Civil Liberties
•Individual rights or freedoms that government may not take away or infringe upon
•Example, free speech
•Versus:
•Civil Rights – group rights –
•To be treated equally or brought up to equality with other groups
Race, Gender, etc
BILL OF RIGHTS First AmendmentSecond AmendmentThird AmendmentFourth AmendmentFifth AmendmentSixth AmendmentSeventh AmendmentEighth AmendmentNinth AmendmentTenth Amendment
•Founders very familiar with use of government power to stifle freedom
–Pilgrims came here for religious freedom
–Britain put debtors in prison
–Colonial governors dissolved colonial legislatures if complained about British policies
Necessary for Democracy
•Majority rule is meaningless if the party out of power does not have free speech or press to persuade voters and maybe become the majority next election
BUT ALSO A Limit On Democracy
•If government policies determined by majority rule
Restricting what government may do
Means restricting what the majority may do
•There is such a thing as the Tyranny Of The Majority
•Balancing Democracy & Liberty often termed The Paradox of Democracy
The purpose of the Constitution and Bill of Rights is to place personal liberty beyond the reach of government
Individual Liberty a Constant Source of Political Battles from 1789 to the Present
•Security versus Liberty
–More of 1 necessarily means less of the other
•Right of an individual or small group to ignore, even offend, the will of the majority
–burning the flag as a political protest
To be consumed, liberty must be given
•Views of appropriate individual versus majority rights change from generation to generation
•Changing experiences, values, and social complexity
•Changing technology
As with many parts of the Constitution, Civil Liberties are sometimes vague and need interpretation
•Justice Oliver Wendell Holmes: Freedom of speech does not mean the right to yell “FIRE” in a crowded theater.”
•Job of the Supreme Court
•Decisions over individual independence versus majority rule often difficult
•Take the form of doctrines / tests / standards
Constitutional Protections Limited
•Amendment 1: Congress shall make no law regarding (religion, speech, press)
•“CONGRESS” not a restriction on employers, corporations, or other non-governmental entities.
•Originally restricted only the national government
•Changed with the 14th amendment after the Civil War: “No state shall deprive any person of life, liberty, or property without due process of law.”
Individual rights can be expanded by legislative action
•Americans with Disabilities Act
•Ban on employment discrimination due to age, religion, gender
First Amendment Rights
•“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.”
Freedom of Religion
•Establishment Clause
–“Congress shall make no law respecting an establishment of religion….”
•Exercise Clause
–“…or prohibiting the free exercise thereof.”
Establishment clause
•What is meant by an “establishment” of religion?
•Narrowest view – no official state denomination
•Broadest view – Jefferson’s “wall of separation between church and state”
•Governments can pass laws supporting religion
–State subsidies for textbooks used by religious elementary and secondary schools
•Or restricting religion
–Outlawing polygamy, practice of early Mormon Church
•What are the guidelines?
Establishment Clause The Lemon Test
•Lemon V. Kurtzman (1971)
–Recall tests / doctrines / standards
Lemon Test
•Government can pass laws affecting religion IF three conditions are met:
–1. must have a secular purpose
–2. Primary effect must be to neither advance nor inhibit religion
–3. must not foster excessive government entanglement with religion
Must have a secular purpose
•Early moment of silence laws and legislative intent
•Nativity scenes on government property
•Schools displaying portraits of religious figures
Remember these restrictions deal with government only
•Private religious schools can require prayer or daily chapel of students
•Or set religious requirements on faculty
•Private employers can impose moment of silence laws
Primary effect must be to neither advance nor inhibit religion
•School prayer
–Teachers are government employees
–All forced to pay taxes to support their salaries, school buildings, etc.
–Students forced to attend
Must not foster excessive government entanglement with religion
•Non-denominational prayer during graduation ceremonies
Free Exercise Clause
•If public facilities available to any community group must be available to all including religious groups
•U. of Virginia student sponsored religious newspaper
•Hialeah, Florida banning slaughtering of animals for religious purposes
Establishment & Free Exercise
•Restricts what majority may use power of government to do
•Belief versus behavior
•Children versus adults
–“In God We Trust” on currency
–Opening public meetings with a prayer
–Federal grants and loans for students attending Liberty University, SMU, Baylor, LCU
Speech
•When government may or may not restrict
•Clear and Present Danger rule
–Does not constitute a “heckler’s veto”
•Preferred Position doctrine
–All speech presumed constitutional unless government overwhelmingly demonstrates a public need to restrict speech
–AND that restricting speech the only way to accomplish the need
Contemporary Issue: Hate Speech
•Racial, sexual, religious epithets
•As it sounds, hate speech fosters hate for members of the targeted group
•Promotes friction, bad feelings, perhaps even violence
•Can this be treated as a special type of speech more open to restriction than other types of speech?
•University of Michigan, 1988
•Series of racial incidents prompted university to ban:
•Any behavior, verbal or physical, that stigmatized an individual on the basis of race, ethnicity, religion, sex, sexual orientation, ancestry, age, marital status (etc.), or created an intimidating, hostile, or demeaning environment for educational purposes.
•U.S. Supreme Court: The University did not have the right to:
•“establish an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with the ideas or messages sought to be conveyed.”
•St. Paul, MN, banned abusive language and display of swastika or burning crosses “to arouse anger on the basis of race creed, religion, or gender.
•Court overturned because these expressions not banned for other reasons.
•Antonin Scalia (very conservative justice):
–Apparently aspersions on a person’s mother in favor of racial tolerance would be OK under the St. Paul ordinance.
•It is a bedrock principal of the first amendment that government (national, state, city, public university, etc.) may not prohibit the expression of an idea just because if finds that idea disagreeable.
Civil Liberties are Tough
•To be available to us, we must guarantee them for others
•Those others, as Justice Frankfurter said, are often not very nice people.
•They often hurt. If not, they are of little value
–We are allowing only what we like
•Civil liberties require drawing very careful lines
–Necessary, but no more than that
Lutheran Pastor Martin Niemöller, 1946
•"THEY CAME FIRST for the Communists,
•and I didn't speak up because I wasn't a Communist.
•THEN THEY CAME for the trade unionists,
•and I didn't speak up because I wasn't a trade unionist.
•THEN THEY CAME for the Jews,
•and I didn't speak up because I wasn't a Jew.
•THEN THEY CAME for me
•and by that time no one was left to speak up."
Symbolic Speech
•At time Constitution was written, speech was personal
•Changing technology provides new ways to express ideas.
•Court has decided what founders really meant was freedom of expression
•This includes symbols used to express ideas, or symbolic speech.
Symbolic speech
•In 1965, Tinker wore a black armband to school in order to express opposition to Vietnam War and was suspended
•Supreme Court decided 7-2 that the school had violated her 1st Amendment rights
•Texas vs. Johnson – burning the American flag
–Legislative laws against “defacing” or “denigrating” the flag
–Can the practice be separated from the message being communicated?
–Is the effect to ban a behavior or a message?
Campaign Contributions
•Campaign contributions have been defined as expressive conduct or symbolic speech
–Makes it difficult (though not impossible) to regulate
•Judges disagree on treating money as speech, but that is current law
–A political issues in selecting judges.
•January 2010
–Corporations may use corporate money for campaign ads
Truth vs. Falsehood
•Truth vs. Falsehood
•Nothing in the first amendment draws a distinction between true and false speech
•Nor do we want government deciding what is “true” and fit to be communicated
Libel and Slander
Libel & Slander: Individual (not government) Restrictions
•Libel (written) and slander (spoken)
•Individuals (not government), may sue another individual if statements made about them were (a) false and (b) damaging.
•Not just offensive, but must have produced damage
Libel, Slander & Public Figures
•The burden is higher if you are a “public figure” (politician, actor, in the news)
•In addition to false and damaging, statements must also have been made with “actual malice” or a “reckless disregard of the truth.”
•A tough standard so most public figures ignore rather than filing suit.
•“I couldn’t say it if it wasn’t true” is a completely false statement.
Freedom of the Press
•Primary principle is “No Prior Restraint.”
–Prior restraint: Government action to prevent material from being published
–Censorship
•After the fact MAY be OK
–If government can prove material was libelous, obscene, or otherwise unlawful it can punish publisher after publication.
In very rare cases of national security can ban publication in advance
•Most news organization will not publish true national security information, but often disagree with government over what is national security versus political embarrassment
Pentagon Papers Case
Restrictions differ by medium
•Press
•Vs. airwaves
•Vs. cable
•Vs. internet
Shield Laws
•Reporters claim freedom of the press means little without their ability to learn what is going on.
•They argue they must protect the anonymity of people giving them sensitive information.
•Courts have NOT accepted this as a constitutional right, particularly if the information is relevant to a civil or criminal trial.
•If reporters refuse to name sources during a trial, judge may fine or jail them.
•Some states have passed shield laws, but not all and not the federal government.
Freedom of Assembly
•Or the right of the people peaceably to assemble and petition the Government for a redress of grievances.
•Government can regulate assemblies to maintain public order
–Avoid violence
–Keep group from undue interference with traffic or access to businesses and public buildings
Must obtain permit for parades / use of public streets or parks
But regulation cannot affect content or ability to communicate message
Amendment 2
•“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.”
•What does this mean?
•It says “the people”, but also says its purpose is for militias
•Federalist Papers (paraphrase):
•Citizen bearing arms form a barrier against tyranny
•But in colonial times citizens bearing arms were organized into state militias – often the entire adult male population of a state
•Original intent was to prevent new national government from disarming state militias (currently, state national guards)
•Retiring Chief Justice Warren Burger (moderate conservative) speech in 1991
the second amendment
“has been the subject of one of the greatest pieces of fraud, I repeat the word “fraud”, on the American public.”
District of Columbia v. Heller, 2008
•For first time ever, Supreme Court declared the second amendment was an individual right to keep and bear arms.
•But, multiple questions remain unanswered.
•Supreme Court decides one case at a time.
•Over multiple cases, the meaning of the law will be clarified.
•Through most of our history the “right” to bear arms has been more a political protection than a legal one.
Rights of the Accused
•Why?
–Founders very familiar with government power, including fines and imprisonment, being used to stifle dissent
•Civil Liberties biased in favor of the individual
–Make it hard for government to deprive persons of liberty
–Adage: “Better for 10 guilty persons to go free than for one innocent person to be jailed.
•1973-2009,
–138 individuals on death row later exonerated
•January 2003
–Illinois Governor George Ryan commuted all death sentences to life terms
–Doubted accuracy of convictions
Due Process Rights
•Substantive Due Process
–Is the law itself legal
•Procedural Due Process
–Are proper court procedures followed
•Rights of the Accused so important to the founders that
–(1) Many were written into the Constitution itself, and
–(2) Also devoted 5 Amendment of the Bill of Rights to them: 4, 5, 6 and 8.
Rights in the original Constitution
•Article I, Section 9, Powers Denied to Congress
–No suspension of Habeas Corpus
–No Bills of Attainder
–No Ex Post Facto Laws
•Article II, Section 3
–Definition of and conviction for treason
Amendment 4, Search & Seizure
•“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 . . . And particularly describing the place to be searched, and the persons or things to be seized.”
Amendment 5
•“No person shall beheld to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . . 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 . . . . . “
Amendment 6
•“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, . . . And be informed of the nature and cause of the accusations; to be confronted by the witnesses against him . . . And to have the assistance of counsel for his defence”
Amendment 8
•“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
•Remember, these are rights of THE ACCUSED – any citizen facing a court proceeding where the government seeks to remove their liberty or property.
•In political polemic often referred to as the rights of criminals
–True, but the rights of all, criminals and non-criminals alike
–Statement assumes every single person ever accused of a crime is necessarily guilty
Amendment 9 – Unspecified Rights
•“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”
•What does this mean? Is a right to privacy among these unspecified rights? The Court has said yes, many conservative legal scholars say no.
–Griswold v. Connecticut, 1965
–Which later led to Roe v. Wade
Amendment 10Federalism (states) and People
•The powers not delegated (e.g. treaties, coin money) to by United States (national government) by the Constitution, nor prohibited by it to the States (e.g. states can’t impose tariffs), are reserved to the States respectively, or to the people.
•Contemporary Bill of Rights / Civil Liberties Issues
Bible Classes in Texas Schools?
•Texas State Legislature, 2007
•House Bill 1287 requires Texas school districts to offer the courses to students in grades nine through 12 if enough students show an interest in taking them.
Security versus Liberty?Virginia Tech
•All psychiatric records available to government?
•Police can use to restrict who can obtain a gun?
•University administrators use to expel students?
•Must show proof of mental health before being allowed in a public building or school?
Security Vs. Liberty: Patriot Act
Adopted after 9/11 to assist the fight against terrorism
The USA PATRIOT Act
•Roving wiretaps
•Internet tracking
•Business records
•Foreign Intelligence Surveillance Court
•Property seizure
•Detention of suspected terrorists
•Alien reporting and detention
•Prohibits harboring of terrorists
The Patriot Act
Enemy combatants at Guantanamo
“Enhanced Interrogation Techniques” (aka Torture)
•Traditional security v. liberty debate.
POINT-COUNTERPOINT