Civil Liberties
Say what you want, just keep quiet about it
Overview
Selective Incorporation
     Free Speech
     Free Press
     Free Religion

Incorporation
     Amends 1-8 do not protect against states
     Even today, the “Bill of Rights” does not apply directly to the state governments
     But it is “as if” most of it does apply!

14th Amendment
1868

Sec. 1: "No State shall … deprive any person of life, 
liberty or property, without due process of law;" (due 
process clause)

"nor deny to any person within its jurisdiction the equal 
protection of the laws" (equal protection clause)

Selective Incorporation 

     Ct wonders, “How can we the 14th to stop states from harassing their people?”
     Many rights have been "incorporated" into the 14th to protect people from the states
     See handout

Free Speech
     SupCt had no free speech cases until WWI
     Oppression of Communists/Socialists
     Espionage Act 1917 
     Sedition Act 1918
     Schenck vs U.S.: speech/pamphlet caused a "clear and present danger" (CPD test)

Widespread persecution
     2000 Espionage act prosecutions
     Courts adopted informal "bad tendency test"
     
     Eugene Debs imprisoned

     Widespread Persecution

     Palmer Raids
     Interest Fizzled

Yet more anti-communism
     Smith Act 1940: crime to advocate overthrow of government
     1951: convictions upheld (Dennis v. US)
     McCarthy Hearings


Liberalization of Free Speech policy
     Recall "pledge" cases
     1957: stricter policy on anti-communist arrests
     1966: SupCt struck down "loyalty oath" 
     Brandenberg v. Ohio (1968)
     "Wish they had gotten him" 

Symbolic Free Speech too
     F*ck the draft!
     Flag upside down
     Burn the flag (but not if you're naked)

Money talks!
     1976: Campaign spending limits struck down
     1985: Limits on "independent PAC" spending struck down

Free press
     Prior restraint: only allowed under most extreme circumstances
     But you may try to punish afterword

     1931 Incorporated (Near v. Minnesota)

     Pentagon Papers
     Progressive Case

Obscenity
     1915: Films are not "press"
     1952: 1st amendment covers Films. 
     NY "sacreligious" law struck down
     Court: Obscene material does not count as "speech" or "press"

     Big question: what's obscene?

Community Standards!
     1973: Miller v. California
     Obscene: 
     appeals to prurient interest
     Sex in an offensive manner, and
     Lacks serious literary, artistic, political, or scientific value

     Local, not national, community standards used

     SupCt allows regulations on adult bookstores and  nightclubs

Libel
     Libel: publication that falsely harms someone
     Solution: sue the bastards!
     1964: must prove "actual malice" to collect (NY Times v. Sullivan)
     Who is a "public figure" & what's "public concern"?
     Falwell v Hustler case

Broadcasting
     1st does protect (1968), but not as strongly
     7 dirty words case
     Courts consistently allow unique restrictions on 
     TV/radio: "indecency" 

Freedom of Religion
     Differentiate "establishment" versus "free exercise"

Establishment questions: 
     Prayers in public school
     Creationism and evolution
     Prayers at graduation ceremony
     Student-led prayer at ceremony

Religion II
     Free exercise
     Peyote and the Religious Freedom Restoration Act
     Religious education + home schooling
     Allow religious student newspaper

     Child abuse or religious health care

     Guns & Waco 

     What general policies are allowed if they interfere with 
religion?