ESSENTIAL QUESTIONS

1. ESSENTIAL QUESTIONS Explain the difference between liberties and rights? What are our BoR protections? Why can they be limited? Explain Selective incorporation Explain compelling government interest in curtailing liberties Explain time-place-manner restriction on liberties What is the Wall of Separation? Why is the second amendment controversial now?

2. Chapter 7: Individual Liberties Essential Question: How do supreme court decisions on the first and second amendments and the relationship of those amendments to the fourteenth amendment reflect a commitment to individual liberties?

3. Civil Rights v. Civil Liberties

4. Civil Liberties Those personal freedoms protected from arbitrary governmental interference or deprivations.

5. Protections in the Bill of Rights From the Federal Government: First – speech, religion (no government establishment; free exercise) Second – right t0 bear arms Fourth – no unreasonable search & seizure Fifth – due process Sixth – right to counsel Eighth – no cruel & unusual punishment First, Third, Fourth, Fifth, & Ninth – “zones of privacy”

6. Public Interest • Personal liberties are protected by individuals and groups like the American Civil Liberties Union. • Civil Liberties are limited, though, when they impinge on the public interest: • Minors liberties are limited • Speech liberties are limited • Cannot incite danger, be obscene, or violate existing law • Bearing arms is limited

7. Selective Incorporation • How the Supreme Court has ruled in landmark cases that state laws must also adhere to selective Bill of Rights provisions through the Fourteenth Amendment’s due process clause: • Due Process – 5th Amendment guarantee of fair procedures when life, liberty, or property is being taken from individuals (but only applied to federal government) • 14th Amendment incorporated the 5th to the states. • It’s Due Process clause will be used to incorporate other amendments to the states.

8. Barron v Baltimore 1833 Barron not entitled to “just compensation” from Baltimore under 5th Amendment because:

9. Gitlow v New York 1925 Gitlow called for strikes and “class action. . . in any form” in his Left Wing Manifesto. Court finds violation of “public interest” and therefore not protected speech BUT, did put state on notice that First Amendment did apply to states through incorporation by the Fourteenth Amendment.

10. Rights NOT yet incorporated under the 14th Third – quartering troops in homes Fifth – right to grand jury in misdemeanor cases Seventh – right to jury trials in civil cases Eighth – protection against excessive bail? Timbs v. Indiana (No. 17-091)

11. Free Speech & Free Press • Government must prove a “compelling government interest” in order to infringe on personal liberties. • Government has no prerogative of prior restraint • NYT v. U.S. (1971) • Does NOT mean all expression at all times, though • Time place and manner restrictions are allowed

12. Schenck v US (1919) • “Clear and present danger” test: • 1917 Sedition and Espionage Act outlawed publications that criticized government, advocated treason or insurrection, or incited disloyal behavior in the military • Schenck distributed anti-draft leaflets • Court says can outlaw speech that represents a “clear and present danger” by inciting unlawful action (avoiding the draft) • Said context mattered – during war = no okay • Question of “proximity and degree”

13. Brandenburg v Ohio (1969) • Klansman accused of inciting lawlessness at a rally • Court says can be punished only if it is meant to incite or produce “imminent lawless action and is likely to … produce such action.” • Changed test from “clear and present danger”

14. Free Speech & the Cold War / Vietnam War Era • 1940 Smith Act – advocating the overthrow of U.S. government is a criminal act • Court separates advocating in the abstract versus calling for illegal action to cause an overthrow – first ok, second not • U.S. v. O’Brien (1968) • Burning draft card (symbolic free speech) was NOT protected • Protected congress’s authority to raise and support an army • Symbolic speech is not protected when otherwise illegal (Selective Service Act made burning draft card illegal)

15. Cohen v California (1971) • “One man’s vulgarity is another’s lyric.” • “F _ _ _ the Draft” on a jacket is protected speech. • In no way incited illegal action • Was not directed at one individual as a threat • Texas v. Johnson (1989) • Flag burning is protected symbolic speech • Government cannot impose a political idea – respect for flag

16. Time, place, and manner restrictions Cannot suppress the content of the message Can only regulate the accompanying conduct. 1) must be content-neutral 2) must serve a significant government interest 3) must be narrowly tailored 4) must be adequate alternative ways of expression

17. Tinker v Des Moines (1969) • Black armbands at school to protest Vietnam War • Court said protected symbolic speech • Did not interfere at all with school work or security DON’T TINKER WITH MY FREE SPEECH!

18. Bethel School District v Fraser (1986) Speech in school riddled with sexual innuendo is NOT protected speech Court said speech had no political value and was designed to entertain – students are not entitled to lewd or offensive speech

19. Morse v Frederick (2007) “BONG HITS FOR JESUS” sign on Olympic torch route (even though off school grounds, it was a school sponsored activity) is NOT protected speech Court said school could decide if ok, and here was reasonable to see sign as promoting illegal drug use

20. Roth v US (1957) • Obscenity • Comstock Act (1873) – banned circulation and importation of obscene materials through U.S. mail. • Roth prosecuted under Comstock Act • Court upheld conviction • Obscenity is “utterly without redeeming social importance” • Obscene speech = when the “average person, applying contemporary community standards” finds that it “appeals to the prurient interest” • 1964 case – Justice Potter Stewart” • “I know it when I see it”!

21. Miller v California (1973) • Miller sends out mass mailing promoting obscenity • Court says local judges should set obscenity law • Miller Test: • “average person applying contemporary community standards finds it appeals to the prurient interest • Depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law • Lacks serious literary, artistic, political, or scientific value

22. Libel • False statements in print that defame someone, hurting their reputation • Suing party must prove: • Damages • Offending party knowingly printed the falsehood • Did so maliciously with intent to defame • Public Officials have an even higher standard: • Must prove actual malice – reckless disregard for the truth

23. NY Times v Sullivan (1964) • False information in an ad in the NYT about a city commissioner • Court rules for NY Times • Uninhibited debate “may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials” • Even false statements must be protected “if the freedoms of expression are to have the ‘breathing space’ that they need… to survive.”

24. NY Times v US (1971) Executive branch cannot block the printing of reporter-obtained classified government information in an effort to protect national secrets without violating the First Amendment’s free press clause. Only ruled on newspaper’s right to print, not the right to leak the secrets (leaker was later indicted). NO prior restraint of the press allowed without meeting “heavy burden of showing justification for the imposition of such a restraint.”

25. Wall of separation Thomas Jefferson’s description of how religion should interact with government. 1802 – Jefferson assures Baptists in Danbury, CT, that the First Amendment builds a “wall of separation between church and state.” Supreme Court has constructed such a wall over the years

26. Establishment clause • “Congress shall make no law respecting an establishment of religion. . .” First Amendment • Meant to prevent federal government from establishing a national religion • Now means government cannot sanction, recognize, favor, or disregard any religion

27. Free exercise clause • “Congress shall make no law. . . Prohibiting the free exercise thereof (religion). . .” First Amendment • Prevents government from stopping religious practices so long as practices are not illegal or deeply oppose the interests of the community

28. US v Reynolds (1879) • Mormon practice of polygamy limited by Supreme Court • Said federal government could limit religious practices that impaired the public interest.

29. Everson v Board of Education (1947) • Supreme Court upholds state law reimbursing parents for costs of transportation to schools, both public and private. • No money to schools, but evenly distributed to parents of students from all schools • Transportation is a non-religious service • Said First Amendment applied to states through 14th Amendment

30. Engel v Vitale (1962)

31. School District of Abington Township v Schempp (1963)

32. Lemon v Kurtzman (1971)

33. Wisconsin v Yoder (1972) State compulsory attendance law for school to age 16 violated Amish’s free exercise of religious belief to keep their children home after 8th grade. Court said Amish had good reasons to keep children home and Amish are not a drain on society (which state claimed education prevented).

34. Vouchers Money given by states to parents who send their children to private schools. Upheld by Supreme Court because no distinction between religious or nonreligious private schools. Money goes to parents and not the schools. Parents pay taxes to support public schools, so public money to reimburse costs of private schools is warranted.

35. Moment of silence and the Constitution Any formal prayer in public schools and even a daily, routine moment of silence are violations of the establishment clause. Student-led prayer at official public school events violates the establishment clause. Public opinion does not agree, so still allowed in many schools.

36. 2nd Amendment What is the definition of a well regulated militia?

37. Gun Control Act of 1968

38. Brady Handgun Violence Prevention Act of 1993

39. District of Columbia v Heller (2008) 1976: D.C. bans all handguns except for law enforcement 2003: Heller sues for right to own gun for self-defense 2008: Supreme Court rules this law violates 2nd Amendment, but only applies to federal government, not states (did NOT incorporate 2nd Amendment to the states)

40. McDonald v Chicago (2010) Chicago requires all gun owners to register guns, but refuses to allow citizens to register handguns, creating an effective ban. McDonald challenges law – claims needs handgun for self-defense in crime ridden neighborhood. Supreme Court rules that law is unconstitutional violation of 2nd Amendment Applied the 2nd Amendment to the states (city of Chicago) through the 14th Amendment’s due process clause

41. Civil Rights & Liberties https://www.youtube.com/watch?v=kbwsF-A2sTg

42. Free Exercise Clause https://www.youtube.com/watch?v=Y8dI1GTWCk4&t=23s

43. ESSENTIAL QUESTIONS Explain the difference between liberties and rights? What are our BoR protections? Why can they be limited? Explain Selective incorporation Explain compelling government interest in curtailing liberties Explain time-place-manner restriction on liberties What is the Wall of Separation? Why is the second amendment controversial now?