CIVIL LIBERTIES CIVIL LIBERTIES In this section we

CIVIL LIBERTIES

CIVIL LIBERTIES In this section we will cover… 1. The Bill of Rights 2. First Amendment: Freedom of Speech and Press 3. First Amendment: Freedom of Religion 4. The Right to Keep and Bear Arms 5. The Right to Privacy 6. The Rights of Criminal Defendants

CIVIL LIBERTIES • Civil liberties-personal rights/freedoms the federal gov. cannot abridge (by law, constitution, or judicial interpretation) • Limitations on the power of government to restrain or dictate how individuals act.

The Incorporation Doctrine • Bill of Rights limited the powers of the national government • 14 th Amendment-interpreted to restrict state actions – "No state shall. . deprive any person, of life, liberty, or property without due process of law. " • Gitlow v New York (1925) – First step in incorporation doctrine – Supreme Court extended Bo. R protections to restrict state actions • Not all of the Bo. R has been incorporated – 2 nd and 3 rd Amendments (for example)

Is Free Speech absolute? What limits exist?

First Amendment: “make no law” • Court must balance freedom of expression against competing values like: – Public order – National security – Right to a fair trial • Alien and Sedition Acts (1798) • Designed to silence criticism of gov. • Lincoln suspended free speech during Civil War • Espionage Act (1917) – Illegal to urge resistance to the draft (nearly 2, 000 convicted)

Schenck v. United States (1919) • Court upheld Schenck’s conviction 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 • Justice Holmes defined the “Clear and Present Danger” test – “Even the most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre. ”

Uncertain protection • Defamation of character – Libel – Slander • Obscenity -Uncertain definition (no consensus) -Miller v. CA-obscene material is NOT protected speech

What constitutes obscene material?

"Three-Pronged Test" for Obscenity Three conditions… 1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome) interest/desire 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 is something that one might find offensive, but does not pass the three-pronged test?

What Types of Speech are Protected? • Symbolic speech – Flag burning, etc. • Prior restraint-gov. action prevents material from being published – NYT v. U. S. (1971) – Publication of Pentagon Papers could not be blocked • Hate speech vs. P. C. speech – Campus speech codes vs. ACLU

What kinds of politically correct terms do we regularly use?

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

With a partner, answer the following questions… • 1. Does our government have an established (or preferred religion)? • 2. What are ways in which the government can support a religion?

Drafting the First Amendment • Framers believed: 1. When church and state are linked, individual freedoms are in jeopardy 2. Sanctity of religion could be ruined if mixed with worldly politics • Separation vs. accommodation – Should the state accommodate all religions equally or none at all? Jefferson wrote that there should be “a wall of separation between church and state. ”

The Establishment Clause • The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion.

Separation of Church and State • • Lemon v. Kurtzman (1971)the Court ruled that NY state could not use state funds to pay parochial school teachers’ salaries. The Court established the Lemon Test to determine the constitutionality of a law. -Does the law… 1. 2. 3. Have a secular purpose? Neither advance nor inhibit religion? Not foster excessive government entanglement with religion?

In pairs… • Use the “Lemon Test” to evaluate the following religious actions in public schools. • Identify what specific part of the “Lemon Test” is violated if the action is unconstitutional. • 1. School-led prayer and bible reading • 2. A mandatory period of nondenominational prayer • 3. Saying a prayer before a junior high graduation ceremony • 4. “See You at the Pole” • 5. Hanging the 10 Commandments in a classroom • 6. School vouchers • 7. Christian campus clubs

The 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 • Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

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.

Right to Privacy • Privacy is not specifically mentioned, but the Framers believed some areas were off limits. • Abortion rights: – Roe v. Wade (1973) • Right to abortion – Planned Parenthood v. Casey (1992) • PA can limit abortions if not “an undue burden”

Right to Privacy • Homosexuality -Bowers v. Hardwick (1986) – The Court upheld a Georgia law against sodomy -In 1996, the Court ruled that a state could not deny rights to homosexuals simply on the basis of sexual preference. • Right to die – Living wills are constitutional, but assisted suicide is not

Why does a person with a terminal illness in terrible pain not have a right to die?

In small groups of 4 -5… • Review the Bill of Rights. • List as many individual “due process” rights as you can find on a separate sheet of paper with your group’s names on it. • The goal is to have more rights than any other group. • After five minutes, we will “score” you results. • If your group wins, you get your choice of the following: a fist bump, a high five, or a pat on the back (sorry, no pats for ladies; gotta uphold some boundaries).

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

Fourth Amendment • Protection against “unreasonable” searches and seizures – Search warrants – Probable cause • Exclusionary rule – Evidence obtained through an illegal search is inadmissible • Court allows… -“Stop and Frisk”-warrantless searches with reasonable suspicion -Searching a suspect and items under “immediate control” or in plain view -Testing for drugs and HIV?

Fifth Amendment • Due process guarantee • Right against selfincrimination • No double jeopardy

Sixth Amendment • Speedy and public trial • Trial by impartial jury of peers • To know charges against you • To confront witnesses against you • To compel witnesses in your favor • Right to counsel

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 was 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. -Mc. Kleskey v. Zant (1991) the Court made it more difficult for death row inmates to file repeated appeals.

th 14 Amendment • Protections initially applied only to federal actions • Through “selective incorporation, ” much of the Bill of Rights has been applied to state action.