Civil Liberties and Civil Rights--Civil Liberties and Civil Rights defined and compared--Evolution of Civil Liberties--Evolution of Civil Rights

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Civil Liberties and Civil Rights Defined• 1. Civil Liberties and Civil Rights Compared• Civil Liberties: freedoms at risk from government. Protected by

limiting government actions—vertical relation• Civil Rights: freedoms at risk from other citizens protected

through actions taken by government—horizontal relation

• 2. Civil Liberties• Overview

• Only examples of important liberties• Conditional nature of liberty; must compete with society’s interests

• First Amendment Freedoms—Free Speech• Schenck v. US (1919)— “clear and present danger” doctrine• Brandenburg v. Ohio (1969)– “incitement standard.” Speech must be

likely to incite imminent lawless action (updates what constitutes a “clear and present danger”).

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Civil Liberties• What is “speech”? Symbolic Speech: protected “speech” can

include gestures, clothes, or conduct.• Tinker v. Des Moines School District (1969)—Apparel can be

protected “speech” even at school• Texas v. Johnson (1989)—Flag burning is protected speech• These cases highlight “freedom of expression” protected by the

courts (though not specifically listed in the Bill of Rights)

• First Amendment Freedoms—Freedom of the Press• Free press essential to democracy• Press is strongly protected against three restrictions• A. Prior Restraint (censorship): Near v. Minnesota (1931)• B. Libel (injury to reputation): Sullivan v. NY Times (1964)— “actual malice”• C. Obscenity: Miller v. California (1973) Not protected, but hard to define 3

Civil Liberties• First Amendment Freedoms—Freedom of Religion. Two

components• No Establishment—no official government church, and more• Engel v. Vitale (1962)—prohibition on guided prayer in public schools• Lemon v. Kurtzman (1971)—3-part “Lemon Test”

• Free Exercise—Roots in earliest European-American history, protects beliefs and some actions• City of Hialeah v. Church of Lukumi Babalu—governments cannot “pick on”

specific religions• There are some limits:

• Employment Division v. Smith—socially “abhorrent” practices are not allowed

• Criminal Suspects’ Protections—Search and Seizure (4th)• Expectation of security varies with location (home vs. car)• Exclusionary Rule: Mapp v. Ohio (1961) 4

Civil Liberties• Criminal Suspects’ Protections—Self-Incrimination (5th)• Miranda v. Arizona (1966)—must read suspects their rights

• Criminal Suspects’ Protections—Right to Counsel (6th)• Gideon v. Wainwright (1963)

• Implied Protections: “Penumbral Rights”—rights deduced from other parts of the Constitution• Privacy

• Griswold v. Connecticut (1965)• Roe v. Wade (1973)

• Incorporation Theory—the process of applying the Bill of Rights to the States• Supreme Court interpretations over time

• Use the 14th Amendment’s “due process” clause

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Civil Rights—Racial Equality• 1. Race-Based: earliest, most contentious• Constitutional Protections for Slavery (written at Convention)

• 3/5 Compromise• 1808 Slave Importation Protection• Return of escaped slaves

• Supreme Court Protection of Slavery• Dred Scott case (1857)—Court rules slaves not citizens, have no legal

rights (they are property, and federal gov’t can’t interfere due to 5th Amendment)

• CIVIL WAR• Emancipation Proclamation (1863)—only in rebelling states

• Slavery Abolished: 13th Amendment (1865)• Southern states response: “Black Codes” limit contract rights, serving

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Civil Rights—Racial Equality• Republican Response—Discrimination Denied Politically

• 14th Amendment: “due process” and “equal protection” guarantees• Citizenship defined by birth

• 15th Amendment: right to vote guaranteed, regardless of race• 1877—end of Reconstruction (“Compromise of 1877”)• Discrimination Remains: “Separate but Equal”

• Dual Federalism: limits influence of national government (“home rule”)

• Jim Crow laws = segregation• White primaries• Poll taxes• Literacy tests (**grandfather clause)

• Plessy v. Ferguson (1896): “separate but equal”— “de jure” segregation is legal• 1909—NAACP forms, fights Jim Crow laws in the courts

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Civil Rights—Racial Equality• Segregation Prohibited: separate is NOT equal

• Truman desegregates the military (1948)• Brown v. Board of Education (1954)• Civil Rights Movement (1950s – 1960s)

• Civil Rights more broadly protected• Civil Rights Act of 1964—segregation banned in “public

accommodations”• Voting Rights Act of 1965—more African-American elected officials

• “Equal Opportunity”—what does it mean?• De jure discrimination illegal, but de facto discrimination remains• Response: Affirmative Action—federal program addressing

“historical inequities”• No quotas, but no clear standards

• Challenges to Affirmative Action—what is “education”?• Michigan Law School Admission (2003)—diversity serves a “compelling

interest”• University of Texas (2013)—?

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Civil Rights—Gender and Ableness• 2. Sex-Based: Widespread Discrimination• Voting, Occupations:

• Right to Vote—19th Amendment (1920)• Workplace—Equal Pay Act (1963)• Education—Title IX (1972)• Equal Rights Amendment (failed)

• 3. Disability-Based• Americans with Disabilities Act (1990)

• Jobs, serious disabilities, public access (think Lincoln High School)

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