CIVIL LIBERTIES

1. CIVIL LIBERTIES

2. FIRST AMENDMENT Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech,or the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.

3. Background to Civil Liberties • Framers wanted 3 things. • Limit federal powers and protect the state constitutions. • Wanted the Constitution to proclaim what the federal government could do. • Not what it couldn’t do. • Anything else, left to the _________.

4. Background to Civil Liberties Continued… • Historically contentious for 3 reasons. • Bill of Rights is contradictory. • Media’s right to broadcast a trial vs. an individual’s right to a fair trial. • Casey Anthony? George Zimmerman? • Government officials are good at restricting the rights of a minority in times of ‘emergency’ • Cold War- Cong required Communists to register • Immigrants and racial minorities create(d) cultural conflicts. • Jews vs. a town’s nativity scene. English as the national lang?

5. Selective Incorporation • 14th Amendment: created the possibility that the B of R would apply to states. • Based on the “due process clause” • Gitlow v. NY (1925): a person’s fundamental rights are protected from infringement from the states because of 14. • Most of the rights have been “incorporated” (applied to the states). • Most recent, 2nd with gun ownership in D.C. and Chicago.

6. First Amendment questions • What constitutes the establishment of religion? What is the wall of separation ? • What is the abridgement of free exercise ? • How far does freedom of speech go? Is symbolic speech (non-spoken) also protected? • Is obscenity protected ? What is clear and present danger ?

7. First Amendment questions… • Free press and the right to know - what is prior restraint ? - is libel protected? - is the electronic media covered? • What is peaceable assembly ? • How do you petition the government ?

8. First Amendment cases: Religion Establishment Clause • Everson v. Board of Education (1947) prohibits laws that benefit religion - must be a “wall of separation” * incorporates Establishment Clause • Engel v. Vitale (1962) school prayer • Abington School District v. Schemp (1963) no bible reading – was a religious exercise by the state

9. Establishment Clause • Lemon v. Kurtzman (1971) *Lemon Test ( 3 part precedent) 1. policy must be secular 2. primary effect neither advances nor inhibits religion 3. must avoid “excessive entanglement” of government & religion • Wallace v. Jaffree (1985) moment of silence- intent of the law was to restore prayer in school

10. Establishment Clause • Lynch v. Donnelly ( 1984) religious displays ok if contain some secular symbols (Rehnquist Ct & Ten Commandments 2005: KY case finds display in courtroom lacks secular purpose TX case allowed outdoor display as a balance of freedom and tradition) • Lee v. Weisman (1992) graduation prayers are a coercion of religion • Santa Fe School District v. Doe (2000) prayer at a high school football game is coercion

11. Establishment Clause • Rehnquist Court - moving away from the “wall of separation” between religion & gov’t - opinions are now allowing the encouragement of religion but not the coercion or the endorsementof it

12. Free Exercise • Minersville v. Gobitis (1940) overturned by W. Va. V. Barnette (1943) flag salute – cannot be forced to salute (also applied to pledge of allegiance currently in the Newdow case) • Church of Lukimi Babalau Aye v. Hialeah (1993) religious animal sacrifice & substantive due process

13. Freedom of the Press • Near v. Minnesota (1931) no prior restraint * Incorporates free press to all states • New York Times v. U.S. (1971) “Pentagon Papers” – national security v. public’s right to know • Hazelwood v. Kuhlmeier (1988) prior restraint of student press by school administration allowed

14. Freedom of Speech Non-protected Speech • Schenck v. U.S. (1919) speech that presents a “clear & present danger” • Gitlow v. New York (1925) subversive speech is not protected from government regulation * Incorporates freedom of speech to the states

15. Freedom of Speech • Not protected… • Libel (written defamation) and slander (spoken) • Must be with malice, reckless disregard for the truth, with knowledge the words are false. • Some obscenity • Porn stores, theaters given to towns. Internet, TV, generally protected. • Simulated child pornography protected.

16. Freedom of Speech • Symbolic speech is NOT protected when it involves an illegal act • Burning a draft card not OK, burning flag OK

17. Freedoms of Speech Non-protected Speech • Dennis v. U.S. (1951) Smith Act and seditious speech to overthrow government • Brandenburg v. Ohio (1969) speech must be directly related to imminent lawless action to be suppressed not just advocacy of action (KKK case)

18. Freedom of Speech Non-protected Speech • Miller v. CA. (1973) test for obscenity in speech: If the community standards find that: • the average person would find the speech or work appeals only to prurient interests • the work is patently offensive 3. the work taken as a whole lacks serious literary, artistic, political, or scientific value

19. Freedom of Speech Non-protected Speech • Bethel v. Fraser (1986) first amendment does not prevent school officials from banning lewd speech that would undermine the school’s basic educational mission

20. Freedom of Speech Protected Speech includes written, spoken, symbolic speech & assembly and speech that you hate • Buckley v. Valeo (1976) campaign contributions to own campaign are free speech • Reno v. ACLU (1997) struck down internet law which banned child access to pornography as a violation of adult’s first amendment rights

21. Freedom of Speech Protected Symbolic Speech • R.A.V. v. City of St. Paul (1992) cross burning is not one of the categories of speech that can be limited • Tinker v. Des Moines (1969) student silent protest with armbands is not disruptive to the educational process

22. Freedom of Speech Protected Symbolic Speech • Texas v. Johnson (1989) flag burning is protected under this amendment (Court ruled on it twice) • Schenck v. Pro Choice Network (1997) floating buffer zones around abortion clinics offend free speech

23. Second Amendment 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.

24. Second Amendment • U.S. v. Miller (1939) registration of sawed-off shotguns does not violate the Second Amendment • Printz v. U.S. (1997) federal government (via Brady Bill) cannot compel states to administer a federal regulatory program (background check) – really a federalism issue

25. Third Amendment No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law. * Never been the subject of a Supreme Court decision except in support of the 9th Amendment in Griswold v. Conn.

26. Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effectsagainstunreasonable searches andseizures, shall not be violated; and nowarrantsshall issue but uponprobable cause, supported by oath and affirmation,andparticularly describing theplace to besearched, and thepersons orthings to beseized.

27. Fourth Amendment Questions • What is probable cause ? • When is a warrantless search allowed ? • What is a reasonable search ? • What the exclusionary rule?

28. Fourth Amendment Probable Cause is where the facts & circumstances within an officer’s knowledge , and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed. • must be decided by a neutral magistrate • must describe in detail the place , person & things

29. Fourth Amendment • Reasonable expectation of privacy - upheld constitutionally and generally includes the physical body, the home & immediate area around it and the office. Generally governs searches under the fourth amendment. • Reasonable searches would be with a warrant or without a warrant if there is probable cause.

30. Fourth Amendment • What types of searches could be warrantless reasonable searches ? - sobriety checkpoints - border crossings / airports - drug testing - student searches - consent searches which must be authorized and not coerced

31. Fourth Amendment • When is a warrant needed? - an arrest in a person’s home - search of a home or office • When is a warrant not needed? (warrantless search) - search incident to lawful arrest - plain view – visible evidence - hot pursuit – follow into building - automobiles – less expectation of privacy - exigent circumstances - emergency

32. Fourth Amendment • The exclusionary rule was defined in the case Weeks v. U.S. (1914) which said that if evidence violated the Fourth Amendment and was illegally seized it could not be admitted at trial. - this continues to be controversial as can be seen in some Supreme Court interpretations

33. Fourth Amendment Expectation of Privacy Katz v. U.S. (1967) - there can be no use of wiretaps without a warrant – even in a phone booth this overruled Olmstead v. U.S. (1928) – 4th Amend. Protects the people (Katz) not the place (phone booth) (Current Issue: cell phones & Patriot Act – are the ‘people’ protected?)

34. Fourth Amendment Warrantless Searches • Wolf v. Colorado (1949) - *Incorporated no unreasonable search & seizure clause • Mapp v. Ohio (1961) – must have probable cause or evidence can be excluded (*Incorporated the exclusionary rule) • Terry v. Ohio (1968) – stop & frisk search for weapons is allowed • Minnesota v. Dickerson (1993) – frisk also allowed for contraband

35. Fourth Amendment Warrantless Searches • Chimel v. CA (1969) – search incident to arrest is limited to area under the person’s immediate control in ‘search incident to arrest’ • U.S. v. Leon (1984) – police can search on “good faith” that info given for probable cause is correct (good faith exception) • New Jersey v. T.L.O. (1985) – schools only need reasonable suspicion not probable cause for a search

36. Fourth Amendment Warrantless Searches (drugs) • Skinner v. Railway Laborers (1989) – federal transportation workers can be drug tested due to assurance of safety of railroads * Chandler v. Miller (1997) – but not election candidates • Vernonia v. Acton (1995) – student athletes can be tested / safety/ diminished expectation of privacy • Potowatamie v. Earls (2002) – all student activities participants – diminished expectation of privacy

37. Fourth Amendment Warrantless Searches • U.S. v. Ramirez (1998) – “good faith” exception to the “knock” rule Vehicle Searches • U.S. v. Ross (1982) – with probable cause to suspect drugs/contraband may search entire car (the automobile exception)

38. Fourth Amendment Vehicle Searches • CA. v. Acevedo (1991) – diminished expectation of privacy for cars– also search of container in trunk is allowed with probable cause • Maryland v. Wilson (1997) – can search passengers • Wyoming v. Houghton (1999) – can search personal items

39. Fourth Amendment Vehicle Searches • Knowles v. Iowa (1998) – search not allowed w/out arrest or probable cause • 2005: Illinois v. Caballes – drug dogs & traffic stop Public Vehicle Searches • Fl v. Bostick (1991) – ok to search passengers luggage with consent • Bond v. U.S. (2000) – manipulation of luggage is not ok

40. Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of an indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger; not shall anyone be subject for the same offense to be twice put in jeopardy life and limb; nor shall be

41. Fifth Amendment 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.

42. Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy & 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 witness against him; to have

43. Sixth Amendment compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

44. Fifth & Sixth Amendments • What constitutes self-incrimination? • What is covered under due process ? • Can a trial be too speedy & public to be fair? • How must you beinformed of charges ? • What constitutes right to counsel ?

45. Fifth & Sixth Amendments • Escobedo v. Illinois (1964) – information obtained unlawfully in an interrogation (ie. Coerced confession) cannot be used in court • Miranda v. Arizona (1966) – set procedural safeguards after arrest (“you have the right to remain silent…”) • Davis v. U.S. (1994) – request for lawyer must be clear

46. Fifth & Sixth Amendments • Dickerson v. U.S. (2000) – applies Miranda to custodial interrogation in federal & state-Miranda may not be overruled by act of Congress • Missouri v. Seibert (2003) – ok to admit statements made before Miranda warning if made again after warning • Kelo v. New London(2005)– eminent domain seizure for ‘public good’

47. Fifth & Sixth Amendments • Powell v. Alabama (1932) - * Incorporated right to counsel in capital cases • Gideon v. Wainwright (1963) – overturned Betts v. Brady and gave right to counsel for all felony cases – *Incorporated right to counsel in felony cases to states *in forma pauperus • Korematsu v. U.S. (1944)– during wartime gov’t may take extreme measures (that deny due process) • Sheppard v. Maxwell (1966)– if a judge does not have control of the courtroom there cannot be a fair trial ( ‘The Fugitive’)

48. Seventh Amendment In suits in common law, where the controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be reexamined in any court of the Unites States other than according to the rules of common law.

49. Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

50. Eighth Amendment Cruel & Unusual Punishment (Death Penalty) • Robinson v. CA (1962)- * Incorporates the cruel & unusual punishment clause • Furman v. GA (1972)– application of the death penalty in GA is cruel & unusual (all states suspend death penalty for four years) • Gregg v. GA (1976)– arbitrary application of the death penalty corrected – penalty re-established in most states