Civil Liberties

Introduction

Civil Liberties
Constitutional protections
Other legal protections
For individuals
Against government actions
Set down in Bill of Rights
Supreme Court has final say of
Content
Scope

The Bill of Rights

Founding
Originally not part of the Constitution
Condition of ratification
The Bill of Rights – Then and Now
Ensures basic liberties
Flashbacks to British abuses
Americans
Love them in theory
Hesitant in practice
Government must balance civil liberties with societal values

The Bill of Rights and the States

Written to restrict NATIONAL powers
Barron v Baltimore(1833)
Supreme Court found Bill of Rights restrains national government
It doesn’t restrain state government
Fourteenth Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Slaughterhouse Cases
State of Louisiana granted a monopoly to a single slaughterhouse
Sued by other slaughterhouses
Abridging the privileges and immunities
Deprived of property loss without due process
Court finding
Amendment IVX narrowly defined
Only protected national citizens, not citizens of states
Gitlow v New York
Gitlow
Socialist
Handed out literature to establish a socialist society
Through strikes
Other class actions
New York
Convicted Gitlow
Criminal Anarchy Law
Crime = advocating violent overthrow of government
No violence had occurred
Supreme Court
States must protect basic freedoms of Amendment I protected by the DUE PROCESS clause
States may interfere if actions have a TENDENCY to result in a dangerous situation (“Dangerous Tendency” test)
Started the INCORPORATION Doctrine
Making parts of the Bill of Rights extend to the states
Through the 14th Amendment
Most rights have been incorporated

Freedom of Religion

Establishment Clause
“Congress shall make no law respecting an establishment of religion”
Two sides
The government could not favor one religion over another
“Wall of Separation”
Jefferson (not a delegate at Constitutional Convention)
Forbids ANY national support for religion at all

In Education
Lemon v Kurtzman
Aid must have a secular purpose
Have a primary effect that neither advances nor inhibits religion
Not foster an excessive government “entanglement” with religion
Public funds may
Provide transportation
Help construct buildings
Buy textbooks
Administer standardized testing
Religious Activities in PUBLIC Schools
Public universities who
grant space to other student groups
MUST grant space to religious groups
Threshold of acceptability becomes higher when tax money is used directly for education
School Prayer
Engel v Vitale
Required students to start day with a prayer
Stating that they recognized their dependence on God
Students may leave room if they found it objectionable
Sued by a parent on behalf of his child
First Amendment
Fourteenth Amendment
Supreme Court Ruling
Unconstitutional to require recitation of prayer
School District of Abington Township, Pennsylvania v Schempp
PA law required
Reading of at least 10 Bible passages at the start of the day
Abington required
Recitation of the Lord’s Prayer
Students could be excused with a written note from parent
Supreme Court Ruling
Unconstitutional
Even with the note, it’s still unconstitutional
What gives?
Constitutional to pray in public schools
Unconstitutional to for public schools to sponsor prayer

Evolution
Teach Creationism with Darwinism
Unconstitutional
Intelligent design is unconstitutional too
Public Displays (Ten Commandments)
It is constitutional to INTEGRATE sacred text with certain displays
Law
History
It is constitutional to INTEGRATE religious scenes with holiday symbols
Supreme Court position
No complete wall of separation
Accommodations
A “nod” to all religions or secular symbols
No hostility to any religion

Free Exercise
People have the right to practice (or not practice) their religious beliefs
Conflict
Religions sometimes require actions not socially acceptable
Religions sometimes forbid actions deemed necessary by society
Court findings
You can BELIEVE what you want
PRACTICE is more complicated
Employment Division v Smith
Two American Indian Drug Councilors ingested peyote
Part of their religions
Fired because of their actions
Upheld the law of the state
Religious grounds do NOT excuse you from laws administered to all
Congressional acts
Religious Freedom Restoration Act
Restrictive standard
Cannot restrict religious practices
UNLESS
Narrowly tailored
For “compelling interests”

Freedom of Expression

American values
Freedom of conscience
Believe what you want
ABSOLUTE
Freedom of speech
Express what you want
LIMITED
Government questions
Can government censor ban expression that it thinks will break the law?
What is included in freedom of speech or press
What is the tipping point between free speech and other values
National security
Right to a fair trial
Public order
Hate speech
Intent is to injure
Cannot be banned just on
Racial
Religious
Sexual bases
Prior Restraint
Censoring speech BEFORE it occurs
Near v. Minnesota
Court rules prior restraint cannot happen
Publisher (speaker) can be sued AFTER
Special cases
Student publications in schools
National security issues
Free Speech and Public Order
Trade-off!
Schenck v. US
Expression CAN be limited
If it provokes a CLEAR AND PRESENT DANGER
Red Scare (40s – 50s)
Trying to jail communists in US
Dennis v. US
Court finds that advocating the violent overthrow of the government is illegal
EVEN if there was no direct urging to do specific acts
National security concerns outweigh First Amendment
Later finds that advocating in the ABSTRACT is ok

Right to protest
Courts support greatly
If done in public places
Does not cross over to being on PRIVATE property

Obscenity
Roth v. US
Obscenity is NOT protected by Amendment I
Defining obscenity is harder
Miller v. California
Attempts to define “obscene”
If it appeals to “prurient” interest in sex
Patently offensive sexual material as NARROWLY defined by a statute
The law cannot be written so broadly that it might eliminate “acceptable” expression in any way
Lacks vale
Literary
Artistic
Political
Scientific
“How would the average person IN THAT COMMUNITY view the work?”
Court has consistently upheld laws designed to protect children
Viewing obscene works
Participating in obscene works
Libel and Slander = False statements that are malicious and damaging to a person’s reputation
Difference
Libel is written (L for literature)
Slander is spoken (S for speech)
Political figures must prove statements were
Knowingly untrue
Malicious
Lampooning and Satirizing public figures is allowable
Private individuals must prove the statements were
Made through negligence
Defamatory
Symbolic Speech
Based on Freedom of Speech
Goes beyond the spoken word
Defined as actions that are
Not spoken
Not written
Intended to express an opinion
May NOT be used to protect actions intended to intimidate
Texas v. Johnson
Flag burning
Form of protest
Not just an act to shock
Commercial Speech can be restricted
Advertising which is
False
Misleading
For unlawful activity
Regulating the Public Airwaves
FCC = Federal Communications Commission
Public Airwave regulations
Content
Nature
Channel licensing
Cable networks not as tightly controlled
Reasoning
Public airwaves are limited
Cable is a private contract between entities
Campaign Spending
Limiting the role of money in politics
Federal Election Campaign Act (1971)
Limits on contributions
Presidential candidates
Congressional candidates
Disclosure and reporting
Who
How much
Buckley v. Valeo(1976)
Upheld disclosure and reporting
Struck down limits on contributions as an expression of Free Speech
Bipartisan Campaign Reform Act (2002)
AKA McCain-Feingold
Banned unrestricted soft money
Money donated to political parties
Often by Unions
Big Businesses
Wealthy Americans
Solicitation of soft money by elected officials

Limited advertising
By unions
By Corporations
By Nonprofit Organizations
Within 60 days of the election
Banned “coordinated expenditures” between candidates and party funding
Court Ruling (2007)
Issue ad ban not allowed
But issue ads may not be for or against a specific candidate
Citizens United v. Federal Election Commission (2010)
Political broadcasts are Free Speech
Cannot be banned by legal associations of people
Unions
Corporations

Freedom of Assembly

Right to Assemble
To gather together to make a statement
Parade
Picket
Protest
Can conflict with societal values
Reasonable limits
Time
Place
Manner
Restrictions
Apply for permit
Post a bond
Allows police to act to prevent major disruptions
Basics
WHAT a group says is protected
HOW a group says it is not
Right to Associate
Join in a group
United by a cause/ideology

Right to Bear Arms

Attempts to control gun violence
Local restrictions on
Owning
Carrying a handgun
Other restrictions
Background checks
Outlawing sales of certain types
Stored in certain ways
District of Columbia v. Heller (2008)
Individuals have a right to possess a firearm
It is NOT connected to any militia service
Said individual may use that gun for lawful purposes
McDonald v. Chicago (2010)
Incorporated rights
Into states and localities
The right is NOT unlimited
Bans on concealed weapons allowed
Limits on possession by certain individuals
Felons
Mentally ill
Limits on carrying in sensitive places
Schools
Government buildings
Conditions on commercial sale of weapons
Ban on “dangerous and unusual” weapons

Defendants’ Rights

Rights of people ACCUSED of crimes
Intended for those accused in political arrests
Extended to include those accused in criminal arrests
Criminal Justice Cases
Crime
Arrest
Prosecution
Trial
Verdict
Vague language in Bill of Rights
Speedy trial?
Cruel and unusual?
Almost all have been incorporated

Searches and Seizures
Probable cause – reasonable grounds to believe someone has committed a crime
Unreasonable search and seizure – certain requirements must be met before investigations can commence
Search Warrant – a written document which specifies
Area to be searched
Material being sought
Warrantless search
Probable cause
Officer’s safety
Limited in scope
Relevant to the suspected crime
Within the suspect’s immediate control
Destruction of evidence is likely
Exclusionary Rule
Prevents evidence gained illegally being used in court
Mapp v. Ohio (1961)
Police were searching for a person
Instead found obscene (illegal) material
Arrested
Found guilty
Supreme Court
Illegal seizure of the material
Cannot be used (IV Amendment)
Incorporation of the right
Criticisms
Many guilty may go free
Police carelessness or technicality
Supporters
It’s the Constitution!
It’s the rights of the ACCUSED – innocent until proven guilty
Could lead to pattern of police disregard for proper procedures
Exceptions
Eventual discovery of evidence would have happened
Good faith rule
Police THOUGHT they were following procedure
Clerical error
Isolated cases of mistake
Cannot be systematic/regular procedure
Cannot be reckless disregard of constitutional rights

War on Terrorism
US PATRIOT ACT
Post-9/11
Broad governmental powers to investigate suspected terrorists
Wiretapping
Surveillance

Self-Incrimination
Burden of proof falls on government
V Amendment
Forbids government from using evidence forced from the accused
Immunity can be granted
Miranda v. Arizona (1966)
Suspect must be made aware of the following PRIOR to questioning
Right to remain silent
Statements may be used in court of law
Right to attorney
Attorney will be provided if accused cannot afford one
Exceptions
Coerced statements do not AUTOMATICALLY negate verdict
The accused must state that they are invoking the right to remain silent
The police may ask the questions again after a waiting period
State must make certain that minors FULLY understand these rights
V Amendment also prohibits police entrapment
Right to Counsel
VI Amendment always has been part of the federal criminal process
States
Powell v. Alabama (1932)
States must provide legal counsel to poor defendants
In CAPITAL crime cases
Gideon v. Wainwright (1963)
Everyone who is accused of a felony
Has right to an attorney
Misc.
Whenever imprisonment can be imposed
Later case negates civil cases
Trials
VI Amendment
right to be brought before a judge
to be informed of the charges
to have a trial which is
speedy
public
Plea Bargaining
Most often result
Agreement
Defendant pleads guilty
Prosecution takes a lesser crime/punishment
Advantages
Defendant gets lesser sentence
State gets to fast-track the process
Right to effective counsel during this phase
Impartial jury
Traditions, no mandated
12 jurors
Unanimous vote to convict
Courts give jurors power to sentence
Limiting judge’s discretion in sentencing
Right to confront witnesses
Pre-disclosure of evidence by prosecution
Post-9/11
Shuffled the deck a bit
Courts have tended to stand by the strict interpretation of the VI Amendment

Cruel and Unusual Punishment
VIII Amendment forbids it
Incorporated to the states since 1962
Difficulty to define, so here are some examples
Over-crowded prisons
Sentencing a minor to life with no chance of parole
The Death Penalty
Invalidated state law because of
“freakishness”
“randomness”
States imposed mandatory sentence to end “randomness”
Invalidated mandatory sentences
Upheld right of state to execute
Constraints
Bars execution of
Mentally ill
Intellectually disabled
Minors
Rapists who didn’t intend to kill
No killing took place in the commission of the crime

The Right to Privacy
Never stated in the Constitution
Griswold v. Connecticut (1965)
Falls under the “Penumbra” of other rights
Obviously it was the intention given what other rights say
Controversy over Abortion
Roe v. Wade (1973)
State argued it has the right to regulate moral behavior
She argued that the ban on all abortions except those to save the life of the mother was unconstitutional
Court Decision
Right to privacy extends to a woman’s right to have an abortion
The law violated the XIV Amendment – Due Process Clause
Must be balanced with states concerns of
Protecting the life of the fetus
Protecting the health of the mother
Thus, states can ban abortions in the 3 trimester
Further actions
Congress restricts use of federal funds for abortions
States restricted
Use of state funds for abortions
State employees from performing abortions
The Court has upheld these restrictions
Planned Parenthood v. Casey (1992)
Ended “strict scrutiny”
Replaced it with “undue burden”
Made it easier for states to restrict abortions
Upheld
24 hour wait period
Minors
Parent consent
Judicial consent
Provision requiring doctors to advise woman of risks
Struck down law requiring a wife to tell husband
Re-affirmed over-all right to abortion
Partial Birth Abortions
Process by which a doctor dilates the woman’s cervix and pulls the fetus out through the birth canal while it is still intact (standard abortions remove the fetus in several parts). The fetal head is compressed so it can more easily be removed, this ends the fetus’s viability.
Banned by Congress in 2003
Except to save mother’s life
But NOT to preserve mother’s health
Upheld by the Court
Civil Liberties and Democracy
Right to participate in public life is open to all
Right to express opinions must also be open to all
Civil Liberties and the Scope of Government
A fundamental part of our society
Reflection of American individualism
Americans tend to favor individual liberty over government regulation
Technology has extended government’s reach
Limits must be in place to protect individual from government
Bill of Rights serves this function