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Unit 5 (Ch 13 & 14)Government

Civil Rights and Equal Protection

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Ch 13 STGs

Students will explain:1. Importance of the Nationalization of the Bill

of Rights2. Why is the U.S. Constitution considered a

“living document”?

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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?

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The Bill of Rights

• What are the Bill of Rights

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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 ____________________.

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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)

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Exceptions to Incorporation

1. ______ Amendment2. ______ Amendment3. ______ Amendment4. Fifth Amendment: States are NOT required to

use a _______ Jury to file charges for serious crimes.

5. Seventh Amendment: States are NOT required to use a jury in _______ cases.

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Importance of Incorporation

• Means that …

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Ch 13-1 Quiz

1. 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?

2. What branch of government has been MOST responsible for Incorporating the Bill of Rights?

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Ch 13-2 Freedom of Religion

STGs (Students explain)1. Difference between the Establishment Clause

and the Free Exercise Clause of the First Amendment.

2. 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?

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Free Exercise of Religion vs the Establishment Clause

• Establishment Clause– ______ clause of– ______ Amendment

“Congress shall make no law respecting an establishment of religion”

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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

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The Establishment Clause

Look at pg 359, the photo of soldiers praying. Is this a violation of The Establishment Clause?

Explain why/why not.

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Everson v Board of Education, 1947

• Brief:

• Decision:• Opinion by Justice Hugo Black– “ “

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Applying the Establishment ClauseState Aid to Parochial SchoolsCases & Precedents (LEAVE ROOM FOR PRECEDENT)

1. Everson v Board of Education, 19472. Board of Education v _______, 19683. Wolman v Walter, 19774. Lemon v _______, _____ (year)5. Levitt v ____________, 19736. _________ v Regan, 19807. Mueller v _______, 19838. Mitchell v Helms, 20009. Kiryas Joel v Grumet, 1994

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Can Public School Students get Release Time to Attend Religious Classes?

Cite the cases & the precedent setting decisionsWhy was it not permitted in McCollum but

allowed in the Zorach case?

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What about Prayer in Public Schools?

Permitted when… Not Permitted when…

Case:Setting: Voluntary Attendance

Case:Setting: OK when not led by a faculty/staff member.

Case: Engel v Vitale, 1962Setting: When led by a religious leader (clergy)

Case: Santa Fe Independent School District v Doe, 2000Setting: 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

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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.

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Teaching Evolution in Schools

• An Arkansas law bans teaching evolution in public schools. – Constitutional/Unconstitutional ? HINT: pg 362– Why?

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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

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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?

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Free Exercise of ReligionCase Precedent

1. Reynolds v US, 1879 Bigamy is illegal even if your religion allows it

2. Jacobson v Massachusetts, 1905

Must get vaccinated even if it I against your religion

3. Oregon v Smith, 1990 Cannot do drugs on job or have it in system at work

4. City of Boerne, TX v Flores

The Religious Freedom Restoration Act is unconstitutional

5. Wisconsin v Yoder, 1972

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Religious Displays

When are they allowed?

Read Lynch v Donnelly then County of Allegheny v ACLU and then answer.

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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– Decision: write the decision

then answer

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Ch 13-2 Quiz

1. The three tests of the Lemon Test determining constitutionality of a law on religion: (state aid to parochial schools)1. 2. 3.

2. Explain the Equal Access principle of law.

Ch 13-3 Freedom of Speech

STGs1. How has the Supreme Court applied:– Clear and Present Danger– Bad Tendency Doctrine– Preferred Position

in relation to Free Speech?

2. The First Amendment & Free Speech:– What is protected?– What is NOT protected?

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Which amendment protects speech?

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Explain the two types of protected “speech”. Give examples

1. _________ Speech:– Has the most protection– Uses only ______ to convey ideas– Delivered _____________________________– EX:

2. __________ Speech or Expressive Conduct:– Uses _____ &/or words– Sometimes is NOT protected– EX:

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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)1. 2. 3.

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Key Cases on Symbolic Speech Pg 367Case 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

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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

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Limits on Free Speech (continued)

The Supreme Court uses Three General Guidelines to decide if a

Restriction on Free Speech is Constitutional.

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GUIDELINE ONEClear & Present Danger

Schenck v United States, 1919The 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?

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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

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GUIDELINE TWOThe Bad Tendency Doctrine

Gitlow v New York, 1925• Convicted for articles promoting violent overthrow

of democratic governmentsDECISION:• 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

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GUIDELINE THREEThe 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

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Preferred Doctrine Positiondoes NOT protect

• Speech intended to advocate • immediate and concrete acts of violence

So, Sedition Laws are Constitutional

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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

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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.

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Not Protected1. Defamatory Speech– Slander– Libel– Does NOT include Satire of Officials, …

2. 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”

3. Student Speech– Tinker, 1969 (right IS protected, only restricted)– Fraser, 1986– Kuhlmeier, 1988

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Yates v US, 1957

• Communist Party members said government Should be overthrown• Conviction overturned because it did NOT tell

people to overthrow the government

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Ch 13-3 Quiz

Three Constitutional Limits on Free Speech1. 2. 3.

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Ch 13-4 Freedom of the Press

STGs1. What is the Supreme Court’s opinion on prior

restraint?– What is prior restraint?

2. How has the Supreme Court ruled when media coverage could affect a court trial?

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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

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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

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Free Press vs Fair TrialsA Balancing of Rights

1st Amendment vs 6th Amendment (pg 372)Sheppard v Maxwell, 1966Press coverage interfered with a fair trial.To restrain the press, Judges may:1. Moving the trial2. Limiting the # of reporters in courtroom3. Controls on reporters behavior in courtroom4. Isolating witnesses and jurors from the press5. Sequestering the jury until trial ends

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Gag Orders

Nebraska Press Association v Stuart, 1976Gag orders • Define:• vague & broad• unconstitutional

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Press Access to TrialsGannett 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

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Shield Laws

1. What is a Shield Law?2. How many states have them?

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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

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Also under 1st Amendment Protection

• Motion Pictures– Burstyn v Wilson, 1952

• E-Mail & 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

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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

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Ch 13-5 Freedom Assembly

STGs1. Limits on public assembly2. Protections on

1. Demonstrations2. Unpopular groups that might incite violence

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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

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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

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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)

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Location Sensitive

• Adderly v Florida, 1966Public places OKEXCEPT: entry to jails requires permission

• Cox v Louisiana, 1965Courthouses grounds – may be limited (fair trial)

• Grayned v City of Rockford, 1972Banned if it’s purpose is to disrupt classes

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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

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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

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Public Safety

• Feiner v New York, 1951– 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

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Picketing

Generally protectedInconsistent rulings over timeThornhill v Alabama, 1940• Picketing is generally protectedHughes v Superior Court, 1950• Refused to overturn a ban on picketing in supermarket

in CAInt’l Brotherhood of Teamsters, Local 695 v Vogt, 1957

Upheld Wisconsin law banning picket UNLESS there is a labor dispute

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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

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DeJonge v Oregon, 1937

Upheld Right of Free Association(Right to join groups)

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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

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Any Questions?