1. Chapter 4 - Civil Liberties
1st Amendment Freedoms

2. The First Amendment Civil Liberties
The personal guarantees and freedoms that government cannot abridge, by law, constitution, or judicial interpretation.
What are the freedoms included in the first amendment?
Freedom of Religion
Freedom of Speech
Freedom of the Press
Freedom of Assembly
Freedom of Petition

3. Freedom of Religion Establishment Clause Free Exercise Clause
“Congress shall make no law respecting an establishment of religion…”
Directs the national government not to sanction an official religion
Free Exercise Clause
“... or prohibiting the free exercise thereof”
Guarantees citizens that the national government will not interfere with their practice of religion

4. Establishment Clause Separation of Church and State
Tested and upheld by the Supreme Court
“In God We Trust” and Congressional prayers/chaplains
Funding for books/busses for religious-based schools
Rejection of School Prayer
Engel v. Vitale (1962) - Nondenominational prayer unconstitutional
Abington School District v. Schempp (1963) - Bible recitation NO GO
Lemon v. Kurtzman (1971)
Lemon Test - Policy is constitutional if:
Had a legitimate secular purpose
Neither advance nor inhibit religion
Did not foster an excessive government entanglement

5. Establishment Clause Rules about Establishment
Court has upheld aid to religious and private schools via books and technology
Disallowed funding of programs which limited membership to only people of a particular religious affiliation
Governments can give funding to parents to choose which schools to send their children, including religious schools
Court seems to support programs as long as they provide aid to religious and nonreligious schools alike
Student-led student-initiated prayer is unconstitutional
Donated display of the 10 commandments was unconstitutional
White Cross at a WWI memorial on federal land was allowed

6. Free Exercise Clause
What is a god?
What is a religious faith?

7. Free Exercise Clause Court Rulings
Court rules for Vietnam conscientious objectors even though they did not follow a “traditional” organized religion - as long as their reasons for objecting paralleled those of others in those religions
Catholic, Protestant, Jewish, and Buddhist inmates are allowed to hold services, but Muslims are not (for security reasons)
U.S. or State laws can outlaw practices if shown compelling reasons to do so (polygamy, snake-handling)
Congress has acted to allow certain substances for Native American religious observances - the current Court now allows this among other substances for religious purposes
Governmental interests can outweigh free exercise

8. Freedom of Speech A democracy depends on the free exchange of ideas
The Court grants:
Greatest freedom to individual’s thoughts
Some freedom to speech, depending on content and purpose
Less freedom to actions or deeds
The 1st Amendment is protection against what is called Prior Restraint
Constitutional doctrine that prevents the government from prohibiting speech or publication before the fact

9. Freedom of Speech Early Challenges to Free Speech
Alien and Sedition Acts (1798)
Prohibited making publication of “any false, scandalous writing against the government”
Not renewed and allowed to expire under the next Congress
Civil War and Abolitionists
Abolitionist press was outlawed or anti-abolitionist press was outlawed, depending on which state you were in (N or S)
Lincoln suspended freedom of the press during the war
Espionage Act (1917)
Outlawed resistance to the draft, or distribution of anti-war leaflets

10. Freedom of Speech Court cases on Free Speech
Schneck v. U.S. (1919)
Congress has the right to restrict speech “of such a nature as to create
a clear and present danger that will bring about the substantive evils that
Congress has a right to prevent.”
Brandenburg v. Ohio (1969)
Government could punish speech if it was directed to “inciting or
producing imminent lawless action and is likely to incite or produce such
action”
Tests of Constitutionality of Laws
Clear and Present Danger Test
Direct Incitement Test

11. Freedom of Speech Protected Speech Less Prior Restraint allowed
Anti-war Press allowed
Pure Speech
Speaking to people, or via text/writing
Symbolic Speech
A means of expression including symbols or signs
Stromberg v. California (1931)
Display of red flag in protest is protected
Tinker v. Des Moines School District (1969)
Black armband is protected as symbolic protest of war

12. Freedom of Speech Limitations on Free Speech “Bong Hits 4 Jesus” Case
Suspension of student was allowed because it promoted illegal activity
Hate Speech
Banned in many cities, and on many college campuses
Governments cannot “silence speech on the basis of its content.”
“Free Speech Zones” created to prevent disruption of university activities
Restrict the time, place, or manner of speech

13. Freedom of Speech Unprotected Speech and Press Libel Slander
False written statement that defames the character of a person
Statements must be proven untrue
If against public officials, the statement author must show knowing disregard for the truth
Even intentional emotional distress is not enough
Slander
False statement that defames the character is spoken
Fighting Words
Words “by their very utterance inflict injury”
Governments can regulate “profanity, obscenity, and threats”

14. Freedom of Speech Unprotected Speech and Press Obscenity
Roth v. U.S. (1957)
To be obscene, it had to be “without redeeming social importance”
If an average person, applying the material to what is common in one’s community, found it to be lewd or lustful
Roth Test hard to define or standardize for many cases
Miller v. California (1973)
Governments can regulate obscenity by asking whether the material depicts or describes patently offensive sexual conduct and whether it lacks serious value
PROTECT Act (2008)
Outlawed the sale or transmission of child pornography

15. Freedom of Speech
Various things are not protected by the 1st amendment because:
“such expressions are no essential part of any
exposition of ideals, and are of such slight
social value as a step to truth that any benefit
that may be derived from them is clearly
outweighed by the social interest in order and
morality”

16. Freedoms of Assembly and Petition
Peaceful Assembly for lawful discussion
The Freedom to assemble depends on peaceful conduct
If the actions or words of attendees/leaders of the peaceful assembly
become unconstitutionally protected (libel, clear and present danger),
that subjects the participants to government regulation, arrest,
incarceration, or civil fines
Where can you peacefully assemble?
Private Property, as long as not breaking the law
Public Property as long as you are following the necessary permits
from the local government
As long as you are not interfering with traffic in public areas,
providing immediate threat to public order, or inciting the
situation of a riot

17. Freedoms of Assembly and Petition
Freedom of Petition
“To petition the government for a redress of grievances”
Includes petitions on behalf of private interests seeking personal gain
Not commonly challenged in court, mostly because it is usually so well entwined with the other freedoms mentioned in the 1st amendment

18. The Rest of the Bill of Rights

19. Ratification
Three Arguments against the Bill of Rights being included in the Constitution
It would be unnecessary in a Constitutional republic founded on the idea of popular sovereignty and inalienable, natural rights
It would be dangerous - declaring things not be done when the government had no delegated powers to do those things.
It would be impractical to enforce - dependent on public opinion and the spirit of the people and government

20. Incorporation Doctrine
Barron v. Baltimore
Supreme Court ruled the Bill of Rights only applied to actions by the Federal government, not the states
14th Amendment
Suggests that the Bill of Rights be applied to the states
Due Process Clause was rejected as making the Bill of Rights applicable to the states until the end of the 19th century
After that period, States are held to the substantive due process standard, where the STATE must prove their laws are a valid exercise of power

21. Incorporation Doctrine
Gitlow v. New York
Supreme Court articulated the Incorporation Doctrine
Therefore ruling that the Bill of Rights protections extend to people who have their rights abused by the States
States are not allowed to abridge free speech protections
“[W]e may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgement 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.”

22. Selective Incorporation
Process to limit the Rights of States
Protecting citizens from abridgement of fundamental freedoms by the States
Requires that states respect freedoms of press, speech, and assembly, among other liberties
Considered fundamental to national notions of liberty and justice
Most of Amendments 1, 2, 4, 5, 6, and 8 are
incorporated

23. 2nd Amendment Rights The Right to Keep and Bear Arms
Early Americans needed to be armed against Native attacks and other dangers
Were called upon to serve in the State Militia if the need arose
Allowed the State Militias to continue
Preserved the unstated right - the right to revolt

24. 2nd Amendment Rights National Firearms Act (1934) DC v. Heller (2008)
Response to explosion of organized crime in 1920s
Imposed taxes on automatic weapons and shotguns
DC v. Heller (2008)
Ruled the amendment protected an individual’s right to own a firearm in DC
Has since been extended to the states

25. Rights of Criminal Defendants
Article I
Guarantees certain rights for persons accused of crimes
Writs of Habeas Corpus
Court orders in which a judge makes authorities prove they are holding a person lawfully
Accused persons have the right to know what charges are being made against them
Ex Post Facto Laws
Acts are punishable even if the act was legal when it was committed are prohibited
Bills of Attainder
Laws declaring an act illegal without a judicial trial are prohibited

26. Rights of Criminal Defendants
The 4th Amendment
People are protected from unreasonable search and seizures by authorities
Details what cannot be searched without a search warrant obtained through a judge
Supreme Court Decisions weigh in
Allows the Police to search…
The person arrested
Things in plain view of the accused person
Places and things that the arrested person could touch or reach, or that are otherwise in the arrestee’s immediate control

27. Rights of Criminal Defendants
The 4th Amendment
Warrantless Searches
Reasonable suspicion of someone who is committing a crime or about to commit a crime is allowed
If police obtain consent from occupants of a house, then they can conduct a search
Police can search an open field if suspected of illegal activity
Houses, Property, Vehicles
Warrants must be obtained for extensive searches of houses, cars, offices - anywhere someone would expect a level of privacy
Courts do not require search warrants in suspected drunk driving cases - However, they are not allowed to use GPS trackers on suspects’ vehicles

28. Rights of Criminal Defendants
The 4th Amendment
Drug Testing
Supreme Court supports mandatory drug testing for conditions of employment
People involved in accidents can be tested for drugs and alcohol

29. Rights of Criminal Defendants
The 5th Amendment
Individuals accused of crimes can have their case heard in front of a grand jury
People do not have to be a witness against themselves
“Pleading the Fifth” - Not self-incriminating
Lawyers/Judges cannot imply that the accused person not being a witness is an admission of guilt, or that they have something to hide
No statements or confessions can be used unless they were obtained voluntarily
Beating, threatening, physical or verbal abuse, and being held without food or water were previous police tactics for obtaining involuntary statements or confessions

30. Rights of Criminal Defendants
The 5th Amendment
Miranda v. Arizona (1966)
Ernesto Miranda was accused of a crime
He confessed only after several hours of questioning
He did not know he did not have to answer questions
He did not know he could be represented by a lawyer
“Miranda Rights” are often read to people to ensure they know their rights and police can conduct themselves legally
Double Jeopardy
Being charged with the same crime in the same jurisdiction is
prohibited
Acquitted person can still be tried in a different jurisdiction (in State
court instead of Federal court, and vice versa)

31. Rights of Criminal Defendants
The Exclusionary Rule
Prohibits the use of illegally seized evidence at a trial
Judicially created to apply to evidence found or used that would apply to the 4th and 5th amendments
Law enforcement officers cannot violate any constitutional rights in their search for evidence
Not admissible in the courts
Wasted time/energy, and no
conviction of a possibly guilty suspect

32. Rights of Criminal Defendants
The 6th Amendment
Guarantees assistance of counsel
Early on, this meant that the accused could hire a lawyer
Many accused person cannot afford an attorney
Gideon v. Wainwright(1963)
Accused man was unable to provide defense, so he had no one to help him mount his own case
Supreme Court ruled that attorneys were a necessity for each party in the criminal courts
Now all criminal cases in Federal court must have a lawyer for the defense of the accused
Has since been expanded to include state courts and any appearance before a judge in a criminal case

33. Rights of Criminal Defendants
The 6th Amendment
Guarantees a speedy and public trial
By an impartial jury of their peers
Has been tested by lawyers because of peremptory challenges
Used to exclude minorities from juries, or exclude one gender from a jury to try to sway the outcome
An impartial and objective group of people that are not discriminated against based on gender or race
Guarantees the right to confront witnesses against them
Cross-examination of the facts of the case as seen by the witness
Not an absolute right - with juveniles or in sexual assault cases
The counsel for the accused can still question them, just not in person

34. Rights of Criminal Defendants
The 8th Amendment
Prohibits cruel and unusual punishments
Many have argued that the death penalty constitutes cruelty
Challenges to the Death Penalty
Not judged as cruel or unusual until the 1970s
Furman v. Georgia (1972)
Supreme Court ended capital punishment because it was being enforced arbitrarily in the states
States crafted new laws to adhere to the standards set by the Court
In 2008, the Court decided to exclude two groups from execution
Those considered mentally deficient
Those under the age of 18

35. Rights of Criminal Defendants
The 8th Amendment
Protections for the Wrongly Convicted
Governors have recently “stayed” executions in their states
Support for the Death Penalty is at its lowest point since the 1970s
DNA testing has exonerated dozens of inmates on death row
Some states offer free DNA testing to those on death row
Racist application of death sentences has made less governors apt to support capital punishment

36. Right to Privacy
Bill of Rights contains indications that the Framers expected some areas of life to be off limits to government
1st amendment’s religious freedom implies the right to exercise private, personal beliefs
4th amendment’s guarantee against unreasonable searches suggests people would be secure in their homes and should not fear that police will show up without cause

37. Right to Privacy Birth Control
Easy access to birth control was not always available
Connecticut and other states had restrictive laws against doctors speaking about contraceptives and/or selling them in stores
Griswold v. Connecticut (1965)
Supreme Court ruled that privacy for married (later expanded to unmarried) people to handle their reproduction was protected by the Constitution
1,3,4,9,14 Amendments all said to have built-in protections for privacy of the people

38. Right to Privacy Abortion Roe v. Wade (1973)
Pressure in the 1960s resulted in more people wanting to obtain abortions - even in states that did not allow it
Women’s Rights Advocates
Believed it was a fundamental right for women to make a decision to take a pregnancy to term
Roe v. Wade (1973)
Supreme court ruled to split rights based on trimesters
1st Trimester - Privacy rights paramount; Women can terminate
2nd Trimester - State has the right to regulate abortions only with respect to women's health
3rd Trimester - State has rights to keep child, because it is viable

39. Right to Privacy Conflicts and Challenges regarding Roe v. Wade
Congress banned medicaid funds to go to abortions
Became a huge political issue
The Reagan and Bush administrations were pro-life
Led to Webster v. Reproductive Health Services (1989) which allowed states to impose stricter regulations and limited state aid to give abortions
In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) States could limit abortions as long as they do not pose “an undue burden” on pregnant women - created 24 hr waiting period and parental consent
Clinton was pro-choice
Vetoed Partial Birth Abortion bans twice from Congress

40. Right to Privacy Homosexuality
Congress finally passed a ban on Partial birth abortions
Galvanized the states to restrict abortions and require ultrasounds for pregnant women wanting to get an abortion
The Court is expected to continue to uphold state laws because they do not place “an undue burden” on pregnant women
Homosexuality
Lawrence v. Texas (2003)
Constitutional right to privacy extends to private sexual acts
States cannot criminalize private sexual behavior
Gay Marriage is protected under the Constitution
Obergefell v. Hodges (2015)
Considered an equal protection/full faith and credit issue

41. Civil Liberties and Terrorism
1st Amendment
Certain rights are suspended under USA PATRIOT Act
Those given search orders were barred from disclosing that to anyone
FBI can investigate someone who exercises their freedom of speech even when no part of the speech could be labeled illegal
Pressure on the media to report positive aspects of the war on terror
4th Amendment
USA PATRIOT Act lifts search and seizure restrictions
Allows the examination of private records if held by 3rd parties
Expands the right to search property without notice
Expands ability to collect foreign intelligence information
Expanded ability to collect address and message information

42. Civil Liberties and Terrorism
Due Process
Under USA PATRIOT Act
Habeas Corpus rights are suspended for suspected terrorists
Allows the government to declare permanent resident aliens to be
enemy combatants and they could be held without trial or due process
indefinitely
Roberts Supreme Court ruled this part unconstitutional, so the
incarcerated have a right to challenge their detention in court
Rights to trial by jury are suspended
Obama Administration is against this, but has not returned any
rights to detainees
Detainees are subject to torture in federal facilities across the world
No one has been prosecuted in relation to these actions

43. Civil Liberties and Terrorism
USA Freedom Act
Reauthorization of the USA PATRIOT Act in 2015
Ended bulk collection of phone records from US citizens
Kept many of the previous provisions of USA PATRIOT in place until 2019
Heralded as a win for rights advocates, because many felt that the collection was in violation to the 4th Amendment
Obama supported passage along with both houses of Congress
Obama only supported when an investigation found that the collection was not necessary for investigations into possible terrorism