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Civil Liberties and Public
Policy
Chapter 5
Incorporation Doctrine

Legal concept under which Supreme Court has applied the
Bill of Rights to the states via 14th amendment.
 Gitlow v. New York (1925)
– Guarantees of free speech and free press apply to the
states.
 Palko v. Connecticut (1937)
– Certain rights should be applied to the states, because
they represent the very essence of a scheme of ordered
liberty, and are principles of justice so rooted in the
traditions and conscience of our people as to be ranked
fundamental.
Selective Incorporation
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Gitlow and Palko begin this process.
Some, but not all, federal rights are applied to the
states.
 Which rights are considered “fundamental?”
– The entire Bill of Rights except these:
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The right to bear arms
The right to not have soldiers forcibly quartered in private
homes
The right to be indicted by a grand jury before being tried for a
serious crime.
The right to a jury trial in civil cases
The ban on excessive bail and fines
Freedom of Religion: Establishment clause
“Congress shall make no law respecting an
establishment of religion”
 Some believe it means that the government can’t
favor one religion over another
 Others, such as Jefferson, believe it means there is a
“wall of separation” between church and state

Freedom of Religion: Establishment clause

Lemon v. Kurtzman (1971): aid to church related
schools must:
 Have a secular legislative purpose
 Neither advance or inhibit religion
 Not foster an excessive entanglement with religion
 Tax funds may be used to provide parochial students
with texts, computers, lunches, transportation to and
from school, and to administer standardized testing
services
 Tax funds may not be used to pay teacher salaries or
fund field trips
Freedom of Religion: Establishment clause

Agostini v. Felton (1997): public schools could send
teachers into parochial schools to teach remedial and
supplemental classes to needy students
 Zelman v. Simmons-Harris (2002): allowed
vouchers to pay religious school tuition
 Public educational institutions must allow religious
meetings in school if it provides space for other
groups under Equal Access Act (1984)
 Religious teachers cannot enter schools to teach
religion during school day, but students can leave
school during the school day to receive religious
instruction
Freedom of Religion: Establishment clause

Engel v.Vitale (1962) and School District of
Abington Township, PA v. Schempp (1963):
 “Voluntary” recitation of prayers or bible readings is
not allowed in public schools
 Silent prayer is allowed as long as it is individual
and not led by others
 Teaching creation science is unconstitutional
 Nativity scenes, when they have a secular purpose
or provide little or no benefit to religion, are allowed
Freedom of Religion: Free Exercise
Clause

Employment Division v. Smith (1988):
 State laws interfering with religious practices but not
specifically aimed at religion are constitutional
 The laws cannot single out and ban religious
practices because they are engaged in for religious
reasons, or only because of the religious belief they
display
 A general law may be applied to conduct even if the
conduct is religiously inspired
Freedom of Expression: No Prior Restraint
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Allows publication of libel, slander, obvious untruths,
anti-government diatribes, racial and religious
epithets, and almost any material, except if public
security or public safety is endangered
Near v. Minnesota (1931):
Jay Near's newspaper had many articles on
Minneapolis' elected officials’ illegal activities
(gambling, racketeering, and graft)
Minnesota Gag Law (1925), The Public Nuisance Law,
was applied.
“Near’s critics called his paper a scandal sheet, and
alleged that he tried to extort money threatening to
publish attacks on officials and others”
Supreme Court overturned decision
Freedom of Expression: Free Speech and
Public Order

Schenck v. United States (1919):
 Distributed pamphlets urging people to resist draft
 Government could limit free speech if there is a
clear and present danger (Holmes)
 Dennis v.United States (1951): upheld prison
sentences for Communist Party leaders conspiring to
advocate violent overthrow of government
 Yates v United States (1957) and Brandenburg v.
Ohio (1969): can advocate violent overthrow of the
government in the abstract, but not to incite anyone
to imminent lawless action
Freedom of Expression:
Free Press and Fair Trial

Shield Laws protect reporters from having to
divulge sources or surrender notes
 Branzburg v. Hayes (1972): right of a free trial
preempts reporter’s rights in the absence of shield
laws
 Zurcher v. Stanford Daily (1978): proper search
warrant can be applied to a newspaper
Freedom of Expression: Obscenity
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Roth v. United States (1957): “obscenity is not within the
area of constitutionally protected speech or press”
“I know it when I see it” –Justice Potter Stewart
Miller v. California (1973):
Materials are obscene if:
“The work, taken as a whole, appealed “to a prurient
interest in sex”
“The work showed ‘potentially offensive’ sexual conduct
that was specifically defined by an obscenity law”
“The work, taken as a whole, lacked ‘serious literary,
artistic, political, or scientific value”
Decisions should be determined by local, not national
community
Freedom of Expression: Libel and Slander

Publication or spoken false statements that defame a
person’s reputation
 New York Times v. Sullivan (1964): statements
about public figures are libelous only if made with
malice and reckless disregard for truth
 Private individuals have a lower standard to meet
Freedom of Expression: Symbolic Speech

Tinker v. Des Moines (1965): students can wear
armbands to protest the war
 Texas v. Johnson (1989): permissible to burn flag as
a symbolic gesture
Freedom of Expression: Commercial
Speech

Truth in advertising
Freedom of Expression: Right to Assemble

Picketing, protesting, forming interest groups,
political parties, and professional associations
 Cannot assemble if it disrupts public order
 Collins v. Smith: Nazi group allowed to march in
Skokie, Illinois
Defendants’ Rights

Exclusionary rule: evidence cannot be used if it was
not constitutionally obtained
 Mapp v. Ohio (1961): protection against
unreasonable search and seizure
 Miranda v. Arizona (1966): protect against self
incrimination
 Gideon v. Wainright (1963): right to a lawyer
Cruel and Unusual Punishment

Woodson v. North Carolina (1976): ruled against
mandatory death penalties
 Furman v. Georgia (1972): death penalty not cruel
and unusual, but overturned Georgia’s death penalty
because its imposition was “freakish” and “random”
 Gregg v. Georgia (1976): Death penalty not cruel
and unusual
 McCleskey v. Kemp (1987): death penalty does not
violate 14th amendment because minorities were
more likely to receive death penalty
Right to Privacy

Not in the Bill of Rights
 Griswold v. Connecticut (1965): doctor and family
planning specialist were arrested for disseminating
birth control devices.
 Supreme Court overruled: various portions of the
Bill of Rights cast “penumbras”(unstated liberties)
implied by the explicitly stated rights
 Roe v. Wade (1973):
 Almost no regulations during first trimester
 Protecting woman’s health during second trimester
 Prohibitions permitted unless life or health of
mother at stake
Right to Privacy

Planned Parenthood v. Casey (1992): Permits more
regulation of abortion:
 24-hour waiting period
 Parental or judicial consent for minors
 Presenting information about the risks of the
operation
 Abortions performed only in hospitals and clinics
(not doctors’ offices)