Civil Liberties and Public Policy Bill of rights

Civil Liberties and Public Policy Bill of rights pic AP US Government

“Regardless of the times… these liberties mean nothing if citizens do not challenge the government when they think it has impermissibly limited those freedoms. Unless we act as caretakers of our liberties, we lose them. ” (Magleby, p. 409) Morse v. Frederick

The Bill of Rights – Then and Now ● Civil Liberties – Definition: The legal constitutional protections against the government. In other words, what the government cannot do to you. ● The Bill of Rights and the States – The Bill of Rights is the first 10 amendments. – Written to restrict the national government. – Most are “incorporated” into state and local laws. ● Through the due process clause of the 14 th Amendment, the incorporation doctrine was created

The Bill of Rights

Selective Incorporation

Establishment Clause ● The opening words of the First Amendment to the Constitution set forth a dual guarantee of religious liberty. Both the Establishment Clause and the Free Exercise Clause operate to protect the religious liberty and freedom of conscience of all Americans. – Quoting Thomas Jefferson, the Supreme Court has stated that the Establishment Clause was intended to accomplish this end by erecting a "wall of separation between Church and State. " Everson v. Board of Educ. of Ewing, 330 U. S. 1, 15 -16 (1947). ● The Establishment Clause (freedom from religion) – “Congress shall make no law respecting the establishment of religion. ” – Prohibits government from establishing a state religion

Everson v. Board of Ed (1946) This was the first Supreme Court case incorporating the Establishment Clause of the First Amendment as binding upon the states through the Due Process Clause of the Fourteenth Amendment. The decision in Everson marked a turning point in the interpretation and application of disestablishment law in the modern era. The case was brought by a New Jersey taxpayer against a tax funded school district that provided reimbursement to parents of both public and private schooled children taking the public transportation system to school. The taxpayer contended that reimbursement given for children attending private religious schools violated the constitutional prohibition against state support of religion, and the taking of taxpayers' money to do so violated the constitution's Due Process Clause. The Court has become more conservative on establishment clause issues in recent years What do you think about the issue of school voucher funds for private school choices? (Zelman v. Simmons-Harris 2002) ●

The Lemon Test ● How do we determine an establishment clause violation? – Three key parts (Lemon v. Kurtzman 1971): ● ● 1. A law must have a secular legislative purpose 2. It must neither advance nor inhibit religion 3. It must avoid “excessive government entanglement with religion” In addition to Lemon, there are two other tests: – Endorsement Test (O’Connor) – Nonpreferentialist Test (Scalia) In the news: http: //www. nytimes. com/2011/12/28/us/battling-anewover-the-place-of-religion-in-publicschools. html? pagewanted=all

In Your Neck of the Woods: Elmbrook SD v. Doe (2014) Issue: (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message. Court of Appeals for the Seventh Circuit ruled that renting the church auditorium was unconstitutional. It said that the “religious environment” of the auditorium created a risk that graduating students would “perceive the state as endorsing a set of religious beliefs. ”

Town of Greece v. Galloway (2014) Does the town of Greece, New York, impose an impermissible establishment of religion by opening its monthly board meetings with a prayer? Facts Holding: 5 4 The town of Greece does not violate the First Amend ment's Establishment Clause by opening its meetings with sectarian prayer that comports with America's tradition and doesn't coerce participation by nonadherents. The judgment of the Second Circuit was reversed.

Free Exercise Clause ● The Free Exercise Clause (freedom of religion) – “or the free exercise thereof” – Prohibits government from interfering with the practice of religion – Some religious practices may conflict with other rights, and then be denied or punished ● ● Church of Lukumi Babalu Aye v. City of Hialeah Wisconsin v. Yoder

Snyder v. Phelps (2011)

Freedom of Speech ● Speech stands somewhere between belief and action. It is not an absolute right, but neither is it entirely exposed to governmental restraint – Types of speech not entitled to constitutional protection: ● ● Libel (NY Times v. Sullivan 1964) Obscenity (“I know it when I see it”; Cohen v. CA; Miller v. CA) Fighting Words (Chaplinsky v. NH 1942) Commercial Speech (44 Liquormart v. RI 1996)

Freedom of Speech ● Libel and Slander – Libel: The publication of false or malicious statements that damage someone’s reputation. – Slander: The same thing, only spoken instead of printed. – Different standards for private individuals and public (politicians, celebrities) individuals ● Free Press and Fair Trials – The public has a right to know what happens. (Richmond Newspapers Inc. v. Virginia 1980) – The press’ own information may not be protected. (Branzburg v. Hayes 1971)

Freedom of Speech ● Prior Restraint: A government preventing material from being published. Censorship. You can’t stop someone from printing something before they print it. – May be permissible during wartime. – May be punished after something is published. – Don’t want to create a chilling effect ● ● ● Near v. Minnesota (1931) Hazelwood R. A. V. v. St. Paul (2004)

Question 1. Do specialty license plates constitute government speech that is immune from any requirement of viewpoint neutrality? Free Speech in 2015 2. Does preventing the confederate flag from appearing on license plates constitute viewpoint discrimination? Are license plates like this one protected by the First Amendment? Decision: 5 votes for Walker, 4 vote(s) against Legal provision: First Amendment, freedom of speech

Freedom of Expression ● Obscenity – No clear definition on what constitutes obscenity. – Miller v. California (1973) stated that materials were obscene if the work: ● ● ● appeals “to a prurient interest in sex” (encouraging) showed “patently offensive” sexual conduct lacks “serious literary, artistic, political or scientific value” – Local areas make their own decisions on obscenity

Freedom of Expression ● Commercial Speech – Definition: Communication in the form of advertising – Generally the most restricted and regulated form of speech (Federal Trade Commission, consumer protection) ● ● ● Regulation of the Public Airwaves Broadcast stations must follow FCC rules. Protection of youth on the internet is a current hot topic

Freedom of Expression ● Symbolic Speech – Definition: Nonverbal communication, such as burning a flag or wearing an armband. (Texas v. Johnson, Tinker v. Des Moines) – Generally protected along with verbal speech. – Note: The Supreme Court has kept the standard for suppressing speech very high

Freedom of Expression ● Free Speech and Public Order – Limited if it presents a “clear and present danger” (Schenck v. United States 1919) – Permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to imminent lawless action (Brandenburg v. Ohio 1969) – Limited if on private property, like a shopping center (Marsh v. Alabama 1946)

Freedom of Expression ● Freedom of Assembly – Right to Assemble ● ● Generally permissible, but must meet reasonable local standards. Balance between freedom to assemble and order in society. – Time, Place, and Manner Restrictions – Right to Associate ● ● ● Freedom to join groups / associations without government interference. Nazis in Skokie Nazis in West Allis?

Defendants’ Rights ● Interpreting Defendants’ Rights – Criminal justice personnel are limited by the Bill of Rights. – Failure to follow the rules usually invalidates a conviction. – Courts continually rule on what is constitutional and what is not. – Rights have only been understood and/or incorporated through specific court cases ● Terry v. OH (1968): “stop and frisk”

Defendant’s Rights: Procedural Due Process governments must proceed by proper methods Substantive Due Process: governments must act reasonably; the substance of the laws themselves must be fair and reasonable

Defendants’ Rights ● Searches and Seizures – Probable Cause: The situation occurring when the police have reason to believe that a person should be arrested. – Unreasonable searches and seizures: Evidence is obtained in a haphazard or random manner. – Exclusionary Rule: The rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained. ● (Mapp v. OH 1961) – “Good faith exception” (U. S. v. Leon (1985) – Terry searches: http: //www. nytimes. com/2012/06/12/opinion/the-scarsof-stop-and-frisk. html? ref=nyregion

Defendants’ Rights ● Self-Incrimination – Definition: The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. – Miranda warnings (Miranda v. AZ 1966) – Entrapments may be overturned

Defendants’ Rights ● The Right to Counsel – The state must provide lawyers in most criminal cases. (Gideon v. Wainwright 1964) – Sixth Amendment ● Trial by Jury – Plea bargaining: An actual bargain between the prosecution and defense. – Juries generally consist of 12 people, but unanimity is not always needed to convict.

Defendants’ Rights ● Cruel and Unusual Punishment – The Eighth Amendment forbids cruel and unusual punishment. What About the Death Penalty? Is it a violation of the Constitution? ● Varies from state to state ● Cannot be mandatory ● Roper v Simmons; Kennedy v. Louisiana (2008)

The Right to Privacy ● Is There a Right to Privacy? – Definition: The right to a private personal life free from the intrusion of government. – Not explicitly stated in the Constitution – Implied by the Fourth Amendment – Very debatable…

The Right to Privacy ● Controversy over Abortion – Roe v. Wade (1973) – Planned Parenthood v. Casey (1992) – Protections of those seeking an abortion Gonzales v. Carhart (2006) The Court upheld a partial-birth abortion law

Understanding Civil Liberties ● Civil Liberties and Democracy – People need the right to express themselves. – Courts continue to define the limits of civil liberties. ● Civil Liberties and the Scope of Government – Must decide the line between freedom & order – Limits the scope of government

CL FRQ 1. The numerous provisions in the Bill of Rights serve as a foundation for both civil liberty and civil rights protections of all citizens. a. Identify which clause of the First Amendment’s freedom of religion was applied in one of the following Supreme Court cases. For the case you select, explain the Supreme Court’s decision and the significance of the decision in United States politics. Reynolds v. United States (1879) Lemon v. Kurtzman (1971) b. Identify which provision of the Fourteenth Amendment was applied in one of the following Supreme Court cases. For the case you select, explain the Supreme Court’s decision and the significance of the decision in United States politics. Baker v. Carr (1962) Gideon v. Wainwright (1963) c. Many of these decisions have caused controversy in the United States. Describe two ways in which other political institutions might limit the impact of Supreme Court decisions.