Civil Liberties : First Amendment Freedoms

1. Civil Liberties: First Amendment Freedoms

2. Civil Liberties: First Amendment Freedoms • Civil Liberties – protections against arbitrary government actions (setting forth what the government (can/cannot do). Civil liberties include individual freedoms in the Bill of Rights [religion, speech, press, assembly, petition, rights of accused, etc.] So, civil liberties provide protection against government interference. Chapter Focus • The relationship of civil rights and liberties to the concept of limited government. • The importance of religious freedom in the U.S. • The scope of and limits on free speech and free press. • The relationship of the protection of civil rights and liberties to national security. • The limits on the freedoms of assembly and petition.

3. The next 3 chapters are about our “Unalienable Rights” – our specific rights which cannot be transferred to another person. • In proclaiming independence, our forefathers declared: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” • Section 1. The Unalienable civil rights – the Bill of Rights guarantee our civil liberties [5 freedoms]. • The courts are the major guardians of civil rights. • Without the 5 freedoms of expression, democracy could not exist. • Individual rights are included because the people demanded them. 1 2 3 • Section Focus: • 1. Why are our individual rights in the constitution? • 2. What factors limit individual freedom? • [speech has 3 limitations: can’t threaten the public order, can’t be offensive, and can’t be obscene. Ex: Can’t shout “fire” in a crowded theater.] • 3. What is the importance of Due Process? [follow the right procedures & laws]

4. Civil rights and Limited GovernmentThis means the government has only those powers the people give it. The framers limited government to protect the liberty of the people. The Constitution is filled with guarantees of personal freedom and restrictions placed on government. • The difference between a democratic government and a dictatorial government lies in the degree of government authority. Government authority is unlimited in a dictatorship. Opposition is put down harshly. All forms of expression must glorify the state. • In our democratic government, government authority is closely limited. Peaceable opposition to government is encouraged. • Historical Background • Our English ancestors waged a long struggle for individual freedom. They brought this desire for freedom to America. When the constitution was written, the Bill of Rights was added to your personal freedom.

5. Civil Rights Are Relative, Not Absolute • Absolute Rights – right to do as he or she pleases [no one has this right]. Freedom of speech does not mean absolute freedom of speech. You can not use obscene language or slander someone. You can not falsely shout “fire” in a crowded theatre and cause panic. • Relative Rights – when you have right to do as you please as long as what is done does not interfere with the rights of others. • Rights in Conflict – There are many situations where different rights come into conflict with one another. • A common example is Free Press v. Fair Trial. • Sam Sheppard, a Cleveland osteopath [bone doctor], was convicted of murdering his wife in 1954. There was a lengthy trial. Reporters wrote many lurid details including a lot offiction about his love life. A Cleveland newspaper pronounced that the police “have convincing evidence to prove Dr. Sam Sheppard…was the killer.” Sheppard claimed that the sensational coverage had denied him a fair trial. The Court agreed and overturned his conviction and ordered a new trial where he was acquitted. 4 5

6. Persons To Whom Rights Are GuaranteedMost rights extend to all people of the U.S. including the foreign-born except during wartime. • After Pearl Harbor, near hysteria gripped the West Coast, as many people feared the Japanese would attack there. There were 120,000 persons of Japanese descent and 70,000 of these were American citizens. • In March, 1942, Roosevelt designated 40 miles inland from the West Coast as a Military Area, to which person [persons of Japanese descent] suspected of espionage and sabotage could be excluded. There was also a curfew for the Japanese from 8 p.m. to 6 p.m. They were to report to“relocation” centers. Because they were forced to leave their homes on short notice, they were forced to sell their property and other possessions at a substantial loss. • Fred Korematsu was living in the San Francisco area. He had no criminal record and had been a loyal, law abiding citizen. He failed to report to a relocation center, and was arrested, then tried and convicted for violation of the order. He appealed. 6

7. Location of the 10 Internment camps

8. Jerome camp in Arkansas

9. U.S. PAYS REPARATIONS Of $20,000 TO JAPANESE • In the late 1980s, President Reagan signed into law a bill that provided $20,000 to every Japanese American sent to a relocation camp. • The checks were sent out in 1990 along with a note from President Bush saying, “We can never fully right the wrongs of the past . . . we now recognize that serious wrongs were done to Japanese Americans during WWII.” Today the U.S. is home to more than 1,000,000 Japanese-Americans

10. In a 6-3 decision in 1943, the court ruled against Fred Korematsu saying “hardships are a part of war…all citizens…feel the impact of war in greater or lesser degree.” It was justifiable as a “military necessity.” President later gave Fred the “Medal of Honor” for something he was sent to prison for 50 years earlier. Fred passed away in 2005. • This action has been criticized ever since. Not a single case of American-born Japanese-American disloyalty has ever been found. Today this is seen as an act of discrimination and prejudice and a tragic mistake. Congress, in 1988, agreed to give $20,000 to each living survivor. This cost the government $1.25 billion. Federalism and Civil Rights Some rights are guaranteed against the national government only. [Bill of rights] Some rights are guaranteed against the States and local governments only. Many rights are guaranteed against both the States and the national government.

11. TheModifying Effect of the 14th Amendment 7 • Even though the Bill of Rights do not apply to the States [but to the national government], the States cannot deny basic civil liberties [our five freedoms] to the people because their State constitutions contain a Bill of Rights. Plus the 14th Amendment’s Due Process Clause [correct procedures have been followed and everyone has had a right to be heard – that is “fair and equal treatment under the law”] does apply to the States. “No State shall…deprive any person of life, liberty, or property without due process.” Due process means a person can not be denied his basic rights. • The court has“nationalized the Bill of Rights” by saying that its protections apply to the States. In a long series of cases, starting in 1925, the Court has said States cannot abridge rights the federal government can’t abridge. • The Court has said that each of the First Amendment guarantees covered by the 14th Amendment also applies to the States. • In many cases, the Court declared a State law unconstitutional[over 1,000 times] as a violation of the 14th Amendment’s Due Process Clause. 8

12. Modifying Effect of the 14th Amendment[continued] • The Court has given the 14th Amendment’s Due Process coverage to: • 5th’s ban on self-incrimination. • 5th’s prohibition against double jeopardy • 6th’s right of persons to confront witnesses against them. • 6th’s guarantee of trial by jury where a serious crime is involved. • 6th’s guarantee to right to counsel. • 8th’s ban on cruel and unusual punishment. • The court has nationalized each of these guarantees, saying that they apply against the States in the 14th Amendment. [Gideon v. Wainwright [1963] – Gideon was an indigent who not afford a lawyer. He was supposed to have broke into a pool hall with the intent to steal. At first, with no lawyer, he went to jail for five years. Later, with counsel, he was acquitted. Clarence Gideon

13. Gideon V. Wainright, 1963 The movie “Gideon’s Trumpet” How one lonely man, a poor prisoner, took his case to the Supreme court – and changed the law of the U.S. Clarence Gideon was a Florida man charged with breaking into the Bay Harbor Pool Room and stealing coins from a vending machine (a felony). He asked for a lawyer but Florida law allowed them only for capital crimes (like murder or rape where you can be punished by death). He defended himself at the trial as best he could. He was convicted and sentenced to five years in prison. He had served time for four previous felonies. From prison, using the prison library for research, he wrote an appeal to the Supreme court of Florida, saying the denial of counsel in his trial violated his constitutional rights. His petition was denied so he filed a petition with the Supreme court, in the form of a pauper. The court reversed his conviction, allowed him to be tried with a court-appointed lawyer before the same judge. He was found innocent. [Gideon actually had a key so why would he break in]. The impact of this decision was that more than a thousand prisoners in Florida and thousands all over the U.S., who had been convicted without counsel, were set free. So, no matter how poor a person is, he has a right to a lawyer any time a jail sentence is a possible punishment.

14. No Complete Listing Of Rights Is Possible. 9 • A catalog of our rights does not exist. The 9th amendment says there are other rights beyond those found in the constitution. Among those rights “retained by the people” is the right of a person not to be tried on the basis of an unlawful search or seizure. • Section Focus: • What are the guarantees of the First Amendment and the extent of the separation of church and State? The right to believe as one chooses in matter of religion is protected against the national government by the 1st Amendment and against the States by the 14th amendment. Freedom of Expression is a indispensable to democracy. Without it, there can not be a free society. The basic freedom of religion, speech, press, assembly, petition are all protected by the 1st Amendment. 10

15. Religious freedom is guaranteed through the: • Establishment clause – prohibits an “establishment of an official religion.” [In 1774, England established the church of England as the official church of the colonies]. • Free Exercise clause–forbids arbitrary government interference in the “free exercise of religion” and allows you to hold no religious beliefs at all. • “…no religious test shall ever be required as a qualification to any office.” The court held that a section of the Maryland constitution requiring all public officials in that State to declare a belief in the existence of God was unconstitutional. 11 12 13

16. Separation of Church and state – making no religion an official arm of government. • The Establishment Clause means “neither a State nor the Federal government can set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another.” • The Establishment Clause, according to Thomas Jefferson, in 1802, “sets up a wall of separation between church and State” but they have a friendly relationship. • Most of the cases involving the Establishment Clause have centered on education or religion in schools. • 1. Government encourages churches by exempting them from federal, state and local taxes. • 2. Chaplains serve in the armed forces. • 3. Public officials take an oathin the name of God. • 4. Sessionsof governmentopen with prayer including the Senate. • 5. The National Anthem and coinage make reference to God. • The problem with the Establishment clause was disagreements over what actions promoted or helped establishment of religion. Two issues have been involved in the controversy – aid to religious schools and religious exercises in public schools. 14 15

17. Prayer Before High School Football Games • In 1989, the Supreme Court banned invocations before high school games by refusing to review a 11th Circuit Court of Appeals ruling prohibiting pre-game prayer at a Georgia High School. In the Bible Belt, high school football is not exactly a religion, but then it is not exactly not one either. The Circuit court had said that prayers delivered over a public address system violated the constitutional amendment requiring separation of church and State. Although the ruling applied only to Georgia, Alabama and Florida, it set a national precedent when the Supreme court refused to hear the case. Marfa High, in West Texas, playing one week early, became the first Texas Public School to challenge the ruling and opened the season with a prayer. During the game they didn’t have a prayer as the shorthorns lost 34-0. 16 Here is the other team’s last touchdown. The score is 28-0.

18. A “Moment of Silence” in Public Schools “The Supreme Court reached a decision on silent prayer…They ruled that a moment of silence is impossible in the public schools.”

19. Aid To Religious Schools • The New Jersey School Bus Case of 1947 involved a law that provided free bus transportation of students to the school they attended, whether public or parochial. In a 5-4 decision, the Court found the policy was designed as a safety measure to promote the safety and welfare of students no matter what schools they might attend, not to benefit religion. So, this is constitutional. • This case set a precedent that not all forms of federal and State aid to church schools are unconstitutional. • The court allowedthe loan of nonreligious textbooks, like economics textbooks, to students attending parochial schools. So Jefferson’s wall of separation has some doors and windows in it. • The Court ruled that State aid to supplement teacher’s salaries in parochial schools was unconstitutional, as were laws providing for reimbursement of tuition cost to parents of those students and field trips. 17

20. Released Time To Attend Religious Classes • Programs allowing students to be “released from school time to attend religious classes” is legal. The classes can not be held on public school grounds. • So religious instruction is constitutional if carried on in private, not public facilities. • State aid to parochial schools has been ruled constitutional in such areas as providing transportation, textbooks, or student lunches. Other forms of aid, such as audio-visual equipment, teacher salaries, and public payment for field trips have been found unconstitutional. Recitation of Prayers and the reading of the Bible in Public Schools - No • The prayer issue is the most controversial arising from the separation of church and State. • Engel v. Vitale [Vi tal e’] [1962] –theCourt outlawedthe use ofnondenominational prayers in public schools, whether voluntary or not. The NY State Board of Regents skeletal prayer read: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our parents, our teachers, and our country.” 18 Engel family

21. In 1963, the court struck down a Pennsylvania law requiring each school day to begin with Bible readings. It violated separation of church and state. • In 1980, the court struck down a Kentucky law requiring the Ten Commandments to be posted in all public classrooms. So, posting the 10 Commandments is unconstitutional. • In 1985, the Court found Alabama’s “moment of silence”unconstitutional. It had provided for one minute of silence for “mediation or voluntary prayer,” at the beginning of each school day. The reference to voluntary prayer made it unacceptable. Many States still have a moment of silence without referring to “voluntary prayer.” • Despite these decisions, both organized prayer and Bible reading are to be found in many public classrooms today. Fundamentalists have agitated for a constitutional amendment permitting school prayer. • The Court has been more generous in applying the Establishment Clause to colleges and universities than to elementary and secondary schools. 19 20 21

22. 22 • Can there be chaplains in congress and the State legislatures – “Yes” • The Court in 1983 said opening daily sessions of Congress or the State legislatures ispermissible. A paid chaplain with public funds can say the prayer. • Evolution – In 1968, the Court said evolution could be taught. • Tax Exemptions For Churches and Their Property • In 1970, the Court said this was legal. • However, church-related schools that discriminate [like Bob JonesUniversity, who said this was part of their religious beliefs) on the basis ofrace, can be denied a tax-exempt status. Bob Jones University, a nonprofit private school of fundamentalist leanings in South Carolina, denied admission to any applicants who were engaged in an interracial marriage or who advocated interracial marriage or dating. • Bob Jones University v. U.S. [1983] • Under the I.R.S. code of 1954, all educational institutions, regardless of their admissions policies were exempted from paying federal taxes, and contributions could be deducted as charitable contributions. • The code was amended in 1970. Private schools with racially discriminatory policies toward students were no longer considered “charitable” organizations and can be denied tax-exempt status. 23

23. Lemon v. Kurtzman TEST #1- LEMON TEST (based on Lemon v. Kurtzman, 1971) - In order for any government policy regarding religion it must pass a three-prong test. This is the test commonly used to maintain separation of church and state to avoid “excessive entanglement” of government with religion. Alton Lemon 24 TEST QUESTION (PRONG) 1 Does the policy have any NON-SECULAR (religious) purpose? YES- POLICY IS UNCONSTITUTIONAL! NO- GO ON TO QUESTION 2 TEST QUESTION (PRONG) 2 Does the policy PROMOTE or INHIBITreligion? YES- POLICY IS UNCONSTITUTIONAL! NO- GO ON TO QUESTION 3 TEST QUESTION (PRONG) 3 Does the policy EXCESSIVELY involve government with religion? YES- POLICY IS UNCONSTITUTIONAL! NO- POLICY IS CONSTITUTIONAL!

24. Dos and Dont's Can do Cannot do • use money to fund school buildings • buy textbooks • buy computers • pay for lunches • pay for buses • pay to administer standardized tests • entitled to Title I funding • use money to pay for field trips • buy religious textbooks or bibles (for the purpose of promoting a religion) • pay teacher salaries • etc.

25. Other stuff... • Can public school teachers teach about religion in a public school? • Yes (Abington v. Schempp) • The U.S. Supreme Court indicated that public school education may include teaching about religion • Education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. The Bible is worthy of study for its literary and historic qualities. • Presented objectively as part of a secular program of education. • Can religious music be played in public schools? • Yes, if…. • If part of the curriculum and considered secular • The use of art, drama, music or literature with religious themes is permissible if it serves a sound educational goal in the curriculum. • Such themes should be included on the basis of academic or aesthetic value, not as a vehicle for promoting religious belief. • School concerts that present a variety of selections may include religious music. Concerts should avoid programs dominated by religious music, especially when these coincide with a particular religious holiday. • May students distribute religious literature at a public school? • Yes • Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. • Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on non-school literature generally, but they may not single out religious literature for special regulation.

26. Establishment Clause Decisions & Laws Agostini v. Felton (1997): public schools could send teachers to parochial schools to teach some special education classes Zelman v. Simmons-Harris (2002): upheld government vouchers used as tuition at religious schools. The court held that a government program does not obstruct freedom of religion if aid goes directly to the student or parent, who then chooses a school Kiryas Joel v. Grumet (1994): New York had gone too far by creating a school district favoring Hasidic Jews 1984 Equal Access Act: Opens opportunity for schools to open doors to religious groups if they open their doors to other organizations Town of “Joel”

27. Of Interest to You... Students may pray silently as much as they wish. Prayer at school graduations is prohibited. Student led prayers at athletic events is unconstitutional. A “moment of silence” is fine… a moment of “meditation of voluntary prayer” is not acceptable. The teaching of creationism is not permitted in public schools. Christmas nativity scenes alongside secular symbols (Christmas trees, Santa Clauses, menorahs) on public grounds… but if they stand alone without secular symbols thy are prohibited. … drawing the line between neutrality and promotion is a difficult and controversial task!

28. “…if it isn’t unconstitutional.” “Thank you for not letting Michael Vick be my owner…Amen to that.”

29. The Free Exercise of Religion – guarantees the right to worship or believe what you want to believe in matters of religion or to hold no religious beliefs at all. • This clause says that you have an absolute right to believe what you wishbut do not have absolute rights to act as you wish. • What if someone’s religion justifies using illegal drugs or disturbing the peace. The Court once asked,“Suppose one believes that human sacrifice were a necessary part of religious worship.” • In 1879, a Mormon in Utah had two wives. Polygamy was allowed by his church, but it was prohibited by a federal law banning the practice in the U.S. [It was a duty according to Mormon beliefs but a crime by U.S. law. A crime is not protected by the 1st Amendment.] • The court said that doctrines of religious beliefare notsuperior to the law. People’s religious beliefs can not violate the health, safety or morals of the community. 25

30. Other rulings on the Free Exercise Clause of Religion 1. School children can be required to be vaccinated even when opposed by their parents. [Christian Scientists refused to follow State laws. The welfare of the children comes before the right of religious expression.] 2. “Blue laws” can be enforced. 3. Child labor laws must be enforced when children are used to sell literature. 4. Those who have religious objections to military service can be drafted. [If opposed to a particular war [not all wars], you could not be exempt] 5. The Hare Krishna can be limited to a booth or another fixed location for fund raising. 6. The Air Force can forbid an orthodox Jew from wearing his skull cap while on active duty. 26

31. Wisconsin v. Yoder [1972] Amish – 100,00 in U.S. & Canada Issue: Can the government require that parents send their children to high school when parents believe this will conflict with their religious beliefs and value system? Jonas Yoderwas the parent of a 14-year old child,and a member of the Old Order Amish religion. The Amish are devoted to a life in harmony with nature and the soil. This life is exemplified by the simple life of the Christians. The Amish reject so-called “worldly”culture, material things and competition. They believe people should make their living by farming or a related activity. They reject telephones, autos [use horse and buggy], newspapers, indoor plumbing, electricity, radios, and TVs. Their ways of dressing and of speaking set them apart from contemporary society. The men wear black wide-brimmed hats, collarless black coats, and tight-fitting black trousers, and black high-top shoes. Women wear high-necked solid colored dresses, long black coats, and full black bonnets over white prayer caps. All the females wear dresses, even when playing baseball. A woman’s hair cannot be exposed to the public – only to her husband. They wear clothing fastened by hooks and eyes, instead of buttons. Married men grow beards. They have huge families where divorce is not permitted. Amish teachings forbid going to war or holding public office. They have simple homes, without mirrors, pictures, musical instruments, radios, telephones, or electric lights.

32. They provide for their old people and refuse all governmentaid in the form of relief, farm subsidies, or old-age pensions. Practical learning in farm and home management is considered to be of greater value than formal education, which is usually limited to the first eight grades. They worship in the home of a different family member every two weeks. Services of about 250 Amish last about four hours. The hymnbook contains words but no music. Slow, involved, solemn chants are sung from memory. A traditional foot-washing ceremony is performed at the communion section of the prayer meeting. They thought attending school thru the 8th grade was OK but wanted their children to leave after the 8th grade, so they would not be exposed to worldly influence by being pressured to compete in class work and sports. These families feltthat sending the Amish children to high school would take them away from the Amish community, physically and emotionally. Amish families are showing signs of weakening. One in four Amish family members is leaving. Some recently got out of jail for drugs and took to the flush toilets and running water.

33. Wisconsin had a compulsory school attendance law requiring students to attend school until the age of 16. The Yoder family and other Amish members were convicted and fined by local courts. They appealed, claiming that the attendance law violated their free exercise of religion [no interference with religious beliefs]. The Wisconsin Supreme Court said the convictions violated the First amendment. The U.S. Supreme Court upheld this decision, saying the Amish had demonstrated a long history of success in getting along in American society. Their mode of life should not be intruded upon by the government. The Court ruled that their tradition of self-sufficiency was essential to its faith and would be threatened by exposure to modern education. 7. Amish childrencan not be forced to attend school beyond 8th grade. 8. A State can not forbid ministers to hold public office. 9. Certain religious sects in the Appalachian Mountains believe that the handling of poisonous snakes is a test of faith. They are passed among the devout during religious services. On several occasions, bitten worshipers have died. State laws have been passed against snake handling even though they interfere with the free exercise of religion. 27

34. Free Exercise Clause Rulings [continued] 28 10. Unemployment compensationcan not be denied to a worker who quit a job involving conflict over religious beliefs. A. A Seventh Day Adventist lost his job in a textile mill when she refused to work on Saturdays, her Sabbath day. B. A Jehovah’s Witness quit after he was transferred from one section of the company that was being closed down to another that made gun turrets for tanks. He said that his religious beliefs would not allow him to work on war materials. Pledge of Allegiance Debate • The debate over whether the Pledge of Allegiance should be made compulsory in our schools has been long on rhetoric and short on history. • We forgot a painful chapter of our past when people who refused to recite the pledge were beaten, accused of treason and attacked by mobs in their churches and homes. It was a time when young children who refused to recite the pledge out of religious conviction were expelled from school.

35. The Old Way Of Pledging Allegiance To The Flag • You used to have to point to the flag on “to the flag” but we quit this in the 1940s because it resembled the way Germans were heiling Hitler.

36. Here is the Pledge of Allegiance “Story” • Minersville School District v. Gobitis [1940] The Pledge first appeared in 1882 in a magazine called The Youth’s Companion, to mark the 400th anniversary of Columbus’s arrival. It was only sporadically recited for many years but, after WWI, a number of States began to make reciting the pledge compulsory in public schools. • The main opposition came not from civil libertarians, but from religious groups, chiefly the Jehovah’s Witnesses. Members felt they could not in conscience pledge allegiance to the flag, which they regarded as a “graven image.” Saluting anything but God was against their beliefs. • In 1935, three Jehovah’s Witnesschildren in Minersville, PA, refused to recite the pledge at school because they saw it as a violation of the Bible’s commandment against idolatry, and were expelled. Two of them Lillian [10] and William Gobitis [12], took their case to Court. The Court ruled against them 8-1. • The Court said the flag was a symbol of national unity, and requiring the salute was not an infringement on the free exercise of religion. The one justice who dissented said, “the very essence of liberty…is the freedom of the individual from compulsion…to bear false witness against his religion.”

37. The Court’s decision was severely criticized by the press and the legal profession. More than 170 leading newspapers condemned the decision while only a few supported it. Few Supreme court decisions have had such a dramatic impact. Six days after the opinion was handed down, a mob of 2,500 sacked and burned a Jehovah’s Witnesses church in Kennebunk, Maine. On June 3, the decision had been rendered, and on June 16, the citizens of Litchfield, Illinois, attacked 60 Witnesses, who were put in jail for their own protection. • On June 29, seven Jehovah’s Witnesses in W. VA, were rounded up by the police chief, placed in the center of a mass Pledge of Allegiance recital, force-fed large quantities of castor oil and marched out of town. Throughout the country, people broke into the homes of Witnesses, confronted them with flags and demanded they recite the pledge. • The Gobitis decision was the subject of debate at the highest levels. Robert Jackson, the attorney general, bitterly denounced the decision at a Cabinet meeting. President Roosevelt and Mrs. Roosevelt discussed the case with a Supreme court justice. • Mrs. Roosevelt said that she was profoundly disturbed by an opinion that forced little children to recite a pledge repugnant to their conscience. The President said the action of local authorities was “stupid, unnecessary and offensive.”

38. Three years later, after hundreds of Witness children had been expelled from school, the Court reversed itself in West Virginia State Board of Education v. Barnette [1943]. The Court argued that while the patriotism promoted by flag ceremonies was highly desirable, it could be achieved without the State forcing people to violate their religious beliefs. • The Majority Opinion said, “If there is any fixed star in our constitutional constellation,” they wrote, “it is that no official, high or petty, can prescribewhat shall be orthodox in politics, nationalism, religion or other maters of opinion, or force citizens to confess by word or act their faith therein.” This decision reversed the 1940 decision and ruled that laws requiring a flag salute were an unconstitutional interference with the free exercise of religion. • One judge put the problem in more human terms, by saying, “The flag is dishonored by a salute by a child in a reluctant and terrified obedience to a command of secular authority which clashes with the dictates of conscience. The flag cherished by all our hearts should not be soiled by the tears of a little child.” • We might do well to reflect on the last five words of the Pledge of Allegiance: liberty and justice for all. • So, Jehovah’s Witnesses can not be made to pledge the flag. 29

39. Section 3. Freedom of Expression: SPEECH [Right to express even the most unpopular or unusual opinion] and PRESS: [Guarantees people will have access to such opinions] Section Focus:What are the limitations on freedom of speech as regards: obscenity, confidentiality, radio, TV and Internet, prior restraint [censorship before the fact, or “curbing ideas before they are expressed”, movies, and advertising? • The freedoms of speech and press are not absolute nor unlimited. Many reasonable restrictions are placed on these rights. • Protection of free speech and press by the 1st and 14th Amendments serves two fundamentally important purposes: • A. These two amendments guarantee to each person a right to free expression. • B. They ensure to all persons a full, wide-ranging discussion of public affairs. While the courts have strongly established the importance of these freedoms, restrictions have been applied in cases concerning obscenity, public safety, confidentiality, and the media’s use of public air waves. 30

40. Censorship of High School Newspapers • There are about 35,000 school newspapers. Many were censored by school officials. Controversial material, such as criticism of school policies, was often removed. When students complained, school officials replied that school newspapers were supported by tax money. The first amendment supposedly did not apply to high school students. • A few years ago, the Court held that high school students enjoy the same first amendment rights as adults. They declared, “Students do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” Students could express their views on any topic in school so long as they did not “materially and substantially interfere with operations of the school.” In 1988, the Supreme Court decided Hazelwood School District v. Kuhlmeier. This decision gave high school officials greater authority to censor school sponsored student publications if they chose to do so. Hazelwood also requires school officials to demonstrate some reasonable educational justification before they censor anything. Hazelwood meant the students did not have full 1st Amendment rights as regards school newspapers. So, students do not have an absolute right to publish what they want. 31

41. 32 • These four things are not protected at all by the Constitution under free expression. • A. Libel [libelous is a lie] – published report of falsehoods that injure a person’s character. [printed word] • B. Slander [spoken word] –public utterances that hold a person up for contempt, ridicule or hatred. In other words, false or malicious words. Slander has to be harmful in intent. • C. Obscenity • D. False advertising • The Court has decided that libel laws may be applied one way to private citizens and another way to public figures and officials. A public official is prohibited from “recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was madewith ‘actual malice’ –that is, withknowledge that it was false or with reckless disregard of whether it was false or not.” “You ignorant slut!!!”

42. The Court considers movie stars and other celebrities to be “public figures”, making it difficult to sue gossip columnists and other writers for libel. Private persons do not have to prove malice. There must be proof that there was reckless disregard for accuracy. Obscenity • There has been a problem deciding what is obscene. A Supreme Court justice said, “I know it when I see it.” Some might have thought the XFL cheerleaders were obscene, but not the guys. They didn’t look right without their poles. Many wanted to call it the XXXFL. • In 1973, the court established a three-fold test to determine obscenity. • 1. The dominant theme tends to excite lustful thoughts. • 2. Must be patently offensive by affronting contemporary community standards. • 3. The work lacks serious social, literary,artistic, political or scientific value. This one is hard to prove. What one person finds shocking may be taken by others as having political or artistic value.

43. Obsenity... Every High School Student's Favorite • Roth v. United States(1957): Obscenity is not protected by • the First Amendment. • Deciding what is obscene is very difficult. • Cultural differences play a big role in what is acceptable… • What’s acceptable in San Francisco might not be acceptable • in Abilene, Texas! • In Miller v. California(1973), the Court held that obscene • materials are defined as those that… • the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; • 2. that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; • and that, taken as a whole, lack serious literary, artistic, political, or scientific value. • In other words, the determination of obscenity should be • determined by average people (juries) applying • contemporary standards of local (not national) standards

44. A Georgia theater manager was convicted for showing Carnal Knowledge. It was nominated for the Academy Award. The Court ruled it was not patently offensive. [Jack Nicholson and Anne Margaret] • In 1969, the Court said a person may watch or read what he wants to in the privacy of his own home. • In 1971, the Court said you could not send obscene materials through the mail or import from abroad. [You can buy obscene materials from an “adult bookstore” but their items can not be mailed, shipped across State lines, or legally imported. Nevertheless, they are always well stocked.] • So, a person can read or watch obscene materials in his own home but can not obtain them through the mail. • After many attempts to define obscenity, the Court ruled in 1973, that local communities should be allowed to set their own standards for obscenity. Former Chief Justice Burger wrote, “It is neither realistic nor constitutionally sound to read the 1st Amendment as requiring that the people of Maine or Mississippi accept…conduct found tolerable in Las Vegas or New York City.”

45. Prior Restraint Prior Restraint – censorship of material before it is spoken or published. Censorship before the fact. Being stopped before you do it. 33 Near v. Minnesota [1931] Prior restraints were ruled to beunconstitutional, except in extremely limited circumstances such as national security issues. The ruling came about after Jay Near's newspaper, the Saturday Press, a small local paper that ran countless exposes of Minneapolis's elected officials’ alleged illicit activities, including gambling, racketeering, and graft, was silenced by the Minnesota Gag Law of 1925, also known as The Public Nuisance Law. Near’s critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others. In the Near case the Court held that the State had no power to enjoin the publication of the paper in this way – that any such action would be unconstitutional under the First Amendment. • “Prior restraint” can not be placed on written or spoken words. • The government can not curb ideas before they are expressed unless in extreme cases as in wartime or when a publication is obscene or incites readers to violence. • So, prior restraint is usually illegal, except in extreme cases. 34

46. Confidentiality – protecting your sources [said in confidence] • Confidentiality – News reporters withholding certain information from the government. The courts have rejected this as a constitutional right. • Since the 1960s, over 200 reporters have refused to testify, to protect their sources. [Otherwise, they can not get anymore inside information]. • If they can not protect their sources, those sources will not give them information they must have to keep the public informed. • William T. Farr of L.A., wrote an article about the 1970 murder trial of Charles Manson. When he refused to answer questions about the article, he was jailed for contempt of court. • In 1972, the Court said that the 1st Amendment does not grant any special privileges to reporters. They have to respond to relevant questions put to them. Only Congress or the State legislatures could exempt them. So confidentiality is not a constitutional right. 35

47. Shield Laws 30 States have passed “Shield laws,” giving reporters some degree of protection against having to disclose their sources or reveal other confidential information. 36 • Prior to 1952, the court said freedom of press protections did not apply to films. Movies are a form of artistic endeavor protected by the 1st Amendment. In 1952, the court said “liberty of expression” by means of motion pictures is guaranteed by the 1st and 14th Amendments. A State or local government can ban an obscene film if they can show at a hearing that it is obscene. Prior censorship has been replaced by voluntary classifications of films by the industry of G, PG, PG-13, and R] Motion Pictures

48. Radio and TV 37 • Both radio and TV are subject to extensive federal regulation. • Broadcasting has received the most limited 1st amendment protection because they use the public’s property –the public electromagnetic airwaves – to broadcast their materials. The F.C.C. may prohibit the use of indecent language and it can consider that when a station applies for the renewal of its license. • “Filthy words” cannot be broadcast during primetime. • 1. Fairness doctrine – radio and TV broadcasters must present all sides of important public issues. • 2. Equal-time doctrine – radio and TV broadcasters must make air time available to all candidates for public office if they give it to one. • Cable TV – the court has given cable television industry broader 1st Amendment freedoms than those enjoyed by traditional TV. In 1987, the court held that the States cannot regulate “indecent” cable programming. It struck down a Utah law that prohibited the cable broadcast of any sexually explicit or other “indecent material” between 7 a.m. and midnight each day.

49. Regulation of the Public Airwaves • The Federal Commission regulates the content, nature, very existence of radio and TV broadcasting. • Stations must devote some time to public service, children’s programming, political candidates, or views other than those the owners support • Miami Herald Publishing Company v. Tornillo (1974). The Court reversed a law in which Florida require newspapers to provide space for political candidates to reply to editorial criticism • A radio station once tested George Carlin’s “Filthy Words” that could never be said over the airways… the Supreme Court upheld that these were words the FCC could bar to protect children • In 1992, the FCC fined Howard Stern$600,000 for indecency • The Telecommunications Act of 1996 requires cable TV operators that carry primarily dedicated to sexually oriented programming to fully scramble or block such programs • But, in 2000 in the United States v. Playboy Entertainment Group the Court decided the government did have a legitimate right to regulate sexually explicit programming, but that it should be less restrictive (target blocking) in which subscribers can ask cable companies to block channels is more feasible.

50. Internet The internet has thrown a wrench in the gears of Court decision… it has generally been decided that the internet is not a printing press and is not subject to free-speech protections… it can be regulated. • Communications Decency Act(1996): the first attempt by the United States Congress to regulate pornographic material on the Internet, in response to public concerns in 1996. In 1997, the U.S. Supreme Court (Reno v. ACLU) partially overturned the law in one of its landmark rulings regarding the Internet… it made no exception for literary, political, artistic, or scientific merit (outlines in Miller) • In 2002, the Court overturned a ban on virtual porn… so, to a degree it does view the internet similar to print media, but in 1999 it upheld prohibitions on obscene emails and faxes. • The Broadcast Decency Enforcement Act (2005) increased tenfold the penalty that the FCC can impose, to $325,000. The legislation did not change the broadcast decency standards that were already on the books. It gave the FCC the means to enforce decency standards more effectively. • The Court has opposed laws that have shut down nude dancing when zoning ordinances prevented “all live performances”. • They have upheld in cases when the effect on “overall expression” was minimal • Feminists and Conservative Christians have formed alliances against pornography arguing they are degrading and harmful to women… cities have passed many of these ordinances, but State courts have shot them down on First Amendment grounds… the Supreme Court has yet to hear a case of this matter.