First amendment protections

Balance of civil rights / civil liberties v. Individual rights / liberties.

No absolute claim to community / individual rights (like in marriage).

Supreme ct.- sort out proper balance.

Warren ct. (1950s & 1960s) Civil Rights active.

Civil liberties - govt.. Must be restrained / freedoms of individuals.

Civil rights - an individual "constitutional" right.

Rights more absolute - still need balance between individual / community.

Bill of rights guarantees liberties / protects rights.

14th - extended bill of rights to states. (protect individual.)

Supreme ct. Decides extent of rights / liberties. Definitions change / court & social attitudes change.

Warren ct. (1953-1969).

Law enforcement to strict procedures.  (cops. Complained).

Burger ct. (1969 - 1986): more police discretion. Rehnquist Supreme Court - self    restraint -        less interference w/ states law enforcement.

14th - nationalized bill of rights. (applied bill of rights to states).

Free speech / press / assembly.

Value of free expression - core liberty of democracy).

Necessary to political process.

Defined by constitution.

Free expression - allows search for truth / challenge current values.

Promotes individual self - improvement.

 

1st amendment - free speech / free & robust press.

Test of freedom - 1919 justice Oliver W. Holmes - clear & present danger test.

Allowed all points of view unless threaten serious / imminent violence.

Cannot yell fire in crowded theater.

Can in empty theater.

Can not offer to hire hit man.

Bad tendency test allowed suppression of views that might threaten values of majority.

          (Maplethorp exhibit?

Pee Wee Herman in theater?

In San Francisco bath house?)

Supreme Court today - most restraints of free expression unconstitutional.

 

Gags:

Pentagon papers.

"how to make an h bomb"

Supreme Court - no prior restraint today.

Damages free speech.

Open pre - trial hearings? / prejudicial? / publicity?

Cameras in court? (Kennedy - Smith trial in Fla.?

Protection of witness.

States witnesses id?

 

Freedom of press. (public's need / right to know vs. Right to fair trial)

Should reporters have constitutional immunity from revealing sources?

Confidentiality to sources to get info?

Reporters can be jailed for contempt.

Info may be essential to fair trial.

Some states have shield laws (protect reporters in lower courts.

Freedom of speech not absolute! (can be suppressed if        actionable.)

 

Protest / dissent:

Subversive speech is prob. For democratic pol. System.

Smith act prohibited advocating violent overthrow of govt..

Supreme Court today requires "actionable words". (must be more than discussion / must           incite to action).

 

Amer. Communist party cases.

Sedition - stirring up treason.

Disturb tranquility of the state.

Decade of the 1950's - "Cold War" hot!

Truman set up loyalty progs. For govt.. Employees.

Govt. & courts much stricter in time of war / stress.

 

Obscenity / libel (matter of taste. (states decide community standards)

Supreme ct. 1969 - individuals can possess obscene material for personal use.

No one necessarily has right to sell obscene material.

Communities can decide / control hard core material. (understood to be hard - core           pornography.)

Fed. Government Can ban material through mail.

1976 Supreme Court - criminal cases of pornographer - decided by jury.

1982 Supreme Court - 1st amendment does not protect pornography depicting        children in sex acts.

What about private photos of wife.

Recent sting case of Okla.: authorities, set up fictitious co.

Ordered porno. Info from cal.

Received material won case.

Publisher in Cal violated ok. Community standards.

Supreme ct. Justice - Potter Stewart (1958 - 1981) “I know it when I see it"

Fed. Government has limited control of material sent thru. Mail.

Man in Utah, sent 10+ mailings of nude boys material from U.S. post office.

Arrested when picked up material.

Home searched.

No other material in home.

1st time to accept material.

Material created personally for him.

Printed by post office.

Printing houses all put out of business.

Small community / pillar of community / active in local church & politics.

Reputation ruined / faces large fine / jail time.

Some depictions of explicit sex.

Libelous statements might not be protected by 1st amendment.

Supreme Court can't define obscenity.

 

Standards for libel.

Especially liberal concerning public material. Against public officials / figures.

Warren ct. - looked at community standards.

Would average person find work applies only to prurient interests.

Work depicts / describes in an offensive way sexual conduct as defined by state law         & lacks literary / artistic / political or scientific value.

Does obscenity encourage sex crimes / degrade women?

 

Libel / slander: (defamation of ones character / reputation.

Slander - must show "special damages" (money) / unless 1 of 4 classes of slander. (slander per se)

Imputation of major crime - of moral turpitude / vile.

Loathsome disease - venereal / leprosy / permanent / lingering / incurable /    contagious / repugnant.

Affect business / trade / profession / office.

Cheating / fraud.

Serious sexual misconduct  / imputation of unchastity.

          (not as damaging to man).

Slander per se for woman.

Accusation of "queer" slander per se for man.

After NY Times v. Sullivan, 1964 - public figures / officials - must prove actual        malice. (knew info. Was false / had reckless disregard for truth.

Plaintiff has burden of proving info was false.

Sullivan (a city commissioner / supervised chief of police, Montgomery, Ala.)

Sued over full page in times claiming mistreatment of blacks.

          (including Martin Luther King).

Much of add was false.

Sullivan won in Montgomery courts / Ala. Supreme Court

Lost in Supreme Court

Advertisement "libelous per se" / but Sullivan a         public figure. (not libelous per se -           had to prove to greater standard)

Court said - nat'l. Commitment to debate on public issues should be uninhibited /    robust.

Can be vehement, caustic, unpleasant, attacks on govt. & public officials.

Must be proven beyond a "reasonable" doubt.

Court did not want to contribute to "self - censorship"

CBS v. Gen. William Westmoreland (libeled about story that he deceived pres.       About conduct of Vietnam War.)

Time v. Israeli defense minister Ariel Sharon.

Parodies are protected - hustler v. Jerry Falwell        (Moral Majority leader, pastor of           Liberty Rd. Baptist Church Lynchburg Va.)

Hustler parody: Falwell in drunken state, had sexual experience w/ mother in an           outhouse. Falwell won in lower court / lost appeal.

Under Sullivan more cases go to trial to try to prove "Actual Malice".

Democratic politics requires free speech.

Politics - free expression allows challenge to dominant wisdom of day.

Open discussion & debate allow search for truth.

Sedition act of 1798 - (expired 1801) - crime to publish false, scandalous, malicious           statements about government.

Bad tendency test - (until WWI)

Oliver Wendel Holmes - (after WWI) clear and present danger test - will cause           substantive           evil.

After 1951: Supreme Court decides cases based on gravity of evil. (neo-nazis,           communists, ku klux klan, other extremists?

Freedom of assembly / speech?

Expressions involve action? / more than just words?

Supreme ct. - protected expressions:

Burning American Flag / draft cards / sit-ins.

Clothing - "fuck the draft", "don't suck corporate cock".

1989 - Greg. Lee Johnson - burned flag / Dallas city hall / rep. Nat'l. Convention    (1984). "America Land of The red, white, and blue, we spit on you"

Acquitted of desecration of an national symbol.

Could have been charged w/ breech of peace, other local ordinances.

Bush failed twice to get constitutional amendment to bar flag desecration.

Supreme Court prayer in school not protected by 1st Amendment, freedom of         speech?

Prayer every morning in legislature.

No excessive entanglement between religion & govt..

1791 - Establishment clause - school prayer always protected until recent times.

Original bill of rights: protected states rights from national govt..

Today's bill of rights: protects individual's rights from national govt.

 

What if?

Tulsa, racially mixed city / bible belt / religious city.

22 black teenage boys sexually attacked, murdered.

City terrified / riots.

Father of last victim (local preacher) asks have school prayer every morning until           killer is caught?

Hold one-time memorial service for all victims & the community.

Pray that killer is captured.

No one required to attend.

Prayer? / what language?

Moment of silence?

Pass out ribbons?

Camel would get nose under flap of the tent?

Religious fanatics would make too many demands on public facilities if allowed?

Give them an inch, they'll take a mile?

Violates 1st amendment? (separation of church and state). "Congress shall make no           law...state supported religion." / Separation Clause.

What if vast majority wanted prayer?

1,000 protestants / 5 hindus / 3 jews / 2 moonies / 6 ethical culturalists, 2 agnostics,                   1 atheist, 8 yahoos. "Almighty God, we acknowledge our dependence on                           thee, beg thy blessings upon us, our parents, our teachers, and our country,   amen."

Moment of silence?

What if all want prayer but one student?

What if no one objects?

Constitution fragile?

What about service, no prayer? / music?

Who's rights are violated?

Prayer violates 1st, 14th amendments?

Schools have student clubs, chess clubs, scuba clubs.

Why not bible clubs?

ACLU - prayer unconstitutional even if no one objects.

In all colonies / states; states had government sponsored church until civil war.

Same people - elders in church, officials in govt..

Met in church buildings / had prayer.

All colonies had laws that protected prayer anywhere.

Prayer at commencement exercises?

Prayer for players at football games?

States can protect individuals from religious practices.

Ptl fraud.

 

Unlicensed use of medicine.

No medicine.

Serious risk (snake handling)

No invasive surgery.

 

Supreme ct. Not immune to public opinion.

Judicial review overcome in recent labor cases where union membership required for employment.

Reconcile free expression v. Separation clause?

What if judicial review is contrary to overwhelming majority.

Should congress attack unpopular Supreme Court Decisions?

Dred Scott. (blacks are property).

Plessy fergeson (separate but equal)

 

What is proper balance of Suipreme Court?

Protect "individual rights" v. providing for nation's common good?

Conflict of civil rights?

Civil rights before 1960 = constitutional protection.

Civil rights after 1960 = right of participation. (political system / society / housing, etc.) On an equal footing.

No one penalized because of criteria (race, gender, age).

 

Civil rights legislation:

Civil rights act (1964) - voter registration must be fair / no discrimination of public           housing.

Voting rights act (1965) - no voter tests

Civil rights act (1968) - no discrimination in selling or renting housing.

Civil rights movement peaked in 1960s

1970s & 1980s = less Fed. Govt.. Involvement to extend civil rights.

Bill of rights - designed to restrict Fed. Government

 

1960s interpretation of 14th amendment = used to restrict states (due process).

Boston added blacks, hispanics to police, fire-fighters for racial equality. (% of           community).

Shortage of funds.

State had to cut back.

Lay offs based on racial quotas.

Employees with high seniority fired.

New hire minorities retained

 

Equality of opportunity = marathon (all allowed to enter).

Equality of condition = eliminate handicaps (no tied shoe laces) / bad shoes / redistribute income / resources (head start, scholarships).

Equality of results = government to carry some to finish line - affirmative action / Boston fire-fighters.

 

Two kinds of cases:

Classification = laws of race / gender discrimination.

Discrimination of white males allowed - Boston fire-fighters.

Most fired were long term whites.

Fundamental rights = can't ban contraceptives for unmarried women and not         married women. (right to bear children is personal choice). Violates assumed    right to privacy.

Racial discrimination - help wanted "no Irish need apply".

Racial discrimination - no college quotas (Bakke case v. U of Cal. Med school, 1977)

Med school "set aside" a number of admittance slots for blacks.

Bakke's grades better than some of the setasides.

Bakke sued for reverse discrimination / won case.

Violated 14th (equal protection clause)

 

13th, 14th, 15th, = Civil War amendments = 2nd Constitution.

Actually about slavery. / Reconstruction.

14th Amendment original intent: protect new Freedmen in south from black codes.

1896 - Plessy v. Ferguson = separate but equal.

La. Law required blacks to ride in separate, but         equal rail car.

1954 - Brown v. Board of education, Topeka Ks. - overturned separate but equal.

Segregation in schools based on race deprived blacks of equal education.

De jure segregation = segregation by law.

Caused by government policy. (freedom of choice not enough)

School boards must redraw attendance zones / bussing.

De facto segregation = unofficial segregation

Residential, economic, private segregation.

Public education funded mostly w/ property taxes.

Rich neighborhood offer better schools.

Bussing: little effect on black education.

No better / no worse.

Outstanding black students lose influence they had in all black school

 

Affirmative action = preferential treatment of minorities. (2 wrongs make a right?)

Law schools do not admit based solely on qualifications.

Ok. Law blacks must use separate but equal phones.

La. Law black prostitutes must work different side of street from white prostitutes.

N. Carolina law = white students could not use text books that had been used by     black           students.

Ga. Law = white witnesses in court could not be        sworn in with same bible used to           swear in blacks.

In south - blacks not in politics.

States required poll taxes / good character tests / literacy tests / grandfather clauses.

1973 - Roe v. Wade - supreme ct. Upheld right to abortion (7 to 2)

 

Thurgood marshall = 1st black supreme ct. Justice.

Argued that courts had been slow to prevent discrimination of blacks by whites.

Should now be slow to prevent discrimination of whites by blacks.

Supported affirmative action / quotas

 

Santa Clara, Ca. - road dispatch job.

7 applicants.

Diane Joyce got job. / had least experience.

Paul Johnson (had most seniority, best test scores) sued.

          Both white.

Supreme Court - allowed decision to stand. (didn't think it would be an on-going     policy)

Opposite of Bakke decision

 

Early constitution left voter qualifications to states.

States passed laws against blacks and some women

 

Gender legislation:

1800s husband & wife = 1 (the man).

1920 - 19th amendment = states cannot prevent women from voting.

1963 - equal pay for equal work.

1964 - no sexual, race bias in hiring.

1972 - no sexual discrimination in ed. Programs (financial aid)

 

No sex-based retirement plans (women pay same benefits even though they live       longer, receive more)

Elderly: (28 million over 65.)

12% of population

Poorest age group.

Cannot discriminate against 40 - 70 in work-place (if performance not a factor).

1986 - no mandatory retirement at 70

          Airlines?

 

Disabled:

Largest minority group.

43 million. (mental & physical).

1973 - no discrimination in fin. Aid for ed.

1990 Americans w/ disabilities act. - no discrimination in employment, public           accommodations (restaurants, hotels, physicians offices, zoos, sports arenas,          dry cleaners)

1961 - Warren Court: 10 protection from the states.

Criminal procedures include presumption of innocence / right to know charges.

Search / seizure (4th)

 

1966 - Miranda v Az.:

Must be informed of rights.

Do not have to answer questions.

Statements can be used against you.

Can have lawyer present during questioning (and lineup).

Counsel will be provided.

Can stop questioning at any time.

If rights not given (and understood) any confession invalid.

Police can use invalid confession to find witnesses, more evidence, leads.

Courts can use invalid confession to impeach defendants testimony (if statements at                   trial are different)

Miranda not required prior to arrest.

Confession not valid if arrest illegal.

Miranda waved, plea bargain in 70% of cases.

Exclusionary rule - illegally seized evidence cannot be used.

Search cannot produce evidence of unrelated crime (fruit of poisonous tree doctrine /           tainted)

Search must have warrant / issued by proper judge (Only with probable cause)

Search must specify who, what, where to be searched.

What items searched for?

Exception:  if person arrested: can search         immediate area (car, room)

School officials need only reasonable cause, not probable cause. (on grounds)

Wire tap is search.

Officer can stop search persons believed acting illegally / intent on committing crime.

When driver arrested; evidence can be used even if nothing to do with initial stop. 

Search / seizure legal if person consents (even if not told of his rights.)