Civil Liberties

Constitutional protections an individual has against government—things govt. cannot take away Constitutional protections an individual has against government—things govt. cannot take away To understand them, we will look at 3 pts. To understand them, we will look at 3 pts. Why liberties in the BOR are important Why liberties in the BOR are important How they came to apply to the states How they came to apply to the states Why they have grown Why they have grown

Background of Civil Liberties Why did the original constitution not have a BOR? Why did the original constitution not have a BOR? Framers had 3 objectives in regards to civil liberties Framers had 3 objectives in regards to civil liberties 1. Limit the federal powers (“Congress shall make no law…”) 1. Limit the federal powers (“Congress shall make no law…”) 2. Constitution was meant for what govt. could do, not what they could not do 2. Constitution was meant for what govt. could do, not what they could not do 3. Any mention of what they could not do was meant to apply to federal govt., not state govt. 3. Any mention of what they could not do was meant to apply to federal govt., not state govt.

Issues with Civil Liberties BOR contains competing rights BOR contains competing rights Rights of one group may conflict with the rights of another Rights of one group may conflict with the rights of another Government officials have sometimes taken action against the rights of political or religious grps. Government officials have sometimes taken action against the rights of political or religious grps. During WWI it was made a crime to utter statements that would interfere with the draft During WWI it was made a crime to utter statements that would interfere with the draft Cultural conflicts due to immigration Cultural conflicts due to immigration

Before Civil War Barron v. Baltimore Barron v. Baltimore Barron argued that the 5 th Amendment should apply to the city of Baltimore (eminent domain) Barron argued that the 5 th Amendment should apply to the city of Baltimore (eminent domain) John Marshall of the Supreme Court interpreted that BOR restrained only the federal govt., not the states and cities John Marshall of the Supreme Court interpreted that BOR restrained only the federal govt., not the states and cities Confirmed the idea of “dual citizenship” Confirmed the idea of “dual citizenship” This remained unchallenged until after the civil war This remained unchallenged until after the civil war

After the Civil War 14 th Amendment was passed to protect the rights of recently freed slaves (1868) 14 th Amendment was passed to protect the rights of recently freed slaves (1868) The first section contains three sections that limit the state govt. The first section contains three sections that limit the state govt. Privileges and Immunities— “single citizenship” Privileges and Immunities— “single citizenship” Due Process Clause—prohibits abuse of “life, liberty, or property” Due Process Clause—prohibits abuse of “life, liberty, or property” Equal Protection Clause—basis for civil rights mvt. Equal Protection Clause—basis for civil rights mvt.

Slaughter-House Cases Louisiana govt. issued a corporation monopoly over slaughterhouse business—other companies sued as a violation of 5 th Amendment Louisiana govt. issued a corporation monopoly over slaughterhouse business—other companies sued as a violation of 5 th Amendment Supreme Court determined that the federal government was under no obligation to protect the “privileges and immunities” of citizens of a particular state against arbitrary actions by the that state’s govt. Supreme Court determined that the federal government was under no obligation to protect the “privileges and immunities” of citizens of a particular state against arbitrary actions by the that state’s govt. Claimed 14 th Amendment only applied to protect former slaves Claimed 14 th Amendment only applied to protect former slaves

Incorporation of the 14 th Amendment Incorporation -the legal concept under which the Supreme Court has nationalized the BOR by making most of its provisions applicable to the states through the 14 th Amendment (Gitlow v. New York) Incorporation -the legal concept under which the Supreme Court has nationalized the BOR by making most of its provisions applicable to the states through the 14 th Amendment (Gitlow v. New York) Total Incorporation Total Incorporation Supreme Court to apply the entire BOR to the states Supreme Court to apply the entire BOR to the states Selective Incorporation Selective Incorporation Supreme Court to decide, on a case-by-case basis, which provisions of the Bill of Rights it wished to apply to the states Supreme Court to decide, on a case-by-case basis, which provisions of the Bill of Rights it wished to apply to the states

Incorporation Cases Gitlow v. New York Gitlow v. New York Freedom of Speech Freedom of Speech Near v. Minnesota Near v. Minnesota Freedom of Press Freedom of Press Powell v. Alabama Powell v. Alabama Right to Counsel in capital cases Right to Counsel in capital cases DeJonge v. Oregon DeJonge v. Oregon Freedom of Assembly, right to petition Freedom of Assembly, right to petition Cantwell v. Connecticut Cantwell v. Connecticut Free exercise of religion Free exercise of religion

Incorporation Cases Everson v. Board of Education Everson v. Board of Education No establishment of religion No establishment of religion Wolf v. Colorado Wolf v. Colorado Right against unreasonable search and seizure Right against unreasonable search and seizure Mapp v. Ohio Mapp v. Ohio Exclusionary rule Exclusionary rule Gideon v. Wainwright Gideon v. Wainwright Right to counsel in felony cases Right to counsel in felony cases Griswold v. Connecticut Griswold v. Connecticut Privacy Privacy

1 st Amendment & Freedom of Speech Government has felt the right to limit this freedom the most during times of war or matters of national security Government has felt the right to limit this freedom the most during times of war or matters of national security Court has had to balance freedom of expression against values like public order, national security, and the right to a fair trial Court has had to balance freedom of expression against values like public order, national security, and the right to a fair trial

Conditionally Protected Speech Libel—the publication of false statements that are malicious and damage a person’s reputation Libel—the publication of false statements that are malicious and damage a person’s reputation Obscenity—Not protected by 1 st Amendment unless it has political, literary, or artistic merit Obscenity—Not protected by 1 st Amendment unless it has political, literary, or artistic merit Difficult for the Court to define a & therefore is more regulated by state govt. Difficult for the Court to define a & therefore is more regulated by state govt. Symbolic speech—not protected when it involves advocating illegal actions, fighting words, or inciting others to commit illegal actions Symbolic speech—not protected when it involves advocating illegal actions, fighting words, or inciting others to commit illegal actions

Conditionally Protected Speech Free speech of high school students in public schools is limited Free speech of high school students in public schools is limited Bethel School District v. Fraser Bethel School District v. Fraser sexually suggestive speech sexually suggestive speech Hazelwood School District v. Kuhlmeier Hazelwood School District v. Kuhlmeier Censorship of school newspaper Censorship of school newspaper

Key Court cases affecting Speech Gitlow v. New York Gitlow v. New York Schenck v. United States Schenck v. United States Established clear and present danger test Established clear and present danger test Dennis v. United States Dennis v. United States Speech limited (during McCarthyism) Speech limited (during McCarthyism) Brandenburg v. Ohio Brandenburg v. Ohio Speech protected (unless it incites imminent lawless action) Speech protected (unless it incites imminent lawless action) Chaplinsky v. State of New Hampshire Chaplinsky v. State of New Hampshire Fighting words not protected Fighting words not protected

Key cases Affecting Symbolic Speech Tinker v. Des Moines Tinker v. Des Moines Black arm bands Black arm bands Virginia v. Black Virginia v. Black Burning of a cross Burning of a cross Texas v. Johnson Texas v. Johnson Flag burning Flag burning

Civil Liberties in 1 st Amendment Religion Contains two elements or clauses Contains two elements or clauses Establishment Clause Establishment Clause Free Exercise Clause Free Exercise Clause

Establishment Clause “Congress shall make no law respecting an establishment of religion…” “Congress shall make no law respecting an establishment of religion…” This clause is the foundation to religious liberty This clause is the foundation to religious liberty Has created a “wall of separation” Has created a “wall of separation” Supreme Court has interpreted this to mean no government involvement in religion Supreme Court has interpreted this to mean no government involvement in religion Most controversial is when to give federal aid to parochial (religious) schools—ultimately answered by the Lemon Test Most controversial is when to give federal aid to parochial (religious) schools—ultimately answered by the Lemon Test

Key Court cases affecting Establishment Clause Engle v. Vitale Engle v. Vitale Everson v. Board of Education Everson v. Board of Education Lemon v. Kurtzman Lemon v. Kurtzman Lemon Test Lemon Test Wallace v. Jaffree Wallace v. Jaffree

Free-exercise clause Govt. cannot interfere with an individual’s practice of religion Govt. cannot interfere with an individual’s practice of religion Law may not impose special burdens on religion Law may not impose special burdens on religion Supreme Court’s interpretation has been that people have the absolute right to believe what they want, but not the right to practices that may harm society Supreme Court’s interpretation has been that people have the absolute right to believe what they want, but not the right to practices that may harm society

Key Court Cases affecting Free- Exercise Clause West Virginia State Board of Education v. Barnette West Virginia State Board of Education v. Barnette Flag salute Flag salute Reynolds v. United States Reynolds v. United States Polygamy Polygamy Jacobson v. Massachusetts Jacobson v. Massachusetts Vaccinations Vaccinations Wisconsin v. Yoder Wisconsin v. Yoder Amish kids in school Amish kids in school

Freedom of the Press Prior Restraint Prior Restraint Government censorship of material before it is published Government censorship of material before it is published This is a common method of limiting the press in other nations but is unconstitutional in U.S. This is a common method of limiting the press in other nations but is unconstitutional in U.S.

Other Key Court cases Affecting the Press Near v. Minnesota Near v. Minnesota Prior restraint extended to state govt. Prior restraint extended to state govt. New York Times v. Sullivan New York Times v. Sullivan Libelous speech Libelous speech New York Times v. United States New York Times v. United States aka Pentagon Papers aka Pentagon Papers

Freedom of Assembly The ability of people to assemble, associate, and petition the govt. The ability of people to assemble, associate, and petition the govt. Right to parade, picket, and protest Right to parade, picket, and protest May come into conflict with the interests of govt. May come into conflict with the interests of govt. DeJonge v. Oregon DeJonge v. Oregon Protected Protected Dennis v. United States Dennis v. United States Not protected Not protected

Civil Liberties in the 4 th Amendment Protects from unreasonable search and seizure Protects from unreasonable search and seizure Police must have probable cause & in some cases a search warrant Police must have probable cause & in some cases a search warrant Mapp v. Ohio Mapp v. Ohio Exclusionary rule applied to states Exclusionary rule applied to states United States v. Leon United States v. Leon “Good faith” exception to exclusionary rule “Good faith” exception to exclusionary rule

5 th, 6 th, & 8 th Amendments 5 th : Protects against self-incrimination & guarantees the due process of law for those accused of a crime 5 th : Protects against self-incrimination & guarantees the due process of law for those accused of a crime Escobedo v. Illinois Escobedo v. Illinois Miranda v. Arizona Miranda v. Arizona 6 th : Right to counsel 6 th : Right to counsel Gideon v. Wainwright Gideon v. Wainwright 8th: Cruel and Unusual punishment 8th: Cruel and Unusual punishment Furman v. Georgia Furman v. Georgia

Right To Privacy Not stated in the BOR but implied through the 3 rd, 4 th, 5 th, and 9 th Amendments Not stated in the BOR but implied through the 3 rd, 4 th, 5 th, and 9 th Amendments Griswold v. Connecticut Griswold v. Connecticut Contraceptives Contraceptives Roe v. Wade Roe v. Wade Abortion Abortion Many cases since Roe have tried to limit or regulate abortion Many cases since Roe have tried to limit or regulate abortion Webster v. Reproductive Health Services Webster v. Reproductive Health Services Planned Parenthood v. Casey Planned Parenthood v. Casey