Civil Liberties Unit 5

Civil Liberties Freedoms that cannot be abridged by a government Found in the Bill of Rights Include: –Religion –Speech –Press –Assembly –Petition

1 st amendment “Congress shall make no law respecting the establishment of religion…or abridging the freedom of speech, or press; or the right of people to peaceably assemble; and to petition the government…” Problem? –Does not apply to the states

Amendment 14, Section 1: 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 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.

Due Process Substantive v. Procedural Due Process –Substantive…rights implied in the words “liberty” and “property” To deny substantive rights requires the exercise of procedural rights –Procedural…the actual procedures required to deprive a person of life, liberty, or property

Protecting our liberties Doctrine of incorporation –According to the 14 th amendment, state and local governments must protect rights and liberties in the Constitution

Selective Incorporation Freedom of Speech –Gitlow v. New York (1925) Freedom of the press –Near v. Minnesota, (1931) Freedom of assembly –DeJonge v. Oregon, (1937) Free Exercise of Religion –Cantwell v. Connecticut (1940) Establishment of Religion –Everson v. Board of Education (1947)

Freedom of speech Limitations on speech: “Clear and present danger” test… –Congress can restrict speech that creates a clear and present danger –Schenk v. U.S. (1919) “Direct incitement” test… –Speech can be restricted only if it advocates imminent lawless action –Brandenberg v. Ohio (1969)

Freedom of speech Limitations on speech: Hate speech… –Congress can restrict speech that is meant to intimidate on the basis of race, color, creed, religion, or gender –Virginia v Black (2003) Symbolic speech… –Congress can restrict expressions of speech if there is “sufficient government interest” –U.S. v. O’Brien (1968)

Freedom of speech Limitations on the restrictions: Symbolic speech… –Congress cannot restrict expressions using signs or symbols such as armbands and flag burning –Tinker v. DesMoines (1969) –Texas v. Johnson (1989)

Freedom of press Near v. Minnesota (1931) –Congress cannot prevent press before publication…prior restraint

Libel v Slander Libel Damaging false statements written about a person Slander Damaging false statements spoken about a person

Freedom of press NY Times v Sullivan (1964) –“actual malice” against a public figure must occur for a conviction of libel to be issued –PUBLIC OFFICIALS must prove statement was: FalseDamaging Made with Actual Malice –“Knowledge that it was false, or with reckless disregard of whether it was false or not.” –Supported by Hustler Mag v. Falwell

Freedom of press NY Times v Sullivan (1964) –NON-PUBLIC OFFICIALS: Only need to prove a statement was: FalseDamaging

Who is a Public Figure?

Gertz v. Welch (1974) Public Official/ Figure: Elected officials Those who, by reason of fame, shape events in areas of concern to society at large. Those who occupy a position of “persuasive power and influence” in society. Those who have “thrust themselves to the forefront of a particular public controversy.”

Freedom of Press Obscenities The Miller test… Miller v. California (1973) –Would the average person, using contemporary community standards, find that the work appeals to lustful interest? –Does the publication depict/describe in an offensive way, sexual conduct defined by law? –Does the publication lack serious literary, artistic, political, or scientific value?

Freedom of Religion “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…

Questions for debate: How much of a separation should exist between church and state? – –Should you be able to say a prayer at a government sponsored function? – –Should religious icons be restricted from government run locations? Can a government legislate morality?

ESTABLISHMENT CLAUSE Prohibits the government from establishing a national religion FREE EXERCISE CLAUSE Prohibits the government from interfering with a citizens rights to practice their faith

Establishment Clause or Free Exercise Clause For the following scenarios, decide which clause is involved.

A high school student who has been deaf since birth asks his school district to pay for a sign language interpreter to accompany him to classes at a local religious school. Establishment Clause USSC: public school district must provide assistance.

A state law authorizes a one-minute period of silence in all public schools “for meditation or voluntary prayer.” Establishment Clause USSC: One-minute period unconstitutional

A state requires citizens applying for unemployment benefits to accept appropriate jobs that are available. A citizen is denied continued unemployment compensation because she refuses to accept a job that requires her to work on the day she celebrates as the Sabbath. Free Exercise Clause Worker’s right is protected.

A state law requires that the Ten Commandments be posted in each public school classroom. Establishment Clause Law is unconstitutional

A state law mandated that all students must recite the Pledge of Allegiance. Several Jehovah’s Witnesses refused on the grounds that the action violated the teaching from Exodus which compelled them not to worship any “graven image.” Free Exercise Clause Law is unconstitutional

Establishment Clause Prohibits the government from establishing a national religion

Lemon v. Kurtzman (1971) History: PA law giving aid to church- related schools for the salaries of teachers who teach secular subjects.

LEMON TEST For Establishment Clause Government action must: – –Be secular in purpose – –Neither advance nor inhibit religion – –Not foster excessive govt. entanglement with religion. – –Pa. Law is unconstitutional

Applying the lemon test Widmar v Vincent (1981) Court allows the government to lend books and computers to religious schools Board of Ed. v Mergens (1990) Court allows public high school religious groups to meet on school grounds

Applying the lemon test County of Allegheny v ACLU (1989) County government building displayed a Menorah, a Christmas tree, and a sign saying “salute to liberty” Ruling: constitutional Basis: the sign secularizes the display

Applying the lemon test Mitchell v Helms (2000) Court allows the use of state university grounds for religious worship Zelman v Simmons-Harris (2002) Court allows governments to establish a school voucher program

Free Exercise Clause Prohibits the government from interfering with a citizens rights to practice their faith

Reynolds v. U.S. (1879) History: Mormons– polygamy – –U.S. law outlawed practice Ruling: U.S. law is constitutional – –Reynolds Test Govt. cannot regulate religious belief Govt. can regulate religious action that is “subversive to the good order.”

Employment Division v. Smith (1990) History: Alfred Smith– Native American – –Used peyote during a religious ceremony – –Oregon Drug law forbid use of peyote USSC: Oregon law is constitutional – –Reynolds precedent – –A law that burdens religious practice does not need to be justified by a compelling government interest if it is a neutral and general law. – –Oregon law– general law.

Church of Lukumi Babalu Aye v. City of Hialeah (1993) History: Santeria religion– animal sacrifice – –City law forbade ritual killing of animals USSC: City law is unconstitutional – –Not a neutral and general law – –If a law specifically targets a religious action, govt. must have a “compelling interest.” – –City did not have a compelling interest.