Applying the Bill of Rights to States: Religious and Free Expression Rights

2. 4 Edwards Learning Objectives Trace the process by which the Bill of Rights has been applied to the states 4.1 Distinguish the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2

3. 4 Edwards Learning Objectives Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights 4.3 Describe the rights to assemble and associate protected by the First Amendment and their limitations 4.4

4. 4 Edwards Learning Objectives Describe the right to bear arms protected by the Second Amendment and its limitations 4.5 Characterize defendants’ rights and identify issues that arise in their implementation 4.6

5. 4 Edwards Learning Objectives Outline the evolution of a right to privacy and its application to the issue of abortion 4.7 Assess how civil liberties affect democratic government and how they both limit and expand the scope of government 4.8

6. Civil Liberties And Public Policy 4

7. 4 Video: The Big Picture http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Edwards_Ch04_Civil_LIberties_Seg1_v2.html

8. 4 Video: The Basics http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg2_CivilLiberties_v2.html

9. Trace the process by which the Bill of Rights has been applied to the states 4.1 TABLE 4.1: The Bill of Rights – WHY THESE?

10. Origins and application Trace the process by which the Bill of Rights has been applied to the states 4.1 • Bill of Rights – Then and Now • Where does the idea of individual liberties guaranteed by the Bill of Rights come from?? • Classical Liberalism and the Social Contract “We hold these truths to be self-evident…” • Who or what did the Bill of rights apply to in 1791? Barron v. Baltimore • Bill of Rights and the States: The process of incorporation • 14th Amendment?? Is there anything here that might impact the states in regard to the Bill of Rights? • Due Process Clause Equal Protection Clause

11. Trace the process by which the Bill of Rights has been applied to the states 4.1 Incorporation Cases • Your Task is to Identify: • Background of the case (5w’s) • Holding • Which Amendment/Protection incorporated? • Gitlow v. New York Speech • Near v. Minnesota Press • DeJonge v Oregon Assembly • Cantwell v Connecticut Free Exercise • Everson v Board of Education Establishment Clause • McDonald v Chicago 2nd Amendment • Mapp v. Ohio Search and seizure (4th) • Aguilar v Texas warrant requirement (4th) • Malloy v Hogan self incrimination (5th) • Benton v Maryland Double Jeopardy (5th) • Gideon v Wainwright Right to Counsel (6th) • Robinson v California Cruel and unusual punishment (8th)

12. Trace the process by which the Bill of Rights has been applied to the states 4.1 TABLE 4.2: The Incorporation of the Bill of Rights

13. Bill of Rights – Then and Now Popular support Rights supported more in theory than practice Let the Clan speak??NIMBY Civil liberties are not absolute Limitations?? Balanced against other values: security for instance….Patriot Act?? Trace the process by which the Bill of Rights has been applied to the states 4.1

14. Trace the process by which the Bill of Rights has been applied to the states 4.1 The Ten Commandments It is up to the Court to determine complex civil liberty issues. Is this recognition of historic importance or an impermissible use of government power to establish religion?

15. Trace the process by which the Bill of Rights has been applied to the states 4.1 Video: In Context http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg3_CivilLiberties_v2.html

16. Trace the process by which the Bill of Rights has been applied to the states 4.1 4.1 Which right was the first to be incorporated? • Freedom of religion • Freedom of speech • Freedom of Assembly • Freedom from excessive bail

17. Trace the process by which the Bill of Rights has been applied to the states 4.1 4.1 Which right was the first to be incorporated? • Freedom of religion • Freedom of speech • Freedom of Assembly • Freedom from excessive bail

18. Freedom of Religion Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2 • Establishment Clause • Free Exercise Clause

19. TPS: Should there be strict separation of religion and government?. Why or why not? Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights

20. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Separation of Church and State?

21. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Separation of Church and State Church and government are constitutionally separated from one another. A wall of separation? However, the government supports churches and religion in a variety of ways, including tax exemption.

22. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights To The First! TPS • Explain the significance of the following first Amendment Protections: • Establishment clause • Free Exercise Clause

23. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Establishment Clause Guards against establishing a mandated religion. In effect, freedom from religion Free Exercise Clause Guards against the government interfering in the exercise of any religion. In effect, freedom for religion. Freedom of Religion Two guarantees of religious freedom:

24. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Establishment Clause Case Studies: • Engel v. Vitale (1962) • Abington School District v. Schempp (1963) • Epperson v Arkansas (1968) • Lemon v. Kurtzman (1971) • Stone v. Graham (1980) • Wallace v. Jaffree (1985) • Edwards v. Aquillard (1987) • Lee v. Weisman (1992) 9. Zelman v. Simmons-Harris (2002) • Case Background • Holding • Precedent

25. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights The Lemon Test The Lemon Test is based on Lemon v. Kurtzman, 1971. PA Non-Public schools reimbursement Act • The purpose of the aid must be nonreligious. • The aid can neither advance nor inhibit religion. • Aid must not excessively entangle the government with religion.

26. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights The Supreme Court has had to consider many Establishment Clause cases that involve religion and education. Religion and Education

27. Seasonal Displays Lynch v. Donnelly, 1984— allowed the display of a nativity scene along with other nonreligious objects on public land County of Allegheny v. ACLU, 1989—prohibited an exclusively Christian holiday display Pittsburgh v. ACLU, 1989—allowed a multi-faith holiday display Chaplains The Supreme Court ruled in Marsh v. Chambers, 1983 that it was permissible for chaplains to open daily sessions of Congress and State legislatures Other Establishment Clause Cases

28. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Limits Actions that violate social duties or disrupt social order are not covered under the Free Exercise Clause. Examples: Bigamy Using poisonous snakes during religious ceremonies Schoolchildren who have not been vaccinated Faith healing of children (Wisconsin) snake handling Faith healing 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 Unemployment benefits cannot be denied to someone who quit their job because of religious beliefs The Free Exercise Clause • Belief versus practice • Not all practices protected

29. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Snake Handling: TPS Should it be protected?

30. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2 School Prayer

31. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2 Muhammad Ali Draft dodger or conscientious objector?

32. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights Free Exercise Clause Belief versus practice Cannot violate rights of others Example case of the Amish: WI v Yoder Discrimination in employment based on Religion Religious groups are exempt from employment discrimination laws…however they loose tax-exempt status if they discriminate based on race. Strict scrutiny Compelling state interest Narrowly tailored 4.2 Can belief be regulated?..Can Practice? Laws that have the effect of restricting religious practices are subject to strict scrutiny. They must show a compelling state interest in restricting the activity and be narrowly tailored to use the least restrictive means possible to achieve the state’s secular purpose.

33. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2 4.2 Which of the following is not part of the Lemon test? • A law must neither advance nor inhibit religion. • A law must not foster government entanglement with religion. • A law must not impose costs on religious organizations. • A law must have a secular legislative purpose.

34. Distinguish between the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2 4.2 Which of the following is not part of the Lemon test? • A law must neither advance nor inhibit religion. • A law must not foster government entanglement with religion. • A law must not impose costs on religious organizations. • A law must have a secular legislative purpose.

35. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Freedom of Expression 4.3 • Prior Restraint • Free Speech and Public Order • Obscenity • Libel and Slander • Symbolic Speech • Free Press and Fair Trials • Commercial Speech • Regulation of the Public Airwaves • Campaigning

36. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Prior Restraint Near v. Minnesota (1931) Unconstitutional censorship Does not apply to students Exception for national security 4.3

37. Freedom of Speech • “A function of free speech…is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Justice Douglas Associate Justice of the Supreme Court

38. Freedom of Speech and Freedom of Press guarantees are meant to: Protect each person’s right of free expression, whether spoken, written, or communicated in any other way. Protect all persons’ right to a complete discussion of public affairs. 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 Words that incite others to commit crimes - Hate Speech and fighting words. The Free Exchange of Ideas

39. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Libel and Slander Defamation Libel = written Slander = spoken Standards for conviction high Public figures New York Times v. Sullivan (1964) Intentionally malicious Private individuals…Lower standard Defamatory falsehood Negligence 4.3 Why a higher standard for public officials?

40. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Free Speech and Public Order Schenck v. United States (1919) in 1919, the Court upheld the conviction of Charles Schenck for distributing leaflets urging men to resist the draft. Wartime trade-offs – Security for liberty “Clear and present danger” standard Dangerous or merely inconvenient? 4.3

41. Seditious Speech Sedition is the crime of attempting to overthrow the government by force, or to disrupt its lawful activities by violent acts. Seditious speech is speech that urges such conduct. • Congress has enacted three major laws to prevent sedition and seditious speech: • The Alien and Sedition Acts—made scandalous or false criticism of the government illegal. Expired before Thomas Jefferson took office in 1801. • 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.” • The Smith Act of 1940—forbade advocating violent overthrow of the government, and belonging knowingly to any group that does. The Supreme Court still upholds the constitutionality of the law, but over time has modified it so that it is difficult to enforce. Advocating belief vs. action

42. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights 4.3 Senator Joseph McCarthy • Anticommunism • Smith Act (1940) prosecutions • During the Cold War, anticommunist sentiment was especially fervent, and the federal government sought to prosecute anyone connected with the Communist Party. They used the Smith Act, which forbade advocating the violent overthrow of the government, to prosecute party leaders even in the absence of evidence that they were urging people to commit violence.

43. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Free Speech and Public Order “Imminent lawless violence” standard Brandenburg v. Ohio (1969) As we’ve discussed, the Court allowed the prosecution of people who were accused of being communists. In later years, as in the case of Brandenburg, the Court narrowed its interpretation, finding that it’s permissible to advocate the violent overthrow of the government in the abstract as long as doing so does not incite anyone to “imminent lawless violence.” 4.3

44. Hate Speech and Fighting Words

45. Hate Speech and Fighting Words YOUR MOMMA IS SO UGLY, I COULD BARELY TAKE HER ON A DATE! AT LEAST I DON’T HAVE A NASTY MULLET!!! HOW DARE YOU MOCK MY MULLET!?!?!? THEM’S FIGHTIN’ WORDS!!

46. Hate Speech • The court has allowed for penalty enhancement for hate crimes. However, as a society, we have refused to “outlaw” hate speech. • In such cases we rely on the incitement test. • Hate Crime in Chappel Hill

47. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Obscenity Roth v. United States (1957) Obscenity not constitutionally protected But what is obscene? Miller v. California (1973) Appeals to prurient interest Patently offensive Lacking serious literary or artistic value Average people/local standards Regulating adult content The public supports restricting the availability of pornographic materials to minors, and the courts have upheld such restrictions. The problem is that advances in technology make it more difficult to prevent access to minors while allowing it for adults. 4.3

48. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights 4.3 Violent video game?? In 2011, the Court ruled that a California law banning the sale or rental of violent video games to minors violated the First Amendment because the games communicate ideas. Depictions of violence have never been subject to regulation the same way obscene materials have. Should they be?

49. Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights Symbolic Speech Examples of symbolic speech Wearing an armband Burning the U.S. flag Marching in a parade Limitations Burning draft cards Threats 4.3

50. Symbolic speech is expression by conduct. Picketing, the patrolling of a business site by workers on strike, is a prevalent form of symbolic speech. Supreme Court rulings show that the blanket of symbolic speech covers only so much. It does not cover destroying draft cards (United States v. O’Brien, 1968) but it does encompass flag burning (Texasv. Johnson, 1989, and United States v. Eichman, 1990). Symbolic Speech