Your Civil Liberties

1. Your Civil Liberties a.k.a. The Bill of Rights

2. The Bill of Rights • Many of the Founders opposed a Bill of Rights because limits had already been established on the government • The Federalists promised to pass a Bill of Rights if the Constitution was ratified • The House adopted 17, the Senate 12 and the states ratified 10 by 1791

3. A Constitutional 10 Commandments • The Bill of Rights is a list of “thou shalt not” against the government • “Congress shall make no” • “shall not be infringed” • The Bill of Rights applies primarily to the federal government until passage of the 14th Amendment • Each clause of the Bill of Rights is open to interpretation and the final interpreter is the Supreme Court

4. 14th Amendment : All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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. • 14th Amendment gives former slaves (and any other person) citizenship • Most importantly it says that “no state” can deprive anyone of their rights, establishing the incorporation doctrine

5. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; • Colonial history of the United States based on religious freedom, a fact expressed in Article VI of the Constitution • Clauses designed to prevent government interference in and establishment of religion • Jefferson’s “wall of separation”

6. Jefferson’s letter to Danbury Baptists 1802 • Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and state.

7. Establishment clause • Engel v. Vitale (1962) • Supreme Court rules school sponsored prayer in schools is unconstitutional– “…religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate…governmentally established religions and religious persecutions go hand in hand” • Abington v. Schempp (1963) • Court rules school sponsored bible readings are unconstitutional

8. Establishment clause cont'd • Lemon v. Kurtzman (1971)-government aid to religious schools must meet 3 criteria (the Lemon test) • It must have a secular purpose • It must neither advance nor inhibit religion • Create no entanglement of government with religion • Epperson v. Arkansas (1968)-the teaching of evolution in schools • Pledge of Allegiance • Lee v. Weisman (1992)-school sponsored graduation prayer

9. Free exercise clause Jackson derided symbols as a “primitive but effective way of communicating ideas,” and chided that “a person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.” • West Virginia v. Barnette (1943) • Court upheld the right of Jehovah Witness students to not say the pledge because it violated their religion • “If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Justice Jackson

10. Barnette continued • “Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings….We can have intellectual individualism and the rich cultural diversity that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

11. Compelling governmental interest • Free exercise can be restricted if the government can show an interest in doing so such as polygamy in Reynolds v. United States (1878) • Religious duty does not exempt people from following the law • In Employment Division of Oregon v. Smith (1990) the Court ruled against Smith who was fired for using peyote at a religious ceremony • The Court said an individual’s religious beliefs does not excuse them from an otherwise valid law prohibiting such activity • In 2003 Congress passed the Religious Freedom Restoration Act (2003) creating a strict scrutiny test before the government can ban such activity • Wisconsin v. Yoder (1972)-Amish parents allowed to keep their children out of school past the 8th grade because it violated their free exercise rights • Gonzales v. O Centro EspiritaBeneficienteUnaio do Vegetal (2006) the Court rules that it is Ok for members to take a hallucinogenic tea

12. or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. • Freedom of Expression v. Competing Government Interest • Freedom of speech “is the heart of our government”—Justice Hugo Black • But, “a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” Justice Edmund Sanford • “The principle of free thought-not free thought for those who agree with us but freedom for the thought we hate.” Justice Oliver Wendell Holmes • “The freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Justice Louis Brandeis

13. Absolutely protected speech • Political speech • Schenck v. US (1919)-Schenck presented a “clear and present” danger to national security by opposing the draft; Oliver Wendell Holmes explained that speech is not an absolute right so that “a man can falsely shout fire in a theatre” • Gitlow v. New York (1925)-incorporates 1st amendment to states • “It is said that this manifesto was more than a theory, that is was an incitement. Every idea is an incitement.”—Gitlow was not a threat to American society-Holmes dissent

14. Development of free speech through dissents • Abrams v.US(1919) • Holmes dissent • Imminent action • Whitney v. California(1927) • Brandeis dissent • US v. Schwimmer (1929) • Holmes dissent (at 88) • Brandenburg v. Ohio (1969)-government can limit speech if there is “immediate lawless action” • US v. Obrien (1968)-upheld conviction of man burning draft card

15. Absolutely protected speech • Symbolic speech • Tinker v. Des Moines (1969)-Court upholds right to symbolic speech and student rights by declaring that students do not shed their rights at the schoolhouse gate as long as it does not interfere with the educational process • Texas v. Johnson (1989)-Court defends the right to burn an American flag; "If 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.“ Justice William Brennan • Buckley v. Valeo (1976)-Court upholds campaign contributions as a form of symbolic speech

16. Recent decisions Snyder v. Phelps 2011 • Issue: Does the First Amendment Freedom of Speech protect those wishing to protest at a private funeral service? • 8-1 Decision in favor of Westboro Baptist Church • “Speech is powerful,” Chief Justice Roberts wrote for the majority. “It can stir people to action, move them to tears of both joy and sorry, and--as it did here--inflict great pain.” But under the First Amendment, he continued, “we cannot react to that pain by punishing the speaker.” • Roberts continued, “Debate on public issues should be robust, uninhibited and wide-open because speech on public issues occupies the highest rung of the hierarchy of First Amendment values.” • Justice Alito, the lone dissenter, wrote a passionate dissent which began, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” and, “When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.”

17. Recent decisions • United States v. Alvarez (2012) • Alvarez was charged under the federal Stolen Valor Act of 2006 which made it a crime for anyone to falsely claim orally or in writing to have been awarded any military decoration, which he had. • Alvarez challenged the act as violating his freedom of speech because no one was actually harmed by the false claims • In a 6-3 decision, the Court agreed the act was “overly broad” and a threat to first amendment freedoms. • Justice Kennedy, who wrote the majority decision, did suggest one way to protect the government and not restrict 1st Amendment freedoms was by creating a public database of award winners.

18. Absolutely protected speech • Press • Near v. Minnesota (1931)-the Court rules against prior restraint, or the government’s attempt to prevent certain information from being published; this case concerned an editorial that criticized public officials • New York Times v. US (1971)-the Court rules against the government when they tried to prevent the publication of the Pentagon Papers, documents critical of American involvement in Vietnam and would damage national security

19. Conditionally protected speech • Libel and slander-statements made with a “reckless disregard of the truth” • New York Times v. Sullivan (1964)-the Court rules against Sullivan and says in order for a story to be libel it must be untrue and be a result of “actual malice” and have a “reckless disregard” for the truth which is very difficult to prove • Obscenity and pornography- “I’ll know it when I see it” • Roth v. US (1957)- “utterly without redeeming social importance” • Miller v. California (1973)- 3 part test created to apply “contemporary community standards” to determine if something is obscene • Reno v. ACLU (1997) – a 7-2 Court rules that a law making it a crime to make indecent material available to children on the Internet violated the 1st Amendment

20. Conditionally protected speech • Fighting Words-language that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire (1942) • Student speech- • Hazelwood School District v. Kuhlmeier (1988) – school can restrict speech when it goes against the purpose of school; citing the Tinker case the Court ruled that schools can’t limit its speech, but doesn’t have to promote it • Bethel v. Fraser (1986) – not unconstitutional to restrict a students student council speech • Morse v. Frederick (2007) – Bong Hits 4 Jesus, Court rules that principal in the right to suspend the student for what he termed a nonsensical phrase but was believed to be a message about drug use during a school event

21. Conditionally protected speech • Association/assembly-Courts accept reasonable time, place, manner restrictions on assembly • Skokie case • Boy Scouts v. Dale (2000)

22. 2nd Amendment: right to bear arms • Individual right or collective right • 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. • District of Columbia v Heller (2008)-the Court establishes the right of an individual to own a gun, but that does not mean the state can’t regulate who shall own them and places to have them, and what he can’t own

23. 2nd Amendment continued • Scalia wrote for the Court: “Undoubtedly some think the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. • Justice Stevens warned that the ruling would launch new judicial involvement in an issue he said should be left to legislators. “I fear the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.”