Civil Liberties

“Your rights as Americans”

What are civil liberties?

• Civil liberties are the personal rights

and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation.

• These are limitations on the power of

government to restrain or dictate how

individuals act.

Founding Documents

• Declaration of Independence - “We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”

• Constitution – framers believed in natural rights

Writ of Habeas Corpus

• Art. 1, Sec. 9

• “Produce the body”

• Requires government officials to present a prisoner in court and to explain to the judge why the person is being held

Ex Post Facto Laws

• “after the fact”

• Being charged for committing a crime, that wasn’t a crime when the person committed the action

Bills of Attainder

• Legislative act that punishes an individual without judicial trial

• Court should decide guilt, not Congress

Bill of Rights

1. Free speech, press, assembly, petition, religion

2. Right to bear arms3. Prohibits quartering soldiers4. Restricts illegal search and seizures5. Provides grand juries, restricts eminent

domain (gov can’t take private property unless compensation), prohibits forced self-incrimination, double jeopardy (can’t be charged for the same crime twice)

Bill of Rights

6. Outlines criminal court procedure

7. Trial by jury

8. Prevent excessive bail and cruel and unusual punishment

9. Amendments 1-8 do not necessarily include all possible rights of the people

10. Reserves for the states any powers not delegated to Fed. Gov by Constitution

+ 1…the 14th Amendment

• The Bill of Rights was designed to limit the powers ofthe national government.• In 1868, the Fourteenth Amendment was added to theConstitution and its language suggested that the

protections of the Bill of Rights might also be extended to prevent state infringement of those rights.

– The amendment begins: “All persons born or naturalized…are citizens…No state shall....deprive any person, of life, liberty, or property without due process of law.“

– Also includes equal protection clause (next slide)– The Supreme Court did not interpret the 14th

Amendment that way until 1925 in Gitlow v. New York.

14th Amendment

• “privileges and immunities” – Constitution protects all citizens

• Due process – prohibits abuse of life, liberty, or property of any citizen, state rights were subordinate to Fed rights

• Equal protection clause – Constitution applies to all citizens equally

14th Amendment (con’t)

• In 1925, the Court ruled in Gitlow v. New York that statescould not abridge free speech due to the 14th Amendment's

Due Process Clause.• This was the first step in the development of theincorporation doctrine whereby the Court extended Billof Rights protections to restrict state actions.• Not all of the Bill of Rights has been incorporated. Forexample the 2nd and 3rd amendments have not beenincorporated.

The 1st Amendment….Freedom of Religion, Speech & Press

• The First Amendment states that: “Congress shall make no law

1. respecting an establishment of religion,

2. or prohibiting the free exercise thereof;…”

The Founding Fathers & the 1st Amendment

• While not all of the founders endorsed religiousfreedom for everyone, some of them notablyJefferson and Madison, cherished the right of allindividuals to believe as they pleased. (Tommy J was a

deist…)• Many of the colonies and later states had established

religions. After independence all but TWO of the former colonies had declared themselves “Christian states.”

• Non-Christian minorities were rarely tolerated(Jews could not hold office in Massachusetts until1848).

What “establishment” historically meant…

• means that the Government will create and support an official state church…often

– tax dollars support that chosen church.

– that church’s laws become the law of the land.

– the Nation’s leader usually appoint the leading clerics.

– often other religions are often excluded.

US point of view of establishment

• They asked, “Shouldwe establish a religionor not?”• Thomas Jeffersonwrote that thereshould be “a wall ofseparation betweenchurch and state.” Tommy J rocks!!!!

Religion…as a result

• “Establishment” clause – prohibits the gov’t from establishing an official church

• “Free exercise” clause – allows people to worship as they please

Separationists vs. Accomodationists

How high should the wallbetween church and statebe?

Separationists argue that ahigh “wall” should existbetween the church andstate.

Accomodationistscontend that the stateshould not be separatefrom religion but rathershould accommodate it,without showingpreference.

Judicial Review

• Marbury v. Madison

• The power of the Supreme Court to judge the constitutionality of a law

Legislative Action

• Sometimes laws can guarantee rights

• Ex. Civil Rights Act of 1964

The Supreme Court and the Establishment Clause

• The Supreme Court has held fast to the rule of

strict separation between church and state when

issues of prayer in public school are involved.

•In the early 1960s, the Court ruled that official

lead prayer and bible reading is unconstitutional.

•In Engel v. Vitale, (1962) the Court ruled that

even nondenominational prayer could not be

required of public school children

School Prayer

• In Lee v. Weisman(1992), the Courtcontinued itsunwillingness to allowprayer in publicschools by finding thesaying of prayer at amiddle schoolgraduationunconstitutional.

Lemon v. Kurtzman—i.e. the Lemon Test

• In 1980, this Lemon

Test was used to

invalidate a Kentucky

law that required the

posting of the Ten

Commandments in

public school

classrooms.

• In 1971, the Court ruled thatNew York state could notuse state funds to payparochial school teachers’salaries.• To be Constitutional thechallenged law must1. Have a secular purpose2. Neither advance nor inhibitreligion3. Not foster excessivegovernment entanglementwith religion.

Free Exercise Clause

• "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion.

• This freedom is not absolute.• Several religious practices have been ruled

unconstitutional including:– snake handling– use of illegal drugs– Polygamy ‘Violation of social duties or subversive of good

order”• Nonetheless, the Court has made it

clear that the government must remain NEUTRAL toward religion.

“See You At the Pole”

• Student participation inbefore - or after - schoolevents, such as "see youat the pole," ispermissible.• School officials, actingin an official capacity,may neither discouragenor encourageparticipation in such anevent.

Equal Access to Schools

• 1984 Congress passed Equal Access Act publichigh schools receiving gov’t funds must allow student groups to meet regardless of religious or political content if other non-curricular clubs also meet

• Westside Community Schools v Mergens 1990-upheld Act “Crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clause protects”.

Still 1st Amendment…Freedom

of Speech • In the United States we each have the right tospeak our mind (within some broad limits).• In this section we will discuss– The history of speech in the United States– Prior Restraint– Politically Correct and Hate Speech– Symbolic Speech– Libel and Slander– The Internet

Free Speech

• DOES NOT mean that you can “say anything you want”… but pretty close

Restrictions• Threat to national security—this now includes

saying things like…”I’m glad they didn’t find the bomb in my bag”—while in line at the airport!

• Libel – false written statement attacking someone’s character, with intent to harm

• Obscenity – not protected, hard to define – Ex. Pornographic material

• Symbolic speech – action to convey a message

Alien & Sedition Acts (1798)

• These acts were designed to silence

criticism of the government.

• They made it a criminal offense to publish

“any false, scandalous writing against the government of the United States.”

• A new Congress allowed the acts to expire before the Supreme Court had a chance to rule on the Constitutionality of the laws.

War and Freedom of Speech

• During the Civil War, President Lincoln suspended the free press provision of the First Amendment.

• President Lincoln also ordered the arrest of editors of two New York newspapers. Congress support him.

Espionage Act (1917)

• In World War I anti-German feelings ran high. Anything German was renamed – such as Sauerkraut to Liberty Cabbage.

• This law curtailed speech and press during World War I.

• The law made it illegal to urge resistance to the draft, and even

prohibited the distribution of antiwar leaflets.• Nearly 2,000 Americans were convicted under the

Espionage Act.

Espionage Act Con’t

• Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft.

• The bad tendency test was used by the

Court. Engaging in speech that had a

tendency to induce illegal behavior was not protected by the 1st Amendment.

Clear and Present Danger Test

• Holmes sought to allow limits on the 1stAmendment.

• Justice Holmes defined the “Clear and Present Danger” test in the Schenck case.

• “Even the most stringent protection of free speech would not protect a manfalsely shouting fire in a crowdedtheatre.” Justice Holmes.

Debs v US (1919)

• In Debs the Court upheld the conviction of

Eugene V. Debs (a Socialists candidate for the U.S. Presidency) because his anti-war speeches had the “tendency” to obstruct recruitment efforts.

Libel and Slander

• Libel is a written statement that defames the character of a person.

• Slander is spoken words that defame the character of a person.

• In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved.– Actual malicious intent must be provedNY Times v Sullivan 1964

Obscenity and the 1st Amendment

• Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place and person to person.

• Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said hecouldn't define obscenity, but "I know it when Isee it." The ambiguity of definition still existsand is becoming even more problematic withthe Internet.

• No nationwide consensus exists that offensivematerial should be banned—even some porn.

Obscenity con’t

• The courts have consistently ruled that states may protect children from obscenity (Osborne v. Ohio,1991); while adults often have legal access to the same material.– BUT Court struck down Child Pornography Prevention Act in Ashcroft v Free Speech Coalition. The act wasaimed at restricting minors viewing pornography atlibraries

• Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States,1957) it has proven difficult to determine just what is obscene.

Miller v California

• Miller concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.

• In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.

The “Three Pronged Test” for Obscenity

• In order to meet the definition of obscene material articulated in this case, three conditions must be met as determined in Miller V California 1973:1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific

What Types of Speech areProtected?

• Symbolic speech--symbols, signs, and othermethods of expression. The Supreme Court hasupheld as constitutional a number of actionsincluding:– An example of protected symbolic speech would bethe right of high school students to wear armbands toprotest the Vietnam War (Tinker v. De MoinesIndependent Community School District, 1969).– flying a communist red flag– burning the American flag

Protection—even when burning a flag

• Burning the Americanflag is a form ofprotected symbolicspeech.• The Supreme Courtupheld that right in a5-4 decision in Texasv. Johnson (1989).

What Types of Speech areProtected? Pentagon Papers

• Prior Restraint – a government action thatprevents material from being published.• The Supreme Court has generally struckdown prior restraint of speech and press(Near v. Minnesota, 1931).• In NYT v. United States (1971) the Courtruled that the publication of the top-secret Pentagon Papers could not be blocked.

What Types of Speech areProtected?

• Hate Speech – hate speech is the new

frontier.

• Campus speech codes, city ordinances,

and the Communications Decency Act are just a few examples.

Politically correct speech

• This controversy grew out of the movement colleges to ban offensive speech.

• Incidents in which reprimanded students have challenged the college’s code of speech have been challenged successfully by the American Civil Liberties Union (ACLU)

2nd Amendment

• The 2nd Amendment states that• "A well regulated militia, being necessary to

the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

• This amendment has been hotly contested in recent years particularly since the 1999 shootings at Columbine High School.

• The Court has not incorporated this right, norhave they heard many cases about it.

3rd Amendment

• Covered mostly under right to privacy…when was the last time your family made up the guest room for a US military soldier (that wasn’t related to you)?

4th Amendment

• The 4th Amendment’s general purpose– is to deny the government the authority to make general

searches.• The Supreme Court has interpreted the 4th to allow the

police to search– The person arrested– Things in plain view of the accused– Places or things that the person could touch or reach,

or which are otherwise in the arrestee’s “immediatecontrol.”

Search and Seizure

• 4th Amendment

• Freedom from “unreasonable search and seizure”

• Prevent police abuse

• Ex. Mapp v. Ohio

4th Amendment con’t

• Provides protection against “unreasonable” searches and seizures

• Requires search warrants-probable cause

• Allows “Stop and Frisk”-warrant less

searches only with reasonable suspicion

• Testing for drugs and HIV?

Due Process

• 5th and 14th Amendment• Forbids national AND state gov to “deny

any person life, liberty, or property without due process of law.”

• Procedural – fair trial• Substantive – fundamental fairness• Exclusionary rule—evidence gathered in

violation of the Constitution cannot be used against a defendant

Bill the Bulwark

What does the “fruit of the

poisonous tree” refer to?

Rights of Criminal Defendants

• Are the due process rights and the

Procedural guarantees provided by the

Fourth, Fifth, Sixth, and Eighth Amendments

Self-incrimination

• 5th Amendment

• No one “shall be compelled to be a witness against himself.”

• Miranda v. Arizona 1966

5th Amendment

• The 5th Amendmentstates that “No personshall be …compelledin any criminal case tobe a witness againsthimself.• So criminals cannot be required to take thestand in a trial.

6th Amendment

• The 6th Amendment Guarantees a right to counsel.• In the past this meant that a defendant could hire and

attorney.• Since most criminals are poor they did not have counsel.• In the case of Gideon v. Wainwright (1963).• In Gideon, a poor man, was accused of a crime and

denied a lawyer.• The Court ruled unanimously that a lawyer was a

necessity in criminal court, not a luxury. The state mustprovide a lawyer to poor defendants in felony cases.

8th Amendment

• The 8th Amendment prohibits cruel and unusual punishment.

• The 8th is most often used in arguing death penalty cases? Some of the major death penalty cases are:

– Furman v. Georgia (1972) the Court ruled that the death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner.

– Mckleskey v. Kemp (1987) the Court rules that the death penalty – even when it appeared to discriminate against African Americans – did not violate the constitution.

– McKleskey v. Zant (1991) the Court made it more difficult for death row inmates to file repeated appeals.

– Hill v Mc Donough (2006)-Can appeal using civil rights

Right to Privacy

• The Supreme Court has also given protection to rights not specifically

enumerated.

• The Court has ruled that though privacy

is not specifically mentioned in the

Constitution, the Framers expected

some areas to be off-limits to government interference.

Right to Privacy

• Not in the Constitution

• Griswold v. Connecticut (1965)

• Roe v. Wade (1971)

• Yahoo and Google – search and e-mails?

• Cell phone conversations?

Right to Privacy

• In Roe v. Wade (1973) The Supreme Court ruled thata Texas law prohibiting abortion violated a woman's constitutional right to privacy.

• Since Roe, a number of other cases on abortion have been decided, in general they have limited abortion rights in some way.

• Webster v. Reproductive Health Services (1989) -upheld fetal viability tests

• Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - Pennsylvania was allowed to limit abortions as long as they did not pose 'an undue burden' on pregnant women.

Right to Privacy based on Sexual orientation

• The Court has declined to extend privacy rights toprotect homosexual acts.• In 1986, the Court upheld a Georgia law againstsodomy in a 5-4 decision in the case of Bowers v.Hardwick.• However, in 1996, the Court ruled that a state could notdeny rights to homosexuals simply on the basis ofsexual preference• 2003 Court stuck down Texas sodomy laws asunconstitutional- ruled they have “respect for theirprivate lives”

Right to PrivacyRight to Die

• In 1990, the Court heard the case Cruzan by

Cruzan v. Director, Missouri Department of

Health.

• In a 5-4 ruling, the Court rejected a right to

privacy in such cases but argued that living wills,

written when competent, were constitutional.

• In 1997, the Court ruled that there was no

constitutional right to assisted suicide.

Right v. Right??

• Most cases are not simple

• They often pit two rights against each other

• Ex. – freedom of press v. national security

• The process of extending the protections of the Bill of Rights by means of the Fourteenth Amendment to apply to the actions of the state governments is known as

A. judicial review

B. incorporation

C. broad construction

D. federalism

E. stare decisis

• The Supreme Court has ruled which of the following concerning the death penalty?

A. a state may not impose the death penalty on a noncitizen

B. Lethal injection is the only constitutionally acceptable method of execution

C. Females may not be executedD. The death penalty is not necessarily cruel and

unusual punishmentE. The death penalty violates the Fifth

Amendment of the Constitution

• Both Gitlow v New York and New York Times v Sullivan are US Supreme Court cases that dealt with which of the following amendments to the US Constitution?

A. First AmendmentB. Second AmendmentC. Fourth AmendmentD. Fifth AmendmentE. Fifteenth Amendment

• Brown v Board of Education of Topeka (1954) was a significant Supreme Court ruling because it

A. placed limitations on the federal government and affirmed the rights of people and of the states

B. made it illegal for members of the Communist party to be schoolteachers

C. upheld laws allowing for the internment of ethnic groups during wartime

D. applied the freedom of press provisions of the First Amendment to the states by means of the Fourteenth Amendment

E. held the “separate but equal” concept to be a violation of the equal protection clause of the Fourteenth Amendment

• According to the clear and present danger test, speech may be restricted

A. when in incites violent actionB. when it lacks a political purposeC. whenever the US is at warD. if it is deemed offensive to religious

organizationsE. if the writer or speaker is not a citizen of

the US