Civil Liberties

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

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

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

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

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

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)

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

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

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”

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

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

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

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

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

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.

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.

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).

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”

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

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

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).

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.” http://www.oyez.org/cases/2000-2009/2009/2009_08_1521 - Interesting because of reasons

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

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

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

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.

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

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

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.

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

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

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

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)

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

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.

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.

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

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

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

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