2 FIRST AMENDMENTCongress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.
3 Background to Civil Liberties Framers wanted 3 things.Limit federal powers and protect the state constitutions.Wanted the Constitution to proclaim what the federal government could do.Not what it couldn’t do.Anything else, left to the _________.
4 Background to Civil Liberties Continued… Historically contentious for 3 reasons.Bill of Rights is contradictory.Media’s right to broadcast a trial vs. an individual’s right to a fair trial.Casey Anthony? George Zimmerman?Government officials are good at restricting the rights of a minority in times of ‘emergency’Cold War- Cong required Communists to registerImmigrants and racial minorities create(d) cultural conflicts.Jews vs. a town’s nativity scene. English as the national lang?
5 Selective Incorporation 14th Amendment: created the possibility that the B of R would apply to states.Based on the “due process clause”Gitlow v. NY (1925): a person’s fundamental rights are protected from infringement from the states because of 14.Most of the rights have been “incorporated” (applied to the states).Most recent, 2nd with gun ownership in D.C. and Chicago.
6 First Amendment questions What constitutes the establishment of religion? What is the wall of separation ?What is the abridgement of free exercise ?How far does freedom of speech go? Is symbolic speech (non-spoken) also protected?Is obscenity protected ? What is clear and present danger ?
7 First Amendment questions… Free press and the right to know- what is prior restraint ?- is libel protected?- is the electronic media covered?What is peaceable assembly ?How do you petition the government ?
8 First Amendment cases: Religion Establishment ClauseEverson v. Board of Education (1947)prohibits laws that benefit religion -must be a “wall of separation”* incorporates Establishment ClauseEngel v. Vitale (1962)school prayerAbington School District v. Schemp (1963)no bible reading – was a religious exercise by the state
9 Establishment Clause Lemon v. Kurtzman (1971) *Lemon Test ( 3 part precedent)1. policy must be secular2. primary effect neither advances nor inhibitsreligion3. must avoid “excessive entanglement” ofgovernment & religionWallace v. Jaffree (1985)moment of silence- intent of the law was to restore prayer in school
10 Establishment Clause Lynch v. Donnelly ( 1984) religious displays ok if contain some secularsymbols (Rehnquist Ct & Ten Commandments 2005:KY case finds display in courtroom lacks secularpurposeTX case allowed outdoor display as a balance offreedom and tradition)Lee v. Weisman (1992)graduation prayers are a coercion of religionSanta Fe School District v. Doe (2000)prayer at a high school football game is coercion
11 Establishment Clause Rehnquist Court - moving away from the “wall of separation” between religion & gov’t- opinions are now allowing the encouragement of religion but not the coercion or the endorsement of it
12 Free Exercise Minersville v. Gobitis (1940) overturned by W. Va. V. Barnette (1943)flag salute – cannot be forced to salute(also applied to pledge of allegiance currentlyin the Newdow case)Church of Lukimi Babalau Aye v. Hialeah (1993) religious animal sacrifice & substantive due process
13 Freedom of the Press Near v. Minnesota (1931) no prior restraint * Incorporates free press to all statesNew York Times v. U.S. (1971)“Pentagon Papers” – national securityv. public’s right to knowHazelwood v. Kuhlmeier (1988)prior restraint of student press byschool administration allowed
14 Freedom of Speech Non-protected Speech Schenck v. U.S. (1919) speech that presents a “clear & presentdanger”Gitlow v. New York (1925)subversive speech is not protected fromgovernment regulation* Incorporates freedom of speech to the states
15 Freedom of Speech Not protected… Libel (written defamation) and slander (spoken)Must be with malice, reckless disregard for the truth, with knowledge the words are false.Some obscenityPorn stores, theaters given to towns. Internet, TV, generally protected.Simulated child pornography protected.
16 Freedom of SpeechSymbolic speech is NOT protected when it involves an illegal actBurning a draft card not OK, burning flag OK
17 Freedoms of Speech Non-protected Speech Dennis v. U.S. (1951) Smith Act and seditious speech to overthrowgovernmentBrandenburg v. Ohio (1969)speech must be directly related to imminentlawless action to be suppressed not justadvocacy of action (KKK case)
18 Freedom of Speech Non-protected Speech Miller v. CA. (1973)test for obscenity in speech:If the community standards find that:the average person would find the speech or work appeals only to prurient intereststhe work is patently offensive3. the work taken as a whole lacks serious literary, artistic, political, or scientific value
19 Freedom of Speech Non-protected Speech Bethel v. Fraser (1986) first amendment does not preventschool officials from banning lewdspeech that would undermine theschool’s basic educational mission
20 Freedom of Speech Protected Speech includes written, spoken, symbolic speech & assembly and speech that you hateBuckley v. Valeo (1976)campaign contributions to own campaign arefree speechReno v. ACLU (1997)struck down internet law which banned childaccess to pornography as a violation of adult’sfirst amendment rights
21 Protected Symbolic Speech Freedom of SpeechProtected Symbolic SpeechR.A.V. v. City of St. Paul (1992)cross burning is not one of thecategories of speech that can be limitedTinker v. Des Moines (1969)student silent protest with armbands isnot disruptive to the educationalprocess
22 Protected Symbolic Speech Freedom of SpeechProtected Symbolic SpeechTexas v. Johnson (1989)flag burning is protected under thisamendment (Court ruled on it twice)Schenck v. Pro Choice Network (1997)floating buffer zones around abortion clinicsoffend free speech
23 Second AmendmentA 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.
24 Second Amendment U.S. v. Miller (1939) registration of sawed-off shotguns does notviolate the Second AmendmentPrintz v. U.S. (1997)federal government (via Brady Bill)cannot compel states to administer afederal regulatory program(background check) – really a federalismissue
25 Third AmendmentNo 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.* Never been the subject of a Supreme Court decision except in support of the 9th Amendment in Griswold v. Conn.
26 Fourth AmendmentThe 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.
27 Fourth Amendment Questions What is probable cause ?When is a warrantless search allowed ?What is a reasonable search ?What the exclusionary rule?
28 Fourth AmendmentProbable 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 magistratemust describe in detail the place , person & things
29 Fourth AmendmentReasonable 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.
30 Fourth AmendmentWhat types of searches could be warrantless reasonable searches ?- sobriety checkpoints- border crossings / airports- drug testing- student searches- consent searches which must beauthorized and not coerced
31 Fourth Amendment When is a warrant needed? - an arrest in a person’s home- search of a home or officeWhen 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
32 Fourth AmendmentThe 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 ascan be seen in some Supreme Courtinterpretations
33 Expectation of Privacy Fourth AmendmentExpectation of PrivacyKatz v. U.S. (1967) - there can be no use of wiretaps without a warrant – even in a phone booth this overruled Olmstead v. U.S. (1928) – 4th Amend. Protects the people (Katz) not the place (phone booth)(Current Issue: cell phones & Patriot Act – are the ‘people’ protected?)
34 Fourth Amendment Warrantless Searches Wolf v. Colorado (1949) - *Incorporated no unreasonable search & seizure clauseMapp v. Ohio (1961) – must have probable cause or evidence can be excluded (*Incorporated the exclusionary rule)Terry v. Ohio (1968) – stop & frisk search for weapons is allowedMinnesota v. Dickerson (1993) – frisk also allowed for contraband
35 Fourth Amendment Warrantless Searches Chimel v. CA (1969) – search incident to arrest is limited to area under the person’s immediate control in ‘search incident to arrest’U.S. v. Leon (1984) – police can search on “good faith” that info given for probable cause is correct (good faith exception)New Jersey v. T.L.O. (1985) – schools only need reasonable suspicion not probable cause for a search
36 Warrantless Searches (drugs) Fourth AmendmentWarrantless Searches (drugs)Skinner v. Railway Laborers (1989) – federal transportation workers can be drug tested due to assurance of safety of railroads* Chandler v. Miller (1997) – but notelection candidatesVernonia v. Acton (1995) – student athletes canbe tested / safety/ diminished expectation of privacyPotowatamie v. Earls (2002) – all studentactivities participants – diminished expectation of privacy
37 Fourth Amendment Warrantless Searches U.S. v. Ramirez (1998) – “good faith” exception to the “knock” ruleVehicle SearchesU.S. v. Ross (1982) – with probable cause to suspect drugs/contraband may search entire car (the automobile exception)
38 Fourth Amendment Vehicle Searches CA. v. Acevedo (1991) – diminished expectation of privacy for cars– also search of container in trunk is allowed with probable causeMaryland v. Wilson (1997) – can search passengersWyoming v. Houghton (1999) – can search personal items
39 Public Vehicle Searches Fourth AmendmentVehicle SearchesKnowles v. Iowa (1998) – search not allowed w/out arrest or probable cause2005: Illinois v. Caballes – drug dogs & traffic stopPublic Vehicle SearchesFl v. Bostick (1991) – ok to search passengers luggage with consentBond v. U.S. (2000) – manipulation of luggage is not ok
40 Fifth AmendmentNo person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of an indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger; not shall anyone be subject for the same offense to be twice put in jeopardy life and limb; nor shall be
41 Fifth AmendmentCompelled, in any criminal case, to be a witness against himself; 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.
42 Sixth AmendmentIn all criminal prosecutions, the accused shall enjoy the right to a speedy & 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 witness against him; to have
43 Sixth Amendmentcompulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
44 Fifth & Sixth Amendments What constitutes self-incrimination?What is covered under due process ?Can a trial be too speedy & public to be fair?How must you be informed of charges ?What constitutes right to counsel ?
45 Fifth & Sixth Amendments Escobedo v. Illinois (1964) – information obtained unlawfully in an interrogation (ie. Coerced confession) cannot be used in courtMiranda v. Arizona (1966) – set procedural safeguards after arrest (“you have the right to remain silent…”)Davis v. U.S. (1994) – request for lawyer must be clear
46 Fifth & Sixth Amendments Dickerson v. U.S. (2000) – applies Miranda to custodial interrogation in federal & state-Miranda may not be overruled by act of CongressMissouri v. Seibert (2003) – ok to admit statements made before Miranda warning if made again after warningKelo v. New London (2005)– eminent domain seizure for ‘public good’
47 Fifth & Sixth Amendments Powell v. Alabama (1932) - * Incorporated right to counsel in capital casesGideon v. Wainwright (1963) – overturned Betts v. Brady and gave right to counsel for all felony cases – *Incorporated right to counsel in felony cases to states *in forma pauperusKorematsu v. U.S. (1944) – during wartime gov’t may take extreme measures (that deny due process)Sheppard v. Maxwell (1966) – if a judge does not have control of the courtroom there cannot be a fair trial ( ‘The Fugitive’)
48 Seventh AmendmentIn suits in common law, where the controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be reexamined in any court of the Unites States other than according to the rules of common law.
49 Eighth AmendmentExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
50 Cruel & Unusual Punishment Eighth AmendmentCruel & Unusual Punishment(Death Penalty)Robinson v. CA (1962) - * Incorporates the cruel & unusual punishment clauseFurman v. GA (1972) – application of the death penalty in GA is cruel & unusual (all states suspend death penalty for four years)Gregg v. GA (1976) – arbitrary application of the death penalty corrected – penalty re-established in most states
51 Cruel & Unusual Punishment Eighth AmendmentCruel & Unusual Punishment(Death Penalty)Buchanan v. Angelone (1998) – mitigating circumstances & the death penalty – absence of jury instruction on mitigating circumstances does not violate 8th amendmentAtkins v. Virginia (2002) – prohibits death penalty for mentally retardedRoper v. Simmons ( 2005) – prohibits death penalty for those 18 years of age & under
52 Civil Liberties and Terrorism 9-11 led to Cong passing the PATRIOT ActGov can tap any phone used by a suspect with a court order.Can tap any internet with a court orderCan seize voic with a court orderInvestigators can share info learned in a grand juryAny noncitizen can be held for 7 days or longerCan track $ across bordersNo statute of limitations for terrorism.Any noncitizen gets tried in military court (exec order)
53 Civil Liberties and Terrorism Why is the PATRIOT Act an issue?Increases police powers… investigate ppl with no terrorist ties.Investigations are done in secretNSA was found to intercept all oversees phone and s.Bush argued that it did not have time to get court ordersForeign Intelligence Surveillance Act Court….