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Chapters 13, 14, & 15 Government 1

. These chapters look at the Constitutional guarantees of basic rights that are guaranteed and given to all Americans.

Bill of Rights—James Madison introduced a series of amendments to the U.S. Constitution that became known as the Bill of Rights. It was intended to protect individuals from abuses by the national government such as: to prevent it from controlling the press, restricting speech, influencing religion, and limiting other areas of personal freedom. They had no idea that these restrictions would be applied to the state governments.

Barron v. Baltimore (1833)—the U.S. Supreme Court ruled that the Bill of Rights applied only to the national government, not to the states. o In Barron v. Baltimore (1833), the Supreme Court ruled that the Constitution's Bill of Rights restricts only the powers of the federal government and not those of the state governments. The case began with a lawsuit filed by John Barron against the city of Baltimore, claiming that the city had deprived him of his property in violation of the Fifth Amendment, which provides that the government may not take private property without just compensation. He alleged that the city ruined his busy wharf in Baltimore Harbor by depositing around the wharf sand and earth cleared from a road construction project that made the waters around the wharf too shallow to dock most vessels. The state court found that the city had unconstitutionally deprived Barron of private property and awarded him $4,500 in damages, to be paid by the city in compensation. An appellate court then reversed this award. Barron appealed to the Supreme Court, which reviewed the case in 1833. The Supreme Court, in a decision written by Chief Justice John Marshall, ruled that Barron had no claim against the state under the Bill of Rights because the Bill of Rights does not apply to the states. The Court asserted that the Constitution was created "by the people of the United States" to apply only to the government that the Constitution had created -- the federal government -- and "not for the government of the individual states." The separate states had drafted constitutions only to apply to themselves, limiting the actions of only state governments. Thus, "the Fifth Amendment must be understood as restricting the power of the general government, not as applicable to the states." The Court argued that the validity of this conclusion is bolstered by the fact that the Constitution nowhere states that the Bill of Rights also limits the actions of state governments, Thus, the state of Maryland, through the actions of the city of Baltimore, did not infringe on the Constitution. With no federal claim, the Supreme Court thus lacked jurisdiction (or power) to hear Barron's case and dismissed it. Barron v. Baltimore's simple rule, that the Bill of Rights applies only to the federal government and not to the states, was, in the words of Chief Justice Marshall, "not of much difficulty" -- self-evident from the structure and literal language of the Constitution. However, in spite of the Court's ruling, state courts still interpreted the Bill of Rights as applying to their own governments, viewing them as reflections of the general laws in Anglo-American culture ("the common law"). The Supreme Court's ruling in Barron prevailed in federal courts, however, until passage of the Fourteenth Amendment after the Civil War. Gradually since then, the Supreme Court has interpreted the Fourteenth Amendment, which bans states from depriving citizens of life, liberty, or property without "due process of law," as also incorporating -- or applying -- most of the amendments in the Bill of Rights against the states, including the "takings clause" of the Fifth Amendment. Modern constitutional law prohibits state governments from taking private property without just compensation.

Incorporation—the gradual process of applying the Bill of Rights to the states.

14 TH Amendment—no attempt was made to apply the Bill of Rights to the states for about 80 years, and then Congress added the 14TH Amendment to the Constitution. It not only defined citizenship but also laid the groundwork for making individual rights national. It’s due process clause state that “no state shall …deprive any person of life, liberty, or property without the due process of law…” o The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it forbids Chapters 13, 14, & 15 Government 2 states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws.” By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.

Gitlow v. New York (1925)—the U.S. Supreme Court ruled that 1ST Amendment rights to freedom of speech applied to states as well as the federal government. o Benjamin Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

. Since the Gitlow case, the U.S. Supreme Court has incorporated almost all other rights provided for in the first 10 amendments. With the exceptions being the 2ND, 3RD, and 10TH Amendments, the excessive bails and fines prohibition of the 8TH Amendment, and two judicial procedures contained in the 5TH and 7TH Amendments.

Establishment Clause—the part of the 1ST Amendment that prohibits the establishment of a national religion. o The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. Although some government action implicating religion is permissible, and indeed unavoidable, it is not clear just how much the Establishment Clause tolerates. In the past, the Supreme Court has permitted religious invocations to open legislative session, government funding of bussing and textbooks for private religious schools, and efforts by school districts to arrange schedules to accommodate students’ extra-curricular religious education programs. The Court has ruled against some overtly religious displays at courthouses, state funding supplementing teacher salaries at religious schools, and some overly religious holiday decorations on public land. Free Exercise Clause—the part of the 1ST Amendment that states that Congress may not make laws restricting or prohibiting a person’s religious practices. o Free Exercise Clause refers to the section of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. The wording in the free-exercise clauses of state constitutions that religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause. The clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggests that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects. . Notice that the phrase “separation of church and state” does not appear in the 1ST Amendment, nor is it found anywhere else in the Constitution. Instead, Thomas Jefferson coined it in his writings during the American Revolution. He opposed Chapters 13, 14, & 15 Government 3 having he Church of England as the established church of his native Virginia. As President, Jefferson wrote that the 1ST Amendment’s freedom of religion clause was designed to build “a wall of separation between Church and State.” Jefferson’s interpretation has surely influenced the Supreme Court through the years. The Court has consistently ruled that a separation between church and state is required by the Constitution. The Court has declared that the 1ST Amendment not only means that no national religion may be established but that government can have no involvement with religion at all.

Everson v. Board of Education (1947)—The U.S. Supreme Court ruled that a New Jersey township had not violated the establishment clause when it reimbursed parents for the cost of sending their children to school on public transportation. The reimbursement was made to all parents even if their children attended religious schools. The Court explained that the practice served the public purpose of getting children to school safely; was neutrally administered, neither favoring nor disfavoring anyone on the basis of their religious views; and was a general program intended to benefit students, not to advance religion. o A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment? No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school. . School prayer has been the most controversial of the separation of church and state issues. The U.S. Supreme Court has ruled about the constitutionality of saying prayers and reading the Bible in public schools.

Lemon v. Kurtzman (1971)—ruling by the U.S. Supreme Court that established a three-part test for determining if a particular government action violates the establishment clause. o This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." 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?” Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools. Decision: 8 votes for Lemon, 0 vote(s) against. 3 PARTS OF THE LEMON TEST 1. Must have a clear secular, nonreligious purpose Chapters 13, 14, & 15 Government 4 2. In its main effect neither advance or inhibit religion 3. Avoid “excessive government entanglement with religion”

MAJOR U.S. SUPREME COURT CASES ON PRAYER/BIBLE READING 1. Engel v. Vitale (1962)—the U.S. Supreme Court banned the use of a prayer written by the New York State Board of Regents. It read “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” o The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans. Decision: 6 votes for Engel, 1 vote(s) against. 2. Abington School District v. Schempp (1963)—the U.S. Supreme Court overturned a Pennsylvania law requiring the saying of the Lord’s Prayer and a Bible reading. o The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case -- Murray v. Curlett -- a Baltimore statute required Bible- reading or the recitation of the Lord's Prayer at open exercises in public schools. Murray and his mother, professed atheists -- challenged the prayer requirement. 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? The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so." Furthermore, argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from violating the Establishment Clause. Decision: 8 votes for Schempp, 1 vote(s) against. 3. Stone v. Graham (1980)—the U.S. Supreme Court ruled that a Kentucky law requiring copies of the Ten Commandments be posted in all public school classrooms was unconstitutional. o Sydell Stone and a number of other parents challenged a Kentucky state law that required the posting of a copy of the Ten Commandments in each public school classroom. They filed a claim against James Graham, the superintendent of public schools in Kentucky. Did the Kentucky statute violate the Establishment Clause of the First Amendment? In a 5-to-4 per curiam decision, the Court ruled that the Kentucky law violated the first part of the test established in Lemon v. Kurtzman, and thus violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted "had no secular legislative purpose" and was "plainly religious in nature." The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day. Decision: 5 votes for Stone, 2 vote(s) against. 4. Wallace v. Jaffree (1985)—the U.S. Supreme Court ruled that Alabama’s “moment of silence” law that provided for a one-minute period of silence for “mediation or voluntary prayer” was found to be unconstitutional. o An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three of Jaffree's children attended public schools in Mobile. Did Alabama law violate the First Amendment's Establishment Clause? Yes. The Court determined the Chapters 13, 14, & 15 Government 5 constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause. Decisions: 6 votes for Jaffree, 3 vote(s) against. 5. Lee v. Weisman (1992)—the U.S. Supreme Court ruled that prayer could not be offered as part of a graduation ceremony of a Rhode Island public school. o In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restraining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari. Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment? Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government. Decision: 5 votes for Weisman, 4 vote(s) against. 6. Santa Fe Independent School District v. Doe (2000)—the U.S. Supreme Court ruled that the Santa Fe School District violated the establishment clause of the 1ST Amendment when it allowed a student council member to deliver a prayer over the intercom before varsity football games. o Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer, described as overtly Christian, over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause of the First Amendment. The District Court enjoined the public Santa Fe Independent School District (the District) from implementing its policy as it stood. While the suit was pending, the District adopted a new policy, which permitted, but did not require, student-initiated and student-led prayer at all the home games and which authorized two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. After the students authorized such prayers and selected a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. The District petitioned for a writ of certiorari, claiming its policy did not violate the Establishment Clause because the football game messages were private student speech, not public speech. Does the Santa Fe Independent School District's policy permitting student-led, student-initiated prayer at football games violate the Establishment Clause of the First Amendment? Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristle[d] with hostility to all things religious in public life." Decision: 6 votes for Doe, 3 vote(s) against. . Other U.S. Supreme Court cases involving the Establishment Clause have centered on student religious groups, the teaching of evolution, tax exemptions for religious organizations, state aid to parochial schools, and “released time” programs, in which public schools provide students time to attend religious classes. Chapters 13, 14, & 15 Government 6

Equal Access Act (1984)—act passed by Congress that allows public high schools that receive federal funds to permit student religious groups to hold meetings in the school.

Westside Community Schools v. Mergens (1990)—the U.S. Supreme Court upheld the Equal Access Act (1984), which provides that public schools receiving federal funds and which open their facilities to noncurricular student groups must make their facilities equally available to student religious groups. o The school administration at Westside High School denied permission to a group of students to form a Christian club with the same privileges and meeting terms as other Westside after-school student clubs. In addition to citing the Establishment Clause, Westside refused the club's formation because it lacked a faculty sponsor. When the school board upheld the administration's denial, Mergens and several other students sued. The students alleged that Westside's refusal violated the Equal Access Act, which requiremes that schools in receipt of federal funds provide "equal access" to student groups seeking to express "religious, political, philosophical, or other content" messages. On appeal from an adverse District Court ruling, the Court of Appeals found in favor of the students. The Supreme Court granted Westside certiorari. Was Westside's prohibition against the formation of a Christian club consistent with the Establishment Clause, thereby rendering the Equal Access Act unconstitutional? No. In distinguishing between "curriculum" and "noncurriculum student groups," the Court held that since Westside permitted other noncurricular clubs, it was prohibited under the Equal Access Act from denying equal access to any after-school club based on the content of its speech. The proposed Christian club would be a noncurriculum group since no other course required students to become its members, its subject matter would not actually be taught in classes, it did not concern the school's cumulative body of courses, and its members would not receive academic credit for their participation. The Court added that the Equal Access Act was constitutional because it served an overriding secular purpose by prohibiting discrimination on the basis of philosophical, political, or other types of speech. As such, the Act protected the Christian club's formation even if its members engaged in religious discussions. Decision: 8 votes for Mergens, 1 vote(s) against. Epperson v. Arkansas (1968)—the U.S. Supreme Court ruled that an Arkansas law that banned the teaching of evolution in public schools was unconstitutional. The Court stated, “the state has no legitimate interest in protecting any or all religions form views distasteful to them.” o The Arkansas legislature passed a law prohibiting teachers in public or state-supported schools from teaching, or using textbooks that teach, human evolution. Epperson, a public school teacher, sued, claiming the law violated her First Amendment right to free speech as well as the Establishment Clause. The State Chancery Court ruled that it violated his free speech rights; the State Supreme Court reversed. Question: Does a law forbidding the teaching of evolution violate either the free speech rights of teachers or the Establishment clause of the First Amendment? Conclusion: Yes. Seven members of the Court held that the statute violated the Establishment clause. Writing for the Court, Justice Abe Fortas stated that the law had been based solely on the beliefs of fundamentalist Christians, who felt that evolutionary theories directly contradicted the biblical account of Creation. This use of state power to prohibit the teaching of material objectionable to a particular sect ammounted to an unconstitutional Establishment of religion. Justice Fortas wrote, "The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." The two other members of the Court concurred in the result, writing that it violated either the Due Process clause of the 14th Amendment (because it was unconstitutionally vague) or the Free Speech clause of the First Amendment. Decision : 9 votes for Epperson, 0 vote(s) against. Legal provision: Establishment of Religion. Chapters 13, 14, & 15 Government 7 Edwards v. Aguillard (1987)—the U.S. Supreme Court ruled that a law requiring the teaching of creationism violated the establishment clause because its primary purpose was “to endorse a particular religious doctrine.” o A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be addressed, evolution or creation, teachers were obligated to discuss the other as well. Question: Did the Louisiana law, which mandated the teaching of "creation science" along with the theory of evolution, violate the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment? Conclusion: Yes. The Court held that the law violated the Constitution. Using the three- pronged test that the Court had developed in Lemon v. Kurtzman (1971) to evaluate potential violations of the Establishment Clause, Justice Brennan argued that Louisiana's law failed on all three prongs of the test. First, it was not enacted to further a clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a "supernatural being created humankind," a doctrine central to the dogmas of certain religious denominations. Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial support of government to achieve a religious purpose." Decision: 7 votes for Aguillard, 2 vote(s) against. Legal provision: Establishment of Religion. Marsh v. Chambers (1983)—the U.S. Supreme Court ruled its ban on school prayer does not extend to government meetings. The justices noted that prayers have been offered in legislatures since colonial times, and that, unlike students, legislators are not “susceptible to religious indoctrination.” Therefore the establishment clause is not violated by such prayers. o Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's chaplaincy practice in federal court. This practice involves the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. The district court supported Chambers on the use of public funds. The appeals court supported Chambers on the prayer practice. Both parties appealed to the U.S. Supreme Court. Question: Does the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment? Conclusion: In a 6-to-3 decision, the Court upheld the chaplaincy practice. In his opinion for the Court, Chief Justice Warren Burger abandoned the three-part test of Lemon v. Kurtzman, which had been the touchstone for cases involving the Establishment Clause. In its place, Burger rested the Court's opinion on historical custom. Prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress that framed the Bill of Rights. As a consequence, the chaplaincy practice had become "part of the fabric of our society." In such circumstances, an invocation for Divine guidance is not an establishment of religion. "It is," wrote Burger, "simply a tolerable acknowledgment of beliefs widely held among the people of this country." Decision: 6 votes for Marsh, 3 vote(s) against. Legal provision: Establishment of Religion. . The U.S. Supreme Court has never allowed religious freedom to be an excuse for any behavior. It has consistently ruled that people have the absolute right to believe what they want, but not necessarily the right to religious practices that may harm society. The Court has set guidelines on people’s rights to practice their religion freely. 9 COURT CASES WHERE RELIGIOUS FREEDOM HAS BEEN OUTILINED 1. Reynolds v. United States (1879)—in this precedent-setting case for free exercise of religion, George Reynolds, a Mormon had two wives, appealed his conviction on a change that he’d violated U.S. laws prohibiting polygamy. The Court ruled against his claim that he should be able to practice his religion freely. A precedent was set. The right to free exercise of religion may be restricted if the Chapters 13, 14, & 15 Government 8 practice violates a law that protects the health, safety, or morals of the community. o George Reynolds, secretary to Mormon Church leader Brigham Young, challenged the federal anti-bigamy statute. Reynolds was convicted in a Utah territorial district court. His conviction was affirmed by the Utah territorial supreme court. Question: Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice? Conclusion: No. Chief Justice Morrison R. Waite, writing for a unanimous court, held that the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief. 2. Cantwell v. Connecticut (1940)—the U.S. Supreme Court overturned a law requiring a license before an individual could raise money for a religious cause. o Jesse Cantwell and his son were Jehovah's Witnesses; they were proselytizing a predominantly Catholic neighborhood in Connecticut. The Cantwells distributed religious materials by travelling door-to-door and by approaching people on the street. After voluntarily hearing an anti-Roman Catholic message on the Cantwells' portable phonograph, two pedestrians reacted angrily. The Cantwells were subsequently arrested for violating a local ordinance requiring a permit for solicitation and for inciting a breach of the peace. Question: Did the solicitation statute or the "breach of the peace" ordinance violate the Cantwells' First Amendment free speech or free exercise rights? Conclusion: Yes. In a unanimous decision, the Court held that while general regulations on solicitation were legitimate, restrictions based on religious grounds were not. Because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments. The Court also held that while the maintenance of public order was a valid state interest, it could not be used to justify the suppression of "free communication of views." The Cantwells' message, while offensive to many, did not entail any threat of "bodily harm" and was protected religious speech. 3. Minersville School District v. Gobitis (1940)—the issue in this case was whether schoolchildren could be required to salute the American flag. In this case the Jehovah’s Witnesses, a religious group, believed that saluting the flag violated the Christian commandment of not bowing to a “graven image” or idol. The Court upheld the school regulation, reasoning that the salute didn’t infringe on religious freedom. o Lillian and William Gobitis were expelled from the public schools of Minersville, Pennsylvania, for refusing to salute the flag as part of a daily school exercise. The Gobitis children were Jehovah's Witnesses; they believed that such a gesture of respect for the flag was forbidden by Biblical commands. Question: Did the mandatory flag salute infringe upon liberties protected by the First and Fourteenth Amendments? Conclusion: No. In an 8-to-1 decision, the Court declined to make itself "the school board for the country" and upheld the mandatory flag salute. The Court held that the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values" and that national unity was "the basis of national security." The flag, the Court found, was an important symbol of national unity and could be a part of legislative initiatives designed "to promote in the minds of children who attend the common schools an attachment to the institutions of their country." 4. West Virginia Board of Education v. Barnette (1943)—the U.S. Supreme Court determined that a compulsory flag salute was unconstitutional. It reversed itself from the Gobitis case. o The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency. Question: Did the compulsory flag-salute for public Chapters 13, 14, & 15 Government 9 schoolchildren violate the First Amendment? Conclusion: In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Decision: 6 votes for Barnette, 3 vote(s) against. Legal provision: US Const. Amend 1; W. Va. Code § 1734. 5. Bunn v. North Carolina (1949)—the U.S. Supreme Court ruled against the use of poisonous snakes in religious rituals. In this and subsequent cases, the Court followed the precedent in the Reynolds case to restrict the ways people may worship. 6. Oregon v. Smith (1990)—the U.S. Supreme Court ruled that workers may be denied unemployment benefits for using drugs as part of religious ceremony. o Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture. Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? Conclusion: Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. Decision: 6 votes for Employment Division, 3 vote(s) against. Legal provision: Free Exercise of Religion. 7. Welsh v. United States (1970)—the U.S. Supreme Court ruled that the federal government is permitted to draft those who hold religious objections to military service. o On March 27, 1964, Elliot Ashton Welsh II was ordered by the Selective Service to report for physical examination after having been classified I-A and available for military service. Walsh requested and filed application for conscientious objector status. On his form, Welsh specifically indicated that his objection was not rooted in religious belief; he responded "No" where the questionnaire asked if he believed in a supreme being. An appeal board rejected his application. Welsh refused to appear for induction and, on June 1, 1966, was sentenced to three years imprisonment. The Court ruled in United States v. Seeger (1965) that conscientious objector status was not reserved to individuals of a traditional religious background. On appeal, however, the United States Court of Appeals for the Ninth Circuit found that because Welsh denied any religious foundation for his beliefs, whereas Seeger had characterized his pacifist beliefs as "religious," Welsh's conviction was valid. Question: Can Welsh claim conscientious objector status even though he professes no religious-based objection? Conclusion: Yes. In a 5-3 plurality opinion authored by Justice Hugo L. Black, the Court declared a registrant's characterization of his beliefs as nonreligious to be "a highly unreliable guide for those charged with administering the exemption." According to Justice Black, the term "religious" is broadly scoped, and denying conscientious objector status because of a refusal to use the term "places undue Chapters 13, 14, & 15 Government 10 emphasis on the registrant's interpretation of his own beliefs." The Court therefore reasoned that conscientious objector status applies to "all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war." Decision: 5 votes for Welsh, 3 vote(s) against. Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts. 8. Goldman v. Weinberger (1986)—the U.S. Supreme Court followed the Welsh precedent, declaring that an Orthodox Jew does not have the right to wear a yarmulke (skullcap) while on active duty in the United States Air Force. o Goldman was a commissioned officer in the United States Air Force, an Orthodox Jew, and an ordained rabbi. He was not allowed to wear his yarmulke while on duty and in Air Force uniform. An Air Force regulation mandated that indoors, headgear could not be worn "except by armed security police in the performance of their duties." Question: Did the Air Force Regulation violate the Free Exercise Clause of the First Amendment? Conclusion: The Court held that the Air Force regulation did not violate the Constitution. Justice Rehnquist argued that, generally, First Amendment challenges to military regulations are examined with less scrutiny than similar challenges from civilian society, given the need for the military to "foster instinctive obedience, unity, commitment, and esprit de corps." Since allowing overt religious apparel "would detract from the uniformity sought by dress regulations," the Air Force regulation was necessary and legitimate. In 1987, Congress passed legislation which reversed this decision and allowed members of the armed forces to wear religious apparel in a "neat and conservative" manner. Decision: 5 votes for Weinberger, 4 vote(s) against. Legal provision: Free Exercise of Religion. 9. Wisconsin v. Yoder (1972)—the U.S. Supreme Court ruled that a state cannot require Amish parents to send their children to school after the eighth grade. To do so would violate long-held and important religious beliefs of the Amish community. o Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Question: Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? Conclusion: In a unamimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law. Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder. Decision: 7 votes for Yoder, 0 vote(s) against. Legal provision: Free Exercise of Religion. . Everyone knows what speech is. Or do they? Actually, there has been much argument about the definition of speech and the courts have spent considerable time and energy in trying to clarify its meaning. The results are three categories of public speech protected by the 1st Amendment. 3 TYPES OF SPEECH 1. Pure Speech—the verbal expression (with the vocal cords) of thoughts and opinions before a voluntary audience. It is the most common form of speech. The U.S. Supreme Court has generally provided strong protection of pure speech. Chapters 13, 14, & 15 Government 11 2. Speech Plus—category of speech combining words with some sort of action, such as picketing, marching, or chanting. It is generally not protected as strictly as pure speech by the courts because the actions may endanger safety or conflict with the rights of others. The courts have ruled that speech plus must not obstruct street or sidewalk traffic, nor may it illegally trespass or endanger public safety. 3. Symbolic Speech (Expressive Conduct)—nonverbal action that expresses a political message. It is the expression of speech through conduct. It is the most controversial protected form of speech. It may actually involve no “speech” at all.

6 COURT CASES INVOLVING SYMBOLIC SPEECH 1. United States v. O’Brien (1968)—the U.S. Supreme Court upheld the arrest and conviction of David Paul O’Brien who burned his draft card to protest the Vietnam War, in violation of a regulation requiring a draft registrant to keep his card in his possession at all times. It did not fall under free speech protection because a)it falls within the constitutional power of government, b)it is narrowly drawn to further a substantial government interest that is unrelated to the suppression of free speech, and c)leaves open amble alternative channels of communication. o David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Question: Was the law an unconstitutional infringement of O'Brien's freedom of speech? Conclusion: No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." Decision: 7 votes for United States, 1 vote(s) against. Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts. 2. Tinker v. Des Moines School District (1969)—the U.S. Supreme Court upheld the 1st Amendment right of students to wear black armbands in high school to protest the Vietnam War. o John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? Conclusion: The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline. Decision: 7 votes for Tinker, 2 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. Chapters 13, 14, & 15 Government 12 3. Texas v. Johnson (1989)—the U.S. Supreme Court ruled that flag burning was protected symbolic speech. o In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Conclusion: In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Decision: 5 votes for Johnson, 4 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 4. United States v. Eichman (1990)—the U.S. Supreme Court ruled that the fedral Flag Protection Act (1989) was unconstitutional because it punishes the content of expressive speech. The Court concluded “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” o In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag or any likeness of an American flag which may be "commonly displayed." The law did, however, allow proper disposal of a worn or soiled flag. Several prosecutions resulted from the Act. Eichman set a flag ablaze on the steps of the U.S. Capitol while protesting the government's domestic and foreign policy. Another prosecution (United States v. Haggerty) resulted from a flag-burning in Seattle protesting the passage of the Flag Protection Act. Both cases (Eichman's and Haggerty's) were argued together. Question: Did the Act violate freedom of expression protected by the First Amendment? Conclusion: In a 5-to-4 decision, coming on the heels of a similar holding in Texas v. Johnson (1989), the Court struck down the law because "its asserted interest is related to the suppression of free expression and concerned with the content of such expression." Allowing the flag to be burned in a disposal ceremony but prohibiting protestors from setting it ablaze at a political protest made that clear, argued Justice Brennan in one of his final opinions. Decision: 5 votes for Eichman, 4 vote(s) against. Legal provision: 18 U.S.C. 700. 5. Frisby v. Schultz (1988)—the U.S. Supreme Court ruled that a city may limit picketing in front of a private residence by protesters. The Court placed the government’s interest in protecting the right to privacy at home ahead of the right of demonstrators to expressive conduct. o Sandra Schultz and Robert Braun both strongly opposed abortion and gathered like-minded citizens together to picket in front of the home of a local doctor who performed abortions. In response, the city of Brookfield, Wisconsin passed a law against all picketing in front of residential homes except for labor disputes. Following the advice of the town attorney, the city amended the law to ban labor picketing as well. The stated purpose of the law was "the protection and preservation of the home." When enacted, Schultz and Braun stopped picketing and filed suit in federal district court, claiming that the law violated the First Amendment. The court declared it would issue a permanent injunction against the law unless it was narrowed in scope. The United States Court of Appeals of the Seventh Circuit affirmed that the law violated the First Amendment. Question: Does a city ordinance prohibiting picketing in front of residential homes violate the First Amendment? Conclusion: No. Justice Sandra Day O'Connor delivered the opinion for a 6-3 court. The Court held that since the street constituted a traditional public forum, the ban must satisfy strict standards in order to remain. Since the ban is "content neutral," "leaves open ample Chapters 13, 14, & 15 Government 13 alternative channels of communication," and serves a "significant government interest," the Court ruled that it passed the strict standards and could remain. The city government had a legitimate purpose in protecting the homes of its residents, and did so without favoring one idea over another or eliminating the ability to communicate an idea. Decision: 6 votes for Frisby, 3 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 6. Hill v. Colorado (2000)—the U.S. Supreme Court upheld a Colorado law that prohibits a person from approaching another person without that person’s consent in order to speak or offer literature to that person within 100 feet of a health care facility. o A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after holding that a provision creating a speech-free floating buffer zone with a 15- foot radius violated the First Amendment. On remand, the Colorado Court of Appeals reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper balance between a person's right to protest and a person's right to medical treatment. Question: Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker? Conclusion: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the Colorado statute's restrictions on speech-related conduct are constitutional. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." "Although the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities," Justice Stevens wrote for the Court. "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases." Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy dissented. Decision: 6 votes for Colorado, 3 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 3 CONSTITUTIONAL TESTS DEVELOPED BY THE U.S. SUPREME COURT IN ESTABLISHING LIMITS TO FREE SPEECH 1. Clear and Present Danger—when the speech in question clearly presents an immediate danger, the 1st Amendment does not protect it. 2. Bad Tendency Doctrine—speech could be restricted even if it only had a tendency to lead to illegal action. [See Gitlow v. New York (1925)] 3. Preferred Position Doctrine—1st Amendment freedoms are more fundamental than other freedoms because they provide the basis of all liberties. Thus 1st Amendment freedoms hold a preferred position over competing interests.

4 SUPREME COURT RULINGS THAT HAVE DEFINED LIMITS ON FREE SPEECH Chapters 13, 14, & 15 Government 14 1. Schenck v. United States (1919)—Charles Schenck, an official of the Socialist party who disapproved of U.S. participation in World War I, had been arrested and convicted for sending 15,000 young men leaflets that encouraged them to ignore their draft notices. Schenck argued that the 1st Amendment protected his actions. The U.S. Supreme Court upheld his conviction. In writing the majority opinion, Justice Oliver Wendell Holmes stated the “clear and present danger” rule. o During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? Conclusion: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished. Decision: 9 votes for United States, 0 vote(s) against. Legal provision: 1917 Espionage Act; US Const Amend 1. 2. Dennis v. United States (1951)—in the 1940’s and 50’s, Congress passed a new sedition law called the Smith Act. it extended restrictions to peace time. Under the Smith Act, it was unlawful for any person to advocated the violent overthrow of government or to belong to an organization with such goals. The U.S. Supreme Court upheld the conviction of 11 Communist party leaders under this act. The men argued that athe Smith Act violated the freedom of speech guarantee under the 1st Amendment and that they were not “a clear and present danger” to the national security of the United States. The Court disagreed. o In 1948, the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Party leaders were found guilty and lower courts upheld the conviction. Question: Did the Smith Act's restrictions on speech violate the First Amendment? Conclusion: In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences of an attempted putsch, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech. Decision: 5 votes for United States, 3 vote(s) against. Legal provision: US Const Amend 1; 18 U.S.C. §§ 10, 11. 3. Yates v. United States (1957)—the U.S. Supreme Court overturned the Smith Act conviction of several Communist party leaders. In narrowing the definition of seditious speech, the Court ruled that merely urging people to believe something is different from inciting them to take action. o On June 30, 1952, during testimony in the case of United States v. Schneiderman, Oleta O'Connor Yates, an admitted leader of the Communist Party of California, refused to answer eleven questions regarding the identities of other members of the party. For her refusal Yates was found in criminal contempt and sentenced to eleven concurrent sentences of one year. The judge in the case stated that if Yates answered the questions within sixty days of conviction, he Chapters 13, 14, & 15 Government 15 would accept her testimony. Yates continued to refuse. Yates appealed the contempt convictions on the ground that the court's intention was to coerce her to testify, rather than punish her. This would make the contempt charges civil, rather than criminal, and Yates' convictions would be a violation of due process. Yates further claimed that eleven contempt sentences for a line of questioning also violated due process. The U.S. Ninth Circuit Court of Appeals rejected Yates' claims and upheld her convictions. Question: Did Yates' contempt convictions violate the Due Process Clause of the Fifth Amendment? Conclusion: In a 6-3 decision authored by Justice Tom C. Clark, the Court found that Yates' contempt convictions were indeed criminal, but also found that eleven convictions for what amounted to a single instance of contempt violated due process. The judge in the case stated that, were Yates to concede to answer the questions, she would still be held for contempt, even though the court would accept her testimony. This, the Court reasoned, indicated that the convictions were intended to punish Yates and not to coerce her testimony. However, the Court also found that every question for which Yates was found in contempt "fell within the same area of refusal." Noting that it would be improper for the prosecution to multiply contempts by repeated questioning on the same inquiry, the Court vacated all but the first conviction for contempt. Decision: 6 votes for Yates, 3 vote(s) against. 4. Brandenburg v. Ohio (1969)—the U.S. Supreme Court further narrowed its definition of sedition. Clarence Brandenburg, a Ku Klux Klan leader, was arrested for not clearing the streets after a police order. As he left, he cried, “We’ll take the streets later.” He was convicted of inciting lawless mob activities. But the U.S. Supreme Court overturned the conviction because the activities he called for were not “imminent,” and there was no reason to believe that the listeners would take violent action. o Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Conclusion: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. Decision: 8 votes for Brandenburg, 0 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly.

Defamatory Speech—false speech that damages a person’s good name, character, or reputation. There are two types or categories of defamatory speech: slander and libel.

Slander—false speech intended to damage a person’s reputation.

Libel—false written or published statements intended to damage a person’s reputation. Chapters 13, 14, & 15 Government 16 New York Times Company v. Sullivan (1964)—the U.S. Supreme Court ruled that a public official or public figure suing a publisher for libel must prove that the publisher published a story that the or she knew was false or published the story in “reckless disregard of it truth or falsity, “which means that the publisher did not take professionally adequate steps to determine the story’s truth or falsity. o Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Conclusion: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed. Decision: 9 votes for New York Times, 0 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. . The U.S. Supreme Court has also limited the speech of students as well.

Bethel School District v. Fraser (1986)—the U.S. Supreme Court ruled that the 1st Amendment does not prevent officials from suspending students for lewd or indecent speech at school events, even though the same speech would be protected outside the school building. o At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days. Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? Conclusion: No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education." Decision: 7 votes for Bethel School District No. 403, 2 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. Hazelwood School District v. Kuhlmeier (1988)—the U.S. Supreme Court ruled that school officials have sweeping authority to regulate student speech in school- sponsored newspapers, theatrical productions, and other activities. o The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two Chapters 13, 14, & 15 Government 17 other former Hazelwood East students brought the case to court. Question: Did the principal's deletion of the articles violate the students' rights under the First Amendment? Conclusion: No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test. Decision: 5 votes for Hazelwood School District, 3 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly.

. Freedom of the press had a very different meaning in 1791 than it does today. The Founders were concerned that opinions would be written and circulated in newspapers. Today that freedom includes writing in magazines, radio, television, and on the Internet.

6 U.S. SUPREME COURT CASES THAT ESTABLISHED GUIDELINES FOR FREEDOM OF THE PRESS 1. Near v. Minnesota (1931)—the U.S. Supreme Court ruled that a Minnesota law was unconstitutional because it involved prior restraint. Except in cases involving national security, such censorship is not allowed. A weekly newspaper, The Saturday Press, was shut down by Minneapolis officials under a Minnesota law that prohibited the publication of “malicious, scandalous, or defamatory” periodicals. Even though the editor had called local officials “grafters” and “Jewish gangsters,” the U.S. Supreme Court ruled the state law to be unconstitutional. o Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper 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. Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Conclusion: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. 2. New York Times Company v. United States (1971)—the U.S. Supreme Court’s position about prior restraint was reaffirmed in the fight over the Pentagon Papers. A Pentagon employee leaked to the New York Times classified documents that revealed damaging secret government involvement in the Vietnam War. After the New York Times printed a few reports that showed that government officials had lied to the public, the government tried to stop further publication of the papers. The Court rejected the government’s argument that Chapters 13, 14, & 15 Government 18 the reports endangered national security and upheld the newspaper’s right to publish. o In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Question: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Conclusion: Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. Decision: 6 votes for New York Times, 3 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 3. Branzburg v. Hayes (1972)—the U.S. Supreme Court ruled that the 1st Amendment does not protect reporters from having to reveal confidential sources of information. In order to get a good story, reporters sometimes promise an individual confidentiality. The problem comes when the source has evidence that might be valuable in court. The U.S. Supreme Court has generally agreed that reporters who refuse to divulge their source are obstructing justice. Since the ruling in 1972 some 30 states have passed shield laws that give reporters some protection against disclosure of sources. o After observing and interviewing a number of people synthesizing and using drugs in a two- county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries. Question: Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment? Conclusion: No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court. Decision: 5 votes for Hayes, 4 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 4. Sheppard v. Maxwell (1966)—the U.S. Supreme Court ruled that a criminal defendant’s 6th Amendment right to a fair trial can justify restrictions on the press’s 1st Amendment rights. The Court, however, was careful to explain that any restrictions on the press must be no broader than necessary to ensure that the defendant is tried in court and not in the press. o After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial. Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. On appeal from an Ohio Chapters 13, 14, & 15 Government 19 district court ruling supporting his claim, the Sixth Circuit Court of Appeals reversed. When Sheppard appealed again, the Supreme Court granted certiorari. Question: What threshold must be crossed before a trial is said to be so prejudicial, due to context and publicity, as to interfere with a defendant's Fifth Amendment due process right to a fair trial? Conclusion: In an 8-to-1 decision the Court found that Sheppard did not receive a fair trial. Noting that although freedom of expression should be given great latitude, the Court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting. The Cleveland television media's repeated broadcasts of Sheppard confessing in detail to crimes he was later charged with, the blatant and hostile trial coverage by Cleveland's radio and print media, and the physical arrangement of the courtroom itself - which facilitated collaboration between the prosecution and present media - all combined to so inflame the jurors' minds against Sheppard as to deny him a fair trial. The Court concluded that the trial judge should have either postponed the proceedings or transferred them to a different venue. Decision: 8 votes for Sheppard, 1 vote(s) against. Legal provision: Amendment 6: Other Sixth Amendment Provisions. 5. Reno v. American Civil Liberties Union (1997)—the U.S. Supreme Court ruled speech on the Internet deserves the same level of 1st Amendment protection as print media. The Court ruled unconstitutional a federal law against sending pornographic material online in a way available to children. The Court agreed that protecting children was important, but said, “the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” o Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions. Question: Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized? Conclusion: Yes. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues. Decision: 9 votes for ACLU, 0 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 6. Miller v. California (1973)—the U.S. Supreme Court attempted to define standards for judging a work to be obscene: what an average person would find appealing t only sick or prurient interest, whether a local law or courts objected to the depiction of sexual conduct, and whether the work as a whole lacked “serious literary, artistic, political, or scientific value.” Still the definition of obscenity remains controversial and court decisions of obscenity issues have varied widely. However, material that is considered to be obscene or pornographic has never been protected by the 1st Amendment. Chapters 13, 14, & 15 Government 20 o Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Conclusion: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he 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." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision. Decision: 5 votes for Miller, 4 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly.

. The U.S. Supreme Court has ruled that the right of peaceful assembly—including parades and demonstrations—in public places should be guaranteed. People cannot be stopped from assembling just because their views are unpopular. Whatever a group’s cause, its members have the right to assemble. But people cannot simply hold a demonstration anytime or anyplace they choose. If the assembly is public, it may conflict with other people’s rights if it disrupts public order, traffic flow, freedom to go about normal business, or peace and quiet. Usually a group must apply to a local city government for a permit. The government body must grant a permit as long as the group holds its demonstrations at a time and place that allow officials to prevent major disruptions. There are almost no restrictions on the content of the messages expressed, but the government can make and enforce reasonable rule covering the time, place, and manner of assemblies.

DeJonge v. Oregon (1937)—the U.S. Supreme Court reinforced earlier Court holdings that the 1st Amendment’s protection of peaceable assembly and association must be honored by the states. In this case, Dirk DeJonge, a member of the Communist Party, was convicted and sentenced to a seven-year prison term for speaking at a public meeting of the party. In reversing the conviction, the Court held that merely speaking at a meeting of the Communist Party was protected by the 1st Amendment.  On July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the audience regarding jail conditions in the county and a maritime strike in progress in Portland. While the meeting was in progress, police raided it. De Jonge was arrested and charged with violating the State's criminal syndicalism statute. The law defines criminal syndicalism as "the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution." After being convicted, De Jonge moved for an acquittal, arguing that the evidence was insufficient to warrant his conviction. Disagreeing, the State Supreme Court distinguished that the indictment did not charge De Jonge with criminal syndicalism, but rather that he presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group called by the Communist Party, which was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage. Question: Does Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth Amendment? Conclusion: Yes. In an opinion delivered by Chief Justice Charles E. Hughes, the Court held that the Chapters 13, 14, & 15 Government 21 Oregon statute, as applied, violated the due process clause of the Fourteenth Amendment. After reviewing the record, the Court determined that De Jonge's sole offense was assisting in a public meeting held under the auspices of the Communist Party. The Court reasoned that to preserve the rights of free speech and peaceable assembly - principles embodied in the Fourteenth Amendment - not the auspices under which a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the bounds of freedom of speech must be examined, which had not occurred in De Jonge's case. Justice Harlan Fiske Stone took no part in the consideration or decision of the case. CASES THAT ESTABLISHED GUIDELINES FOR THE FREEDOM OF ASSEMBLY 1. Adderley v. Florida (1966)—the U.S. Supreme Court ruled that demonstrators could not enter the grounds of a county jail without permission. This ruling helped to clarify the limits on public demonstrations in such public facilities as libraries, schools, parks, and jails. o Harriet Louise Adderley and a group of approximately 200 others assembled in a non-public jail driveway to protest the arrests of fellow students and the state and local policies of racial segregation which included segregation in jails. Adderley and thirty-one others were convicted in a Florida court on a charge of "trespass with a malicious and mischievous intent" for their refusal to leave the driveway when requested to do so. Question: Were the petitioners denied their rights of free speech, assembly, petition, due process of law and equal protection of the laws as guaranteed by the First and Fourteenth Amendments? Conclusion: The Court found that there were no constitutional violations in this case. The language of the Florida statute was clearly defined and applied, argued Justice Black, which prevented it from imposing broad infringements on speech and expression rights. Furthermore, since the sheriff acted to maintain access to the jail house and not because he "objected to what was being sung . . . or disagreed with the objectives of the protest," there were no First Amendment violations. Black concluded that the state does have the power to control its own property for lawful, nondiscriminatory purposes. Decision: 5 votes for Florida, 4 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 2. Cox v. Louisiana (1965)—the U.S. Supreme Court upheld the constitutionality of a statute that prohibited parades near a courthouse. Acknowledging that the 1st Amendment generally protects marching or picketing, the Court explained that the special nature of courthouses—specifically, their central role in the administration of justice—justified the statute. The underlying principle justifying the statute is that while government may not be able to prohibit certain speech or speech like conduct, it can control its time, place, and manner. o On the morning of December 15, 1961, Elton Cox led some 2000 students on an anti-discrimination march that ended in a large assembly before the Baton Rouge, Louisiana, courthouse building. Following police instructions, the demonstrators confined themselves to the west side of the street so as not to interfere with traffic. As the lunch hour neared, Cox encouraged the demonstrators to seek service at any one of several near-by segregated lunch counters. Upon hearing this, the police urged the crowd to disband and began pushing them away from the courthouse. When the demonstrators resisted, police showered them with tear gas and chased them away. The following day, Louisiana police arrested and charged Cox with "disturbing the peace." On appeal from the Louisiana Supreme Court's decision upholding an adverse district court ruling, the Supreme Court granted Cox certiorari. Question: Does a statutory "disturbance of the peace" conviction, for a peaceable demonstration that contains speech that may potentially incite violence, infringe on a demonstrator's First Amendment rights to freedom of speech and assembly? Conclusion: Yes. In a 7-to-2 decision, the Court began by noting that none of the demonstrators' activities acceded those that would be expected at any peaceable assembly. Cheering, clapping, and singing do not in themselves constitute a breach of the peace. With respect to Cox's urging the demonstrators to engage in activities which could potentially Chapters 13, 14, & 15 Government 22 result in violence, such as demanding service at segregated lunch counters, the Court held that these could not sustain a breach of the peace conviction either. The constitutional rights of freedom of speech and assembly could not be denied because of hostility to their assertion or exercise. The Court noted that free speech protections serve perhaps their best purpose when they invite dispute, induce conditions of unrest, and even stir people to anger over prejudicial preconceptions. Any statute that is so broadly written as to stifle these freedoms shall be stuck down as repugnant to the Constitution. Decision: 9 votes for Cox, 0 vote(s) against. Legal provision: Amendment 1: Speech, Press, and Assembly. 3. Grayned v. City of Rockford (1972)—the U.S. Supreme Court upheld the conviction of several hundred demonstrators charged with violating a city ordinance that prohibited demonstrations on or near schools while classes were being held. 4. Lloyd Corporation v. Tanner (1972)—the U.S. Supreme Court ruled that a group protesting the Vietnam War did not have the right to gather in a privately owned shopping mall. The right of assembly does not give demonstrators the right to trespass on private property, even if they wish to make a political statement. 5. Schenck v. Pro-choice Network of Western New York (1997)—the U.S. Supreme Court upheld the creation of “fixed buffer zones,” which prohibited demonstrations and blockades within 15 feet of entrances to abortion clinics, parking lots or driveways. According to the Court, such “buffer zones” protect the government’s interest in public safety and free traffic flow, while still allowing the demonstrators to be heard. 6. Feiner v. New York (1950)—the U.S. Supreme Court upheld the disorderly conduct conviction of Irving Feiner. Feiner was arrested as he was giving a speech on a street corner in a predominantly African American section of a city. Among other things, Feiner said that African Americans “don’t have equal rights and they should rise up in arms and fight for them.” The Court ruled that police had not acted to suppress speech but to preserve public order. 7. Thornhill v. Alabama (1940)—the U.S. Supreme Court ruled that peaceful picketing was a form of free speech. 8. Hughes v. Superior Court (1950)—the U.S. Supreme Court refused to overturn a California court’s ban on picketing at a supermarket to force it to hire African American workers. 9. International Brotherhood of Teamsters, Local 695 v. Vogt (1957)—the U.S. Supreme Court upheld a Wisconsin law that prohibited picketing a business unless there was a labor dispute.

Due Process Clauses—the U.S. Constitution contains two provisions for due process. The 5th Amendment says that the federal government can’t deprive person of due process of law. The 14th Amendment says the same thing for the states. Chapters 13, 14, & 15 Government 23 There is no single definition for due process guarantees, and the U.S. Supreme Court historically has acted in a case by case method. However, in its rulings the Court has developed two lines of meaning for due process.

Procedural Due Process—the rules that police officers, courts, and lawyers must follow to protect persons who are suspected, accused, or convicted or a crime. It is the principle that prohibits arbitrary enforcement of the law, and also provides safeguards to ensure that constitutional and statutory rights are protected by law enforcement. It is the “how” of government.

Rochin v. California (1952)—this is an illustration of procedural due process. It involved a suspected narcotics pusher. The U.S. Supreme Court ruled that police had violated the 14th Amendment’s guarantee of procedural due process.  Rochin swallowed drug capsules to dispose of evidence. The police pummeled him and jumped on his stomach in a vain effort to make him throw up. They took him to a hospital where a doctor was instructed by the police officers to administer an emetic by forceably passing a tube into Rochin's stomach. He vomited the capules and was convicted on the basis of the evidence produced from his vomit. Did the police procedure forcing Rochin to vomit violate the Fifth Amendment privilege against self-incrimination and the Due Process Clause of the 14th Amendment? The Court reversed the conviction. The police violated Rochin's right to due process of law. Due process was an admittedly vague concept, but it prohibited "conduct that shocks the conscience." This nebulous approach was mocked in a concurring opinion by Justice Black. Substantive Due Process—the policies of government action. It is the “what” of government. The principle that laws must be fair to all citizens. Pierce v. Society of Sisters (1925)—this is an example of substantive due process. The U.S. Supreme Court ruled that an Oregon law that required students who had not completed the 8th grade to attend public school violated the 14th Amendment. The Court’s ruling had to do with the what or policies of government.  The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Society of Sisters v. Hill Military Academy. Did the Act violate the liberty of parents to direct the education of their children? Yes. The unanimous Court held that "the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."

4 th Amendment—protects against unreasonable searches and seizures. However, the vagueness of the word unreasonable has crated many arguments about when police searches can be justified. Payton v. New York (1980)—the U.S. Supreme Court ruled that, except in a life- threatening emergency, the 4th Amendment forbids searching a home without a warrant.  New York City police suspected Theodore Payton of murdering a gas station manager. The police forcibly entered Payton's home thinking he was there (he was not) and found evidence connecting Payton to the crime, which was introduced at Payton's trial. The police lacked an arrest warrant when they entered his home. However, they acted under a New York law allowing police to enter a private residence to make a felony arrest without a warrant. At trial, Payton unsuccessfully sought to suppress the evidence as the fruit of an illegal search. State courts upheld. In the companion case, victims identified Obie Riddick in June 1973 for Chapters 13, 14, & 15 Government 24 robberies in 1971. Police learned of his whereabouts in 1974. Without a warrant, they knocked on his door, entered his residence and arrested him. A search for weapons revealed illegal drugs. He was indicted on narcotics charges but sought the suppression of the evidence based on a warrantless entry. The trial judge concluded that the entry was authorized by the New York law and that the search was therefore permissible. Riddick was convicted. The appeals court affirmed. Does New York statute authorizing warrantless arrests and searches violate the Fourth Amendment prohibition against unreasonable searches and seizures? Yes. Justice John Paul Stevens, writing for the 6 to 3 majority, held that the Fourth Amendment, as applied to the states by the Fourteenth Amendment, "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Warrantless arrests and searches went to the core of the Fourth Amendment's protection of privacy in a citizen's dwelling. This protection was too important to be violated on the basis of a police officer's on-the-spot decision regarding probable cause. In the absence of special circumstances, a search of a residence is permissible only after a finding of probable cause by a neutral magistrate issuing a search warrant. Justice Byron R. White, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, dissented. White maintained that common law and practice prior to and at the time the Fourth Amendment was adopted did not limit a police officer's inherent power to arrest or search. Decision: 6 votes for Payton, 3 vote(s) against.

EXCEPTIONS TO THE WARRANT REQUIREMENT

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