1. Civil Liberties

2. Warm Up
Civil liberties – protect individuals, their ideas, and their property against the power of gov’t.
Civil rights – positive acts of gov’t that make the rights guaranteed by the Constitutional available for all people.
For each of the following, write L if it refers to civil liberties or R if it refers to civil rights.
1. Freedom of exercise of religion
2. protection against discrimination based on race
3. freedom of speech and press
4. protection against discrimination based on sex
5. guarantee of a fair trial

3. Civil Liberties
Definition – The constitutionally protected freedoms of all persons against governmental restraint.

4. Rights Granted by the Original Constitution
1. Writ of Habeas Corpus
“Produce the body”
Requires government officials to present a prisoner in court and to explain to the judge why the person is being held

5. Rights Granted by the Original Constitution
2. Ex Post Facto Laws
“after the fact”
Being charged for committing a crime, that wasn’t a crime when the person committed the action

6. Rights Granted by the Original Constitution
3. Bills of Attainder
Legislative act that punishes an individual without judicial trial
Court should decide guilt, not Congress

7. Bill of Rights Free speech, press, assembly, petition, religion
Right to bear arms
Prohibits quartering soldiers
Restricts illegal search and seizures
Provides grand juries, restricts eminent domain (gov can’t take private property unless compensation), prohibits forced self-incrimination, double jeopardy (can’t be charged for the same crime twice)

8. Bill of Rights 6. Outlines criminal court procedure 7. Trial by jury
8. Prevent excessive bail and cruel and unusual punishment
9. Amendments 1-8 do not necessarily include all possible rights of the people
10. Reserves for the states any powers not delegated to Fed. Gov by Constitution

9. Other Sources of Liberties
Originally applied only to national gov’t
Barron v. Baltimore (1833)
B of R did not apply to state laws
14th amendment – 1868
Incorporation – total vs selective
Due process clause – “No state shall…deprive any person of life, liberty, or property, without due process of law”
limits states in same way the Bill of Rights limits the national gov’t

11. Other Sources of Liberties
Gitlow v. New York (1925)
Court announced that it assumed “that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress – are among the fundamental personal rights and liberties’ protected by the due process clause of the 14th amendment from impairment by the States”

12. First Amendment Freedoms
Protects freedom of religion, speech, press, petition, and assembly
Religion - two parts
1. “Establishment”
2. “Free exercise”

13. Freedom of Religion
“Establishment” clause – prohibits the gov’t from establishing an official church
Debate – aid to church related schools and prayer
“wall of separation” between church and state
Everson v. Board of Education (1947)
- NJ’s reimbursement to parents of parochial and private school students for the cost of busing their children to school was upheld because assistance went to the child, not the church.
must be a “wall of separation”
* incorporates Establishment Clause

14. Freedom of Religion Engel v. Vitale (1962)
NY requirement of state-composed paryater to begin day was unconstitutional.
School District of Abington Township, Pennsylvania v. Schempp (1963)
A Pennsylvania law requiring Bible reading in schools violated the establishment clause of 1st amendment.
Lemon v. Kurtzman (1971)
Struck down PN law reimburshing religion schools for text and salaries
3 parts
Have a secular legislative purpose
Have a primary effect that neither advances nor inhibits religion
Not foster an excessive gov’t “entanglement” with religion

15. Others Wallace v. Jaffree (1985)
moment of silence- intent of the law was to restore prayer in school
Lynch v. Donnelly ( 1984)
religious displays ok if contain some secular
symbols (Rehnquist Ct & Ten Commandments 2005:
KY case finds display in courtroom lacks secular
purpose
TX case allowed outdoor display as a balance of
freedom and tradition)
Lee v. Weisman (1992)
graduation prayers are a coercion of religion
Santa Fe School District v. Doe (2000)
prayer at a high school football game is coercion

16. Freedom of Religion
“Free exercise” clause – allows people to worship as they please
Not exempt from laws binding other citizens
EX: Indian tribe that uses peyote can’t claim freedom was abridged if state decides to ban use
Employment Division v. Smith
Preference to some religious groups over others?
EX: Members of Amish sect who refuse contrary to send children to public schools past 8th grade
Wisconsin v. Yoder

17. Warm Up
Use the Lemon test to determine how the Supreme Court would rule in the following situations.
1. A Seventh-Day Adventist, who had been discharged from his job for refusing to work on Saturday, sued when he was denied unemployment benefits.
2. A Louisiana law mandated that a balanced treatment in the teaching of evolution must be followed. If evolution was taught, then creationism must also be taught. A suit argued that the law was a violation of the establishment clause.

18. Freedom of the Press Free Press Near v. Minnesota (1931)
Freedom from prior restraint
Gov’t could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.
Incorporates free press to states
New York Times v. United States (1971)
“Pentagon Papers” – national security vs. public’s right to know
Hazelwood v. Kulmeier (1988)
Prior restraint of student press by school administration is allowed.

19. Freedom of the Press New York Times v. Sullivan (1964)
The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).

20. Freedom of Speech Free Speech Non-protected speech
Schenck v United States (1919)
Speech that presents a “clear and present danger”
Court upheld the conviction of a socialist who had urged young men to resist the draft during WWI.
Words spoken that “would create a clear and present danger that they will bring about substantive evils that Congress has the right to prevent”

21. Freedom of Speech
Obscenity – not protected, hard to define – Ex. Pornographic material
Miller v. California (1973)
Court tried to clarify what was obscene
1. Appealed to a prurient interest in sex
2. showed “patently offensive” sexual conduct
3. lacked “serious literary, artistic, political, or scientific value.”
Ex: lewd exhibition of genitals

22. Freedom of Speech Symbolic speech – action to convey a message
Texas v. Johnson (1989)
Flag burning is protected
Flag on fire at Rep National Convention to protest nuclear arms buildup
Court held that Johnson's burning of a flag was protected expression under the First Amendment
Tinker v. Des Moines (1969)
The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment.
Principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline
False advertising
Federal Trade Commission decides what can be advertised and regulates content

23. Freedom of the Press Restrictions
Libel – false written statement attacking someone’s character, with intent to harm
Public figures – prove false and it intended “actual malice”
Private – statements were false and author was negligent
New York Times v. Sullivan (1964)
The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).

24. Right to Bear Arms
McDonald v. Chicago (2010) The Supreme Court overturned the city of Chicago’s handgun ban, holding that the Second Amendment is “fully applicable to the states.”
- Interesting because of reasons

25. Freedom from Quartering Soldiers
No Supreme Court decision
2nd circuit court found to be incorporated

26. Warm Up A. Exclusionary rule B. Miranda rule
Match the term with the definition.
A. Exclusionary rule B. Miranda rule
C. Search warrant D. Writ of habeas corpus
E. Probable Cause
1. a court order that requires the agency holding a prisoner to give the court a good reason why the prisoner should not be let go
2. reasonable suspicion that a crime has been committed
3. court order authorizing the search of a specific property
4. policy by which evidence gained through illegal search cannot be used against the accused
5. policy requiring police to tell a suspect about his or her constitutional rights before asking the suspect any questions

27. Defendants’ Rights Searches and Seizures Self-Incrimination
Right to Counsel
Trials
Cruel and Unusual Punishment

28. 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, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

29. Fourth Amendment Questions
What is probable cause ?
When is a warrantless search allowed ?
What is a reasonable search ?
What the exclusionary rule?

30. Fourth Amendment
Probable Cause is where the facts & circumstances within an officer’s knowledge , and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.
must be decided by a neutral magistrate
must describe in detail the place , person & things

31. Fourth Amendment
Reasonable expectation of privacy - upheld constitutionally and generally includes the physical body, the home & immediate area around it and the office. Generally governs searches under the fourth amendment.
Reasonable searches would be with a warrant or without a warrant if there is probable cause.

32. Fourth Amendment
What types of searches could be warrantless reasonable searches ?
- sobriety checkpoints
- border crossings / airports
- drug testing
- student searches
- consent searches which must be
authorized and not coerced

33. Fourth Amendment When is a warrant needed?
- an arrest in a person’s home
- search of a home or office
When is a warrant not needed? (warrantless search)
- search incident to lawful arrest
- plain view – visible evidence
- hot pursuit – follow into building
- automobiles – less expectation of privacy
- exigent circumstances - emergency

34. Fourth Amendment
The exclusionary rule was defined in the case Weeks v. U.S. (1914) which said that if evidence violated the Fourth Amendment and was illegally seized it could not be admitted at trial.
- this continues to be controversial as
can be seen in some Supreme Court
interpretations

35. Fourth Amendment
Wolf v. Colorado (1949) - *Incorporated no unreasonable search & seizure clause
Mapp v. Ohio (1961) – must have probable cause or evidence can be excluded (*Incorporated the exclusionary rule)

36. Self-incrimination 5th Amendment
No one “shall be compelled to be a witness against himself.”
Miranda v. Arizona 1966
Sets guidelines for police questioning of accused persons to protect themselves against self-incrimination and to protect their right to counsel

37. Counsel
6th amendment
Powell v. Alabama (1932) - Incorporated right to counsel in capital cases
Gideon v. Wainwright (1963)
incorporating the right to counsel into the Due Process Clause of the 14th amendment to require states to provide counsel to anyone charged with a felony that was too poor to afford a lawyer.

38. Cruel and Unusual 8th amendment
Prohibits “cruel and unusual punishment”
Robinson v. CA (1962) - * Incorporates the cruel & unusual punishment clause
Furman v. Georgia (1972)
It warned states that the death penalty was to be carried out in a fair and consistent way.

39. Right to Privacy Not in the Constitution
Griswold v. Connecticut (1965)
SC ruled against the state, with the majority opinion identifying “penumbras” – unstated liberties implied by stated rights – that protected a right to privacy, including a right to family planning.
Roe v. Wade (1973)
The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment

40. Ninth Amendment Court believed there was a compelling
state interest at some point so the trimester doctrine was contained in the opinion
* 1st trimester – abortion is the
exclusive right of a woman &
her physician

41. Ninth Amendment regulate in ways that are reasonably
2nd trimester & further – states may
regulate in ways that are reasonably
related to maternal health
3rd trimester – state has power to
regulate and prohibit abortion
except when necessary for the life
and/or health of the mother

42. Right to Privacy Planned Parenthood of S.E. PA v. Casey (1992)
Webster v. Reproductive Health Services (1989)
Court upheld a Missouri statue that banned the use taxpayer-supported facilities for performing abortions
Planned Parenthood of S.E. PA v. Casey
(1992)
the state’s interest in potential life is affirmed through 24 hr waiting period, parental consent for minors, & a judicial bypass statute requiring husband consent is an undue burden