Chapter 4 Civil Liberties.

Chapter 4 Civil Liberties

Defining Civil Liberties and Civil Rights
Civil liberties are about freedom; civil rights are about equality. Civil Liberties – The personal guarantees and freedoms that the government cannot abridge by law, constitution, or judicial interpretation. Civil Rights -- The government protected rights of individuals against arbitrary or discriminatory treatment by governments or individuals.

Origins of the Bill of Rights
Originally, the Constitution had limited protection of civil liberties: Guarantee of habeus corpus rights – protection against illegal incarceration; implies that prisoners have a right to know what charges are being made against them.

Prohibition of bills of attainder – legislation punishing someone without benefit of a trial Prohibition of ex post facto laws – laws that make an act punishable as a crime even if the act was legal at the time it was committed. The right to trial by jury also was part of the Constitution.

Antifederalists urged Congress to draft specific protections for individuals’ and states’ rights from federal action. 1791 first states ratified 10 amendments drafted by the first Congress that became the Bill of Rights. reach of Bill of Rights applied only to protections of freedom from actions by federal government, not actions by the states.

Selective incorporation and the Fourteenth Amendment
Civil War Amendments: Thirteenth abolished slavery (1865) Fourteenth guaranteed newly freed slaves equal rights as citizens (1868) Fifteenth gave male former slaves the right to vote. (1870) Due process clause of the Fourteenth Amendment forbids states from denying “life, liberty, or property” to any person without due process of law.

Selective incorporation and the Fourteenth Amendment
Fourteenth Amendment led to an expansion of civil liberties nearly identical clause in the Fifth Amendment had been interpreted by the Supreme Court as applying only to the national government. The 1925 Gitlow v. New York: the first time Court looked to Fourteenth Amendment to incorporate an amendment of the Bill of rights and apply it to the states.

Gitlow v. New York (1925) Involved Benjamin Gitlow, a radical Socialist convicted under New York’s Criminal Anarchy Act of 1902 for advocating overthrow of the government. U.S. Supreme Court upheld his conviction arguing that his writings did not have the protection of the first amendment guarantee of freedom of speech because they expressed “the language of direct incitement” also warned state governments that there were limits on suppressions of free speech.

Gitlow and Selective Incorporation
Gitlow v. New York, the First Amendment guarantee of freedom of speech was incorporated (made applicable to the states) Gitlow began process of selective incorporation: progressed in surges up to 2010 when Second Amendment right to bear arms was incorporated in McDonald v. Chicago. Selective incorporation: A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made applicable to the states on a case by case basis via the 14th Amendment.

Freedom of Speech, Assembly and the Press
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Redress: remedy or set right Abridge: cut short, curtail (restrict)

Generally protected expression: standards for protection
Courts have developed a continuum ranging from strongly protected speech to less protected speech. Basis for the continuum lies in the content of the speech Generally, the court does not allow content-based regulation of speech. For example, Court struck down a local ordinance that banned picketing outside of schools except for labor picketing. Ordinance was deemed content-based because it favored one type of speech over another.

Generally protected expression: standards for protection
McCullen v. Coakley (2013) Supreme Court ruled that buffer zones around abortion clinics in Massachusetts violated the First Amendment, that the ban infringed on the protesters’ free speech rights. Court said that states have other laws to punish protesters who go beyond their free speech rights to assault clinic patients or employees.

Political speech Alien and Sedition Acts of Act made it a crime “to write, print, utter or publish…any false, scandalous or malicious writing or writings against the government of the United States. Act was an attempt by the governing Federalist party to neutralize the opposing Democratic-Republican Party. Outcry against the law helped Democratic-Republican candidate Thomas Jefferson win the Presidency in 1802.

Political speech Congress repealed one of the Acts and others were allowed to expire before the Supreme Court had a chance to rule them unconstitutional. During Civil War northern states outlawed positive statements about slavery; Southern states prohibited criticism of slavery. (First Amendment at this time did not apply to actions by the states).

Political speech: clear and present danger test
20th century, World War I prompted harshest crackdown on free speech since Sedition Acts of 1798. General Secretary of the Socialist Party, Charles Schenck arrested for violating the Espionage Act of 1917: published a pamphlet urging young men to resist the draft. Schenck v. U.S. (1919) – Supreme Court upheld Schenck’s conviction, but noted that free speech is not an absolute right

Political speech: clear and present danger test
Court said Congress had right to restrict speech of such a nature as to create a clear and present danger that will bring about evils that Congress has the right to prevent Clear and present danger test: articulated in Schenck draws the line between protected and unprotected speech, allows the government to restrict certain types of speech deemed dangerous. Schenck is famous for Judge Oliver Wendall Holmes’ comment that the false cry of “Fire” in a crowded theatre would not be protected speech

Political speech: the direct incitement test
Over next several decades, Court struggled to draw line between speech that was dangerous and speech that was just unpopular. Brandenburg v. Ohio (1969) court created Direct Incitement Test, a new test for what kinds of speech should be protected by First Amendment that still holds today.

Brandenburg involved a Ku Klux Klan leader in Ohio who made a threatening speech that was shown on television. Twelve hooded figures were shown, many with weapons. Clarence Bradenburg, Klan leader, said revenge might be taken on the President, Congress and the Supreme Court; 4,000 members of his group planned to march on Washington on July 4th. Bradenburg convicted under Ohio law banning “sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

The Court reversed Bradenburg’s conviction arguing threatening speech could not be suppressed just because it sounded dangerous. Direct Incitement Test (articulated by the Supreme Court in Brandenburg): threatening speech is protected under the First Amendment unless that speech aims to and is likely to cause “imminent lawless action.”

Symbolic Speech Symbolic speech: Nonverbal expressions, such as the use of signs or symbols. Symbolic speech benefits from many of the same protections as verbal speech.

Symbolic Speech During Vietnam era, the Court protected
the First Amendment right of a protester to wear an American flag patch sewn on the seat of his pants. Smith v. Goguen (1974) A high school student’s right to wear an armband to protest the war. Tinker v. Des Moines School District (1969) an individual’s right to tape a peace symbol on the flag and fly it upside down outside an apartment window. Spence v. Washington (1974)

Symbolic speech Court has not always decided in favor of upholding the right of symbolic speech: 2007 case known as “Bong Hits for Jesus” – Student’s rights were not violated when he was suspended for displaying off school property a “sophomoric” banner promoting illegal drug use. Morse v. Fredrick (2007)

Symbolic Speech: Johnson v. Texas (1989) – burning the American flag
Johnson v. Texas (1989) provided strongest protection for symbolic speech, overturning a Texas flag desecration law on grounds that symbolic speech is protected by First Amendment and flag burning is a form of symbolic speech In response, Congress passed Flag Protection Act of 1989: Court struck down as an unconstitutional infringement on political expression Six attempts to pass a constitutional amendment protecting American flag; each time measure has failed in the Senate . (for further info see Wikipedia entry for Johnson v. Texas for details of the case and entry for Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade who set fire to an American flag in Dallas during the 1984 Republican National Convention,)

Symbolic speech: Citizens United
Citizens United v. Federal Election Commission (2010), Supreme Court grappled with issue of campaign financing: do placing limits on donations to political campaigns serve a public purpose such as controlling corruption or does putting controls on donations violate First Amendment rights of candidates and their supporters?

Symbolic speech: Citizens United
In Citizens United v. Federal Election Commission, Court extended First Amendment protections to corporations ruled that placing limits on campaign contributions made by corporations and labor unions would violate their First Amendment rights saying essentially that a corporation is a person and has the same rights as a person

Hate speech Hate speech: Expression that is offensive or abusive, particularly in terms of race, gender, or sexual orientation. Hate speech: currently protected under the First Amendment. St. Paul, MN, had city ordinance that prohibited conduct “arousing anger, alarm or resentment in others on the basis of race, creed, religion, or gender.” teenager who burned a cross on lawn of African American family was convicted under ordinance

Hate Speech Court said that cross burner could be punished for arson, terrorism, trespassing or other violations of the law but could not be convicted under St. Paul ordinance because overly broad and vague. City of St. Paul v. RAV (1992) Court has since upheld more carefully worded bans of cross burning

Freedom of Assembly Most famous case relating to the First Amendment protection for freedom of assembly involved a march planned in 1977 by a neo-Nazi group in Skokie, IL, a Chicago suburb that at the time was 60% Jewish and whose Jewish population included many Holocaust survivors. The village of Skokie passed an ordinance that banned the group from marching, arguing that residents would become so upset by the marchers that they would become violent

Freedom of Assembly Lower federal courts did not accept this ordinance arguing that if audience of march became disorderly, it was “the duty of the police to protect the speaker, not to silence his speech.” On appeal Supreme Court upheld the right of the Neo-Nazis to March in Skokie Nationalist Socialist Party of America v. Village of Skokie (1977)

Freedom of the Press Central issue in guarantee of freedom of the press is the issue of prior restraint: a limit on freedom of the press that allows the government to prohibit the media from publishing certain materials. Prior restraint is generally held to be in violation of the First Amendment Prior restraint never been clearly defined by the Court; several cases have set high standard for applying it

Freedom of the Press New York Times v. U.S. (1971): Supreme Court held that the Federal government could not block publication by The New York Times of the “Pentagon Papers” (a set of documents that revealed top-secret planning for the Viet Nam war) Case involved Daniel Ellsberg was a military analyst who passed the Pentagon Papers to the New York Times. See Wikipedia listing for Daniel Ellsberg for details of Nixon’s Watergate “plumbers” break-in of the office of Daniel Ellsberg’s psychiatrist.

Less Protected Speech and Publications
Four categories of speech have fewer protections and may be regulated by the government as they are deemed not to contribute to public debate or express ideas that have important social value. fighting words slander and libel commercial speech obscenity

Less protected speech: Fighting words
Fighting words: forms of expression that “by their very utterance” can incite violence. Fighting words can be regulated by the government but are often difficult to define. Fighting words are not protected under the First Amendment.

Chaplinsky v. New Hampshire (1942) Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a New Hampshire state law for violating a breach of the peace. Court concluded that some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."

Fighting words do not have to be spoken Can be a form of protected symbolic expression Cohen v. California (1971): “Fuck the Draft; Stop the War” printed on jacket Court ruled that forbidding use of certain words amounted to little more than a censorship of ideas

Less protected speech: slander and libel
Slander: spoken false statements that damage a person’s reputation Libel: written false statements that damage a person’s reputation can be regulated by the government do not have First Amendment Protections

Less protected speech: slander and libel
Often difficult to draw the line between slander and libel and permissible speech. Hustler v. Falwell (1988): Rev. Jerry Falwell sued Hustler magazine for libel and emotional distress over a cartoon the magazine published Court ruled against Falwell, saying he was a public figure and compared the magazine’s parody to political cartoons: always have had First Amendment protection.

Less protected speech: commercial speech
Commercial speech: Public expression with the aim of making a profit. (generally: advertising) Less protected than political speech. Recent years, commercial speech has received greater protection: Court struck down a law banning advertising prescription drug prices. Struck down a law prohibiting placing newspaper racks on city streets to distribute real estate guides. Commercial speech may be regulated but the government has to have a good reason to do it. Direct to consumer pharmaceutical advertising regulated by FDA by Act of Congress. First ad appeared in Readers digest in

Less protected speech: obscenity
Press never been allowed complete freedom when publication involved pornography and material considered obscene. Difficulty is where to draw the line Justice Potter Stewart wrote that he could not define obscenity but “I know it when I see it.”

Miller v. California (1973) Court established Miller test: a three-part test used to determine whether speech meets the criteria for obscenity. If so, it can be restricted by the government. Three standards must be met for material to be banned as obscene: if it appeals to prurient interests if it is “patently offensive” and 3. if the work as a whole lacks serious literary, artistic, political or scientific value. (prurient: Having or encouraging an excessive interest in sexual matters)

material must be judged by local community standards rather than a single national standard. 1997 ruling by the Court gave the Internet the same free speech protection as print media

First Amendment: Freedom of Religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” 1802 Thomas Jefferson in Letter to the Danbury Baptists said the First Amendment provides a “wall of separation between church and state,” language which continued to be cited in court cases.

First Amendment: Freedom of Religion
First Amendment contains two clauses guaranteeing freedom of religion: Establishment clause: “Congress shall make no law respecting an establishment of religion,” interpreted to mean that Congress cannot sponsor or favor any religion Free exercise clause: “or prohibiting the free exercise thereof” Congress cannot prohibit or interfere with the practice of religion

The establishment clause and the separation of church and state
Engel v. Vitale (1962) Court ruled that a prayer written by the New York Board of Regents and read every day in the state’s public schools violated the separation of church and state. Abington School District v. Schemp (1963), Court struck down Bible readings in public schools. Court’s decisions were perceived as an attack on religion. Many attempts over 50 years to amend the Constitution to allow school prayer.

The establishment clause and the separation of church and state
Court struck down the practice of a one-minute moment of silence for “meditation and voluntary prayer” Alabama public schools; Wallace v. Jeffries (1985). Court’s ruling said that “government must pursue a course of complete neutrality toward religion.” Court also has ruled against prayers at public school graduations (Lee v. Weisman, 1992) and student-led prayer at football games Sante Fe Independent School District v. Doe (2000) Upheld a student-led prayer – not part of school policy – at a high school graduation

Establishment clause The Court has been less stringent in keeping religion out of venues other than schools: Congress and state legislatures may open sessions with a prayer; Court has upheld these practices as long-standing traditions. Town of Greece v. Galloway (2014), Court upheld a New York town’s practice of opening its town board meetings with a prayer. The Court said prayer is permissible as long as it does not discriminate against minority religions and does not require those present to join in prayer.

Establishment clause Because religion is prominent in American life, many public buildings display religious symbols. statue of Moses has stood in the Library of Congress since Court has taken tradition into account to determine if religious displays can be allowed on public property

Establishment clause Court has upheld display of nativity scenes on public property if displays conform to what has been labeled the “three plastic animals rule” – if the Baby Jesus is surrounded by Rudolph the red-nosed reindeer and other secular symbols, the overall display is considered sufficiently non-religious to pass constitutional muster.

Establishment clause The Court ruled that the Ten Commandments could be displayed on a monument outside the capitol in Austin, TX Austin’s monument was one of 40 on capitol grounds so the display was deemed to serve a “mixed but primarily non-religious purpose.”

Establishment clause McCready County v. ACLU (2005) Court ordered removal of displays of the Ten Commandments at two Kentucky courthouses. The displays had been recently put up and only after county officials were sued did they add a few historical displays around religious ones. Court ruled that officials had religious purposes in mind and displays did not meet the standards of the establishment clause

Free Exercise Clause Freedom of belief is absolute: You can believe in whatever you want, without government interference, but when you act on those beliefs the government may regulate your behavior. Freedom of religion has been the most consistently protected of civil liberties

Free exercise clause Some questions involving the free exercise clause that have come before the Court: May Amish parents be forced to send their children to school beyond 8th grade? No. Is animal sacrifice as part of a religious ceremony protected by the First Amendment? Generally, yes. May Mormons have multiple wives? No. May the Amish be compelled to follow traffic laws and put license plates on their buggies? Yes. May people be forced to work on Friday nights and Saturdays if those are their days of worship? No. May religious dress be regulated? Generally, no, but in some contexts, such as the military, yes.

Free exercise clause In some cases conflict between establishment clause and free exercise clause, forcing the Court to choose between the two. Edwards v. Aguillard (1987), the Court overturned a Louisiana law that required creationism (the biblical account of how the world was created in seven days) to be taught along with the theory of evolution in public school science courses.

Free exercise clause Court concluded that Creationism is a religious doctrine, not a scientific theory. inclusion of creationism in public school curricula violates the establishment clause because teaching creationism promotes a religious belief. Those who object to the Court’s ruling in Edwards, maintain that ruling violates free exercise clause because it forces students who believe in creationism to study evolution – a version of creation that conflicts with their religious beliefs.

Hobby Lobby and the free exercise clause
Question in Burwell v. Hobby Lobby Stores (2013): Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners? Yes. Justice Samuel A. Alito, Jr. delivered the opinion for the 5-4 majority. The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends.

Hobby Lobby and the free exercise clause
Justice Ruth Bader Ginsberg wrote the dissenting opinion in which she asserted that for-profit corporations such as Hobby Lobby Stores cannot be considered religious entities.

The Second Amendment: The Right to Bear Arms
“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.” – Second Amendment. Between 1791 and 2007, the federal courts had always interpreted the Second Amendment’s awkward phrasing as a right to bear arms within the context of serving in a militia, rather than as an individual right to own a gun.

Second Amendment: The Right to Bear Arms
Interest groups such as the National Rifle Association (NRA) have long asserted that the Second Amendment guarantees an individual right to bear arms. Critics of this view emphasize the first clause of the Second Amendment and point to frequent mentions of state militias in congressional debates at the time the Bill of Rights was adopted. These critics argued that the Second Amendment was adopted to reassure the Anti-federalists advocates of states’ rights that state militias, not a national standing army, would provide domestic security.

Gun ownership and carrying rights have varied widely among the states. Wyoming and Montana have almost no regulations on guns; California and Connecticut have many. Following an assassination attempt on Ronald Reagan in 1981, a push for stronger gun laws intensified. Congress in 1993 passed the Brady Bill which mandates a background check and five-day waiting period for any handgun purchase.

District of Columbia v. Heller (2008)recognized for the first time an individual right to bear arms. The case struck down a District of Columbia law that banned the possession of handguns, but not rifles or shotguns within the District’s boundaries. In Heller, the Court said that “the Second Amendment protects an individual right to possess a firearm unconnected with service in the military, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Right to bear arms The Court did not apply the Second Amendment to the states in Heller. The decision was binding only on the federal government as D.C. is a federal territory. McDonald v. Chicago (2010), the court struck down a gun ordinance in the city of Chicago and, through the doctrine of selective incorporation, applied the Second Amendment right to bear arms to the states, thereby incorporating the Second Amendment and establishing an individual’s constitutional right to gun ownership.

Law and Order and the Rights of Criminal Defendants
Due process rights: the idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person’s “life, liberty, or property, without due process of law.”

Law and Order and the Rights of Criminal Defendants
Other specific due process rights are found in the Fourth, Fifth, Sixth, and Eighth Amendments– the right to a fair trial, the right to consult a lawyer, the right to a jury trial, freedom from self-incrimination; protection from double jeopardy; protection against “cruel and unusual punishment;” the right to know what crime you are accused of; the right to confront your accuser in court; freedom from unreasonable police searches.

The Fourth Amendment: unreasonable searches and seizures
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” – Fourth Amendment Under most circumstances a law enforcement official seeking a search warrant must provide a court with “personal knowledge” or “probable cause” of specific criminal activity and outline the evidence that is the target of the search. “Fishing expeditions” are not allowed.

Police may conduct a search without a warrant under certain circumstances: if the suspect gives consent or if the search happens at the time of an arrest and the search is “confined to the immediate vicinity” of the arrest. (Police are not required to inform the suspect that they may refuse the search or request a warrant.) Police may collect evidence not included in a warrant if the evidence is out in plain view; Police may search a car without having a warrant if the driver has been stopped for a traffic offense and they may search school lockers with probable cause.

FBI suspected Antoine Jones of selling cocaine. Without obtaining a warrant, they placed a GPS on his vehicle and monitored him for four weeks. Evidence from the GPS was used the convict him. His appeal reached the Supreme Court who ruled that placement of the device was a “physical trespass” and the lengthy monitoring of Jones constituted an illegal search. The court’s decision cannot be inferred to mean that all remote GPS monitoring will require a warrant.

The exclusionary rule The exclusionary rule: The principle that illegally or unconstitutionally acquired evidence cannot be used in a criminal trial. In 1961 the Fourth Amendment was incorporated (applied to the states through the Fourteenth Amendment) in a case that established the exclusionary rule for all courts.

The exclusionary rule Prior to Mapp v. Ohio (1961), the rule only applied at the national level. The case involved police breaking into the home of a woman, Dollree Mapp without a warrant looking for a suspect thought to be hiding there. Police did not find the suspect but did find pornographic material. Mapp was arrested and later convicted for possession of pornographic material. In the Mapp decision, the Court ruled that that evidence seized unlawfully, without a search warrant, could not be used in criminal prosecutions in state courts.

Cell phones and the Fourth Amendment
Supreme Court unanimously ruled in Riley v. California (2014) that the police need warrants to search the cellphones of people they arrest. The ruling almost certainly also applies to searches of tablet and laptop computers Chief Justice John G. Roberts Jr. writing the majority opinion said that cell phones are “ such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

Exclusionary rule 1974 the Court allowed the use of illegally obtained evidence in grand jury testimony. In 2009 the Court established a “good faith exception” to the exclusionary rule, allowing evidence to be used as long as the police officer believed he/she had conducted a legal search. In recent years it has become easier for prosecutors to use evidence that has been obtained under questionable circumstances.

Drug testing The clause of the Fourth Amendment granting people the right “to be secure in their persons” would seemingly apply to drug testing. Court has upheld random drug testing for high school athletes (1995) and mandatory testing for any junior high or high school students involved in extra-curricular activities (2002).

The Fifth Amendment: Self-incrimination
Miranda rights: The list of civil liberties described in the Fifth Amendment that must be read to a suspect before anything the suspect says can be used at trial. Miranda v. Arizona (1966): Ernesto Miranda was convicted in Arizona court of kidnapping and rape, on the basis of a confession extracted after two hours of questioning during which he was not read his rights.

The Court overturned Miranda’s confession saying that police interrogation is “inherently intimidating” and “no statement obtained from the defendant can be truly the product of his free choice.” To ensure a confession is truly a free choice, the Court established Miranda rights: If police do not read a suspect his rights, nothing the suspect says can be held against him.

2000, Court rejected an attempt by Congress to overturn Miranda by designating all voluntary confessions as admissible. The justices affirmed their intent to protect the Miranda rule saying, “Miranda has become embedded in routine police practice to the point where the warning has become part of our national culture.”

Double jeopardy Double jeopardy: Being tried twice for the same crime. Double jeopardy is prevented by the Fifth Amendment. The prohibition of double jeopardy was incorporated (applied to the states) in 1969. Prosecutors can exploit two loopholes: A suspect may be tried in state court and federal court for the same crime. If a suspect is found innocent of one set of criminal charges brought by the state, he or she may be found guilty of the same or similar offenses based on civil charges brought by a private individual.

Sixth Amendment: right to legal counsel and a jury trial
Gideon v. Wainwright (1963), the Supreme Court overturned the conviction of Clarence Earl Gideon who had been accused of breaking into a pool hall to steal beer, wine and money. Unable to afford a lawyer, Gideon defended himself, but the false testimony of the actual guilty party brought a conviction for Gideon. Overturning his conviction, the Court said, “In our adversary system of criminal justice, any person hauled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is appointed for him.” Gideon v. Wainwright incorporated the Sixth Amendment protection of the right to counsel in all felony cases.

Sixth Amendment: right to legal counsel and a jury trial
The right to counsel has been strengthened since Gideon v. Wainright by both legislation and subsequent Court rulings. In 1967, Congress passed the Criminal Justice Act which provided better representation for criminal defendants in federal court. Similar legislation was passed by 23 states. The Court also has defined a general right to effective counsel, though the bar is set low in defining “effective.”

Right to trial by jury The Sixth Amendment also protects an individual’s right to a speedy and public trial by an impartial jury in criminal cases. Under the Federal Speedy Trial Act, a trial must begin within 70 days of the defendant’s arrest or first appearance in Court. A defendant may not waive the right to a speedy trial. Main issues of an impartial jury relate to jury selection and peremptory challenges. (Peremptory challenge: process by which lawyers may eliminate certain people from the jury pool without providing any reason.) Race and gender may not be the basis for a peremptory challenge.

The Eighth Amendment: Cruel and Unusual Punishment
Both the Fifth and Fourteenth Amendments say that a person cannot be deprived of “life, liberty or property, without due process of law.” Implied in both of these amendments that a person can be deprived of life by the government as long as the national government and the states follow due process. In the United States, 33 states allow capital punishment (death penalty)

Furman v. Georgia (1972), the Supreme Court ruled that the death penalty was unconstitutional because it was being applied inconsistently. For nearly four years in U.S. there was a moratorium on the death penalty as Congress and the 35 states sought to make their laws compliant with the Furman decision. (moratorium – suspension of an activity) Gregg v. Georgia (1976), the Court allowed states to bring back the death penalty.

For two decades the court has placed limits on the death penalty: The Court struck down a state law mandating the death penalty in murder cases and another in rape cases. The court has prohibited the death penalty for persons whose mental illness renders them incompetent at the time of his or her execution. Ford v. Wainwright, (1986).

Panetti v. Quarterman,(2007), Court reaffirmed Ford v. Wainwright and clarified what it means to be competent to be executed and held that a defendant must have a "rational understanding of the reason for the execution.“ In its decision, the Court explained that if a defendant is suffering from such a serious delusion that he does not understand the link between his crime and the execution, "the punishment can serve no proper purpose.

However, despite the Ford and Panetti rulings, the Court has not yet ruled that it is unconstitutional to execute someone who suffered from a serious mental illness at the time of the crime. The court has abolished the death penalty for the mentally disabled, for juveniles, and for the rape of a child (Kennedy v. Louisiana (2008)).

Cruel and unusual punishment
One area not settled by the Court is the issue of “proportionality” – the idea that some punishments may be so disproportionate to the crime that they constitute “cruel and unusual punishment.” Recently the court has applied proportionality (disallowed these punishments) in the following situations: Taking away citizenship as punishment for a crime Incarceration for drug addiction Beating of prison inmates Issuing a disproportionate prison sentence (in a case where an individual had been sentenced to life in prison for a seventh nonviolent felony – cashing a $100 check on a closed account)

1991, Court began saying that the Eighth Amendment carries no proportionality guarantee. In two cases in California, the Court ruled that California’s “three strikes and you’re out” law did not violate the Eighth Amendment. In the first case, a man stole three golf clubs each valued at $399 and was sentenced to 25 years to life. In the second case, a man stole nine videotapes valued at $150 from two different K-Marts and was sentenced to 25 years to life. In each of these cases, the defendants’ previous crimes were nonviolent offenses.

2012, Court ruled that sentencing juveniles under age 18 who had committed homicide to life in prison without the possibility of parole violates the Eighth Amendment. January, 2016 Court made the 2012 decision retroactive allowing many release of many from prison.

Privacy rights and the Right to Privacy
Privacy rights: Liberties protected by several amendments in the Bill of Rights that shield certain personal aspects of citizens lives from governmental interference, such as the Fourth Amendment’s protection against unreasonable searches and seizures. Right to Privacy: Judicially-created principle encompassing a variety of individual actions protected by the penumbras cast by several amendments Not explicitly found in the Constitution Bill of Rights contains many indications that the Framers expected that some areas of life were to be off limits to government regulation such as the right to private religious beliefs and the right to be secure in one’s home.

the Right to Privacy: contraceptives (birth control)
Many states once barred sale of contraceptives to minors, prohibited their display or banned the sale of contraceptives altogether. Connecticut was one of last states to do away with these laws; that state has also banned doctors from discussing birth control with their patients. Estelle Griswold, the director of Planned Parenthood in Connecticut, was arrested after opening a clinic that dispenses contraceptives. She was fined $100 and appealed her conviction all the way up to the Supreme Court.

the Right to Privacy: contraceptives (birth control)
Griswold v. Connecticut (1965) Court ruled that various parts of the Bill of Rights cast what the courts called “penumbras” – unstated liberties in the shadow of more explicitly stated rights, thereby creating zones of privacy. Included in the right of privacy, the Court said, was a married couple’s right to plan a family; Connecticut’s contraceptive law was unconstitutional as it violated marital privacy. Court later extended right of unmarried individuals to have access to contraceptives

the Right to Privacy: abortion
Roe v. Wade (1973) struck down laws in 46 states that limited abortion. In Roe, the majority opinion held that: States could not limit the right to abortion in the first trimester of pregnancy; States could regulate abortions in the second trimester in the interests of the health of the mother; In the third trimester, states could forbid all abortions except those necessary to protect the life or the health of the mother.

Trimester test in Roe v. Wade was replaced in a 1992 decision with fetal viability test: when the fetus is viable (able to live outside the womb; generally at 22 or 23 weeks), states can ban abortions except where it is necessary for the preservation of life or health of the mother. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

In the 1992 Casey decision the Court also allowed states to place certain restrictions on abortions including: Parental consent for minors seeking abortions Waiting periods Counseling sessions aimed at persuading a woman not to have an abortion.

A 2007 case, Gonzales v. Carhart, was the first time the Court placed a restriction on a certain type of abortion. The case arrived at the Court in response to a the Partial-Birth Abortion Ban Act, passed by Congress in 2003. The law prohibited a form of late-term abortion that the Act calls "partial-birth abortion", referred to in medical literature as intact dilation and extraction. The law provided that physicians who perform this type of procedure even if the life or health of the mother is in danger, will be punished with a fine and a prison term. Source:

Gonzales v. Carhart (2007), the Court upheld the federal law, saying that it did not place an “undue burden” on women. In her dissenting opinion, Justice Ruth Bader Ginsberg, the only woman on the Court in 2007, called the decision “alarming” as it put the lives of women at risk.

Undoing Roe v. Wade can only be accomplished by The Court reversing itself in a subsequent decision Adding an amendment to the constitution that would make abortion illegal in the U.S.

The Right to Privacy: abortion
Conservative view: the right to legislate the legality of abortion belongs with the states. some conservative states have passed restrictive laws aimed at limiting women’s access to abortion services.

Whole Women’s Health v. Hellerstedt ; Court strikes down Texas abortion law
In a special session of the state legislature in the summer of 2013, Texas passed HB2 into law placing several restrictions the delivery of abortion services. March 2, 2016 U.S. Supreme Court heard Whole Women’s Health v. Hellerstedt and ruled that the Texas restrictive abortion law (2013) placed an “undue burden” on women seeking abortions. HB2 content of the law:

right to abortion: Whole Women’s Health v. Hellerstedt
The court’s decision struck down the law’s requirement that facilities that provide abortion services must be equipped at the level of ambulatory surgical centers and the provision that physicians performing abortions must have admitting privileges at a hospital no further than 30 miles away. Both provisions, the court said, “place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution.” source: Video:

Privacy Rights: the Right to Die
Privacy rights are central in the debate over the right to die. In this debate two issues arise: The right of a person who is brain dead or in a persistent vegetative state to refuse medical treatment in order to die May states allow assisted suicide for persons with terminal illnesses, even if that practice conflicts with federal law?

The right to die, refusing medical care: The Terri Schiavo case
Courts have approved living wills in which individuals document their wishes regarding end of life care. More problematic: when a person who has left no instructions is no longer able to communicate. The high profile case of Terri Schiavo illustrates the complexity this type of situation. Schiavo case involved 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in federal district court; Florida legislation struck down by the Supreme Court of Florida; federal legislation (the Palm Sunday Compromise); and four denials of certiorari from the U.S. Supreme Court Given this precedent, courts are not likely to get involve with matters traditionally resolved between families and their doctors. Schiavo remained in a vegetative state from 1990 through Her husband said she would not have wanted to be kept alive. Her parents disagreed. Schiavo’s husband and legal guardian and parents waged a protracted battle against one another in state and federal courts. The case also garnered activism from the pro-life movement and disability rights groups

The right to die: assisted suicide
1994 Oregon passed into law Death with Dignity Act which allows a terminally ill patient to get a doctor’s prescription to end his or her life. In the law’s first 14 years, 596 people ended their lives using this law. U.S. Attorney General John Ashcroft attempted to revoke the medical licenses of physicians who prescribed drugs for assisted suicide, claiming assisted suicide was not a legitimate medical purpose of the drugs regulated by the Federal Controlled Substances Act. In Gonzales v. Oregon (2006) the Court upheld the Oregon law, ruled that the U.S. Attorney General could not enforce the federal Controlled Substances Act against Oregon physicians who prescribed drugs in compliance with Oregon state law. Currently four states: Oregon, Washington, Vermont and Montana allow physician-assisted suicide.

Right to Privacy: Gay rights
Lawrence v. Texas (2003) – Court found Texas anti-sodomy laws unconstitutional. Involved two Houston men who were prosecuted for same-sex sodomy after police entered the apartment of one of the men – upon receiving a false tip of an armed man in the apartment – and found the two men having sex. Under Texas law, sodomy was illegal for homosexuals but not for heterosexuals.

Lawrence v. Texas reversed Bowers v. Hardwick (1986) which upheld Georgia’s anti-sodomy laws. Using the doctrine known as substantive due process, five justices found that Texas statute violated fundamental privacy rights Justice O’Conner also found that statute violated equal protection clause of the Fourteenth amendment. Substantive due process, in United States constitutional law, is a principle allowing courts to protect certain rights deemed fundamental from government interference.

Late Justice Antonin Scalia dissented: Court has “largely signed onto the so-called homosexual agenda.” Decision “renewed the Court's power to identify individual rights above and beyond those historically protected under the law. ”* At the time of the decision, Lawrence was expected to pave the way for proving constitutionality of same-sex marriage. *

Chapter 4 Civil Liberties.

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Chapter 4 Civil Liberties.

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