Civil Liberites and Public Policy

Civil Liberites and Public Policy • How the Bill of Rights has been interpreted and incorporated

The Incorporation of the rights • Barron v Baltimore 1833 • Fourteenth Amendment • Gitlow v New York 1925 • Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

The Incorporation of the rights • Gitlow v New York 1925 • Question: • Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? • Conclusion: • Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

Rights in Conflict We know people support rights in theory but their support may disappear when it comes time to put those rights into practice - ex: demands of American Nazi Party in 1977 to march through a Jewish neighborhood in Skokie, Ill

First Amendment Conflicts • Just how does the Constitutional statements about religion and gov’t conflict? • establishment clause • free exercise clause http://schlissellaw.files.wordpress.com/2009/04/establishment-clause-separation-church-state1.jpg

First Amendment Conflicts • Clearly history indicates the Founding Fathers were against an established church like the Anglican church in England. But what else does the establishment clause mean? • Is it that the gov’t can’t favor one religion over another? • or • Is it as Jefferson said there should be a wall of separation between church and state so they should be no support for any religion at all,.

Establishment Clause Debate has been especially intense over school prayer What 2 court cases? Engel v Vitale School District of Abington Township, Pennsylvania v Schempp

Establishment Clause States prohibiting religious practices? What court case? Employment Division v Smith SC ruled states can prohibit certain religious practices but not religion itself

Establishment Clause Aid to church-related schools? What court case? Lemon v Kurtzman SC ruled aid ok if secular, doesn’t favor particular religion, and doesn’t entangle gov’t w/ religion 2002 Zelman v Simmons-Harris upheld program where some families in Cleveland, OH can use state issued vouchers to pay tuition at religious schools

Conservative Religous Groups and Their Influence • Issue is school prayer and creation science • lost some battles (no creation science in public schools) they have won others - religous scenes can be set up on public property • No school sponsored prayer at graduation • No school sponsored prayer at football games

Free Exercise of Religion Guarantee of free exercise is more complicated than it seems. The free exercise of religous beliefs often clash with society’s other values. http://upress.kent.edu/books/images/covers/o_r/Odell_Scott-mr.jpg

Free Exercise of Religion Amish refused to send their children to public schools. SC consitently maintains that people have an absolute right to believewhat they want, but the courts have been more cautious about the right to practice a belief. But - in Wisconsin v Yoder, 1972, the Court did allow Amish parents to take their children out of school after 8th grade.

Freedom of Expression http://www.whereistheoutrage.net/wordpress/wp-content/uploads/2007/09/bong-hits-4-jesus.jpg

Freedom of Expression • Courts have wrestled with question of whether freedom of expression (like freedom of conscience) is absolute. • Courts have ruled there are cases where speech needs to be controlled, especially when the First Amendment conflicts with other rights. • Attempting to draw line between permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order, national securtiy, and the right to a fair trail.

Freedom of Expression • What activities actually consistute speech (or press) within the meaning of the First Amendment? http://seeker401.files.wordpress.com/2009/05/exercise-free-speech-strengthen-1st-amendment.jpg

Freedom of Expression • Certain forms of nonverbal communication (picketting for example) are considered symbolic speech and are protected under the First Amendment • Other forms are considered action and are not protected. http://seeker401.files.wordpress.com/2009/05/exercise-free-speech-strengthen-1st-amendment.jpg

Freedom of Expression • Certain forms of speech are considered action and are not protected. • SC generally has struck down prior restraint (censorship that prevents publication) although the writer or speaker could be punished for violating a law or someone’s rights after publication http://seeker401.files.wordpress.com/2009/05/exercise-free-speech-strengthen-1st-amendment.jpg

Freedom of Expression • Near v Minnesota 1931 • Facts of the Case: • Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. • Question: • Does the Minnesota "gag law" violate the free press provision of the First Amendment? • Conclusion: • The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. Think Nixon and Pentagon Papers The Oyez Project, Near v. Minnesota ex rel. Olson , 283 U.S. 697 (1931) available at: (http://oyez.org/cases/1901-1939/1929/1929_91) (last visited Sunday, October 18, 2009).

Freedom of Expression • Crises such as war often bring gov’t efforts to censor. • Schenck v United States 1919 • Facts of the Case: • During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. • Question: • Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? • Conclusion: • Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished. Think Joseph McCarthy’s Red Scare of the 1950s The Oyez Project, Schenck v. United States , 249 U.S. 47 (1919) available at: (http://oyez.org/cases/1901-1939/1918/1918_437) (last visited Sunday, October 18, 2009).

Freedom of Expression • Morse v Frederick 2007 • Facts of the Case: • At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. • The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful.

Freedom of Expression • Morse v Frederick 2007 • Question: • 1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? • 2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event? • Conclusion: • Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. • The Oyez Project, Morse v. Frederick , 551 U.S. ___ (2007) • available at: (http://oyez.org/cases/2000-2009/2006/2006_06_278) • (last visited Sunday, October 18, 2009).

Freedom of Expression • Morse v Frederick 2007 • Judges ruled that it wasn’t Tinker v Des Moines that governed free speech but rather • Bethel School District v Fraser 1986 http://ebooks-imgs.connect.com/product/400/000/000/000/000/107/448/400000000000000107448_s4.jpg

Freedom of Expression • Bethel School District v Fraser 1986 • On April 26, 1983, Matthew Fraser, a Spanaway, Washington, high school senior, gave a speech nominating classmate Jeff Kuhlman for Associated Student BodyVice President. The speech was filled with sexual innuendos, but not obscenity, prompting disciplinary action from the administration. • Fraser's speech was as follows: • "I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he'll never cum between us and the best our school can be." [Long pause after the word "come" on oral delivery, but no comma in the written version, according to Matthew N Fraser] • After appealing through the grievance procedures of his school, he was still found to be in violation of a school policy against disruptive behavior http://ebooks-imgs.connect.com/product/400/000/000/000/000/107/448/400000000000000107448_s4.jpg

Freedom of Expression • Bethel School District v Fraser 1986 • The US Supreme Court reversed the Court of Appeals in 7-2 vote to uphold the suspension, saying that the school district's policy did not violate the First Amendment. • Though the Court distinguished its 1969 decision Tinker v. Des Moines, which upheld the right for students to express themselves where their words are nondisruptive and could not be seen as connected with the school, the ruling in Fraser can be seen as a limitation on the scope of that ruling, prohibiting certain styles of expression that are sexually vulgar. http://ebooks-imgs.connect.com/product/400/000/000/000/000/107/448/400000000000000107448_s4.jpg

Freedom of Speech and Conflicts with Other Freedoms • Right to fair trial but trail may not be fair if pretrial press coverage makes it impossible to select an impartial jury. • Journalists seek freedom to cover all trials but they defend their own right to keep some of their files secret and protect their sources • Zurcher v Stanford Daily 1978 - SC disagreed with this claim

Freedom of Speech and Conflicts with Other Freedoms • Zurcher v Stanford Daily 1978 - SC disagreed with this claim • Facts of the Case: • In 1971, officers of the Palo Alto, California, Police Department obtained a warrant to search the main office of The Stanford Daily, the student newspaper at the university. It was believed that The Stanford Daily had pictures of a violent clash between a group of protesters and the police; the pictures were needed to identify the assailants. The officers searched The Daily's photographic laboratories, filing cabinets, desks, and waste paper baskets, but no materials were removed from the office. This case was decided together with Bergna v. Stanford Daily, involving the district attorney and a deputy district attorney who participated in the obtaining of the search warrant. • Question: • Did the search of The Daily's newsroom violate the First and Fourth Amendments? • Conclusion: • In a 5-to-3 decision, the Court held that the "third party" search of the newsroom did not violate the Fourth Amendment. The Court held that such searches, accompanied by warrants, were legitimate when it had been "satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises." The Court also found that the Framers of the Constitution "did not forbid warrants where the press was involved. The Oyez Project, Zurcher v. The Stanford Daily , 436 U.S. 547 (1978) available at: (http://oyez.org/cases/1970-1979/1977/1977_76_1484) (last visited Sunday, October 18, 2009).

Defining Obscenity and Freedom of Speech filipspagnoli.wordpress.com/.../

Defining Obscenity and Freedom of Speech SC says, “Obscenity is not within the area of constitutionality protected speech and press” still it has been difficult to define

Defining Obscenity and Freedom of Speech Roth v United States 1957 Facts of the Case: Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? Conclusion: In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973). The Oyez Project, Roth v. United States , 354 U.S. 476 (1957) available at: (http://oyez.org/cases/1950-1959/1956/1956_582) (last visited Sunday, October 18, 2009)

Defining Obscenity and Freedom of Speech Miller v California 1973 Chief Justice Warren Burger wrote that materials were obscene if, taken as a whole, they appealed “to a prudient interest in sex” showed “patently offensive” sexual conduct that was specifically defined by an obscenity law, and taken as a whole, laced “serious literary, artistic, political, or scientific value” But what now? Internet?

Congressional Legislation • 1996 Communications Decency Act • banning obscene material and criminalizing the transmission of indecent speech or images to anyone under 18 • Makes no exception for material that has serious literary, artistic, political, or scientific merit as in Miller v California • 1997 SC overturned this law as being overly broad/vague • 2002 SC overturned a law bannign virtual child pornography on similar grounds Supreme Court sees Internet as similar to print media with same protections....

Libel and Slander • What about libel and slander and freedom of expression? • Competing values http://www.canadianlawsite.ca/images/slander.jpg

Libel and Slander Private persons only need to show that statements about them were defamatory falsehoods and that the author was negligent

Libel. Slander. Freedom of Expression Textbook points out that libel is a freedom of expression that involves competing values. If public debate is not free there can be not democracy; but with free public debate, some reputations will be unfairly damaged. Consider the way courts distinguish b/w public persons and private persons - Is it fair (or appropriate) to use this distinction. Would the public lose its ability to evaluate candidates for public office if candidates could sue for libel or slander as readily as persons who are not in the public eye? What rights of privacy should public figures maintain?

Libel. Slander. Freedom of Expression New York v Sullivan 1964 Facts of the Case: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Conclusion: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed. The Oyez Project, New York Times v. Sullivan , 376 U.S. 254 (1964) available at: (http://oyez.org/cases/1960-1969/1963/1963_39) (last visited Sunday, October 18, 2009).

The right to criticize the gov’t (which the SC termed “the central meaning of the First Amendment”) is not libel or slander 1984, Gen Westmoreland dropped his suit against CBS in return for mild apology; he realized that it would be impossible to prove that the network had been intentionally malicious even though he was able to show that CBS had knowingly made factual errors

Flag Burning. Freedom of Expression http://www.eatonvillenews.net/images/Bob/AMERICAN%20LEGION%20FLAG%20BURNING%20FLAGS%20IN%20FLAME%20%28OP%202%29%20JUNE%2014,%202005%20040.jpg

Flag Burning. Freedom of Expression Texas v Johnson 1989 Facts of the Case: In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Conclusion: In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Oyez Project, Texas v. Johnson , 491 U.S. 397 (1989) available at: (http://oyez.org/cases/1980-1989/1988/1988_88_155) (last visited Sunday, October 18, 2009).

Commercial Speech

Commercial Speech http://images.intomobile.com/wp-content/uploads/2009/04/howard-stern.jpg

Commercial Speech Commercial Speech like ads are more restricted. Radio and TV restricted more than print media Federal Trade Commission (FTC) attempts to ensure there are no false claims Federal Communications Commission (FCC) regulates content, nature, and very existence of radio and tv- they, unlike newspapers, need licenses to operate http://usefularts.us/wp-content/uploads/2008/12/lifestyle_lift.jpg

Commercial Speech Miami Herald Publish. Co v Tornillo 1974 Florida passed a law requiring newspaper to provide space for candidates to reply to newspaper criticisms. SC, without hesitation, voided this law Red Lion Broadcasting Co. v FCC 1969 SC it’s ok to say radio and tv have to allow space for rebuttal by politicians (b/c there are only limited number of radio and tv stations)

Freedom of Assembly http://www.elcivics.com/images/rights-freedom-of-assembly.jpg

Freedom of Assembly Two points to freedom of assembly: 1) right to assemble 2) right to associate http://www.elcivics.com/images/rights-freedom-of-assembly.jpg SC generally upheld right of any group to peacefully assemble on public property http://www.nickryan.net/images/kkk.jpg

Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

Defendent Rights Most of Bill of Rights concerns rights of people accussed of crimes Originally meant more for political arrests and trials but now.... 4th, 5th, 6th, 8th Amendments are used in criminal cases. Don’t forget incorporation.... http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

Defendent Rights 4th- forbides unreasonable search and seizures No court can issue a search warrent unless probable cause exists to believe a crime has occurred or is about to occur Warrents have to describe area to be searched and material sought in the search Since 1914 exclusionary rule prevents illegally seized evidence from being introduced in the courtroom. http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

Defendent Rights 4th- forbides unreasonable search and seizures 1961 Mapp v Ohio Facts of the Case: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) Conclusion: The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

Defendent Rights 4th- forbides unreasonable search and seizures (Warren) Burger Court made exceptions to the exclusionary rule http://upload.wikimedia.org/wikipedia/commons/8/83/US_Chief_Justice_Warren_Burger_-_1971_official_portrait.jpg http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

Defendent Rights Good faith exception United States v Leon 1984 Facts of the Case: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause? Conclusion: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity. http://upload.wikimedia.org/wikipedia/commons/8/83/US_Chief_Justice_Warren_Burger_-_1971_official_portrait.jpg http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

Civil Liberites and Public Policy