Various Civil Liberties

1. Various Civil Liberties

2. The Incorporation Doctrine: The Bill of Rights Made Applicable to the States • Incorporation Doctrine • An interpretation of the Constitution that holds that the due process clause of the Fourteenth Amendment requires that state and local governments also guarantee those rights. • Gitlow v. New York (1925) • Near v. Minnesota (1931) • Selective Incorporation • A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made applicable to the states via the Fourteenth Amendment. • Palko v. Connecticut (1937) • Fundamental Freedoms • Those right defined by the Court to be essential to order, liberty and justice.

3. The Incorporation Doctrine: The Bill of Rights Made Applicable to the States • Bill of Rights intended to limit powers of the national government • Barron v. Baltimore (1833) • Court ruled that the national Bill of Rights limited only the actions of the U.S. government and not those of the states. • But decision suggested the possibility that some or all of the protections might be interpreted to prevent state infringement of those rights.

4. Selective Incorporation • Case by case, clause by clause, the SCt has made the BR apply to the states • Barron v. Baltimore (1833)– BR applies only to federal govt • Gitlow v. NY (1925) – 1st case to apply part of BR, 1st Amendment speech and press, to the states • What happened in betw to change the Court?

5. 14th Amendment (1868) • “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

6. The Incorporation Processand the Nationalization of Constitutional Rights Judges must determine what protections, if any, are provided by the phrases: “Privileges or immunities of citizens” “Equal protection of thelaws” “Due process of law”

7. The Incorporation Doctrine: The Bill of Rights Made Applicable to the States • 14th Amendment • Due process clause • Over the years this clause has been construed to guarantee to individuals a variety of rights • Procedural Due Process – once a process is established it must be applied and followed for everyone and every time. Variations in application result in Ct using microscope and strict scrutiny • Substantive due process • Judicial interpretation of the Fifth and Fourteenth Amendments’ due process clause that protects citizens from arbitrary or unjust laws

8. NOT Incorporated … Yet • [2nd – now incorporated via McDonald v. Chicago] • 3rd – no quartering of soldiers • 5th – grand jury indictment • 7th – civil case jury for cases >$20.00 • 8th – excessive bail

9. 1st Amendment • Prior restraint – stopping before uttering • Only allowed if nat’l security at stake; See NY Times v. US (1971), the Pentagon Papers case • Schenck v. US (1919) – established “clear and present danger” test • Brandenburg v. Ohio (1969) govt may step in only if danger of “imminent lawless action” such as a riot or violence

10. First Amendment Rights: Freedom of the Press Press interests versus governmental priorities Reporter’s privilege Press Shield Laws Because there is no constitutional right protecting reporters nationwide, reporters may be found in contempt of court if they refuse to cooperate with criminal investigations.

11. SHIELD LAWS • Protect reporters from revealing their sources. • No Federal Shield Law. • Texas does have a qualified shield – Free Flow of Information Act (2009)* • Some states, like CA, do. • Some reporters have gone to jail, because they refuse to give up their source. Writer Vanessa Leggett, center, speaks to reporters after being released from the Federal Detention Center in Houston where she spent more than five months for refusing to give federal prosecutors her research about a murder case.

12. Texas and other states

13. 1st Amendment • Forms of Speech – • Pure speech -- #1 protection • Words spoken or written • Political – “marketplace of ideas”, ideas of democracy • Libel and slander – public figure vs private stnd, “malice” nec for public figure to win (NY Times v. Sullivan) • Symbolic speech, Tinker v. Des Moines and Texas v. Johnson cases • Words plus action – protests and marches, picketing, etc • Govt can regulate distance from building (See Hill v. Colorado (2000) – abortion clinic buffer zone)

14. First Amendment Rights: Freedom of Speech Free speech laws must balanceindividual liberties and societal interests.

15. Protest outside of the Republican National Convention in Dallas, TX (1984).

16. Source: The ABA News Center. "Flag Burning Poll Results Show Americans Opposed To Amending Constitution." [Online] 12 May 2002. Congress has tried to pass a constitutional amendment, 9 times since the Johnson case in 1989.

17. T-shirts? • Can a student be required by school officials to turn his t-shirt inside out?

18. The Federal court ruling… • In granting the order, Judge Patrick J. Duggan noted that "there is no evidence that the t-shirt created any disturbance or disruption" in the school and that "the record does not reveal any basis for [the assistant principal's] fear aside from his belief that the t-shirt conveyed an unpopular political message.“ • Judge Duggan further rejected the school district's argument that the schoolyard is an inappropriate place for political debate. As he wrote in the decision, "In fact, as [the courts] have emphasized, students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others."

19. 1st Amendment • Not protected speech: • Hate speech – R.A.V. v. St. Paul (1992) – burning cross -> st can’t reg content, struck city’s ordinance down • Black v. VA – reversed, st can reg hate speech but must include intent to prove case • Free speech zones – college campuses; convention—implies other areas not protected (ACLU argues) • Fighting words – Chaplinsky v. NH (1942) case • Obscenity – Miller test • False commercial speech – st int in protecting consumers

20. OBSCENITY Miller Test (Miller v. CA, 1973) 3-prong test -- • Average person applying CONTEMPORARY COMMUNITY STANDARDS, finds the work taken as a whole, appeals to the prurient interest. • Work is patently offensive • sexual conduct specifically defined by the applicable state law . • Work TAKEN AS A WHOLE, lacks LAPS value. (Literary, Artistic, Political, Scientific) Therefore, obscenity is NOT protected by the 1st Amendment. (maintains Ct dec in Roth v. US (1957)

22. Obscenity changes? Above: Manet’sLuncheon on the Grass (1863) – thrown out during his day as being obscene, today considered a classic Right: Sargent’s Madame X (1884) – thrown out of the Paris salon as too racy with one shoulder strap down; later he overpainted the other strap

23. Oscars’ show and CBS the network issued a "wardrobe advisory" last week, warning all attendees of the following regulations: Please be sure that buttocks and female breasts are adequately covered. Thong type costumes are problematic. Please avoid exposing bare fleshy under curves of the buttocks and buttock crack. Bare sides or under curvature of the breasts is also problematic. Please avoid sheer see-through clothing that could possibly expose female breast nipples. Please be sure the genital region is adequately covered so that there is no visible “puffy” bare skin exposure.

24. 1st Amendment • Govt can NEVER regulate content • Can regulate time, place and manner • Ex. No adult video stores w/in x feet of a school or house of worship? • Deny permit to KKK to march down Main St? (Nat’l Socialist Party v. Skokie (1978)) • Deny permit to march down Main St on Wednesday during 8:00-9:00 a.m.? • Regulate words on radio or TV? Ok, to protect minors in the audience (See FCC v. Pacifica – George Carlin case, fines on TV stations for Janet Jackson’s wardrobe malfunction during Super Bowl half time)

25. First Amendment Guarantees: Freedom of Religion • Framers did not support a national church or religion. • Article VI • Provides that “no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States.” • First Amendment • Part of the Bill of Rights that imposes a number of restrictions on the federal government with respect to the civil liberties of the people, including freedom of religion, speech, press, assembly, and petition.

26. Church-State Relationships in America • 1ST 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 the people to peaceably to assemble, and to petition the Government for a redress of grievances.”

27. First Amendment Rights:Freedom of Religion Establishment: Two Approaches Accommodationist Government may provide support for religion and its associated activities Separationist No contact between government and religion is permitted

28. First Amendment Guarantees: Freedom of Religion • Establishment Clause • The first clause in the First Amendment • Prohibits the national government from establishing a national religion • Engel v. Vitale (1962) school prayer • Wallace v. Jaffree – moment of silence to pray? • Lemon v. Kurtzman (1971) • The Lemon Test – 3 prongs • Agnostini v. Felton (1997)- remedial school tchrs • Zelman v Simmons-Harris (2002) –school vouchers

29. Establishment Clause Cases:Aid to Parochial Schools • Lemon v. Kurtzman (1971) • Set up a 3-part test • The secular purpose test—does the law have a secular purpose (nonreligous)? What is the intent of the legislation? • The primary effect test—Does the law either advance or hinder religion? Is it neutral? • The excessive entanglement test—does the law/program promote a high degree of interaction between religion and civil authorities? Lemon-aid

30. Establishment & Prayer • Public school prayer at graduation?Lee v. Weisman • At football games? Santa Fe ISD v. Doe • Congress? • Ten Commandments in classroom? In courthouse? On capitol grounds? • “In God we Trust” on US money? • “under God” in pledge? Newdow • State scholarship, not for theology major?

36. Can a state prohibit you from displaying a religious symbol on your license plates?

37. Establishment and Holidays • Christmas nativity scene on city hall? • Christmas nativity scene with menorah? With crescent? • Christmas nativity scene with menorah, crescent, tree, Santa Claus, Rudolf, elves, gifts, etc? • In front of subdivision? • Old Cross in a new park?

38. Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross.  Kennedy’s opinion: “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm….The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”  Salazar v. Buono (2010) – old cross in a new park

39. And the story goes on … • Settlement agreement reached betw ACLU and Natl Park Service requires private land replace fed public land, fence around cross site and never becomes US land again; also NPS placed plaque to explain history and private land • Sandoz family donated land trade • Cross stolen but found in Half Moon Bay, CA • New cross dedicated on Veteran’s Day, Nov. 11, 2012

40. Religious Clubs at School • Westside v. Mergens(1990) • Equal Access Act allows religious groups on public school campuses, if that campus allows other clubs/organizations. • Good News Club v. Milford Central School (2001) -- school board’s refusal to allow grade school students to meet after school to sing, pray, and hear Bible stories violated 1st and 14th Am

41. First Amendment Guarantees: Freedom of Religion • Free Exercise Clause • The second clause of the First Amendment • Prohibits the U.S. government from interfering with a citizen’s right to practice his or her religion • Ct balances states compelling int to determine if it is less restrictive method to avoid interfering with fundamental rt

42. You cannot do anything that might harm yourself or violate the rights of others. You are free to exercise any religion you want; or no religion at all… but there are limits. Cannot do anything that would violate the law.

43. Another 3-part test: • Has the government imposed a burden on the free exercise of the plaintiff’s religion? • Does the religion demand the kind of behavior in question and, • Is the plaintiff engaged in good faith in that religion? • Does a compelling state interest justify the burden placed on the exercise of religion? • State’s interest must be of the greatest importance to take precedence over the plaintiff. • Does the state have an alternative way of achieving its goals rather than infringing on the free exercise of the individual’s religion?

44. Snake handling at the Pentecostal Church of God, Lejunior, Harlan County, Kentucky 09/15/1946 (National Archives and Records Administration). The ceremony also included laying on of hands. Photo by Russell Lee.

45. Free exercise • Polygamy? Reynolds v. US • School vaccinations? • Attending school past 8th grade? • Saying the pledge of allegiance to flag? • Gobitis  Barnette  Newdow • Snake during religious ceremony? • Animal sacrifice? Church of Lukumi Babalu Ayev.Hialeah

46. Other Free Exercise Issues: • Deny unemployment to a Native American Church member for being fired for smoking peyote?

47. Peyote—Native American Church “Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.” AMERICAN INDIAN RELIGIOUS FREEDOM ACT, AMENDMENTS OF 1994 http://www.nativeamericanchurch.com/law.html

48. Peyote—Native American Church Employment Division v. Smith (1990) • 6-3 for the Employment Division • Justice Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. • Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

49. Drinking Brazilian hoasca tea? • The legal status in the United States of DMT-containing plants is somewhat questionable. Ayahuasca plants and preparations are legal, as they contain no scheduled chemicals. However, brews made using DMT containing plants are illegal since DMT is a Schedule I drug. • Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2005), allows the UDV to use the tea in its ceremonies pursuant to the Religious Freedom Restoration Act. • CJ Roberts wrote in the majority opinion that federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church and that the Bush administration had failed to meet its burden under a federal religious freedom law to show that it should be allowed to ban "the sect's sincere religious practice." • In a similar case, an Ashland, Oregon based Santo Daime church sued for their right to import and consume ayahuasca tea. In March 2009, U.S. District Court Judge Panner ruled in favor of the Santo Daime, acknowledging its protection from prosecution under the Religious Freedom Restoration Act.

50. 1st Amendment • Petition – protected • Assembly – do not have to give govt list of names of members • Red Scare & McCarthyism vs Patriot Act • Boy Scouts v. Dale (2000) rt to exclude gays as scoutmasters constitutional as part of the org’s “expressive conduct”, ie. reputation of what it stands for • Yes, the KKK and American Communist party have the rt to exist….