1 What is Liberty? What is Liberty? Freedom from excessive government control. Both economic and personal freedoms are guaranteed to individuals.

Transcription

1 1 What is Liberty? What is Liberty? Freedom from excessive government control. Both economic and personal freedoms are guaranteed to individuals. The purpose of the Bill of Rights is what? To provide for individual liberties. The idea is that there are certain liberties that no entity should be able to deprive citizens of certain rights. 1

2 2 Incorporation Doctrine Incorporation Doctrine Is the bill of rights and the specific freedoms granted in the Constitution applicable to the states? It has not always been. Until the addition of the 14th Amendment, the Court kept the bill of rights from applying to the states. After the addition of the 14th Amendment, the question came up again. For a number of years, the bill of rights still was not applied to the states. Beginning in the 1920s, a series of decisions gradually brought about incorporation of the bill of rights. Eventually, it became understood that almost all provisions of the bill of rights were applicable to the states. 2

3 3 Freedom of Speech Freedom of Speech This freedom has never been interpreted by the court as absolute. Some limitations have always been acceptable. The only absolute defense against limitations on speech, oral or print, is the truth. The truth is protected even when its expression damages the person to whom it applies. 3

4 3.1 Schenck v.u.s. (1919) Schenck v.u.s. (1919) One of the earliest cases, which brought about the Clear and present danger doctrine (only speech that creates a serious and immediate danger to society may be restricted) was Schenck v. US (1919). The issue was this, in 1917, Charles Schenck, the general secretary of the Socialist party of Philadelphia had 15,000 leaflets printed urging resistance to the draft. He sent the leaflets to men listed in a local newspaper as eligible for service. The US alleged that Schenck had violated the Espionage Act by attempting to obstruct recruitment and illegally using the mail to do so. Schenck and his lawyer did not dispute the charges. Rather, they argued that the Espionage Act violated the 1st Amendment s Free Speech clause because it prohibited speech or publication before the words are uttered. Justice Holmes delivered the opinion of the court -and this is where clear and present danger comes from. Speech that can create a serious and immediate danger to society may be restricted. 4

5 3.2 Regulated Speech Regulated Speech Speech that can be regulated: Violence If expression takes a violent form or incites violence, the government may regulate it. Property damage The government has the right to protect private and public property from being destroyed or damaged. Criminal Speech Some forms of speech that are crimes by their nature, like espionage. Encroaching on the Rights of Others Freedom of Expression does not provide a license to infringe on the rights of others. e.g. animal rights groups at the zoo, pro life supporters protesting abortion clinic. Burdens on Government Functions If expression places a burden on a legitimate government function, it may be regulated, like laying in front of bulldozers to prevent some kind of construction. Forms of expression considered outside the scope of the first amendment Primarily obscenity and libel. 5

6 3.3 Symbolic Speech Symbolic Speech Symbolic Speech is an actions other than speech itself protected by the first amendment because it is considered political expression. The kinds of actions upheld include wearing armbands in public schools to protest the Vietnam war, wearing Ku Klux Klan hoods and burning crosses, and flag burning. Texas v. Johnson (1989) Texas v. Johnson (1989) During the Republican National convention in Dallas in 1984, Gregory Lee Johnson was protesting Reagan Administration policies and poured kerosene on an American flag and burned it as an act of protest. He was arrested for violating a Texas law against flag desecration. The court held that flag burning was protected speech. Immediately after the decision, Congress passed a law giving a one-year jail sentence and a $1,000 fine to anyone who desecrates a flag. This law was quickly overturned by the court. Congress then attempted to pass a constitutional amendment, which failed to get the necessary 2/3 majority in the House and the Senate. 6

7 4 Freedom of the Press Freedom of the Press Doctrine of no prior restraint government actions to restrict publication of a magazine, newspaper, or books on grounds of libel, obscenity, or other legal violations prior to the actual publication of the book. The idea is that the government should have to prove why the material should not have been distributed, rather than having the defendant prove that his or her material should not be censored. What about stories and/or information that present a threat to national security? We don t really know. 7

8 4.1 NY Times v. US (1971) NY Times v. US (1971) In NY Times v. US (1971), the Supreme Court upheld the right to publish secret documents that had been stolen from the State Department and the Defense Department. But the decision did not mean that this kind of thing would always be allowed. If the government had proven that publication would result in direct, immediate, and irreparable damage to our nation or its people, then it could have been decided differently. 8

9 4.2 Libel and Slander Libel and Slander Libel and slander -never protected by the 1st amendment. Libel is a written statement made in reckless disregard of the truth that is considered damaging to a victim because it is malicious, scandalous, and defamatory Slander is an oral statement, made in reckless disregard ofthe truth, which is considered damaging to the victim because it is malicious, scandalous, and defamatory. It is very, very difficult to prove libel, and next to impossible to prove slander. 9

10 4.3 Obscenity Obscenity As we already mentioned, this is not included in 1st amendment protection. Most states ban publishing, selling, or possessing the material, and Congress bans its shipment in the mail. It is not necessary to show that it presents a clear and present danger; only that it is obscene. Pornography is just a synonym. Again, the famous quote by Potter Stewart, I shall not today attempt to further define obscenity... but I know it when I see it. 10

11 Miller v. California (1973) Miller v. California tightened the standards a bit -a three pronged test Since then, most community anti-pornography laws have been reviewed by the court and reversed. 1. The work, as a whole, is deemed obscene by the average person according to community standards. 2. It depicts sexual conduct in a patently offensive way. 3. It lacks serious literary, artistic, political, or scientific value. 11

12 The Internet and Obscenity Child pornography is not protected under any circumstances. The overriding interest of the state is to protect children. The existence of such materials is proof of a crime. Can the government try to ban information from the Internet without violating the 1st amendment? Congress tried with the Communications Decency Act of The court struck down the law in 1997, saying it was unconstitutional. Part of the logic was that it is not likely that children will accidentally come across pornography on the Internet. They would have to take deliberative steps to reach it. In 2003, the court handed down a decision that allows libraries to use filters that prevent pornographic material from being viewed on the computers. From my understanding, people can ask the librarian to turn the filter off, but a patron has to take action to do that. 12

13 5 Freedom of Religion 5.1 Belief/Action Dichotomy Belief/Action Dichotomy Free exercise Prohibits the federal government from restricting religious beliefs and practices. One of the earliest cases involved the Mormon practice of polygamy. Congress outlawed polygamy in the Utah territory in After George Reynolds took his second wife, he argued that he was following the dictates of his faith, and the right was reserved to him under the Free Exercise Clause. The Court disagreed, and they made a distinction between opinions (or beliefs) and actions (or practices). This became the basis for a number of other decisions. The court can outlaw practices that threaten health, safety, or welfare. This is known as the belief/action dichotomy. 13

14 Church of the Lukumi Babalu Aye v. City of Hialeah(1993) The Court found that the city s law that banned the practice was directed at this particular group of individuals, and therefore struck it down. The city ordinances defined animal sacrifice as to unnecessarily kill, torment, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption. The sacrifice was part of the religion, and in many cases, the animals are cooked and eaten after the ceremonies. chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. 14

15 Goldman v. Weinberger (1986) This case was interesting, because the court had been upholding religious freedoms. At issue was whether an Air Force officer could wear a yarmulke while in uniform (this is a headcovering worn by Orthodox Jews because the religion requires that adherents keep their heads covered at all times. Also called a skull cap). In this case, the court upheld the Air Force Rule. Why was this case different? It dealt with the military, and the justices reasoned that the military had less reason to ensure freedom of expression for its membership. A year later, Congress passed a law that effectively overturned the decision in this case. 15

16 5.2 The Establishment Clause Establishment of Religion There is some debate as to what exactly establishment of religion is. Interpretation ranges between simply that the government cannot establish an official religion and that there is a wall of separation between church and state -that is, they must be completely separate. There are also more middling views. Where does the wall of separation come from? Jefferson, in 1802 in a letter to the Danbury Baptist Association. 16

17 Lemon v. Kurtzman Most important case for current circumstances: Lemon v. Kurtzman (1971) What is the standard for determining establishment? What we now refer to as the Lemon test? Laws affecting religious activity: 1. Must have a secular purpose 2. The primary effect, must neither advance nor inhibit religion 3. It must not foster an excessive government entanglement with religion 17

18 Engel v. Vitale (1962) The issue was that the state had written the prayer. the court held that in this country it is no part of the business of government to compose prayers for any group of the American people to recite as a part of a religious program carried out by the government. Hugo Black s majority opinion : This only dealt with state written prayer, not all prayer in schools. The issue of other different kinds of prayers is still being debated. The court has held that prayers at graduation ceremonies are establishment, and moments of silence daily are also an establishment. 18

19 6 Right to Privacy 6.1 Griswold v. Connecticut (1965) Griswold v. Connecticut The first case - a Connecticut statute forbidding the use of contraceptives. The executive director of Planned Parenthood League of Connecticut, Estelle Griswold, was arrested by Connecticut for providing information, instruction, and medical advice about contraception to married couples. According to the decision given by Justice Douglas, the right to privacy is part of a penumbra of rights, emanating from the first, third, fourth, fifth, and ninth amendments. In 1973 case Roe v. extended to abortion. Wade, the right to privacy was confirmed and 19

20 6.2 Homosexuality Bowers v. Hardwick (1986) The first case dealt with a Georgia law banning sodomy (the law banned the practice between heterosexuals or homosexuals). Michael Hardwick was arrested when a police officer found him in bed with another man (the officer had been executing a warrant for Hardwick s failure to appear in court and was let in by a housemate). He was arrested. The DA decided not to press charges, but Hardwick and his lawyer decided to challenge the law. The law was struck down by the court of appeals, but when the state of Georgia appealed the ruling to the Supreme Court, the Supreme Court upheld the law. 20

21 Lawrence and Garner v. Texas (2003) Stemmed from a case in Pasadena, TX, where two men were arrested for having consensual homosexual sex, in violation of a Texas law. Why the different outcome? The first case was argued and decided on the basis of equal protection ofthe law. Since the law applied to both homosexuals and heterosexuals, there was equal treatment, according to the courts. The second case was argued on the basis of privacy. 21

22 7 The Right to Bear Arms The Right to Bear Arms What does it mean? Two views: we have an individual right to bear arms. This is rooted in the idea that the people should be able to resist tyranny. The other view is that we only have a collective right to bear arms -that is, to form militias -national guard units. 22

23 8 Freedom of Assembly and Petition Freedom of Assembly and Petition The right to form and join organizations and associations Alabama attempting to force the NAACP to hand over membership lists early in the Civil Rights movement. The court held that this was unconstitutional. If a college or university denies official recognition to a student organization based on its views, it is a violation of the right of association. 23

24 9 Rights of Criminal Defendants Rights of Criminal Defendants The bill of rights is dominated by protections for the accused. The guarantees were adopted largely to prevent political arrests and ensure fair trials the British abuse of colonial leaders was still fresh in the minds of Americans when the amendments were penned and passed. 1. Evidence Gathered Unreasonable search and seizure forbidden (4th amendment). 2. Suspicion Cast Guarantee that writ of habeas corpus will not be suspended, forbidding imprisonment without evidence (Article I, Section 9). 3. Arrest made Right to have the assistance of counsel (6th Amendment). 4. Interrogation held Forced self-incrimination forbidden (5th Amendment) Excessive bail forbidden (8th Amendment). ei Trial held speedy and public trial by an impartial jury required (6th Amendment). Double jeopardy forbidden (5th Amendment). Trial by jury required (Art III, Section 2). Right to confront witnesses (6th Amendment) Punishment imposed Cruel and unusual punishment forbidden (8th Amendment ). 24