Four Freedoms of the 1st 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.”

The Four Freedoms:1) Religion 2) Speech3) Assembly 4) Petition

Freedom of Speech

• The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. ~John Stuart Mill, On Liberty, 1859

Freedom of Speech (Continued)

• I do not agree with what you have to say, but I'll defend to the death your right to say it.

-- Voltaire

"I am opposed to any form of tyranny over the mind of man." -- Thomas Jefferson

Prior RestraintDefinition: Prior restraint is a legal term related to censorship and refers to the government attempting to prevent certain modes of speech from reaching the public. Its chief purpose is to prevent material from being published.

1) Near v. Minnesota—1931 (★★★): Struck down censorship as a general practice.

Cannot stop newspapers from publishing salacious material.

2) Alien & Sedition Acts (1798): Made it a crime topublish "false, scandalous, and malicious writing" against the government or itsofficials.

3) Misc. Issues: War Time Reporting,Pentagon Papers, Et Cetera

Clear & Present Danger:Schenck v. US —1919 (★★★★★)

Facts of the Case: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Conclusion: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.

Fighting Words (1960’s & 70’s)

Yates v. United States (★★): Restricted the holding in Dennis, ruling that the Smith Act did not prohibit advocacy of forcible overthrow of the government as an abstract doctrine

Brandenberg v. Ohio (★★): Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal

syndicalism law. The Ohio law was declared unconstitutional because it didn’t clarify if Brandenberg was actually attempting to incite violence.

Libel & Slander

Libel Written

Slander → Spoken

NY Times v. Sullivan – 1964 (★★★★):Created a two-prong test to determine if libel or slander has occurred:1) malicious intent 2) A reckless disregardfor the truth.

Hustler Magazine v. Jerry Falwell (★) (Harder for public officials to prove libel b/c they can be parodied.

Obscenity:Miller v. CA —1973 (★★★★★)

Facts: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.

Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Conclusion: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.

Student Free SpeechTinker v. Des Moines – (★★★★★)

Facts of the Case: John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension.

Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections?

Conclusion: The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits. The principal had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.

Symbolic Free Speech

"Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol . . .“

Texas v. Johnson – 1989 (★ ★ ★ ★ ★)

This was a landmark decision that invalidated prohibitions on desecrating the American flag that was enforced in 48 of 50 states.

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Freedom of Religion

• Separation of Church and State– Establishment Clause

1. Aid to church-related schools (Lemon Test)

2. School vouchers3. School prayer—Engel v. Vitale4. Prayer outside the classroom5. The Ten Commandments (Stone

decision) 6. Teaching evolution 7. Religious speech

The Two Extremes of Religious Freedom

State Mandated Atheism

America is a “Christian nation.”

Religious Freedom and The Enlightenment

• Religious truth cannot be reasonably established. Therefore, government should not legislate on religious matters. (Might have religious reasons for favoring a certain policy, but it ought to be couched in rational discourse.)

Influences on Religious Freedom

• Thomas Jefferson →• Virginia Statute onReligious Freedom.

Jefferson (Continued)

“ The legitimate powers of government extent to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twnty gods, or no God. It neither picks my pocket nor breaks my leg.”

Establishment Clause Cases Engel v. Vitale – 1962 (★ ★ ★ ★ ★)

School Prayer:• The Board of Regents for the State of New York authorized a short, voluntary

prayer for recitation at the start of each school day. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country."

• Question: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment?

• Conclusion: Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate

Engel v. Vitale Cartoon

10 Commandments 1) Can’t be posted in a classroom. (Stone v. Graham) – 1980 (★)

2) Can be posted in the Texas capital. (Van Orden v. Perry) – 2005 (★)

3) Cannot be posted in a Kentucky courtroom. (McCreary County v. ACLU)– 2005 (★)

Why the Texas capital but not Kentucky courtroom??????Ask this guy

Evolution v. Creationism

1) Epperson v. Arkansas – 1968 (★★★) : An Arkansas law prohibiting the teaching of evolution violated the establishment clause because it imposed religious beliefs on students.

2) Edwards v. Aguillard – 1987 (★★★) : Teaching creationism in public schools is unconstitutional because it attempts to advance a particular religion. (monotheism)

Prayer Groups on Campus

1) Westside School District v. Mergens – 1990 (★★★): School districts may not prohibit Bible study groups from meeting on school premises if they allow other groups to meet on school premises.

2) Santa Fe School District v. Doe – 1990 (★★★) : “Pre-game prayers delivered on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer."

Free Exercise Cases

Wisconsin v. Yoder – 1972 (★★★★): The Wisconsin Compulsory School Attendance Law violated the Free Exercise Clause of the First Amendment because required attendance past the eighth grade interfered with the right of Amish parents to direct the religious upbringing of their children. Supreme Court of Wisconsin affirmed.

Employment Division v. Smith – 1990 (★★★★★):

• "The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use.“

• 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:

Reynolds v. US – 1878 (★★★★★):

• Religious duty was not a suitable defense to a criminal indictment.

• The Mormons, believing that the law was unconstitutionally deprived them of their 1st Amendment right to freely practice their religion, chose to ignore the Morrill Anti-Bigamy Act.

4th Amendment“ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

• This amendment is what keeps the police from storming into your property and searching your house without a warrant.

• This amendment is important to people’s privacy and to personal belongings.

Mapp v. Ohio – 1961 ( )★★★★★ : Created the exclusionary rule which excludes unconstitutionally obtained evidence from use in criminal prosecutions

5th Amendment

• Guards against self-incrimination• Forbids Double Jeopardy • Imminent Domain

Miranda v. Arizona – 1966 ( )★★★★★ : The 5th Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney.

6th Amendment

• Right to a speedy trial• Rights to have one’s peers as jurors • Can have an attorney

Gideon v. Wainwright – 1963 ( )★★★★★ : The 6th amendment right to counsel is a fundamental right applied to the states and requires that indigent criminal defendants be provided counsel at trial.

8th Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

• * * * Capital Punishment? * * * *

Gregg v. Georgia – 1976, ( )★★★★ The death penalty is not unconstitutional.

9th Amendment • Unenumerated RightsGriswald v. Connecticut – 1965 ( )★★★★★ A Connecticut law criminalizing the use of

contraceptives violated the right to marital privacy.↘

↙

CREATED A RIGHT TO PRIVACY (a penumbra)

Roe v. Wade – 1973 ( )★★★★★ • The Court held that the

constitutional right to privacy extends to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother's health. Noting that these state interests become stronger over the course of a pregnancy, the Court resolved this by limiting the right to the first trimester.

Public Opinion and Roe

What IS the difference?5th Amendment: No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

14th Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 Incorporation Issue• For many years, the courts assumed that

the Bill of Rights limited only the actions of the national government, not the actions of state or local governments.

• The founders believed that the states would be less likely to violate their own citizens’ liberties.

Incorporation & the Right to Due Process

• The due process clause of the 14th Amendment ensures that state governments will protect their citizens’ rights. – “No State shall…deprive any person of life, liberty,

or property, without due process of law.”• The right to due process of law is simply the

right to be treated fairly under the legal system.

14th Amendment & Incorporation

• The due process clause of the 14th Amendment led to a process called SELECTIVE INCORPORATION which is the process whereby the rights enumerated in the Bill of Rights are incorporated into state law.

1833: Barron v. Baltimore1925: Gitlow v. New York

Incorporation, cont.

• In 1925, the Supreme Court began using the due process clause to say that states could not abridge a civil liberty that the national government could not abridge.

• The Supreme Court was particularly active during the 1960’s in broadening its interpretation of the due process clause to ensure that states and localities could not infringe on civil liberties protected by the Bill of Rights

Table 4-1, p. 78

14th Amendment – Equal Protection

Age/ Class Gender Race

Bakke v . CA Board of Regents

• The Court held that while affirmative action systems are constitutional, a quota system based on race is unconstitutional.

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The End of the Separate-but-Equal Doctrine

Brown v. Board of Education of Topeka – Overturned Plessy v. Ferguson

• “With All Deliberate Speed.” • Bureaucratic loopholes were used to delay desegregation. • Many white parents sent their children to newly established private schools.

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Dred Scott, Reconstruction, and “Jim Crow”

(Missouri Historical Society)

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Slavery in the United States

• Ending servitude– The Thirteenth Amendment (1865) prohibits

slavery within the United States. – The Fourteenth Amendment (1868) established

that all persons born in the United States are citizens and no state shall deprive citizens of their rights under the Constitution.

– The Fifteenth Amendment (1870) established the right of citizens to vote.

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Challenges to Civil Rights Legislation

• Plessy v. Ferguson– Separate-but-Equal Doctrine

• Voting Barriers– White primary, the grandfather clause, poll taxes,

literacy tests• Extralegal Methods of Enforcing White

Supremacy

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Rosa Parks © Bettmann /Corbis

Beyond the Voting Booth:

• Demonstrations/protests/public rallies/civil disobedience

• Organized interest-groupactivity (e.g., NAACP)

• Courts/litigation

• Boycotts

• Election activities other than voting (campaigning, donating)

1964 Civil Rights Act

1. Attempted to end De Factosegregation.

2. Was implemented to betterenforce the 14th Amendment

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Increase of Black Voter Registration in Seven Southern States Covered

by the 1965 Voting Rights Act

1. Political Participation by African Americans 2. Political Participation by Other Minorities 3. Lingering Social and Economic Disparities

24th Amendment

“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any

poll tax or other tax.”