1. Civil Liberties

2. Objectives
Explain the purpose of the Bill of Rights and the process by which its provisions came to be “incorporated.”
Define prior restraint and exam the free-speech tests devised by the Supreme Court to determine protected versus unprotected speech.
Explore the debate over where to draw the line between protected free exercise of religion and unprotected conduct.
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3. Objectives
Discuss the arguments for and against the constitutional right of privacy and recognize the types of issues to which it applies.
Understand the concept of procedural due process and other rights of criminal defendants, and examine how judicial interpretation of constitutional language can affect those rights.
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4. Why does it matter to you?
The Bill of Rights
Core Questions:
Why are we the way we are?
Why does it matter to you?
In particular, how has the U.S. system’s fundamental commitment to the rule of law affected how the Supreme Court interprets those liberties?
Civil Rights
Freedom from governmental discrimination (unequal treatment).
Bill of Rights
The first 10 amendments of the Constitution, which form the basis of civil liberties.
Civil liberties
Freedoms that citizens enjoy from government interference
Freedom of speech, press, assembly, and religion; guarantees of due process and other protections given to criminal defendants.
Understand the difference?
Right to assembly = civil liberty. BUT if government decides only people with red hair can assemble and others could not, that would be discrimination and a violation of civil rights.
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5. The Bill of Rights: Origins
George Mason’s proposal for a Bill of Rights was voted down unanimously by delegates.
Many felt there was no need for a federal Bill of Rights.
Seven states had a bill of rights in their state constitutions.
They believed the federal government was limited and could not abridge the rights of individuals.
Madison originally opposed it as well, but changes his position with persuasion by Jefferson and the need to ratify the Constitution.
First Congress sent 12 amendments to the states for ratification.
The first two, which dealt with the size of the House and compensation for representatives and senators, were not ratified.
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6. The Bill of Rights & the States: The Original Understanding
The Bill of Rights originally thought to limit ONLY the power of the national government … not the power of the states.
First Amendment: “Congress shall make no law…”
Barron v. Baltimore (1833)
Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
Unanimous decision: Chief Justice Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
Slavery and the emergence of abolitionists
The Liberator
State restrictions on civil liberties. Example: VA made it a felony for abolitionists to enter state and speak in favor of abolishing slavery. Missouri had elected officials swear oath in support of slavery.
Bill of Rights offered no protection for abolitionists.
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7. Incorporation of the Bill of Rights
What is incorporation?
Applying the Bill of Rights to the states.
Means that an amendment limits not only the federal government, but the state governments as well.
Total incorporation: making every specific provision of the Bill of Rights applicable to the states.
Selective incorporation: making only the most essential provisions applicable to the states.
Incorporation “plus”: unenumerated rights such as “privacy”?
Not enumerated in the Bill of Rights, but the Supreme Court has recognized this right at the federal level. Should these be incorporated as well?
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8. Incorporation of the Bill of Rights
What justifies incorporation? Two clauses in the Fourteenth Amendment
Privileges or immunities clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens in the United States…”
Slaughterhouse Cases of 1873
Court narrowly interpreted privileges and immunities.
Thus limited use of privileges and immunities clause to incorporate
Due process clause: “No state shall... Deprive any person of life, liberty, or property without due process of the law.”
Meant to guarantee fairness;
procedural due process and substantive due process
20th century justices of the Supreme Court turned to the due process clause to incorporate the Bill of Rights.
Long process of “selective incorporation” began
Most recent: Second Amendment
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Note that during the time of writing the Constitution and the period afterwards, privileges and immunities were used interchangeably with rights and liberties

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10. First Amendment: Freedom of Press and Prior Restraint
Principle of freedom of press: no prior restraint on publishing
British common law tradition after 1695
Censorship before publication
Near v. Minnesota (1931) 5-4 vote, Supreme Court held prior restrain to be unconstitutional
But in certain “exceptional” cases acceptable: troop movements in time of war; obscene material
Also majority held that certain types of punishment after publication were constitutional
Pentagon Papers
Study of U.S. involvement in Vietnam commissioned by Sec. McNamara
Disclosed that government from Truman to Johnson administrations has misled public
Nixon administration tried to restrain publication of NYT articles relating to Vietnam. Cited national security.
Court ruled 6-3 that the NYT could publish the articles
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11. What did the Framers Mean by “Freedom of Speech”?
Not clear what the Founders meant by freedom of speech.
Pennsylvania the only state with constitution that protected speech; linked with freedom of press
So even after it was included in the Bill of Rights, the specific meaning was unclear.
Does it guarantee more than protections against prior restraint of the press?
Is protected speech limited to political speech?
Did it mean that only states could regulate speech and not the federal government?
No Court suggests that freedom of speech is absolute. Exactly what is protected?
Obscenity? False advertising? Written speech or spoken words?
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12. The Alien and Sedition Acts of 1798
Four separate laws passed by the Federalist Party when U.S. was under threat of war with France.
Sedition Act: allowed for the prosecution of anyone who “shall write, print, utter or publish” any “scandalous and malicious” statements against the government.
Targets of the law – opposition newspaper editors (often Democratic-Republicans).
Punishment: imprisonment for up to two years and a $2,000 fine if convicted.
Ten people, including one House member, convicted before the act expired in Later pardoned by Jefferson.
Court never ruled on the constitutionality of these acts. Nor did they rule on any freedom of speech case until 1919!
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13. Supreme Court Confronts Restrictions on Speech
Espionage Act of 1917
Illegal to cause insubordination, disloyalty, mutiny, or refusal of military or naval duty
Followed by Sedition Act of 1918
Led to the arrest of over 6,000 people
Debs, Socialist Party opposed entry into WWI
Schenck v. United States (1919)
Charles Schenck, member of Socialist Party
Leaflets to encourage draft resistance but did not advocate directly
Charged with violating the Espionage Act
Convicted; 15 years in prison
Appealed, but Supreme Court upheld
Clear and Present Danger Test
No shouting fire in crowded theatre
Not ordinary times; at war
Abrams v. United States (1919)
Abrams and others were anarchists
Leaflets calling workers to unite against “capitalistic” government
Charged with violating Espionage Act
7-2 majority found for the government
Used clear and present danger test
Workers made goods for war
Two dissenters: Holmes and Brandeis
Gitlow v. New York (1925)
Majority now used the bad tendency test
Less stringent test; why wait for clear and present danger; spark may kindle fire
Holmes and Brandeis continued to dissent; threat of serious evil only justification
1930s Court’s composition began to change; FDR appointed a new majority
Move to incorporate the Bill of Rights began as well
Brandenburg v. Ohio (1969)
’40s and ’50s communism resurgence; renewed restrictions on speech
Eisenhower appoints Earl Warren
His Court overturned existing free speech precedent in this case
Overturned Brandenburg’s conviction
But new questions emerge: What forms of speech are protected? Pure speech? Symbolic speech?
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14. Symbolic Speech Forms of expression such as signs or symbols
First Amendment protection given
Stromberg v. California (1931)
Struck down a California law prohibiting the flying of red flag as a sign of opposition to government.
Tinker v. Des Moines Independent Community School District (1969)
Black armbands used by students to protest Vietnam War; not an absolute right, but students did not disrupt class with them.
Morse v. Frederick (2007)
Bong Hits 4 Jesus sign at a school sponsored event; principal seized banner as promoting drug use and suspended the student.
Were the student’s First Amendment rights violated?
6-3 majority of the Court said NO. Clarence Thomas went so far as to stay that students had no free speech rights and Tinker should be overturned.
Court said that school’s interest in deterring drug use by students justified their action in this case.
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15. Symbolic Speech
Symbolic speech cases often raise issues of “conduct” – actions rather than words.
Often intertwined
Is wearing an armband speech or conduct?
What of flag burning:
Texas v. Johnson (1989)
Johnson burned flag outside the 1984 Republican National Convention in Dallas.
5-4 decision; symbolic speech conveying an idea sometimes may fall within the protection of the First Amendment.
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16. Obscenity
Majority of the Court has never considered obscenity protected speech.
Problem: defining what is obscene.
Hicklin test: Regina v. Hicklin (1868) any material (whole or part, of a book, for example) that has a tendency to deprave or corrupt a child could be outlawed.
Comstock Act 1873
Illegal to mail “obscene, lewd, or lascivious” material; even included birth control and abortion information.
Fined up to $2000 and imprisoned for up to 10 years with hard labor
Used Hicklin test to uphold the law in 1877.
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17. Obscenity Roth v. United States (1957) new standard – the Roth Test
No longer used children as baseline but rather the average person “applying contemporary community standards”
Open to interpretation
Miller v. California (1973) another new standard as Court moved in a more conservative direction
Local community standards
Current tendencies
Legal definition of obscenity: hard-core pornography
Broadcast media more stringently regulated – public airwaves are scarce, so government may ban language and nudity on broadcast media that is offensive although not obscene.
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18. Libel and Slander Libel: Written defamation of character
Neither are protected by the First Amendment, but the Supreme Court has set a high standard for government officials and public figures who seek damages for defamation.
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Libel: Written defamation of character
Slander: Spoken defamation of character
New York Times v. Sullivan (1963)
Prove actual malice made with knowledge that it was false or reckless, regardless of whether it was false or not
Keep political discourse free and flowing
Malice standard makes it very difficult for public figures to win libel suits
Opinion and parody are generally immune from libel charges

19. Other Areas of Speech False Advertising
1943 Court ruled that the First Amendment does not protect commercial advertising.
But what about commercials that have some political content?
In 1970s Court struck down state laws that prevented lawyers from running advertising and that banned advertising for abortion services.
Struck down federal law that banned mailing of unsolicited ads for contraceptives.
First Amendment does not prevent government from passing laws to prevent false, misleading, or deceptive advertising.
Can require warning/informational labels on products.
Campus Speech
Campus speech codes: designed to combat discrimination and harassment, but some believe this squelches debate and limits free speech.
Supreme Court has not directly ruled on these codes, but lower courts have.
University of Michigan’s code struck down due to overly broad, vague language.
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20. Freedom of Assembly
First Amendment guarantees “the right of the people peaceably to assemble.…”
Not absolute.
Restricted property versus public property.
Westboro Baptist Church protests to highlight their belief that ills of the U.S. are God’s punishment for a society that condones homosexuality.
Picketed funeral of Matthew Shepard, who was beaten to death because he was gay.
Picketers displayed signs that said “God Hates Fags.”
30 states have passed laws that restrict graveside demonstrations.
Respect for America’s Fallen Heroes (2006) – buffer zones around military cemeteries during burials.
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22. First Amendment: Freedom of Religion
Establishment Clause
Free Exercise Clause
Make no law respecting an establishment of religion
Separation of church & state
Still disagreement as to meaning
Incorporation in 1947
Everson v. Board of Education
Federal funding
Battle between “separationists” and “accommodationists”
Prayer in school; Ten Commandments
Lemon Test
Secular purpose – intent prong
Primary effect is neither to advance or prohibit religion – effect prong
Do not lead to excessive government entanglement with religion –entanglement prong
Cantwell v. Connecticut (1941)
Religious belief v. religions action (1879) Mormonism & polygamy; Jehovah’s Witnesses and solicitation
Incorporation of the free exercise clause
The Gobitis case (1940)
Mandatory flag salutes and Jehovah’s Witnesses; upheld by Court as it had a legitimate secular purpose: fostering patriotism
Violence against the group; called un-American
The Barnette case (1943)
Reversed Gobitis; found that flag salute was a form of symbolic expression and that for the government to compel such expression violated the First Amendment
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23. Right to Privacy Natural Rights
Basic rights that all human beings are entitled to, whether or not they are formally recognized by government
Is this a means for the Court to “find” new rights in the Constitution?
Griswold v. Connecticut (1965)
Used constitutional right of privacy to strike down a law
Where did this right to privacy come from?
Justice Douglas: It is implied in the language in the Bill of Rights
Free speech and assembly = freedom to associate, which implies a right to privacy in one’s associations
Third Amendment: right not to quarter solders: zone of privacy
Fourth Amendment: ban against unreasonable search and seizure
Fifth Amendment: ban on self-incrimination
Others, such as Hugo Black, argued there was no specific provision in the Constitution that prohibited the government in Connecticut from denying couples the right to use birth control.
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24. Abortion Griswold paved the way for Roe v. Wade (1973)
Texas law criminalized abortion. Was that law constitutional?
7-2 decision: Court ruled it was not constitutional, but in its decision, it tried to balance two competing constitutional rights
Privacy right of a woman to control her own body
State’s interest in protecting the life of the fetus
Justice Harry Blackman wrote the majority opinion
When did the state have a compelling interest in protecting the life of the fetus? At conception? When it developed into a “person”?
He attempted to compromise with the point at which a fetus could survive outside the womb (viability established at the end of the second trimester)
Established “trimester framework”; a middle-ground position which came under attack from both sides
Science and technology: Babies could survive earlier in the process and the Court changed composition.
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25. Abortion
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Would Roe v. Wade be overturned?
5-4 decision abandoned the trimester framework, but reaffirmed the “central tenet” of Roe.
A woman's right to choose is still constitutionally protected, however, the "strict scrutiny" standard was eliminated in favor of a lesser standard of protection for reproductive choice called "undue burden."
Under Casey, state and local laws that favor fetal rights and burden a woman's choice to have abortion are permitted, so long as the burden is not "undue."
Abortion is a very contentious issue in the U.S.
If Roe is overturned, each state will need to decide whether or not to allow abortions, unless Congress establishes a uniform policy for the entire country.
Political fights over the issue would likely be fierce.
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27. Other Rights Related to Privacy
Rights of Homosexuals
Right to Die
Bowers v. Hardwick (1986)
State made it a felony to engage in sodomy; applied to everyone
Civil suit: claimed his right to privacy was violated
5-4 vote Court rejected the claim and upheld the GA law claiming it had a rational basis.
Dissenters used strict scrutiny & said it violated the right to privacy
Case overturned in Lawrence v. Texas (2003)
These laws criminalizing private, consensual actions had no rational basis
Same-sex marriage
Complicated issue
Cruzan v. Director, Missouri Department of Health (1990)
Court balanced competing interests
Patients have right to refuse treatment BUT the state had a right to protect life
Need “clear and convincing” evidence that patient would want life support refused
Later ruled right to privacy does not include suicide
Only one state allows doctor-assisted suicide (Oregon), and Court rejected effort to block that law.
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28. Rights of Criminal Defendants
Only those specific guarantees of the Bill of Rights that the Court has deemed “fundamental” have become incorporated “selectively”
But ambiguities still exist: right to jury trial in criminal cases, but what about the size of the jury?
Some judicial opinions have expanded these rights: Gideon v. Wainwright (1963)
Lawyer for those who could not afford one
Miranda v. Arizona (1966)
Weeks v. United States (1924)
Exclusionary rule in federal cases
Mapp v. Ohion (1961) applied exclusionary rule to states
Controversial: some argue it goes too far to protect the rights of criminal defendants.
Good faith exceptions
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29. The Death Penalty
The Eighth Amendment bans “cruel and unusual punishment.”
U.S. has the fifth highest rate of confirmed executions in the world behind China, Iran, North Korea and Yemen.
34 states administer the death penalty.
Majority of Americans support the death penalty.
Does this mean that capital punishment violates that ban? IF not, then what types of execution are constitutional?
Controversies:
Lethal injections with improper administration
Random and arbitrary imposition of death penalty not constitutional
Excessive form of punishment for certain types of crime
Age and mental conditions must be considered
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31. Terrorism and Civil Liberties
Does combating terrorism justify restriction on civil liberties?
USA Patriot Act
Warrantless wiretaps
Treatment of suspected terrorists: indefinite detention; no charge or access to lawyer
Hamdi v. Rumsfeld (2006)
U.S. citizens, including terror suspects, have the constitutional right to consult a lawyer and to contest their detention before an independent tribunal.
Hamdan v. Rumsfeld (2006)
Military commissions were not authorized by Congress and violated international law and could not be used as a means to try detainees.
Congress addressed this by passing a law authorizing them. Were banned by Obama administration, but they rescinded the ban in 2011.
Does warding off terrorism justify rescinding civil rights? Court has generally decided that it does not.
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