How would you decide?1. A city passes an ordinance to erect a Nativity scene

in a public park owned by the city. Can it be built?

2. The senior class of a high school votes to have the valedictorian say a prayer during graduation. Can he or she say the prayer out loud at graduation?

3. A man evades the police in a traffic stop, flees into his house, and is arrested in the living room. The police search the room and other rooms in the house including the attic where they find illegal drugs. Should the drugs be used against him in a trial?

How would you decide?4. A man leads the police to the body of his

victim without the police having read him is Miranda Rights. Should the body be used as evidence against him?

5.

Civil Liberties

The principles that protect our freedom to say or do

things without government involvement, even things the government prefers that we

not do

I. The Bill of RightsI. The Bill of RightsA. Not written in original Constitution

1. No limits on states’ activities

2. What does this tell us about the Founders?

B. The Balancing Act

1. Freedom and liberty on the one hand, and safety and security on the other

2. They are both American values

3. Bill of Rights is a list of competing rights and duties

I. The Bill of Rights I. The Bill of Rights ContinuedContinuedC. Why do Civil Liberties become major issues?

1. Rights in conflict (or right and a duty). Examples:

a) Freedom of Speech vs. Public Order

b) Pentagon Papers vs. Freedom of Press

2. Policy Entrepreneurs—requires a skilled leader; restricts liberties of some. Examples:

a) Sedition Act of 1798 (entrepreneurs=Federalists)

b) Espionage & Sedition Acts of 1917/18 (Atty General A. Mitchell Palmer)

c) Smith Act of 1940, Communist Control Act (Joe McCarthy)

3. Political Culture—principles that are in conflict

a) White, European culture; immigration; cultural differences

b) Pornography, religion

I. The Bill of Rights I. The Bill of Rights ContinuedContinuedD. The 1st Amendment—Two Clauses:

Freedom of Religion and Freedom of Expression

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress of

grievances.”

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress of

grievances.”

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress of

grievances.”

I. The Bill of Rights I. The Bill of Rights ContinuedContinuedD. The 1st Amendment—Two Clauses: Freedom of Religion and

Freedom of Expression1. Freedom of Expression—our rights have changed over time

a) Speech, press, assembly, petition

b) William Blackstone—freedom from prior restraint

c) 1798—Sedition Act— “false…malicious writing…”i. 1801—Jefferson pardons; believes states should punish

d) Espionage Act of 1917—restrictions on publications that “interfere;” “advocating treason”i. Limitations on speech intended to overthrow gov’tii. 1919—Charles Schenck v. US—leaflets iii. Oliver Wendell Holmes and “Clear and Present Danger” testiv. Conviction upheld by SC

e) 1925—Benjamin Gitlow v. NY—leafletsi. Bill of Rights protects people from state action, tooii. Incorporation doctrine—applying Bill of Rights to stateiii. 1937—Palko vs. Connecticut—certain rights apply to states…

f) Smith Act—Illegal to advocate the overthrow of the gov

g) 1969—Brandenburg v. Ohio—danger must be “imminent”

I. The Bill of Rights I. The Bill of Rights ContinuedContinued

h) Speech—Four types not protected:i. Libel—(written) must be false, damaging, and maliciousii. Obscenity—not protected; obscene materials may be

regulated by states (hard-core porn is obscene)• Supreme Court standards and tests• Miller vs. California• “contemporary community standards”

iii. Symbolic Speech—not as protected as real speech• Draft Cards—a law can incidentally restrict speech• Flag burning—Texas vs. Johnson; U.S. vs. Eichman• Constitutional Amendment failed

iv. False Advertising

i) Schoolsi. Hazelwood vs. Kuhlmeier (1988)

• Schools may limit free speech of school sponsored newspaper

ii. Other forms of speech on campus protected• Symbolic: Tinker vs. Des Moines (1969)

I. The Bill of Rights I. The Bill of Rights Continued Continued 2. Freedom of Religion—Two clauses: Free

Exercise and Establishment

Freedom of Religion clause of the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof…”

Freedom of Religion clause of the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof…”

Freedom of Religion clause of the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof…”

I. The Bill of Rights I. The Bill of Rights Continued Continued 2. Freedom of Religion—Two clauses: Free

Exercise and Establishment

a) Exercise Clause—most, but not all religious activities are protectedi. Protected: animal sacrifice, draft evasionii. Not protected: drugs, polygamy

b) Establishment Clausei. “wall of separation”—Jefferson; Hugo Blackii. Engel v. Vitale 1962

• No prayer in public schools

iii. Lemon vs. Kurtzman 1971 (aka Lemon Law)• Gov’t cannot pay parochial teacher’s salaries• Must be religiously neutral. Established test:

1) Secular purpose2) Effect does not advance or inhibit religion3) Does not foster gov’t entanglement in religion

I. Bill of Right—Due I. Bill of Right—Due ProcessProcessE. Due Process

1. Procedural—gov must apply same procedures for all citizens a) 4th (evidence gathering; search and seizure)

b) 5th Due Process (trial, self-incrimination)

c) 6th Rights on Trial (jury, confronted by witnesses, counsel)

d) 8th (no excessive bail or punishment)

2. Evidencea) Search Warrant and Probable Cause

b) Mapp v. Ohio (1961)i. Applied exclusionary rule to all states

c) Reasonable Searches and exceptions to exclusionary rulei. Search warrant—good faith exceptionii. Probable Cause—consentiii. Being Arrested—plain view, immediate control, hot pursuit,

vehicle search

I. Bill of Rights—Due I. Bill of Rights—Due ProcessProcess3. Miranda vs. Arizona (1966)

a) No self incrimination unless informed of rights

b) You may waive your rights

4. Dickerson vs. US (2000)

a) 1968 Federal Act to overrule Miranda ruled unconstitutional by SC

b) No involuntary confession