Civil Liberties Chapter 19 The Unalienable Rights Commitment

Civil Liberties Chapter 19

The Unalienable Rights Commitment to Freedom • Civil Liberties – protections against government • Civil Rights – positive acts of government •

Limited Government • What separates democratic governments from dictatorial ones? • • The EXTENT of the authority of the government Rights… • Are they absolute or relative?

Clash of the rights…. When the rights of two collide, who wins? • Sam Sheppard • • Free press v. right to a fair trial

Who has guaranteed rights? • The Constitution applies to all persons in most cases • There are instances where rights can be restricted for aliens • Travel is an example of restrictions

How does Federalism fit into the picture? • Federalism • can make for a complicated process States are not restricted by the Bill of Rights • • They are restricted by their own bill of rights in the state constitution However, the 14 th. Amendment, also forbids states to “deny and right that is basic or essential to the American concept of ordered liberty. ”

The devil is in the details or the definition… • What is a basic or essential liberty • • 14 thamendment houses the Due Process Clause Court has tied all protections in the Bill of Rights to the Due Process Clause • • Gitlowv. New York: communist advocating governmental overthrow 9 th. Amendment also protects those rights not expressly stated.

Freedom of Religion • Alexis • De Tocqueville Called the churches of America the genius and power of the country. • Freedom • of Expression Free trade of ideas

Establishment Clause • Prohibits the establishment of religion • Prohibits any arbitrary interference by government in the free exercise of religion

Separation of Church and State • The Establishment Clause • Thomas Jefferson’s Wall of Church and State • • • Where does this come from? Where did the wall originate Primary Document Thomas Jefferson’s Letter

• 1 st. Establishment Clause case 1947 • 1 stto look at the wall of separation • Pierce v. Society of Sisters (1925) • Oregon attendance law held unconstitutional. • Allowed parents to send their children to either public or parochial schools.

• • Everson 1947 First to look at Establishment Clause Court upheld public, tax-supported busing of students attending any school. Released Time: • Mc. Collum v. Board of Education 1948 • • Struck down program due to public facilities Zorach V. Clauson 1952 • Upheld a program because it did not use public facilities

Prayers and the Bible • Engel v. Vitale • • Abington School District v. Schempp • • Struck down the Penn. Law requiring each day start with a Bible recitation and the Lord’s Prayer Murray v. Curlett • • Outlawed the use of prayer written by the New York Board of Regents Government must maintain neutrality – neither aiding or opposing religion. Also: Ten Commandments in classroom Offering of prayer at graduation moment of silence law student led prayer at HS football game

Prayer and Bible readings Outlawed? • • Prayer cannot be required or even suggested by schools But, individuals can pray as they choose Bible reading cannot be required or students subjected to it outside of educational context. But, individuals can read the Bible as they choose.

Student Religious Groups/Evolution • • Student religious groups are to be treated as any other student group 2001 Good News Club v. Milford Central School • • • School board refused to allow a group of elementary children to meet after school. Court ruled the children’s 1 stand 14 thamendments had been violated. Epperson v. Arkansas • • struck down altering curriculum for religious purposes. “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and non-religion. ”

• At the following Term of Court, in Mc. Collum v. Board of Education, 333 U. S. 203 (1948), the Court held that Illinois could not release pupils from class to attend classes of instruction in the school buildings in the religion of their choice. This, it said, would involve the State in using taxsupported property for religious purposes, thereby breaching the "wall of separation" which, according to Jefferson, the First Amendment was intended to erect between church and state. Id. , at 211. See also Engel v. Vitale, 370 U. S. 421 (1962); Abington School District v. Schempp, 374 U. S. 203 (1963). While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment's prohibition, the State may not adopt programs or practices in its public schools or colleges which "aid or oppose" any religion. Id. , at 225. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition [107] of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn, Inc. v. Wilson, "the state has no legitimate interest in protecting any or all religions from views distasteful to them. . " 343 U. S. 495, 505 (1952). The test was stated as follows in Abington School District v. Schempp, supra, at 222: "What are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion the enactment exceeds the scope of legislative power as circumscribed by the Constitution. "

Lemon Test • • • 1. The purpose of the aid must be purely secular 2. It’s primary effect must neither advance nor inhibit religion 3. It must avoid “excessive entanglement of government with religion. ”

Seasonal displays, Chaplains and Free Exercise • • • Court has upheld seasonal displays Upheld Chaplains – adults differ from children Free Exercise Clause does not give the right to violate the law: • • • Use of venomous snakes Polygamy Businesses be closed on Sunday Parade permit requirements Can: • • Allow Amish children to attend to only 8 thgrade Require a licenceto solicit religious funds.

Freedom of Speech and Press • Free Exchange of ideas • 1. Guarantee each person a right of free expression in spoken and written word 2. Guarantee all persons a full, wide-ranging discussion of public affairs. • Important restrictions: • • • Libel Slander Seditious Speech Sedition Act of 1917 • • • Espionage Act of 1917 Schneckv. United States: Justice Oliver Wendell Holmes: Clear and Present Danger Rule Smith Act of 1940

Obscenity, Prior Restraint • Obscenity Test: • • The average person finds that it appeals to or excites lust Describes in an offensive way sexual conduct Lacks serious literary value Prior Restraint • • Ideas cannot be curbed before they are expressed. Exceptions: • • • Political materials on a military base CIA agents cannot publish materials without permission Federal prison rule that prohibits materials that are “detrimental to the security; good order or discipline of the prison”

Media • • • Journalists are not exempt testifying State proceedings may be exempt Motion Pictures • • Initially allowed restrictions but reversed itself in Burstyn v. Wilson Radio and Television • • Has ruled that the FCC may take action after a broadcast Has ruled that explicit shows do not have to restricted to a certain time of day • United States v. Playboy Entertainment Group

Symbolic Speech • Picketing • • • Must be non violent Cannot encourage illegal behavior Other forms • Burning Draft Cards • • Object was within Constitutional Powers of government Restrictions are no greater than necessary Real interest is not to squelch dissent Flag Burning • • Texas v. Johnson US v. Eichman Burning allowed as an expression of political idea

Commercial Speech 1970 Congress banned cigarette ads on radio and television • 1986 it banned chewing tobacco and snuff. •