2Civil Liberties What are Civil Liberties? Those rights, such as freedom of speech or religion, that are so fundamental that they are outside the authority of government to regulateAlso known as “natural rights” or “inalienable rights”Rights that every individual has and that government cannot legitimately take awayCivil liberties are added to the Constitution through the addition of the Bill of Rights.First 10 Amendments to the Constitution
3Civil Rights What are Civil Rights? Set of rights, centered around the concept of equal treatment, that government is obliged to protect.They are found in amendments like the 13th, 14th, 15th, and 19th Amendments to the Constitution.
4Civil Liberties as a Balancing Act In creating a government of men over men, the Framers had to struggle with how to provide as much freedom to citizens as possible without risking anarchy. This required giving the government the power to limit citizens’ rights, but at the risk of tyranny.Anarchy is a state of society without governmental authority, in which everyone does as he or she pleases.Tyranny is a government that severely limits liberty.
6Civil Liberties in the Bill of Rights Expressional rights are contained within theFirst Amendment.Freedom of speechFreedom of the pressFreedom of assemblyFreedom to petition the governmentFree exercise of religion“Congress shall make no law respecting an establishment of religion nor prohibit the free exercise thereof.”
7Religious Freedom Establishment Clause “Congress shall make no law respecting an establishment of religion”Lemon Test (Lemon v. Kurtzman, 1971)Test for determining whether aid to religion violates the establishment clause Does the law or practice have a secular purpose? Does it neither advance nor inhibit religion? Does it not foster an excessive government entanglement with religion?
8Religious Freedom Free Exercise Clause “nor prohibit the free exercise thereof”.States are generally free to pass laws that restrict religious practices as long as such laws have a valid secular (nonreligious) purpose.In the 1960s, however, the Court ruled that states must have a compelling interest before they could abridge people’s religious practices, even if the law had a valid secular purpose. Reynolds v. United States, 98 U.S. 145 (1878).PolygamyMuhammad Ali
9Freedom of SpeechWhile the First Amendment declares that “Congress shall pass no law abridging the freedom of speech,” the Court has never taken the phrase “no law” to literally mean “no law.”Dangerous SpeechClear and Present Danger TestFirst Amendment test that requires the state to prove that there was a high likelihood that the speech in question would lead to a danger that Congress has a right to prevent.Brandenburg v. Ohio
10Fighting Words and Hate Speech “Fighting words” are phrases that might lead the individual to whom they are directed to respond with a punch.Hate speech is speech that attacks or demeans a group, rather than a particular individual.University speech codes
11Symbolic SpeechExpressive communication, such as wearing armbands, that is not verbally communicated.Texas v. Johnson
12Time, Place and Mannerism Regulations Regulations of the time, place, and manner of speech, such as when or where protests may take place, are generally valid as long as they are neutral or equal, that is, they do not favor one side or another of a controversy.National Socialist Party of America v. Village of Skokie
13Subsequent Punishment In other situations, the government can punish people after the fact for what they publish.Libel- Publishing false and damaging statements about another.Seditious libel- Conduct or language that incites rebellion against the authority of a state.Slander- The legal term for defamation of character that is spoken.
14Pornographic or Obscene Speech Miller TestSupreme Court test for determining whether material is obsceneTo the average person, applying contemporary community standards as established by the relevant state, the work, taken as a whole (not just isolated passages), appeals to the prurient (sexual) interest;The work depicts in an offensive way sexual conduct specifically defined by the state lawThe work lacks serious literary, artistic, political, or scientific value.
15The Right of Association Civil liberties can conflict with civil rights.Supreme Court’s rulings indicate that states can enforce antidiscrimination laws as long as those groups do not engage in speech-related or expressive activities.But if the group does engage in expressive activities and association with certain groups that violate the views thus expressed, the group has a First Amendment right of association that overrides state laws banning discrimination.
16Freedom of the PressIn extraordinarily extreme cases, the government can censor items before they are published. This practice is known as prior restraint.Government restrictions on freedom of the press that prevent material from being published
17The 2nd 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.”Infringed vs. the 1st Amendment’s standard of abridgedWell-regulated militiaThe Supreme Court decided that issue in 2008 and 2010, ruling that there is an individual right to possess a gun, at least for self-defense in one’s home.District of Columbia v. HellerMcDonald v. Chicago
18Criminal Justice Provisions of the Bill of Rights The criminal justice provisions of the Bill of Rights are found in the 4th, 5th, 6th and 8th Amendments to the Constitution.How the government may conduct investigations is found primarily in the 4th and 5th Amendments.“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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
19Criminal Procedure Investigations The major limits on investigating crimes involve the authority to search for physical evidence and the warnings that must be given prior to questioning a suspect.Searches and Seizures4th Amendment prohibits unreasonable searches and seizureExpectation of privacySupreme Court test for whether Fourth Amendment protections apply
20Criminal Procedure continued If the police conduct a search later found to be in violation of the Fourth Amendment, the exclusionary rule holds that such evidence cannot be used in trial.Mapp v. Ohio (1961)Good faith exception allows evidence to be used if the police obtain a warrant but the warrant is later found to lack probable cause.
21InterrogationsThe Fifth Amendment protects the right against self-incrimination, being forced to give testimony against oneself during criminal investigations or at criminal trials.Miranda v. Arizona (1966)They have the right to remain silentAnything they say may be used against themThey have the right to an attorney, free if they cannot afford one.
22Criminal Justice Provisions of the Bill of Rights continued 5th Amendment Provisions“. . .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.”
23Criminal Justice Provisions continued How the government many conduct trials is found primarily in the 5th and 6th Amendments.5th Amendment“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself”
24Criminal Justice Provisions continued 6th Amendment“In all criminal prosecutions, the accused shall enjoy the right to a speedy and 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 witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.“
25Criminal Justice Provisions continued How the government may punish those convicted of crimes is found primarily in the 8th Amendment.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
26Verdict and Punishment If the jury acquits the defendant, the double jeopardy clause prevents the person from being tried again for the same offense. But if the jury cannot reach a verdict, the government can retry the defendant.Sentences must not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.Furman v. Georgia (1972)Gregg v. Georgia (1976)
27Protection of Property Property rights are primarily found within the 3rd and 5th Amendments.3rd 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.”5th Amendment“. . .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.”
28Reservation of RightsWhile the Constitution spells out specific rights that are protected, this does not mean that other rights are not protected.Language of 9th AmendmentLanguage of 10th Amendment
29Selective Incorporation When the Bill of Rights was first added to the Constitution, it only protected citizens from abuses by the national government.14th Amendment“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.”Due Process ClauseSelective IncorporationDoctrine used by the Supreme Court to make those provisions of the Bill of Rights that are fundamental rights binding on the states
30Testing Violations of Civil Liberties How do the courts make a determination that the civil liberties of citizens have been violated by the state or national governments?Compelling Interest TestStandard frequently used by the Supreme Court in civil liberties cases to determine if a state has a compelling interest for infringing on a right and if the law is narrowly drawn to meet that interest.(1) The government has a compelling interest in passing the law (for example, the law is necessary for the functioning of government), and (2) that the law is narrowly drawn to meet that interest.
31The Right to PrivacyThe word “privacy” does not exist in the Constitution, but it is implied in several amendments.1st Amendment’s freedom of association3rd Amendment’s freedom from quartering soldiers in peacetime4th Amendments freedom from unreasonable search and seizure5th Amendments freedom from self-incriminationImplied RightPenumbra: The shadowy region of the Constitution where implied rights are found.
32The Right to Privacy Continued Privacy casesGriswold v. Connecticut (1965)The Supreme ruled that married couples could use birth control. The case established a right to privacy, and the Court soon expanded this decision to cover the right of unmarried people to use birth control.Roe v. Wade (1973)Using the compelling interest test, the Supreme Court declared that states had a compelling interest in preventing abortion in the third trimester, when the fetus could live on its own, and a compelling interest in regulating abortion during the second trimester, to protect the health of the woman seeking the procedure. The state had no interest in regulating or preventing abortion in the first trimester.
33The Right to Privacy Continued Privacy casesLawrence v. Texas (2003)The Supreme Court decided that “the liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives”.
34Focus QuestionsWhat is government’s role with regard to civil liberties? How responsive can, or should, it be to the people’s will?What is the proper balance between liberty and order?Under what circumstances should civil liberties be restrained?What happens when rights clash? Are restrictions of civil liberties justified if they promote equality?In what ways does the guarantee of civil liberties promote democracy? Or does it pose challenges for democratic government that can be considered gates?