Constitutional Rights

Human Rights: fundamental freedoms that lie at the heart of the American Political System

(Rights you are born with, not given by government)

The Bill of Rights guarantees basic rights to all people.

The “Government” cannot abuse the rights of individuals. This LIMITS THE POWER OF FED GOV’T

The Bill of Rights was originally intended to offer protection against the actions of the federal government

The Bill of Rights was not originally directed at state or local governments

14th Amendment extended the rights guaranteed in the Bill of Rights to state and local governments

Due Process: No right can be denied without going through “DUE PROCESS OF LAW”

Constitutional Rights

1st: Freedom of Expression (Speech, Press, Religion, Assembly, Petition) 2nd: Right to Bear Arms 3rd: Right against quartering troops 4th: Freedom from unreasonable searches and

seizures 5th: Right to due process, grand jury, against self- incrimination, eminent domain 6th: Right to a fair trial 7th: Right to a Civil Trial, Jury Trial 8th: Right against Cruel and Unusual Punishment 9th: Rights reserved to the People 10th: Rights reserved to the State

The Bill of Rights

2 “Clauses”

◦ 1) The Establishment Clause: “Congress shall make no law respecting an establishment of religion”

◦ 2) The Free Exercise Clause: . . . “or prohibiting the free exercise thereof.”

Freedom of Religion

Religion in Public Life

◦ Everson v. Board of Education State paying for parochial schools not constitutional

◦ State Aid to Parochial Schools Some programs OK some are not (religious instruction)

◦ Release Time for Students Release time for religious instruction OK if on private property

◦ School Prayer Cases Engel v. Vitale (banned school prayer) Abington v. Schempp (banned school prayer) Wallace v. Jaffee (moment of silence)

◦ Equal Access Act Student groups have equal access to school facilities

◦ Teaching the Theory of Evolution Schools cannot “endorse” a particular religious doctrine

◦ Other Establishment Issues Nativity Scene on public property, funded with public monies

The Establishment Clause

Religious Practice Cannot place limits on HOW/IF you practice a religion

unless you pose a danger to yourself or others Compulsory Vaccinations/Medical Treatment Home Schooling

Religious Expression and the Flag Pledge of Allegiance

Required by state to say PofA Cannot force students to say/participate

Students/Teachers at School Saying a prayer Wearing a Cross

Free Exercise ClausePeople are not free to worship in ways that violate laws that

protect the health, safety, or morals of the community

Types of Speech◦ 1) Pure Speech: The words, themselves, are protected

◦ 2) Symbolic Speech: Actions and symbols that present speech are protected

TINKER v. DES MOINES SCHOOL DISTRICT (right to wear armbands at school)

TEXAS v. JOHNSON (flag burning) FRISBY v. SCHULTZ (City can limit WHERE free speech is exercised) HILL v. COLORADO (Limits how close to a medical facility protesters can

approach patients)

Freedom of Speech

Sedition (Speech urging resistance to lawful authority or advocating the overthrow of the government)

Hate groups pushing to act out against the government in violent ways Just saying the government should end is not enough

Clear and Present Danger (Speech that presents a “clear and present danger” balances public safety with free speech)

“Fire” in a crowded theater Breaking news of where/when military attack will occur NOT – interfering with draft literature during WWI

Other forms of Unprotected Speech◦ Defamation: false speech that damages a person’s good name,

character, or reputation SLANDER: Spoken LIBEL: Written

◦ “Fighting Words” are words that “tends to incite an immediate breach of the peace”

Regulating Speech

Key Cases

◦ 1) Tinker v. DesMoines: Students DO NOT give up their rights while in school

◦ 2) Hazelwood School District v. Kuhlmeier School officials have broad authority to regulate student

speech in school-sponsored newspapers, theatrical productions and other activities

◦ 3) Bethel School District v. Fraser Students can be suspended for lewd or indecent speech at

school events

◦ 4) Morse v. Frederick Students may be punished for displaying a banner at a

school-sponsored event that officials believed condoned the use of illegal drugs

Student Speech

Prior Restraint – censorship of information BEFORE it is published – is a common way for governments to control information and limit freedom

In the United States, the Court has ruled the press may be censored in advance only in cases relating directly to national security

Near v. Minnesota: A Minnesota law made it illegal to anything “malicious, scandalous, or defamatory. The Court ruled it unconstitutional because it involved prior restraint. You can sue AFTER, but not before something is printed

New York Times Co. v United States: “Pentagon Papers” US government sued to stop the printing of an article showing the government had lied about the casualty numbers from Vietnam. The Court ruled this would be prior restraint and ruled against the government.

“The press is to serve the governed not the governors. . . The press was protected so that it could bare the secrets of the government and inform the people.”

Justice Hugo Black, 1971

Freedom of the Press***Allows speech to be published, broadcast, circulated

***Includes: magazines, radio, TV, the Internet, newspapers, etc

Sheppard v. Maxwell: Press coverage may make getting a fair trial next to impossible. The Court ruled the judges could restrain coverage in some cases:• Move the trial to reduce pretrial press * Limit the number of reporters in the courtroom

• Control the reporter’s conduct in the courtroom * Isolate witnesses and jurors from the press

• Sequester the jury until the case in done

Gag Orders Unconstitutional: An order by the judge to limit what the press can print during the trial. The Court ruled the law to ‘too vague’. Gag orders can be issued to the lawyers.

Press Access to Trials: Press/public access can be limited if the judge found a “reasonable probability” that publicity would harm the defendant’s right to a fair trial. This is very hard to prove.

Protecting News Sources: Confidential sources are critical to reporters. Courts have, in the past, ordered reporters to name their sources in trials. Protecting the identity of a source is now protected in 30 states. “SHIELD LAWS” give the reporter legal protection from having to name their sources

Free Trials and Free Press

Radio, TV, and Movies (public airways) Public sites do not enjoy as much freedom FCC can punish stations that broadcast obscene or indecent language Cable deserves more 1st Amendment freedoms but less than magazines and

newspapers

E-mail and the Internet (highest level of protection to print media)

The Court ruled against limits on the Internet and pornography saying “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

Obscenity Society has a right to be protected from obscene pictures and speech Local Communities can set their own standards for obscenity

Advertising (“Commercial Speech” is given less protection) Advertisers have faced government regulation of their industry Since the mid 1970’s, limitations on advertisements must be justified to stand

Free Press Issues

This applies to public and private meetings This means the right to make views known to public

officials and other by such means as petitions letters lobbying, and carrying sign s I a parade and marching.

First upheld in 1937 in DeJonge v. Oregon. A public meeting to discuss communist views was deemed illegal. The Court ruled for DeJonge saying “peaceable assembly for lawful discussion cannot be made a crime.”

2 legal principles established◦ 1) The Right to Assemble is as important as the rights of free speech

and free press◦ 2) The 14th Amendment’s “DUE PROCESS” protects freedom of

assembly ◦ from state and local laws

Freedom of Assembly & Petition“the right of the people to peaceably assemble, and to petition

the Government for a redress of grievances.”

Assembly on Public Property: Rights to Assembly on PUBLIC lands◦ When assembly advocates an unpopular idea, potential problems exist◦ Government regulation has been upheld because of high potential of

violence Limits on Demonstrations

◦ A permit can be required (of all assemblies)◦ The permit must be to protect public safety not limit the ability to express

viewpoints in public Other Limits on Public Assembly

◦ Additional limits have been placed on certain public places(airports, libraries, courthouses, schools, county jail, etc)

◦ Limits can be placed if exercising your right limits the rights of another(school demonstration cannot interfere with ability to teach classes, demonstration at a trial

cannot interfere with the right to a fair trial)

Assembly and Property Rights◦ Cannot use private property that you don’t own without permission

(Abortion Protests outside a clinic that provides abortions)

Freedom of Assembly

Nazis in Stokie City leaders tried to deny group permit for a march celebrating Hitlers birthday Claimed march would cause great pain to Jewish residents To prevent the march, the city charged the group $350,000 bond for a parade

permit The group sued, saying it was limiting their free speech “Heckler’s Veto” public outcry against unpopular speech claiming possible violence

Feiner v. New York Feiner gave an unpopular speech in 1950. Police asked Feiner to stop speaking

when the crowd became large and threatening. When he refused, the police arrested him for disturbing the peace.

The Court ruled with the police, saying they had the responsibility to preserve pubic order

Gregory v. City of Chicago The Court ruled that “keeping the peace” was not a valid reason for denying a

permit for a march Gregory marched to call for the firing of the school superintendent. The potential

of violence, not from the marchers, but from those who gathered to harass the marchers caused the police to demand the marchers disperse.

When they refused, they were arrested. The convictions were overturned saying the marchers had done nothing but

exercise their right to free speech and assembly

Assembly and “Disorder”

“Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection.”

Neal Boortz

Explain what this quote means. Give examples from the text to support you explanation

Writing Assignment

Does the Constitution protect an individual’s right to join an organization that the government considers ‘subversive’?

Can the government restrict the right of assembly and association in order to protect the nation’s security?

Whitney v. California, 1927 Whitney attended a convention for Communists The Communist Party advocated workers using violent means to take over control

of property Whitney was convicted of breaking a California law just by being a member The Court ruled Whitney was not guilty of personally pressing for violence to

overthrow the government

During the 1950’s, the US government began arresting people for belonging to the Communist Party.

Rulings that only actual preparations for the use of force against the government were in fact punishable

Freedom of Association

As a citizen, you have the right to go to your government and petition for change◦ Change in laws◦ Change in leadership◦ Change in policy◦ To fix a problem created by the government

Freedom to Petition

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

Controversial Gun Rights vs. Gun Control Security of a free state vs. right of the people

Limits Guns designed to kill large number of people Military weaponry

2nd Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

Search Warrants Go before a judge or magistrate Swear on evidence presented State where and what to be searched for

4th Amendment

Grand Jury: must show evidence of crime before a trial for infamous crimes

Double Jeopardy: cannot be tried for the same crime twice

Right against self-incrimination: The government must prove you did something. You do not have to prove your innocence

Eminent domain: The government can take property if it is for a vital public project

Due Process: The government must go through specific processes before they take your life, liberty or property

5th Amendment

Right to a speedy and fair trial Speedy & Public Trial by an impartial jury

Fair Right to Counsel Right to know the charges Right to call witnesses in their behalf Right to confront witnesses against you

6th Amendment

Right to trial by jury for a civil suit Right to a civil trial for $20 or more

7th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted◦ Bail◦ Humane treatment whenever in the custody of

the government

8th Amendment

9th – Rights reserved to the people The Founding Fathers knew they could not list

every right the people would ever have. This allowed the Constitution to address things

the future might bring

10th – Rights reserved to the States 17 Powers of Congress & the Duties of the

President and the Supreme Court are listing in the Constitution

This reserves all other power to the states

9th & 10th Amendments

Essays: Pick two of the following three essays to answer fully.

1) Freedom of Speech is one of the most protected rights you have as a citizen of the United States. But that freedom only reaches so far. It was once said that you don’t have the right to yell “FIRE” in a crowded theater. What was meant by that as it pertains to free speech?

 2) Justice O.W. Holmes said, “The First Amendment is not to protect

free thought for those who agree with us but freedom for the thought that we hate.” This statement was designed to show that we must really be careful to protect the speech we disagree with. Why is that so important? Give examples

 3) Should government money be used on any religious item? (I am

not looking for your opinion to be one way or another. I am looking for the reasons you believe the way you do) Give examples

Extra Credit: Write down what right(s) each of the first 10 (Bill of Rights) amendment guarantees

Essays for Chapter 13-14

Thanks for a GREAT class