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Chapter 4. Civil Liberties. The Bill of Rights. The first ten amendments to the Constitution are intended to protect the civil liberties of Americans. The Bill of Rights contains specific guarantees such as freedom of speech, press, and religion and the right to a public and speedy trial
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Chapter 4 Civil Liberties
The Bill of Rights • The first ten amendments to the Constitution are intended to protect the civil liberties of Americans. • The Bill of Rights contains specific guarantees such as freedom of speech, press, and religion and the right to a public and speedy trial • The Ninth Amendment makes it clear that the listing of rights does not mean that others do not exist
The Bill of Rights • The Tenth Amendment reserves to the states those powers not delegated to the national government nor denied to the states • The First Amendment Applied to the States: The Incorporation Doctrine--Initially, the Bill of Rights was intended to limit the power of the national government to prevent infringement upon civil liberties. • Selective Incorporation--
Civil Liberties • The protection of civil liberties in the Bill of Rights has been the center of conflict between the basic values of freedom and order. • .
Thirteenth Amendment • Thirteenth Amendment--outlawed slavery throughout the United States
Fourteenth Amendment • Reversed Dred Scott by making all people who were born or naturalized in the U.S. citizens of both the U.S. and the states in which they resided. • This Amendment guaranteed “due process” of law (no state shall deprive any person of life, liberty, or property with out due process of law).
Fourteenth Amendment • “Equal protection” of laws to all persons, and prohibits states from abridging the “privileges and immunities” of citizens (no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
First Amendment and Religion • “Congress shall make no law respecting an established religion, or prohibiting the free exercise thereof.” • Note that there are two clauses: the establishment clause and the free exercise clause.
Religion • As the framers understood it, an “established” church is one singled out as the church of the nation. • .
Religion • In 1990, The Court upheld the constitutionality of the Equal Access Act, which declares that no public secondary school receiving federal funds may ban after-school meetings on school property by student religious or political groups if the same privilege is provided to other groups
“Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessing upon us, our parents, our teachers, and our country.” • Note it refers only to God, and not Jesus or any other figure associated with a particular religious denomination.
More important, the Regents stipulated that it was to be voluntary. • Nevertheless, it was challenged by a group of five parents, whose lawyer argued that it violated the establishment clause (which was “meant to keep religion out of public life”
The Ruling • The Supreme Court ruled in favor of the parents. Justice Black gave the majority opinion, stating that “Public school prayer is an established religion--perhaps not a particular religion…such a union tends to destroy government and degrade religion.”
Lemon v. Kurtzman • The Supreme Court said that the statute might incidentally benefit religion without violating the establishment clause, but for such a statute to pass constitutional muster, it must meet three criteria.
Three Criteria • 1)
The Court and Religion • While banning all religious activity, “even moments of silence,” from public schools while classes are in session, the Court has allowed religious groups to use schools after hours (1990 Equal Access Act)
The Court and Religion • The Supreme Court has upheld the constitutionality of state funded Nativity scenes, because it included secular Christmas figures (Santa, Carolers, etc.) • It also upheld the display of the Jewish menorah alongside a Christmas tree on public property and it ruled the KKK has a right to erect a cross in a state owned park that functions as forum for pr. exp
The Court and Religion • In 1994, the Court struck down a New York law that created a public school district for the benefit of a village of orthodox Hasidic Jews. • Minersville School District v. Gobitus (1940) the Court upheld the expulsion of two children who refused to salute the flag, even though it violated their faith as JWs. • West Virginia v. Barnette (1943),
The Court and Religion • In 1965, the Court denied three men conscientious objector status during the Vietnam War because they did not subscribe to organized religion which was entitled to deferments. • In 1990, the Supreme Court refused to grant membership of the Native American Church an exemption to use peyote in their religious observances
A Thread of Consistency? • Maybe it seems to be this: anything essentially secular, though it may include religious display or incidentally aid religious people, can enjoy state sponsorship, but when religion is brought in, at least when children are apt to be affected by it, there can be no state involvement.
Religion and the State • Should religion and the state be kept entirely separate in America? Should the wall of separation be unbreachable, or should the wall be low and porous?
Religion and the State • Some argue that religion and the state are “natural enemies” because they make competing claims on the mind. Faith implies the refusal to accept any laws but Gods. Thus, how can a government that relies on the perpetuation of its authority be compatible with an institution that dictates from invisible powers? • Others contend that the very authority of government depends on its ties to chr her.
Freedom of Speech • Congress shall make no law…abridging the freedom of speech. • “Sticks and Stones may break my bones but words will never hurt me.” • Acts can be harmful, but not words, “for words never committed a crime, no name ever violated a law, no speech ever broke a bone.”
Freedom of Speech • Words do have consequences. They helped bring about the Communist Revolution and the Third Reich in Germany. Words can inspire people to great deeds--they can also lead to infamous crimes. Thus, in a sense, speeches can break bones. • The Skokie March
Schenck v. United States (1919) • Some have interpreted the First Amendment literally, but the court has always been prepared to make exceptions.
Schenck v. U.S. • Charles Schenck, general secretary of the American Socialist Party, mailed potential draftees 15,000 leaflets that compared military conscription with slavery and urged readers to “assert your rights.” Schenck did nothing to obstruct the draft; his actions were only verbal. He was arrested under the Espionage Act of 1917.
Schenck v. U.S. • The Court’s opinion was written by Justice Holmes, who agreed that under normal times Schenck’s rights would have been protected under the First Amendment. But during wartime, Schenck’s act constituted a clear and present danger of an evil that government had a right to prevent. • Clear and present danger clause-- government has the right to restrict freedom of speech when public order is threatened.
Schenck v. U.S. • Holmes illustrated “clear and present danger” with the now classic allegory. “The most stringent protection of free speech would not protect a man from falsely shouting fire in a theater and causing panic.”
Chaplinsky v New Hampshire (1942) • In this case, a member of the JW had gotten into a fight on a sidewalk after calling a city official “a God damned racketeer” and a “damned fascist.”His conviction was upheld
Freedom of Speech • Gitlow v. New York (1925): Gitlow published “The Left Wing Manifesto” which embraced a militant socialism to mobilize the proletariat to destroy the existing order in favor of communism. Gitlow did not advocate specific action to break the law, but was convicted under the New York Criminal Anarchy Law.
Gitlow v. New York • The Supreme Court held that NY was bound by the First Amendment but then argued that even the First Amendment did not prohibit NY from incarcerating Gitlow.
“Politically Correct” Speech • This controversy grew out of the movement of universities to ban offensive speech. • At the University of Pennsylvania late one night, a white student shouts at noisy members of an African-American sorority, “Will you water buffaloes get out of here?” He is accused of racial harassment, and the university takes disciplinary action against him.
Speech • A University of Wisconsin student is suspended for telling an Asian-American, “It’s people like you--that’s the reason this country is screwed up.” • At Southern Methodist University, a student is sentenced to work with minority organizations for 30 hours because, among other things, he sang “We Shall Overcome” in a sarcastic manner. • During a class at the University of Michigan, a student argues that homosexuality could be treated with psychotherapy. He is accused of violating the campus rule against victimizing people on the basis of their sexual orientation.
Speech • Incidents in which reprimanded students have challenged the college’s code of speech have been challenged successfully by the American Civil Liberties Union.
Symbolic Expression • Non-verbal behavior has been upheld by the Court; although it is generally less protected than free speech.
Hate Crimes • Do people deserve protection against hate speech
Obscenity and Pornography • Roth v. United States (1957)--The Court held that to be considered obscene, the questionable material must be “utterly without redeeming social importance.”
Freedom of the Press • Alien and Sedition Acts (1798)--were designed to silence the criticism of the government, and made publication of “any false, scandalous writing against the government of the United States” a criminal offense. • During the Civil War, President Lincoln suspended the free press provision of the First Amendment and ordered the arrest of editors of two New York newspapers critical of him. Congress supported the President.
Freedom of the Press • Ex Parte McCardle (1869)-McCardle, a Mississippi newspaper editor, was jailed during the Civil War by a military court with having charges brought against him when he criticized the Union occupation and threatened to arouse anti-Lincoln sentiment. Congress barred the Supreme Court from hearing appeals of cases of convictions for publishing criticisms of the Union government. Since Article III of the Constitution gives Congress the power to determine jurisdiction of the Court, the Court had no authority to rule on the matter.
Freedom of Press • States began to prosecute individuals who espoused unpopular beliefs. State laws curtailing speech and press went unchallenged for years.
Freedom of the Press • New York Times Co. v Sullivan 1964 • The Supreme Court declared that the freedom of the press takes precedence over the rights of public officials suing for libel. (libel=written, slander=oral) • The Court has extended the concept of freedom of the press to protect publishers against suits from public figures • The Court has consistently held that freedom of press does not override the requirements of law enforcement
