Civil Liberties (The First Amendment)

Chapter 15

Rights in the Original Constitution

The guarantee of the writ of habeas corpus

The prohibition of bills of attainder

Ex post facto laws

The Bill of Rights and the States

After the Civil War, 14th Amendment was added to the Constitution

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment (1868)

• Two provisions:

• Due Process Clause: “no state shall deprive any person of life, liberty or property without due process of law”

• Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws”

Some of the provisions of the Bill of Rights that have never

been incorporated:

– Second Amendment provision linking “a well-regulated Militia” and the right to bear arms

– 3rd Amendment provision against housing troops in private homes

Selective Incorporation

The process by which provisions of the Bill of

Rights are brought within the scope of the 14th Amendment and so applied to state and

local governments.

The Incorporation Processand the Nationalization of Constitutional Rights

Supreme Court Cases

• 1925 (Gitlow v. Connecticut): federal guarantees of free speech and free press also apply to states

• 1937 (Palko v. Connecticut): certain rights must apply to the states because they are essential to “ordered liberty” and they are “principles of justice”

• These cases began the process of selective incorporation

First Amendment Freedoms

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.

Freedom of Religion

• Establishment Clause– “Congress shall make no

law respecting an establishment of religion….”

• Exercise Clause– “…or prohibiting the

free exercise thereof.”

Freedom of Religion:The Establishment Clause

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can

force nor influence a person to go to or to remain away from church…or force him to profess a belief or disbelief in any religion…No tax in any amount, large or small, can be

levied to support any religious activities or institutions, whatever they may be called, or whatever form they may

adopt to teach or practice religion.

Justice Hugo Black’s Wall-of-Separation Doctrine (1947)

-Everson v. Board of Education

Freedom of Religion:The Establishment Clause

How does the Supreme Court decide cases that involve religion?

Lemon test standard developed in the 1971 case Lemon v. Kurtzman. The court must ask three questions:

1) Does the law or practice have a secular purpose?2) Does the primary intent or effect of the law either

advance or inhibit religion?3) Does the law or practice create an excessive

entanglement of government and religion?

Freedom of Religion:The Establishment Clause

Nonpreferentialist Test

Conservative judges believe that the

Constitution prohibits favoritism toward any particular religion but

does not prohibit government aid to all

religions

Endorsement Test

Championed by Sandra Day O’Connor who

believed that the establishment clause forbids governmental

practices that a reasonable observer would view as

endorsing religion, even if there is no coercion

Freedom of Religion: Vouchers and State Aid for Religious Schools

College level

Tax funds can be used to build any building or conduct any program

that is not used for religious purposes or is explicitly religious in

content

Elementary Schools

Should states be allowed to use tax money to give parents vouchers for

the tuition of children to attend religious schools?

Freedom of Religion:The Free Exercise Clause

Not all conduct carried out in the name of religion is permissible

Beliefs

Protected absolutely

Practices

Governmental restrictions are often upheld by the Court

when enacted for valid, secular purposes-- the “valid

secular test.”

Free Speech and Free People

Historical Constitutional tests of free speech

Bad tendency test

Clear and present danger test

Preferred position doctrine

Nonprotected Speech

Libel

Written defamation of another person. Especially in

the case of public officials and public figures, the

constitutional tests designed to restrict libel actions are

very rigid

Seditious libel

Defaming, criticizing, and advocating the overthrow

of the government

Nonprotected and Protected Speech

1971 Supreme Court Case, New York Times Company v. United States

• During the Vietnam war, Daniel Ellsberg, a Defense Department analyst, leaked top-secret papers (the Pentagon Papers) about the war to the newspapers

• The government tried to stop their publication on the grounds that their publication would hurt national security

• Supreme Court ruled that the papers could be published

Nonprotected Speech

• Fighting Words– Words that by their very nature inflict injury on

those to whom they are addressed or incite them to acts of violence

• Commercial Speech– Advertisements and commercials for products

and services; they receive less First Amendment protection, primarily to discourage false and misleading ads

Nonprotected and Protected Speech

Doctrines used to measure limits of governmental power to regulate speech

Prior restraint

Void for vagueness

Least drastic means

Content and viewpoint neutrality

Other Media and Communications

Government censorship of mail is unconstitutional

Justice Oliver Wendell Holmes Jr.

“The United States may give up the Post Office when it sees fit, but while it carries it on, the use of the mails is almost as much a part of free speech as is the right to use our tongues.”

Other Media and Communications

• Handbills, Sound Trucks and Billboards– A state cannot restrain the distribution of leaflets

merely to keep its streets clean

• Motion pictures and plays– Constitutionally protected

• Broadcast and Cable Communications– Of all mass media, broadcasting receives the least

First Amendment protection– Regulated by the FCC

Other Media and Communications

Reno v. American Civil Liberties Union (1997)

The court struck down provisions of the Communications Decency Act of 1996 that had made it a

crime to send obscene or indecent messages to anyone

under 18

The Internet

Freedom of Assembly

In 2002, Attorney General John Ashcroft

allowed law enforcement officials

to go undercover to monitor activities and

assemblies in any public place in order

to combat terrorism

Freedom of Assembly

Reasonable restrictions on assemblies: • Time• Place• Manner

- Hate speech- Fighting words

When can restrictions

be put on first

amendment rights?