPEECH & PRESS
Sticks and stones may break
my bones, but names will
never hurt me.
What does this rhyme mean?
Is this true?
• Meaning
Actions and words are separate things, actions can
harm you, but words cannot.
• No it is not true
Words have consequences. Words spoken or
written can have differing effects on you. Such as
emotionally, informing, entertaining. Words can
expose you to danger, deny you something, or lead
to a serious consequence.
Free Expression
• Guaranteed by 1st & 14th amendment
• 2 fundamental purposes
• Right to free expression whether spoken or written and
other ways of communication
• Guarantees all people to discuss public affairs
• Meaning: all people have the right to have their
say & hear what others have to say
• Government depends on people to make sound,
reasonable decisions of public concern
• Guarantee of free speech and press meant to
protect the unpopular views
• Forms of expression not protected by Constitution
• No unlimited right to free speech or free press
• Ex: yelling “fire” in a crowded place
• Prohibits slander or libel
• Libel: false & malicious use of printed words
• Slander: false & malicious use of spoken words
• Prohibits use of profanity
• Prohibits printing & distributing profane materials &
false advertising
• Prohibits use of words prompting a person to commit a
crime
Seditious Speech
Vocabulary
• Sedition
• Crime of attempting to overthrow government by force
or by violent acts
• Seditious speech
• Advocating, or encouraging conduct not protected by
1st amendment
• The Alien & Sedition Acts
• Intended to stop opposition to government
• Gave president power to deport unwanted aliens
making false, scandalous, malicious criticism of
government a crime
• Unconstitutional – never tested in court
• Acts expired before Jefferson became President
• The Sedition Act of 1917
• Passed during WWI
• Part of Espionage Act of 1917
• Crime to encourage disloyalty, interfere w/draft,
obstruct recruiting, incite defiance in military, or
hinder sale of government bonds
• Crime to willfully utter, print, write, or publish any
disloyal, profane, insulting, or abusive language about
government
• + 2,000 convicted
• Upheld in court
• Ex: Schenck v. US – 1919
Schenck, officer of Socialist Party, found guilty of
obstructing war effort. Sent fiery leaflets to about
15,000 men who were drafted, telling them to resist
draft.
• Smith Act of 1940
• Passed 1 yr before we entered WWII
• Crime to advocate the violent overthrow of
government
• Crime to hand out material teaching or advising
violent overthrow
• Crime to knowingly belong to a group w/this in mind
• Ex: Dennis vs. US, 1951
• 11 Communist Party leaders convicted of advocating
overthrow of Federal Government
• They appealed, arguing violation of 1st Amendment
guarantees of freedom of speech & press
• Also claimed their acts did not show clear & present danger
to US
• Lost appeal
• Later Supreme Court did overturn some other
convictions of Communist Party leaders
• Urging a person to believe one way vs. urging a person to do
something is not illegal
Obscenity
• Not protected by 1st & 14th Amendments
• Questions have arisen as to:
• What language & images in printed matter, films, &
other materials are obscene?
• What restrictions can be placed on such materials?
• 1st law passed in 1872 to prevent mailing of
obscene material
• Roth vs. US, 1957
• Upheld the law excluding all “obscene, lewd,
lascivious, or filthy” material from being mailed
• Miller vs. California, 1973
• Court identified a 3 part test defining if a book, film,
recording, or other material as legally obscene
• Does it excite lust
• Work depicts/describes in an offensive way; form of sexual
conduct dealing w/anti-obscenity law
• Work is not serious literary, artistic, political or of scientific
value
• Adult book stores & similar places come under
scrutiny
• Most of this material unable to be mailed, go across
State lines, or imported
• 1st & 14th Amendments not preventing regulation of
location of “adult entertainment establishments”
• Cities can decide to bar the location of such places w/in
1,000 ft of a residential zone, church, park, or school
• US vs. American Library Association, 2003
• Court upheld federal law relating to public libraries &
internet
• Public libraries receiving federal $ must use filters on
their computers blocking access to pornographic sites
Prior Restraint
• Constitution allows person to be punished for
some utterances after being said
• Government not allowed to place prior restraint
on spoken or written words
• Except extreme cases
• Cannot curb ideas before stated
• Supreme Court struck down a MN law prohibiting
publication of malicious, scandalous, defamatory
magazines
• Minneapolis paper printed articles alleging corruption,
attacking “grafters” & Jewish gangsters
• Court stated that this was a guarantee of free press &
does not have prior restraint except in wartime or is
obscene or incites violence
• Other prior restraints court has approved\
• Regulation of prohibiting distribution of political
material on military bases w/out military approval
• CIA agents cannot publish anything about CIA w/out
CIA’s permission
• Federal prison officials prevent a prisoner from
receiving publications harmful to security, good order,
or discipline of prison
• Public schools have broad power to censor school
newspapers & plays – including school-sponsored
expressive activities
Media
Can news reporters be forced to testify before a
grand jury in court or before a legislative
committee?
Can journalists be forced to name their sources &
reveal other confidential information?
Journalists insist must have right to refuse to testify
to protect sources.
Feel w/out this right they cannot assure
confidentiality, and many sources will not reveal
info
• Confidentiality
• State & federal courts usually reject journalist
argument
• Journalist go to jail for not revealing when court
compels them to reveal source
• Some states have passed “shield laws”
• Give journalists some protection against disclosing their
sources or other confidential info
• Motion pictures
• @ 1 time court upheld state laws barring films lacking
moral educational standings
• Today movies rated by movie industry’s rating system
• Radio & television
• Both have extensive federal regulations
• Red Lion Broadcasting vs. FCC, 1969 set precedent
that broadcasting has most limited 1st Amendment
protection
• Radio & TV use public property – airways distribute
materials
• No right to use airways w/out public permission
• Congress forbid FCC to censor content of programs
before broadcast
• FCC prohibits use of indecent language
Symbolic Speech
• Defined as: communicating by facial expression
or shoulder shrug, carrying a sign, or wearing
something
• Ex: picketing – walking around a business by
workers on strike
• Picketing set w/violence is not allowed
• Cases:
• US v. O’Brien, 1968
• 4 men burned their draft cards protesting Vietnam War
• Men convicted
• O’Brien appealed – argued 1st Amendment protects all
modes of communication of ideas by conduct
• Supreme Court disagreed
• VA vs. Black, 2003
• Upheld state law prohibiting burring of cross an act of
intimidation – a threat making a person fear for safety
• Court also said, burning cross at rallies or parades as
political expression (not at a person) not prosecuted
• Flag burning
• Done as political protest is expressive conduct
• Protected by 1st & 14th Amendments
Commercial Speech
•
•
•
•
•
•
Speech for business
Refers to advertising
Not all commercial speech protected
False & misleading advertisements not protected
Advertising illegal goods or services not protected
Government can forbid neither false nor
misleading advertising
• Ex: cigarette ads on radio & TV including chewing
tobacco & snuff
Quiz
• Compare libel with slander
• Why does the government restrict seditious
speech?
• Define prior restraint
• In what way is “picketing” symbolic speech?
• Do you think journalists/reporters should have the
right to protect their sources? Explain your
answer.
FREEDOM OF ASSEMBLY &
PETITION
Constitution’s Guarantees
• Peaceable assembly & petition government
• 14th Amendment – due process clause also
protects this freedom
• Constitution does not give right to:
•
•
•
•
Incite violence
Block public street
Close a school
Endanger life, property or public order
Regulations
• Govm’t can make rules about time, place, & how
we assemble
• Govm’t cannot make rules about what might be
said
• Govm’t can prohibit a speech due to having the
power to control traffic or a protest rally
becoming a riot as an excuse
Public Property
• Demonstrations = assemblies
• Demonstrations take place:
•
•
•
•
Streets & sidewalks
Public places
Parks
Public buildings
• Usually involve conflict
• Protesting something = clashing of ideas
• Requires permits, advance notice
• Right to demonstrate cases raise ?’s
• How & to what extent can govm’t regulate?
• Does Constitution require police to allow unpopular
group to continue demonstrating when they have
driven others to violence?
• When can police properly order demonstrators to
disband due to public peace & safety?
http://www.cnn.com/2013/09/18/us/los-angeles-riotsfast-facts/
https://www.youtube.com/watch?v=P43WZd611WA
• http://latino.foxnews.com/latino/news/slideshow/2
014/08/11/police-in-high-alert-over-overnightlooting-in-missouri/?intcmp=related#slide=1
• http://www.cnn.com/2014/10/19/us/newhampshire-pumpkin-festival-riot/
• https://www.youtube.com/watch?v=JTbFKB7mO
hE
Private Property
• No right to trespass on private property to
assemble regardless of purpose
• Cannot handout political leaflets or sign petitions
in shopping centers – not public place
• Some State’s Constitution require owners of
shopping centers to allow right of petition
Freedom of Association
• Guarantees of right to assemble & petition include
right of association
• Right to associate w/others to promote political,
economic, & other social causes
• Ex:
• NAACP vs. Alabama, 1958 – state law req’d NAACP
to disclose names of members. NAACP refused and
found in contempt. Supreme Court overturned
contempt conviction
• Boy Scouts of America vs. Dale, 2000 – Boy Scouts
were ordered to readmit James Dale whom they had
dismissed when learning he was gay.
• Supreme Court overturned -- Boy Scouts have right to
exclude gays
• Supreme Court reason – opposition to homosexuality is part
of Boy Scout organization’s “expressive conduct” meaning
– that is, what they stand for
• Ruling on Constitution’s guarantee of freedom of
association means state cannot force organization to accept
members when going against organizations professed belief
Quiz
• What is meant by the Constitution’s guarantees of
assembly and petition?
• Compare and contrast the freedom of assembly on
public versus private property.
• What does the right to assemble peaceably mean?