1. “Your rights as Americans”
Civil Liberties
“Your rights as Americans”

2. What are civil liberties?
Civil liberties are the personal rights
and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation.
• These are limitations on the power of
government to restrain or dictate how
individuals act.

3. Founding Documents
Declaration of Independence - “We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
Constitution – framers believed in natural rights

4. Writ of Habeas Corpus Art. 1, Sec. 9 “Produce the body”
Requires government officials to present a prisoner in court and to explain to the judge why the person is being held

5. Ex Post Facto Laws “after the fact”
Being charged for committing a crime, that wasn’t a crime when the person committed the action

6. Bills of Attainder
Legislative act that punishes an individual without judicial trial
Court should decide guilt, not Congress

7. Bill of Rights Free speech, press, assembly, petition, religion
Right to bear arms
Prohibits quartering soldiers
Restricts illegal search and seizures
Provides grand juries, restricts eminent domain (gov can’t take private property unless compensation), prohibits forced self-incrimination, double jeopardy (can’t be charged for the same crime twice)

8. Bill of Rights 6. Outlines criminal court procedure 7. Trial by jury
8. Prevent excessive bail and cruel and unusual punishment
9. Amendments 1-8 do not necessarily include all possible rights of the people
10. Reserves for the states any powers not delegated to Fed. Gov by Constitution

9. + 1…the 14th Amendment
The Bill of Rights was designed to limit the powers of
the national government.
• In 1868, the Fourteenth Amendment was added to the
Constitution and its language suggested that the protections of the Bill of Rights might also be extended to prevent state infringement of those rights.
– The amendment begins: “All persons born or naturalized…are citizens…No state shall....deprive any person, of life, liberty, or property without due process of law.“
– Also includes equal protection clause (next slide)
– The Supreme Court did not interpret the 14th Amendment that way until 1925 in Gitlow v. New York.

10. 14th Amendment
“privileges and immunities” – Constitution protects all citizens
Due process – prohibits abuse of life, liberty, or property of any citizen, state rights were subordinate to Fed rights
Equal protection clause – Constitution applies to all citizens equally

11. 14th Amendment (con’t)
In 1925, the Court ruled in Gitlow v. New York that states
could not abridge free speech due to the 14th Amendment's Due Process Clause.
• This was the first step in the development of the
incorporation doctrine whereby the Court extended Bill
of Rights protections to restrict state actions.
• Not all of the Bill of Rights has been incorporated. For
example the 2nd and 3rd amendments have not been
incorporated.

12. The 1st Amendment….Freedom of Religion, Speech & Press
The First Amendment states that: “Congress shall make no law
1. respecting an establishment of religion,
2. or prohibiting the free exercise thereof;…”

13. The Founding Fathers & the 1st Amendment
While not all of the founders endorsed religious
freedom for everyone, some of them notably
Jefferson and Madison, cherished the right of all
individuals to believe as they pleased. (Tommy J was a deist…)
• Many of the colonies and later states had established religions. After independence all but TWO of the former colonies had declared themselves “Christian states.”
• Non-Christian minorities were rarely tolerated
(Jews could not hold office in Massachusetts until
1848).

14. What “establishment” historically meant…
means that the Government will create and support an official state church…often
– tax dollars support that chosen church.
– that church’s laws become the law of the land.
– the Nation’s leader usually appoint the leading clerics.
– often other religions are often excluded.

15. US point of view of establishment
They asked, “Should
we establish a religion
or not?”
• Thomas Jefferson
wrote that there
should be “a wall of
separation between
church and state.”
Tommy J rocks!!!!

16. Religion…as a result
“Establishment” clause – prohibits the gov’t from establishing an official church
“Free exercise” clause – allows people to worship as they please

17. Separationists vs. Accomodationists
How high should the wall
between church and state
be?
Accomodationists
contend that the state
should not be separate
from religion but rather
should accommodate it,
without showing
preference.
Separationists argue that a
high “wall” should exist
between the church and
state.

18. Judicial Review Marbury v. Madison
The power of the Supreme Court to judge the constitutionality of a law

19. Legislative Action Sometimes laws can guarantee rights
Ex. Civil Rights Act of 1964

20. The Supreme Court and the Establishment Clause
The Supreme Court has held fast to the rule of
strict separation between church and state when
issues of prayer in public school are involved.
•In the early 1960s, the Court ruled that official
lead prayer and bible reading is unconstitutional.
•In Engel v. Vitale, (1962) the Court ruled that
even nondenominational prayer could not be
required of public school children

21. School Prayer In Lee v. Weisman (1992), the Court continued its
unwillingness to allow
prayer in public
schools by finding the
saying of prayer at a
middle school
graduation
unconstitutional.

22. Lemon v. Kurtzman—i.e. the Lemon Test
In 1971, the Court ruled that
New York state could not
use state funds to pay
parochial school teachers’
salaries.
• To be Constitutional the
challenged law must
1. Have a secular purpose
2. Neither advance nor inhibit
religion
3. Not foster excessive
government entanglement
with religion.
In 1980, this Lemon
Test was used to
invalidate a Kentucky
law that required the
posting of the Ten
Commandments in
public school
classrooms.

23. Free Exercise Clause
"Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion.
• This freedom is not absolute.
• Several religious practices have been ruled unconstitutional including:
– snake handling
– use of illegal drugs
– Polygamy ‘Violation of social duties or subversive of good order”
Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

24. “See You At the Pole” Student participation in
before - or after - school
events, such as "see you
at the pole," is
permissible.
• School officials, acting
in an official capacity,
may neither discourage
nor encourage
participation in such an
event.

25. Equal Access to Schools
1984 Congress passed Equal Access Act public
high schools receiving gov’t funds must allow student groups to meet regardless of religious or political content if other non-curricular clubs also meet
• Westside Community Schools v Mergens 1990-upheld Act “Crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clause protects”.

26. Still 1st Amendment…Freedom of Speech
In the United States we each have the right to
speak our mind (within some broad limits).
• In this section we will discuss
– The history of speech in the United States
– Prior Restraint
– Politically Correct and Hate Speech
– Symbolic Speech
– Libel and Slander
– The Internet

27. Free Speech
DOES NOT mean that you can “say anything you want”… but pretty close
Restrictions
Threat to national security—this now includes saying things like…”I’m glad they didn’t find the bomb in my bag”—while in line at the airport!
Libel – false written statement attacking someone’s character, with intent to harm
Obscenity – not protected, hard to define – Ex. Pornographic material
Symbolic speech – action to convey a message

28. Alien & Sedition Acts (1798)
These acts were designed to silence
criticism of the government.
• They made it a criminal offense to publish
“any false, scandalous writing against the government of the United States.”
• A new Congress allowed the acts to expire before the Supreme Court had a chance to rule on the Constitutionality of the laws.

29. War and Freedom of Speech
During the Civil War, President Lincoln suspended the free press provision of the First Amendment.
• President Lincoln also ordered the arrest of editors of two New York newspapers. Congress support him.

30. Espionage Act (1917)
In World War I anti-German feelings ran high. Anything German was renamed –
such as Sauerkraut to Liberty
Cabbage.
• This law curtailed speech and
press during World War I.
• The law made it illegal to urge
resistance to the draft, and even
prohibited the distribution of antiwar leaflets.
• Nearly 2,000 Americans were convicted under the Espionage Act.

31. Espionage Act Con’t
Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft.
• The bad tendency test was used by the
Court. Engaging in speech that had a
tendency to induce illegal behavior was not protected by the 1st Amendment.

32. Clear and Present Danger Test
Holmes sought to allow limits on the 1st
Amendment.
• Justice Holmes defined the “Clear and Present Danger” test in the Schenck case.
• “Even the most stringent protection of free speech would not protect a man
falsely shouting fire in a crowded
theatre.” Justice Holmes.

33. Debs v US (1919) In Debs the Court upheld the conviction of
Eugene V. Debs (a Socialists candidate for the U.S. Presidency) because his anti-war speeches had the “tendency” to obstruct recruitment efforts.

34. Libel and Slander
Libel is a written statement that defames the character of a person.
• Slander is spoken words that defame the character of a person.
• In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved.
– Actual malicious intent must be proved
NY Times v Sullivan 1964

35. Obscenity and the 1st Amendment
Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place and person to person.
• Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he
couldn't define obscenity, but "I know it when I
see it." The ambiguity of definition still exists
and is becoming even more problematic with
the Internet.
• No nationwide consensus exists that offensive
material should be banned—even some porn.

36. Obscenity con’t
The courts have consistently ruled that states may protect children from obscenity (Osborne v. Ohio,1991); while adults often have legal access to the same material.
– BUT Court struck down Child Pornography Prevention Act in Ashcroft v Free Speech Coalition. The act was
aimed at restricting minors viewing pornography at
libraries
• Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States,1957) it has proven difficult to determine just what is obscene.

37. Miller v California
Miller concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.
• In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.

38. The “Three Pronged Test” for Obscenity
In order to meet the definition of obscene material articulated in this case, three conditions must be met as determined in Miller V California 1973:
1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest
2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific

39. What Types of Speech are Protected?
Symbolic speech--symbols, signs, and other
methods of expression. The Supreme Court has
upheld as constitutional a number of actions
including:
– An example of protected symbolic speech would be
the right of high school students to wear armbands to
protest the Vietnam War (Tinker v. De Moines
Independent Community School District, 1969).
– flying a communist red flag
– burning the American flag

40. Protection—even when burning a flag
Burning the American
flag is a form of
protected symbolic
speech.
• The Supreme Court
upheld that right in a
5-4 decision in Texas
v. Johnson (1989).

41. What Types of Speech are Protected? Pentagon Papers
Prior Restraint – a government action that
prevents material from being published.
• The Supreme Court has generally struck
down prior restraint of speech and press
(Near v. Minnesota, 1931).
• In NYT v. United States (1971) the Court
ruled that the publication of the top-
secret Pentagon Papers could not
be blocked.

42. What Types of Speech are Protected?
Hate Speech – hate speech is the new
frontier.
Campus speech codes, city ordinances,
and the Communications Decency Act are just a few examples.

43. Politically correct speech
This controversy grew out of the movement colleges to ban offensive speech.
• Incidents in which reprimanded students have challenged the college’s code of speech have been challenged successfully by the American Civil Liberties Union (ACLU)

44. 2nd Amendment The 2nd Amendment states that
• "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."
• This amendment has been hotly contested in recent years particularly since the 1999 shootings at Columbine High School.
• The Court has not incorporated this right, nor
have they heard many cases about it.

45. 3rd Amendment
Covered mostly under right to privacy…when was the last time your family made up the guest room for a US military soldier (that wasn’t related to you)?

46. 4th Amendment The 4th Amendment’s general purpose
– is to deny the government the authority to make general searches.
• The Supreme Court has interpreted the 4th to allow the police to search
– The person arrested
– Things in plain view of the accused
– Places or things that the person could touch or reach,
or which are otherwise in the arrestee’s “immediate
control.”

47. Search and Seizure 4th Amendment
Freedom from “unreasonable search and seizure”
Prevent police abuse
Ex. Mapp v. Ohio

48. 4th Amendment con’t
Provides protection against “unreasonable” searches and seizures
• Requires search warrants-probable cause
• Allows “Stop and Frisk”-warrant less
searches only with reasonable suspicion
• Testing for drugs and HIV?

49. Due Process 5th and 14th Amendment
Forbids national AND state gov to “deny any person life, liberty, or property without due process of law.”
Procedural – fair trial
Substantive – fundamental fairness
Exclusionary rule—evidence gathered in violation of the Constitution cannot be used against a defendant

50. Bill the Bulwark
What does the “fruit of the
poisonous tree” refer to?

51. Rights of Criminal Defendants
Are the due process rights and the
Procedural guarantees provided by the
Fourth, Fifth, Sixth, and Eighth Amendments

52. Self-incrimination 5th Amendment
No one “shall be compelled to be a witness against himself.”
Miranda v. Arizona 1966

53. 5th Amendment The 5th Amendment states that “No person
shall be …compelled
in any criminal case to
be a witness against
himself.
• So criminals cannot
be required to take the
stand in a trial.

54. 6th Amendment The 6th Amendment Guarantees a right to counsel.
• In the past this meant that a defendant could hire and
attorney.
• Since most criminals are poor they did not have counsel.
• In the case of Gideon v. Wainwright (1963).
• In Gideon, a poor man, was accused of a crime and
denied a lawyer.
• The Court ruled unanimously that a lawyer was a
necessity in criminal court, not a luxury. The state must
provide a lawyer to poor defendants in felony cases.

55. 8th Amendment
The 8th Amendment prohibits cruel and unusual punishment.
• The 8th is most often used in arguing death penalty cases? Some of the major death penalty cases are:
– Furman v. Georgia (1972) the Court ruled that the death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner.
– Mckleskey v. Kemp (1987) the Court rules that the death penalty – even when it appeared to discriminate against African Americans – did not violate the constitution.
– McKleskey v. Zant (1991) the Court made it more difficult for death row inmates to file repeated appeals.
– Hill v Mc Donough (2006)-Can appeal using civil rights

56. Right to Privacy
The Supreme Court has also given protection to rights not specifically
enumerated.
• The Court has ruled that though privacy
is not specifically mentioned in the
Constitution, the Framers expected
some areas to be off-limits to government interference.

57. Right to Privacy Not in the Constitution
Griswold v. Connecticut (1965)
Roe v. Wade (1971)
Yahoo and Google – search and s?
Cell phone conversations?

58. Right to Privacy In Roe v. Wade (1973) The Supreme Court ruled that
a Texas law prohibiting abortion violated a woman's constitutional right to privacy.
• Since Roe, a number of other cases on abortion have been decided, in general they have limited abortion rights in some way.
• Webster v. Reproductive Health Services (1989) -upheld fetal viability tests
• Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - Pennsylvania was allowed to limit abortions as long as they did not pose 'an undue burden' on pregnant women.

59. Right to Privacy based on Sexual orientation
The Court has declined to extend privacy rights to
protect homosexual acts.
• In 1986, the Court upheld a Georgia law against
sodomy in a 5-4 decision in the case of Bowers v.
Hardwick.
• However, in 1996, the Court ruled that a state could not
deny rights to homosexuals simply on the basis of
sexual preference
• 2003 Court stuck down Texas sodomy laws as
unconstitutional- ruled they have “respect for their
private lives”

60. Right to Privacy Right to Die
In 1990, the Court heard the case Cruzan by
Cruzan v. Director, Missouri Department of
Health.
• In a 5-4 ruling, the Court rejected a right to
privacy in such cases but argued that living wills,
written when competent, were constitutional.
• In 1997, the Court ruled that there was no
constitutional right to assisted suicide.

61. Right v. Right?? Most cases are not simple
They often pit two rights against each other
Ex. – freedom of press v. national security

62. The process of extending the protections of the Bill of Rights by means of the Fourteenth Amendment to apply to the actions of the state governments is known as
A. judicial review
B. incorporation
C. broad construction
D. federalism
E. stare decisis

63. The Supreme Court has ruled which of the following concerning the death penalty?
A. a state may not impose the death penalty on a noncitizen
B. Lethal injection is the only constitutionally acceptable method of execution
C. Females may not be executed
D. The death penalty is not necessarily cruel and unusual punishment
E. The death penalty violates the Fifth Amendment of the Constitution

64. Both Gitlow v New York and New York Times v Sullivan are US Supreme Court cases that dealt with which of the following amendments to the US Constitution?
A. First Amendment
B. Second Amendment
C. Fourth Amendment
D. Fifth Amendment
E. Fifteenth Amendment

65. Brown v Board of Education of Topeka (1954) was a significant Supreme Court ruling because it
A. placed limitations on the federal government and affirmed the rights of people and of the states
B. made it illegal for members of the Communist party to be schoolteachers
C. upheld laws allowing for the internment of ethnic groups during wartime
D. applied the freedom of press provisions of the First Amendment to the states by means of the Fourteenth Amendment
E. held the “separate but equal” concept to be a violation of the equal protection clause of the Fourteenth Amendment

66. According to the clear and present danger test, speech may be restricted
A. when in incites violent action
B. when it lacks a political purpose
C. whenever the US is at war
D. if it is deemed offensive to religious organizations
E. if the writer or speaker is not a citizen of the US