Civil Liberties Civil Rights I CIVIL LIBERTIES n

Civil Liberties & Civil Rights

I. CIVIL LIBERTIES n Civil Liberties: those rights that belong to everyone (i. e. all people “are endowed by their creator with certain unalienable rights. ” Thomas Jefferson), protections against gov’t, guaranteed by Constitution, legislation, & judicial decisions

I. CIVIL LIBERTIES n Constitution: original version mentions specific rights considered fundamental freedoms by founding fathers: 1. 2. 3. 4. Writ of habeas corpus (must be brought before court & informed of charges against you) No bills of attainder (cannot be punished w/o trial) No ex post facto laws (laws applied to acts committed before laws’ passage unconstitutional) Trial by jury

I. CIVIL LIBERTIES n Bill of Rights: added in 1791 to provide specific guarantees by nat’l gov’t 1. 2. 3. 4. Freedom of religion, speech, press, petition, & assembly No unreasonable searches & seizures Protections against self-incrimination & double jeopardy Protections in criminal procedures

I. CIVIL LIBERTIES (***) n Fourteenth Amendment: provided for expansion of individual rights n n Supreme Court in Gitlow v. New York (1925) & subsequent cases interpreted due process clause of Fourteenth Amendment to apply guarantees of Bill of Rights to state & local gov’ts (incorporation) Today, most guarantees have been incorporated

I. CIVIL LIBERTIES n Legislative actions are laws that set limits/boundaries on one person’s rights over another’s or bring balance between rights of individuals & interests of society n i. e. false advertising not protected under 1 st Amendment right to freedom of speech

I. CIVIL LIBERTIES n Court decisions protect rights through use of judicial review n Flag burning protected (Texas v. Johnson, 1989), but draft card burning is not (United States v. O’Brien, 1968) under symbolic speech

II. FREEDOM OF RELIGION n 2 protections for freedom of religion exist: n n Establishment clause Free exercise clause

A. Establishment Clause n Constitution creates a “wall of separation between Church and State. ” (Thomas Jefferson) n Congress can’t establish any religion as nat’l religion, nor favor any religion, nor tax American citizens to support any 1 religion

A. Establishment Clause n Supreme Court has defined parameters of clause over time: n n Everson v. Board of Education (1947) – Court upheld NJ policy of reimbursing parents of Catholic school students for costs of busing kids to school Engle v. Vitale (1962) – Court ruled schoolsanctioned prayer in public schools unconstitutional

A. Establishment Clause n Abington School District v. Schempp (1963) – Court struck down Penn law requiring reading of Bible at beginning of each day

A. Establishment Clause n Lemon v. Kurtzman (1971) – Court struck down Penn law reimbursing parochial schools for textbooks & teacher salaries; established Lemon Test, to pass test, law must: Have primarily secular purpose 2. Principle effect must neither aid nor inhibit religion 3. Must not create excessive entanglement b/w gov’t & religion 1.

A. Establishment Clause n n Lynch v. Donnelly (1984) – Court upheld right of governmental entities to celebrate Christmas holiday w/ Christmas displays that might include nativity scenes, if secular displays also sufficiently included Wallace v. Jaffree (1985) – Court overturned state law setting time for “voluntary prayer” in public schools

A. Establishment Clause n n Edwards v. Aguillard (1987) – Court ruled that LA couldn’t force public schools that taught evolution to also teach creationism Board of Education of Westside Community Schools v. Mergens (1990) – Court upheld Equal Access Act of 1990, required public secondary schools to provide religious groups same access to facilities that extracurricular groups had

A. Establishment Clause n n Lee v. Weisman (1992) – Court ruled against clergyled prayer at high school graduation ceremonies Santa Fe Independent School District v. Doe (2002) – Court overturned TX law allowing high school students to read prayer at athletic events such as football games

B. Free Exercise Clause (***) n n Guarantees right to practice any religion or no religion Supreme Court has made distinctions between belief & practice n n Religious belief is absolute Practice of those beliefs may be restricted (especially if practices conflict w/ criminal law)

B. Free Exercise Clause (***) n Supreme Court Cases: n n Reynolds v. United States (1879) – upheld federal law prohibiting polygamy even though Reynolds (Utah Mormon) claimed it limited his religious freedom Wisconsin v. Yoder (1972) – ruled Wisconsin couldn’t require Amish parents to send children to public school beyond 8 th grade because it would violate long-held religious beliefs

B. Free Exercise Clause (***) n n Employment Division of Oregon v. Smith (1990) – Oregon couldn’t deny unemployment benefits to workers fired for using drugs (peyote) as part of religious ceremony Church of the Lukumi Babalu Aye v. City of Hialeah (1993) – laws banning animal sacrifice unconstitutional because targeted Santeria religion

B. Free Exercise Clause (***) n 1993 – Congress passed Religious Freedom Restoration Act – gave people right to practice religious activities unless prohibited by laws narrowly tailored & government could show “compelling interest” n 1997 – Supreme Court ruled law unconstitutional in City of Boerne, Texas v. Flores

III. FREEDOM OF SPEECH

A. Types of Speech n n Pure speech – most common form of speech, verbal speech; given most protection by courts Symbolic speech – using actions/symbols to convey an idea rather than words (burning draft card or flag, wearing armband, etc. ); may be subject to gov’t restrictions if it endangers public safety

A. Types of Speech n Speech plus – verbal & symbolic speech together, such as rally & then picketing; may also be limited

B. Regulating Speech (***) n n Limitations have generally existed in area of national security 1798 – Congress passed Alien and Sedition Acts (illegal to say anything “false, scandalous and malicious against the government or its officials. ”); never challenged in court & expired in 1801

B. Regulating Speech (***) n n Following assassination of President Mc. Kinley in 1901 by anarchist & entrance of USA into WWI, more sedition laws passed forbidding verbal attacks on gov’t; states began to follow suit These & subsequent laws challenged in courts

B. Regulating Speech (***) n Schenck v. United States (1919) – Schenck mailed fliers to draftees during WWI urging peaceful protest; convicted of violating law against encouraging disobedience of military orders; Justice Oliver Wendall Holmes said such speech not protected during wartime because it would create clear & present danger

B. Regulating Speech (***) n n Gitlow v. New York (1925) – Court applied protections of free speech to states under due process clause of 14 th Amendment; established bad tendency test (speech could be restricted if it had bad tendency to lead to illegal actions) Chaplinsky v. New Hampshire (1942) – 1 st Amendment did not protect “fighting words”

B. Regulating Speech (***) n n Tinker v. Des Moines (1969) – wearing black armbands in protest of Vietnam War was “pure speech” or symbolic speech, protected by 1 st Amendment Brandenburg v. Ohio (1969) – “clear and present” danger test made less restrictive

B. Regulating Speech (***) n Miller v. California (1973) – Miller test established, which set standards for measuring obscenity: major theme appeals to indecent sexual desires applying contemporary community standards, shows in clearly offensive way sexual behavior outlawed by state law, and “lacks serious literary, artistic, political, or scientific value”

B. Regulating Speech (***) n n Texas v. Johnson (1989) – flag burning is protected form of symbolic speech Reno v. ACLU (1997) – Communications Decency Act ruled unconstitutional because it was “overly broad and vague” in regulating internet speech

B. Regulating Speech (***) n Since 1940 s, Court has supported preferred position doctrine: 1 st Amendment freedoms are more fundamental than other freedoms because they form basis for other freedoms; 1 st Amendment freedoms hold a preferred position, laws regulating these freedoms must be shown to be absolutely necessary to be constitutional

IV. FREEDOM OF THE PRESS n n Often protected because closely related to freedom of speech; used as a form of expression Today, includes newspapers, magazines, radio, television, & internet

IV. FREEDOM OF THE PRESS n n Near v. Minnesota (1931) – Court applied protections of free press to states under due process clause & prohibited prior restraint New York Times v. Sullivan (1964) – Court protected statements about public officials New York Times v. United States (1971) – Court reaffirmed position of prior restraint, refusing to stop publication of Pentagon Papers Hazelwood School District v. Kuhlmeier (1988) – Court ruled for school district censorship of student newspapers as long as censorship related to legitimate concerns

V. FREEDOM OF ASSEMBLY & PETITION 1 st Amendment guarantees “right of the people peacefully to assemble, and to petition the Government for a redress of grievances. ” n Applies to both private & public places n Citizens may make views known through petitions, letters, picketing, demonstrations, parades, & marches n

V. FREEDOM OF ASSEMBLY & PETITION n Courts have protected rights, while allowing gov’t to set limits to protect rights/safety of others n Dejonge v. Oregon (1937) – Court established right of association (assembly) as important as other 1 st Amendment rights & used due process clause of 14 th Amendment to apply freedom of assembly to states

V. FREEDOM OF ASSEMBLY & PETITION n Courts have generally ruled: n n n To protect public order, gov’t may require groups wanting to parade or demonstrate to 1 st obtain permit Certain public facilities (schools, airports, jails) not generally open to public may be restricted from demonstrations Restrictions on assembly must be worded precisely & must apply to all groups equally

V. FREEDOM OF ASSEMBLY & PETITION n n Right to assemble does not allow groups to use private property for own uses (creates buffer zones around abortion clinics) Police may disperse demonstrations in order to keep peace or protect public’s safety (if demonstrations become violent or dangerous to public safety)

VI. PROPERTY RIGHTS n Due process clause of 5 th & 14 th Amendments provide for protection of private property by guaranteeing that gov’t can’t deprive person of “life, liberty, or property, without due process of law. ”

VI. PROPERTY RIGHTS n Supreme Court hasn’t defined term due process, but generally accepted concept of gov’t acting in fair manner according to established rules n Substantive due process – involves policies of gov’t or subject matter of laws, determining whether law is fair or if it violates constitutional procedures

VI. PROPERTY RIGHTS n n n Procedural due process – method of gov’t action or how law is carried out, according to established rules & procedures Due process clause has often been applied to those accused of crimes, but due process has also been used to protect property rights 5 th Amendment states gov’t can’t take private property for public use w/o paying fair price for it (right of eminent domain allows gov’t to take property for public use, but also requires gov’t provide just compensation for property) n VIDEO – “Unintended Consequences: Eminent Domain”

A. Right to Privacy (***) n Constitution makes no mention of “right to privacy, ” however Supreme Court has interpreted several rights might fall under category of privacy n n Griswold v. Connecticut (1965) – Constitution created “zones of privacy” & enhanced concept of enumerated rights in 9 th Amendment Roe v. Wade (1973) – continuation of recognition of constitutional right of privacy for woman to determine whether to terminate pregnancy

VII. RIGHTS OF THE ACCUSED n Several amendments in Bill of Rights address rights of accused – 14 th Amendment extends protections to apply to states

A. 4 th Amendment: Search & Seizure n n n Wolf v. Colorado (1949) – Court applied protections against unreasonable search & seizure to states under due process (14 th) Mapp v. Ohio (1961) – Evidence obtained w/o search warrant excluded from trial in state courts Terry v. Ohio (1968) – Searches of criminal suspects are constitutional & police may search suspects for safety purposes

A. 4 th Amendment: Search & Seizure Nix v. Williams (1984) – Established inevitable discovery rule, allowing evidence discovered as result of illegal search to be introduced if can be shown evidence would have been found anyway n United States v. Leon (1984) – Established good faith exception to exclusionary rule n

B. 5 th Amendment: Self. Incrimination (***) n Miranda v. Arizona (1966) – Suspects in police custody have certain rights & they must be informed of rights (right to remain silent, right to attorney)

C. 6 th Amendment: Right to Attorney n n n Powell v. Alabama (1932) – Due process clause of 14 th Amendment guarantees defendants in death penalty cases right to attorney Betts v. Brady (1942) – Poor defendants in noncapital cases not entitled to attorney at gov’t expense (***) Gideon v. Wainwright (1963) – In state trials, those who can’t afford attorney will have one provided by state, overturned Betts v. Brady

D. 8 th Amendment: Cruel & Unusual Punishments Furman v. Georgia (1972) – Death penalty ruled unconstitutional under existing state law because imposed arbitrarily n Gregg v. Georgia (1975) – Death penalty constitutional because imposed based upon circumstances of case n

VIII. CIVIL RIGHTS (***) Civil rights – positive actions of gov’t, designed to prevent discrimination & provide equality before law n Equal Protection Clause of 14 th Amendment added to Constitution after Civil War to prevent states from discriminating against former slaves & to protect former slaves’ rights n

VIII. CIVIL RIGHTS (***) n n Some forms of discrimination may be valid (preventing those under 21 from buying alcohol) & Cts have devised rational basis test to determine if discrimination has legitimate purpose Courts also developed strict scrutiny test n n If discrimination reflects prejudice, courts automatically classify as suspect & require gov’t to prove compelling reason for discrimination For example, if city had separate schools for races, city would have to prove how it serves compelling public interest

IX. THE CIVIL RIGHTS MOVEMENT n Post-Civil War Amendments: n n n 13 th – Abolished slavery 14 th – Defined citizenship to include former slaves, provided for due process & equal protection (used by Sup Ct to apply Bill of Rights to state & local gov’ts) 15 th – Individuals couldn’t be denied right to vote based on race or former condition of servitude

IX. THE CIVIL RIGHTS MOVEMENT n Until 1950 s & ’ 60 s, states continued to use discriminatory processes to prevent African -Americans from participating in political processes: n Black codes – kept former slaves in state of political bondage (included literacy tests, poll taxes, registration laws, & white primaries)

IX. THE CIVIL RIGHTS MOVEMENT n Civil Rights Act of 1875 – outlawed racial discrimination in public places (hotels, theaters, & railroads), but required African-Americans to take cases to federal court (time -consuming & costly); Act ruled unconstitutional in 1883

IX. THE CIVIL RIGHTS MOVEMENT n n Jim Crow laws – designed to segregate races in schools, public transportation, & hotels Plessy v. Ferguson (1896) – Supreme Court upheld Jim Crow laws, created separate but equal doctrine

IX. THE CIVIL RIGHTS MOVEMENT n n Executive Order 8802 (1941) – FDR banned racial discrimination in defense industry & gov’t offices Executive Order 9981 (1948) – Truman ordered desegregation of armed forces

IX. THE CIVIL RIGHTS MOVEMENT n n Brown v. Board of Education (1954) – Overturned Plessy decision, separate but equal is unconstitutional Brown v. Board of Education II (1955) – Desegregation of all schools ordered “with all deliberate speed”

IX. THE CIVIL RIGHTS MOVEMENT n n Civil Rights Act of 1957 – Created Civil Rights Division in Justice Department, made it a crime to prevent person from voting in federal elections Civil Rights Act of 1965 – Prohibited discrimination in employment & in places of public accommodation, outlawed bias in federally funded programs, & created Equal Employment Opportunity Commission (EEOC)

IX. THE CIVIL RIGHTS MOVEMENT n n n 24 th Amendment (1964) – Outlawed poll taxes in federal elections Voting Rights Act of 1965 – Allowed federal registrars to register voters & outlawed literacy tests & other discriminatory tests in voter registration Civil Rights Act of 1991 – Easier for job applicants & employees to bring suit against employers w/ discriminatory hiring practices

X. OTHER MINORITIES (***) With successes of African-American civil rights movement, other minorities have also pressed to end discrimination n Hispanics, American Indians, Asian Americans, women, & people with disabilities have all joined in movement n

A. Hispanic Americans n n Term often used to describe people in USA who have Spanish-speaking heritage, including Mexican Americans, Cuban Americans, Puerto Ricans, & Central & South Americans Fastest growing minority in USA

B. Native Americans n n n More than 2 million live on reservations in USA Poverty, unemployment, alcoholism & drug abuse are common problems Lack of organization has hampered attempts to gain political power

B. Native Americans n n Formation of militant organizations (National Indian Youth Council & American Indian Movement) & protests (siege at Wounded Knee) have brought attention to Native American concerns 1985 Sup Ct ruling upheld treaty rights of Native American tribes Indian Gaming Regulatory Act (1988) allowed gaming operations (casinos) on reservations – creating economic boom 1990, Congress passed Native American Languages Act (encouraging continuation of native languages & culture)

C. Asian Americans n n 1882 – Chinese Exclusion Act (& other similar acts) limited number of Asians permitted to enter USA People of Japanese descent forced into relocation camps following Pearl Harbor Sup Ct upheld actions in 1944, when they declared internments illegal 1988, Congress appropriated funds to compensate former camp detainees or survivors

D. The Women’s Movement n n 19 th Amendment (1920) – gave women right to vote Equal Pay Act (1963) – illegal to base employee’s pay on race, gender, religion, or national origin; also affected African. American civil rights movement

D. The Women’s Movement n n n Civil Rights Act of 1964 – Banned job discrimination based on gender Reed v. Reed (1971) – Sup Ct ruled against law which discriminated against women Equal Employment Opportunity Act (1972) – prohibited gender discrimination in hiring, firing, promotions, pay, & working conditions

D. The Women’s Movement Omnibus Education Act (1972) – Required schools to give all boys & girls equal opportunity to participate in sports n Equal Credit Opportunity Act (1974) – No discrimination against women seeking credit from banks, finance agencies, or gov’t & made illegal to ask about person’s gender or marital status on credit application n

D. The Women’s Movement n Women’s Equity in Employment Act (1991) – Required employers to justify gender discriminations in hiring & job performance

E. People with Disabilities n n n Rehabilitation Act (1973) – Prohibited discrimination against people w/ disabilities in federal programs Education for All Handicapped Children Act (1975) – Guarantees children w/disabilities receive an “appropriate” education Americans with Disabilities Act (1990) – Forbids employers & owners of public accommodations from discriminating against people w/disabilities (must make facilities wheel-chair accessible, etc); created Telecommunications Relay Service, allows hearing & speech-impaired people access to telephone communications

F. Homosexuals Following police raid of gay & lesbian bar in 1969, gay power movement gained momentum n Organizations such as Gay Activist Alliance & Gay Liberation Front began exerting pressure & influence on state legislatures to repeal laws prohibiting homosexual conduct n

F. Homosexuals n n n Democratic party has included protection of gay rights as part of platform Several states passed laws prohibiting discrimination against homosexuals in employment, housing, education, & public accommodations Romer v. Evans (1996) – Sup Ct ruled Colorado constitutional amendment invalidating state & local laws protecting homosexuals from discrimination unconstitutional because violated Equal Protection Clause of 14 th Amendment

G. The Elderly n n Job discrimination made it difficult for older people to find work 1967, Congress passed Age Discrimination in Employment Act (prohibited employers from discriminating against individuals over age of 40 on basis of age)

XI. AFFIRMATIVE ACTION n n n Affirmative action – policy designed to correct effects of past discrimination Most issues are race or gender based Regents of the University of California v. Bakke (1978) – Sup Ct ruled affirmative action quotas used by University of California in admissions policies constitutional, but Bakke denied equal protection because university used race as sole criterion for admissions

XI. AFFIRMATIVE ACTION Hopwood v. Texas (1996) – Court struck down University of Texas Law School’s admissions program, race could not be used at all as factor in admissions n Recent court decisions, court seems to be taking more conservative view of affirmative action programs & many fear affirmative action on decline n