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The Bill of Rights

The Bill of Rights. Freedom Speech and Religion. The US Constitution. Is it DEAD or ALIVE?. DEAD or ALIVE Differing Viewpoints. “The Constitution that I interpret and apply is not living, but dead,” Justice Antonin Scalia Judicial Restraint. DEAD or ALIVE Differing Viewpoints.

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The Bill of Rights

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  1. The Bill of Rights Freedom Speech and Religion

  2. The US Constitution • Is it DEAD or ALIVE?

  3. DEAD or ALIVEDiffering Viewpoints • “The Constitution that I interpret and apply is not living, but dead,” • Justice Antonin Scalia • Judicial Restraint

  4. DEAD or ALIVEDiffering Viewpoints • The founders knew “perfectly well that conditions would change. The values don't change. The circumstances do.” • Justice Stephen Breyer • Judicial Activism

  5. Freedom of Speech • Does the First Amendment mean anyone can say anything at any time? • Brainstorm examples of Speech that may be limited

  6. Limits on Freedom of Speech • Clear and Present Danger • does not protect statements that are uttered to provoke violence or incite illegal action.

  7. Limits on Freedom of Speech • Fighting Words • “English language has a number of words and expressions which by general consent [are] ‘fighting words’ when said without a disarming smile. … Such words, as ordinary men know, are likely to cause a fight.”

  8. Limits on Freedom of Speech • Libel and Slander • Was the statement false, or put in a context that makes true statements misleading? • You do not have a constitutional right to tell lies that damage or defame the reputation of a person or organization.

  9. Limits on Freedom of Speech • Obscenity • In June 1973 in Miller v. California, the Supreme Court held in a 5-to-4 decision that obscene materials do not enjoy First Amendment protection. • Miller Test • Would the average person, applying the contemporary community standards, viewing the work as a whole, find the work appeals to the purest interest? • Does the work depict or describe sexual conduct in a patently offensive way? • Does the work taken as a whole lack serious literary, artistic, political, or scientific value?

  10. Limits on Freedom of Speech • Conflict with Other Legitimate Social or Governmental Interests • War • Gag order for Trials

  11. Limits on Freedom of Speech • Time, Place, and Manner • content-neutral • interferes with a legitimate government interest? • distribution of information should not impede the flow of traffic or create excessive noise levels at certain times and in certain places.

  12. Freedom of Speech • What about the Internet? • What about silent protest for abortion? • What about Burning the American Flag? • SYMBOLIC SPEECH

  13. Freedom of Speech • Prior Restraint • Government cannot place restrictions on speech BEFORE they are expressed • Exceptions • War • Incite violence

  14. Civil Liberties Protections against Government Civil Rights Constitutional Protections for all people Civil Rights Act of 1964…no discrimination…race, sex, religion, national origin Civil Liberties vs Civil Rights

  15. The “Rainbow” Cupcake Dilemma

  16. Civil Rights Act of 1964…no discrimination…race, sex, religion, national origin

  17. How does Federalism affect guarantees of individual Rights? • What is Federalism? • Layers of Gov’t • Federal/National • State • Local (created by State) • Same Sex Marriage • Not legal in all states • Defense of Marriage Act (1996)

  18. Process of Incorporation? • What is it? • Bill of Rights have been combined into the Due Process Clause of the 14th Amendment • Mapp v Ohio • 4th Amendment applies to States

  19. Establishment Clause • What does it mean?

  20. Freedom of Religion • "The civil rights of none shall be abridged because of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner or in any pretext, infringed. • "Freedom is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” • - James Madison

  21. Freedom of Religion • Can a public school make their students stand and salute the American Flag?

  22. Freedom of Religion • "If 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." • Supreme Court Justice Robert H. Jackson • Pledge of Allegiance Case (1943) • West Virginia State Board of Education v. Barnett, 1943

  23. Freedom of Religion • Can a Public School have a prayer at a School event? • What SCOTUS Case?

  24. Freedom of Religion • "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality." • - Supreme Court Justice Tom Clark (1962) • Engle v Vitale, 1962 • No Prayer in School

  25. What happened at the Greenwood H.S. graduation in 2009 year that relates to Engle v Vitale?

  26. Freedom of Religion • What are James Madison, one of the Founding Fathers and author of the Bill of Rights, and Supreme Court justices Robert Jackson and Tom Clark saying about government's relation to individuals and their religious beliefs? • HANDS OFF!

  27. Are School Vouchers Constitutional? • Lemon v Kurtzman, 1971 • Financial Aid to Parocial (private, religious schools) • What is Indiana’s stance on this issue? • Lemon Test • Purpose of aid must be secular (not religious) • Not advance or prohibit religion • Must avoid “excessive entanglements” of gov’t and Religion

  28. Free Exercise Clause • What does it mean? • Right to believe in what ever you want to in regards to religion. • Are there limitations?

  29. Polygamy? • What SCOTUS Case • Reynolds v US, 1879

  30. Why are Liquor Stores closed on Sunday? And you cannot buy a Car? • McGowan v Maryland, 1961 • Upheld State’s Blue Laws

  31. Freedom of Religion • Massachusetts v. David and Ginger Twitchell (1990, Mass.) • Do the parents have a right to exercise their religious beliefs? In their mind, the practitioner and their prayers are equal to - in fact, better than - a physician and medicine. • What is the state's responsibility for the welfare of children? • What freedoms and responsibilities are in conflict in this case?

  32. Freedom of Religion • religious pluralism • See Chart • http://www.adherents.com/rel_USA.html#religions

  33. Freedom of Religion • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” • Why is the “Free Exercise” Clause so important? • Are there limitations to religious freedoms?

  34. Freedom of Religion • Limitations • Can Amish parents remove their children from public school at 14 due to Freedom of Religion? • Yes • Are religions that worship multiple gods legally permitted? • YES • What about religious worship that involves handling poisonous snakes by both adults and children? • YES, but…. • What about a religion that practices animal sacrifice? • YES • What about a religion that holds that each man should have more than one wife? • NO

  35. Freedom of Religion • Limitations • Can you get out of military service as a conscientious objector? • Yes…IF • Opposed to all war on moral beliefs • Welsh v US, 1970 • Can Amish parents remove their children from public school at 14 due to Freedom of Religion? • Yes

  36. Religion in School • Prayer in School • Student Religious Groups • Evolution vs. Creationism • Financial Aid to Religious Schools • Lemon Test • Purpose must be Secular • Must not enhance or inhibit religion • Must avoid “excessive entanglement of government with Religion

  37. Freedom of Speech and PressSCOTUS Cases • Libel • Slander • Seditious Speech

  38. Can an organization urge people to boycott a military draft? Can an organization urge people to boycott or resist a military draft? What SCOTUS case? Schenk v US, 1919 Speech is not punished but crime is!

  39. Miller v California, 1973 • Do you remember? • Miller Test

  40. Can a newspaper be stopped from printing scandalous information? • NO….that is what Libel and Slander laws are for…. • If it is true! • Near v Minnesota, 1931

  41. Can the Gov’t order Press agencies not to release classified documents? • Prior Restraint • Depends • Can the Government prove that if they were release it would endanger National Security • NY Times v US, 1971

  42. Can news reporters be forced to testify in court? Reveal their sources? • Yes! • Brandenburg v Hayes, 1972 • Problems? • “If the media are to receive any special exemptions, they must come from Congress or State Legislatures.” • 30 States have shield laws!

  43. Can a school principal censor students at a game? • Hazelwood School District v Kuhlmeier, 1988 • “…reasonably related to legitimate pedagogical concerns.” We were yelling CHITTY……Riley…lets call the ACLU..Our First Amendment rights were violated…they will help us sue…….or will they?

  44. Is picketing illegal? • Thornhill v Alabama, 1940 NO…but if it is “set in the background of violence” or for illegal purpose.

  45. If there is a draft, could you burn you card in protest? • US v Obrien, 1968 • NO! • The object of protest is within the constitutional powers of the gov’t. • No greater than necessary • Is not meant to squelch dissent.

  46. Tinker v DesMoines, 1969 • Schools overstepped their authority • “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.”

  47. Buckley v Valeo, 1976 • Are campaign contributions to political candidates a form of speech? • Yes!...$ is speech…why it would be difficult to limit campaign spending

  48. Texas v Johnson, 1989 • “If there is a bedrock principle underlying the 1st Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive…we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” Justice William J. Brennan

  49. Freedom to Assemble….and Time, Place, and Manner • Noise near School? • Noise near courthouse, intended to influence court proceedings?

  50. Freedom to Petition and Assemble • National Socialist Party of America v. Village of Skokie • National Socialist Party of America v. Village of Skokie, 1977 • You decide?...What issues need to be debated? • Symbolic Speech? • Fighting words? Can a neo-nazi groups assemble in public to promote their beliefs?

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