1. Civil Liberties
And Public Policy

2. Civil Liberties
Individual legal & constitutional protections against the government
Set down in the Bill of Rights
What rights do Americans have?
What rights do Americans deserve?

3. Fourteenth Amendment
“…nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.”
Makes all states have to uphold the First Amendment according to the incorporation doctrine first established by Gitlow v. New York (1925)
Aka selective incorporation

5. First Amendment Establishes the “five great liberties” Press Speech
Religion
Assembly
Petition the government

7. Freedom of Religion: Establishment clause
Debate over interpretation
What does the establishment clause mean?
Should there be separation of church and state?
Engel v. Vitale (1962)
Should prayer be allowed in schools?
no school prayer
Lemon v. Kurtzman (1971)
Should governments fund church related schools?
regulates aid to church-related schools: “Lemon test”

8. Freedom of Religion: Free exercise clause
Prohibits government from interfering with practice of religion
Much less controversial
Reynolds v. U.S. (1879)
Should polygamy be allowed as part of a Mormon man’s religious duty?
Polygamy is not protected “religious duty”
Difference between religious belief and action that flows from religious belief
Oregon v. Smith (1990)
Should you be allowed to take illegal drugs (peyote) in a religious ceremony?
Can’t do illegal things because of your religion

9. Freedom of Religion Sebelius v. Hobby Lobby (2014)
Should a for-profit company be allowed to deny its employees health coverage of contraception based on religious objections of the company’s owners?

11. Free Expression Free speech and press
Should you be able to say anything?
Tinker v. Des Moines (1969)
Should students have free speech in school?
Yes, if it doesn’t interfere with school
Should the press be allowed to publish anything?
First Amendment Rights Are Not Absolute
Should student publications be treated differently than privately held media outlets?
Do school administrators have special responsibilities to censor student produced publications?

12. Freedom of Expression: Free Speech & Public Order
Biggest conflict between press and government
Schenck v. U.S. (1919)
Should you be allowed to tell people to resist the draft?
upheld conviction of socialist urging draft resistance
Limits speech that promotes “clear and present danger” of substantive evils

13. Freedom of Expression: Obscenity (*&^%$!)
Obscenity is not constitutionally protected speech or press
What is obscenity?
Justice Potter Stewart, “I know it when I see it” [Jacobellis v. Ohio (1964)]
Miller v. California (1973)
Should a porn store be able to send out a brochure with graphic images from its products?
Three-prong standard for obscenity = Miller test
Appeal to a “prurient interest in sex”
“Patently offensive” sexual content
Lacks “serious literary, artistic, political or scientific value”

14. Freedom of Expression: Libel & Slander
What’s the difference? Are they allowed?
Slander = spoken defamation
Libel = written defamation = not protected
NY Times v. Sullivan (1964)
Should the press be allowed to publish false statements about the conduct of public officials?
Public figures need to prove that statements were intentionally malicious
Private individuals only need to show that statements were defamatory lies and the author was negligent

15. Freedom of Expression: Symbolic Speech
Texas v. Johnson (1989)
Should you be able to burn the American flag as a protest statement?
Supreme Court struck down law banning flag burning
Symbolic speech is protected by the First Amendment

16. Commercial Speech
Advertising = much more restricted than other types of speech
Regulated by the Federal Trade Commission (FTC)
Radio & TV regulated by the Federal Communications Commission (FCC)
More government regulation than print media
Limited number of broadcasting frequencies

17. Freedom of Assembly What is it?
Right to gather together to make a statement within reasonable limits
Time, place, and manner restrictions
Right to associate with people who share a common interest
NAACP v. Alabama (1958)
Should the NAACP be forced to reveal the names and addresses of all its members?
NAACP did not have to reveal its membership
Protected right to assemble

18. The Right to Bear Arms Is it an individual right?
Can there be limits on it?

19. Defendants’ Rights
Most of the Bill of Rights is about protecting people accused of crimes
Fourth, Fifth, Sixth, Seventh, and Eighth Amendments
Stages of criminal justice system:
Crime  arrest  prosecution  trial  verdict / punishment

20. Defendants’ Rights: Searches & Seizures
Fourth Amendment prohibits unreasonable s & s
Need probable cause for search warrant
Reasonable grounds to believe someone guilty of crime
Written authorization from court specifying area to be searched and what’s being searched for

22. Searches & Seizures: Exclusionary rule
Prevents illegally seized evidence from being used in court
Mapp v. Ohio (1961)
Should evidence obtained in an illegal search and seizure be admissible in court?
Extended exclusionary rule to the states
Critics believe this allows guilty people to go free because of police incompetence or human error
Court has increasingly made some exceptions to exclusionary rule since 1980s

23. Defendants’ Rights: Self-Incrimination
“Pleading the Fifth”: suspects need not provide evidence that can later be used against them
Immunity = exempt from prosecution in exchange for testimony
Miranda v. Arizona (1966)
Should police be allowed to interrogate you without telling you of your right to counsel and protection against self-incrimination?
Court established guidelines for police questioning
Remain silent
What they say can be used against them
Right to an attorney

24. Defendants’ Rights: Right to Counsel
Guaranteed by the Sixth Amendment (for federal courts)
Gideon v. Wainwright (1963)
Should right to counsel extend to felony defendants in state courts?
Yes

25. Defendants’ Rights: Post-9/11
Sixth Amendment guarantees that accused have the right
to be informed of accusations and
to have a speedy and public trial
After 9/11 FBI held more than 1200 people as possible dangers to national security
762 illegal aliens
Many languished in jail for months until cleared by FBI

26. Defendants’ Rights: Post-9/11
First time in U.S. history federal government withheld names of detainees
Argued that this info would help terrorists
Hamdi v. Rumsfeld & Rasul v. Bush (2004)
Should “enemy combatants” get Due Process?
Yes

27. Defendants’ Rights: Cruel & Unusual Punishment
Forbidden by Eighth Amendment
Most of constitutional debate is centered on:
Is the death penalty cruel and unusual punishment?
Furman v. Georgia (1972)
Death penalty is not cruel and unusual
The way it’s being carried out is (arbitrary, racially biased)
Gregg v. Georgia (1976)
Does not violate Eighth or Fourteenth Amendments

28. Right to Privacy Should we have this right?
Not explicitly in the Bill of Rights -- Implied?
Griswold v. Connecticut (1965)
Does a law banning birth control violate a couple’s right to marital privacy?
Bill of Rights grants unstated liberties implied by explicitly stated rights
First, Third, Fourth, and Ninth Amendment  right to privacy in marital relations

29. Right to Privacy: Abortion
Should abortions be legal under any circumstances?
Should abortions be legal in certain circumstances?
Should abortions be legal in all circumstances?

31. Right to Privacy: Abortion
Roe v. Wade (1973)
Divided pregnancy into three trimesters
1st: Forbade any government control of abortions
2nd: Permitted states to allow regulated abortions only to protect mothers’ health
3rd: Allowed states to ban except when life or health of mother is in danger
Not overturned, but restricted

32. Abortion rights: Restrictions
Congress has passed several laws forbidding use of federal funds
Webster v. Reproductive Health Services (1989)
Do any of these laws infringe on right to privacy or equal protection?
Public employees and facilities can’t be used in performing or assisting abortions
Counseling to have abortions prohibited
Viability testing after 20 weeks
Upheld Missouri laws

33. Abortion rights: More restrictions
Planned Parenthood v. Casey (1992)
Do any of these laws violate Roe?
24 hour waiting period
Parental/judicial consent for minors
Husband notification requirement
Only the third fails “undue burden” test
Gave government more power to regulate abortions