1. Civil Rights and Equal Protection
Unit 5 (Ch 13 & 14) Government
Civil Rights and Equal Protection

2. Ch 13 STGs Students will explain:
Importance of the Nationalization of the Bill of Rights
Why is the U.S. Constitution considered a “living document”?

3. Civil Liberties & The Citizen
“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” Judge Learned Hand What does this mean?

4. The Bill of Rights
What are the Bill of Rights

5. The Nationalization of the Bill of Rights
The Bill of Rights were written by elected representatives at the
____________________ level of government.
Extending the Bill of Rights to ALL levels of government is called ____________________.

6. Incorporation (continued)
But that was NOT done until 1925 when the Supreme Court finally decided to nationalize the Bill of Rights (extend them to state governments) in the case of
___________________ v New York, 1925
In which the Supreme Court applied the 14th Amendment to state governments, thus reversing the Dred Scott Decision. (and Barron v Baltimore, 1833)

7. Exceptions to Incorporation
______ Amendment
Fifth Amendment: States are NOT required to use a _______ Jury to file charges for serious crimes.
Seventh Amendment: States are NOT required to use a jury in _______ cases.

8. Importance of Incorporation
Means that …

9. Ch 13-1 Quiz
When it came time to ratify a new constitution to replace the weak Articles of Confederation, why did state leaders insist on a national Bill of Rights?
What branch of government has been MOST responsible for Incorporating the Bill of Rights?

10. Ch 13-2 Freedom of Religion
STGs (Students explain)
Difference between the Establishment Clause and the Free Exercise Clause of the First Amendment.
Why does the court allow bus-transportation to parochial school to be paid for with state dollars but ban paying for buses for field trips for parochial schools?

11. Free Exercise of Religion vs the Establishment Clause
______ clause of
______ Amendment
“Congress shall make no law respecting an establishment of religion”

12. Free Exercise of Religion vs the Establishment Clause
Free Exercise of Religion Clause
_________ clause of
_________ Amendment
Prohibits government from unduly interfering with the free exercise of religion

13. The Establishment Clause
Look at pg 359, the photo of soldiers praying. Is this a violation of The Establishment Clause? Explain why/why not.

14. Everson v Board of Education, 1947
Brief:
Decision:
Opinion by Justice Hugo Black
“ “

15. Applying the Establishment Clause State Aid to Parochial Schools
Cases & Precedents (LEAVE ROOM FOR PRECEDENT)
Everson v Board of Education, 1947
Board of Education v _______, 1968
Wolman v Walter, 1977
Lemon v _______, _____ (year)
Levitt v ____________, 1973
_________ v Regan, 1980
Mueller v _______, 1983
Mitchell v Helms, 2000
Kiryas Joel v Grumet, 1994

16. Can Public School Students get Release Time to Attend Religious Classes?
Cite the cases & the precedent setting decisions Why was it not permitted in McCollum but allowed in the Zorach case?

17. What about Prayer in Public Schools?
Permitted when…
Not Permitted when…
Case:
Setting: Voluntary Attendance
Setting: OK when not led by a faculty/staff member.
Case: Engel v Vitale, 1962
Setting: When led by a religious leader (clergy)
Case: Santa Fe Independent School District v Doe, 2000
Setting: At a school function such as a football game or graduation, even if led by a student b/c it is a “captive audience” situation

18. Cite law(s) & case(s). Include case precedents.
Are Religious Clubs permitted to Meet on Public School Grounds? (Equal Access – pg 362)
Cite law(s) & case(s). Include case precedents.
Law or Case
Explain
Act: Equal Access Act, 1984
Allows student led clubs to meet at school for prayer groups (outside of class time)
Case: Westside Community Schools v Mergen, 1990
The Equal Access Act IS constitutional b/c it was student-initiated & student-led.

19. Teaching Evolution in Schools
An Arkansas law bans teaching evolution in public schools.
Constitutional/Unconstitutional ? HINT: pg 362
Why?

20. Teaching Creationism in Public Schools
Some states passed laws allowing creationism to be taught in public schools.
What is creationism?
What case ruled on teaching it in public schools?
Constitutional/Unconstitutional
Why

21. Free Exercise of Religion
___________ Amendment forbids any laws “prohibiting the free exercise of religion” Does that mean that you can do anything IN THE NAME OF RELIGION and be protected under this clause?
First Amendment
No, you may exercise your religion as long as it does not violate laws protecting healthy, safety or morals of the community.

22. Free Exercise of Religion
Case
Precedent
Reynolds v US, 1879
Bigamy is illegal even if your religion allows it
Jacobson v Massachusetts, 1905
Must get vaccinated even if it I against your religion
Oregon v Smith, 1990
Cannot do drugs on job or have it in system at work
City of Boerne, TX v Flores
The Religious Freedom Restoration Act is unconstitutional
Wisconsin v Yoder, 1972
Case Precedent
Reynolds v US, cannot violate health, safety or morals of community
Jacobson v Massachusetts, 1905 mandatory vaccinations
Oregon v Smith, religion does not protect drug use (safety at work)
NOTE: Religious Freedom Restoration Act, 1993 – laws must be narrow and least restrictive on practice of religion. Allowed Congress to set aside state laws violating this provision. Overturned in City of Boerne v Flores
City of Boerne, TX v Flores, 1997 Ruled the Act unconstitutional (States Rights > Federal Power)
Wisconsin v Yoder, Can’t require Amish children to attend school past 8th grade – violates a basic, long-held belief. Would undermine the Amish community.

23. Religious Displays
When are they allowed? Read Lynch v Donnelly then County of Allegheny v ACLU and then answer.
Lynch: Publicly funded Nativity scenes (with no other religious symbols) NOT constitutional even when placed with secular items.
Allegheny: Religious displays acceptable as long as all religions have equal access to put up displays.

24. Do you have to salute the flag?
Read
Minersville School District v Gobitis, 1940
Decision: write the decision
“Defending Beliefs” pg 364,
West Virginia State Board of Education v Barnette, 1943
then answer

25. Ch 13-2 Quiz
The three tests of the Lemon Test determining constitutionality of a law on religion: (state aid to parochial schools)
Explain the Equal Access principle of law.
Three Constitutional Tests: Aid to Parochial Schools
Aid has clearly stated purpose
Does not advance/inhibit religion
Avoids “excessive entanglement with religion”
Equal Access principle:
All religions are given equal access (none are denied/none are promoted)

26. Ch 13-3 Freedom of Speech STGs How has the Supreme Court applied:
Clear and Present Danger
Bad Tendency Doctrine
Preferred Position
in relation to Free Speech?
The First Amendment & Free Speech:
What is protected?
What is NOT protected?

27. Which amendment protects speech?

28. Explain the two types of protected “speech”. Give examples
Has the most protection
Uses only ______ to convey ideas
Delivered _____________________________
EX:
__________ Speech or Expressive Conduct:
Uses _____ &/or words
Sometimes is NOT protected

29. Symbolic Speech/Expressive Conduct
Restrictions must pass the Three-Part Test.
This Right is weighed against the safety, security & rights of others.
The Three-Part Test: (pg 367)

30. Key Cases on Symbolic Speech Pg 367
Decision
1. US v O’Brien, 1968
2. Tinker v Des Moines SD, 1969
3. Frisby v Schultz, 1988
4. TX v Johnson, 1989
5. US v Eichmann, 1990
6. Hill v CO, 2000

31. Limits on Free Speech
First Amendment Freedoms > than other Freedoms.
Restricted ONLY when absolutely necessary
During wartime & times of national security, the right to Free Speech is MORE LIMITED

32. Limits on Free Speech (continued)
The Supreme Court uses Three General Guidelines to decide if a Restriction on Free Speech is Constitutional.

33. GUIDELINE ONE Clear & Present Danger
Schenck v United States, 1919
The Espionage Act of 1917
illegal to “willfully utter, print, write or publish any disloyal, profane, scurrilous or abusive language” about the government
Schenck was convicted of distributing pamphlets encouraging draft obstruction
Constitutional? Why/Why not?

34. The Espionage Act of 1917 Was Constitutional Why?
Congress has the right to prevent words that may create a “clear and present danger”
In TIMES OF WAR, speech that would normally be protected MAY NOT BE PROTECTED

35. GUIDELINE TWO The Bad Tendency Doctrine
Gitlow v New York, 1925
Convicted for articles promoting violent overthrow of democratic governments
DECISION:
Freedom of Speech is a basic right that no state can deny EXCEPT to protect the people
EVEN if it is NOT A CLEAR & PRESENT DANGER,
IF IT HAS A TENDENCY TO LEAD TO ILLEGAL ACTIONS,
it can be limited

36. GUIDELINE THREE The Preferred Position Doctrine
First Amendment Freedoms > than all others
Basis of All Liberties
Any Restrictions on First Amendment Freedoms are ASSUMED UNCONSTITUTIONAL
Unless government proves it is absolutely necessary

37. Preferred Doctrine Position does NOT protect
Speech intended to advocate
immediate and concrete acts of violence
So, Sedition Laws are Constitutional

38. Dennis v US, 1951 Convicted under the Smith Act (advocate revolution)
Advocated revolution
Used broad interpretation of “clear and present danger” to uphold conviction during peacetime
This guideline has been more narrowly interpreted since then

39. Brandenburg v Ohio, 1969
KKK rally leader was arrested for NOT ending the rally
Conviction overturned because his actions were NOT imminently going to produce lawless action
NOTE: Subsequent decisions HAVE RESTRICTED this Form of Expression when it appeared likely to produce violence by the participants OR the CROWD.

40. Not Protected Defamatory Speech Slander Libel
Does NOT include Satire of Officials, …
Fighting Words
Chaplinsky v New Hampshire, 1942
“lewd and obscene, the profane, the libelous, and the insulting or “fighting” words…tend to incite an immediate breach of the peace”
Student Speech
Tinker, 1969 (right IS protected, only restricted)
Fraser, 1986
Kuhlmeier, 1988

41. Yates v US, 1957 Communist Party members said government
Should be overthrown
Conviction overturned because it did NOT tell people to overthrow the government

42. Ch 13-3 Quiz
Three Constitutional Limits on Free Speech

43. Ch 13-4 Freedom of the Press
STGs
What is the Supreme Court’s opinion on prior restraint?
What is prior restraint?
How has the Supreme Court ruled when media coverage could affect a court trial?

44. Prior Restraint Prior Restraint/Censorship of information
BEFORE it is published
Is that Constitutional?
Not usually
When is it Constitutional?
ONLY when directly related to national security

45. Prior Restraint Cases Near v Minnesota, 1931
An injunction stopping publication of a newspaper critical of public officials
Court ruled – UNCONSTITUTIONAL
New York Times v US, 1971
US/Pentagon tried to stop NYT – publishing the Pentagon Papers proving gov’t lied about wartime casualties,…
Court ruled - UNCONSTITUTIONAL

46. Free Press vs Fair Trials A Balancing of Rights
1st Amendment vs 6th Amendment (pg 372)
Sheppard v Maxwell, 1966
Press coverage interfered with a fair trial.
To restrain the press, Judges may:
Moving the trial
Limiting the # of reporters in courtroom
Controls on reporters behavior in courtroom
Isolating witnesses and jurors from the press
Sequestering the jury until trial ends

47. Gag Orders Nebraska Press Association v Stuart, 1976 Gag orders
Define:
vague & broad
unconstitutional

48. Press Access to Trials Gannett Co., Inc v DePasquale, 1979
Richmond Newspapers, Inc. v Virginia, 1980
Can bar public & press from pretrial hearings
Modified Gannett ruling.
Trials, jury selections & prelim hearings MUST BE OPEN TO THE PRESS & PUBLIC
IF “reasonable probability exists it may harm right to fair trial
EXCEPT UNDER LIMITED CIRCUMSTANCES

49. Shield Laws
What is a Shield Law?
How many states have them?

50. Also covered under 1st Amendment
Radio & Television: Cable Television Cases
Turner Broadcasting System v FCC, 1997
Cable also protected under 1st Amendment
Less than newspapers & print media
Telecommunication Act of 1996
Partially struck down as too restrictive
Can’t be required to censor explicit material from children’s eyes

51. Also under 1st Amendment Protection
Motion Pictures
Burstyn v Wilson, 1952
& Internet
Reno v ACLU, 1997
Struck down part of Communications Decency Act which tried to protect children from indecent material
Obscenity
Miller v California, 1973
Local communities set laws on what is acceptable within reason

52. Advertising Commercial Speech Profit motive
Less protected than other forms of “speech”
Since Bigelow v Virginia, 1975
Lessened restrictions on advertising
Can advertise medical & legal services
Lessened regulations on outdoor advertising

53. Ch 13-5 Freedom Assembly STGs Limits on public assembly Protections on
Demonstrations
Unpopular groups that might incite violence

54. Freedom of Assembly
“the right of the people peacably to assemble, and to petition the Government for a redress of grievances”
Private and public places
Petitions
Sign carrying in a parade or march
lobbying

55. DeJonge v Oregon, 1937
Overturned a conviction for holding a public meeting of the Communist Party
Unpopular groups also have rights
As important as Free Speech & Free Press
First Amendment
And under Due Process in Fourteenth Amendment

56. Demonstrations & Parades, pg 377
A permit may be required to limit clashes among demonstrators & protestors
Permit cannot be denied just because a group is unpopular (Cox v New Hampshire, 1941)
May be denied for public safety
The fee cannot be unreasonable (American Nazi Party v Skokie, IL, 1977)

57. Location Sensitive
Adderly v Florida, 1966 Public places OK EXCEPT: entry to jails requires permission
Cox v Louisiana, 1965
Courthouses grounds – may be limited (fair trial)
Grayned v City of Rockford, 1972
Banned if it’s purpose is to disrupt classes

58. Equal Access to All Groups
Police Department of Chicago v Mosley, 1972
Overruled a law banning all demonstrations near school buildings except for picketing
Restrictions AND access must be evenly applied to all groups

59. Free Assembly: On Private Property v Public Property
Public Property usually allowed
Permits & restrictions may apply
Private Property
Lloyd Corporation v Tanner, 1972
Cannot demonstrate at a shopping mall (private property)
Schenk v Pro-Choice Network of Western New York, 1997
Buffer zone

60. Public Safety Feiner v New York, 1951 Gregory v City of Chicago, 1969
Police MAY halt FREE ASSEMBLY IF IT BECOMES A HAZARD TO PUBLIC SAFETY
Gregory v City of Chicago, 1969
Parade/Free Assembly is permitted
Even if it creates public disorder
As long as it is peaceful and orderly
And NOT a hazard

61. Picketing Generally protected Inconsistent rulings over time
Thornhill v Alabama, 1940
Picketing is generally protected
Hughes v Superior Court, 1950
Refused to overturn a ban on picketing in supermarket in CA
Int’l Brotherhood of Teamsters, Local 695 v Vogt, 1957
Upheld Wisconsin law banning picket UNLESS there is a labor dispute

62. Whitney v California, 1927
Whitney attended a Communist convention where violence was advocated as a means to overthrow a government
Had NOT participated in any violent actions NOR was planning any violent actions
Convicted under “clear and present” danger
Precedent for ruling in Dennis v US, 1951

63. Upheld Right of Free Association (Right to join groups)
DeJonge v Oregon, 1937
Upheld Right of Free Association
(Right to join groups)

64. Freedom of Association
Is membership in a controversial or “terrorist” group permitted?
THEN
Legality of membership based on type of group
TODAY
Generally protected to ensure freedom to
Join a political party
Interest group

65. Any Questions?