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Chapter 5 The Bill of Rights & Civil Liberties

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1 Chapter 5 The Bill of Rights & Civil Liberties

2 Civil Liberties Civil Liberties = the protections the Constitution provides against the abuse of government power. THE BILL OF RIGHTS Civil Rights = basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.) ** Originally only protection from National Government ** Now applies to state governments for certain liberties - all with the exception of 2, 3, 5, 7 & 8

3 …Tell our enemies that they may take our lives, but they will never take our

4 The Bill of Rights 1st Amendment – Freedom of religion, speech, press, assembly, petition of the government 2nd Amendment – Right to bear arms 3rd Amendment – Quartering troops in private homes

5 4th Amendment Prohibits unreasonable search 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”


7 5th Amendment Right to “due – process”, no double jeopardy, self- incrimination, eminent domain No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be 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.

8 Miranda v. Arizona

9 6th Amendment Rights when on trial
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in 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 witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

10 The Bill of Rights 7th Amendment – Common-law suits
8th Amendment – Excessive Bail; Cruel & Unusual Punishment 9th Amendment – Bill of rights doesn’t expand Government powers 10th Amendment – powers not listed for the Federal Government are reserved for the __________.

11 Mini-History: Free Speech & Press
1798 Sedition Act passed by Federalists; undeclared naval war w/ France; crime to publish "false, scandalous, and malicious writing" against the government or its officials Civil War - Lincoln suspended free press Ordered the arrest of editors of 2 NY papers critical of him; Congress prohibited the Court from issuing a judgment in any cases involving convictions for publishing statements critical of the U.S. (Art. II gives Congress power to determine jurisdiction of the Court) WWI - Clear and Present Danger Test Schenck v. U.S. (1919) the Court looks to see “whether the words used” could “create a clear and present danger” 1969: Imminent Danger/Direct Incitement Test Court in Brandenburg v. Ohio (1969) holds that advocacy of illegal action is protected by 1st Am. unless imminent lawless action is intended and likely to occur. 11

12 REMEMBER…. NY Times v. Sullivan (USSC 1964)
New York Times v. Sullivan 376 U.S. 254 (1964) MR. JUSTICE BRENNAN delivered the opinion of the Court. We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct. Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was "Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales." He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25. Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, Entitled "Heed Their Rising Voices," the advertisement began by stating that "As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It went on to charge that "in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom " Succeeding paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, "the struggle for the right-to-vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery. The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal," appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and the officers of the Committee were listed. Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows: Third paragraph: "In Montgomery, Alabama, after students sang `My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission." Sixth paragraph: "Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times -- for `speeding,' `loitering' and similar `offenses.' And now they have charged him with `perjury' -- a felony under which they could imprison him for ten years "     Although neither of these statements mentions respondent by name, he contended that the word "police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of "ringing" the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement "They have arrested [Dr. King] seven times" would be read as referring to him; he further contended that the "They" who did the arresting would be equated with the "They" who committed the other described acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and violence," bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner. It is uncontroverted that some of the statements contained in the paragraphs were not accurate descriptions

13 NY Times v. Sullivan (1964) Libel of requires all of:
False? Written? Harm Reputation? Libel of Public Figure also requires: actual malice or reckless disregard for the truth? What if the writing is negligent? On March 29, 1960, the New York Times carried a full-page advertisement entitled "Heed Their Rising Voices", which solicited funds to defend Martin Luther King, Jr. against an Alabama tax-evasion charge. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Commissioner L. B. Sullivan, whose duties included supervision of the police department, wasn't named but argued that his position as a commissioner there meant that the inaccurate criticism of the actions of the police were defamation against him. Alabama law denied a public officer recovery of punitive damages in a libel action brought on account of a publication concerning their official conduct unless they first make a written demand for a public retraction and the defendant fails or refuses to comply, so Sullivan sent such a request. The Times did not publish a retraction in response to the demand. Instead it wrote a letter stating, among other things, that "we are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you". Sullivan didn't respond but instead filed this suit a few days later. He also sued four black ministers mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, SR, Fred Shuttlesworth, and Joseph Lowery. Sullivan won $500,000 in an Alabama court judgment. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with "grave misconduct and ... improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama." When asked to explain why there had been a retraction for the Governor but not for Sullivan, the Secretary of the Times testified: "We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is the ex-officio chairman.... "On the other hand, he testified that he did not think that 'any of the language in there referred to Mr. Sullivan.'"

14 1st Am. Guarantees: Freedom of Speech and Press
Prior Restraint: USSC very rarely allows New York Times Co. v. US (1971) (6-3) “Pentagon Papers case” Court ruled the U.S. government could not block the publication of secret Department of Defense documents illegally furnished to the Times by anti-war activists. US could not prove a “grave and irreparable” danger to Nat’l Security. Prior restraint: Constitutional doctrine that prevents the government from prohibiting speech or publication before the fact (to do so violates 1st Am.) 14

15 1st Am.: Symbolic Speech 1969: Tinker v. Des Moines … Dist. School
1989: Texas v. Johnson (5-4) Symbols, signs, and other methods of expression generally protected by 1st Am. Pearson Education, Inc. © 2006 15

16 John and Mary Beth Tinker
(1969) Facts of the Case  John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Question  Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? Conclusion  Decision: 7 votes for Tinker, 2 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits. The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.


18 Obscenity 1973 definition:
judged by “the average person, applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value” 1964: J. Stewart, “I know it when I see it” Balancing competing claims: freedom v. decency

19 Free Speech & Press Summary
Democracy depends on a free exchange of ideas. allows unpopular, offensive speech “Symbolic Speech” Protected “Prior Restraint” rarely justified GOVERNMENT Can Prohibit SOLIDs: Slander, Obscenity, Libel, Imminent Danger speech 19

20 Decrease in civil liberties since 911?

21 4th Amendment - Mapp v. Ohio (1961) Exceptions
Evidence illegally gathered may not be used in a criminal trial = exclusionary rule in this case it was applied to states Exceptions “good faith exceptions” when there is an error in gathering evidence that is minor, it may be used in court Consent Plain View Motor Vehicles

22 Dollree Mapp 

23 4th, 5th, 6th Amendments: prohibits illegal _______ and ______ without _______ cause and a ______ warrant protection from double ________, e_______d_______, self ___________ and upholds D___ P_______ of law.…fair and speedy ______, right to _______. Gideon v. Wainwright (1963) 6th Amendment “In forma pauperis” Have right to attorney even if you can’t afford one Miranda v. Arizona (1966) Searches and seizures, probable cause and a search warrant Miranda was arrested based on circumstantial evidence linking him to the kidnapping and rape of an 18-year-old woman 10 days earlier.[1] After two hours of interrogation by police officers, Miranda signed a confession to the rape charge on forms that included the typed statement "I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me."[2] However, at no time was Miranda told of his right to counsel, and he was not advised of his right to remain silent or that his statements would be used against him during the interrogation before being presented with the form on which he was asked to write out the confession he had already given orally. At trial, when prosecutors offered Miranda's written confession as evidence, his court-appointed lawyer, Alvin Moore, objected that because of these facts, the confession was not truly voluntary and should be excluded. Moore's objection was overruled and based on this confession and other evidence, Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years imprisonment on each charge, with sentences to run concurrently. Moore filed Miranda's appeal to the Arizona Supreme Court claiming that Miranda's confession was not fully voluntary and should not have been admitted into the court proceedings. The Arizona Supreme Court affirmed the trial court's decision to admit the confession in State v. Miranda, 401 P.2d 721 (Ariz. 1965). In affirming, the Arizona Supreme Court emphasized heavily the fact that Miranda did not specifically request an attorney.

24 Selective Incorporation
The court cases that applied the Bill of Rights to the states 14th Amendment (1868) “due process clause” & “equal protection clause” Palko v. Connecticut (1937) – rejects “FULL/TOTAL incorporation” opts for selectively incorporating ** Now applies to state governments for certain liberties - all with the exception of 2, 3, 5, 7 & 8 ***** “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

25 1st Amendment Rights Selective Incorporation (application to the states)
Gitlow v. New York (1925): Applied freedom of speech to the states Near v Minnesota (1931): Applied freedom of press to the States De Jonge v. Oregon (1937) Applied Free Assembly & Right to Petition Government

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