Culture and Civil Liberties Rights in Conflict Pages

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • “Freedom of speech versus the preservation of public Order. ” (Wilson & Dilulio, Jr. , 99) – Example: Carl Jacob Kunz delivered inflammatory anti. Jewish speeches on street corners in Jewish neighborhoods saying that, “Jews should be, … , burnt in incinerators. ” The New York Police Commissioner took Kunz’s License to hold public meetings on streets; he was later arrested for speaking without a permit (99).

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • Interest Group Politics: Fraternal Order of Police (FOP) complains about restrictions on police powers – The American Civil Liberties Union (ACLU) defends and seeks to enlarge Police Power Restrictions

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • Clashes of Civil Liberties often go to court. (ACLU v. FOP) – Example: Supreme Court decided that Kunz’s (speaking negatively about Jews) civil liberties were violated when the Police arrested him on the corner for speaking without a permit even though violence may occur as a result of his speaking.

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • Sometimes the Government limits our Civil Liberties • Example: Sedition Act (1798) made it a crime to write, utter, or publish, “any false, scandalous, and malicious writing…” with the intention of defaming the president, Congress, or the government or of exciting against the government “the hatred of the people. ” – WHY: war with France

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • Sometimes the Government limits our Civil Liberties: – Example: The Espoinage and Sedition Acts (1917 -1918): made it a crime to utter false statements that would interfere with the American military; to send thorough the mail materials: “advocating or urging treason, insurrection, or forcible resistance to any law of the United States, ” or to utter or write any disloyal, profane, scurrilous or abusive language intended to incite resistance to the United States or to curtail war production. » Occasion was World War I – fear that there were Germans in the Country that were spies and that they were radicals thinking of overthrowing the government.

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • Sometimes the Government limits our Civil Liberties: – THE SMITH ACT (1940): illegal to advocate the overthrow of the US Government by force or violence – INTERNAL SECURITY ACT (1950): required members of the Communist Party to register with the government. – COMMUNIST CONTROL ACT (1954): declared the Communist Party to be part of conspiracy to overthrow the government – Senator Joseph Mc. Carthy held trials to find it people were Communist or not

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • CULTURE CONFLICTS (100 -102) – Ethnic, religious and cultural differences have given rise to different view as to the meaning and scope of certain constitutionally protected freedoms

• Culture and Civil Liberties: – Rights in Conflict: Pages: 99 -102 • CULTURE CONFLICTS (100 -102) – Example: Boy Scouts of America refuse to allow homosexual men to be scout leaders even though federal law says that homosexuals may not be victims of discrimination » BUT, Boy Scouts of America say that they are a private association free to make its own rules – The Supreme Court Agreed in 2000

• Culture and Civil Liberties – Applying the Bill of Rights to the States (102) • At first, the Bill of Rights applied to the federal government ONLY • But, things changed after the Civil War when more amendments were added to apply to the federal and state governments (13 th Amendment made slavery illegal • 14 th Amendment: No state shall: “deny any person of life, liberty, or property without due process of law – DUE PROCESS CLAUSE and that no state shall “deny to any person within its jurisdiction the Equal Protection of the Laws” - EQUAL PROTECTION CLAUSE

• Culture and Civil Liberties – Applying the Bill of Rights to the States (102) • 1897, The Supreme Court started to use these two phrases, Equal Protection Clause & Due Process Clause, as a way of applying certain rights to state governments – Gitlow v. NY (1925)…federal guarantees of free speech and free press also applies to the states – Palko v. Connecticut (1937): certain rights should be applied to the states because, in the Court’s words, they “represented the very essence of a scheme of ordered liberty” and were “principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental” (102)

• Culture and Civil Liberties – Applying the Bill of Rights to the States (102) • Selective Incorporation: The Supreme Court began the process of selective incorporation by which some, but not all, federal rights also applied to the states – In general the entire Bill of Rights is now applied to the states except for the following: » 2 nd Amendment: right to bear arms » 3 rd Amendment: the right no to have soldiers forcibly quartered in private homes » 5 th Amendment: The right to be indicted by a grand jury before being tried for a serious crime » 7 th Amendment: the right to a jury trial in civil cases » 8 th Amendment: the ban on excessive bail and fines

• Interpreting and Applying the First Amendment (102105) – 1 st Amendment has two parts • ONE: Freedom of Expression: “Congress shall make no law…abridging the freedom of speech, or of the press, or the right for people peaceably to assemble, and to petition the government for a redress of grievances • TWO: Freedom of Religion: Congress shall make no law respecting an establishment of religion; or abridging the free-exercise thereof

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102105) – William Blackstone, the great English jurist, said that a free press is essential to a free state, he wrote, but the freedom that the press should enjoy is the freedom from PRIOR RESTRAINT: that is, freedom from censorship, or rules telling a newspaper in advance what it can publish • Once something is published you must deal with the consequences of what you said or wrote if it proves to be “improper, mischievous, or illegal. ”

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102 -105) – US Sedition Act of 1798: imposed NO prior restraint on publishers; it did however, make them liable to punishment after the fact. This was an improvement because it entrusted the decision to a jury, not a judge, and allowed the defendant to be acquitted if he or she could prove truth of what had been said or published. • Thomas Jefferson pardoned anyone who had been convicted under the Sedition Act – Federal government should not be involved but leave it to the states

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102105) – Espionage Act (1917 -1918) Congress placed restrictions not on publications that were critical of the government but only those that advocated “treason, insurrection, or forcible resistance” to federal laws or attempted to foment disloyalty or mutiny in the armed services

• • Interpreting and Applying the First Amendment (102 -105) Speech and National Security: (102 -105) – In 1919 the Espionage and Act of 1917 -1918 was examined by the Supreme Court when it heard the case of Charles T. Schenck who was convicted of violating the Espionage Act because he had mailed circulars to men eligible for the draft to urge them to resist it. • For a Unanimous Supreme Court, Justice Oliver Wendell Holmes announced a rule by which to settle the matter – CLEAR-AND-PRESENT-DANGER TEST: – “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. ” » The Court held that Schenck’s leaflets did create such a danger, and so his conviction was upheld – BECAUSE THERE WAS A WAR GOING ON

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102 -105) • CLEAR-AND-PRESENT-DANGER TEST: – 1925, Benjamin Gitlow, Gitlow v. New York, was convicted of violating New York’s sedition laws – by passing out leaflets – The Supreme Court upheld his conviction but added, as we have seen, a statement that changed constitutional history: freedom of speech and of the press were now among the “fundamental personal rights” protected by the due-process clause of the 14 th Amendment from infringements by state action • State laws involving speech, the press, and peaceful assembly were struck down by the Supreme Court for being in violation of the freedom-of-expression guarantees of the 1 st Amendment, made applicable to the states by the 14 th Amendment

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102 -105) • CLEAR-AND-PRESENT-DANGER TEST: – The Clear-and-Present Danger Test was a way of balancing the competing demands of free expression and national security • Supreme Court has shifted the balance toward free expression, but during war the Court defers to legislative judgments about the need to protect National Security. • BOX ON PAGE 107 -standards to test if a restriction on freedom of expression is constitutionally permissible

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102 -105) • CLEAR-AND-PRESENT-DANGER TEST: – the Court defers to legislative judgments about the need to protect National Security • Example: Supreme Court upheld a conviction of eleven leaders of the Communist Party for having advocated the violent overthrow of the US Government a violation of the Smith Act of 1940

• Interpreting and Applying the First Amendment (102 -105) • Speech and National Security: (102 -105) • CLEAR-AND-PRESENT-DANGER TEST: – Not clear and Present Danger • Example: Klux Klan leader Clarence Brandenburg in Ohio, staged a cross-burning rally during which he reviled blacks and Jews. He was convicted of attempt to incite lawless mob action. The Supreme Court overturned the conviction, holding that any speech that does not call for illegal action is protected, and even if speech that does call for illegal action is protected if the action is not “imminent” or there is reason to believe that the listeners will not take action.

Civil Liberties • What is Speech? – Though the Constitution says that the legislature may make “no law” abridging freedom of speech or the press – the Court has held that at least FOUR forms of speaking and writing that are NOT automatically granted full Constitutional Protection 1. Libel (slander) 2. Obscenity 3. Symbolic Speech 4. False Advertising

• What is Speech? 1. Libel: is a written statement that defames character (If the statement is oral, it is called slander) – You must show that the libelous statement was false – If you are a public figure it is much harder to win a libel suit

• What is Speech? • Libel: (continued) – A public official such as an elected official, an army general, or a well-known celebrity must prove not only that the publication was false and damaging but also that the words were published with “actual malice” – THAT IS, WITH RECKLESS DISREGARD FOR THEIR TRUTH OR FALSITY OR WITH KNOWLEDGE THAT THEY WERE FALSE

• What is Speech? 2. Obscenity: is not protected by the 1 st Amendment – The Court has always upheld that obscene materials, because they have no redeeming social value and are calculated chiefly to appeal to one’s sexual rather that political or literary interests, can be regulated by the states – The Court has made it clear that nudity and sex are not, by definition, obscene and that they will provide 1 st Amendment protection to anything that has political, literary, or artistic merit, allowing the government to punish only the distribution of “hard-core pornography. ” – Most recent definition of OBSCENITY: to be obscene, the work, taken as a whole, must be judged by “the average person applying contemporary community standards, to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and to lack “serious literary, artistic, political, or scientific value. ” – The current view of the Supreme Court is that localities can decide for themselves whether to tolerate hard-core pornography; but if they choose not to, they must meet some fairly strict constitutional tests. – One constitutionally permissible way to limit the spread of pornographic materials has been to establish rules governing where in a city it can be sold. – With the Internet it has become harder for the government to regulate obscenity.

• What is Speech? 3. Symbolic Speech: An act that conveys a political message • You cannot ordinarily claim that an illegal act should be protected because that action is meant to convey a political message – Example: if you burn your draft card in protest against the foreign policy of the United States, you can be punished for the illegal act (burning the card) even if your intent was to communicate your beliefs. – The Court reasoned that giving symbolic speech the same protection as real speech would open the door to permitting all manner of illegal actions – murder, arson, rape – if the perpetrator meant thereby to send a message

• Symbolic Speech (continued) – On the other hand, a stature that makes it illegal to burn the American flag is an unconstitutional infringement of free speech. – Why is there a difference between a draft card and a flag? • Because, the Court argues that the government has a right to run a military draft and so can protect draft cards, even if this incidentally restricts speech • BUT the only motive that the government has in banning flag-burning is to restrict this form of speech, and that would make such a restriction improper

4. FALSE ADVERTISING – not protected by 1 st Amendment

• WHO IS PERSON? (108 -110) – If people have a right to speak and publish, do corporations, interest groups, and children have the same rights? • The Answer is YES, though there are some exceptions – Example: Massachusetts Attorney General tried to prevent the First National Bank of Boston from spending money to influence votes in a local election. The Court stepped in and blocked the Attorney General » The Court said that a corporation is like a person and has 1 st Amendment rights

• WHO IS PERSON? (108 -110) – When the Federal Government tried to limit the spending of a group called Massachusetts Citizens For Life (an anti-abortion organization) the Court held that such organizations have First Amendment Rights – COURT SAID: “the identity of the speaker is not decisive in determining whether speech is protected, ” said the Court. “Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster” • The right to speak includes the choice of what NOT TO SAY

• WHO IS PERSON? (108 -110) – Even though corporations have some 1 st Amendment rights, the government can place more limits on commercial than non-commercial speech • The legislature (Congress) can place restrictions on advertisements for cigarettes, liquor, and gambling; the legislature can even regulate advertising for less harmful products provided that the regulations are narrowly tailored and serve a substantial public interest – If regulations are too broad or don’t serve a clear interest, then adds are entitled to some constitutional protection » For Example: the States cannot bar lawyers from advertising or accountants from personally soliciting clients

• WHO IS PERSON? (108 -110) – Mc. Cain-Feingold Campaign Finance Reform Law – passed in 2002 • This law stated that ACLU, AFLCIO, and NRA could not pay for “electioneering communications” on radio or TV that “refer” to a candidate for federal office within 60 days of the election – In Mc. Connell v. Federal Election Commission, the Supreme Court said that ads that only mentioned but did not “expressly advocate” a candidate were ways of influencing the election » DISSENTERS SAY: “should give free speech to political speech”

• WHO IS PERSON? (108 -110) – Under Certain Circumstances young people may have less freedom of expression that adults • Example: in 1988, The Supreme Court held that the Principal of Hazelwood High School could sensor articles appearing in a student-edited newspaper – The newspaper was publishing using school funds and was part of a journalism class and the Principal ordered the deletion of stories dealing with student pregnancies and the impact of parental divorce on students » The students sued saying that their 1 st Amendment rights were violated » Students do not have exactly the same rights as adults if the exercise of those rights impedes the educational mission of the school » Students may lawfully say things on campus as individuals, that they cannot say if they are part of school-sponsored activities, such as plays, or school-run newspapers, that are part of the curriculum

• CHURCH & STATE (110 -113) – The 1 st Amendment does not require “separation of church and state” • The 1 st Amendment has TWO parts 1. Free-Exercise Clause: Congress shall make NO LAW prohibiting the “freeexercise” of religion 2. Establishment Clause: Congress shall make NO LAW “respecting an establishment of religion. ”

• 1. CHURCH & STATE (110 -113) The Free-Exercise Clause (110 -111) – If religion conflicts with State or Federal Law it is ILLEGAL • Example: If a State passes a compulsory vaccination law or orders that a blood transfusion be given to a sick child, the Courts will NOT block them on grounds of religious liberty • Example: If you are part of an Indian Tribe that uses the drug, peyote, for religious purposes and peyote is banned by the State the religion cannot do it • Example: If you are a Seventh-Day. Adventist member and you refuse to work on a Saturday because it is against your religion you can still get unemployment even if you were not fired

• CHURCH & STATE (110 -113) 1. The Free-Exercise Clause (110 -111) – The Free-Exercise Clause is the clearer of the two (establishment clause) but is still very unclear • Congress cannot pass a law prohibiting Catholics from celebrating Mass, requiring Baptists to become Episcopalians, or prevent Jews from holding bar mitzvah • The First Amendment has been applied to the States by the 14 th Amendment, it means that States cannot pass such laws (as the one above) either

• CHURCH & STATE (110 -113) 1. The Free-Exercise Clause (110 -111) – In general, the Courts have treated religion like speech; you can pretty much do or say what you want so long as it does not cause some serious harm to others • Example: a State cannot apply a license fee on door-to-door solicitors when the solicitor is a Jehovah’s Witness selling religious things • Example: The city of Hialeah, Florida, cannot ban animal sacrifices by members of a Afro-Caribbean Religion called Santeria – if it were, we couldn’t kill cows for food

• CHURCH & STATE: – ESTABLISHMENT CLAUSE: CLAUSE the 1 st Amendment prohibits (does not allow) Congress from making a law “respecting” an “establishment of religion. • The Supreme Court has more or less consistently interpreted the 1 st Amendment to mean that the Constitution erects a “wall of separation” (Thomas Jefferson) between church and state

• CHURCH & STATE: – ESTABLISHMENT CLAUSE: CLAUSE • Thomas Jefferson opposed to having the Church of England as the established church of his native Virginia. At the Time of the Revolutionary War there were established churches – that is, official, state-sponsored churches – in at least in the 8 of the 13 colonies • The federal government cannot create an official, national religion or give support to one religion in preference to another religion

• CHURCH & STATE: – ESTABLISHMENT CLAUSE • Since 1947 the Court has applied the “wall of separation” theory to strike down as unconstitutional every effort to have any form of prayer in public schools, even if it is nonsectarian, voluntary, or limited to reading passages of the Bible – The Court has held that laws prohibiting teaching the Theory of Evolution or requiring equal time to “creationism” (the biblical doctrine that God created mankind) are religiously inspired thus unconstitutional

• CHURCH & STATE: – ESTABLISHMENT CLAUSE: • It is permissible for the federal government to provide aid for construction buildings on denominational (as well as nondenominational) college campuses and for state government to loan free textbooks to parochial-school pupils, granting tax exempt status to parochial schools, allow parents of parochial school students to deduct their tuition payments on a state’s income tax return – Vouchers can be used to pay for children being educated at religious and other private schools (especially for the poor) – WHY? Supreme Court held that it did not violate the establishment clause because the aid went, NOT TO THE SCHOOL, BUT TO THE FAMILIES WHO WERE TO CHOOSE A SCHOOL

• CHURCH & STATE: – ESTABLISHMENT CLAUSE: CLAUSE – THREE PART TEST TO DECIDE UNDER WHAT CIRCUMSTANCES GOVERNMENT INVOLVEMENT IN RELIGIOUS ACTIVITIES IS IMPROPER: 1. If have a secular purpose 2. If its primary effect neither advances nor inhibits religion 3. It does not foster an excessive government entanglement with religion

• CHURCH & STATE: – ESTABLISHMENT CLAUSE: – CONFUSED? • Though the court has struck down prayer in public schools, it has upheld prayer in Congress (since 1789, the House and Senate open each session with prayer). A public school cannot have a chaplain, but the armed services can. The Court has said that the government cannot “advance” religion, but it has not objected to the printing of the phrase “In God We Trust” on the back of every dollar bill. • THE COURT IS DEEPLY DIVIDED – SOME WOULD SAY DEEPLY CONFUSES

• CRIME AND DUE PROCESS: (113121: – 1. 2. TWO ways to protect people against “unreasonable searches” in ways that do not unduly hinder criminal investigations? Let the police introduce in court evidence relevant to the guilt or innocence of a person, no matter how it was obtained and then, after the case is settled, punish the police officer if the evidence was gathered improperly (ENGLAND) Exclude improperly gathered evidence from the trial in the first place, even if it is relevant to determining the guilt or innocence of the accused (UNITED STATES)

• CRIME AND DUE PROCESS: (113 -121 • The Exclusionary Rule: evidence gathered in violation of the Constitution cannot be used in a trial – 4 th Amendment: the right to be free from unreasonable searches and seizures – 5 th Amendment: right not to be compelled to give evidence against oneself – Mapp v. Ohio – Supreme Court ruled evidence illegally gathered by the police may not be used in a criminal trial

• Crime and Due Process: – Search and Seizure: • When can the police search you without it being unreasonable? 1. If have a search warrant 2. Probable cause – reasonable cause for issuing a search warrant or making an arrest; more than mere suspicion

• Crime and Due Process: – Search and Seizure: – Can be searched when lawfully being arrested if: 1. Have a search warrant 2. Commit a crime in presence of a police officer 3. If officer has probable cause (usually a felony has been committed)

• Crime and Due Process: – Search and Seizure: – After the police arrest you they can: 1. Search you 2. Search for things in plain sight 3. Search for things or places under your immediate control – can search the room you are in but not all the rooms of your house

• Crime and Due Process: • Relaxing the Exclusionary Rule: – Good-Faith Exception: • If the police obtain a search warrant that they believe is valid, the evidence that they gather will not be excluded if it latter turns out that the warrant was defective for some reason

• • Crime and Due Process (113 -121) Terrorism and Civil Liberties: (119 -121) • questions – September 11, 2001, raised important about how far government can go in investigating and prosecuting individuals – Congress passed USA Patriot Act: • Telephone taps – the government may tap, if it has a court order, any telephone a suspect uses instead of having to get a separate court order for each telephone • Internet taps – with a court order the government can tap internet communications • Voice Mail – with court order government can seize voice mail • Grand Jury Information – access to private grand jury hearings • Immigration – the attorney general may hold any noncitizen who is thought to be a national security risk for up to seven days • Money Laundering – government gets to track the movement of money across US borders and among banks • Crime – the provision eliminates the statute of limitation on terrorist crimes and increase the penalties • TRIED IN MILITARY COURT