1. Civil Liberties (The First Amendment)
Chapter 15

2. Rights in the Original Constitution
The guarantee of the writ of habeas corpus
The prohibition of bills of attainder
Ex post facto laws

3. 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.

4. 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”

5. Selective Incorporation
The Incorporation Process and the Nationalization of Constitutional Rights
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.
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

6. 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

7. 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.

8. Freedom of Religion Establishment Clause Exercise Clause
“Congress shall make no law respecting an establishment of religion….”
Exercise Clause
“…or prohibiting the free exercise thereof.”

9. Freedom of Religion: The Establishment Clause
Justice Hugo Black’s Wall-of-Separation Doctrine (1947)
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.
-Everson v. Board of Education

10. 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?

11. Freedom of Religion: The Establishment Clause
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
Nonpreferentialist Test
Conservative judges believe that the Constitution prohibits favoritism toward any particular religion but does not prohibit government aid to all religions

12. 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?

13. Freedom of Religion: The Free Exercise Clause
Not all conduct carried out in the name of religion is permissible
Practices
Governmental restrictions are often upheld by the Court when enacted for valid, secular purposes-- the “valid secular test.”
Beliefs
Protected absolutely

14. Free Speech and Free People
Historical Constitutional tests of free speech
Bad tendency test
Clear and present danger test
Preferred position doctrine

15. Defaming, criticizing, and advocating the overthrow of the government
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

16. 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

17. Nonprotected Speech Fighting Words Commercial Speech
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

18. 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

19. 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.”

20. 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

21. Other Media and Communications
The Internet
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

22. 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

23. Freedom of Assembly Reasonable restrictions on assemblies:
Time
Place
Manner
Hate speech
Fighting words
When can restrictions
be put on first
amendment rights?