Three reasons liberties become big issues
The First Amendment:
Freedom of expression
Freedom of religion
Freedom of Speech
Freedom from Prior restraint
There is NO prior restraint – really, at at all.
Clear and present danger test: do the words create a clear and present danger that will bring about substantive evils?
I.e. "fire" in theatre
Due process clause of 14th amendment guaranteed protection of liberties against State law
What is speech?
Libel – written statement that defames the character of another person.
Harder for public figure to win libel suit – must prove not only falsity but "actual malice"
Slander: spoken word
To recover from libel, you must show negligence if you are an ordinary person
To recover from libel, you must show recklessness if you are a public person (recklessness: a reasonable person would have done differently, and a reporter knew that but did it anyway).
Obscenity—not protected by the first amendment
Nudity and sex are not, by definition, obscene
Symbolic speech – not given same degree of protection due to potential Pandora’s Box of problems.
Who is a person?
Corporations have rights – they are people
Many organizations have rights too (Planned Parenthood, et. al.)
Government can place restrictions on advertisements and commercial speech if it serves the public interest.
Young people have less freedom of speech.
Freedom of Religion
Free-exercise clause: no law prohibiting "free exercise" of religion
Establishment clause: No law respecting an establishment of religion
Free-exercise clause – you can pretty much do whatever you want as long as it doesn’t cause harm to others.
Can’t tax churches, prohibit animal sacrifice
Can force immunizations for Christian Scientists
Challenges surface when the court is forced to define religion
The establishment clause—the erection of a wall of separation between church and state
Limiting public aid to parochial schools
Government CAN build buildings on denominational college campuses; grant tax-exempt status to parochial schools
Government CANNOT pay secular teachers in parochial schools, reimburse parents for parochail-school costs, teach creationism, or create special school districts
Involvement in religion is constitutional if:
Crime and Due Process
Board notes to later integrate
Equal-time rule: broadcast media must provide candidates with equal times, prices, etc.
No longer exists
Original intent argument: States are sovereign – may decided how to protect themselves.
Second amendment has not real bearing under second amendment
Supreme court sides with original intent – the state can decide.
Can’t quarter troops in your home during times of peace.
Rights of the criminally accused [4-8]
Search and Seizure (Mapp v. Ohio)
Mapp v. Ohio – it’s another incorporation case; essentially the rights of the criminally accused in federal law are the same as those in state law
Must be reasonable under the circumstances. Probable cause – a reasonable belief that a person was involved in criminal activity
Exigency search – a search in the emergency.
Self-incrimination (Miranda v. Arizona)
Due process in other institutions
No cruel and unusual punishment