Civil Liberties

Arguments for Religious Freedom

• Many of the founding fathers believed that the spiritual purity and sanctity of religion would be ruined if it mixed with the worldly realm of politics.

If religion becomes part of the government, in Madison’s words, it results in “pride and indolence in the clergy; ignorance and servility in the laity; in both superstition, bigotry and persecution.”

The Establishment Clause

• The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion.

Separationists vs. Accomodationists

The Supreme Court and the Establishment Clause

Lemon v. Kurtzman

• In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries.  

• To be Constitutional the challenged law must

• Have a secular purpose

• Neither advance nor inhibit religion

• Not foster excessive government entanglement with religion.

 

• In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

The Free Exercise Clause

• "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion.

• This freedom is not absolute.

• Several religious practices have been ruled unconstitutional including:

• snake handling

• use of illegal drugs

• Polygamy

• Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

First Amendment: Freedom of Speech and Press

• In the United States we each have the right to speak our mind (within some broad limits).

• In this section we will discuss

• The history of speech in the United States

• Prior Restraint

• Politically Correct and Hate Speech

• Symbolic Speech

• Libel and Slander

• The Internet

“make no law”

The Courts have frequently wrestled with the question of whether freedom of expression is an absolute. Does no mean no?

A Balance

• In their attempt to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like

• Public order

• National security

•  and the right to a fair trial

Alien and Sedition Acts (1798)

• These acts were designed to silence criticism of the government.

• They made it a criminal offense to publish “any false, scandalous writing against the government of the United States.”

• A new Congress allowed the acts to expire before the Supreme Court had a chance to rule on the Constitutionality of the laws.

Speech During the Civil War

• During the Civil War, President Lincoln suspended the free press provision of the First Amendment.

• President Lincoln also ordered the arrest of editors of two New York newspapers.  Congress supported him.

Espionage Act (1917)

• In World War I anti-German feelings ran high. Anything German was renamed – such as Sauerkraut to Liberty Cabbage.

• This law curtailed speech and press during World War I.

• The law made it illegal to urge resistance to the draft, and even prohibited the distribution of antiwar leaflets.

• Nearly 2,000 Americans were convicted under the Espionage Act.

Espionage Act (continued)

• Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft.

• The bad tendency test was used by the Court.  Engaging in speech that had a tendency to induce illegal behavior was not protected by the 1st Amendment.

Espionage Act (continued)

• Justice Holmes sought to allow limits on the 1st Amendment.

• Justice Holmes defined the “Clear and Present Danger” test in the Schenck case.

• “Even the most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre.”  Justice Holmes.

Debs v. United States (1919)

• In Debs the Court upheld the conviction of Eugene V. Debs (a Socialists candidate for the U.S. Presidency) because his anti-war speeches had the “tendency” to obstruct recruitment efforts.

• While serving his 20 year prison sentence he received nearly one million votes in the 1920 presidential election!  

• Debs was later pardoned by President Harding.

Libel and Slander

• Libel is a written statement that defames the character of a person.

• Slander is spoken words that defame the character of a person.

• In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved.

What is “obscene”?

• Efforts to define obscenity have perplexed courts for years.  Public standards vary from time to time, place to place and person to person.

• Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it." The ambiguity of definition still exists and is becoming even more problematic with the Internet.

• No nationwide consensus exists that offensive material should be banned.

Obscenity

• The courts have consistently ruled that states may protect children from obscenity (Osborne v. Ohio, 1991); while adults often have legal access to the same material.

• Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States, 1957) it has proven difficult to determine just what is obscene.

Miller vs. California

• Miller concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.

• In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.

"Three-Pronged Test" for Obscenity

In order to meet the definition of obscene material articulated in this case, three conditions must be met:

• whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest

• whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

• whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

What Types of Speech are Protected?

Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including:

• An example of protected symbolic speech would be the right of high school students to wear armbands to protest the Vietnam War (Tinker v. De Moines Independent Community School District, 1969).

• flying a communist red flag

• burning the American flag

Flag Burning

• Burning the American flag is a form of protected symbolic speech.

• The Supreme Court upheld that right in a 5-4 decision in Texas v. Johnson (1989).

• Prior Restraint – a government action that prevents material from being published.

• The Supreme Court has generally struck down prior restraint of speech and press (Near v. Minnesota, 1931).

• In NYT v. United States (1971) the Court ruled that the publication of the top-secret Pentagon Papers could not be blocked.

What Types of Speech are Protected?

Hate Speech – hate speech is the new frontier.

Campus speech codes, city ordinances, and the Communications Decency Act are just a few examples.

Politically Correct Speech

• This controversy grew out of the movement in colleges to ban offensive speech.

• Incidents in which reprimanded students have challenged the college’s code of speech have been challenged successfully by the American Civil Liberties Union

The Right to Keep and Bear Arms

• The 2nd Amendment states that

• "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

• This amendment has been hotly contested in recent years particularly since the 1999 shootings at Columbine High School.

• The Court has not incorporated this right, nor have they heard many cases about it.

Rights of Criminal Defendants

Fourth Amendment

• The 4th Amendment’s general purpose

• is to deny the government the authority to make general searches.

• The Supreme Court has interpreted the 4th to allow the police to search

• The person arrested

• Things in plain view of the accused

• Places or things that the person could touch or reach, or which are otherwise in the arrestee’s “immediate control.”

Fourth Amendment

• Provides protection against “unreasonable” searches and seizures

• Requires search warrants-probable cause

• Allows “Stop and Frisk”-warrant less searches only with reasonable suspicion

• Testing for drugs and HIV?

Fifth Amendment

• The 5th Amendment states that “No person shall be …compelled in any criminal case to be a witness against himself.

• So criminals cannot be required to take the stand in a trial.

Sixth Amendment

• The 6th Amendment Guarantees a right to counsel.  

• In the past this meant that a defendant could hire and attorney.

• Since most criminals are poor they did not have counsel.

• In the case of Gideon v. Wainwright (1963).

• In Gideon, a poor man, was accused of a crime and denied a lawyer.

• The Court ruled unanimously that a lawyer was a necessity in criminal court, not a luxury. The state must provide a lawyer to poor defendants in felony cases.

Eighth Amendment

• The 8th Amendment prohibits cruel and unusual punishment.

• The 8th is most often used in arguing death penalty cases?  Some of the major death penalty cases are:

• Furman v. Georgia (1972) the Court ruled that the death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner.

• Mckleskey v. Kemp  (1987) the Court rules that the death penalty – even when it appeared to discriminate against African Americans – did not violate the constitution.

• McKleskey v. Zant (1991) the Court made it more difficult for death row inmates to file repeated appeals.

The Right to Privacy

• The Supreme Court has also given protection to rights not specifically enumerated.

• The Court has ruled that though privacy is not specifically mentioned in the Constitution, the Framers expected some areas to be off-limits to government interference.

The Right to Privacy - Abortion

• In Roe v. Wade (1973) The Supreme Court ruled that a Texas law prohibiting abortion violated a woman's constitutional right to privacy.

• Since Roe, a number of other cases on abortion have been decided, in general they have limited abortion rights in some way.

• Webster v. Reproductive Health Services (1989) - upheld fetal viability tests

• Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - Pennsylvania was allowed to limit abortions as long as they did not pose 'an undue burden' on pregnant women.

The Right to PrivacyHomosexuality

• The Court has declined to extend privacy rights to protect homosexual acts.

• In 1986, the Court upheld a Georgia law against sodomy in a 5-4 decision in the case of Bowers v. Hardwick.

• However, in 1996, the Court ruled that a state could not deny rights to homosexuals simply on the basis of sexual preference.

The Right to PrivacyThe Right to Die

• In 1990, the Court heard the case Cruzan by Cruzan v. Director, Missouri Department of Health.

• In a 5-4 ruling, the Court rejected a right to privacy in such cases but argued that living wills, written when competent, were constitutional.

• In 1997, the Court ruled that there was no constitutional right to assisted suicide.