Fundamental Freedoms

Fundamental Freedoms Ms. Walker US Government

Civil Liberties • The basic individual rights and freedoms that are protected from government violation • http://www.annenbergclassroom.org/page/teaching-the-constitution

Limited Government • Rights are Relative, not absolute • The constitution guarantees many different rights to everyone in the US, but, no one has the right to do anything he or she wishes • http://www.learner.org/courses/democracyinamerica/dia_4/dia_4_video.html part 1: 1st amendment rights are not absolute

Limited Government • When rights collide-(freedom of the press v jury trial) Sheppard v Maxwell: Sheppard claimed he could not receive a fair trial due to extensive media coverage • To whom are Rights guaranteed? Aliens and citizens • http://www.learner.org/courses/democracyinamerica/dia_4/dia_4_video.html • Part 3: When Rights collide

Federalism and Individual Rights • The Bill of Rights • 14th Amendment-Due Process-Natl. govt and the states must guarantee individual rights • Process of Incorporation-Combines the Bill of Rights into the 14th Amendment’s Due Process Clause Gitlow v. New York 1925 • Held that freedoms of the press and speech are fundamental personal rights and liberties protected by the due process clause of the 14th Amendment http://www.annenbergclassroom.org/page/all-issues http://www.annenbergclassroom.org/page/teaching-the-constitution

The 9th Amendment • Declares that there are rights guaranteed to people beyond those listed in the constitution: • Person may not be tried on the basis of evidence unlawfully gained • Right of a woman to have an abortion without undue interference by government

The Bill of Rights http://sunnylandsclassroom.org/Asset.aspx?Id=1506

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 people peaceably to assemble,and to petition the Government for a redress of grievances”.

Freedom of Religion

The Establishment Clause “Congress shall make no law respecting an establishment of Religion”. 1st Amendment • The Government may not act in ways that establish an official religion, that favor one religion over another, or that favor religion generally.

Separation of Church and State • Government encourages churches and religion-no taxes • Chaplains serve in the military • Oaths of office in the name of God • Legislative sessions begin with prayer • National anthem and currency make reference to God

Religion and Education Landmark Supreme Court Cases • McCollum v Board of Education 1948-An Illinois religious instruction program unconstitutionally established religion because it received official support • Engel v Vitale 1962-Prayer in public schools violates the establishment clause • 1984 Equal Access Act: Students may use public school buildings for religious meetings • Epperson v Arkansas 1968-stuck down a state law which forbade the teaching of evolution.

Aid to Parochial SchoolsThe Lemon Test • Lemon v Kurtzman 1971-established a three part test for deciding if a government law aiding a religious body violates the establishment clause • Have a secular and nonreligious purpose • Neither advance nor limit religion • Not result in excessive government involvement with religion • Public schools cannot sponsor religious exercises

Free Exercise Clause “Congress shall make no law …..prohibiting the free exercise of religion”. 1st Amendment • The right to believe as one wishes is not the same as the right to behave as one wishes

Supreme Court Cases • Reynolds v United States 1879-Mormons could not engage in Bigamy • West Va. State Board of education v Barnette 1943-Jehovah’s witnesses could not be forced to salute the flag-did not have to pay homage to an object of worship. Saying the pledge is also not required and if forced to, violates 1st amendment free speech clause.

Freedom of Speech and Press • Free Expression-the 1st amendment guarantees that each person has the right to have their say and the right to hear what others have to say Some forms of free expression are not protected by the constitution: • Clear and Present Danger-May not yell “Fire” in a crowded theatre • Libel-false and malicious use of printed words • Slander-false and malicious use of spoken words • Obscene words/materials, false advertising • Seditious Speech-advocating and urging an attempt to overthrow the government by violent acts (sedition)

Hustler v. Falwell 1988 Ruled that the 1st Amendment prohibits public figures from recovering damages for intentional infliction of emotional harm, without showing the publication contained a false statement of fact made with actual Malice. Hustler won

The Alien and Sedition Acts • 1798-The president could deport undesirable aliens and made “any false, scandalous, and malicious” criticism of the government a crime-expired by 1801 • 1917-WWI-Couldn’t utter, print….abusive language about the form of government of the US-Schneck v US

Schneck v. US • Charles Schneck-An officer of the Socialist Party had been found guilty of obstructing the war effort. He has sent “fiery” leaflets to some 15,000 men who had been drafted, urging them to resist service. Supreme Court upheld the decision. Schneck presented a clear and present danger

The Smith Act of 1940 • It is a crime for anyone to advocate the violent overthrow of the US government, distribute such material or belong to a group that has those goals • Overturned in 1957: Held that merely to urge someone to believe something, in contrast to urging that person to do something, cannot be made illegal.

The Patriot Act • Created On October 26, 2001 as an Act of Congress- Result of 9/11 attacks • Creates a new crime, “Domestic Terrorism,” which it defines as : “acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and that “appear to be intended…. To influence the policy of a government by intimidation or coercion.” • Broad definition may be used against activists exercising their rights to assemble and to dissent

Obscenity • Obscenity is not protected by the Bill of Rights. • Roth v the US 1957-1st attempt to define Obscenity-not allowed to send it through the mail • Miller v California 1973-3 part test to determine what material is obscene: • The average person finds the work offensive-excites lust • The work describes a form of sexual conduct not dealt with in an anti-obscenity law • The work lacks serious artistic, political… value

Prior Restraint • The government cannot place any prior restraint on spoken or written words (The government cannot curb ideas before they are expressed) • Near v Minnesota 1931-A local court forbade the printing of the Saturday Press. That publication had printed articles on corruption. The court couldn’t stop the publication • New York Times v. The US, 1971-The US tried to stop the printing of the Pentagon Papers.

Prior Restraint • Hazelwood School District v. Kuhlmeir, 1988-Held that educators can exercise “editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”

The MediaTo what extent can the media-both print and electronic-be regulated by government? • Confidentiality-Should journalists be forced to name their sources or confidential information in a court of law? Journalists believe that if they tell, they will not be able to assure confidentiality, and therefore, many sources will not reveal their information. • Branzburg v. Hayes 1972-Reporters must respond to relevant questions in the course of a valid trial-not enforced • Shield laws-30 states give reporters some protection against having to disclose their sources

Motion Pictures, Radio and Television • The rating system-Controls who sees movies, TV • Radio and TV use public airwaves and are under heavy federal regulation • Federal Communications Commission (FCC)-regulates radio and TV-Can’t censor the content of programs before they air. Can prohibit indecent language • US v. Playboy Entertainment Group 2000-Cable may show sexually explicit programming late at night

Symbolic Speech • Expression by conduct; communicating ideas through facial expressions, body language, or by carrying a sign or wearing an arm band • Examples: • Picketing-patrolling of a business site by workers who are on strike. • US v. O’Brien 1968-4 men who burned their draft card were convicted of violating federal law. It is against the law • Virginia v. Black 2003-Upheld a state law that says cross burning is illegal for intimidation against 1 person, not at a rally/parade • Tinker v, Des Moines 1969-Allowed to wear armbands to protest the Vietnam War • Texas v. Johnson 1989-Flag burning • is protected by the 1st Amendment

Commercial Speech • Speech for business purposes-advertising • The government can and does prohibit false and misleading advertisements, and the advertising of illegal goods and services. • May also forbid: • Cigarette ads on radio and TV

Freedom of Assembly and Petition • The Constitution protects the right of the people to peacefully assemble-to gather together with one another-to express their views on public matters • Time-Place-Manner Regulations-Government can make and enforce reasonable rules covering the time, place, and manner of assemblies. Must be content neutral

Public Property • Demonstrations-Involve some degree of conflict, therefore, advance notice and permits are usually required. • Gregory v Chicago 1969-orderly demonstrators did not cause violence, the bystanders did.

Private Property • No one may picket or demonstrate on private property (abortion clinics/shopping centers) • Lloyd Corporation v. Tanner 1972-Shopping centers may allow reasonable exercise of the right of petition on their private property

Freedom of Association • The Constitution guarantees the right to associate with others to promote political, economic,and other social causes. NAACP v. Alabama 1958-State wanted a list of members and fined them 100,000. There was no reason for the state to have the list. • Boy Scouts v. Dale 2000-Scouts have a right to exclude gays from their organization

The Right to Keep and Bear Arms • 2nd Amendment “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” • Meant to protect the right of each state to keep a militia and preserve he concept of the citizen-soldier • Many believe that the 2nd Amendment is an individual right • The 2nd Amendment is not covered under the 14th’s due process clause so each state my limit or regulate the right to bear arms

Civil Liberties: Protecting Individual Rights • Due Process: forbid the national and state governments to “deny any person life, liberty, or property without due process of law”.. • 5th Amendment • 14th Amendment Very difficult to define, so the Supreme Court finds the meaning of due process on a case-by case basis • Procedural Due Process: Gives an individual a fair hearing or formal trial • Substantive Due Process: The policies or laws are fair: Fundamental fairness

Due Process The 5th Amendment Provides that the Federal Government cannot Deprive any person of life Liberty, or property without Due Process The 14th Amendment Provides that State Governments cannot Deprive any person of life, Liberty or property without Due process Guarantee Due Process Is of 2 types Substantive, the substance the meaning, the what, of a law or action of government must be just Peirce v Society of Sisters 1925 Procedural, the procedures- the how of government Action Rochin v California 1952

Due Process Procedural: Rochin v. Californina 1952 1. Suspected narcotics dealer 2. cops went to his house and entered without a warrant- found drugs and arrested and convicted him (he swallowed them and they pumped his stomach) Substantive: Pierce v. Society of Sisters 1925 1. Oregon law forced all children from 8-16 to attend public school The law itself was unconstitutional

The 14th Amendment and the Bill of Rights • The 14th Amendment’s Due Process Clause includes within its meaning most of the protections set out in the Bill of Rights. • In a series of decisions dating from 1925, the Supreme Court extended protections of the Bill of Rights against the States through the 14th Amendments Due Process Clause.

The Police Power • The authority of each state to act to protect and promote the public health, safety, morals, and general welfare. • Produces conflicts with civil rights protections: Health: limit the sale of alcohol/tobacco, make laws to combat pollution, require vaccinations Safety: forbid concealed weapons, require seat belts, punish drunk drivers Morals: regulate gambling, outlaw obscene material, prostitution General Welfare: compulsory education laws, limit profits from utilities

The Right to Privacy • “The right to be left alone” • The constitution makes no specific mention of the right to privacy, but the Supreme Court declared its existence in: Griswald v. Connecticut

Roe v. Wade 1973 • To what extent can a state limit a woman’s right to an abortion? • Case stated that: • In the 1sr trimester a state must recognize a woman’s right to an abortion • In the 2nd trimester, a state may make reasonable regulations on how, when and where abortions may be held, but cannot prohibit the procedure • 3rd trimester, a state can chose to prohibit all abortions except those necessary to preserve the life or health of the mother

Later Reproductive Rights • Webster v. Reproductive Health Services 1989 • No abortions in a public hospital or clinic • No abortion after 20 weeks • Hodgsen v. Minnesota 1990 • A minor must have written consent of 1 parent or a judge Planned Parenthood v. Casey 1992 (PA) • A woman must have counseling before an abortion • A woman must delay an abortion 24 hours after counseling • An unmarried female under 18 must have consent of a parent or judge • Doctors and clinics must keep records of all abortions

Freedom and Security of the Person • 13th Amendment: Ends slavery • Still occasional cases: involuntary servitude or forced labor • Does not include selective service • Discrimination (bias, unfairness) against African Americans by private individuals did not place the “badge of slavery” on them nor kept them in servitude • Jones v. Mayer 1968, discrimination by private individuals is illegal.

Security of Home and Person • 3rd and 4th Amendment provides that the government cannot arbitrarily violate the home or person of any American • 3rd Amendment: The government cannot house soldiers in private homes during peacetime without consent of the owner. • Has no real importance

4th Amendment • Designed to prevent writs of assistance- blanket search warrants • Probable Cause: Police officers have no general right to search for evidence or to seize either evidence or persons. • A warrant must be obtained with probable cause or reasonable suspicion of a crime

Arrests • An arrest is the seizure of a person • Don’t need a warrant- only probable cause • Automobiles: An officer needs no warrant to search a car, boat, airplane or other vehicle because the scene of a crime could be moved.

The Exclusionary Rule • Evidence gained as the result of an illegal act by police cannot be used at the trial of the person from whom it was seized. • Mapp v. Ohio 1961 14th Amendment forbids unreasonable search and seizures by State and local officers

Drug Testing • Federal drug testing programs are covered by the 4th Amendment • Tests may be conducted without a warrant Wiretapping • Need a warrant to wiretap • http://www.learner.org/courses/democracyinamerica/dia_4/dia_4_video.html Part 2

Rights of the Accused “It is better that ten guilty persons go free than that one innocent person be punished” • You are innocent until you are proven guilty • Habeas Corpus- Write of Liberty – prevents unjust arrests or imprisonments. You must be brought to court and an officer must show cause, or explain with good reason why the prisoner should not be released. The President or Congress may suspend the writ in times of war

Bills of Attainder • A legislative act that inflicts punishment without a court trial Ex Post Facto Laws- (a law passed after the fact) and has three features: • Is a criminal law • Applies to an act committed before its passage • Works to the disadvantage of the accused • A law making it a crime to sell marijuana cannot be applied to someone who sold it before the law was passed

Fundamental Freedoms