BiLL of Rights

1. BiLL of Rights Amendment I Supplement

2. Amendment I Freedoms of: Religion, Speech, Press, Assembly & Petition • Congress shall make no law. . . • By specifically referring to Congress, the Bill of Rights limits only the national government or its agents, not private parties. • For example, freedom of speech does not protect employees of private companies who criticize their supervisors.

3. How about a record label from dropping a group because of their controversial remarks about a president? What do you think? • The Fourteenth Amendment bound the states to honor the Bill of Rights also.

4. respecting an establishment of religion, or prohibiting the free exercise thereof; • The Establishment Clause prohibits the government from creating an official or established church, preferring one religion over another, or benefitting believers instead of nonbelievers.

5. Of special interest: School Prayer • Engel v. Vitale (1962) Official prayer in public schools violates the Estb. Clause, even if students are not forced to participate. • Abington School District v. Schempp (1963) Pennsylvania law mandating each day opens with Lord’s Prayer and Bible readings overturned. • Schempp led SC to invoke the “primary effect” test: i.e., does the primary purpose of a law or practice have the effect of advancing or inhibiting religion and create an excessive entanglement between church and state?

6. Schempp also established that using the Bible as a historical, literary, ethics, or philosophical document is permissible IF A SECULAR PURPOSE IS CLEARLY SERVED. Schempp was further refined in Lemon v. Kurtzman with the “Lemon Test”

7. Lemon v. Kurtzman (1971)—Produced the Lemon Test that governs interaction between the government, public and parochial schools, and the establishment clause: • It must have a secular purpose • It must neither advance nor prohibit/inhibit religion • It must not create excessive entanglement.

8. Wallace v. Jaffree (1985) A period of silence set aside for meditation or silent prayer is a violation of the First Amendment. Teachers must refrain from endorsing any school-sanctioned silent prayer and meditation activities. • Lee v. Weisman (1992) The Supreme Court invalidated district policies that allow clergy to be invited to offer invocations and benedictions at middle and high school graduation ceremonies. • Jones v. Clear Creek (1992) The SC let stand an appeals court (5th Circuit only—Texas, Louisiana, Mississippi) decision permitting student-initiated, student-led prayer at graduation. The factors that influenced the Court’s ruling are as follows:

9. The prayer was strictly initiated by students. • School personnel played no role and were not involved in any aspects of the decision. • The school had no policy calling for student-initiated prayer at graduation BUT RATHER AN OPPORTUNITY FOR STUDENTS TO MAKE A TWO-MINUTE SPEECH AT THE BEGINNING AND END OF THE CEREMONY. • The student’s speech was not censored. • Students possess First Amendment rights to free expression. (A secular purpose was served wherein free speech was being safeguarded—See Adler v. Duval County School Board (’92) • 2 minute rule.)

10. Santa Fe Independent School District v. Doe (2000) School policies allowing students to vote for speakers who, in turn, pray at public events (like athletic contests) is public rather than private speech and violates the Constitution. Also, school personnel were clearly involved in the development and execution of the policy. • There seems to be some contradiction between Jones and Santa Fe, but it appears that the major difference between constitutional and unconstitutional is the purpose and primary effect, the involvement of school personnel—rendering it school sponsored, and the aspects of free speech. • Voluntary prayer by individual students is O.K.

11. Of special interest: The Free Exercise Clause • In general, a person has an absolute right to freedom of religious belief; however, the government can regulate the actions a person takes to express those beliefs. • The Free Exercise Clause does not apply to acts that are “violations of social duties or subversive of good order.” (i.e., Reynolds v. United States (1879), which prohibited polygamy in the territory of Utah. Reynolds claimed the law interfered with his freedom of religion. The Court ruled that polygamy was subversive of good order.

12. Cantwell v. Connecticut (1940) The Court ruled that the Free Exercise Clause applied to the states also. In this case, the Court ruled that the Free Exercise Clause embraces two concepts: • Freedom to believe • Freedom to act • The first is absolute; the second, by the nature of things, cannot be. • Compelling Interest • For many years, the Supreme Court has ruled on Free Exercise claims using a particular test: • Are the religious beliefs at issue sincere? They do not need to be factually correct—“Men may believe what they cannot prove. . .” United States v. Ballard.

13. The Court would normally require the government show a “compelling interest” for keeping a policy that burdened a religious practice. • Compelling Interest Examples: • Wisconsin v. Yoder (1972) The Court ruled that the Amish did not have to comply with a compulsory school attendance law beyond the eighth grade. (Apparently, the Court believes there is a compelling interest to keep kids in school at least to the 8th grade.

14. Bob Jones University v. United States (1983) The court ruled that private religious schools may be denied tax-exempt status if they discriminate based on race. • Goldman v. Weinberger (1986) The Court upheld military rules prohibiting non-regulation headgear, despite a Jewish officer’s request to wear a yarmulke on duty.

15. Employment Division v. Smith (1990) Al Smith, of the Klamath tribe, was fired as a substance abuse counselor in Oregon for using peyote as part of religious ceremonies. Smith argued that his use of peyote was no different than a Catholic alcoholism counselor receiving wine at communion. Smith was additionally denied unemployment benefits because Oregon law prohibited the use of peyote. • The SC ruled in Smith that when a criminal law was at issue, the government didn’t have to prove a compelling interest, unless the law targeted specific religious groups.

16. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. • Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." • Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. Hot Cases to Watch: The pledge of allegiance/Vouchers to private, parochial schools

17. . . .or abridging the freedom of speech, . . . • Freedom of Speech IS NOT absolute. The Supreme Court (SC) has restricted expression such as obscenity and defamation. • The SC has repeatedly ruled that freedom of speech consists not only of spoken words, but also encompasses other types of expression. • Pure Speech: Debates and public meetings that involve spoken words alone.

18. 2. Speech-plus: Demonstrations and picketing that combine speech with action. Pure speech receives the highest form of protection; the government may regulate the action components of speech-plus. In Thornhill v. Alabama (1940) the SC ruled that nonviolent picketing is included in freedom of speech.

19. 3. Symbolic Speech: Also known as “expressive conduct,” symbolic speech consists of actions that are themselves a message, without spoken words. Here are two examples treated differently: A) United States v. O’Brien (1968): The SC ruled that burning a draft card was not protected by the First Amendment as the government had a valid purpose in punishing the destruction of draft cards, which were necessary to raise and support an army (a Constitutional function). The goal of the government’s action was to maintain a draft, not prevent dissent.

20. B) Texas v. Johnson (1989): The SC ruled that burning the U.S. Flag was protected by the First Amendment. The SC held that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

21. Special Note: To counteract the SC’s decision, Congress passed the Flag Protection Act of 1989. The act prohibited flag desecration regardless of whether or not bystanders were offended. However, in United States v. Eichman (1990), the SC held the act violated the First Amendment because it punished any person “who knowingly mutilated, defaces, physically defiles, . . . Or tramples upon any flag.”

22. Such terms, the SC said, outlawed disrespect for the flag, not the physical destruction of it. The SC noted that burning the flag is the proper way to dispose of a tattered flag. Thus, argued the Court, the Flag Protection Act was punishing a person for the reason he burned the flag, which violated freedom of speech.

23. What are the limits of Free Speech? • Obscenity: In Miller v. California (1973) the SC held that speech or conduct was obscene if it met all three of the following guidelines: • A) “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;” • B) “whether the work depicts or describes, in a patently offensive way . . . conduct specifically defined by the applicable state law;” and. . . • C) “whether the work, taken as a whole, lacks serious artistic, political, or scientific value.”

24. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” --Chief Justice Warren Burger—majority opinion.

25. 2. Defamation: The First Amendment does not protect the hurting of another person’s reputation by spreading falsehoods in either spoken (slander) or written (libel) words.

26. 3. Fighting Words: Another type of speech that is not protected by the First Amendment is know as fighting words—abusive and insulting comments delivered face-to-face to a specific individual.

27. For example, in Chaplinsky v. New Hampshire (1942), the SC upheld the conviction of Chaplinsky, a Jehovah’s Witness, for calling a police officer “a @$% Fascist and a racheteer [sic].” Such “fighting words,” the Court said, “have a direct tendency to cause acts of violence.”

28. 4. Speech that incites illegal action: Brandenburg v. Ohio (1969)—The SC ruled that the action must be “imminent,” and probable. Thus, the SC ruled that a Ku Klux Klan leader’s cry at a rally for members to violently oppose civil rights laws was protected speech (as an abstract idea, rather than as a specific action—Dennis v. United States: violent revolution as an abstract idea is O.K.). However, a specific call to bomb churches at a designated place and time would not be protected.

29. Free Speech in School Tinker v. Des Moines Independent Community School District (1969): Some students were wearing black armbands to class to protest the Vietnam War. They were suspended without evidence that their activities disrupted the school in any way. They brought suit that resulted in the following:

30. Students possess the same constitutional rights as adults and that these rights do not end at the school house door. • This freedom, however, does not include a license to exercise such rights in a manner that creates MATERIAL or SUBSTANTIAL disruption to the educational process. But school administrators must demonstrate a justifiable or legitimate reason for limiting expression.

31. Blackwell v. Issaquena County B.O.ED: Political buttons were banned because students were noisily talking in the halls when they were scheduled to be in class, some students were pinning buttons on others who didn’t wish to wear them, class instruction deteriorated, and school disciple broke down. The courts upheld the principal’s ban of the buttons because of the material and substantial disruption to education.

32. . . . or of the press; . . . • Includes print material and broadcast media. • The bedrock principle of a free press is that, absent great and pressing reasons of national interest—such as preventing the publication of troop movements during wartime—the government may not censor a work before it is published (known as prior restraint).

33. . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The assembly of people must be peaceful; citizens may not riot or block public streets.

34. Assembly cont. • Cox v. New Hampshire (1941) The Court ruled that governments may restrict the time, place, and manner of assemblies, just as with free speech is sometimes limited. For example, freedom of assembly does not apply in shopping malls because they are privately owned.

35. Assembly Cont. • Feiner v. New York (1951) The Court upheld the actions of police to end an inflammatory speech by Feiner, which the Court regarded as an incitement to riot.

36. One last thing: The 4th Amendment at School Student Searches Public school officials DO NOT need probable cause in order to search students, held the SC in New Jersey v. T.L.O. (1985).

37. Facts of the Case • (this is the only case regarding school searches the SC has ever ruled on) • T.L.O. was a fourteen-year-old; • she was accused of smoking in the girls' bathroom of her high school. • A principal at the school questioned her and searched her purse, yielding a bag of marijuana and other drug paraphernalia. • Question • Did the search violate the Fourth and Fourteenth Amendments?

38. Conclusion No. Citing the peculiarities associated with searches on school grounds, the Court abandoned its requirement that searches be conducted only when a "probable cause" exists that an individual has violated the law. The Court used a less strict standard of "reasonableness" to conclude that the search did not violate the Constitution. The presence of rolling papers in the purse gave rise to a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs, thus, justifying a more thorough search of the purse.

39. Reasonable Suspicion Defined: Information received from students or teachers that is considered reliable by school officials. Informant must be known (rather than anonymous) and information must be credible. However, police officers do need probable cause before conducting a search on school premises.