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Civil Liberties and Public Policy


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Title: Civil Liberties and Public Policy

Civil Liberties and Public Policy
Civil Liberties
  • These are individual and constitutional
    protections against the government.
  • Civil Liberties are written down in the Bill of
    Rights First 10 Amendments.
  • The protections appear simple but in reality are
    very complex.
  • The courts, police and legislature help to define
    their meaning.

The Bill of Rights Then and Now
  • Bill of Rights were added in 1789 and ratified by
    states in 1791.
  • Political scientists have found people support
    rights in theory but it wavers in practice.
  • Ex Teaching about homosexuality in school,
    having the KKK walk in a hometown parade.
  • Question How to balance civil liberties and
    societal values?

Amendment I
  • Freedom of Religion,
  • Speech, Assembly and
  • Petition
  • Congress shall make no law respecting an
    establishment of religion, or prohibiting the
    free exercise thereof or abridging the freedom
    of speech, or of the press or the right of the
    people peaceably to assemble, and to petition the
    Government for a redress of grievances.

Amendment II
  • Right to Bear Arms
  • A well-regulated militia, being necessary to the
    security of a free State, the right of the people
    to keep and bear arms, shall not be infringed.

Amendment III
  • Quartering of Soldiers
  • No Soldier shall, in time of peace be quartered
    in any house, without the consent of the owner,
    nor in time of war, but in a manner to be
    prescribed by law.

Amendment IV
  • Searches and Seizures
  • The right of the people to be secure in their
    persons, houses, papers, and effects against
    unreasonable searches and seizures, shall not be
    violated, and no warrants shall issue, but upon
    probable cause, supported by oath or affirmation,
    and particularly describing the place to be
    searched, and persons or things to be seized.

Amendment V
  • Grand Juries, Double Jeopardy,
  • Self-Incrimination
  • No person shall be held to answer to a capital,
    or otherwise infamous crime, unless on a
    presentment or indictment of a Grand Jury, except
    in cases arising in the land or naval forces, or
    in the militia, when in actual service in time of
    war or public danger nor shall any person be
    subject for the same offense to be twice put in
    jeopardy of life or limb

Amendment V - Continued
  • Due Process, Eminent
  • Domain
  • Nor shall be compelled in any criminal case to be
    a witness against himself, nor be deprived of
    life, liberty, or property, without due process
    of law nor shall private property be taken for
    public use, without just compensation.

Amendment VI
  • Criminal Court Procedures
  • In all criminal prosecutions, the accused shall
    enjoy the right to a speedy and public trial, by
    an impartial jury of the State and district
    wherein the crime shall have been committed,
    which district shall have been previously
    ascertained by law, and to be informed of the
    nature and cause of the accusations to be
    confronted with the witnesses against him to
    have compulsory process for obtaining witnesses
    in his favor, and to have the assistance of
    counsel for his defense.

Amendment VII
  • Trial by Jury in Common-Law Cases
  • In Suits at common law, where the value in
    controversy shall exceed twenty dollars, the
    right of trial by jury shall be preserved, and no
    fact tried by a jury, shall be otherwise
    reexamined in any Court of the United States.

Amendment VIII
  • Bails, Fines, and
  • Punishments
  • Excessive bail shall not be required, nor
    excessive fines imposed, nor cruel and unusual
    punishments inflicted.

Amendment IX
  • Rights Retained by the People
  • The enumeration in the Constitution, of certain
    rights, shall not be construed to deny or
    disparage others retained by the people.

Amendment X
  • The powers not delegated to the United States by
    the Constitution, nor prohibited by it to the
    States, are reserved to the States respectively,
    or to the people.

Bill of Rights States
  • What happens when a state passes a law violating
    one of the rights protected by the federal Bill
    of Rights and the states constitution does not
    prohibit the abridgement of freedom?
  • Wonder twins found out in 1833 and 1925

Barron v. Baltimore
John Barron was a co-owner of a port in the
harbor of Baltimore. As the city developed sand
accumulated into the harbor and the deep waters
that Barron thrived on to keep his dock
functioning had been destroyed. He sued the city
to recover a portion of his financial losses.
Argued Date February 11, 1833 Decided Date
February 16, 1833
The location in the Constitution that this case
refers to is the Fifth Amendment. This case was
decided based on the specificities of the
governmental limitations addressed in this
The main question presented to the Supreme Court
was whether the 5th Amendment denies the states
as well as the national government the right to
take private property for public use without
justly compensating the propertys owner.
The court decided in favor of the Mayor and the
City Council of Baltimore (7-0) without even
hearing the City of Baltimores arguments.
Justice Marshall argued that the the Fifth
Amendment intends to limit national governmental
powers but is not applicable to what state or
local governments can do.
Barrons port (called a wharf at the time)
Gitlow v. New York
  • Brief History Benjamin Gitlow was arrested for
    the publication and circulation of sixteen
    thousand copies of the Left-Wing Manifesto.
    Gitlow was arrested under violation of the New
    York Criminal Anarchy Law of 1902.
  • Main Question Presented to the Supreme Court Is
    the New York law punishing advocacy to overthrow
    the government by force an unconstitutional
    violation of the free speech clause of the First
  • Holding The Supreme Court ruled in favor of
    Gitlow stating that the first amendment is among
    the many person liberties one has and it is
    protected by the due process clause of the
    fourteenth amendment.
  • Argued April 12, 1923. Reargued November 23,
    1923. Decided June 8, 1925
  • Location in Constitution First Amendment is
    protected by fourteenth amendment. (Rights of

Bill of Rights States
  • Outcome
  • Barron v. Baltimore Restrained only the
    national government, not the states and cities.
  • Gitlow v. New York relied on the 14th
    Amendment to incorporate the 1st Amendment to the
    states. In effect, the court interpreted that
    the due process clause was binding to the states.
    Initially only first part of the 1st Amendment.
  • Began the development of the incorporation
  • The legal concept under which the Supreme Court
    has nationalized the Bill of Rights by making
    most of its provisions applicable to the states
    through the 14th Amendment.

Freedom of Religion
  • 1st Amendment contains 2 elements for freedom of
  • Establishment creating any religion.
  • Free Exercise freedom to worship or not worship.
  • These freedoms can conflict
  • Govt providing chaplains on military bases
    some accuse govt of establishing a religion in
    order to ensure members of armed forces can
    freely practice their religion.

Freedom of Religion
  • What did the founders of the USA mean by the
    religion clause?
  • It is clear a national religion was prohibited.
  • Some argue it meant one religion was not favored
    over another.
  • Jefferson argued that there is a wall of
    separation between church and state. Forbidding
    favoritism and support from the govt.

Freedom of Religion Schools
  • What happens when religion is mixed with
  • Great concern over govt aid to church-related
    schools and prayer in schools.
  • Proponents argue that govt aid does not favor a
    specific religion.
  • Opponents argue the Roman Catholic Church has the
    largest religious school system in US which
    receives most of the aid.
  • In 1965 LBJ obtained passage of the 1st large aid
    to parochial elementary and secondary schools.
  • Main idea- money went to student, not schools and
    should follow students.

Lemon V. Kurtzman
  • Facts of the case
  • In Pennsylvania, a law provided money to teachers
    who taught secular subjects in non-public schools
    (this included parochial schools)
  • In Rhode Island, the state provided salary
    supplements of 15 to teachers in non-public
  • Question before the court Did the Rhode Island
    and Pennsylvania statutes violate the First
    Amendment's Establishment Clause by making state
    financial aid available to "church- related
    educational institutions"?
  • Ruling 8 justices voted for Lemon, 0 for
    Kurtzman, which meant that the SCOTUS unanimously
    found that R.I. and PA did violate the
    establishment clause, located in the first
    amendment of the Constitution, which says,
    Congress shall make no law respecting the
    establishment of a religion

  • The majority set forth a 3 part test for laws and
    the establishment clause
  • The government's action must have a secular
    legislative purpose
  • The government's action must not have the primary
    effect of either advancing or inhibiting
  • The government's action must not result in an
    "excessive government entanglement" with religion

Freedom of Religion Schools
  • Lemon v. Kurtzman
  • Since this case court has a fine line over
    permissible aid.
  • Supreme Court has allowed religiously affiliated
    universities to construct buildings with public
  • Parochial schools can use funds for instructional
    equipment, text books, lunches, transportation
    and standardized testing.
  • Parochial schools can not use funds to pay
    teacher salaries or for transportation on a field
  • Reasoning for above decisions buildings, text
    books and lunches is easily not used for
    religious education. However a teacher in the
    classroom or a field trip could have religious
    implications which go against the constitution.
  • Since 1997 the constraints have loosened enough
    to have teachers sent to parochial schools in
    order to instruct students in remedial and
    supplemental classes for needy children.

Zelman v. Simmons-Harris (2002)
  • School Voucher A government project grant given
    to parents in order to help cover their childs
    educational costs.
  • In Cleveland, Ohio, 96 of the students receiving
    school vouchers were enrolled in private,
    religiously affiliated schools. Ohio taxpayers
    argued that this was a violation of the First
    Amendment Congress shall make no law respecting
    an establishment of religion.
  • Question presented to Supreme Court Does Ohios
    school voucher program violate the Establishment
    Clause of the First Amendment?
  • The Courts Decision A 5-4 decision was giving
    stating that the program did not violate the
    First Amendment. The court developed a five part
    test in order to test the constitutionality of a
    voucher program
  • The program must have a valid secular purpose
  • Aid must go to parents and not to the schools
  • A broad class of beneficiaries must be covered
  • The program must be neutral with respect to
  • There must be adequate nonreligious options

Freedom of Religion Schools
  • Controversy over religion is not limited to
    public schools.
  • New York was stopped in creating a public school
    district to benefit a Hasidic Jews.
  • Supreme Court is also opening activities for
    public schools to religious activities.
  • Ex Universities that allow student groups to use
    school facilities must allow religious student
    groups to use facilities for worship.
  • Ex 1984 Equal Access Act Congress passed
    indicating any school that receives federal funds
    and allows student meetings in their facility
    then it must allow religious worship in the
  • Public schools that rent space must include
    religious organizations.

Freedom of Religion Schools
  • Supreme Court opening public facilities for
    religious activities continued.
  • U of VA was required to subsidize a religious
    magazine as they do other student publications.
  • Threshold is higher when public funds are used
    directly to support education Ex A school will
    not have a religious instructor come into the
    school but will allow a student to leave to
    receive religious instruction.

Engel v. Vitale
  • The court case of Engel v. Vitale was brought to
    the United States Supreme Court in 1962 regarding
    families of the public school students of New
    Hyde Park, New York, who argued that the
    voluntary prayer being used in the morning at the
    school went against their religious beliefs.
  • The main question at hand for this case was,
    Does the reading of a nondenominational prayer
    at the start of the school day violate the
    establishment of religion clause of the First
  • The court ruled that the voluntary prayer in the
    school was unconstitutional by a vote of 6-1.
  • Arguments for the case took place on April 3rd,
    1962, and the decision was made on June 25th,
  • This case revolved around the argument that the
    prayer was violating the Establishment Clause of
    the First Amendment to the United States
    Constitution, which says, Congress shall make no
    law respecting an establishment of religion."

  • Started when Edward Schempp, a Unitarian
    Universalist and a resident of Abington Township,
    PA filed a suit against the Abington School
  • Goal was to prohibit the enforcement of PA state
    law that required his children to hear and
    sometimes read parts of the Bible as part of
    their public school education.
  • Claimed that this law violated his familys
    rights under the first and Fourteenth Amendments.
  • The law was that school districts had to perform
    Bible readings in the morning before classes
  • District ruled in Schempps favor, but the
    school district appealed it.
  • During the time of the appeal, Schempp continued
    his belief claiming that the amendment of the law
    did not change its nature as an unconstitutional
    establishment of religion, which is how it
    reached the Supreme Court

Did the Pennsylvania law and Abington's policy,
requiring public school students to participate
in classroom religious exercises, violate the
religious freedom of students as protected by the
First and Fourteenth Amendments?
This case was argued on February 27th to the
28th. It was officially decided on June 17, 1963
Court decides 9-1 in favor of Edward Schempp and
declared that school-sponsored Bible reading in
public schools of the US was unconstitutional
  • School District of Abington Township PA v. Schempp

Freedom of Religion Schools
  • So where is the line?
  • It is not illegal to pray in public school. The
    constitution forbids encouragement of prayer.
  • Ex 1992 school-sponsored prayer during
    graduation violates separation of church and
  • Ex 2000 student led prayers at a football games
    are a violation.

Freedom of Religion Schools
  • Recently religious controversies have been
  • Due to fundamental Christian Groups becoming more
    involved in politics.
  • Schools have ignored Supreme Courts ban on school
    prayer and allow it in classrooms.
  • There is a push for a Constitutional Amendment to
    allow school prayer.
  • Fundamental Christian Groups are pushing to teach
  • In 1968 Darwins theory of evolution cannot be
    prohibited by Supreme Court.
  • Requiring Intelligent Design as an alternative
    has been struck down by the court too.

Freedom of Religion
  • Supreme Court struggles to interpret religion in
    other areas of society.
  • In 2005 KY counties violated religious neutrality
    by posting 10 Commandments in courthouses.
  • Court decided that the counties were trying to
    advance religion
  • In 2005 TX state capital included a monolith
    inscribed with the 10 Commandments along with 21
    historical markers and 17 monuments.
  • Court decided that Texas placement of texts was
    far more passive and served a legitimate
    historical purpose.

Freedom of Religion
  • Displays of religious symbols during holidays on
    public property has caused great debate.
  • Court has ruled that displays of religious
    symbols next to secular symbols are acceptable.
    However, if the secular symbols do not exist then
    it appears there is an endorsement of religion.
  • Courts position is that the Constitution does not
    require complete separation of church and state.
  • The court mandates accommodation of all religions
    and forbids hostility toward any.
  • The courts largest problem is drawing the line
    between neutrality and promotion.

Freedom of Religion
  • Freedom to exercise ones religion appears simple
    but it is not.
  • Going to church, temple or a little voodoo is
    easy to accept.
  • Religions can forbid actions society thinks are
    necessary or may require action that society
    finds unacceptable.
  • Having several wives or using drugs in a
  • Amish parents refusing to send children to
    public school.
  • Jehovahs Witness / Christian Scientists not
    accepting blood transfusions.

Freedom of Religion
  • The courts are more cautious about the right to
    practice a belief.
  • The courts have stopped some practices
  • Ex Laws and regulations forbidding polygamy,
    prohibiting business activities on Sunday,
    denying tax exemptions to religious schools that
    discriminate based on race, allowing building of
    roads through sacred Native American grounds.

Freedom of Religion
  • Congress and the Supreme Court have also provided
    protections to religious practices.
  • Amish parents can take their children out of
    school after 8th grade.
  • Ideology Amish children would not burden state.
    Religion precedence over education.
  • Jehovahs Witnesses not required to participate
    in flag-saluting ceremonies.
  • Conscientious objectors to war on religious
  • Sacrificing animals for religious reasons is
  • Ideology Govt permits other forms of killing
    animals may not ban sacrifices or ritual

Freedom of Expression
  • Democracy depends on free expression of ideas.
  • Americans pride themselves on this idea.
  • Courts consistently must decide the line
    separating permissible from unacceptable speech.
  • Can the govt sensor speech that they think
    violates the law?
  • What constitutes speech or press within the
    meaning of the 1st Amendment that should be
  • Obscenity, libel, incitements to violence and
    overthrow of the govt are not protected.
  • What is considered obscene or incitement?

Freedom of Expression
  • Questions regarding Speech
  • Expression is a balance in society.
  • Speech vs. Public Order
  • Speech vs. National Security
  • Speech vs. Fair Trial
  • Should commercial speech receive the same
    protections as religious and political speech?
  • Should public airways be regulated?

Freedom of Speech
  • 1st Amendment ensures a persons right to publish
    material without prior restraint.
  • Prior restraint govt preventing material from
    being published or censored.

Near V. Minnesota
  • January 1931- June, 1931
  • Jay Near was attacked by the local officials in
    Minneapolis for publishing a scandal sheet. His
    articles were said to be implicated with
  • Near was prevented by Minnesota officials from
    publishing his newspapers under a state law that
    allowed such action against periodicals.
  • The law provided that any person "engaged in the
    business" of regularly publishing or circulating
    an "obscene, lewd, and lascivious" or a
    "malicious, scandalous and defamatory" newspaper
    or periodical was guilty of a nuisance, and could
    be enjoined (stopped) from further committing or
    maintaining the nuisance.
  • Does the Minnesota "gag law" violate the free
    press provision of the First Amendment?

Near V. Minnesota
  • The Supreme Court Concluded that the law was
    unconstitutional because it violated freedom of
    the press.
  • This can be found in the First Amendment Freedom
    of religion, speech, and press.
  • The government can not prohibit you from
    publishing something, even before it has been
  • You can publish an article, but you can be sued
    for defamation after the fact.

Freedom of Expression
  • Prior restraint depends on the individual or
  • Students in public school may be limited more
    than adults in other settings.
  • 1988 School Newspapers were not a public forum
    and cannot be regulated any reasonable manner
    by school officials.
  • 2007 School environment has special
    characteristics and govt interest to stop drug
    abuse. Allow schools to restrict expression
    regarded as promoting this abuse.

Freedom of Expression
  • Wartime brings censorship.
  • Public supports censorship during wartime.
  • Ex Newspapers being sued for troop movement
    would be supported.
  • Supreme Court upheld restrictions on publishing
    names of national security.
  • CIA agents have been sued for breaking
    contractual obligations with regard to submitting
    books for censorship. Books had no classified
    information. Govt was successful.
  • Generally courts do not prohibit publication of
    national security information.
  • Ex Pentagon Papers were allowed to be published.

Schenck v. United States
  • During World War I, Charles Schenck, Secretary of
    the Socialist Party of America, mailed circulars
    to draftees which stated that the draft was a
    wrong motivated by the capitalist system and
    urged them to repeal the Conscription Act
  • Schenck was charged with conspiracy to violate
    the Espionage Act
  • Argued on January 9, 1919
  • Decided on March 3, 1919
  • Main question Are Schencks actions (words,
    expressions) protected by the free speech clause
    of the First Amendment?

  • Decision 9 votes for United States, 0 votes for
    Schneck (right)
  • Location in the constitution U.S. Constitution
    Amendment 1, 1917 Espionage Act
  • The unanimous court concluded that Schneck was
    not protected by the First Amendment in this
    situation. During wartime, utterances tolerable
    in peacetime could be punished.
  • Established clear and present danger test

Free Speech and Public Order
  • 1950s confronted speech and public order.
  • Second red scare in 40s and 50s. Many people
    believed commies were inside the govt.
  • National govt determined to jail leaders of
    communist party. Ex Joe McCarthy going after
    subversives based on Smith Act (forbade violent
    overthrow of govt)
  • Supreme Court upheld many prison sentences of
    communist party leaders even without evidence of
    urging people to commit violence.
  • Activities by this group similar to yelling fire
    in empty theater not crowded.
  • Court believed Commie takeover more dangerous
    than limiting speech.
  • National Security more important that Speech.

Free Speech and Public Order
  • The 50s climate changed and court made it more
    difficult to prosecute dissenters under Smith
  • Court changed ruling later finding it permissible
    to advocate the violent overthrow of the govt in
    the abstract but not to incite anyone to imminent
    lawless action.
  • The 60s brought waves of protest.
  • Recently there have been protests against Iraq
    which included passing out leaflets and gathering
    signatures (must be done in public places).
  • Constitutional protections are reduced and not
    guaranteed on private property . Ex Shopping
  • Politicking and posting signs on private property
    have been upheld.

Speech and Obscenity
  • Deciding what is obscene is challenging.
  • Public standards change over time, place and
    person to person.
  • Ex MTV would be banned 2 decades ago.
  • Huckleberry Finn and Tarzan have been banned.
  • The court has tried to define obscene in
    different court cases.

Argued Monday, April 22, 1957 Decided Monday,
June 24, 1957
Roth v. United States
  • Background
  • Samuel Roth operated a business that sold
    sexually explicit pictures, books, and magazines.
  • Federal law at the time prohibited sending
    material through the U.S. mail that would "stir
    sexual impulses.
  • Roth was convicted of sending obscene advertising
    and an obscene book through the mail (at the
    Supreme Court, Roth's case was combined with
    Alberts v. California).

Constitution The case involved the freedom of
expression and whether obscene material was
protected under the 1st Amendment, specifically
freedom of speech.
Question Did the federal obscenity restrictions,
prohibiting the sale or transfer of obscene
materials through the mail, impinge upon the
freedom of expression as guaranteed by the First
  • Decision 6 votes for the U.S., 3 votes against
  • Justice William J. Brennan, Jr., said obscenity
    is not protected by the freedom of speech.
  • In order to be deemed obscene, a work had to be
    utterly without redeeming social value.
  • The Court held that the test to determine
    obscenity was "whether to the average person,
    applying contemporary community standards, the
    dominant theme of the material taken as a whole
    appeals to prurient interest."

Following the jury's verdict of the Mapplethorpe
Obscenity Trial (1990), hundreds of protesters
demonstrated outside the Cincinnati Arts Center.
Miller v. California
  • In 1971, Marvin Miller was charged under a
    California law for distributing obscene
    material in the adult advertisements he was
    sending in mail. He appealed his case up to the
    Supreme Court.
  • Question before the Supreme Court Is the sale
    and distribution of obscene materials by mail
    protected under the First Amendment's freedom of
    speech guarantee?
  • Decision 5-4 vote that First Amendment does not
    protect obscene material. Modified rules for
  • "the basic guidelines for the trier of fact
    must be (a) whether 'the average person,
    applying contemporary community standards' would
    find that the work, taken as a whole, appeals to
    the prurient interest. . . (b) whether the work
    depicts or describes, in a patently offensive
    way, sexual conduct specifically defined by the
    applicable state law and (c) whether the work,
    taken as a whole, lacks serious literary,
    artistic, political, or scientific value.
  • Decided June 21, 1973 (Burger Court)
  • Location in Constitution First Amendment,
    Congress shall make no law abridging freedom of

Speech and Obscenity
  • There are great challenges to the court defining
  • No nationwide consensus (especially for adult
  • Lenient laws which makes it hard to convict.
  • Disputed material is available for purchase in
    bookstores and movie theaters.
  • Very challenging for courts to decide what to ban
    as many restrictions could be too broad and
    eliminate expression.
  • It is much easier to ban obscene material for
    young as they are more vulnerable.
  • Ex Ratings in motion Pictures
  • Ex TV Ratings new in the past few years.
  • Ex Communication Decency Act passed in 1996.
    Banning obscene material and criminalizing the
    transmission of indecent speech to those under 18
    years old.

The New York Times v. SullivanAustin Charles
Wentworth III
  • Argued January 6, 1964Decided March 9, 1964
  • The main question presented to the supreme court
    was whether Alabamas libel law, by not making
    Sullivan prove that he was personally harmed and
    dismissing the factual errors, unconstitutionally
    infringe on the First Amendments protections.
  • This case is located in the Constitutions Bill
    of Rights in Amendments 1 and 14.

New York Times v. SullivanArgued January 6th
7th, 1964Decided March 9th, 1964
  • New York Times attacked arrest of Martin Luther
    King, Jr., in a full-page ad
  • L.B. Sullivan (Montgomery city commissioner)
    claimed the ad was libel the allegations
    against the Montgomery police defamed him
  • Did Alabama's libel law unconstitutionally
    infringe on the 1st Amendment's freedom of speech
    and freedom of press protections?
  • The Court held that the 1st Amendment protects
    the publication of all statements, even false
    ones, as long as they are not made with actual
  • Concerns the 1st Amendment to the Constitution
    (freedoms of speech and press)

New York Times v. Sullivan
Speech Libel and Slander
  • Significance of NYT v. Sullivan.
  • Statements about public figures are libelous only
    if made with malice and reckless disregard for
    the truth.
  • Public figures must prove that whoever wrote or
    said untrue statements about them knew that the
    statements were untrue and intended to harm them.
  • Standard makes it difficult to prove publications
    were done intentionally and with malice.

Speech Libel and Slander
  • Private individual has a lower standard to win
    libel suit.
  • Show only statement made about them was
    defamatory falsehoods and author negligent.
  • Unusual to win a libel case as most people do not
    want to draw attention about the statements.

Symbolic Speech
  • Freedom of speech is interpreted as a guarantee
    of freedom of expression.
  • Symbolic speech actions that do not consist of
    speaking or writing but that express an opinion.
  • Tinker v. Des Moines
  • Students wore black arm bands protesting Vietnam
  • Supreme court ruled violated freedom of speech.
  • Not all expression is free.
  • Illegal to burn a draft card.
  • Illegal to burn a cross if used to intimidate.

Texas v. Johnson
  • Term1988
  • 1984 Johnson burned an American flag as a means
    of protest against Reagan administration
  • Action took place during Republican Convention in
  • Convicted under a Texas law outlawing flag

Texas v. Johnson
  • Question Is the desecration of an American flag,
    by burning or otherwise, a form of speech that is
    protected under the First Amendment?
  • Holding 5 votes for Johnson, 4 vote(s) against
  • Legal provision Amendment 1 Speech, Press, and

Free Press Fair Trial
  • Conflict between fair trial and freedom of press.
  • Ex Michael Jackson and OJ Simpson received a lot
    of negative press during trial. Defense argued
    that the fairness of the trial would be
  • No restriction of freedom of press for interest
    of fair trial has been upheld.
  • Pre-trial hearings have been closed to the public
    due to compromising a fair trial.
  • High-profile cases sometimes sequester a jury.

Zurcher v. Stanford Daily
  • History In 1971, police believed that The
    Stanford Daily at Stanford University withheld
    pictures of a fight between protestors and
    police, and claimed they needed them to identify
    the assailants. The police obtained a warrant and
    searched the newspaper for the photographs, none
    of which were found.
  • Question Did the search of The Daily's newsroom
    violate the First and Fourth Amendments?

Zurcher v. Stanford Daily
  • Date Argued- January 17, 1978 Decided- May 31,
  • Constitution The Stanford Daily argued that the
    police did not have probable cause, as required
    of them in the 4th Amendment. Freedom of press
    1st Amendment would have be violated.
  • Decision The court held that the police did have
    probable cause and had complete authorization to
    search the premises. In a 5-3 decision, the court
    said that the search was legal with the warrant.
    They also stated that the 1st Amendments
    freedom of press did not apply when issuing
    warrants when the press was involved.

Commercial Speech
  • Commercial speech (ex advertising) can be
    restricted more than many other types of speech
    but has been receiving increased protection from
    the Supreme Court.
  • FTC decides what kinds of goods may be advertised
    and regulates the content.
  • Ex Cigarette commercials used to be commonplace
    but social mores made it change.
  • FTC tries to ensure advertisers do not make false
    claims. Ex Love life is better by a deodorant

Speech Regulation
  • FCC regulates content on radio and TV.
  • All radio TV stations need a license which
    means they must comply with regulations
  • Ex Time for public use children programming,
    political candidates.
  • Cable channels are more relaxed as it would
    violate 1st Amendment.

(APRIL 17, 1974)
  • Description Pat Tornillo, a candidate for the
    Florida HoR, was criticized by the Miami Herald
    in two editorials. Tornillo demanded that the
    newspaper publish his response to the criticisms
    because of the Florida Statute which granted
    political candidates criticized by any newspaper
    the right to have their responses to the
    criticisms published.
  • Miami Herald refused. Circuit Court ruled the
    statute was unconstitutional, while the Florida
    Supreme Court reversed the decision.

Miami Herald v. Tornillo
  • Question Does the right to reply statute
    violate the First Amendments free press clause?
  • Decision Yes. The press is not mandated by the
    Constitution, therefore it cannot be legislated
    (June 25, 1974). 9-0 Decision
  • Chief Justice stated that the right to reply
    statute put a limit on the variety of public
    debate, which was unconstitutional

Chief Justice Burger
Red Lion Broadcasting Company v. Federal
Communications Commission
Argued April 2-3, 1969, Decided June 9, 1969
The Red Lion Broadcasting Company alleged that
the FCCs fairness doctrine was a violation of
the First Amendments freedom of speech. The
fairness doctrine stated that radio and
television broadcasters were required to first
present controversial public issues and do so in
a fair and balanced manner. This case arose when
The Red Lion Broadcasting Company was accused of
not meeting the requirements of the fairness
doctrine after holding a personal attack.
This is found under the First Amendment, freedom
of speech.
  • The question being asked was, do the FCC's
    fairness doctrine regulations, concerning
    personal attacks made in the context of public
    issue debates and political editorializing,
    violate the First Amendment's freedom of speech

Red Lion Broadcasting Company v. Federal
Communications Commission
  • The court made a unanimous decision 7-0 in
    favor of the FCC stating that the fairness
    doctrine further protected the First Amendment
    rather than violate freedom of speech.

Speech Regulation
  • FCC regulates obscene words.
  • George Carlins routine of filthy words was
    never aired.
  • NYC radio station tried and Supreme Court upheld
    FCC policy of barring words.
  • Howard Stern was fined 600,000 for indecency.
    Able to air on satellite or cable.
  • Technology has blurred line between private
    communication and broadcasting.
  • Federal Law requires cable to have specific
    channels for sexual oriented programs that are
    scrambled / blocked. It is also possible to
    limit times where children do not watch tv.