Civil Liberties

							Civil Liberties
  Government
    Unit 6
            Civil Liberties
• Civil liberties is the name given to
  freedoms that protect the individual
  from government.
• Civil liberties set limits for government
  so that it would not abuse its power and
  interfere with the lives of its citizens.
                 Civil Liberties
• Many of the world's democracies, such as the
  United States and Canada, have bills of rights
  or similar constitutional documents that
  enumerate and seek to guarantee civil
  liberties.
• Basic civil liberties include the:
  –   Freedom of assembly
  –   Freedom of religion
  –   Freedom of speech
  –   Due process
  –   The right to a fair trial and to privacy.
        The   1 st   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.
             1 st   Amendment
• Freedom of Religion
• The Establishment Clause
  – There shall be no “established state
    religion”
• The Free Exercise Clause
  – Freedom to worship as you please

• How can these clauses be reconciled?
     • It has proven to be difficult to satisfy everyone!
             1 st   Amendment
• Freedom of Religion Cases
  – Reynolds v United States 1878
    • Polygamy case concerning Mormon man who
      married 2 women.
    • Is this constitutional because of the Free Exercise
      Clause?
    • No!
        – Society is built upon the civil contract of
          marriage, the government can permissibly pass
          laws regulating marriage.
              1 st   Amendment
• Freedom of Religion Cases
  – West Virginia Board of Ed v Barnette 1943
    • Free Exercise Clause Case
    • Jehovah’s Witness case concerning the requirement
      to pledge to the American flag
    • Did the compulsory flag-salute for public
      schoolchildren violate the First Amendment?
    • Yes, citing the Free Exercise Clause
       – The students did NOT have to leave the room or pledge to
         the flag
                1 st   Amendment
• Freedom of Religion Cases
  – Engel v Vitale 1962
    • Required nondenominational school prayer in New
      York:
       – “Almighty God, we acknowledge our dependence upon
         Thee, and beg Thy blessings upon us, our teachers, and our
         country."
    • Is this constitutional?
    • NO!
       – By providing the prayer, New York had officially approved
         religion; this was found to violate the 1st Amendment’s
         Establishment Clause
       – Neither the prayer's nondenominational character nor its
         voluntary character saved it from unconstitutionality.
                 1 st   Amendment
• Freedom of Religion Cases
  – Abington School District v Schempp 1963
     • At the beginning of the school day, students who attended
       public schools in the state of Pennsylvania were required to
       read at least ten verses from the Bible. After completing these
       readings, school authorities required all Abington Township
       students to recite the Lord's Prayer.
     • The Court ruled that these required activities encroached on
       both the Free Exercise Clause and the Establishment Clause of
       the First Amendment since the readings and recitations were
       essentially religious ceremonies and were "intended by the State
       to be so."
                  1st Amendment
• Freedom of Religion Case
• Lemon v Kurtzman 1971
• The case involved controversies over laws in
  Pennsylvania and Rhode Island.
   – In Pennsylvania, a statute provided financial
     support for teacher salaries, textbooks, and
     instructional materials for secular subjects to non-
     public schools.
   – The Rhode Island statute provided direct
     supplemental salary payments to teachers in non-
     public elementary schools. Each statute made aid
     available to "church-related educational
     institutions."
                  Importance
• The Court ruled that public money for
  religious schools is not constitutional
• Created “The Lemon Test”- A 3 Prong Test
   – First, the statute must have a secular
     legislative purpose
   – Second, its principal or primary effect must
     be one that neither advances nor inhibits
     religion
   – Finally, the statute must not foster "an
    excessive government entanglement with
    religion”
                1 st   Amendment
• Freedom of Religion Cases
  – Wisconsin v Yoder 1971
     • Jonas Yoder and Wallace Miller, both members of the Old
       Order Amish religion, and Adin Yutzy, a member of the
       Conservative Amish Mennonite Church, were prosecuted
       under a Wisconsin law that required all children to attend
       public schools until age 16.
         – The three parents refused to send their children to such schools
           after the eighth grade, arguing that high school attendance was
           contrary to their religious beliefs.
     • Did Wisconsin's requirement that all parents send their
       children to school at least until age 16 violate the First
       Amendment by criminalizing the conduct of parents who
       refused to send their children to school for religious reasons?
            1 st   Amendment
• Freedom of Religion Cases
  – Yes!
  – In a unanimous decision, the Court held
    that individual's interests in the free exercise
    of religion under the First Amendment
    outweighed the State's interests in
    compelling school attendance beyond the
    eighth grade.
             1 st   Amendment
• Freedom of Religion Cases
  – Employment Div., Dept. of Human Resources
   Oregon v Smith 1990
    • Free Exercise Clause Case
    • Two Native Americans who worked as counselors
      for a private drug rehabilitation organization,
      ingested peyote -- a powerful hallucinogen -- as
      part of their religious ceremonies as members of
      the Native American Church.
    • As a result of this conduct, the rehabilitation
      organization fired the counselors who sued
      claiming that the Free Exercise Clause protected
      their religion.
            1 st   Amendment
• Decision and Importance
  – The Court disagreed and ruled that an
    individual's religious beliefs do NOT excuse
    him/her from compliance with an
    otherwise valid law prohibiting conduct
    that government is free to regulate.
     • Taxes, military service, payment of taxes,
       vaccination requirements, and child-neglect
       laws…
           1st and 14th Amendment
           **Incorporation**
• Gitlow v NY 1925
  – Overturned idea in Barron v Baltimore that
    the Bill of Rights can only be applied to the
    federal government and incorporated these
    rights into the 14th amendment
  – States were now prohibited from “impairing”
    citizen’s personal freedoms and Constitutional
    rights not just the federal government
    • Brought Bill of Rights under the protection of the
      14th Amendment
    • Guaranteed due process clause of 14th Amendment
               Incorporated or Not
                  Incorporated?
     The Bill of Rights is Selectively Incorporated
• 1st Amendment: Fully incorporated.
• 2nd Amendment: No Supreme Court decision on incorporation since
  1876 (when it was rejected).
   – New case this year concerning the District of Columbia
• 3rd Amendment: No Supreme Court decision; 2nd Circuit found to
  be incorporated.
• 4th Amendment: Fully incorporated.
• 5th Amendment: Incorporated except for clause guaranteeing criminal
  prosecution only on a grand jury indictment.
• 6th Amendment: Fully incorporated.
• 7th Amendment: Not incorporated.
• 8th Amendment: Incorporated with respect to the protection against
  "cruel and unusual punishments," but no specific Supreme Court ruling
  on the incorporation of the "excessive fines" and "excessive bail"
  protections.
           1st Amendment
   Freedom of Expression

• Freedom of Expression Cases
  – Tinker v Des Moines 1969
  – Does a prohibition against the wearing of
    armbands in public school, as a form of
    symbolic protest, violate the First Amendment's
    freedom of speech protections?
     • Black arm bands in schools to protest the
       Vietnam War were ok
                      1st Amendment
                Obscenity Cases
• Are there limits to free speech?
   – Roth v United States 1957
      • Facts of the Case
         – Roth operated a book-selling business in New York and was
           convicted of mailing obscene circulars and an obscene book in
           violation of a federal obscenity statute.
      • Importance
         – The Court held that obscenity was not "within the area
           of constitutionally protected speech or press."
         – The Court noted that the First Amendment was not
           intended to protect every utterance or form of
           expression, such as materials that were:
              without redeeming social
      • “Utterly
       importance."
• In 1964, Justice Potter
  Stewart tried to explain
  "hard-core" pornography, or
  what is obscene, by saying,
   – "I shall not today attempt
    further to define the
    kinds of material I
    understand to be
    embraced . . . but I know
    it when I see it . .”         He was only reading
                                    “the articles” 
                 1st Amendment
             Freedom of Press
• Hazelwood v Kuhlmeier, 1988
    • The Spectrum, the school-sponsored newspaper of
      Hazelwood East High School, was written and
      edited by students. The school principal found
      two of the articles in the issue to be inappropriate,
      and ordered that the pages on which the articles
      appeared be withheld from publication.
       – Cathy Kuhlmeier and two other former Hazelwood East
         students brought the case to court.
    • Did the principal's deletion of the articles violate
      the students' rights under the First Amendment?
                1st Amendment
            Freedom of Press
• No!
  – In a 5-to-3 decision, the Court held that the
    First Amendment did not require schools to
    affirmatively promote particular types of
    student speech.
  – School newspapers may be regulated by
    school officials
           4th Amendment
• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not
  be violated, and no Warrants shall issue, but
  upon probable cause, supported by Oath or
  affirmation, and particularly describing the
  place to be searched, and the persons or
  things to be seized.
             4 th    Amendment
• “Search and seizure” Cases
• Mapp v Ohio 1961
  – Search of home by police found illegal
    materials without warrant
  – Is this constitutional?
  – No!
  – The Exclusionary Rule established
     • Without warrant, items could not be used
       against Mapp
     • “Fruit of poisonous tree”
             4 th   Amendment
• “Search and seizure” Cases
• Katz v US, 1968
  – Katz ran an illegal gambling operation
  – Acting on a suspicion that Katz was transmitting
    gambling information over the phone to clients in
    other states, Federal agents attached an
    eavesdropping device to the outside of a public
    phone booth used by Katz
  – Was this wiretapping constitutional?
  – No!
     • Wiretaps need a court order or search warrant
     • 4th Amendment protects people not places
              5th Amendment

• No person shall be held to answer for a capital, or
  otherwise infamous crime, unless on a presentment or
  indictment of a Grand Jury, except in cases arising in
  the land or naval forces, or in the Militia, when in
  actual service in time of War or public danger; nor
  shall any person be subject for the same offence to be
  twice put in jeopardy of life or limb; nor shall be
  compelled in any criminal case to be a witness against
  himself, nor be deprived of life, liberty, or property,
  without due process of law; nor shall private property
  be taken for public use, without just compensation.
               5th Amendment Eminent Domain
    Kelo v City of New London, CT
• Facts of the Case
• New London, a city in Connecticut, used its eminent domain
  authority to seize private property to sell to private developers.
• The city said developing the land would create jobs and
  increase tax revenues.
• The property owners argued the city violated the Fifth
  Amendment's takings clause, which guaranteed the government
  will not take private property for public use without just
  compensation.
   – Specifically the property owners argued taking private
      property to sell to private developers was not public use.
• Question
• Does a city violate the Fifth Amendment's takings clause if the
  city takes private property and sells it for private development,
  with the hopes the development will help the city's bad
  economy?
            Importance of Kelo
• Conclusion
• No. In a 5-4 opinion delivered by Justice John Paul
  Stevens, the majority held that the city's taking of
  private property to sell for private development
  qualified as a "public use" within the meaning of the
  takings clause.
• The city was not taking the land simply to benefit a
  certain group of private individuals, but was following
  an economic development plan.
   – The takings here qualified as "public use" despite the fact that
     the land was not going to be used by the public.
• The Fifth Amendment did not require "literal" public
  use, the majority said, but the "broader and more
  natural interpretation of public use as 'public purpose.'"
             6th Amendment
• “In all criminal prosecutions, the accused shall
  enjoy the right to a speedy and public trial, by an
  impartial jury of the State and district wherein the
  crime shall have been committed, which district
  shall have been previously ascertained by law, and
  to be informed of the nature and cause of the
  accusation; to be confronted with the witnesses
  against him; to have compulsory process for
  obtaining witnesses in his favor, and to have the
  Assistance of Counsel for his defense.”
          5th and 6th Amendments
      Fair Trial/Due Process Case
• Sheppard v Maxwell (1966)
  – After suffering a trial court conviction of second-
    degree murder for the bludgeoning death of his
    pregnant wife, Samuel Sheppard challenged the
    verdict as the product of an unfair trial.
  – Sheppard alleged that the trial judge failed to
    protect him from the massive, widespread, and
    prejudicial publicity that attended his prosecution.
     • Was there too much pre-trial publicity for
       Sheppard to receive a fair trial?.
          5th and 6th Amendments
      Fair Trial/Due Process Case
• Yes!
• In an 8-to-1 decision the Court found that
  Sheppard did not receive a fair trial.
• Noting that although freedom of expression
  should be given great latitude, the Court held
  that it must not be so broad as to divert the
  trial away from its primary purpose:
  adjudicating both criminal and civil matters in
  an objective, calm, and solemn courtroom
  setting.
    5 th   and   6 th   Amendments
• Attorney Rights/Due Process Cases
  – Gideon v Wainwright 1963
    • Right to an attorney
  – Escobedo v Illinois 1964
    • Right to speak to an attorney
  – Miranda v Arizona 1966
    • Miranda rights must be read
        8 th   Amendment

• Excessive bail shall not be
  required, nor excessive fines
  imposed, nor cruel and unusual
  punishments inflicted.
         8 th   Amendment
• Is the death penalty “cruel and
  unusual punishment”?
• Furman v Georgia, 1972
• Gregg v Georgia, 1976
     Furman v Georgia, 1972
• Facts of the Case
• Furman was burglarizing a private home when a
  family member discovered him.
   – He attempted to flee, and in doing so tripped and fell.
   – The gun that he was carrying went off and killed a resident of
     the home.
• He was convicted of murder and sentenced to death.
• Question
• Does the imposition and carrying out of the death
  penalty in these cases constitute cruel and unusual
  punishment in violation of the Eighth and Fourteenth
  Amendments?
               Importance
• Conclusion
• Yes. The imposition of the death penalty in
  this cases constituted cruel and unusual
  punishment and violated the Constitution.
• The Court's decision forced states and the
  national legislature to rethink their statutes
  for capital offenses to assure that the death
  penalty would not be administered in a
  capricious or discriminatory manner.
             Gregg v Georgia
• Facts of the Case
• A jury found Gregg guilty of armed robbery and
  murder and sentenced him to death.
   – On appeal, the Georgia Supreme Court affirmed the death
     sentence except as to its imposition for the robbery
     conviction.
• Gregg challenged his remaining death sentence for
  murder, claiming that his capital sentence was a "cruel
  and unusual" punishment that violated the Eighth and
  Fourteenth Amendments.
• Question
• Is the imposition of the death sentence prohibited
  under the Eighth and Fourteenth Amendments as
  "cruel and unusual" punishment?
              Gregg v Georgia
• Conclusion
• No. In a 7-to-2 decision, the Court held that a
  punishment of death did not violate the Eighth and
  Fourteenth Amendments under all circumstances.
• In extreme criminal cases, such as when a defendant
  has been convicted of deliberately killing another,
  the careful and judicious use of the death penalty
  may be appropriate if carefully employed.
   – Moreover, the Court was not prepared to overrule the
     Georgia legislature's finding that capital punishment serves
     as a useful deterrent to future capital crimes and an
     appropriate means of social retribution against its most
     serious offenders.