Civil Liberties and the 1st Amendment

The Bill of Rights and the State• Barron v. Baltimore (1833)– While the Bill of Rights protected the people from

the national government -- not state governments.• The Fourteenth Amendment (1868)– “No State Shall …”

• Slaughter House Cases (1873)– Privileges and immunities clause

• Incorporation Theory– Selective v. Total

Religion• Establishment : “Congress shall make no law regarding the

establishment of religion.”• Lemon v. Kurtzman (1971)

– Activity must: 1. Have a secular, nonreligious purpose; 2. Neither advance a religion nor discourage the practice of religion; 3. avoid “excessive government entanglement with religion”

• Free Exercise: No law “Prohibiting the free exercise of religion”– Government can regulate when practices are incongruent with public

policy• What's Allowed:

– Use of the Bible for secular study– religious student organizations (funding)– Student prayer and religious study– Teacher bible study– Opening prayers for public meetings

Court decisions• Government may issue vouchers for parochial schools – Zelman v. Simmons

(2002)• Can’t forbid teaching evolution - Epperson v. AK• forbids compelling students to recite prayers – Engel v. Vitale (1962)• Clergy may not lead prayers at graduation ceremonies – Lee v. Weisman

(1992)• Polygamy outlawed due to violation of health, safety, and morals of the

community – Reynolds v. U.S. (1879)• State benefits denied for use of Peyote – Oregon v. Smith (1990) • City of Boerne v. Flores – states retain authority preempted by RFRA – (1997)• No student led prayer over PA system at extra curricular activities - Santa Fe

ISO v. Doe (2000)• Court decisions have also prohibited recitation of verse, the teaching of creationism,

and teacher led Bible study

Current Issues• Can a religious organization be sued for employment

discrimination?– Hosanna-Tabor vs. Equal Employment Opportunity Commission: ministerial

exception• Establishment and Free Exercise Clauses of the First Amendment bar suits

brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws

• Can a religious organization be compelled to provide services they consider morally offensive?– “Obamacare” contraception mandate --7 States suing over the rule

• all insurers will be required to provide "preventive health services." • A religious employer who objects to treatment aimed at prevention of pregnancy may

leave it out provided: (1) It has religious inculcation as its primary duty; (2) It primarily employs people of the same faith; and (3) It primarily serves people of the same faith

• Religious leaders and political opponents argue its a unconst. intrusion

Freedom of Assembly

• Free assembly as important as free press and free speech – Freedom of assembly includes the right to parade

and hold demonstrations in public places, – Must get a permit.– May be limited.

– Demonstrations are not allowed on private property

– interferes with property rights

Free Press vs. Prior restraint • Government censorship of information before it is published

– Near v. Minnesota (1931) – Gangsters and Grafters• MN law prohibited publication of “Malicious, scandalous, or defamatory”

info• Court ruled 5-4 that law must be voided because it involved prior restraint

– Pentagon Papers: NYT Co. v. U.S. (1971) – Credibility Gap• DOE official leaked documents, some secret, revealing gov’t lies about

Vietnam• Court ruled in favor of publication 6-3 … emphasized the need to bar the

gov’t from hiding embarrassing and harmful info

• Government may use prior restraint if in the interest of national security

Free Press Issues • The Founders viewed the press strictly as printed material;

electronic media had not yet been invented.– Radio and television less protected than press media

• Natural conflict between 1st and 6th Amendments– “Court of public opinion”

• FCC regulates radio and television. – Cannot censor broadcasts but may set standards.– Movies and the Internet are protected by free press guarantees. – Communities may regulate obscenity within acceptable limits

• Refusal to display, sell, or screen material is legal

• Advertising receives less protection than political speech.– commercial speech trumped by protection of the public

How do these view differ on flag burning?

Should Burning the American Flag be Legal?

What reasonable consequences might one face for their expression

Freedom of Expression• Types of Expression:– Pure speech: spoken

word, verbal expression– Symbolic speech: expressive

action– Seditious Speech:

challenges authority– Defamatory speech: false

speech • Slander: spoken• Libel: written

– Obscenity: offensive speech– Commercial Speech– Political Speech

Landmark Cases

Is it reasonable to expect privacy on social networking sites?

Should allowing access to your Facebook account be a condition of employment?

Right to Privacy?• Constitutional Right? –Not Enumerated:•1st, 3rd, 4th, 5th, and 9th Amendment•Griswold and Roe

– Katz •4th protects people not places•Dissent: 4th refers to tangible items

Cases• Olmstead v. US (1929)

– Eavesdropping in public area• Katz v. U.S. (1967)

– Expectation of privacy in public (people not places)• Griswold v. Conn. (1965)

– Use of contraception (consenting adults in the home)• Roe v. Wade (1973)

– Right to abortion protected• Ouinlan (1976) & Cruzan (1990) cases

– Right to refuse treatment, must have “clear and convincing evidence” it was their wish

• Washington v. Glucksburg (1997)– No right to suicide

• Lawrence v. Texas (2003)– Sodomy laws unconstitutional (consenting adults in the home)

• Gonzales v. Oregon (2006)– Legality of physician assisted suicide left to states