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  1. CIVIL RIGHTS & LIBERTIES By Loren Miller

  2. CIVIL RIGHTS • Bill of Rights • Unanimously defeated at the convention • Unnecessary as state constitutions protected individual rights • So why was it proposed in 1789? • What is its purpose? • To limit the power of government • What government does it limit? • The national government (Barron v. Baltimore, 1833)

  3. RIGHTS IN THE CONSTITUTION • guarantee of habeas corpus (unless cases of rebellion or invasion) • prohibition of bills of attainder • prohibition of ex post facto laws • prohibition against acceptance of titles of nobility, etc., from any foreign state • guarantee of trial by jury in state where crime was committed • treason defined and limited to the life of the person convicted, not to the person’s heirs

  4. RIGHTS IN THE CONSTITUTION • guarantee of a republican form of government • no religious test oaths as a condition for holding a federal office • protection for citizens as they move from one state to another, including the right to travel • Protection against the impairment of contracts (states cannot pass laws that invalidate contracts)

  5. “A government is free in proportion to the rights it guarantees to the minority.” Alf Landon, Republican Presidential candidate in 1936

  6. Respect for Minority Rights % Rating Respect for Minority Rights as Very Important

  7. “It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” Felix Frankfurter, Supreme Court Associate Justice Pirates of the Constitution

  8. FREEDOM OF & FROM RELIGION • The right to hold any or no religious belief is an absolute right--as written in the First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

  9. HOW FREE?? Absolutists Congress shall make no law . . . Balancers Total Individual Freedom Total Government Control What does the Constitution say?

  10. RELIGIOUS TEST CLAUSE • [N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” • U.S. Constitution, Article VI, Clause 3 • “A union of government and religion tends to destroy government and degrade religion.” • Justice Hugo Black, Engle v. Vitale, 1962

  11. FREE EXERCISE CLAUSE • Free exercise of religion deals with how one practices their religion • Religious convictions do not exempt one from complying with otherwise valid laws designed to protect the public peace, health, safety, and morals

  12. FREE EXERCISE CLAUSE • Laws which prohibit the practice of polygamy • Laws requiring vaccination of school children • Laws forbidding business activities on Sunday • Native Americans use of peyote • Flag Salute Cases

  13. ESTABLISHMENT CLAUSE • No Preference (Accommodationists) • government may aid and encourage religious activities as long as there is no preference shown • Wall of Separation (Separationists) • there is a wall of separation between church and state which forbids government from aiding, encouraging, or supporting any or all churches

  14. ESTABLISHMENT CLAUSE • “Believing . . .that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship . . . That [Congress] should “make no law respecting an establishment of religion . . .” thus building a wall of separation between Church and State.” Thomas Jefferson to Danbury Baptists, 1802

  15. ESTABLISHMENT CLAUSE • Not endorsing or appearing to endorse religion is especially important in the public school setting due to: • The specific sensitivities of school age children • The fact that public schools are public institutions • The influence of school officials and teachers over students • Many student view their teachers as authority figures and are highly susceptible to coercion, pressure to conform both from adults and their peers. • The student body in America’s public schools is growing increasingly diverse

  16. ESTABLISHMENT CLAUSE • McCollum v. Bd. of Education, 1948 • can students obtain religious instruction in school during school hours if it is a voluntary program? • Zorach v. Clauson, 1952 • can students obtain religious instruction outside of school during school hours if it is a voluntary program? (release time)

  17. ESTABLISHMENT CLAUSE • Engle v. Vitale, 1962 • must teachers, who want to inculcate in children the belief in a supreme being, begin the school day with a prayer which was written by the state board of education? What do they expect us to do—listen to the kids pray at home? Herb Block, June 18, 1963

  18. ESTABLISHMENT CLAUSE • Wallace v. Jaffree, 1985 • can the state legislature of Alabama require a “moment of silence for prayer or meditation” to begin the school day? • what was the purpose of the legislation?

  19. ESTABLISHMENT CLAUSE • Test for constitutionality of programs • Does the policy in question have a secular (nonreligious) purpose? • Does the primary intent or effect of the law either advance or inhibit religion? • Does policy in question avoid entangling government and religion? • If a school official cannot answer an unequivocal yes to all three of these questions, then the policy must be abandoned. Lemon v. Kurtzman, 1971

  20. ESTABLISHMENT CLAUSE • Can a state help pay the salary of teachers in parochial schools? • No (Lemon v. Kurtzman, 1971) • Can a state help pay for parochial school texts? • No (Lemon v. Kurtzman, 1971) • Can public funds be used for parochial school busing? • Yes (Everson v. Board of Education, 1947) • Can public funds be used for parochial/private school computers? • Yes (Mitchell v. Helmes, 2000)

  21. ESTABLISHMENT CLAUSE • Can a state ban the teaching of evolution? • No (Epperson v. Arkansas, 1968) • Can a state require the teaching of creationism? • No (Edwards v. Aguillard, 1987) • Can a state require the posting of the Ten Commandments in public schools? • No (Stone v. Graham, 1980) • Can a state ban use of school facilities to after school Bible study? • No (Good News Club v. Milford Central School, 2001) • Can a state provide vouchers for students to attend a parochial school? • Yes (Zelman v. Simmons-Harris, 2002)

  22. ESTABLISHMENT CLAUSE • Is a public display of a nativity scene on government property constitutional? • Not if its purpose is to endorse religion • A nativity scene located in a government building with the words “Glory to God in the Highest” is Christian and not legal • The Ten Commandments on the grounds of the Texas State Capitol is permissible because it is part of a historical exhibit. • The posting of the Ten Commandments in a Kentucky courthouse is an unconstitutional endorsement of religion.

  23. LOCAL CASES • The Denton marching band forms a cross and marches across the football field playing religious songs • The Duncanville girls basketball team, lead by their coach, participates in a post-game prayer

  24. LOCAL CASES • Is prayer at commencement or at a football game a violation of the establishment clause? • Can the Gideon Society distribute New Testaments at Collin County Community College?

  25. LOCAL CASES • Can PISD prevent the distribution in the classroom of a religious message attached to a candy cane?

  26. SUPPORT FOR THE 1ST AMENDMENT 2008

  27. FREEDOM OF SPEECH Congress shall make no law . . . abridging the freedom of speech • The importance of free speech in an open society was well put by Justice Oliver Wendell Holmes: • The best test of truth is the power of the thought to get itself accepted in the competition of the market. • Abrams v. U.S., 1919

  28. FREEDOM OF SPEECH • In the entire history of the United States, the national government has never attempted to punish opposition to government policies, except in time of war. • In peacetime (approximately 80% of our history) the government does not punish individuals for challenging government policies.

  29. FREEDOM OF SPEECH • The government has attempted to punish individuals for criticizing government officials or policies only during six episodes in our history: • The Alien and Sedition Act of 1798 • Suspension of the Writ of Habeas Corpus during the Civil War • The Espionage Act of 1917 and the Sedition Act of 1918 • The internment of individuals of Japanese descent during WWII • The Cold War and prosecutions of alleged Communists • The Vietnam War and the prosecutions of dissenters

  30. FREEDOM OF SPEECH • Sedition Act of 1798 • the punishment of false, scandalous, and malicious writings against the government, Congress or the President. • an attempt to prohibit the Jeffersonians from criticizing the Federalist’s support for England in their war with France. • no case was brought to the Supreme Court, as Jefferson issued pardons to the people who had been convicted under this act.

  31. FREEDOM OF SPEECH • Abraham Lincoln’s View • Even in wartime, the government may not punish a speaker for criticizing its policies, programs or actions. • However, the government may punish a person for hindering the war effort by advocating resistance to the draft or encouraging desertion.

  32. FREEDOM OF SPEECH World War I • Espionage Act of 1917 • penalized the circulation of false statements made with an intent to interfere with the military and the draft (this has never been repealed) • Sedition Act of 1918 • illegal to utter or publish words against the government, the Constitution, or the flag.

  33. SCHENCK V. U.S., 1919 • “In many places and in ordinary times the defendant, in saying all that was said . . . would have been within his constitutional rights. But the character of the act depends on the circumstances in which it is done.” • This was a time of war

  34. CLEAR & PRESENT DANGER DOCTRINE • “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 andpresent danger that they will bring about the substantive evils that Congress has a right to prevent.” • This replaces the bad tendency test which is unconstitutionally vague.

  35. HOW FREE?? Congress shall make no law . . . Clear & Present Danger Balancers Total Individual Freedom Total Government Control “In time of war the balance must shift in favor of order.” William Rehnquist What does the Constitution say?

  36. CLEAR & PRESENT DANGER DOCTRINE • The clear and present danger test allowed the government to punish speech in those instances when speech created a clear and presentdangerof unlawful action. • The test permitted the government to act in anticipation of illegal conduct.

  37. WHERE DO YOU DRAW THE LINE? • “. . . we should be eternally vigilant against attempts to check the expression of opinions that we loath and believe to be fraught with death, unless they so immediately threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Oliver Wendell Holmes Abrams v. U.S., 1919

  38. FREEDOM OF SPEECH World War II • For the most part, the Supreme Court played a cautiously speech-protective role during the war. • The Court rejected denaturalization as a penalty for persons who spoke against the war. • Even in war, criminal sanctions cannot be imposed for stating that “it was wrong for our President to send our boys . . . to be shot down for no purpose at all.”

  39. JEHOVAH’S WITNESSES World War II • The Supreme Court held unconstitutional a state law requiring all children in the public schools to salute and pledge allegiance to the flag. • “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson West Virginia v. Barnette, 1943

  40. JAPANESE-AMERICANS World War II • Agitation for the mass evacuation of all persons of Japanese ancestry was flamed by newspaper and radio reports (all unsubstantiated) of Japanese subversion. • Although the Department of Justice argued against it, President Roosevelt signed Executive Order #9066 on February 19, 1942. • Between December 7, 1941 and April 15, 1945 there was no incident of any Japanese subversion.

  41. THE COLD WAR (1945-57) The McCarran Act of 1950 • Required all “Communist-action” and “Communist-front” organizations to register with the Attorney General. • Required all such organizations to disclose the names of their officers, the sources of their funds, and a list of all their members. • Groups were designated as “subversive” without requiring proof of any unlawful conduct by anyone. • Vetoed by President Truman but his veto was overidden.

  42. DENNIS V. U.S., 1950 • In 1948, a federal grand jury in New York indicted under the Smith Act twelve members of the national board of the Communist Party for conspiring to advocate the overthrowing of the government by force or violence. • The balancing of interests approach, or the clear and possible danger test.

  43. WHY THE CHANGE? • The House Un-American Activities Committee was investigating the influence of Communists in the government and in other areas. • The federal government instituted a loyalty program. • The accusations of Joseph McCarthy. • The Soviet domination of Eastern Europe. • The Soviet atomic bomb. • The fall of China. • The outbreak of the Korean War.

  44. YATES V. U.S., 1957 • By 1957, the fear of a Communist takeover had subsided. • Yates, a leader of the Community Party in California, had advocated Marxist-Leninist principles, and was convicted of violating the Smith Act. • The Court rules that the advocacy of unlawful conduct must include a call for specific, concrete action.

  45. BRANDENBURG V. OHIO, 1969 • Concerns the prosecution of Klansmen for threatening racial violence. • In what circumstances can a person be punished for expressly advocating unlawful conduct? • A state cannot forbid the advocacy of the use of force except when such advocacy is likely to incite or produce such action. Direct Incitement or Imminent Action Test “Punish the actor, not the speaker”

  46. HOW FREE?? Congress shall make no law . . . Clear & Present Danger Clear & Possible Danger Balancers Total Individual Freedom Total Government Control What does the Constitution say?

  47. “Those who would give up Liberty, to pursue a little temporary Safety, deserve neither Liberty nor Safety.” Benjamin Franklin (1755) Stated when his colony was faced with invasion by French and their Indian allies and proposals to curtain civil liberties were in the air. NSA Wiretapping

  48. SYMBOLIC SPEECH • Are thoughts that are expressed non-verbally protected by the freedom of speech clause in the First Amendment? • Is peaceful picketing a form of speech? • Thornhill v. Alabama, 1940

  49. SYMBOLIC SPEECH • May persons use the streets for the purpose of communicating ideas to the public? • May local governments regulate this activity by requiring demonstrators to seek a permit to parade on the streets?

  50. SYMBOLIC SPEECH • May a person in an anti-war demonstration burn his draft card as a symbol of his opposition to the war? • United States v. O’Brien, 1967 • No, as the card was intended primarily to protect the military’s need for soldiers, not to prevent people from criticizing government policy. This is a content neutral law as it did not solely apply to anti-war protesters.