CIVIL LIBERTIES Chapters 5 CIVIL LIBERTIESRIGHTS Civil liberties

CIVIL LIBERTIES Chapters 5

CIVIL LIBERTIES/RIGHTS Civil liberties are legal and constitutional rights that protect individuals from arbitrary acts of government. Civil Liberties include freedom of speech, religion, and freedom of the press

CIVIL LIBERTIES/RIGHTS Civil rights are policies designed to protect people against arbitrary or discriminatory treatment by the government or individuals Civil rights are guaranteed by the Equal Protection Clause of the 14 th Amendment. Some discrimination is acceptable based on the rational basis test – eg. drinking age

• The Constitution was originally written with a specific number of restrictions on government authority. For example: the government could not grant titles • The Anti-Federalists objected to the absence of a bill of rights • Led by James Madison, the First Congress passed ten amendments

The Bill of Rights • The Bill of Rights is the first ten amendments to the Constitution includes specific guarantees such as free speech, free press, and religion. • It was intended to limit the power of government “Congress shall make no laws …” • The proposed Bill of Rights was ratified in 1791.

Selective Incorporation • Selective incorporation (AKA Incorporation Doctrine) is a constitutional doctrine that ensures states cannot enact laws that take away constitutional rights • It is not a law, but has been established through time through court cases and rulings by the Supreme Court

The Incorporation Doctrine • 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: "No state shall. . deprive any person, of life, liberty, or property without due process of law. " • There are two key clauses: 1. The Due Process Clause 2. The Equal Protection Clause

The Incorporation Doctrine • The Court started to apply part of the B of R to the states • In 1833 Barron v. Baltimore the Court ruled that the Bill of Rights only applied to the federal not state governments • Even after the 14 th Amendment, the Court ruled in U. S. vs Cruikshank (1876) that the 1 st and 2 nd Amendments only applied to the federal government • The Supreme Court did not interpret the 14 th Amendment that way until 1925 in Gitlow v. New York – the Court ruled that the states were bound to protect speech

Religion • 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. • 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

Drafting the First Amendment • They asked, “Should we establish a religion or not? ” • Thomas Jefferson wrote that there should be “a wall of separation between church and state. ”

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

Freedom of Religion The First Amendment contains two fundamental guarantees of religious freedom The First Amendment states that: “Congress shall make no law 1. Establishment Clause prohibited “an establishment of religion” 2. The Free Exercise Clause prohibiting government from interfering with the practice of religion Gov’t can get involved with limited religious activities if 1. secular (non religious) purpose 2. neither advances nor inhibits religion 3. doesn’t foster gov’t entanglement with religions

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 1960 s, 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.

Prayer in School • 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.

Lemon v. Kurtzman (1971) • • Public schools could not use state funds to pay catholic school teachers’ salaries. Created the Lemon Test • • Lemon Test If any of these prongs are violated it is unconstitutional 1. The statute must have a secular legislative purpose. (also known as the Purpose Prong) 2. The statute must not advance nor inhibit religious practice (also known as the Effect Prong) 3. The statute must not result in an "excessive government entanglement" with religious affairs. (also known as the Entanglement Prong)

The Free Exercise Clause • This freedom is not absolute. • Several religious practices have been ruled unconstitutional including: – use of illegal drugs (Oregon v. Smith) – Polygamy (Reynolds v. United States) • Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

"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.

First Amendment: Freedom of Religion Issues • “So help me God” is optional • “In God we trust” was adopted as the official motto in 1956 to separate us from the godless atheists • Has led to numerous legal challenges – all defeated

Freedom of Religion Issues • Many people have questioned the legality based on a separation of church and state • Accommodationists claim that it does not violate the Constitution because it does not promote one denomination over another • Zorach v. Clausen (1952) – while the government may recognize a Supreme Being it doesn’t mean that it establishes a religion • Aronow v. United States (1970) – issue: on money. Decision: nothing to do with the establishment of religion • Elk Grove Unified School District v. Newdow (2004) – issue: pledge of allegiance – patriotic not religious “ceremonial deism” is protected

First Amendment: Freedom of Speech and Press • In the United States we each have the right to speak our mind (within some broad limits). • In their attempt to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like a. Public order b. National security

What is Freedom of Speech • Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). • Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate. ”). Tinker v. Des Moines, 393 U. S. 503 (1969). • To use certain offensive words and phrases to convey political messages. Cohen v. California, 403 U. S. 15 (1971). • To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo, 424 U. S. 1 (1976). • To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U. S. 748 (1976); Bates v. State Bar of Arizona, 433 U. S. 350 (1977). • To engage in symbolic speech, (e. g. , burning the flag in protest). Texas v. Johnson, 491 U. S. 397 (1989); United States v. Eichman, 496 U. S. 310 (1990).

What is not Freedom of Speech • To incite actions that would harm others (e. g. , “Shouting ‘fire’ in a crowded theater. ”). Schenck v. United States, 249 U. S. 47 (1919). • To make or distribute obscene materials. Roth v. United States, 354 U. S. 476 (1957). • To burn draft cards as an anti-war protest. United States v. O’Brien, 391 U. S. 367 (1968). • To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U. S. 260 (1988). • Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser, 478 U. S. 675 (1986). • Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U. S. __ (2007).

Speech During the Civil War • 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 supported him.

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.

• 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 1 st Amendment.

• Justice Holmes sought to allow limits on the 1 st Amendment. • 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.

Libel and Slander • Libel is a written statement or picture that defames the character of a person. • Slander is spoken words, sign language, or gesture that defames 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 – must prove “harm”

What is “obscene”? • 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.

Obscenity • 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. • Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States, 1957 – mailing material) it has proven difficult to determine just what is obscene.

Miller vs. California • Bookseller Marvin Miller was convicted 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.

"Three-Pronged Test" for Obscenity In order to meet the definition of obscene material articulated in this case, three conditions must be met: 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 value.

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

Flag Burning • 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).

What Types of Speech are Protected? • 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.

What Types of Speech are Protected? Hate Speech – speech that attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation Snyder v. Phelps (2011) Court ruled 8 -1 in favor of Westboro Baptist Church who attacks gays (one follower spent over $250, 000 in one year protesting!)

Free Speech at School Courts have ruled that: • Students have less rights at school than out • School acts like a parent • Students have more freedom of speech out of class than in it • Political/religious speech most protected

• In the school context, the United States Supreme Court has identified three major relevant considerations: • 1. The extent to which the student speech in question poses a substantial threat of disruption (Tinker v. Des Moines) • 2. Whether the speech is offensive to prevailing community standards (Bethel School District v. Fraser) • 3. Whether the speech, if allowed as part of a school activity or function, would be contrary to the basic educational mission of the school (Hazelwood v. Kuhlmeier) • In (Morse v. Frederick) the Court implied that any one of these may serve as an independent basis for restricting student speech

Religious Issues OK NOT OK • Santas at schools • Symbols from multiple religions • Church meetings at gov’t buildings • Nativity scenes • Money to private, religious schools • Teacher led prayer

The Right to Keep and Bear Arms • The 2 nd 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.

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

Criminal Rights • Exclusionary Rule: evidence gathered in violation of Const. cannot be used in trial • Search warrants: order from judge w/ probable cause • No-knock warrants: order from judge for law enforcement to enter without notifying the occupants – very controversial - officers shot - dogs killed • Miranda Rule: arrested people must be made aware of their rights – Very controversial---pits those for civil liberties vs. those for strong justice

Fourth Amendment • The 4 th Amendment’s general purpose – is to deny the government the authority to make general searches. • The Supreme Court has interpreted the 4 th 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. ”

Fourth Amendment • 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?

Fifth Amendment • The 5 th 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.

Sixth Amendment • The 6 th 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.

Eighth Amendment • The 8 th Amendment prohibits cruel and unusual punishment. • The 8 th 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. Stopped executions – Gregg v. Georgia (1976) the Court reaffirmed the death penalty – 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. – Mc. Kleskey v. Zant (1991) the Court made it more difficult for death row inmates to file repeated appeals.

The 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.

The Right to Privacy - Abortion • 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.

The Right to Privacy Homosexuality • 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.

The Right to Privacy The 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.

th 13 Amendment (1865) • The 13 th, 14 th, and 15 th Amendments are known as the Reconstruction Amendments because they all deal with the issue of the former slaves • The 13 th Amendment banned all forms of slavery and involuntary servitude • All southern states had to ratify the Amendment, but most quickly passed Black Codes prohibiting the African-Americans from voting etc. • The Black Codes laid the foundation for the Jim Crow laws which legalized segregation

th 14 Amendment, Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

The Importance of the 14 th Amendment • The first and only mention of equality is in the 14 th Amendment, which prevents states from denying anyone “equal protection under the law. ” • The 14 th Amendment provided “equal protection of the laws” while establishing citizenship rights for newly freed slaves – Not until the 1950’s (Brown v. Board of Education) and 60’s (The Civil Rights Act 1964 and the Voting Rights Act) was the full force of the 14 th amendment felt and equal rights for women and minorities been protected.

th 15 Amendment, (1869) • The 15 th Amendment guaranteed the right of citizens to vote regardless of “race, color or previous condition of servitude” – it did not mention sex • Women abolitionists were shocked because they had supported the franchise former slaves

Effects of Jim Crow • In Plessey v. Ferguson (1896), the Justices based their decision on the separate-but-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal. – In short, segregation does not in itself constitute unlawful discrimination • In the South especially, African Americans lived in fear of racially motivated violence. • “Jim Crow" laws barred African Americans from access to employment and to public places such as restaurants, hotels, and other facilities.

Congress Finally Acts Causes • Protests of 1950 s/60 s leads to public opinion shift • Violent reactions of white segregationists • JFK assassination • 1964 election landslide for Democrats Effects: • Five Civil Rights Laws between 1957 -1968 including – 1964 Civil Rights Act • Outlawed discrimination in employment, voter registration, public accommodations that engage in interstate commerce • “Solid South” shifts from Dems to Reps