C H A P T E R 19

Civil Liberties: First Amendment Freedoms

C H A P T E R 19 Civil Liberties: First Amendment Freedoms

SECTION 1The Unalienable Rights

SECTION 2Freedom of Religion

SECTION 3Freedom of Speech and Press

SECTION 4Freedom of Assembly and Petition

S E C T I O N 1The Unalienable Rights

•How did Americans’ commitment to freedom lead to the creation of the Bill of Rights?

•What is limited government?

•How does federalism affect individual rights?

•How did the 14th and 9th amendments further guarantee individual rights?

A Commitment to Freedom

•The listing of the general rights of the people can be found in the first ten amendments in the Constitution, also known as the Bill of Rights.

•The 13th (outlawed slavery) and 14th (equal protection of the laws, made Bill of Rights applicable to the States) amendments have also added to the Constitution’s guarantees of personal freedom (19th gave women the right to vote).

Limited Government

•Constitution limits gov’t power. Gov’t can do only what people give it the right to do.

•Constitution also limits citizen rights, people can do what they want, but cannot harm others.

•Some people’s rights conflict, such as the freedom of the press and the right to a fair trial (then court has to decide).

•Most, but not all rights are given to aliens = foreign-born residents or (e.g., their right to travel is often restricted).

Federalism and Individual Rights

The Bill of Rights only applies to the National Government, not the States. However, States cannot deny basic rights due in part to their

own bill of rights in the State Constitutions, and the 14th Amendments Due Process Clause.

•The Modifying Effect of the 14th Amendment

•The 14th Amendment’s Due Process Clause provides that “no State shall deprive any person of life, liberty or property, without due process of law…”.

•However, to include rights under that heading, the Supreme Court had to define the rights on a case by case basis, called the process of incorporation (e.g., States have to allow for freedom of speech in 1st Amendment - Gitlow v New York 1925).

*** Table on p. 536 shows provisions of the Bill of Rights incorporated into the 14th Amendment’s Due Process Clause as well as the Provisions NOT incorporated.

The 9th Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the

people.”

•The Ninth Amendment states that the American people possess rights that are not spelled out in the Constitution. Over the years, the S.C. has used the 9th Amendment many times: (ex: a person cannot be tried with evidence unlawfully gained, and right of women to have an abortion).

Section 1 Review

1. The 14th Amendment includes the

(a) Declaration of Independence.

(b) Due Process Clause.

(c) Only the first amendment.

(d) all of the above.

S E C T I O N 2Freedom of Religion

•Why can’t a free society exist without free expression?

•What is the “wall of separation between church and state”?

•How has the Supreme Court ruled on Establishment Clause cases?

•How has the Supreme Court interpreted and limited the Free Exercise Clause?

*1st Amendment

“Congress can make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

- 1st Amendment

Freedom of Expression

Establishment Clause:

•Prohibits establishing a state religion.

•In effect, freedom from religion

Free Exercise Clause:

•Guards against the gov’t interfering in the exercise of any religion.

•In effect, freedom for religion.

Two guarantees of religious freedom from 1st and 14th Amendments:

Many colonists came to this nation to escape religious persecution

The 14th Amendment’s Due Process Clause protects these freedoms from the acts of the States.

Establishment Clause Separates Church and State

Church and gov’t are constitutionally

separated from one another.

However, the gov’t supports churches and religion in a variety of ways, including tax

exemptions.

“Thomas Jefferson called the Establishment Clause “a wall of separation between church and state.”

List of Establishment Clause court cases on p. 539 and 542

Religion and Education

•The Supreme Court has had to consider many Establishment Clause cases that involve religion and

education.

The school cannot sponsor religious exercises.

. Does NOT have to teach creation science.

The Lemon Test

•The purpose of the aid to

parochial schools must be

nonreligious (costs to administer

standardized tests, busing). NOT

to pay teachers,

•Cannot pay for any part of

teacher’s salaries.

The Lemon Test is based on Lemon v. Kurtzman, 1971.

Other Establishment Clause Cases

Seasonal Displays

•Courts have ruled that public displays (10 Commandments) are allowed only if part of multi religious display – McCreary County v ACLU of Kentucky – ruled that Kentucky county courthouses were endorsing religion..

Chaplains

•The Supreme Court ruled in Marsh v. Chamber, 1983 that it was okay for chaplains to open sessions of Congress and State legislatures – due to tradition

The Free Exercise Clause

Limits

•Actions that violate social duties or disrupt social order are not covered under the Free Exercise Clause.

Examples:

Bigamy – marrying two people Reynolds v U.S. 1879.

Using poisonous snakes during religious ceremonies – Bunn v North Carolina, 1949

Free Exercise Upheld

•The Court has found many government actions to be counter to the Free Exercise Clause.

Examples:

Amish children cannot be forced to go to school after grade 8 –Wisconsin v Yoder, 1972

Ministers are allowed to hold elective office – McDaniel v Paty 1978

Unemployment benefits cannot be denied to someone who quit their job because of religious beliefs – Sherbert v Verner 1963

Section 2 Review

1. The Establishment Clause and the Free Exercise Clause protect

(a) freedom of petition.

(b) freedom of assembly.

(c) freedom of religion.

(d) all of the above.

2. The Lemon Test evaluates

(a) if a car has manufacturer’s defects.

(b) what aid is appropriate to give parochial schools.

(c) when it is appropriate to salute the flag.

(d) all of the above.

S E C T I O N 3Freedom of Speech and Press

•How important is the two-way free exchange of ideas?

•How has the Supreme Court limited seditious speech and obscenity?

•What are the issues of prior restraint and press confidentiality?

•What limits have the Court placed on the media?

•What are symbolic speech and commercial speech?

The Free Exchange of Ideas

•Freedom of Speech and Freedom of Press

guarantees are meant to:

•Protect each person’s right of free expression, whether spoken, written, etc.

•Protect all persons’ right to express unpopular views.

•Freedom of Speech and Press do not protect:

•Libel, the false and malicious use of written words

•Slander, the false and malicious use spoken words

•Obscenity gross or offensive (swearing at children in public)

•Seditious speech incites others to commit crimes (inciting violent overthrow of the gov’t)

Seditious Speech and Clear and Present Danger

•Congress has enacted laws to prevent sedition and seditious speech:

The Sedition Act of 1917—made it a crime to encourage disloyalty or spread anti-government ideas during a time of crisis. Upheld by the Supreme Court in instances of “clear and present danger.” (saying things that will create danger to society, such as during wartime like interfering with the draft, espionage.).

• Schenck v United States, 1919 = Charles Schenck, a Socialist Party member, sent letters to 15,000 men who had been drafted, urging them to resist the call to military service.

• He was found guilty of obstructing the war effort.

• The Supreme Court upheld the ruling, establishing the “clear and present danger” rule.

• Justice Holmes wrote “Words can be weapons…. The questions is whether the words…. Create a clear and present danger…”

Symbolic Speech

•Symbolic speech is expression by conduct (shrug of shoulders, carrying a sign, or wearing an armband).

•Picketing, the patrolling of a business site by workers on strike, is a prevalent form of symbolic speech. Okay unless inciting illegal activity.

•Supreme Court rulings show symbolic speech covers only so much. It does not cover destroying draft cards (United States v. O’Brien, 1968) but it does allow for flag burning (Texas v. Johnson, 1989, and United States v. Eichman, 1990).

Commercial Speech

Commercial Speech is speech for business purposes, usually advertising.

•The 1st and 14th Amendments protect advertising, but not false or misleading advertising.

Section 3 Review

1. Sedition means (a) the practice of espionage.

(b) exercising treasonous practices.

(c) attempting to overthrow the government by force.

(d) blatant industrial espionage.

S E C T I O N 4Freedom of Assembly and Petition

•How does the Constitution guarantee the freedoms

of assembly and petition?

•How can the government limit the time, place, and

manner of assembly?

•How do public and private property affect freedom-

of-assembly issues?

•How has the Supreme Court interpreted freedom of

association?

The Constitution’s Guarantees

“…the right of the people peaceably to assemble, and to petition the Government for a redress of

grievances.” – 1st Amendment

•The right to assemble, or gather with one another to express views. Protected by 1st amendment.

•The right to bring views to the attention of public officials.

•Cannot incite violence, block public streets, get too close to schools, endanger lives

Time-Place-Manner Regulations

The government can make and enforce rules regarding the time, place, and manner of

assemblies.

•Public areas near schools and courthouses are restricted (could disrupt learning or influence court proceedings).

•The government’s rules must be content neutral.

•Can restrict time, place and manner of the assembly, but not on what the assembly is trying to say (have to protect some very controversial demonstrations – KKK, Fallen Soldier Protests).

•Cox v New Hampshire 1949 – Court upheld a State law that required a license to hold a parade or procession on public streets.

Private Property

The rights of assembly and petition do not give people a right to trespass on private property.

States can interpret their constitutions to require owners of private property, such as shopping centers, to allow people to

petition on their property.

Freedom of Association

•The guarantees of freedom of assembly and petition include a right of association—the right to associate with others to promote causes (i.e., people can join a group for or against abortion).

Section 4 Review

1. The freedom to assemble and petition includes(a) the right of association.

(b) the right to trespass on private property.

(c) the right to demonstrate without prior notice.

(d) all of the above.