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					 Civil Liberties:
First Amendment Freedoms
      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.
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].
•1 The courts are the major guardians of civil rights.
•2 Without the 5 freedoms of expression, democracy could not exist.
•3 Individual rights are included because the people demanded them.
                Civil rights and Limited Government
   This 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.
The attacks of 9/11/01 raised important questions about how far the
government can go in investigating and prosecuting individuals. Congress
passed a new law, the Patriot Act, designed to increase federal powers in
investigating terrorists. It included these provisions:
 -The government may tap any telephone used by a suspect after receiving a court order.
-The government may tap Internet connections with a court order.
-The government may seize voicemail with a court order.
-Investigators can share information learned in grand jury proceedings.
-Any noncitizen may be held as a security risk for 7 days, or longer if certified to be a security risk.
-The federal government may track money across U.s. borders and among banks.
-The statute of limitations on terrorist crimes is eliminated, with increased penalties.
An executive order then proclaimed a national emergency so that any noncitizen
believed to be a terrorist or to have harbored a terrorist would be tried by a military court.
A military court operates with the following provisions:
 - The accused are tried before a commission of military officers.
 - A two thirds vote of the commission is needed to find the accused guilty.
 - An appeal by the accused may be made only to the secretary of defense or president.
The Patriot continues to raise issues regarding terrorism and civil liberties. The ability to
tap phones and Internet connections is an expansion of police powers that many feel is
dangerous and could lead to invasions of privacy against citizens who have no terrorist
ties. Government investigations into phone, Internet, voice mail, and even library records
can be conducted in secrecy without the knowledge of the person being investigated.
Many civil libertarians feel this is a violation of the due process of law.
    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.
•4 Relative Rights – when you 5 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 of fiction 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.
          Persons To Whom Rights Are Guaranteed
    Most 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
 6 [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.
Location of the 10
Internment camps
Jerome camp in Arkansas
 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
  Today the U.S. is home to
more than 1,000,000 Japanese-
• 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
Many rights are guaranteed against both the States and the national
     The Modifying Effect of the 14th Amendment
• Even though the Bill of Rights do not apply to the States [but to the
 7 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.

• 8 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.
• This is the “Incorporation Doctrine”- 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.
    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
• 6th’s guarantee to right to counsel.
     [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
• 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
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.
 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
10 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.
• Religious freedom is guaranteed through the:
• 11 Establishment clause – prohibits an
   “establishment of an official religion.”
   [In 1774, England established the church
   of England as the official church of the

• 12 Free Exercise clause–forbids arbitrary
   government interference in the “free
   exercise of religion” and allows you to
   hold no religious beliefs at all.

• 13 “…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.
• 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.”
14 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
15 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 oath in the name of God.
•   4. Sessions of government open 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.
                     Prayer Before High School Football Games
•    In 1989, the Supreme Court banned invocations before high school games by refusing
16   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.
     Here is the other team’s last touchdown. The score is 28-0.
   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.”
                       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.
17 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 allowed the 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.
              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.
18 Engel v. Vitale [Vi tal e’] [1962] – the Court outlawed
   the use of nondenominational prayers in public schools,
   whether voluntary or not. The NY State Board of
   Regents skeletal prayer read:
                                                         Engel family
  “Almighty God, we acknowledge our dependence upon Thee, and beg
  Thy blessings upon us, our parents, our teachers, and our country.”
• 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.
19 So, posting the 10 Commandments is unconstitutional.

• In 1985, the Court found Alabama’s “moment of silence”
20 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.

21 The Court has been more generous in applying the Establishment
   Clause to colleges and universities than to elementary and secondary
• Can there be chaplains in congress and the State legislatures – “Yes”
• The Court in 1983 said opening daily sessions of Congress or the
22 State legislatures is permissible. 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 Jones
   University, who said this was part of their religious beliefs) on the
   basis of race, 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
23 “charitable” organizations and can be denied tax-exempt status.
               TEST #1- LEMON TEST (based on Lemon v. Kurtzman, 1971) - In order
               for any government policy regarding religion it must pass a three-prong
Alton Lemon    test. This is the test commonly used to maintain separation of church and
            24 state to avoid “excessive entanglement” of government with religion.

                                                             YES- POLICY IS
   Does the policy have any NON-                           UNCONSTITUTIONAL!
   SECULAR (religious) purpose?
                                                             NO- GO ON TO
                                                              QUESTION 2

                                                             YES- POLICY IS
   TEST QUESTION (PRONG) 2                                 UNCONSTITUTIONAL!
   Does the policy PROMOTE or
                                                              NO- GO ON TO
   INHIBIT religion?                                           QUESTION 3

   TEST QUESTION (PRONG) 3                                   YES- POLICY IS
   Does the policy EXCESSIVELY
   involve government with                                   NO- POLICY IS
• use money to fund     • use money to pay
school buildings        for field trips
• buy textbooks         • buy religious
• buy computers         textbooks or bibles
• pay for lunches       (for the purpose of
• pay for buses         promoting a religion)
• pay to administer     • pay teacher salaries
standardized tests
• entitled to Title I
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?
•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.
Students may pray silently as much as they

Prayer at school graduations is prohibited.

Student led prayers at athletic events is

A “moment of silence” is fine… a moment of
“meditation of voluntary prayer” is not

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

… drawing the line between neutrality and
promotion is a difficult and controversial task!
• 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 wish but 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.]
25 The court said that doctrines of religious belief are not
   superior to the law. People’s religious beliefs can not
   violate the health, safety or morals of the community.
     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 26 can forbid an orthodox Jew from
     wearing his skull cap while on active duty.
 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 Yoder was 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.
They provide for their old people and refuse all government aid 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 felt that sending the Amish children to high school
  would take them away from the Amish community,
  physically and emotionally.

  Amish families are showing                 Some recently got out of jail
  signs of weakening. One in                 for drugs and took to the
  four Amish family members                  flush toilets and running
  is leaving.                                water.
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
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 children 27 can 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.
            Free Exercise Clause Rulings [continued]
10. Unemployment compensation 28 can 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.
   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 Witness children 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.”
• 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.”
• 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
• 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 prescribe what 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.
29 So, Jehovah’s Witnesses can not be made to pledge the flag.
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?
30 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
•   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.
         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
• 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
31 do not have an absolute right to publish what they want.
• These four things are not protected at all by the
  Constitution under free expression.
32 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                    “You ignorant slut!!!”
•   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 made with ‘actual malice’ –that is, with knowledge that
    it was false or with reckless disregard of whether it was
    false or not.”
• 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.

• 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
• 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.
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…
1. the average person, applying contemporary community
    standards, find, taken as a whole, appeal to the prurient
2. that depict or describe, in a patently offensive way,
    sexual conduct specifically defined by applicable state
3. 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
• 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.”
33 Prior Restraint – censorship of material before
it is spoken or published. Censorship before the
fact. Being stopped before you do it.
Near v. Minnesota [1931] Prior restraints were ruled to be unconstitutional,
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.
34 So, prior restraint is usually illegal, except in extreme cases.
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
35 confidentiality is not a constitutional right.
36 30 States have passed “Shield laws,” giving
   reporters some degree of protection against
   having to disclose their sources or reveal
   other confidential information.

• 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]
• Both radio and TV are subject to extensive federal regulation.
37 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.
• 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
• The Telecommunications Act of 1996 requires cable
TV operators that carry primarily dedicated to sexually
oriented programming to fully scramble or block such
• 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.
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.
    To Summarize Internet Restrictions on Free Speech
In 1996, congress passed the Communications Decency Act, making it
illegal to transmit indecent material via the internet. The law was
challenged and went to the Supreme Court. In 1997, this act of Congress was
declared unconstitutional. So today, speech on the internet is virtually

38 Symbolic Speech [nonverbal speech
  through the use of symbols such as
  flags, burning draft cards, buttons or
  wearing armbands] a person’s
  expression by conduct, rather than
  oral or published form. The Court has
  ruled some forms are acceptable
  while others are not.
39 Picketing –patrolling of a business site by workers on strike.
• Peaceful picketing is protected by the 1st and 14th Amendment.
• The Court in 1940 said it was not a crime to loiter about or
  picket a place of business to influence others not to trade or
  work there. However, picketing set in a background of
  violence may be prevented. Peaceful picketing may be
  restricted if it is for some illegal purpose.
• Murder, arson, and robbery can not be used as symbolic
39 Burning  of draft cards to protest the Vietnam War
   – The court in 1968, U. S. v. O’Brien [O’Brien
   burned his card in front of a sizable crowd], said
   you cannot violate a federal law that makes it a
   crime to destroy or mutilate the cards.
40 So, burning draft cards has been ruled a crime.
• Wearing of black armbands to class to
   publicize their opposition to the war
41 is legal. Mary Beth Tinker, a 13-year old
   Jr. High student, and two friends wore
   black armbands in 1965 to protest the
   Vietnam War. They refused to take
   them off and were suspended.
                                               Mary Beth & John Tinker
• The Court ruled in 1969, that suspension for wearing
  armbands was unconstitutional. Said the Court, “It can
  hardly be argued that either students or teachers shed
  their constitutional rights to freedom of speech or
  expression at the schoolhouse gate.” They also said school
  officials do not possess absolute authority over their students.
• So, it is legal to wear armbands to protest the war but you
  cannot burn a draft card.
• Lower courts have relied on Tinker in rulings on
  school attire, allowing nose rings and dyed hair,
  for example, but disallowing a clothing displaying
  a confederate flag.

                                                       OK   Not OK

• In 2007, the Court weighed in on another student expression
  case, Frederick v. Morse, ruling that schools can limit student
  speech that seems to advocate illegal drug use. The case
  concerned Joseph Frederick, an 18-year old senior at Juneau-
  Douglas High School in Alaska, who was suspended in 2002
  for 10 days holding a 14-foot banner that said “Bong [water pipe
  for marijuana] Hits 4 Jesus” while standing across the street
  from the school during the Olympic torch relay.
•   Your belongings can be searched, but not arbitrarily.
•   Background: A 14-year old freshman girl at Piscataway High in New
    Jersey, was caught smoking in a school bathroom by a teacher. The
    principal questioned her and asked to see her purse. The police were
    called and she admitted selling drugs at school.
•   Her case went to trial and she was found guilty of possession of marijuana and
    placed on probation. She appealed her conviction, claiming that the search of
    her purse violated her fourth Amendment protection against “unreasonable
    searches and seizures.”
•   Ruling: The Court ruled in favor of the school. Students have “legitimate
    expectations of privacy,” the court said, but that must be balanced with the
    school’s responsibility for “maintaining, an environment in which learning can
    take place.” The initial search of her purse for cigarettes was reasonable, the
    Court said, based on the teacher’s report that she’d been smoking in the
    bathroom. The discovery of rolling papers near the cigarettes in her purse
    created a reasonable suspicion that she possessed marijuana, the Court said,
    which justified further exploration.
•   Impact: This is the landmark case on search and seizure at school. School
    officials may search a student’s property if they have a “reasonable suspicion”
    that a school rule has been broken, or a student has committed or is in the process
    of committing a crime. These are called “suspicion-based” searches. There are also
    “suspicionless searches” in which everyone in a certain group is subject to a
    search at school.
•   Teachers can use corporal punishment, if your locality allows it.
•   James Ingraham, a 14-year-old 8th grader at Drew Junior High School
    in Miami, was taken to the principal’s office after a teacher accused him
    of being rowdy in the school auditorium. The principal decided to give
    him five swats with a paddle, but James said that he hadn’t done
    anything wrong and refused to be punished. He was subsequently held
    down while the principal gave him 20 swats.
•   While corporal punishment was permitted in the school district, James suffered
    bruises that kept him out of school for 10 days and he had to seek medical
    attention. James and his mother sued the principal and other school officials
    claiming the paddling violated 8th amendment protections against “cruel and
    unusual punishment.”
•   Ruling: The Court ruled against James. The Court said that reasonable physical
    discipline at school doesn’t violate the Constitution. The 8th Amendment, the
    Justices said, was designed to protect convicted criminals from excessive
    punishment at the hands of the government - not schoolchildren who misbehave.
•   Impact: The Court did direct teachers and principals to be cautious and use
    restraint when deciding whether to administer corporal punishment to
    students. The Justices suggested that school officials consider the seriousness
    of a student’s offense, the student’s attitude and past behavior, the age and
    physical condition of the student, and the availability of a less severe but equally
    effective means of discipline. 22 States currently permit corporal punishment
    in public schools and 28 have banned the practice.
• Teens can be tried as adults.
•   Background: Morris Kent, 16, who had been on probation since
    he was 14 for burglary and theft, was arrested and charged with
    three home burglaries, three robberies, and two counts of rape in
    Washington, D.D. Because of the seriousness of the charges and
    Morris’s previous criminal history, the prosecutor moved to try
    Morris in adult court.
•   Morris’s lawyer wanted the case to stay in juvenile court where the penalties were
    much less severe. He had planned to argue that Morris had a mental illness that
    should be taken into account when deciding where he would be tried. Without a
    hearing, the judge sided with the prosecutor and sent Morris to adult court, where
    he was found guilty and sentenced to 30 to 90 years in prison. Morris appealed,
    arguing that the case should have remained in juvenile court.
• Ruling: The Court ruled against Morris, and said that a minor can be tried
  and punished as an adult. However, the Justices said that in deciding
  whether to remove a case from juvenile court, judges must weigh a variety
  of factors, including the seriousness of the crime, the juvenile’s age; and
  the defendant’s criminal background and mental state.
•   Impact: How the courts treat juveniles in the legal system varies from State to State.
    In many States, those under 18 can be tried as adults for crimes such as murder,
    sexual assault, or possession or sale of drugs, with punishments that range up to
    life in prison without the possibility of parole. In 2005, the Court abolished the death
    penalty for juvenile offenders, saying it violated the 8th Amendment’s protection
    against “cruel and unusual punishments.”
• Zachary Guiles was suspended from
  his Vermont middle school for
  wearing a T-shirt that criticized
  President Bush and bore images of
  cocaine and a martini glass. The
  Court upheld a ruling that the school
  had no right to censor the shirt.

• After his suspension, Zachary returned to
  school with duct tape covering the
  offending images. An appeals court said
  the school had no right to censor any part
  of the shirt. In 2007, the Court said schools
  could regulate student expression if it
  advocated illegal drug use but that
  schools could not censor political
  speech.                                         Zachary Guiles
• In 1976, the Court said this is not a constitutional
  right even if he believes his long hair is a means of
  expressing his attitude and lifestyle.

• In 1976, The Court overturned a six-month
   sentence for treating the American flag
   “contemptuously.” So, using the flag
   as an article of clothing is not a criminal
• Flag burning – During the 1984 Republican
   national convention in Dallas, Gregory
   Johnson was arrested for burning a flag
   during a demonstration in front of City Hall. Gregory Johnson
• Johnson was convicted under a Texas law that provides for a
   jail term of up to one year and a fine up to $2,000 for
   “seriously” offending another person by desecrating a State
   or national object of veneration. The officers who arrested
   Johnson testified they were “seriously offended” by his act.
• Was this a symbolic gesture a democratic nation must tolerate
   or illegal?
• The Supreme Court in 1989 ruled
43 that flag burning is a form of
   symbolic speech.
• So not all conduct [nonverbal speech]
   can be justified as symbolic speech.
        Before we look at the next slides, how
        would you answer these questions?

1. Do citizens of States have to act as mobile billboards [display
     State slogans on their license plates] or if they don’t like it,
     can they cover it up?
2. Can abortion services be advertised in the newspaper?
3. Can prescription drug prices be advertised in the newspaper?
4. Can there be contraceptive advertising in the newspaper?
5. The government has banned cigarette ads on radio and TV
     but can they ban tobacco and snuff advertising as well?
6. Can attorneys advertise their fees?
7. Can public utility companies insert statements on monthly
     utility bills on controversial issues?
8. Can a political group put political pamphlets in your mailbox
     without putting a stamp on it?
• Advertising – What Can Be Advertised?
• Do citizens of States have to act as “mobile billboards” by
  having to display State slogans on auto license plates [or can
  you cover it with tape if it conflicts with your moral beliefs?]
• In New Hampshire, some Jehovah’s Witnesses objected to the
  State motto, “Live Free or Die,” having to be displayed on
  their license plate because it conflicted with their religious
  beliefs of “everlasting life.” One covered it with tape for 15
  days. The court, in 1977, said they could cover the mottos.
• Commercial Speech (like advertising) is far more
restricted than religious, political, and other speech.

• The Federal Trade Commission (FTC) decides what goods may
be advertised on radio and TV… cultural changes have made a
big difference over the years (i.e. tampons commercials could not
run, but cigarette ads could).

• The FTC tries to ensure truth in advertising, but there are
often overt references to products improving one’s love life.

• Excedrin was forced though, to remove ads that
suggested it stopped pain “on pain other than
headache” based on tests given after child birth.

• The Courts have recently asserted that the Constitution
does protect free speech by overturning state laws banning
commercials on condoms, abortion, casino gambling, and
legal services.
• In 1975 the Court said it was legal.

• In 1976 the Court said it was legal.

• In 1977 the Court said this was legal.

• In 1970, the government banned cigarette
  ads on radio and TV. In 1986, it added
  chewing tobacco and snuff.

• In 1996, the Court unanimously struck down a State law
  that prohibited ads in which liquor prices were listed.
• In 1977 the court said it was legal.

• In 1980 the court said this was legal.

• In 1981, the Court said this was not a constitutional right.
        Before we look at the next slides, how
        would you answer these questions?

1.   If an alien [member of a foreign nation] utters or publishes
     false or scandalous statements with intent to defame the
     government, can the president deport that alien?
2.   Can a city publicly fund a Nativity scene on public property,
     surrounded by commercial symbols of the Christmas
     season [for ex, Santa and his sleigh].
3.   As a protester, can you disrupt a classroom or shut down
     a speaker?
4.   Can the government force you to get a permit of advance
     notice to hold a demonstration?
5.   If the demonstrators are peaceful but the crowd is not, can
     the demonstrators be arrested? Can the demonstration be
• Focus: What are the limitations national security
  imposes on freedom of expression?
• Are those who seek to destroy the U.S. protected
  by constitutional guarantees?
• The government has the right to protect itself against internal
  subversion [domestic threats to national security] while
  preserving individual freedoms.
• So the nation must protect itself and preserve individual
  freedoms at the same time.
• The government may punish
  espionage [spying], sabotage
  [hindering the war or defense
  effort] and treason [giving aid
  to the enemy].
Because sedition [undermining legal authority or
  inciting rebellion against the government]
  involves the use of spoken or written words, it
  presents a more delicate problem. Here, there is
  no violence or betrayal. The court has said that
  seditious words must pose a “clear and present

Alien and Sedition Acts of 1798. This act was intended to stifle
  the opponents of John Adams and the Federalists. This was
  congress first attempt to curb opposition to the U.S.
  government. It was a crime to utter or publish false or
  scandalous statements with intent to defame the
  government. The President could deport any undesirable
  alien. 25 people were fined or jailed for violating them. They
  were unconstitutional and were later repealed.
• Espionage Act of 1917 – crime to encourage
   disloyalty, interfere with the draft, obstruct
   recruiting, incite insubordination in the armed
   forces or hinder the sale of government bonds.
   It made it a crime to willfully utter, print or write
   any disloyal, profane, or scurrilous, or abusive language about
   the government. It could result in a fine of $2,000 or two years
   in jail. This law does turn out to be constitutional.
• Schenck v. U.S. 1919 – the court laid down the famous “clear
   and present danger” test [government can restrain speech
   only when it presents an immediate threat to public order.]
   A nation has the right to protect itself by restricting
   freedom of speech during wartime.
44 So, there must be clear and present danger to arrest someone
   for sedition.
• Charles Schenck, the General-Secretary of the
  socialist party had sent 15,000 pamphlets urging
  new draftees to resist the draft and not cooperate
  in the war. He said draftees are little better than
  convicts. The Court decided that urging draft
  resistance posed a “clear and present danger
  that…will bring about…evils that Congress has a right to
  prevent.” he was convicted of obstructing the war effort. The
  Court said “words can be weapons” and the clear and
  present danger test holds that words can be outlawed if their
  use creates an immediate danger that criminal acts will follow.
• Sedition [advocating the overthrow of the government by
  mouth or print] during peacetime is possible.
• The Smith Act [1940] [a sedition law] – made it unlawful for
  any person to advocate the violent overthrow of the government
  or to be a member of a group with such an aim. The Court has
  said this law was legal but prosecutions under it are difficult.
• Freedom of Assembly [the right of
  people to unite many voices as one]
  and petition.
• Focus
• What limitations exist on assembly and petition?
• It does not guarantee the right to:
• Incite others to violence, riot, block a public street,
  close a school, or endanger life, property or public
• Protesters are not free to disrupt the
  classroom or to shout down a speaker.
• So, disturbing the peace or causing harm are not
Two facets:
   1. Literal right to gather together in a group
   2. Right to associate with those who share a
      common interest.
1. Right to Assemble: Can conflict with other values if it
   disrupts public order, traffic flow, peace and quiet, or
   the freedom of bystanders to go about their business.
    This right includes picketing, parading, and protest.
    Groups must often apply for a permit and post a
       bond of usually a few hundred dollars.
    They must pledge to demonstrate at a time and place
      that allows the police to prevent major disruptions.
    There is virtually no limitations on the content of group
      messages (Collins v. Smith, Skokie, IL.).
    Harassment is not allowed… pro-life protesters have often been accused of
    this, Particularly “Operation Rescue” who use extreme measures to prevent
    women from obtaining abortions.
    In 1994, Congress passed a law that focused on abortion clinic protestors
    The Court also decided in 1988 that picketing residential property was off
• Government can enforce reasonable rules covering
  assemblies to keep the public peace. These rules
  must be precisely drawn and publicly administered.
  You cannot make noise or cause any other diversion
  near a school.
• You cannot conduct a demonstration near a
  courthouse to influence court proceedings.
• The responsibility to keep a
  demonstration from growing
  into a riot or to control traffic
  can be used as an excuse to
  prevent speech.
• Demonstrations on jail premises may be forbidden.
• These demonstrations would take place on streets,
  sidewalks, parks, and public building.
• Public property is used to bring the message to those
  not aware of it and to reach those who may not agree
  with them.
• Demonstrations usually involve some conflict
  because a clash of ideas is normally present and
  heat is normally generated.
• The Court has upheld laws requiring permits and
  advance notice for demonstrations.
• Guidelines have been set on when to stop an
  unpopular group when its activities have excited
  others to violence.
• While under police protection, Dick led a group as they
   marched, singing, changing, and carrying placards, from
   city hall to the mayor’s home five miles away. They demanded
   the firing of the city’s school superintendent and an end to
   de facto segregation in the city’s schools.
• Hundreds of onlookers gathered and traded insults and threats. Rocks,
   eggs, and other missiles were thrown at the marchers. Fearing violence,
   police ordered Gregory and his group to disperse. They refused and
   were arrested, and charged with disorderly conduct. The Court
   unanimously overturned their conviction. It said the marchers had done no
   more than exercise their constitutional rights of assembly and petition. The
   disorders were caused by the residents and others, no but he
45 The Court said that as long as demonstrators act peacefully, they could not
   be arrested under an ordinance making disorderly conduct a crime.
• Demonstrations on Private Property [like large shopping centers].
• Private property is not a place of public assembly where you can trespass to
46 express political views. Demonstrators do not have a right to ask people to
   sign petitions or hand out political leaflets. The owners may allow this.
• Dick Gregory pushed the “Bahamian Diet” [weight loss powder]. He went
   from 350 pounds [and 4 packs of cigarettes a day] to 135 pounds lbs.

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