CHAPTER
19
CIVIL
LIBERTIES
THE
FIRST AMENDMENT FREEDOMS
GENERAL INFORMATION
-
THE MAIN REASON FOR THE EXISTENCE OF GOVERNMENT IS
TO PROTECT INDIVIDUAL RIGHTS AND LIBERTIES
-
CIVIL LIBERTIES ARE PROTECTIONS AGAINST GOVERNMENT
-
CIVIL RIGHTS ARE POSITIVE ACTION OF GOVERNMENT TO MAKE
CONSTITUTIONAL GUARANTEES A REALITY
-
INDIVIDUAL RIGHTS ARE NOT ABSOLUTE BUT LIMITED rights
o
IN OUR RELATIONSHIP WITH THE COMMUNITY – CRIMINAL
LAW
o
IN OUR RELATIONSHIP WITH EACH OTHER – CIVIL LAW
§
CONFLICTING RIGHTS
-
GOVERNMENT MUST “BALANCE” ITS NEED TO ENFORCE LAW WITH
THE RIGHT OF ITS CITIZENS TO EXERCISE THEIR FREEDOM
-
RIGHTS ARE GUARANTEED TO ALL THOSE WHO RESIDE IN THE
o
ALIENS MAY HAVE RIGHTS RESTRICTED
-
DUAL CITIZENSHIP – WE ARE CITIZEN OF NATION AND STATE
o
THE BILL OF RIGHTS PROTECTS US AS NATIONAL CITIZENS
o
STATE CONSTITUTIONS PROTECT US AS STATE CITIZENS
o
FOR THE MOST PART THE BILL OF RIGHTS HAS BEEN NATIONALIZED
§
THE 14TH AMENDMENT HAS BEEN INTERPRETED
TO APPLY THE BILL OF RIGHTS TO THE STATES
19/2
§
EXCEPTIONS
·
RIGHT TO BEAR ARMS
(2)
·
RIGHT AGAINST QUARTERING OF TROOPS (3)
·
RIGHT TO AN INDICTMENT (5)
·
RIGHT TO A JURY TRIAL IN CIVIL CASES (7)
-
THE 9TH AMENDMENT GUARANTEES RIGHTS NOT
SPECIFICALLY LISTED IN THE BILL OF RIGHTS
o
EXAMPLES
§
THE RIGHT TO TRAVEL
§
THE RIGHT TO INCORPORATE OR START A BUSINESS
§
THE RIGHT AGAINST “TAINTED EVIDENCE” BEING USED TO
PROSECUTE
-
POWERS DENIED TO THE NATIONAL GOVERNMENT (I,8,9) AND
THOSE POWERS DENIED TO THE STATES (I,8,10) CAN BE REWORDED AS RIGHTS OF
CITIZENS
RELIGIOUS FREEDOMS OF THE FIRST AMENDMENT
-
FREEDOM OF RELIGION
-
FREEDOM AGAINST AN ESTABLISHMENT OF RELIGION (ESTABLISHMENT CLAUSE)
o
CREATES A “WALL OF SEPARATION” BETWEEN CHURCH AND
STATE
o
INTENDED TO PRECLUDE A NATIONAL RELIGION
o
IN TODAY’S DAY AND AGE IT IS INTERPRETED TO MEAN
THAT GOVERNMENT
§
SHALL NOT SHOW PREFERENCE OR DISCRIMINATE FOR ONE
RELIGION OVER ANOTHER
19/3
-
THE COURTS AND THE ESTABLISHMENT CLAUSE
§
ALLOWED
·
PUBLIC MONIES TO FUND
o
BOOKS IN SECTARIAN SCHOOLS
o
BUSING OF STUDENTS TO SECTARIAN SCHOOLS
o
SPECIAL ED REQUIREMENTS
o
STUDENT BIBLE CLUBS
o
STATE MANDATED STANDARDIZED TESTS
o
RATIONALE - THE CHILD BENEFIT THEORY
§
AID IS
TARGETED AT THE INDIVIDUAL AND NOT THE RELIGION
·
HISTORICAL USAGE WITH RELIGIOUS CONNOTATION
o
COINS AND CURRENCY
o
SEASONAL CHRISTMAS DISPLAYS
o
CHAPLAINS IN THE MILITARY AND CONGRESS
§ NOT ALLOWED
·
PRAYER IN SCHOOLS OR SCHOOL SPONSORED FUNCTIONS
o
ALSO INCLUDES MOMENTS OF SILENCE
·
MANDATING THE PLEDGE OF ALLEGIANCE
·
POSTING OF THE 10 COMMANDMENTS
·
RELEASE TIME EDUCATION
·
CREATIONISM
o
SCHOOLS CANNOT ADVOCATE THE TEACHING OF RELIGION BUT THEY CAN
TEACH ABOUT RELIGION
§ WHY?
·
ATHEISM IS CONSIDERED TO BE A RELIGION OF
NON-RELIGION – ANY REFERENCE TO A DEITY DISCRIMINATES AGAINST ATHEISTS
19/4
o
FINANCIAL AID TO SCHOOLS (SECTARIAN)
§
DISALLOWED
·
TUITION REIMBURSEMENT
·
PAYING SALARIES OF TEACHERS
§
TAX DEDUCTIONS ARE ALLOWED IF PARENTS OF ALL SCHOOL
AGED STUDENTS ARE PARTICIPANTS
§
VOUCHERS -?????? – AS OF TODAY – NO
§
AID CAN BE GIVEN AT THE COLLEGIATE LEVEL BECAUSE
STUDENTS ARE NO LONGER IMPRESSIONABLE
§
AID TO COLLEGES WHO HAVE DISCRIMINATORY ADMISSION
POLICIES
o
THE STATE CANNOT COMPEL PUBLIC SCHOOL ATTENDANCE
o
LEMON TEST
§
AID MUST BE SECULAR
§
AID MUST NEITHER INHIBIT NOR ADVANCE RELIGION
§
AID MUST NOT CAUSE EXCESSIVE ENTANGLEMENT
FREEDOM OF EXERCISE OF RELIGION
-
GOVERNMENT HAS THE AUTHORITY TO REGULATE (WITH
REGARD TO RELIGIOUS WORSHIP)
o
THE TIME
o
THE PLACE
o
THE CIRCUMSTANCES
-
POLYGAMY NOT PERMITTED
o
WHY – THIS RELIGIOUS PRACTICE VIOLATES FEDERAL LAW
-
STUDENTS CANNOT BE COMPELLED TO RECITE THE PLEDGE OF
ALLEGIANCE
-
CHILDREN CANNOT BE EXPOSED TO VENOMOUS SNAKES DURING
A RELIGIOUS CEREMONY
-
LIFE SUSTAINING MEDICAL TREATMENT CANNOT BE DENIED
TO CHILDREN BASES UPON A BELIEF SYSTEM
o
BELIEF IN FAITH HEALING
19/5
-
ANIMAL SACRIFICE CANNOT BE USED AS PART OF A
RELIGIOUS CEREMONY
o
EXCEPTION – IF THE ANIMAL IS CONSUMED (LIVESTOCK)
-
PEYOTE CAN BE USED AS PART OF A RELIGIOUS CEREMONY
-
UNEMPLOYMENT BENEFITS CANNOT BE DENIED TO THOSE WHO
REFUSE TO WORK ON THE SABBATH AND ARE FIRED
-
THE AMISH MUST
o
PROVIDE EDUCATION FOR THEIR CHILDREN
§
IT IS ONLY MANDATORY UP TO GRADE 8
o
BECOME PART OF SOCIAL SECURITY
o
SUBJECT THEMSELVES TO SELECTIVE SERVICE
FREEDOM OF SPEECH
-
TWO FUNDAMENTAL RIGHTS
o
THE RIGHT TO SAY
o
THE RIGHT TO HEAR
§
WE MUST BE WELL INFORMED TO MAKE A JUDICIOUS
DECISION IN A DEMOCRACY
§
THIS ESPECIALLY PROTECTS THE UNPOPULAR SPEAKER
-
SPEECH WHICH IS NOT PROTECTED
o
LIBEL –def – WRITTEN DEFAMATION
o
SLANDER – def – ORAL DEFAMATION
o
OBSCENITY – def – ANY EXPRESSION WHICH DEPICTS SEX IN A CRUDE OR
VULGAR MANNER
§ PRURIENT INTEREST TEST (ROTH
TEST)
·
ENTIRE TEXT (REDEEMING SOCIAL VALUE)
·
AVERAGE PERSON
·
PRESENT DAY STANDARDS
19/6
o
FIGHTING WORDS - def- ANY SPEECH WHICH INCITES OTHERS TO BREAK THE LAW – SEDITION
§
THE GOVERNMENT’S RIGHT TO MAINTAIN LAW AND ORDER
OUTWEIGHS THE RIGHT TO PROVOKE VIOLENCE
o
SUBVERSIVE SPEECH – def – SPEECH WHICH ENDANGERS NATIONAL SECURITY
§
GOVERNMENT HAS A RIGHT TO PROTECT ITSELF FROM SABOTAGE, ESPIONAGE,
TREASON, SEDITION, AND INTERNAL SUBVERSION
§
PRIOR RESTRAINT – def – CENSORSHIP – ILLEGAL
·
ALLOWED IF CLEAR AND PRESENT DANGER OF
SUBSTANTIVE EVIL EXISTS
·
THE MERE ADVOCACY OF PROHIBITIVE DOCTRINE CANNOT BE
CENSORED OR PUNISHED
§
EXCEPT
·
DURING WARTIME
·
IF MATERIAL IS OBSCENE
·
IF MATERIAL INCITES OTHERS TO VIOLENCE
-
SYMBOLIC SPEECH
o
ITS ALLOWANCE IS DEPENDENT UPON THE SPECIFIC
CIRCUMSTANCES OF THE CASE
§
BURNING OF DRAFT CARD – NO
§
WEARING ARMBANDS TO PROTEST WAR – YES
§
FLAG DESECRATION – YES
§
PICKETING – YES, IF LAWFUL
§
CAMPAIGN CONTRIBUTIONS – YES
§
PROFANE GESTURES TARGETED AT LAW ENFORCEMENT
OFFICIALS – NO
19/7
-
COMMERCIAL SPEECH (ADVERTISING)
o
ALLOWABLE IF IT ISN’T MISLEADING OR FRAUDULENT OR IF
IT DEALS WITH AN ILLEGAL ACTIVITY
o
COMMERCIAL SPEECH AND REGULATION
§
TOBACCO PRODUCTS - NO ON TV AND RADIO
·
O K IN MAGAZINES
§
ALCOHOL
·
TELEVISION ADS CAN BE RESTRICTED
·
O K IN MAGAZINES
§
ABORTION, CONTRACEPTIVES, OR BIRTH CONTROL SERVICES
– NO
§
LEGAL FEES – NO
§
THE STATE CANNOT REQUIRE ITS CITIZENS TO BE “MOBILE
BILLBOARDS”
·
LICENSE PLATES – “LIVE FREE OR DIE” –
-
MOTION PICTURES
o
ENJOY FREE SPEECH PROTECTIONS UNLESS OBSCENE
o
THE MOVIE INDUSTRY HAS SELF-IMPOSED A RATING SYSTEM
TO AVERT GOVERNMENTAL REGULATION
-
RADIO AND TELEVISION
o
VERY LIMITED 1ST AMENDMENT PROTECTION
o
REGULATED BY THE FCC UNDER ITS COMMERCE POWER
§
WHY – IT USES PUBLIC PROPERTY – THE AIRWAYS
o
THE CABLE INDUSTRY HAS MORE PROTECTION BECAUSE IT IS
NOT FREE
19/8
FREEDOM OF ASSEMBLY AND PETITION
-
THE ASSEMBLY MUST BE PEACEFUL
-
THE RIGHT TO ASSEMBLY DOES NOT INCLUDE THE VIOLATION
OF PRIVATE PROPERTY
-
THE GOVERNMENT CAN MAKE REASONABLE RULES CONCERNING
o
THE TIME
o
THE PLACE
o
THE MANNER OF ASSEMBLIES
-
TYPES OF ASSEMBLIES
o
PARADES
o
PICKETING
o
SIT-INS
o
RELIGIOUS SERVICES
o
DOWNTOWN LOITERING