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Civil Liberties. Nationalizing the Bill of Rights The U.S. Supreme Court began applying the Bill of Rights to state action by utilizing the 14th Amendment.

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Presentation on theme: "Civil Liberties. Nationalizing the Bill of Rights The U.S. Supreme Court began applying the Bill of Rights to state action by utilizing the 14th Amendment."— Presentation transcript:

1 Civil Liberties

2 Nationalizing the Bill of Rights The U.S. Supreme Court began applying the Bill of Rights to state action by utilizing the 14th Amendment The Court selectively applies the liberties on a case by case basis (selective incorporation)

3 The First Amendment: Freedom of Religion The establishment clause provides that Congress shall make no law respecting an establishment of religion. Issues include: – School prayer – Bible reading The free exercise clause protects the right to believe and practice whatever religion one chooses. Issues include – Polygamy – Peyote

4 Interpreting The Establishment Clause “Congress shall make no law respecting the establishment of religion” – Government Prohibited from officially recognizing and supporting a national church – Government may not aid one religion over another, or discriminate against any particular religion, but may recognize and encourage religious activities in general – A wall of separation between church and state prevents government from aiding, supporting or encouraging any and all religious activities

5 What Constitutes Establishment? Although the wall of separation approach is the preferred interpretation— the Supreme Court has difficulty in interpreting the scope of the wall – Prayers in Congress – Coins inscribed with “In God We Trust” – Pledge contains “One Nation Under God” – National Day of Prayer after 9/11 – Faith Based Initiatives – References to Moses, Mohammed and Confucius on Supreme Court building

6 The Lemon Test Establishing when Establishment is acceptable – Secular purpose – Primary effect does not advance or inhibit religion – Does not foster excessive entanglement

7 Types of Establishment Aid to Parochial Schools – Buses – Textbook and Supplies – Teachers – Health Services – Remedial Services – Tuition

8 Types of Establishment Aid to Institutions – Building Funds – Tax Exemption – Use of Public Buildings

9 Types of Establishment Public Displays of Religious Symbols – Nativity Scenes – Ten Commandments

10 Types of Establishment Public Schools – Religious Instruction Not on Campus by religious leaders May be released off-campus – Religious Meetings Equal Access Act permits – Religious Activities If after school or under Equal Access Act – Class Prayer No organized prayer (Engel v. Vitale) Students may voluntarily pray Texas has moment of quiet reflection – Postings – Evolution versus Creation – Event Prayer Graduation allowed Football games not allowed

11 Free Exercise of Religion Beliefs Generally Protected – Compulsory Flag Salute Violates 1 st Amendment – Saturday vs. Sunday Unemployment benefits cannot be denied – Amish and Education Right to withdraw children after 8 th grade upheld Note that safety requirements for use of public roads and hunting are valid – Animal Sacrifices May limit to humane sacrifices – Distribute Literature May limit location within building, but cannot deny right to distribute literature in public building

12 Free Exercise of Religion Religious Practices – Polygamy Not protected – Drug Use Not protected Exception for indigenous peoples – Sales Tax Applicable to sale of religious material

13 The First Amendment: Freedom of Speech “Congress shall make no law... Abridging the freedom of speech, or of the press...” Freedom of Speech, Press and Assembly have a preferred position Strict Scrutiny places the burden on the government to prove that a restriction on speech or press is constitutional

14 Freedom of Speech Freedom of Speech in a nutshell – Political Speech is afforded the greatest protection – Symbolic speech (flag burning) is protected – Speech that is not protected includes Speech that presents a clear and present danger Libel and slander is not protected Obscenity is not protected

15 Political Speech Justice Oliver Wendell Holmes and the Clear and Present Danger Test – “Shouting fire in a crowded theater” In Brandenburg v. Ohio – Advocacy directed to inciting or producing imminent lawless action, and – Likely to incite or produce such action

16 Other Speech Fighting Words – Not Protected Offensive to Groups Racist Speech Sexual Harassment Political Correctness – College speech rules – Free Speech Zones

17 Symbolic Speech Black Arm Bands Flag Desecration – Burning – “Inappropriate Use” Sewn to pants seat Flying upside down Affixing Peace Symbol – Burning Draft Card – Burning Cross

18 Libel and Slander Libel and Slander not protected – False – Damages – For public officials the statement was made with malice or reckless disregard of the truth Parodies protected – Hustler Campari Ad

19 Obscenity Obscenity defined by the Miller Test (1973) – Community Standard – Reasonable Person – Work as a Whole Appeals to Prurient Interest Portrays sex in a patently offensive Lacks serious literary, artistic, political or scientific value Live Shows – Dance protected by 1 st Amendment – Zoning ordinances – Liquor licensing Internet Obscenity difficult to regulate Child Pornography not protected Film – Ratings system to avoid censorship Radio/Television – FCC regulation pursuant to FCC v. Pacifica Seven Dirty Words

20 Right to Assemble and Petition Interest Groups – NAACP membership lists are protected against state attempts to obtain names of members in effort to intimidate Right to Associate – Boy Scouts as private organization can exclude gay scout leaders and state anti- discrimination law was unconstitutional Protests and Demonstrations – May not deny right to march, but may limit time, place and manner of demonstration American Nazi Party in Skokie

21 The Second Amendment: The Right to Bear Arms A well regulated militia, being necessary to the security of a free State, the right of the people to keep an bear Arms, shall not be infringed – Washington, DC handgun law declared unconstitutional as Supreme Court upheld 2 nd Amendment right to bear arms in decision written by Scalia "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem "That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.“ – Registration limits have been upheld as well as limits on certain types of firearms Brady Act Sawed-off Shotguns

22 Rights of Criminal Defendants Constitutional Protections – Writ of Habeas Corpus Ex Parte Milligan – Bills of Attainder – Ex Post Facto Laws Bill of Rights – Fourth Amendment Search and Seizure – Fifth Amendment Grand Jury/Indictment Double Jeopardy Self-Incrimination Miranda – Sixth Amendment Right to Counsel Gideon v. Wainwright – Eighth Amendment Bail Cruel and Unusual Punishment

23 Rights of the Criminally Accused : The Fourth Amendment 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... Failure to comply with the Fourth Amendment restricts the use of evidence pursuant to the exclusionary rule (Mapp v. Ohio)

24 Rights of the Criminally Accused: The Fifth Amendment The right to a grand jury to determine the merit of criminal charges A person cannot be tried for the same crime twice (double jeopardy) Individuals have the right to remain silent and cannot be compelled to testify against themselves in a criminal case – Miranda v. Arizona Right to know your Rights Property cannot be taken by the government without just compensation

25 The Sixth Amendment: The Right to Counsel In all criminal prosecutions, the accused shall... Have the Assistance of Counsel – Gideon v. Wainwright establishes the right to counsel in all felony cases Violations of Rights – Exclusionary Rule – Good Faith Exception

26 The Eight Amendment: Cruel and Unusual Punishment The Eighth Amendment prohibits excessive bail, excessive fines and cruel and unusual punishment – Bail must be appropriate – The death penalty was declared unconstitutional in 1972, but was reinstated in 1976 after procedural changes were implemented Only Capital Crimes punishable by death Texas implemented bifurcated trial – Phase One to determine Guilt or Innocence – Phase Two to determine Punishment – Challenges to the death penalty Age (under 18) IQ Racial Imbalance Lacked competent council Innocent Judge biased towards death as a result of election

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28 The Right to Privacy Zone of Privacy recognized in Griswold v. Connecticut as Supreme Court recognized right of married couple to purchase birth control – 1 st, 3 rd, 4 th, 5 th, 9 th through the 14 th Amendment created a “zone of privacy” – Zone of Privacy Expanded Stanley (dirty movies) Carey (teens and condoms) – Not Applicable Homosexuals (Bowers) – Bowers reversed in Lawrence

29 The Right to Privacy: Homosexuality In Bowers v. Hardwick (1986) – The Supreme Court upheld Georgia’s sodomy statute when it ruled that the federal Constitution confers no right upon homosexuals to engage in sodomy (White) Romer v. Evans (1996) – The Supreme Court struck down a Colorado constitutional amendment that prohibited anti-discrimination measures designed to protect the rights of homosexuals (Kennedy, but note the Scalia Dissent) Lawrence v. Texas (2003) – The Supreme Court struck down the Texas Deviant Sexual Act Statute as a violation of the defendant’s right to privacy (Kennedy, again note Scalia dissent)

30 Abortion Rights Roe v. Wade – Texas abortion statute declared unconstitutional Violated the right to privacy/procreation Limits Since Roe – Artificial viability – Medicaid limits – Parental notification – Informed consent – Waiting periods


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