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Civil Liberties. “Your rights as Americans”. In this chapter we will cover…. 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

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civil liberties

Civil Liberties

“Your rights as Americans”

in this chapter we will cover
In this chapter we will cover…

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
Bill the Bulwark

Give an example of a civil liberty.

what are civil liberties
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 bulwark5
Bill the Bulwark

What US documents protect our

Civil Liberties?

founding documents
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
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
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
Bills of Attainder
  • Legislative act that punishes an individual without judicial trial
  • Court should decide guilt, not Congress
bill of rights
Bill of Rights
  • Free speech, press, assembly, petition, religion
  • Right to bear arms
  • Prohibits quartering soldiers
  • Restricts illegal search and seizures
  • 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 rights11
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 14 th amendment
+ 1…the 14th Amendment
  • 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 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.

14 th amendment
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
14 th amendment con t
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

incorporated.

the 1 st amendment freedom of religion speech press
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;…”

bill the bulwark16
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
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 1 st amendment
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 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 until

1848).

what establishment historically meant
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
US point of view of establishment
  • 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
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
Separationists vs. Accomodationists

How high should the wall

between church and state

be?

Accomodationists

contend that the state

should not be separate

from religion but rather

should accommodate it,

without showing

preference.

Separationists argue that a

high “wall” should exist

between the church and

state.

judicial review
Judicial Review
  • Marbury v. Madison
  • The power of the Supreme Court to judge the constitutionality of a law
legislative action
Legislative Action
  • Sometimes laws can guarantee rights
  • Ex. Civil Rights Act of 1964
the supreme court and the establishment clause
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
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

graduation

unconstitutional.

bill the bulwark27
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

use state funds to pay

parochial school teachers’

salaries.

• To be Constitutional the

challenged law must

1. Have a secular purpose

2. Neither advance nor inhibit

religion

3. Not foster excessive

government entanglement

with religion.

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.

free exercise clause
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
“See You At the Pole”
  • Student participation in

before - or after - school

events, such as "see you

at the pole," is

permissible.

• School officials, acting

in an official capacity,

may neither discourage

nor encourage

participation in such an

event.

equal access to schools
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 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 1 st amendment freedom of speech
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
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
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
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
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
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
Clear and Present Danger Test
  • Holmes sought to allow limits on the 1st

Amendment.

• 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 man

falsely shouting fire in a crowded

theatre.” Justice Holmes.

debs v us 1919
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 know40
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 Harding.

libel and slander
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 1 st amendment
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 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
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 was

aimed at restricting minors viewing pornography at

libraries

• 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 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
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 bulwark46
Bill the Bulwark

What types of speech is NOT

protected by the Constitution?

what types of speech are protected
What Types of Speech areProtected?
  • Symbolic speech--symbols, signs, and other

methods of expression. The Supreme Court has

upheld as constitutional a number of actions

including:

– 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
Protection—even when burning a flag
  • Burning the American

flag is a form of

protected symbolic

speech.

• The Supreme Court

upheld that right in a

5-4 decision in Texas

v. Johnson (1989).

what types of speech are protected pentagon papers
What Types of Speech areProtected? 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 protected50
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
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)

2 nd amendment
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, nor

have they heard many cases about it.

4 th amendment
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 “immediate

control.”

search and seizure
Search and Seizure
  • 4th Amendment
  • Freedom from “unreasonable search and seizure”
  • Prevent police abuse
  • Ex. Mapp v. Ohio
4 th amendment con t
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
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 defendants
Rights of Criminal Defendants
  • Are the due process rights and the

Procedural guarantees provided by the

Fourth, Fifth, Sixth, and Eighth Amendments

self incrimination
Self-incrimination
  • 5th Amendment
  • No one “shall be compelled to be a witness against himself.”
  • Miranda v. Arizona 1966
5 th amendment
5th Amendment
  • The 5th Amendment

states that “No person

shall be …compelled

in any criminal case to

be a witness against

himself.

• So criminals cannot

be required to take the

stand in a trial.

6 th amendment
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 must

provide a lawyer to poor defendants in felony cases.

8 th amendment
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
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 privacy65
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 privacy66
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.

right to privacy based on sexual orientation
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.

Hardwick.

• 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
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.

dr death dr jack kevorkian
Dr. Death…Dr. Jack Kevorkian

Assisted over 130 individuals in doctor helped suicide. Convicted and served 8 years “Dying is not a crime”…

right v right
Right v. Right??
  • Most cases are not simple
  • They often pit two rights against each other
  • Ex. – freedom of press v. national security