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1 CIVIL LIBERTIES. 2 FIRST AMENDMENT Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or.

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Presentation on theme: "1 CIVIL LIBERTIES. 2 FIRST AMENDMENT Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or."— Presentation transcript:

1 1 CIVIL LIBERTIES

2 2 FIRST AMENDMENT Congress 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. Congress 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. 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 couldnt do. Not what it couldnt do. –Anything else, left to the _________. 3

4 Background to Civil Liberties Continued… Historically contentious for 3 reasons. Historically contentious for 3 reasons. –Bill of Rights is contradictory. Medias right to broadcast a trial vs. an individuals right to a fair trial. Medias right to broadcast a trial vs. an individuals right to a fair trial. –Casey Anthony? George Zimmerman? Government officials are good at restricting the rights of a minority in times of emergency Government officials are good at restricting the rights of a minority in times of emergency –Cold War- Cong required Communists to register Immigrants and racial minorities create(d) cultural conflicts. Immigrants and racial minorities create(d) cultural conflicts. –Jews vs. a towns nativity scene. English as the national lang? 4

5 Selective Incorporation 14 th Amendment: created the possibility that the B of R would apply to states. 14 th Amendment: created the possibility that the B of R would apply to states. –Based on the due process clause –Gitlow v. NY (1925): a persons fundamental rights are protected from infringement from the states because of 14. Most of the rights have been incorporated (applied to the states). Most of the rights have been incorporated (applied to the states). Most recent, 2 nd with gun ownership in D.C. and Chicago. Most recent, 2 nd with gun ownership in D.C. and Chicago. 5

6 6 First Amendment questions What constitutes the establishment of religion? What is the wall of separation ? What constitutes the establishment of religion? What is the wall of separation ? What is the abridgement of free exercise ? What is the abridgement of free exercise ? How far does freedom of speech go? Is symbolic speech (non-spoken) also protected? How far does freedom of speech go? Is symbolic speech (non-spoken) also protected? Is obscenity protected ? What is clear and present danger ? Is obscenity protected ? What is clear and present danger ?

7 7 First Amendment questions… Free press and the right to know Free press and the right to know - what is prior restraint ? - is libel protected? - is the electronic media covered? What is peaceable assembly ? What is peaceable assembly ? How do you petition the government ? How do you petition the government ?

8 8 First Amendment cases: Religion Establishment Clause Everson v. Board of Education (1947) Everson v. Board of Education (1947) prohibits laws that benefit religion - prohibits laws that benefit religion - must be a wall of separation must be a wall of separation * incorporates Establishment Clause Engel v. Vitale (1962) Engel v. Vitale (1962) school prayer Abington School District v. Schemp (1963) Abington School District v. Schemp (1963) no bible reading – was a religious exercise by the state

9 9 Establishment Clause Lemon v. Kurtzman (1971) Lemon v. Kurtzman (1971) *Lemon Test ( 3 part precedent) 1. policy must be secular 2. primary effect neither advances nor inhibits religion religion 3. must avoid excessive entanglement of government & religion government & religion Wallace v. Jaffree (1985) Wallace v. Jaffree (1985) moment of silence- intent of the law was to restore prayer in school

10 10 Establishment Clause Lynch v. Donnelly ( 1984) Lynch v. Donnelly ( 1984) religious displays ok if contain some secular religious displays ok if contain some secular symbols (Rehnquist Ct & Ten Commandments 2005: symbols (Rehnquist Ct & Ten Commandments 2005: KY case finds display in courtroom lacks secular purpose purpose TX case allowed outdoor display as a balance of freedom and tradition) freedom and tradition) Lee v. Weisman (1992) Lee v. Weisman (1992) graduation prayers are a coercion of religion Santa Fe School District v. Doe (2000) Santa Fe School District v. Doe (2000) prayer at a high school football game is coercion

11 11 Establishment Clause Rehnquist Court Rehnquist Court - moving away from the wall of separation between religion & govt - opinions are now allowing the encouragement of religion but not the coercion or the endorsement of it

12 12 Free Exercise Minersville v. Gobitis (1940) overturned by Minersville v. Gobitis (1940) overturned by W. Va. V. Barnette (1943) flag salute – cannot be forced to salute (also applied to pledge of allegiance currently (also applied to pledge of allegiance currently in the Newdow case) in the Newdow case) Church of Lukimi Babalau Aye v. Hialeah (1993) religious animal sacrifice & substantive due process Church of Lukimi Babalau Aye v. Hialeah (1993) religious animal sacrifice & substantive due process

13 13 Freedom of the Press Near v. Minnesota (1931) Near v. Minnesota (1931) no prior restraint * Incorporates free press to all states * Incorporates free press to all states New York Times v. U.S. (1971) New York Times v. U.S. (1971) Pentagon Papers – national security v. publics right to know Hazelwood v. Kuhlmeier (1988) Hazelwood v. Kuhlmeier (1988) prior restraint of student press by school administration allowed school administration allowed

14 14 Freedom of Speech Non-protected Speech Schenck v. U.S. (1919) Schenck v. U.S. (1919) speech that presents a clear & present danger danger Gitlow v. New York (1925) Gitlow v. New York (1925) subversive speech is not protected from subversive speech is not protected from government regulation government regulation * Incorporates freedom of speech to the states

15 Freedom of Speech Not protected… Not protected… –Libel (written defamation) and slander (spoken) Must be with malice, reckless disregard for the truth, with knowledge the words are false. Must be with malice, reckless disregard for the truth, with knowledge the words are false. –Some obscenity Porn stores, theaters given to towns. Internet, TV, generally protected. Porn stores, theaters given to towns. Internet, TV, generally protected. Simulated child pornography protected. Simulated child pornography protected. 15

16 Freedom of Speech –Symbolic speech is NOT protected when it involves an illegal act Burning a draft card not OK, burning flag OK Burning a draft card not OK, burning flag OK 16

17 17 Freedoms of Speech Non-protected Speech Dennis v. U.S. (1951) Dennis v. U.S. (1951) Smith Act and seditious speech to overthrow government government Brandenburg v. Ohio (1969) Brandenburg v. Ohio (1969) speech must be directly related to imminent lawless action to be suppressed not just lawless action to be suppressed not just advocacy of action (KKK case) advocacy of action (KKK case)

18 18 Freedom of Speech Non-protected Speech Miller v. CA. (1973) Miller v. CA. (1973) test for obscenity in speech: test for obscenity in speech: If the community standards find that: 1.the average person would find the speech or work appeals only to prurient interests 2.the work is patently offensive 3. the work taken as a whole lacks serious literary, artistic, political, or scientific value

19 19 Freedom of Speech Non-protected Speech Bethel v. Fraser (1986) Bethel v. Fraser (1986) first amendment does not prevent school officials from banning lewd school officials from banning lewd speech that would undermine the speech that would undermine the schools basic educational mission schools basic educational mission

20 20 Freedom of Speech Protected Speech includes written, spoken, symbolic speech & assembly and speech that you hate includes written, spoken, symbolic speech & assembly and speech that you hate Buckley v. Valeo (1976) Buckley v. Valeo (1976) campaign contributions to own campaign are free speech free speech Reno v. ACLU (1997) Reno v. ACLU (1997) struck down internet law which banned child access to pornography as a violation of adults access to pornography as a violation of adults first amendment rights first amendment rights

21 21 Freedom of Speech Protected Symbolic Speech R.A.V. v. City of St. Paul (1992) R.A.V. v. City of St. Paul (1992) cross burning is not one of the cross burning is not one of the categories of speech that can be limited categories of speech that can be limited Tinker v. Des Moines (1969) Tinker v. Des Moines (1969) student silent protest with armbands is not disruptive to the educational not disruptive to the educational process process

22 22 Freedom of Speech Protected Symbolic Speech Texas v. Johnson (1989) Texas v. Johnson (1989) flag burning is protected under this amendment (Court ruled on it twice) amendment (Court ruled on it twice) Schenck v. Pro Choice Network (1997) Schenck v. Pro Choice Network (1997) floating buffer zones around abortion clinics floating buffer zones around abortion clinics offend free speech offend free speech

23 23 Second 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. 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.

24 24 Second Amendment U.S. v. Miller (1939) U.S. v. Miller (1939) registration of sawed-off shotguns does not violate the Second Amendment violate the Second Amendment Printz v. U.S. (1997) Printz v. U.S. (1997) federal government (via Brady Bill) cannot compel states to administer a federal regulatory program federal regulatory program (background check) – really a federalism (background check) – really a federalism issue issue

25 25 Third 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. * Never been the subject of a Supreme Court decision except in support of the 9 th Amendment in Griswold v. Conn.

26 26 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.

27 27 Fourth Amendment Questions What is probable cause ? What is probable cause ? When is a warrantless search allowed ? When is a warrantless search allowed ? What is a reasonable search ? What is a reasonable search ? What the exclusionary rule? What the exclusionary rule?

28 28 Fourth Amendment Probable Cause is where the facts & circumstances within an officers 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 be decided by a neutral magistrate must describe in detail the place, person & things must describe in detail the place, person & things

29 29 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 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. Reasonable searches would be with a warrant or without a warrant if there is probable cause.

30 30 Fourth Amendment What types of searches could be warrantless reasonable searches ? 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 authorized and not coerced

31 31 Fourth Amendment When is a warrant needed? When is a warrant needed? - an arrest in a persons home - search of a home or office When is a warrant not needed? (warrantless search) 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

32 32 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. 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 can be seen in some Supreme Court interpretations interpretations

33 33 Fourth Amendment Expectation of Privacy Katz 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) – 4 th Amend. Protects the people (Katz) not the place (phone booth) (Current Issue: cell phones & Patriot Act – are the people protected?) (Current Issue: cell phones & Patriot Act – are the people protected?)

34 34 Fourth Amendment Warrantless Searches Wolf v. Colorado (1949) - *Incorporated no unreasonable search & seizure clause 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) Mapp 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 allowed Terry v. Ohio (1968) – stop & frisk search for weapons is allowed Minnesota v. Dickerson (1993) – frisk also allowed for contraband Minnesota v. Dickerson (1993) – frisk also allowed for contraband

35 35 Fourth Amendment Warrantless Searches Chimel v. CA (1969) – search incident to arrest is limited to area under the persons immediate control in search incident to arrest Chimel v. CA (1969) – search incident to arrest is limited to area under the persons 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) 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 New Jersey v. T.L.O. (1985) – schools only need reasonable suspicion not probable cause for a search

36 36 Fourth Amendment Warrantless Searches (drugs) Skinner v. Railway Laborers (1989) – federal transportation workers can be drug tested due to assurance of safety of railroads Skinner v. Railway Laborers (1989) – federal transportation workers can be drug tested due to assurance of safety of railroads * Chandler v. Miller (1997) – but not * Chandler v. Miller (1997) – but not election candidates election candidates Vernonia v. Acton (1995) – student athletes can Vernonia v. Acton (1995) – student athletes can be tested / safety/ diminished expectation of privacy be tested / safety/ diminished expectation of privacy Potowatamie v. Earls (2002) – all student Potowatamie v. Earls (2002) – all student activities participants – diminished expectation of privacy activities participants – diminished expectation of privacy

37 37 Fourth Amendment Warrantless Searches U.S. v. Ramirez (1998) – good faith exception to the knock rule U.S. v. Ramirez (1998) – good faith exception to the knock rule Vehicle Searches U.S. v. Ross (1982) – with probable cause to suspect drugs/contraband may search entire car (the automobile exception) U.S. v. Ross (1982) – with probable cause to suspect drugs/contraband may search entire car (the automobile exception)

38 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 cause CA. v. Acevedo (1991) – diminished expectation of privacy for cars– also search of container in trunk is allowed with probable cause Maryland v. Wilson (1997) – can search passengers Maryland v. Wilson (1997) – can search passengers Wyoming v. Houghton (1999) – can search personal items Wyoming v. Houghton (1999) – can search personal items

39 39 Fourth Amendment Vehicle Searches Knowles v. Iowa (1998) – search not allowed w/out arrest or probable cause Knowles v. Iowa (1998) – search not allowed w/out arrest or probable cause 2005: Illinois v. Caballes – drug dogs & traffic stop 2005: Illinois v. Caballes – drug dogs & traffic stop Public Vehicle Searches Fl v. Bostick (1991) – ok to search passengers luggage with consent Fl v. Bostick (1991) – ok to search passengers luggage with consent Bond v. U.S. (2000) – manipulation of luggage is not ok Bond v. U.S. (2000) – manipulation of luggage is not ok

40 40 Fifth Amendment No 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 41 Fifth Amendment Compelled, 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 42 Sixth Amendment In 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 In 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 43 Sixth Amendment compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

44 44 Fifth & Sixth Amendments What constitutes self-incrimination? What constitutes self-incrimination? What is covered under due process ? What is covered under due process ? Can a trial be too speedy & public to be fair? Can a trial be too speedy & public to be fair? How must you be informed of charges ? How must you be informed of charges ? What constitutes right to counsel ? What constitutes right to counsel ?

45 45 Fifth & Sixth Amendments Escobedo v. Illinois (1964) – information obtained unlawfully in an interrogation (ie. Coerced confession) cannot be used in court Escobedo v. Illinois (1964) – information obtained unlawfully in an interrogation (ie. Coerced confession) cannot be used in court Miranda v. Arizona (1966) – set procedural safeguards after arrest (you have the right to remain silent…) Miranda 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 Davis v. U.S. (1994) – request for lawyer must be clear

46 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 Congress Dickerson v. U.S. (2000) – applies Miranda to custodial interrogation in federal & state-Miranda may not be overruled by act of Congress Missouri v. Seibert (2003) – ok to admit statements made before Miranda warning if made again after warning Missouri v. Seibert (2003) – ok to admit statements made before Miranda warning if made again after warning Kelo v. New London (2005)– eminent domain seizure for public good Kelo v. New London (2005)– eminent domain seizure for public good

47 47 Fifth & Sixth Amendments Powell v. Alabama (1932) - * Incorporated right to counsel in capital cases Powell v. Alabama (1932) - * Incorporated right to counsel in capital cases Gideon 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 pauperus Gideon 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 pauperus Korematsu v. U.S. (1944) – during wartime govt may take extreme measures (that deny due process) Korematsu v. U.S. (1944) – during wartime govt 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) Sheppard v. Maxwell (1966) – if a judge does not have control of the courtroom there cannot be a fair trial ( The Fugitive)

48 48 Seventh Amendment In 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 49 Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

50 50 Eighth Amendment Cruel & Unusual Punishment (Death Penalty) Robinson v. CA (1962) - * Incorporates the cruel & unusual punishment clause Robinson v. CA (1962) - * Incorporates the cruel & unusual punishment clause Furman v. GA (1972) – application of the death penalty in GA is cruel & unusual (all states suspend death penalty for four years) Furman 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 Gregg v. GA (1976) – arbitrary application of the death penalty corrected – penalty re-established in most states

51 51 Eighth Amendment Cruel & Unusual Punishment (Death Penalty) Buchanan v. Angelone (1998) – mitigating circumstances & the death penalty – absence of jury instruction on mitigating circumstances does not violate 8 th amendment Buchanan v. Angelone (1998) – mitigating circumstances & the death penalty – absence of jury instruction on mitigating circumstances does not violate 8 th amendment Atkins v. Virginia (2002) – prohibits death penalty for mentally retarded Atkins v. Virginia (2002) – prohibits death penalty for mentally retarded Roper v. Simmons ( 2005) – prohibits death penalty for those 18 years of age & under Roper 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 Act 9-11 led to Cong passing the PATRIOT Act –Gov can tap any phone used by a suspect with a court order. –Can tap any internet with a court order –Can seize voic with a court order –Investigators can share info learned in a grand jury –Any noncitizen can be held for 7 days or longer –Can track $ across borders –No statute of limitations for terrorism. –Any noncitizen gets tried in military court (exec order) 52

53 Civil Liberties and Terrorism Why is the PATRIOT Act an issue? Why is the PATRIOT Act an issue? –Increases police powers… investigate ppl with no terrorist ties. –Investigations are done in secret –NSA was found to intercept all oversees phone and s. Bush argued that it did not have time to get court orders Bush argued that it did not have time to get court orders Foreign Intelligence Surveillance Act Court…. Foreign Intelligence Surveillance Act Court…. 53


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