Civil Liberties

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					    Civil Liberties

―Your rights as Americans‖
               In this chapter we will

1. The foundations of civil liberties
2. The Bill of Rights
3. First Amendment: Freedom of Religion
4. First Amendment: Freedom of Speech
  and Press
5. The Right to Keep and Bear Arms
6. The Rights of Criminal Defendants
7. The Right to Privacy
             Bill the Bulwark
Give an example of a civil liberty.
               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.
           Bill the Bulwark
What US documents protect our
Civil Liberties?
                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
             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,
2. Right to bear arms
3. Prohibits quartering soldiers
4. Restricts illegal search and seizures
5. 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
• The Bill of Rights was designed to limit the powers of
the national government.
• In 1868, the Fourteenth Amendment was added to the
Constitution 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
– 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 states
could not abridge free speech due to the 14th Amendment's
   Due Process Clause.
• This was the first step in the development of the
incorporation doctrine whereby the Court extended Bill
of Rights protections to restrict state actions.
• Not all of the Bill of Rights has been incorporated. For
example the 2nd and 3rd amendments have not been
                           The 1st
                Amendment….Freedom of
                 Religion, Speech & Press
• The First Amendment states that:
  “Congress shall make no law
  1. respecting an establishment of
  2. or prohibiting the free exercise
            Bill the Bulwark
What civil liberties are protected
by the 1st Amendment? What was
the founding fathers‘ point of
view about the 1st Amendment?
            Did Ya Know?
The 1st Amendment was actually the 3rd—
 Congress originally voted that the 1st
 Amendment should be about voting
 themselves raises and the second
 unlimited terms of office—go figure…
                  The Founding Fathers &
                    the 1st Amendment
• While not all of the founders endorsed religious
freedom for everyone, some of them notably
Jefferson and Madison, cherished the right of all
individuals to believe as they pleased. (Tommy J was a
• 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 until
               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
– the Nation‘s leader usually appoint the
  leading clerics.
– often other religions are often excluded.
                 US point of view of
• They asked, ―Should
we establish a religion
or not?‖
• Thomas Jefferson
wrote that there
should be ―a wall of
separation between
church 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.
How high should the wall
between church and state

                                   contend that the state
                                   should not be separate
Separationists argue that a        from religion but rather
high ―wall‖ should exist           should accommodate it,
between the church and             without showing
state.                             preference.
                 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 Court
continued its
unwillingness to allow
prayer in public
schools by finding the
saying of prayer at a
middle school
            Bill the Bulwark
What does the Lemon Test refer to?
What S. Ct. case most closely
relates to this issue?
                         Lemon v. Kurtzman—i.e.
                            the Lemon Test
• In 1971, the Court ruled that
New York state could not
                                  • In 1980, this Lemon
use state funds to pay            Test was used to
parochial school teachers‘
salaries.                         invalidate a Kentucky
• To be Constitutional the
challenged law must
                                  law that required the
1. Have a secular purpose         posting of the Ten
2. Neither advance nor inhibit
religion                            Commandments in
3. Not foster excessive
government entanglement             public school
with religion.                      classrooms.
                   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
• Nonetheless,                       the Court has made it
   clear that the                    government must remain
   NEUTRAL                            toward religion.
                  ―See You At the Pole‖
• Student participation in
before - or after - school
events, such as "see you
at the pole," is
• School officials, acting
in an official capacity,
may neither discourage
nor encourage
participation in such an
                Equal Access to Schools
• 1984 Congress passed Equal Access Act public
  high schools receiving gov‘t funds must allow
  student groups to meet regardless of religious or
  political content if other non-curricular clubs also
• 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 to
speak 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
• 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
• 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
• 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
• 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 1st
• Justice Holmes defined the “Clear and
  Present Danger” test in the Schenck
• “Even the most stringent protection of
  free speech would not protect a man
  falsely shouting fire in a crowded
  theatre.” 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.
                 Did Ya Know???
• While serving his 20 year prison sentence
  he received nearly one million votes in the
  1920 presidential election!
– Debs was later pardoned by President
                   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 proved
   NY Times v Sullivan 1964
                  Obscenity and the 1st
• 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 he
  couldn't define obscenity, but "I know it when I
  see it." The ambiguity of definition still exists
  and is becoming even more problematic with
  the Internet.
• No nationwide consensus exists that offensive
  material 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
   – BUT Court struck down Child Pornography Prevention
   Act in Ashcroft v Free Speech Coalition. The act was
   aimed at restricting minors viewing pornography at
• 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
• 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) interest
  2. 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
             Bill the Bulwark
What types of speech is NOT
protected by the Constitution?
                 What Types of Speech are
• Symbolic speech--symbols, signs, and other
methods of expression. The Supreme Court has
upheld as constitutional a number of actions
– An example of protected symbolic speech would be
the right of high school students to wear armbands to
protest the Vietnam War (Tinker v. De Moines
Independent Community School District, 1969).
– flying a communist red flag
– burning the American flag
             Protection—even when
                  burning a flag
• Burning the American
flag is a form of
protected symbolic
• The Supreme Court
upheld that right in a
5-4 decision in Texas
v. Johnson (1989).
                 What Types of Speech are
                 Protected? Pentagon Papers
• Prior Restraint – a government action that
prevents material from being published.
• The Supreme Court has generally struck
down prior restraint of speech and press
(Near v. Minnesota, 1931).
• In NYT v. United States (1971) the Court
ruled that the publication of the top-
secret Pentagon Papers could not
be blocked.
           What Types of Speech are
• Hate Speech – hate speech is the new
• 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
• Incidents in which reprimanded students
   have challenged the college‘s code of
   speech have been challenged successfully
   by the American Civil Liberties Union
                    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
• 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, nor
   have they heard many cases about it.
3rd Amendment…hmmm
                       4th Amendment
• The 4th Amendment‘s general purpose
– is to deny the government the authority to make general
• 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 ―immediate
             Search and Seizure
• 4th Amendment
• Freedom from ―unreasonable search and
• 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
                 Rights of Criminal
• Are the due process rights and the
Procedural guarantees provided by the
Fourth, Fifth, Sixth, and Eighth Amendments
• 5th Amendment
• No one ―shall be compelled to be a
  witness against himself.‖
• Miranda v. Arizona 1966
                     5th Amendment
• The 5th Amendment
states that ―No person
shall be …compelled
in any criminal case to
be a witness against
• So criminals cannot
be required to take the
stand in a trial.
                         6th Amendment
• The 6th Amendment Guarantees a right to counsel.
• In the past this meant that a defendant could hire and
• 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 must
   provide a lawyer to poor defendants in felony cases.
                        8th Amendment
• The 8th Amendment prohibits cruel and unusual
• 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
– 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
• 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
                  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 that
   a 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.
State by State Abortion Restrictions
                    Right to Privacy based
                    on Sexual orientation
• The Court has declined to extend privacy rights to
protect homosexual acts.
• In 1986, the Court upheld a Georgia law against
sodomy in a 5-4 decision in the case of Bowers v.
• However, in 1996, the Court ruled that a state could not
deny rights to homosexuals simply on the basis of
sexual preference
• 2003 Court stuck down Texas sodomy laws as
unconstitutional- ruled they have ―respect for their
private lives‖
                       Right to Privacy
                         Right to Die
• In 1990, the Court heard the case Cruzan by
   Cruzan v. Director, Missouri Department of
• 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.
                Dr. Death…Dr. Jack

Assisted over 130 individuals in doctor helped suicide. Convicted
and served 8 years ―Dying is not a crime‖…
                  Right v. Right??
• Most cases are not simple
• They often pit two rights against each other
• Ex. – freedom of press v. national security