Chapter 5: Issues of Freedom and Equality Introduction: Explain the facts and decision in the Texas v. Johnson case (1989). He and others burned a U.S. flag in protest to U.S. support of the Contras in Nicaragua. There was a Texas law forbidding abuse of the flag. He claimed 1st Amendment rights under freedom of speech. Convicted in Texas court; reversed in Texas Court of Criminal Appeals. Supreme Court struck down the Texas law and similar laws in 47 other states. Brennan said ?The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.? What was the reaction to Texas v. Johnson on Capital Hill, and what was the decision in U.S. v. Eichman (1990)? President Bush denounced Texas v. Johnson and Congress passed the Federal Flag Protection Act of 1989 making it illegal to desecrate the American flag. That law was decided unconstitutional in U.S. v Eichman. Attempts by Congress to propose a constitutional Amendment protecting the flag have fallen just short of passage. What is the meaning of the sentence, ?But these basic freedoms aren?t (cannot be) absolute?? Your rights are limited by the rights of others. Interest of the majority and minority often clash (freedom of religion v. right of rebellion) ? the Supreme Court draws the line and usually has ensured that freedoms are enjoyed by all citizens. Freedom of Religion The 1st Amendment provides duel protection for religious freedom, explain. The establishment clause expressly forbids the creation of a national religion; it separates church and state. The free exercise clause guarantees that individuals may worship as they please. Separation of Church and State: What was the decision in Everson v. Board of Education (1947)? That the principle of church and state applies to the states no less than to the national government. Can the government aid religion in any way? Yes, religious organizations may benefit from government programs that have a clearly secular purpose, such as bus transportation to non-public school students. What was the decision in Engel v. Vitale (1962) and Abington School District v. Schempp (1963)? Engel ? court throughout the daily recital in the public schools of a nonsectarian prayer. Schempp ? throughout the required recital of the ?lords prayer? in schools in PA and MD. The ?high-wall of separation? had been breached said the Supreme Court. How about a ?moment of silent meditation or prayer? at graduation ceremonies? The court said no to both, however a court minority seemed willing to uphold laws that don?t mention prayer but merely allow for moment of silent meditation and religious reflection. S.C. said no prayer during school graduation ceremony in Lee v. Weisman (1992). What is the accommodationist view toward the church-state relations expressed by the Rehnquist Court? To avoid violating the establishment of the Constitution laws? must have a secular legislative purpose. it?s primary effect must neither advocate nor inhibit religion. it must avoid excessive entanglement with religion. How about scenes during religious holidays on government property? Not inside a public building, but ok outside because the display suggested that the government was promoting peace and religious freedom. What isn?t allowed in public schools? Forbids state-sponsored prayer and posting the 10 Commandments in classrooms and laws banning the teaching of evolution or requiring instruction in creation science. What is allowed in the public schools? The study of the bible and religion as part of secular education in public school areas. Court has approved the loaning of books and other services from public schools to private religious schools, and? Exemption from real estate taxes on property owned by religious school and tax deduction for parents who send their children to parochial schools. Freedom of Religious Exercise. What is the secular regulation rule? Give examples. This rule requires that all laws must have a reasonable secular purpose and that they must not discriminate on the basis of religion. And, it also means that people may not claim exemptions from reasonable government regulations on religious grounds because that would violate the establishment rule. Reynolds v. U.S. (1879) laws forbidding polygamy were upheld even though at the time it was part of Mormon religious belief. States may require smallpox vaccination; Amish required to pay Social Security taxes; Blue Laws upheld over objections of Orthodox Jews (Sabbath on Saturday); compromise with Amish, their children don?t have to attend school after the 8th grade having received a minimum level of education. What was the decision in Church of Lukumi Babalu Aye v. City of Hialeah (1993)? Sacrificing animals in religious ceremonies ? S.C. held that states and localities, while permitting other forms of killing of animals, may not then ban sacrifices or ritual killings. Freedom of Speech and Press Why is it important in a democracy to have freedom of speech and press? They?re known as preferred freedoms an integral part of a constitutional democracy. Protected Speech What standard was created in Scheneck v. U.S. (1919)? Convicted under the Espionage Act of the 1917 for urging people to resist the draft. Justice Oliver Wendell Holmes? clear and present danger test. It depends on the circumstances in which it was done. If it creates a clear and present danger then Congress has the right to prevent it. Also, from this case, the government has no power to say what is true or false ? up to the individual. What?s the significance of Brandenburg v. Ohio (1969)? Court took the position that only the advocacy of immediate, violent, and illegal action may be subject to criminal persecution. Brandenburg was a KKK leader advocating criminal acts to protect the white race; convicted under Ohio law; overturned by the S.C. Why did the S.C. allow the N.Y. Times to publish excerpts of the Pentagon Papers? Because it took the view that even speech that might threaten National Security is protected. Said government has a heavy burden of justifying its attempt at censorship, speech that has social redeeming value is protected. Speech that touches on political, scientific, literary, or artistic matters. What was the major difference between R.A.V. v. City of St. Paul (1992) and Wisconsin v. Mitchell (1993)? RAV ruled that an ordinance punishing so called hate-crimes violated the 1st Amendment free speech clause because it punished speeches based on their content. Wisconsin said, in effect, hate-crime laws can be enacted, and those who violate them can be given longer sentences if their actions were motivated by racial, religious, or gender bias. (ex. ? ?get him because he is _____?; rather than simple assault). Unprotected Speech What are the 4 categories of unprotected speech? Obscenity Libel and slander Fighting-words Commercial speech What was the importance of Roth v. U.S. (1957)? What standard was created by it? It overturned the Hicklin Rule when permitted banning of books (except those in Justice Felix Frankfurter?s words ?that are only fit for children?). The Roth decision applied contemporary community standards. It really meant that only hard-core pornography was outside the scope of the 1st Amendment protection. However it did not define obsecenity. So what can and cannot the state ban? Use or public display of 4-letter words may not be banned. Students in school may be disciplined for the use of indecent and or obscene language. States may prohibit the sale of pornographic materials to minors and completely ban pornography depicting minors. Prohibit sexually explicit live entertainment and films in bars. Municipalities may use exclusionary zoning to regulate the location of adult book stores and theaters. What power does the FCC have over radio and TV? To protect indecent and obscene language on the airwaves because of the possibility of children and unsuspecting adults listening. They can take away a station?s license to broadcast if they violate the rules. What?s the difference between libel and slander? Libel is a false statement or fact about a person defamation of his/her character by PRINT or by visual portrayal on TV. Slander is such a statement or defamation by speech. Both damage a person?s reputation and may be subject to lawsuit. What are compensatory and punitive damages? Compensatory damages are based on an individual?s actual financial losses as a result of being libeled - as employment or income. How do libel and slander rules differ from famous and ordinary folk? With public officials and public figures actual malice must be proved with knowledge of the falsity or with disregard of the truth. This makes it difficult for them to win libel suits. Private individuals may recover damages on a lesser standard; simply must show that the statements were false and the publisher was negligent in his/her duty. Easy for private individuals to win awards; large ones are usually reduced by appellate courts. Conflict between privacy and 1st Amendment speech and press. What was the decision in Hustler Magazine v. Falwell? (1988) Cartoon of Falwell having incestrial sex with his mother in an outhouse was published. At first he was award $150,000. Reversed because it wasn?t presented as factual truth (it was a spoof of an ad for alcohol) and thus actual malice couldn?t be shown. What?s wrong with fighting-words? In the past seen as unprotected speech because they?re likely to incite violence or lead to breach of the peace and public order. However recently the court has reversed every conviction under fighting-words, so, it?s uncertain which direction the court will go. Why can the government regulate commercial speech? Because it?s deemed to be outside the scope of the 1st Amendment protection because it doesn?t bear on political matters and the government may have important interests in regulating some kinds of advertising, as ensuring truth in advertising. Some advertising is protected as telling people of some services (availability of abortions, lawyer fees, etc.) C. Symbolic Speech, Speech-plus-Conduct- and Freedom of Association What is a symbolic speech? Conduct that communicates political ideas, often a protest. Ex. Wearing black armbands, displaying a flag. All protected. What is speech-plus-conduct? Communication of ideas plus marching; picketing, sit-ins. Are there restrictions to such activities? Yes, they?re subject to reasonable time, place, and manner. Remember the state has police power. Explain freedom of association. The right to join political parties and other groups, social, religious. Disclosure of membership lists can?t be compelled by elected officials and can?t be dismissed from employment because of membership. All male clubs are legal, right? No, that right is outweighed by state laws prohibiting gender discrimination in public and private organizations. III. The Quest for Equality In which document(s) would you find the idea of equality? Not mentioned in the original constitution. Is mentioned in the Declaration ?We hold these truths? that all men are created equal.?? And was included in the 14th Amendment saying ?no person shall be deprived of the equal protection of the laws.? The Extension of Voting Rights Why was the 15th Amendment added to the Constitution? To maintain the Republican majorities in elected offices. Grant won a narrow victory in 1858. To control the legislative and executive branches, the Republicans extended the vote to blacks (former slaves) What event finally gave support to women voting? WWI ? women?s part in the war effort. Actually it was a worldwide phenomena at the time. 1870 ? Wyoming first to give women the vote. 19th Amendment ratified in 1920. What laws denied African Americans the right to vote? Poll tax ? hurt poor as people had to pay to vote. Outlawed by the 24th Amendment passed in 1964. In 1966, the S.C. outlawed them in state elections. Literacy tests ? interpretation of a document. What was done by the Voting Rights Act of 1965? Banned the use of literacy tests and other tests for educational achievement as well as requirements that voters prove good moral character (where fewer than 50% of the people vote). Authorized the Civil Service Commission to approve federal examiners to register voters where the Attorney General deems it necessary for the enforcement of the 15th Amendment. Redistricting and Equal Representation Define redistricting, and what was done by Baker v. Carr? Redistricting means redrawing the boundaries of legislative districts ? had been unequal in population. Baker v. Carr ? S.C. had declined to be involved in the issue considering it a political question until Baker v. Carr. This case only said the court had jurisdiction in the issue. In the interest of fairness and justice, urban districts were being denied equal protection of the laws as their numbers grew but Congressional districts hadn?t been changed ? in years. Subsequent cases said one person, one vote. What has been the impact of Baker v. Carr (1962) and subsequent cases? Has meant that district lines for congressional, state, and local elections must be redrawn every 10 years after the national census. It has made the American electoral process more open, accessible, and more democratic, and has made redistricting a partisan issue. Question: WHO DOES THE ?REDRAWING?? State legislature. What is racial-gerrymandering, and what resulted from Miller v. Johnson (1995)? Justice Dept. of both Bush and Clinton?s administrations pushed for minority-majority voting districts resulting in districts in which a majority of voters were African American, who voted Democratic. However, the heavy districts of blacks and Hispanics in one area resulted in other districts heavily White who voted largely Republican and the whole idea became an overall advantage for the Republicans. Miller v. Johnson (1995) agreed that racial gerrymandering violated the 14th Amendment?s equal protection clause and that race may not be the sole or primary factor in congressional redistricting. Ending Racial Discrimination After the 13th, 14th, and 15th Amendments were ratified, why didn?t segregation and discrimination end in the USA? New barriers to racial equality emerged in the form of the Jim Crow laws that segregated the races in places of public accommodations. And it was permitted by the SC which ruled that the 14th didn?t prohibit private individuals from discrimination, only states from discriminating. What was done by Plessy v. Ferguson (1896)? The court affirmed the ?separate but equal? doctrine in RR laws. What are restrictive covenants? Upheld until 1948, they were contracts in which property owners agreed not to sell or lease their property to members of certain racial or religious groups. What was done by Brown v. Topeka (1954)? SC rejected the ?separate but equal? doctrine; racial segregation in public schools violated the equal protection clause of the 14th. However, the court set no time table for compliance; said with ?all deliberate speed? Met with resistance and evasion; no real movement toward ending segregation until? What was done by the Civil Rights Act of 1964? Forbids schools from discriminating on the grounds of race, color, or natural origin in any activity receiving federal assistance ? withhold federal funds. What?s the difference between de facto and de jure segregation? De facto ? segregation based on housing patterns. De jure ? by laws and official policies. What device was used to attack de facto segregation? Bussing was used to attack de facto segregation. What was the decision in Milliken v. Bradley (1974)? Cannot bus students between school districts ? so can?t go from the city to the suburbs ? increased the flow of whites to the suburbs (?White flight?) What is the recent trend? Freeman v. Pitt (1992) ? SC decided that lower courts may withdraw from the supervision of desegregation efforts once school district has complied with desegregation orders even if the schools remain imbalanced due to housing patterns. Missouri Jenkins (1995) court reiterated its view that lower federal courts should disengage from desegregation efforts. Nonracial Discrimination Considering the fact that all laws discriminate (in some way), what was the two-tier approach developed in the 50s-60s in applying the equal protection clause? In economic matters, it uses a minimal scrutiny test, meaning it looks to see whether legislation has a rational basis. In using this logic, the Court hasn?t struck down any federal or state legislation under the equal protection clause since 1937. What is the strict rationality test, also known as exacting scrutiny test? Laws based on gender, age, and wealth it?s more flexible and more subjective that the strict scrutiny test EXAMPLES FOLLOW? In which areas has the Court allowed gender-based discrimination? Give examples of what the Court has struck down based on gender discrimination Allowed: all-male military draft/enforcement of statutory rape laws against males but not women/assignment of female guards in prison. Struck down; laws discriminating against women in cases involving the denial of benefits for dependents of female (but not male) military personnel and denial of seniority status to women who take maternity leave from work. What additions did the Court ok to the Civil Rights Act of 1964? Female employees could sue employer for sexual harassment. And barring women from certain jobs which could pose severe health risks (if they wanted the job) Where has the Court allowed discrimination against age to stand? Laws requiring police to retire at age 50, and laws requiring judges to retire at age 70. Affirmative Action and Reverse Discrimination What is the intent behind affirmative action? Designed to help women and minority groups advance in areas in which they have historically been discriminated against. To give special consideration to women and minorities in, for example, admission to college and promotion in the workplace. What?s the argument about reverse discrimination? Penalizes white and males in violation of their rights under the 14th equal protection clause. The action does move beyond the principle of equality of opportunity in an effort to insure equality of result (their argument). What?s the argument in favor of affirmative action? Women and minorities were previously denied equal opportunities in education and employment; they frequently didn?t have the education, training, or seniority necessary for some jobs and promotions, and judging them by the criteria used to judge white males will perpetuate their disadvantage. What do critics of affirmative action argue? Those programs go too far in the pursuit of greater equality ? use Plessy v. Ferguson Our Constitution is color-blind and neither knows nor tolerates class among citizens What two decisions did the Court make in Regents of the University of California v. Bakke (1978)? Stated that quota systems (precise numbers set aside) are unconstitutional. The court upheld the constitutionality of affirmative action programs that consider race as one among many factors in student admission. What was decided in the City of Richmond v. Croson (1989)? To limit affirmative action ? set aside programs are unconstitutional. The Court struck down a program in Richmond, Va, that required nonminority building contractors to subcontract 30% of all city-awarded programs to minority-owned businesses ? as a reward for past discrimination. In this case the Court abandoned use of the exacting scrutiny test (subjective, flexible) and adopted the tougher strict scrutiny test-meaning it would be more difficult for states to use affirmative action. This forced many states and localities to redraft their laws. What was the decision in Metro-Broadcasting, Inc. v. Federal Communications Commission (1990)? Upheld FCC policy of giving preferences to minority owners of broadcasting companies when awarding licenses to operate TV stations ? said it was a Congressional power to provide for the general welfare and to enforce the equal protection guarantees of the 14th Amendment. Ararand Constructors, Inc. v. Pena (1995)? Overturned Metro. Said strict scrutiny test applies to affirmative action programs adopted by the federal government, no less than to the states as in Croson. Set aside programs of the Federal Gov. also violates the 14th. Programs must be narrowly-programmed to remedy past discrimination. What was done by the Civil Rights Act of 1991? This act returned to employers who are sued for discrimination and the burden of proving that their hiring practices are job related to the position in question and consistent with business necessity.
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