PSCI 1040 004 Jim Battista University of North Texas Civil liberties Jim Battista Fed local Civil liberties and civil rights Civil liberties 6 civil rights Civil liberties rights to be left alone by the govt Civil rights rights to be equal with you Gov t doesn t normally enforce civil liberties just doesn t break them Gov t does enforce civil rights helps me be equal to you Jim Battista Fed local REMEMBER I AM NOT A LAWYER We re just talking about this for our own edification and interest Nothing we talk about here makes it smart to be rude to a cop etc Jim Battista Fed local First Amendment Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the Government for a redress of grievances Jim Battista Fed local Freedom of religion establishment clause Two classic issues 1 2 Prayer in public schools Aid to parochial schools Jim Battista Fed local Prayer in public schools Engel v Vitale 1962 NY public schools opened with the following prayer written and approved by the Board of Regents Almighty God we acknowledge our dependence upon Thee and we beg Thy blessings upon us our parents our teachers and our country Constitutional Jim Battista Fed local Prayer in public schools cont Does this mean it s illegal to pray at school NO prayer at school is also protected as free speech Rule of thumb if you can talk about whatever you want to whoever you want you can pray Mergens 1990 if school allows non curriculum related clubs ie chess club can t forbid Bible study club Lamb s Chapel v Center Moriches School District 1993 if school allows community groups to use auditorium it must also allow a local church group to use it to show a religious film Then what does it mean Rule of thumb you can t use the power of the state to make others listen to you pray If people aren t free to get up and walk out of earshot state can t require sponsor prayer Rules get looser as people get older less likely to mistake accommodation of religion for endorsement of religion Jim Battista Fed local Aid to religious schools Est clause does not forbid aid to religion that would make silly things happen Generally it means that government must treat religious and secular organizations the same Lemon v Kurtzman 1971 sets up a 3 part test 1 2 3 Does the law have a rational secular purpose Does the law neither advance nor inhibit religion Is it neutral Does the law create any excessive entanglements between church and state In practice the third one is the hard part Jim Battista Fed local Free exercise of religion Also known as religious tolerance Principles go back to John Locke remember him Facially neutral laws are okay Laws that single out religious conduct aren t Law that bans sacrifice of lambs would be illegitimate Law that bans killing of lambs can be legitimate if rational purpose What s the difference Facially neutral laws of general application can still punish you for doing something that your religion tells you to do My religion commands it does not normally excuse disobedience to the law Jim Battista Fed local Free exercise examples Church of Lukumi Babalu Aye v Hialeah 1993 Hialeah banned sacrifice of animals important in the Santeria faith Is the ban constitutional Goldman v Weinberger 1986 USAF regulations say no headwear while in uniform and indoors Must the USAF allow an Orthodox Jew to wear his yarnulke inside Bowen v Roy 1986 American Indian family wants AFDC but refuses to get the child an SSN on religious grounds Does the gov t have to give them the aid anyway WI v Yoder 1972 Law says everyone must go to school until 16 Amish faith says adherents must leave school at grade 8 Who wins Jim Battista Fed local Freedom of speech Big question what speech can be punished Schenck v US 1919 Schenck is distibuting anarcho socialist leaflets urging disobedience to the draft This is illegal and he s convicted Ch J Holmes comes up with the famous test Does the speech present a clear and present danger Is it like shouting FIRE in a crowded theater Jim Battista Fed local Free speech part II More cases happen generally expanding speech Brandenburg v OH 1969 Brandenburg a Klansman holds a rally and invites a TV crew to film it In addition to the usual jolly cross burning B says that if the government doesn t stop oppressing the white race There might have to be some revengeance taken This violates OH law Clear and present danger Not now Must clear imminent danger of actual harm to specific people Real no kidding incitement Other restrictions on speech Time place manner Fighting words Jim Battista Fed local Free press prior restraint Prior restraint prohibiting someone from publishing something instead of punishing them for doing it Actual censorship instead of punishment after the fact Courts do not like prior restraint Near v MN 1931 Can state prevent publication of antisemitic newspaper New York Times v US 1971 PENTAGON PAPERS Can the US prevent publication of classified military documents Jim Battista Fed local Free press libel Libel publishing something false and defamatory about someone Not protected by First Am Problem investigative journalists will sometimes publish at least technically false things How do we balance a watchdog press against rights of private citizens New York Times v Sullivan 1964 Sullivan is one of 3 city officials of Montgomery AL who argue they were libelled in an ad appearing in the emphNYT Sullivan loses Court applies two tiered test Private citizens must simply show information is false Public figures must show actual malice Who is a public figure Jim Battista Fed local Fourth amendment search and seizure Prohibits unreasonable searches and seizures What is reasonable and unreasonable A search with a warrant is reasonable Warrants issue for probable cause Unreasonable searches are illegal violate your liberty How to prevent Exclusionary rule illegal evidence can t be used in court Big case Mapp v OH 1961 Exceptions to the exclusionary rule Good faith Inevitable discovery Independent evidence Jim Battista Fed local Permitted warrantless searches Consent Incident to arrest Hot pursuit Motor vehicles Plain sight open fields no reasonable expectation of privacy Jim Battista Fed local Fifth and sixth amendments self incrimination and counsel When do you have a positive right to have an attorney Powell v AL 1932 in