Unit 2, Lesson 1 – Flashcards

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Examples of Civil Liberties
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Protest Marches Press Speech Going to Church Speaking at Graduation Newspapers Signing a Petition A Fair Trial Prayer in School
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Examples of Civil Rights
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Running for Office Affirmative Action Equal pay Anti-Discrimination Laws Voting in Elections
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What's essential to a democracy?
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freedoms of speech & press; according to John Locke, protection of those rights is the reason for the existence of government
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Conservatives usually support narrowing the scope of government, yet many strongly support
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government-imposed limits on abortion & government-sanctioned prayers in public schools; they also want government to be less hindered by concern for defendants' rights
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Liberals, who typically support a broader scope of government, usually want to
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limit government's role in prohibiting abortion & encouraging religious activities & to place greater constraints on government's freedom of action in the criminal justice system
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Civil Liberties
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Individual legal & constitutional protections against the government; although formally set down in Bill of Rights (1st 10 amendments to Constitution), the courts, police, & legislatures define their meanings Disputes often end up in court; Supreme Court is final interpreter of content & scope of our liberties, & this ultimate power to interpret Constitution accounts for ferocious debate over presidential appointments to Supreme Court
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Bill of Rights
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By 1787, all state constitutions had bills of rights; new US Constitution had no bill of rights, but state ratifying conventions made its inclusion a condition of ratification; First Congress passed Bill of Rights & sent it to states for ratification; in 1791, these amendments became part of Constitution 1st ten amendments to US Constitution, which define such basic liberties as freedom of religion, speech, & press, guarantee defendants' rights, & protection against arbitrary searches & being held for long periods without trial
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Political scientists have discovered that people are
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devotees of rights in theory but that their support wavers when it comes time to put those rights into practice
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First Amendment
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The constitutional amendment that establishes the four great liberties: freedom of the press, of speech, of religion, & of assembly
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Bill of Rights & the States
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Founders wrote Bill of Rights to restrict powers of new national government; in 1791, Americans were comfortable with their state governments; after all, every state constitution had its own bill of rights; thus, a literal reading of First Amendment suggests that it doesn't prohibit state government from passing a law prohibiting free exercise of religion, free speech, or freedom of press What happens if a state passes a law violating a right protected by federal Bill of Rights & state's constitution doesn't prohibit this abridgment of freedom?; in 1833, the answer was "nothing"; Bill of Rights, said Court in Barron v. Baltimore, restrained only national government, not states & cities In 1925, Court ruled that state government must respect some First Amendment rights; ruling in Gitlow v. New York relied on 14th Amendment; Court interpreted 14th Amendment to say that states couldn't abridge freedoms of expression protected by 1st Amendment; this decision began development of incorporation doctrine Initially, Supreme Court held only parts of 1st Amendment to be binding on states as result of Gitlow; gradually, especially during 1960s, Court applied most of the Bill of Rights to the states; many judicial decisions that empowered Bill of Rights were controversial, but today, Bill of Rights guarantees individual freedoms against infringement by state & local governments as well as by national government; only 3rd & 7th Amendments, grand jury requirement of 5th Amendment, & prohibition against excessive fines & bail in 8th Amendment haven't been applied specifically to the states
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Barron v. Baltimore
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1833 Supreme Court decision holding that Bill of Rights restrained only national government, not states & cities
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Gitlow v. New York
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1925 Supreme Court decision holding that freedoms of press & speech are "fundamental personal rights & liberties protected by due process clause of 14th Amendment from impairment by the states" as well as by the federal government
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Fourteenth Amendment
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The 2nd of 3 "Civil War Amendments" that ended slavery, gave former slaves legal protection, & ensured their voting rights Ratified in 1868 Constitutional amendment adopted after Civil War that declares "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"
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incorporation doctrine
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legal concept under which Supreme Court has nationalized Bill of Rights by making most of its provisions applicable to states through Fourteenth Amendment
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Freedom of Religion
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1st Amendment contains 2 elements regarding religion & government, commonly referred to as establishment clause & free exercise clause These freedoms conflict; for example, in government's practice of providing chaplains on military bases
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due process clause
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part of the 14th Amendment guaranteeing that persons cannot be deprived of life, liberty, or property by US or state governments without due process of law
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Establishment Clause
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Part of 1st Amendment stating that "Congress shall make no law respecting an establishment of religion" Some nations, such as GB, have an established church that's officially supported by government & recognized as national institution; a few American colonies had official churches, but religious persecutions that incited many colonists to move to America discouraged any desire that First Congress might have had to establish national church in US, so 1st Amendment prohibits an established national religion Not clear what else First Congress intended to include in establishment clause; some argued that it meant only that government couldn't favor one religion over another; in contrast, Thomas Jefferson argued that First Amendment created "wall of separation" between church & state, forbidding not just favoritism but also any support for religion at all; these interpretations continue to provoke argument, especially when religion is mixed with education, as occurs with issues of government aid to church-related schools & prayer in public schools Proponents of aid to church-related schools argue that it doesn't favor any specific religion; some opponents reply that Roman Catholic Church has by far largest religious school system in country & gets most of the aid; it was Protestant Lyndon B. Johnson who obtained passage of first substantial aid to parochial elementary & secondary schools; he argued that aid went to students, not schools, & should go wherever students were, including church-related schools Court has allowed religiously affiliated colleges & universities to use public funds to construct buildings; public funds may also be used to provide students in parochial schools with textbooks, computers, & other instructional equipment, lunches, & transportation to & from school & to administer standardized testing services; however, schools may not use public funds to pay teacher salaries or to provide transportation for students on field trips; theory underlying these decisions is that it's possible to determine that buildings, textbooks, lunches, school buses, & national tests aren't used to support sectarian education; however, determining how teachers handle a subject in class or focus a field trip may require complex & constitutionally impermissible regulation of religion Supreme Court has been opening public schools to religious activities; Court decided that public universities that permit student groups to use their facilities must allow student religious groups on campus to use the facilities for religious worship In 1995, Court held that University of Virginia was constitutionally required to subsidize student religious magazine on same basis as other student publications; in 2004, Court held that state of Washington was within its rights when it excluded students pursuing a devotional theology degree from its general scholarship program Threshold of constitutional acceptability becomes higher when public funds are used in a more direct way to support education; school authorities may not permit religious instructors to come into public school buildings during the school day to provide religious education, although they may release students from part of the compulsory school day to receive religious instruction elsewhere; in 1980, Court prohibited posting of Ten Commandments on walls of public classrooms School prayer is most controversial religious issue; in 1962 & 1963, Court aroused wrath of many Americans by ruling that voluntary recitations of prayers or Bible passages, when done as part of classroom exercises in public schools, violated establishment clause Constitution forbids sponsorship or encouragement of prayer, directly or indirectly, by public school authorities; in 1992, Court ruled that school-sponsored prayer at public school graduation violated constitutional separation of church & state; in 2000, Court held that student-led prayer at football games was also unconstitutional; 3 Alabama laws authorized schools to hold one-minute periods of silence for meditation or voluntary prayer, but Court rejected this approach because state made it clear that purpose of statute was to return prayer to schools; Court indicated that a less clumsy approach would pass its scrutiny Religious issues & controversies have more importance in political debate than before, mostly due to fundamentalist religious groups that have spurred their members to political action; many school districts have ignored Supreme Court's ban on school prayer & continue to allow prayers in their classrooms; some religious groups & members of Congress, especially conservative Republicans, have pushed for constitutional amendment permitting prayer in school; majority of public consistently supports school prayer Fundamentalist Christian groups have pressed some state legislatures to mandate teaching of creation science (their alternative to Darwinian theories of evolution) in public schools; Louisiana passed law requiring schools that taught Darwinian theory to teach creation science, too; Supreme Court ruled in 1987 that this law violated establishment clause; Court had ruled in 1968 that states can't prohibit Darwin's theory of evolution from being taught in public schools; more recently, some groups have advocated "intelligent design," (view that living things are too complicated to have resulted from natural selection & must be result of an intelligent cause, as an alternative to evolution); claim that belief has no religious implications,, but lower courts have begun to rule that requiring teachers to present intelligent design as an alternative to evolution is a constitutionally unacceptable promotion of religion in classroom In 2005, Supreme Court found that 2 Kentucky counties violated establishment clause value of official religious neutrality when they posted large, readily visible copies of Ten Commandments in their courthouses; Court concluded that counties' ostensible & predominant purpose was to advance religion, but Court didn't hold that a governmental body can never integrate sacred text constitutionally into governmental display on law or history; in 2005, Court upheld inclusion of monolith inscribed with Ten Commandments among 21 historical markers & 17 monuments surrounding Texas State Capital; Court argued that simply having religious content or promoting message consistent with religious doctrine doesn't run afoul of establishment clause; Texas's placements of Commandments monument on its capitol grounds was far more passive use of those texts than their posting in elementary school classrooms & also served a legitimate historical purpose Holiday religious symbol display have created controversy; in 1984, Court found that Pawtucket, Rhode Island, could set up Christmas nativity scene on public property, along with Santa's house & sleigh, Christmas tree, & other symbols of Christmas season; 5 years later, Court extended principle to Hanukkah menorah placed next to Christmas tree; Court concluded that these displays had secular purpose & provided little or no benefit to religion; at same time, Court invalidated display of nativity scene without secular symbols in a courthouse because, in this context, county gave impression of endorsing display's religious message Court's basic position is that Constitution doesn't require complete separation of church & state; it mandates accommodation of all religions & forbids hostility toward any; at same time, Constitution forbids government endorsement of religious beliefs
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Free Exercise Clause
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Prohibits abridgment of citizens' freedom to worship or not to worship as they please In general, Americans are tolerant of those with religious views outside the mainstream Religions sometimes forbid actions that society thinks are necessary, or religions may require actions that society finds unacceptable; Muhammad Ali refused induction into armed services during Vietnam War because military service would violate his Muslim faith; Amish parents often refuse to send their kids to public schools; Jehovah's Witnesses & Christian Scientists may refuse to accept blood transfusions & certain other kinds of medical treatment for themselves or their children Courts have been more cautious about right to practice a belief than about the right for people to believe what they want; Court has upheld laws & regulations forbidding polygamy, prohibiting business activities on Sunday (restricting commerce of Orthodox Jews/Adventists, for whom Sunday is a workday), denying tax exemptions to religious schools that discriminate on the basis of race, allowing building of road through ground sacred to some Native Americans, & even prohibiting Jewish air force captain from wearing his yarmulke while on duty (Congress later intervened to permit military personnel to wear yarmulkes) Congress & Supreme Court have granted protection to a range of religiously motivated practices; Court allowed Amish parents to take their children out of school after 8th grade; reasoning that Amish community was well established & that its children wouldn't burden the state, Court held that religious freedom took precedence over compulsory education laws; more broadly, although a state can compel parents to send their kids to an accredited school, parents have a right to choose religious schools rather than public schools for their children's education; a state may not require Jehovah's Witnesses or members of other religions to participate in public school flag-saluting ceremonies; Congress has also decided, & courts have upheld, that people can become conscientous objectors to war on religious grounds In 1988, Court upheld Oregon's prosecution of people using drug peyote as part of their religious rituals (Employment Division v. Smith); Court discarded its previous requirement for a compelling interest before a government could even indirectly limit or prohibit religious practices & decided that state laws interfering with religious practices but not specifically aimed at religion were constitutional; as long as a law doesn't single out & ban religious practices because they're engaged in for religious reasons or only because of the religious belief they display, a general law may be applied to conduct even if the conduct is religiously inspired In Religious Freedom Restoration Act of 1993, Congress attempted to overturn principle that Court had articulated in Employment Division v. Smith; this act conferred on all persons the right to perform their religious rituals unless government could show that law or regulation in question was narrowly tailored & in pursuit of a compelling interest; in 1997, Supreme Court declared this act, as applied to states, was unconstitutional intrusion by Congress into states' prerogatives for regulating health & welfare of citizens; Religious Freedom Restoration Act does apply to national government, in & 2006, Court allowed small religious sect to use a hallucinogenic tea in its rituals despite federal government's attempts to bar its use In 2000, Congress passed narrower legislation that, in accordance with "compelling interest" standard, made it more difficult for local governments to enforce zoning or other regulations against religious groups & required governments to allow those institutionalized in state facilities, such as prisons, to practice their faith; Supreme Court upheld this law in 2005
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Lemon v. Kurtzman
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1971 Supreme Court decision that established that aid to church-related schools must 1. Have a secular legislative purpose 2. Have a primary effect that neither advances nor inhibits religion 3. Not foster an excessive government "entanglement" with religion
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Agostini v. Felton
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1997 Supreme Court decision that allowed public school systems to send teachers into parochial schools to teach remedial & supplemental classes to needy children Important loosening of its constraints on aid to parochial schools
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Zelman v. Simmons-Harris
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2002 landmark Supreme Court decision that upheld a state program providing families in Cleveland, Ohio with vouchers that could be used to pay for tuition at religious schools
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Kiryas Joel v. Grumet
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1994 Supreme Court decision that stated NY state had gone too far in favoring religion when it created public school district for benefit of a village of Hasidic Jews
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1984 Equal Access Act
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An act in which Congress made it unlawful for any public high school receiving federal funds (almost all) to keep student groups from using school facilities for religious worship if the school opens its facilities for other student meetings; in 2001, Supreme Court extended this principle to public elementary schools; similarly, in 1993, Court required public schools that rent facilities to organizations to do the same for religious groups
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Engel v. Vitale
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1962 Supreme Court decision holding that state officials violated First Amendment when they wrote a prayer to be recited by New York's schoolchildren
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School District of Abington Township, Pennsylvania v. Schempp
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1963 Supreme Court decision holding that Pennsylvania law requiring Bible reading in schools violated establishment clause of First Amendment
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Why it Matters: The Establishment Clause
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If a dominant religion received public funds & were in a position to control health care, public education, & other important aspects of public policy, these policies might be quite different from what they are today In addition, potential for conflict between followers of the established religion & adherents of other religions would be substantial
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Freedom of Expression
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Democracy depends on free expression of ideas (enemies of democratic process are muffled thoughts, forbidden speech, & meetings that can't be held) Americans pride themselves on their free & open society; Americans can believe whatever they want (freedom of conscience), & First Amendment plainly forbids national government from limiting freedom of expression (right to say or publish what one believes); Supreme Court Justice Hugo Black thought freedom of expression, like freedom of conscience, was absolute; he pointed out that First Amendment said Congress shall make no law; in contrast, Justice Oliver Wendell Holmes offered classic example of impermissible speech in 1919 Courts have been called on to decide where to draw line separating permissible from impermissible speech; can government censor speech that it thinks will violate law, & what constitutes speech or press within meaning of First Amendment & thus deserves constitutional protection, & what doesn't; holding political rally to attack opposing candidate's stand on important issues receives First Amendment protection, but obscenity & libel & incitements to violence & overthrow of government don't; certain forms of nonverbal speech, such as picketing, are considered symbolic speech & receive First Amendment protection; judges also have had to balance freedom of expression against competing values, such as public order, national security, & right to fair trial; regulating publicly owned airwaves raises another set of difficult questions Controversial freedom of expression issue involves hate speech; advocates of regulating it argue that racial insults, like fighting words, are "undeserving of First Amendment protection because perpetrator's intent isn't to discover truth or invite dialogue, but to injure victim"; critics of hate speech policy argue that sacrificing free speech rights is too high a price to pay to advance cause of equality; in 1992, Supreme Court ruled that legislatures & universities may not single out racial, religious, or sexual insults or threats for prosecution as hate speech or bias crimes
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Prior Restraint
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A government preventing material from being published; this is a common method of limiting the press in some nations, but it is usually unconstitutional in US, according to First Amendment & as confirmed in 1931 Supreme Court case of Near v. Minnesota In one word, censorship First Amendment ensures there won't be prior restraint (censorship) Extent of an individual's or group's freedom from prior restraint depends in part on who that individual or group is; expressions of students in public school may be limited more than those of adults in other settings; in 1988, Supreme Court ruled that high school newspaper wasn't a public forum & could be regulated in "any reasonable manner" by school officials; in 2007, Court held that special characteristics of school environment & governmental interest in stopping student drug abuse allow schools to restrict student expressions that they reasonably regard as promoting such abuse Supreme Court has upheld restrictions on right to publish in name of national security; wartime often brings censorship to protect classified information; these restrictions often have public support (few would find it unconstitutional if a newspaper were hauled into court for publishing troop movement plans during a war); during Persian Gulf War, reporters could get to field only in company of official Pentagon press representatives; restrictions upheld haven't been limited to wartime censorship; national government has successfully sued former CIA agents for failing to meet their contractual obligations to submit books about their work to agency for censorship, even though books revealed no classified information Courts are reluctant to issue injunctions prohibiting publication of material even in area of national security; most famous case regarding prior restraint & national security involved publication of stolen Pentagon papers
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Near v. Minnesota
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1931 Supreme Court decision holding that First Amendment protects newspapers from prior restraint; blunt newspaper editor called local officials a string of names including grafters & Jewish gangsters; state closed down his business, but Supreme Court ordered paper reopened; newspaper editor or anyone else could later be punished for violating a law or someone's rights after publication
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Free Speech & Public Order
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In wartime & peacetime, considerable conflict has arisen over trade-off between free speech & need for public order Courts confronted issue of free speech & public order during 1950s; in late 1940s & early 1950s, there was widespread fear that communists had infiltrated government; American anticommunism was a powerful force, & national government was determined to jail leaders of Communist Party; Senator Joseph McCarthy & others in Congress persecuted people whom they thought were subversive, based on Smith Act of 1940, which forbade advocating violent overthrow of American government; in Dennis v. United States (1951), Supreme Court upheld prison sentences for several Communist Party leaders for conspiring to advocate violent overthrow of government, even in absence of evidence that they actually urged people to commit specific acts of violence; tiny, unpopular group; Court ruled that communist takeover was so grave a danger that government could squelch their threat; it concluded that protecting national security outweighed First Amendment rights Political climate changed, & Court narrowed interpretation of Smith Act, making it more difficult to prosecute dissenters; in later years, Court has found that it's permissible to advocate violent overthrow of government in the abstract but not actually to incite anyone to imminent lawless action (Yates v. United States [1957); Brandenburg v. Ohio [1969]) 1960s brought waves of protest over political, economic, racial, & social issues & especially the Vietnam War; many people in more recent times have engaged in public demonstrations, such as opposing war in Iraq; courts have been quite supportive of right to protest, pass out leaflets, or gather signatures on petitions, as long as it's done in public places; people may even distribute campaign literature anonymously; constitutional protections diminish once a person steps on private property, such a most shopping centers; Supreme Court has held that federal free speech guarantees didn't apply when a person was on private property; however, it upheld state's power to include politicking in shopping centers within its own free speech guarantee, & in 1994, Supreme Court ruled that cities can't bar residents from posting signs on their own property
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Schenck v. United States
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1919 Supreme Court decision upholding conviction of a socialist who had urged young men to resist the draft during World War I; Justice Holmes declared that government can limit speech if the speech provokes a "clear & present danger" of substantive evils; only when such danger exists can government restrain speech, it's difficult to say when speech becomes dangerous rather than simply inconvenient for government During World War I, Charles T. Schenck, secretary of American Socialist Party, distributed thousands of leaflets urging young men to resist draft; Schenck was charged with impending war effort, & Supreme Court upheld his conviction in 1919 in Schenck v. United States
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What often determines what limits the government will place on free speech?
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the prevailing political climate
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Obscenity
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One of more perplexing of free speech issues In 1957, Supreme Court held that "obscenity isn't within area of constitutionally protected speech or press" (Roth v. United States); deciding what's obscene hasn't been an easy matter; public standards vary from time to time, place to place, & person to person; works that some people call obscene might be good entertainment or even great art to others; at one time another, works of Aristophanes, Mark Twain, & even "Tarzan" stories by Edgar Rice Burroughs were banned; state of Georgia banned acclaimed film Carnal Knowledge (a ban Supreme Court struck down in 1974) Court tried to clarify its doctrine by spelling out what could be classified as obscene & thus outside First Amendment Protection in 1973 case of Miller v. California Court did provide a few plain examples of what sort of material might fall within this definition of obscenity; among these examples were patently offensive representations of ultimate sexual acts, actual or simulated; patently offensive representations of masturbation or excretory functions, or lewd exhibition of the genitals; cities throughout country duplicated language of Miller v. California in their obscenity ordinances; qualifying adjectives lewd & offensive prevent communities from banning anatomy texts as obscene; difficulty remains in determining what is lewd or offensive Obscenity convictions can be difficult to obtain because there's no nationwide consensus that offensive material should be banned, at least not when it's restricted to adults; in many communities the laws are lenient regarding pornography, & prosecutors know that they may not get a jury to convict, even when disputed material is obscene as defined by Miller; thus, obscene material is widely available in adult bookstores, video stores, & movie theaters Despite Court's best efforts to define obscenity & determine when it can be banned, state & local governments continue to struggle with application of these rulings; in one famous case, a small New Jersey town tried to get rid of a nude dancing parlor by using its zoning power to ban all live entertainment; Court held that measure was too broad, restricting too much expression, & thus unlawful; however, Court has upheld laws specifically banning nude dancing when their effect on overall expression was minimal; Jacksonville, Florida, tried to ban drive-in movies containing nudity Regulations aimed at keeping obscene material away from the young, who are considered more vulnerable to its harmful influences, have wide support, & courts have consistently ruled that states may protect children from obscenity; rating scheme of Motion Picture Association of America is one example, as is more recent TV ratings system; also strongly supported are laws designed to protect young against pornographic exploitation; it's a violation of federal law to receive sexually explicit photographs of children through the mail or over the Internet, and in 1990 Supreme Court upheld Ohio's law forbidding possession of child pornography Internet & World Wide Web make it easier to distribute obscene material rapidly, & a number of online information services have taken advantage of this opportunity; in 1996, Congress passed Communications Decency Act, banning obscene material & criminalizing transmission of indecent speech or images to anyone under 18 years of age; law made no exception for material that has serious literary, artistic, political, or scientific merit as outlined in Miller v. California, & in 1997, Supreme Court overturned it as being overly broad & vague & violation of free speech; in 2002, Court overturned law banning virtual child pornography on similar grounds (apparently Supreme Court views Internet similarly to print media, with similar protections against government regulation); in 1999, Court upheld prohibitions on obscene e-mail & faxes
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Roth v. United States
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1967 Supreme Court decision ruling that "obscenity isn't within area of constitutionally protected speech or press"
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Miller v. California
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1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene Warren Burger, chief justice at the time, wrote that materials were obscene under following circumstances: The work, taken as a whole, appealed "to a prurient interest in sex" The work showed "patently offensive" sexual conduct that was specifically defined by an obscenity law The work, taken as a whole, lacked "serious literary, artistic, political, or scientific value" Decisions regarding whether material was obscene should be based on average people (juries) applying contemporary standards of local (not national) communities
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Libel
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Publication of false or malicious statements that damage someone's reputation; written defamation A type of expression not protected by the First Amendment If public debate isn't free, there can be no democracy, but in the process of free debate some reputations will be damaged or bruised, sometimes unfairly; libel cases must balance freedom of expression with respect for individual reputations; in one widely publicized case, General William Westmoreland, once the commander of American troops in South Vietnam, sued CBS over a documentary it broadcast called The Uncounted Enemy; it claimed that American military leaders in Vietnam, including Westmoreland, systematically lied to Washington about their success there to make it appear that US was winning war; evidence, including CBS's own internal memoranda, showed that documentary made errors of fact; Westmoreland sued CBS for libel; ultimately, power of press (in this case, a sloppy, arrogant press) prevailed; fearing defeat at trial, Westmoreland settled for a mild apology An unusual case that explored line between parody & libel came before Supreme Court in 1988, when Reverend Jerry Falwell sued Hustler magazine; Hustler editor Larry Flynt had printed parody of Campari Liquor ad about various celebrities called First Time (in which celebrities related the first time they drank Campari, but with an intentional double meaning); when Hustler depicted Reverend Jerry Falwell having had his "first time" in an outhouse with his mother, Falwell sued; he alleged that ad subjected him to great emotional distress & mental anguish; case tested the limits to which a publication could go to parody or lampoon a public figure; Supreme Court ruled that they can go pretty far: all nine justices ruled in favor of the magazine
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Slander
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Spoken defamation A type of expression not protected by the First Amendment
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New York Times v. Sullivan
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Decided in 1964, this case established the guidelines for determining whether public officials & other public figures could win damage suits for libel; to do so, individuals must prove (to a jury) that defamatory statements were made with "actual malice" & reckless disregard for the truth; this standard makes libel cases difficult for public figures to win because it's difficult to prove that a publication was intentionally malicious
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What did the Supreme Court term "the central meaning of the First Amendment"?
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The right to criticize the government
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Private Individuals
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Have a lower standard to meet for winning libel lawsuits; they need show only that statements made about them were defamatory falsehoods & that author was negligent Nevertheless, it's unusual for someone to win a libel case, & most people don't wish to draw attention to critical statements about themselves
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Why It Matters: Libel Law
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It's difficult for public figures to win libel cases; public figures will likely lose even if they can show that defendant made defamatory falsehoods about them This may not be fair, but it's essential for people to feel free to criticize public officials; fear of losing a lawsuit would have a chilling effect on democratic dialogue
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Symbolic Speech
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Nonverbal communication, such as burning a flag or wearing an armband; Supreme Court has accorded some symbolic speech protection under First Amendment Freedom of speech, more broadly interpreted, is a guarantee of freedom of expression; in 1965, school authorities in Des Moines, Iowa, suspended Mary Beth Tinker & her brother John when they wore black armbands to protest Vietnam War; Supreme Court held that the suspension violated Tinkers' First Amendment rights; right to freedom of speech went beyond spoken word
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Texas v. Johnson
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1989 case in which Supreme Court struck down law banning burning of American flag on grounds that such action was symbolic speech protected by First Amendment When Gregory Johnson set a flag on fire at the 1984 Republican National Convention in Dallas to protest nuclear weapons, Supreme Court decided that state law prohibiting flag desecration violated First Amendment; Court said burning flag constituted speech & not just dramatic action; when Massachusetts courts ordered organizers of annual St. Patrick's Day parade to include Irish-American Gay, Lesbian, & Bisexual Group of Boston, Supreme Court declared that a parade is a form of protected speech, & thus that the organizers are free to include or exclude whomever they want Wearing an armband, burning a flag, & marching in a parade are examples of symbolic speech; Court decisions have classified these activities somewhere between pure speech & pure action; burning a flag is protected speech, but burning a draft card isn't; in 2003, Court held that states may make it a crime to burn a cross with a purpose to intimidate, as long as law clearly gives prosecutors burden of proving that act was intended as threat & not as form of symbolic expression; First Amendment rights aren't limited by a rigid definition of what constitutes speech
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Free Press & Fair Trials
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Conflict between right of press to print what it wants & right to fair trial; quantity of press coverage given to trial of Michael Jackson on charges of child sexual abuse was extraordinary, & little of it was sympathetic to Jackson; defense attorneys argue that such publicity can inflame the community and potential jurors against defendants & compromise fairness of a trial Court has never upheld a restriction on the press in interest of fair trial; Constitution's guarantee of freedom of press entitles journalists to cover every trial; when Nebraska judge issued gag order forbidding press to report any details of a particularly gory murder, or even to report the gag order itself, outraged Nebraska Press Association took case to Supreme Court; Court sided with editors & revoked gag order; in 1980, Court reversed Virginia judge's order to close murder trial to public & press; Court said trial of a criminal case must be open to public; pretrial hearing is different; in 1979, Supreme Court permitted closed hearing on grounds that pretrial publicity might compromise defendant's right to fairness; only feasible measure that judicial system can take against influence of publicity in high-profile cases is to sequester jury, thereby isolating it from media & public opinion Occasionally a reporter withholds some critical evidence that either prosecution or defense wants in a criminal case, information that may be essential for a fair trial; reporters argue that protecting their sources should exempt them from revealing notes from confidential informants; some states have passed shield laws to protect reporters in these situations; in most states, reporters have no more rights than other citizens once a case has come to trial
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Branzburg v. Hayes
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1972 Supreme Court decision in which the Court ruled that in the absence of shield laws, the right of a fair trial preempts the reporter's right to protect sources
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Zurcher v. Stanford Daily
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1978 Supreme Court decision holding that a proper search warrant could be applied to a newspaper as well as to anyone else without necessarily violating First Amendment rights to freedom of the press After violent confrontation with student protestors at Stanford University, police got search warrant & marched off to Stanford Daily, which they believed to have pictures of scene, from which they could make arrests; paper argued that its files were protected by First Amendment, but decision sided with police, not the paper
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Commercial Speech
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Communication in the form of advertising; it can be restricted more than many other types of speech, but has been receiving increased protection from the Supreme Court Federal Trade Commission (FTC) decides what kinds of goods may be advertised on radio & TV & regulates content of such advertising; regulations have responded to changes in social mores & priorities; for example, 30 years ago, tampons couldn't be advertised on TV, but cigarette commercials were everywhere; today, it's the opposite FTC attempts to ensure that advertisers don't make false claims for their products, but "truth" in advertising doesn't prevent misleading promises Laws may regulate commercial speech on airwaves in ways that would be impossible in political or religious realm, even to the point of forcing manufacturer to say certain words; for example, makers of Excedrin pain reliever were forced to add words "on pain other than headache" in their commercials describing tests that supposedly supported product's claims of superior effectiveness (test results were based on pain women experienced after giving birth) Courts have been broadening commercial speech's protection under Constitution; for years, many states had laws that prohibited advertising for professional services, such as legal & engineering services, & for certain products ranging from eyeglasses & prescription drugs to condoms & abortions; advocates of these laws claimed that they were designed to protect consumers against misleading claims, while critics charged that the laws prevented price competition; in recent years, courts have struck down many such restrictions as violations of freedom of speech; in 1999, Supreme Court overturned restrictions on advertising casino gambling in states where such gambling is legal; in general, Supreme Court has allowed regulation of commercial speech when speech concerns unlawful activity or is misleading, but otherwise regulations must advance substantial government interest & be no more extensive than necessary to serve that interest
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Regulation of Public Airwaves
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Federal Communications Commission (FCC) regulates content, nature, & very existence of radio & TV broadcasting; newspapers don't need licenses, but radio & TV stations do; licensed station must comply with regulations, including requirement that it devote certain percentage of broadcast time to public service, news, children's programming, political candidates, or views other than those its owners support; rules are more relaxed for cable channels, which can specialize in a particular type of broadcasting because consumers pay for, & thus have more choice about, the service This governmental interference would violate First Amendment if it were imposed on print media One FCC rule regulating content of programs restricts use of obscene words; comedian George Carlin had famous routine called Filthy Words that could never be said over airwaves; NYC radio station tested Carlin's assertion by airing his routine; ensuing events proved him right; in 1978, Supreme Court upheld commission's policy of barring these words from radio or TV when children might hear them; similarly, FCC twice fined NY radio personality Howard Stern $600k for indecency; if his commentaries had been carried by cable or satellite instead of airwaves, he could've expressed himself with impunity (in 2006, he made move to satellite transmission) Technological change has blurred line between broadcasting & private communications between individuals; with cable TV now in most American homes, Supreme Court is faced with ruling on application of free speech guidelines to cable broadcasting Federal law requires cable TV operators providing channels "primarily dedicated to sexually orientated programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative legislation as between 10 PM & 6 AM; Playboy Entertainment Group pointed out that banning transmission restricts sexually oriented programming even to households without kids; it challenged law as unconstitutional violation of First Amendment free speech guarantee, arguing that Congress had less restrictive ways to accomplish its goals; in US v. Playboy Entertainment Group (2000), Supreme Court agreed; it held that although government had legitimate right to regulate sexually oriented programming, any such regulation must be narrowly tailored to promote compelling government interest; if a less restrictive alternative would serve government's purpose, Congress must use that alternative; Court concluded that targeted blocking, in which subscribers can ask their cable companies to block a signal to their homes, is less restrictive than banning & is a feasible & effective means of furthering its compelling interests; thus, the more restrictive option of banning a signal for most of the day can't be justified
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Miami Herald Publishing Company v. Tornillo
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1974 case in which Supreme Court held that state couldn't force a newspaper to print replies from candidates it had criticized, illustrating limited power of government to restrict print media State of Florida passed law requiring newspapers in the state to provide space for political candidates to reply to newspaper criticisms, & Supreme Court, without hesitation, voided this law
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Red Lion Broadcasting Company v. Federal Communications Commission
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A 1969 case in which Supreme Court upheld restrictions on radio & TV broadcasting; these restrictions on the broadcast media are much tighter than on the print media because there are only a limited number of broadcasting frequencies available
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Freedom of Assembly
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Commentators often neglect this freedom in favor of more trumpeted freedoms of speech, press, & religion, but it's the basis for forming interest groups, political parties, & professional associations, as well as for picketing & protesting 2 facets: literal right to assemble (to gather together in order to make a statement), & right to associate with people who share a common interest, including an interest in political change
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Right to Assemble
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1st facet of freedom of assembly Can conflict with other societal values when it disrupts public order, traffic flow, peace & quiet, or bystanders' freedom to go about their business without interference; within reasonable limits, called time, place, & manner restrictions, freedom of assembly includes rights to parade, picket, & protest; whatever a group's cause, it has right to demonstrate, but no group can simply hold a spontaneous demonstration anytime, anywhere, & anyway it chooses; usually, a group must apply to local city government for a permit & post bond of a few hundred dollars, like making a security deposit on an apartment; governing body must grant a permit as long as group pledges to hold its demonstration at time & place that allows police to prevent major disruptions; virtually no limit on content of group's message; one important case arose when American Nazi Party applied to march in streets of Skokie, Illinois, a Chicago suburb with a sizable Jewish population, including many survivors of Hitler's death camps Protest that verges on harassment tests balance between freedom & order; protestors lined up outside abortion clinics have been a common sight; members of groups such as Operation Rescue try to shame clients into staying away & may harass them if they do visit a clinic; rights are in conflict in such cases: a woman seeking to terminate her pregnancy has right to obtain an abortion, & demonstrators have right to protest very existence of clinic; courts have acted to restrain these protestors, setting limits on how close they may come to clinics & upholding damage claims of clients against protestors; in one case, pro-life demonstrators in Milwaukee, Wisconsin suburb paraded outside home of physician who was reported to perform abortions; town board forbade future picketing in residential neighborhoods, in 1988, Supreme court agreed that right of residential privacy was legitimate concern & upheld ordinance; in 1994, Congress passed law enacting broad new penalties against abortion protestors
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RIght to Associate
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2nd facet of freedom of assembly In famous case at height of civil rights movement, Alabama tried to harass state chapter of National Association for Advancement of Colored People (NAACP) by requiring it to turn over its membership list; Court found this demand an unconstitutional restriction on freedom of association In 2006, some law schools argued that congressional legislation that in effect required them to grant military recruiters access to their students violated schools' freedoms of speech & association; Supreme Court concluded that law regulates conduct, not speech; in addition, nothing about recruiting suggests that law schools agree with any speech by recruiters, & nothing in law restricts what they may say about military's policies; nor does law force law school to accept members it doesn't desire, & students & facility are free to voice their disapproval of military's message
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NAACP v. Alabama
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1958 case in which Supreme Court protected right to assemble peaceably when it decided NAACP didn't have to reveal its membership list & thus subject its members to harassment
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Examples of Civil Liberties
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Protest Marches Press Speech Going to Church Speaking at Graduation Newspapers Signing a Petition A Fair Trial Prayer in School
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Examples of Civil Rights
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Running for Office Affirmative Action Equal pay Anti-Discrimination Laws Voting in Elections
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What's essential to a democracy?
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freedoms of speech & press; according to John Locke, protection of those rights is the reason for the existence of government
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Conservatives usually support narrowing the scope of government, yet many strongly support
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government-imposed limits on abortion & government-sanctioned prayers in public schools; they also want government to be less hindered by concern for defendants' rights
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Liberals, who typically support a broader scope of government, usually want to
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limit government's role in prohibiting abortion & encouraging religious activities & to place greater constraints on government's freedom of action in the criminal justice system
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Civil Liberties
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Individual legal & constitutional protections against the government; although formally set down in Bill of Rights (1st 10 amendments to Constitution), the courts, police, & legislatures define their meanings Disputes often end up in court; Supreme Court is final interpreter of content & scope of our liberties, & this ultimate power to interpret Constitution accounts for ferocious debate over presidential appointments to Supreme Court
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Bill of Rights
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By 1787, all state constitutions had bills of rights; new US Constitution had no bill of rights, but state ratifying conventions made its inclusion a condition of ratification; First Congress passed Bill of Rights & sent it to states for ratification; in 1791, these amendments became part of Constitution 1st ten amendments to US Constitution, which define such basic liberties as freedom of religion, speech, & press, guarantee defendants' rights, & protection against arbitrary searches & being held for long periods without trial
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Political scientists have discovered that people are
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devotees of rights in theory but that their support wavers when it comes time to put those rights into practice
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First Amendment
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The constitutional amendment that establishes the four great liberties: freedom of the press, of speech, of religion, & of assembly
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Bill of Rights & the States
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Founders wrote Bill of Rights to restrict powers of new national government; in 1791, Americans were comfortable with their state governments; after all, every state constitution had its own bill of rights; thus, a literal reading of First Amendment suggests that it doesn't prohibit state government from passing a law prohibiting free exercise of religion, free speech, or freedom of press What happens if a state passes a law violating a right protected by federal Bill of Rights & state's constitution doesn't prohibit this abridgment of freedom?; in 1833, the answer was "nothing"; Bill of Rights, said Court in Barron v. Baltimore, restrained only national government, not states & cities In 1925, Court ruled that state government must respect some First Amendment rights; ruling in Gitlow v. New York relied on 14th Amendment; Court interpreted 14th Amendment to say that states couldn't abridge freedoms of expression protected by 1st Amendment; this decision began development of incorporation doctrine Initially, Supreme Court held only parts of 1st Amendment to be binding on states as result of Gitlow; gradually, especially during 1960s, Court applied most of the Bill of Rights to the states; many judicial decisions that empowered Bill of Rights were controversial, but today, Bill of Rights guarantees individual freedoms against infringement by state & local governments as well as by national government; only 3rd & 7th Amendments, grand jury requirement of 5th Amendment, & prohibition against excessive fines & bail in 8th Amendment haven't been applied specifically to the states
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Barron v. Baltimore
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1833 Supreme Court decision holding that Bill of Rights restrained only national government, not states & cities
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Gitlow v. New York
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1925 Supreme Court decision holding that freedoms of press & speech are "fundamental personal rights & liberties protected by due process clause of 14th Amendment from impairment by the states" as well as by the federal government
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Fourteenth Amendment
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The 2nd of 3 "Civil War Amendments" that ended slavery, gave former slaves legal protection, & ensured their voting rights Ratified in 1868 Constitutional amendment adopted after Civil War that declares "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"
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incorporation doctrine
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legal concept under which Supreme Court has nationalized Bill of Rights by making most of its provisions applicable to states through Fourteenth Amendment
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Freedom of Religion
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1st Amendment contains 2 elements regarding religion & government, commonly referred to as establishment clause & free exercise clause These freedoms conflict; for example, in government's practice of providing chaplains on military bases
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due process clause
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part of the 14th Amendment guaranteeing that persons cannot be deprived of life, liberty, or property by US or state governments without due process of law
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Establishment Clause
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Part of 1st Amendment stating that "Congress shall make no law respecting an establishment of religion" Some nations, such as GB, have an established church that's officially supported by government & recognized as national institution; a few American colonies had official churches, but religious persecutions that incited many colonists to move to America discouraged any desire that First Congress might have had to establish national church in US, so 1st Amendment prohibits an established national religion Not clear what else First Congress intended to include in establishment clause; some argued that it meant only that government couldn't favor one religion over another; in contrast, Thomas Jefferson argued that First Amendment created "wall of separation" between church & state, forbidding not just favoritism but also any support for religion at all; these interpretations continue to provoke argument, especially when religion is mixed with education, as occurs with issues of government aid to church-related schools & prayer in public schools Proponents of aid to church-related schools argue that it doesn't favor any specific religion; some opponents reply that Roman Catholic Church has by far largest religious school system in country & gets most of the aid; it was Protestant Lyndon B. Johnson who obtained passage of first substantial aid to parochial elementary & secondary schools; he argued that aid went to students, not schools, & should go wherever students were, including church-related schools Court has allowed religiously affiliated colleges & universities to use public funds to construct buildings; public funds may also be used to provide students in parochial schools with textbooks, computers, & other instructional equipment, lunches, & transportation to & from school & to administer standardized testing services; however, schools may not use public funds to pay teacher salaries or to provide transportation for students on field trips; theory underlying these decisions is that it's possible to determine that buildings, textbooks, lunches, school buses, & national tests aren't used to support sectarian education; however, determining how teachers handle a subject in class or focus a field trip may require complex & constitutionally impermissible regulation of religion Supreme Court has been opening public schools to religious activities; Court decided that public universities that permit student groups to use their facilities must allow student religious groups on campus to use the facilities for religious worship In 1995, Court held that University of Virginia was constitutionally required to subsidize student religious magazine on same basis as other student publications; in 2004, Court held that state of Washington was within its rights when it excluded students pursuing a devotional theology degree from its general scholarship program Threshold of constitutional acceptability becomes higher when public funds are used in a more direct way to support education; school authorities may not permit religious instructors to come into public school buildings during the school day to provide religious education, although they may release students from part of the compulsory school day to receive religious instruction elsewhere; in 1980, Court prohibited posting of Ten Commandments on walls of public classrooms School prayer is most controversial religious issue; in 1962 & 1963, Court aroused wrath of many Americans by ruling that voluntary recitations of prayers or Bible passages, when done as part of classroom exercises in public schools, violated establishment clause Constitution forbids sponsorship or encouragement of prayer, directly or indirectly, by public school authorities; in 1992, Court ruled that school-sponsored prayer at public school graduation violated constitutional separation of church & state; in 2000, Court held that student-led prayer at football games was also unconstitutional; 3 Alabama laws authorized schools to hold one-minute periods of silence for meditation or voluntary prayer, but Court rejected this approach because state made it clear that purpose of statute was to return prayer to schools; Court indicated that a less clumsy approach would pass its scrutiny Religious issues & controversies have more importance in political debate than before, mostly due to fundamentalist religious groups that have spurred their members to political action; many school districts have ignored Supreme Court's ban on school prayer & continue to allow prayers in their classrooms; some religious groups & members of Congress, especially conservative Republicans, have pushed for constitutional amendment permitting prayer in school; majority of public consistently supports school prayer Fundamentalist Christian groups have pressed some state legislatures to mandate teaching of creation science (their alternative to Darwinian theories of evolution) in public schools; Louisiana passed law requiring schools that taught Darwinian theory to teach creation science, too; Supreme Court ruled in 1987 that this law violated establishment clause; Court had ruled in 1968 that states can't prohibit Darwin's theory of evolution from being taught in public schools; more recently, some groups have advocated "intelligent design," (view that living things are too complicated to have resulted from natural selection & must be result of an intelligent cause, as an alternative to evolution); claim that belief has no religious implications,, but lower courts have begun to rule that requiring teachers to present intelligent design as an alternative to evolution is a constitutionally unacceptable promotion of religion in classroom In 2005, Supreme Court found that 2 Kentucky counties violated establishment clause value of official religious neutrality when they posted large, readily visible copies of Ten Commandments in their courthouses; Court concluded that counties' ostensible & predominant purpose was to advance religion, but Court didn't hold that a governmental body can never integrate sacred text constitutionally into governmental display on law or history; in 2005, Court upheld inclusion of monolith inscribed with Ten Commandments among 21 historical markers & 17 monuments surrounding Texas State Capital; Court argued that simply having religious content or promoting message consistent with religious doctrine doesn't run afoul of establishment clause; Texas's placements of Commandments monument on its capitol grounds was far more passive use of those texts than their posting in elementary school classrooms & also served a legitimate historical purpose Holiday religious symbol display have created controversy; in 1984, Court found that Pawtucket, Rhode Island, could set up Christmas nativity scene on public property, along with Santa's house & sleigh, Christmas tree, & other symbols of Christmas season; 5 years later, Court extended principle to Hanukkah menorah placed next to Christmas tree; Court concluded that these displays had secular purpose & provided little or no benefit to religion; at same time, Court invalidated display of nativity scene without secular symbols in a courthouse because, in this context, county gave impression of endorsing display's religious message Court's basic position is that Constitution doesn't require complete separation of church & state; it mandates accommodation of all religions & forbids hostility toward any; at same time, Constitution forbids government endorsement of religious beliefs
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Free Exercise Clause
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Prohibits abridgment of citizens' freedom to worship or not to worship as they please In general, Americans are tolerant of those with religious views outside the mainstream Religions sometimes forbid actions that society thinks are necessary, or religions may require actions that society finds unacceptable; Muhammad Ali refused induction into armed services during Vietnam War because military service would violate his Muslim faith; Amish parents often refuse to send their kids to public schools; Jehovah's Witnesses & Christian Scientists may refuse to accept blood transfusions & certain other kinds of medical treatment for themselves or their children Courts have been more cautious about right to practice a belief than about the right for people to believe what they want; Court has upheld laws & regulations forbidding polygamy, prohibiting business activities on Sunday (restricting commerce of Orthodox Jews/Adventists, for whom Sunday is a workday), denying tax exemptions to religious schools that discriminate on the basis of race, allowing building of road through ground sacred to some Native Americans, & even prohibiting Jewish air force captain from wearing his yarmulke while on duty (Congress later intervened to permit military personnel to wear yarmulkes) Congress & Supreme Court have granted protection to a range of religiously motivated practices; Court allowed Amish parents to take their children out of school after 8th grade; reasoning that Amish community was well established & that its children wouldn't burden the state, Court held that religious freedom took precedence over compulsory education laws; more broadly, although a state can compel parents to send their kids to an accredited school, parents have a right to choose religious schools rather than public schools for their children's education; a state may not require Jehovah's Witnesses or members of other religions to participate in public school flag-saluting ceremonies; Congress has also decided, & courts have upheld, that people can become conscientous objectors to war on religious grounds In 1988, Court upheld Oregon's prosecution of people using drug peyote as part of their religious rituals (Employment Division v. Smith); Court discarded its previous requirement for a compelling interest before a government could even indirectly limit or prohibit religious practices & decided that state laws interfering with religious practices but not specifically aimed at religion were constitutional; as long as a law doesn't single out & ban religious practices because they're engaged in for religious reasons or only because of the religious belief they display, a general law may be applied to conduct even if the conduct is religiously inspired In Religious Freedom Restoration Act of 1993, Congress attempted to overturn principle that Court had articulated in Employment Division v. Smith; this act conferred on all persons the right to perform their religious rituals unless government could show that law or regulation in question was narrowly tailored & in pursuit of a compelling interest; in 1997, Supreme Court declared this act, as applied to states, was unconstitutional intrusion by Congress into states' prerogatives for regulating health & welfare of citizens; Religious Freedom Restoration Act does apply to national government, in & 2006, Court allowed small religious sect to use a hallucinogenic tea in its rituals despite federal government's attempts to bar its use In 2000, Congress passed narrower legislation that, in accordance with "compelling interest" standard, made it more difficult for local governments to enforce zoning or other regulations against religious groups & required governments to allow those institutionalized in state facilities, such as prisons, to practice their faith; Supreme Court upheld this law in 2005
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Lemon v. Kurtzman
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1971 Supreme Court decision that established that aid to church-related schools must 1. Have a secular legislative purpose 2. Have a primary effect that neither advances nor inhibits religion 3. Not foster an excessive government "entanglement" with religion
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Agostini v. Felton
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1997 Supreme Court decision that allowed public school systems to send teachers into parochial schools to teach remedial & supplemental classes to needy children Important loosening of its constraints on aid to parochial schools
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Zelman v. Simmons-Harris
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2002 landmark Supreme Court decision that upheld a state program providing families in Cleveland, Ohio with vouchers that could be used to pay for tuition at religious schools
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Kiryas Joel v. Grumet
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1994 Supreme Court decision that stated NY state had gone too far in favoring religion when it created public school district for benefit of a village of Hasidic Jews
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1984 Equal Access Act
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An act in which Congress made it unlawful for any public high school receiving federal funds (almost all) to keep student groups from using school facilities for religious worship if the school opens its facilities for other student meetings; in 2001, Supreme Court extended this principle to public elementary schools; similarly, in 1993, Court required public schools that rent facilities to organizations to do the same for religious groups
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Engel v. Vitale
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1962 Supreme Court decision holding that state officials violated First Amendment when they wrote a prayer to be recited by New York's schoolchildren
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School District of Abington Township, Pennsylvania v. Schempp
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1963 Supreme Court decision holding that Pennsylvania law requiring Bible reading in schools violated establishment clause of First Amendment
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Why it Matters: The Establishment Clause
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If a dominant religion received public funds & were in a position to control health care, public education, & other important aspects of public policy, these policies might be quite different from what they are today In addition, potential for conflict between followers of the established religion & adherents of other religions would be substantial
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Freedom of Expression
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Democracy depends on free expression of ideas (enemies of democratic process are muffled thoughts, forbidden speech, & meetings that can't be held) Americans pride themselves on their free & open society; Americans can believe whatever they want (freedom of conscience), & First Amendment plainly forbids national government from limiting freedom of expression (right to say or publish what one believes); Supreme Court Justice Hugo Black thought freedom of expression, like freedom of conscience, was absolute; he pointed out that First Amendment said Congress shall make no law; in contrast, Justice Oliver Wendell Holmes offered classic example of impermissible speech in 1919 Courts have been called on to decide where to draw line separating permissible from impermissible speech; can government censor speech that it thinks will violate law, & what constitutes speech or press within meaning of First Amendment & thus deserves constitutional protection, & what doesn't; holding political rally to attack opposing candidate's stand on important issues receives First Amendment protection, but obscenity & libel & incitements to violence & overthrow of government don't; certain forms of nonverbal speech, such as picketing, are considered symbolic speech & receive First Amendment protection; judges also have had to balance freedom of expression against competing values, such as public order, national security, & right to fair trial; regulating publicly owned airwaves raises another set of difficult questions Controversial freedom of expression issue involves hate speech; advocates of regulating it argue that racial insults, like fighting words, are "undeserving of First Amendment protection because perpetrator's intent isn't to discover truth or invite dialogue, but to injure victim"; critics of hate speech policy argue that sacrificing free speech rights is too high a price to pay to advance cause of equality; in 1992, Supreme Court ruled that legislatures & universities may not single out racial, religious, or sexual insults or threats for prosecution as hate speech or bias crimes
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Prior Restraint
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A government preventing material from being published; this is a common method of limiting the press in some nations, but it is usually unconstitutional in US, according to First Amendment & as confirmed in 1931 Supreme Court case of Near v. Minnesota In one word, censorship First Amendment ensures there won't be prior restraint (censorship) Extent of an individual's or group's freedom from prior restraint depends in part on who that individual or group is; expressions of students in public school may be limited more than those of adults in other settings; in 1988, Supreme Court ruled that high school newspaper wasn't a public forum & could be regulated in "any reasonable manner" by school officials; in 2007, Court held that special characteristics of school environment & governmental interest in stopping student drug abuse allow schools to restrict student expressions that they reasonably regard as promoting such abuse Supreme Court has upheld restrictions on right to publish in name of national security; wartime often brings censorship to protect classified information; these restrictions often have public support (few would find it unconstitutional if a newspaper were hauled into court for publishing troop movement plans during a war); during Persian Gulf War, reporters could get to field only in company of official Pentagon press representatives; restrictions upheld haven't been limited to wartime censorship; national government has successfully sued former CIA agents for failing to meet their contractual obligations to submit books about their work to agency for censorship, even though books revealed no classified information Courts are reluctant to issue injunctions prohibiting publication of material even in area of national security; most famous case regarding prior restraint & national security involved publication of stolen Pentagon papers
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Near v. Minnesota
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1931 Supreme Court decision holding that First Amendment protects newspapers from prior restraint; blunt newspaper editor called local officials a string of names including grafters & Jewish gangsters; state closed down his business, but Supreme Court ordered paper reopened; newspaper editor or anyone else could later be punished for violating a law or someone's rights after publication
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Free Speech & Public Order
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In wartime & peacetime, considerable conflict has arisen over trade-off between free speech & need for public order Courts confronted issue of free speech & public order during 1950s; in late 1940s & early 1950s, there was widespread fear that communists had infiltrated government; American anticommunism was a powerful force, & national government was determined to jail leaders of Communist Party; Senator Joseph McCarthy & others in Congress persecuted people whom they thought were subversive, based on Smith Act of 1940, which forbade advocating violent overthrow of American government; in Dennis v. United States (1951), Supreme Court upheld prison sentences for several Communist Party leaders for conspiring to advocate violent overthrow of government, even in absence of evidence that they actually urged people to commit specific acts of violence; tiny, unpopular group; Court ruled that communist takeover was so grave a danger that government could squelch their threat; it concluded that protecting national security outweighed First Amendment rights Political climate changed, & Court narrowed interpretation of Smith Act, making it more difficult to prosecute dissenters; in later years, Court has found that it's permissible to advocate violent overthrow of government in the abstract but not actually to incite anyone to imminent lawless action (Yates v. United States [1957); Brandenburg v. Ohio [1969]) 1960s brought waves of protest over political, economic, racial, & social issues & especially the Vietnam War; many people in more recent times have engaged in public demonstrations, such as opposing war in Iraq; courts have been quite supportive of right to protest, pass out leaflets, or gather signatures on petitions, as long as it's done in public places; people may even distribute campaign literature anonymously; constitutional protections diminish once a person steps on private property, such a most shopping centers; Supreme Court has held that federal free speech guarantees didn't apply when a person was on private property; however, it upheld state's power to include politicking in shopping centers within its own free speech guarantee, & in 1994, Supreme Court ruled that cities can't bar residents from posting signs on their own property
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Schenck v. United States
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1919 Supreme Court decision upholding conviction of a socialist who had urged young men to resist the draft during World War I; Justice Holmes declared that government can limit speech if the speech provokes a "clear & present danger" of substantive evils; only when such danger exists can government restrain speech, it's difficult to say when speech becomes dangerous rather than simply inconvenient for government During World War I, Charles T. Schenck, secretary of American Socialist Party, distributed thousands of leaflets urging young men to resist draft; Schenck was charged with impending war effort, & Supreme Court upheld his conviction in 1919 in Schenck v. United States
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What often determines what limits the government will place on free speech?
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the prevailing political climate
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Obscenity
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One of more perplexing of free speech issues In 1957, Supreme Court held that "obscenity isn't within area of constitutionally protected speech or press" (Roth v. United States); deciding what's obscene hasn't been an easy matter; public standards vary from time to time, place to place, & person to person; works that some people call obscene might be good entertainment or even great art to others; at one time another, works of Aristophanes, Mark Twain, & even "Tarzan" stories by Edgar Rice Burroughs were banned; state of Georgia banned acclaimed film Carnal Knowledge (a ban Supreme Court struck down in 1974) Court tried to clarify its doctrine by spelling out what could be classified as obscene & thus outside First Amendment Protection in 1973 case of Miller v. California Court did provide a few plain examples of what sort of material might fall within this definition of obscenity; among these examples were patently offensive representations of ultimate sexual acts, actual or simulated; patently offensive representations of masturbation or excretory functions, or lewd exhibition of the genitals; cities throughout country duplicated language of Miller v. California in their obscenity ordinances; qualifying adjectives lewd & offensive prevent communities from banning anatomy texts as obscene; difficulty remains in determining what is lewd or offensive Obscenity convictions can be difficult to obtain because there's no nationwide consensus that offensive material should be banned, at least not when it's restricted to adults; in many communities the laws are lenient regarding pornography, & prosecutors know that they may not get a jury to convict, even when disputed material is obscene as defined by Miller; thus, obscene material is widely available in adult bookstores, video stores, & movie theaters Despite Court's best efforts to define obscenity & determine when it can be banned, state & local governments continue to struggle with application of these rulings; in one famous case, a small New Jersey town tried to get rid of a nude dancing parlor by using its zoning power to ban all live entertainment; Court held that measure was too broad, restricting too much expression, & thus unlawful; however, Court has upheld laws specifically banning nude dancing when their effect on overall expression was minimal; Jacksonville, Florida, tried to ban drive-in movies containing nudity Regulations aimed at keeping obscene material away from the young, who are considered more vulnerable to its harmful influences, have wide support, & courts have consistently ruled that states may protect children from obscenity; rating scheme of Motion Picture Association of America is one example, as is more recent TV ratings system; also strongly supported are laws designed to protect young against pornographic exploitation; it's a violation of federal law to receive sexually explicit photographs of children through the mail or over the Internet, and in 1990 Supreme Court upheld Ohio's law forbidding possession of child pornography Internet & World Wide Web make it easier to distribute obscene material rapidly, & a number of online information services have taken advantage of this opportunity; in 1996, Congress passed Communications Decency Act, banning obscene material & criminalizing transmission of indecent speech or images to anyone under 18 years of age; law made no exception for material that has serious literary, artistic, political, or scientific merit as outlined in Miller v. California, & in 1997, Supreme Court overturned it as being overly broad & vague & violation of free speech; in 2002, Court overturned law banning virtual child pornography on similar grounds (apparently Supreme Court views Internet similarly to print media, with similar protections against government regulation); in 1999, Court upheld prohibitions on obscene e-mail & faxes
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Roth v. United States
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1967 Supreme Court decision ruling that "obscenity isn't within area of constitutionally protected speech or press"
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Miller v. California
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1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene Warren Burger, chief justice at the time, wrote that materials were obscene under following circumstances: The work, taken as a whole, appealed "to a prurient interest in sex" The work showed "patently offensive" sexual conduct that was specifically defined by an obscenity law The work, taken as a whole, lacked "serious literary, artistic, political, or scientific value" Decisions regarding whether material was obscene should be based on average people (juries) applying contemporary standards of local (not national) communities
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Libel
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Publication of false or malicious statements that damage someone's reputation; written defamation A type of expression not protected by the First Amendment If public debate isn't free, there can be no democracy, but in the process of free debate some reputations will be damaged or bruised, sometimes unfairly; libel cases must balance freedom of expression with respect for individual reputations; in one widely publicized case, General William Westmoreland, once the commander of American troops in South Vietnam, sued CBS over a documentary it broadcast called The Uncounted Enemy; it claimed that American military leaders in Vietnam, including Westmoreland, systematically lied to Washington about their success there to make it appear that US was winning war; evidence, including CBS's own internal memoranda, showed that documentary made errors of fact; Westmoreland sued CBS for libel; ultimately, power of press (in this case, a sloppy, arrogant press) prevailed; fearing defeat at trial, Westmoreland settled for a mild apology An unusual case that explored line between parody & libel came before Supreme Court in 1988, when Reverend Jerry Falwell sued Hustler magazine; Hustler editor Larry Flynt had printed parody of Campari Liquor ad about various celebrities called First Time (in which celebrities related the first time they drank Campari, but with an intentional double meaning); when Hustler depicted Reverend Jerry Falwell having had his "first time" in an outhouse with his mother, Falwell sued; he alleged that ad subjected him to great emotional distress & mental anguish; case tested the limits to which a publication could go to parody or lampoon a public figure; Supreme Court ruled that they can go pretty far: all nine justices ruled in favor of the magazine
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Slander
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Spoken defamation A type of expression not protected by the First Amendment
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New York Times v. Sullivan
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Decided in 1964, this case established the guidelines for determining whether public officials & other public figures could win damage suits for libel; to do so, individuals must prove (to a jury) that defamatory statements were made with "actual malice" & reckless disregard for the truth; this standard makes libel cases difficult for public figures to win because it's difficult to prove that a publication was intentionally malicious
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What did the Supreme Court term "the central meaning of the First Amendment"?
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The right to criticize the government
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Private Individuals
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Have a lower standard to meet for winning libel lawsuits; they need show only that statements made about them were defamatory falsehoods & that author was negligent Nevertheless, it's unusual for someone to win a libel case, & most people don't wish to draw attention to critical statements about themselves
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Why It Matters: Libel Law
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It's difficult for public figures to win libel cases; public figures will likely lose even if they can show that defendant made defamatory falsehoods about them This may not be fair, but it's essential for people to feel free to criticize public officials; fear of losing a lawsuit would have a chilling effect on democratic dialogue
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Symbolic Speech
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Nonverbal communication, such as burning a flag or wearing an armband; Supreme Court has accorded some symbolic speech protection under First Amendment Freedom of speech, more broadly interpreted, is a guarantee of freedom of expression; in 1965, school authorities in Des Moines, Iowa, suspended Mary Beth Tinker & her brother John when they wore black armbands to protest Vietnam War; Supreme Court held that the suspension violated Tinkers' First Amendment rights; right to freedom of speech went beyond spoken word
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Texas v. Johnson
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1989 case in which Supreme Court struck down law banning burning of American flag on grounds that such action was symbolic speech protected by First Amendment When Gregory Johnson set a flag on fire at the 1984 Republican National Convention in Dallas to protest nuclear weapons, Supreme Court decided that state law prohibiting flag desecration violated First Amendment; Court said burning flag constituted speech & not just dramatic action; when Massachusetts courts ordered organizers of annual St. Patrick's Day parade to include Irish-American Gay, Lesbian, & Bisexual Group of Boston, Supreme Court declared that a parade is a form of protected speech, & thus that the organizers are free to include or exclude whomever they want Wearing an armband, burning a flag, & marching in a parade are examples of symbolic speech; Court decisions have classified these activities somewhere between pure speech & pure action; burning a flag is protected speech, but burning a draft card isn't; in 2003, Court held that states may make it a crime to burn a cross with a purpose to intimidate, as long as law clearly gives prosecutors burden of proving that act was intended as threat & not as form of symbolic expression; First Amendment rights aren't limited by a rigid definition of what constitutes speech
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Free Press & Fair Trials
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Conflict between right of press to print what it wants & right to fair trial; quantity of press coverage given to trial of Michael Jackson on charges of child sexual abuse was extraordinary, & little of it was sympathetic to Jackson; defense attorneys argue that such publicity can inflame the community and potential jurors against defendants & compromise fairness of a trial Court has never upheld a restriction on the press in interest of fair trial; Constitution's guarantee of freedom of press entitles journalists to cover every trial; when Nebraska judge issued gag order forbidding press to report any details of a particularly gory murder, or even to report the gag order itself, outraged Nebraska Press Association took case to Supreme Court; Court sided with editors & revoked gag order; in 1980, Court reversed Virginia judge's order to close murder trial to public & press; Court said trial of a criminal case must be open to public; pretrial hearing is different; in 1979, Supreme Court permitted closed hearing on grounds that pretrial publicity might compromise defendant's right to fairness; only feasible measure that judicial system can take against influence of publicity in high-profile cases is to sequester jury, thereby isolating it from media & public opinion Occasionally a reporter withholds some critical evidence that either prosecution or defense wants in a criminal case, information that may be essential for a fair trial; reporters argue that protecting their sources should exempt them from revealing notes from confidential informants; some states have passed shield laws to protect reporters in these situations; in most states, reporters have no more rights than other citizens once a case has come to trial
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Branzburg v. Hayes
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1972 Supreme Court decision in which the Court ruled that in the absence of shield laws, the right of a fair trial preempts the reporter's right to protect sources
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Zurcher v. Stanford Daily
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1978 Supreme Court decision holding that a proper search warrant could be applied to a newspaper as well as to anyone else without necessarily violating First Amendment rights to freedom of the press After violent confrontation with student protestors at Stanford University, police got search warrant & marched off to Stanford Daily, which they believed to have pictures of scene, from which they could make arrests; paper argued that its files were protected by First Amendment, but decision sided with police, not the paper
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Commercial Speech
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Communication in the form of advertising; it can be restricted more than many other types of speech, but has been receiving increased protection from the Supreme Court Federal Trade Commission (FTC) decides what kinds of goods may be advertised on radio & TV & regulates content of such advertising; regulations have responded to changes in social mores & priorities; for example, 30 years ago, tampons couldn't be advertised on TV, but cigarette commercials were everywhere; today, it's the opposite FTC attempts to ensure that advertisers don't make false claims for their products, but "truth" in advertising doesn't prevent misleading promises Laws may regulate commercial speech on airwaves in ways that would be impossible in political or religious realm, even to the point of forcing manufacturer to say certain words; for example, makers of Excedrin pain reliever were forced to add words "on pain other than headache" in their commercials describing tests that supposedly supported product's claims of superior effectiveness (test results were based on pain women experienced after giving birth) Courts have been broadening commercial speech's protection under Constitution; for years, many states had laws that prohibited advertising for professional services, such as legal & engineering services, & for certain products ranging from eyeglasses & prescription drugs to condoms & abortions; advocates of these laws claimed that they were designed to protect consumers against misleading claims, while critics charged that the laws prevented price competition; in recent years, courts have struck down many such restrictions as violations of freedom of speech; in 1999, Supreme Court overturned restrictions on advertising casino gambling in states where such gambling is legal; in general, Supreme Court has allowed regulation of commercial speech when speech concerns unlawful activity or is misleading, but otherwise regulations must advance substantial government interest & be no more extensive than necessary to serve that interest
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Regulation of Public Airwaves
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Federal Communications Commission (FCC) regulates content, nature, & very existence of radio & TV broadcasting; newspapers don't need licenses, but radio & TV stations do; licensed station must comply with regulations, including requirement that it devote certain percentage of broadcast time to public service, news, children's programming, political candidates, or views other than those its owners support; rules are more relaxed for cable channels, which can specialize in a particular type of broadcasting because consumers pay for, & thus have more choice about, the service This governmental interference would violate First Amendment if it were imposed on print media One FCC rule regulating content of programs restricts use of obscene words; comedian George Carlin had famous routine called Filthy Words that could never be said over airwaves; NYC radio station tested Carlin's assertion by airing his routine; ensuing events proved him right; in 1978, Supreme Court upheld commission's policy of barring these words from radio or TV when children might hear them; similarly, FCC twice fined NY radio personality Howard Stern $600k for indecency; if his commentaries had been carried by cable or satellite instead of airwaves, he could've expressed himself with impunity (in 2006, he made move to satellite transmission) Technological change has blurred line between broadcasting & private communications between individuals; with cable TV now in most American homes, Supreme Court is faced with ruling on application of free speech guidelines to cable broadcasting Federal law requires cable TV operators providing channels "primarily dedicated to sexually orientated programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative legislation as between 10 PM & 6 AM; Playboy Entertainment Group pointed out that banning transmission restricts sexually oriented programming even to households without kids; it challenged law as unconstitutional violation of First Amendment free speech guarantee, arguing that Congress had less restrictive ways to accomplish its goals; in US v. Playboy Entertainment Group (2000), Supreme Court agreed; it held that although government had legitimate right to regulate sexually oriented programming, any such regulation must be narrowly tailored to promote compelling government interest; if a less restrictive alternative would serve government's purpose, Congress must use that alternative; Court concluded that targeted blocking, in which subscribers can ask their cable companies to block a signal to their homes, is less restrictive than banning & is a feasible & effective means of furthering its compelling interests; thus, the more restrictive option of banning a signal for most of the day can't be justified
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Miami Herald Publishing Company v. Tornillo
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1974 case in which Supreme Court held that state couldn't force a newspaper to print replies from candidates it had criticized, illustrating limited power of government to restrict print media State of Florida passed law requiring newspapers in the state to provide space for political candidates to reply to newspaper criticisms, & Supreme Court, without hesitation, voided this law
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Red Lion Broadcasting Company v. Federal Communications Commission
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A 1969 case in which Supreme Court upheld restrictions on radio & TV broadcasting; these restrictions on the broadcast media are much tighter than on the print media because there are only a limited number of broadcasting frequencies available
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Freedom of Assembly
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Commentators often neglect this freedom in favor of more trumpeted freedoms of speech, press, & religion, but it's the basis for forming interest groups, political parties, & professional associations, as well as for picketing & protesting 2 facets: literal right to assemble (to gather together in order to make a statement), & right to associate with people who share a common interest, including an interest in political change
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Right to Assemble
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1st facet of freedom of assembly Can conflict with other societal values when it disrupts public order, traffic flow, peace & quiet, or bystanders' freedom to go about their business without interference; within reasonable limits, called time, place, & manner restrictions, freedom of assembly includes rights to parade, picket, & protest; whatever a group's cause, it has right to demonstrate, but no group can simply hold a spontaneous demonstration anytime, anywhere, & anyway it chooses; usually, a group must apply to local city government for a permit & post bond of a few hundred dollars, like making a security deposit on an apartment; governing body must grant a permit as long as group pledges to hold its demonstration at time & place that allows police to prevent major disruptions; virtually no limit on content of group's message; one important case arose when American Nazi Party applied to march in streets of Skokie, Illinois, a Chicago suburb with a sizable Jewish population, including many survivors of Hitler's death camps Protest that verges on harassment tests balance between freedom & order; protestors lined up outside abortion clinics have been a common sight; members of groups such as Operation Rescue try to shame clients into staying away & may harass them if they do visit a clinic; rights are in conflict in such cases: a woman seeking to terminate her pregnancy has right to obtain an abortion, & demonstrators have right to protest very existence of clinic; courts have acted to restrain these protestors, setting limits on how close they may come to clinics & upholding damage claims of clients against protestors; in one case, pro-life demonstrators in Milwaukee, Wisconsin suburb paraded outside home of physician who was reported to perform abortions; town board forbade future picketing in residential neighborhoods, in 1988, Supreme court agreed that right of residential privacy was legitimate concern & upheld ordinance; in 1994, Congress passed law enacting broad new penalties against abortion protestors
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RIght to Associate
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2nd facet of freedom of assembly In famous case at height of civil rights movement, Alabama tried to harass state chapter of National Association for Advancement of Colored People (NAACP) by requiring it to turn over its membership list; Court found this demand an unconstitutional restriction on freedom of association In 2006, some law schools argued that congressional legislation that in effect required them to grant military recruiters access to their students violated schools' freedoms of speech & association; Supreme Court concluded that law regulates conduct, not speech; in addition, nothing about recruiting suggests that law schools agree with any speech by recruiters, & nothing in law restricts what they may say about military's policies; nor does law force law school to accept members it doesn't desire, & students & facility are free to voice their disapproval of military's message
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NAACP v. Alabama
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1958 case in which Supreme Court protected right to assemble peaceably when it decided NAACP didn't have to reveal its membership list & thus subject its members to harassment