Civil Liberties Civil Rights w 1 st Amendment

Civil Liberties & Civil Rights w 1 st Amendment Issues w Rights of the Accused & Criminal Justice w Civil Rights

Definition w Civil Liberties -- Rights that need protection from the government. w Civil Rights -- Rights that need protection by the government. Positive acts of gov’t seek to make the guarantees of Constitution a reality for all people. Each person’s rights/liberties are relative to those of every other person. The Courts must weigh conflicting claims carefully.

Liberties & State Gov’t w Judicial Review n Marbury v. Madison (1803) w Incorporation

Definition w Judicial Review: power of the Supreme Court to determine the meaning of the constitution w Incorporation Theory: applying the protections of the Bill of Rights to the actions of state governments via the 14 th Amendment

LO 4. 1 The Bill of Rights and the States n n n Barron v. Baltimore (1833) – Bill of Rights restrict only the national government. Gitlow v. New York (1925) – 1 st Amendment protection of speech first incorporated to states. Most now incorporated using the 14 th Amendment and now restrict state and local governments. To Learning Objectives

LO 4. 1 To Learning Objectives Copyright © 2011 Pearson Education, Inc. Publishing as Longman

1 st Amendment Issues w First Amendment rights include: n n n Religious Freedom Free Speech Free Press Free Assembly Freedom to petition the government

1 st Amendment Issues w Religious Freedom has 2 components n n Establishment Clause “separation of church and state” Free Exercise Clause

Religious Freedom w Establishment Clause: No laws shall be made respecting the establishment of religion. w 1971 - Lemon v. Kurtzman (“Lemon Test”) n n n Government aid must be secular in intent Its primary effect can neither enhance nor inhibit religion Government must avoid “excessive entanglement” with religion

Religious Freedom w Is aid (tax dollars) to church-related schools permissible? Courts have ruled that it is ok for tax dollars to be spent on: school lunch, transportation, speech/hearing support, standardized tests, computer purchases and internet access. Vouchers: subject to Lemon test restrictions

Religious Freedom w School Prayer? n Mandatory & state-sanctioned? No. Engel v. Vitale (1962) n Daily bible readings? No. Abington School District v. Schempp (1963) n Moment of silent prayer? No. Wallace v. Jaffree (1985) n Moment of silence for nonreligious reasons? Yes. Brown v. Gwinnett County S. D. (1997)

Religious Freedom w Prayer outside of school n Permissible to have religious leaders not affiliated with school lead prayer at “official” school events? No. Lee v. Weisman (1992) n Permissible to have student led prayer at official school events? Yes. Santa Fe Independent S. D. v. Doe (2000) Student prayer must be nonsectarian and nonproselytizing.

Religious Freedom May student religious clubs/groups meet on school property after regular school hours? w Court upheld (1990) the Equal Access Act, which requires that public secondary schools give religious groups the same access to their facilities that other extra-curricular groups enjoy

Religious Freedom w Display of Ten Commandments? Depends. Stone v. Graham (1980) -display of Ten Commandments is permissible in classrooms, but cannot be required by the state Mc. Creary County v. ACLU *Permissible if part of other document display (2005) -- cannot mandate display of 10 commandments in and not given special “pride courtrooms of place” treatment (Van Orden v. Perry [2005])

Religious Freedom w Evolution vs. Creationism n Edwards v. Aguillard (1987) -- states cannot mandate teaching of biblical creationism

Religious Freedom w Kitzmiller et. al. vs Dover Area School District (2005) n State cannot mandate teaching of “Intelligent Design” in the science curriculum

LO 4. 2 Religious Freedom w The Free Exercise Clause n Prohibits government from interfering with the practice of religion. Some religious practices may conflict with others’ rights, and then be denied or punished. Courts have upheld state intervention in religious practices. People are not free to worship in ways that violate laws protecting the health, safety, or morals of the community. To Learning Objectives n

Religious Freedom w Free Exercise Clause n n Absolute freedom of belief. Government cannot infringe on right to freely practice religion w/o compelling state interest. Cantwell v Connecticut (1940) Is Drug Use permissible? Oregon v Smith (1988) Gonzales v O Centro Espirita Benficiente Unaio do Vegetal (2006)

Religious Freedom w Free Exercise Court considers: 1) Does practice break criminal law? 2) Does practice endanger public safety? 3) Does practice endanger the social fabric?

Religious Freedom w Free Exercise n Is animal sacrifice permissible? Yes. Church of the Lukumi Babalu Aye v. City of Hialeah (1993)

Religious Freedom w Free Exercise n n Court considers: Does law target a particular group? Can a reasonable exception be made? Exemptions for religious groups from various regulatory requirements include: l l faith healing immunization exemption reporting infectious disease exemption licensing exemption People vs. Vogelgesang (1917) —faith healer "who advertised self as" specialist in all forms of chronic diseases "and who prescribed drugs wa not exempt.

LO 4. 2 To Learning Objectives Copyright © 2011 Pearson Education, Inc. Publishing as Longman

Freedom of Expression Pure Speech Symbolic Speech http: //www. hippocampus. org/Hippo. Campus/History%20%26%20 Government; jsessionid=27 DE 44 CFF 878413 F 4 BED 146 B 6 BCA 1741? user=my. KDE The Preferred Position Doctrine, as established by Murdock v. Pennsylvania (1943), states that freedom of the press, freedom of speech, and freedom of religion, should be given more importance in the event that they clash with other fundamental rights. When courts are in a position of balancing multiple fundamental rights, they often hold First Amendment rights (particularly speech) in a “preferred position. ”

Freedom of Expression Permitted Restrictions l Schenck v. United States (1919) - “clear and present danger” l Gitlow v. New York (1925) - “bad tendency” l Brandenburg v. Ohio (1969) - “incitement to imminent lawlessness”

LO 4. 3 Freedom of Expression w Free Speech and Public Order n n Schenck v. US (1919) – Speech may be limited if it presents a “clear and present danger. ” Government may prohibit speech that creates an immediate threat of criminal action. Brandenburg v. Ohio (1969) – It is permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to imminent lawless action. To Learning Objectives

Freedom of Expression w “Beyond the Pale” Unprotected Speech n n n n Obscenity Fighting Words Heckler’s Veto Hate Speech Defamatory Speech Advocate illegal activities Sedition

Freedom of Expression Is this protected speech? No. Morse v. Frederick (2007). Students could be suspended for unfurling banner held to advocate the use of illegal drugs

Other Speech Rights w “Symbolic” Speech. . . protected or not? Yes Tinker v. Des Moines School District (1969)

Other Speech Rights w Symbolic Speech n Is Flag burning protected? Yes- Texas v. Johnson (1989) Flag burning as part of a peaceful protest is protected by the First Amendment* *It’s also the official way of disposing of old flags.

Freedom of the Press (In general, same protections as speech, with some permissible restrictions. ) n National Security l Prior Restraint—censorship of information before it is published—is unconstitutional. Near v. Minnesota (1931) l Censorship is permissible only if protects national security.

Freedom of the Press w “fair trial” issues n n protect witnesses protect accused Publicity must not harm defendant’s right to fair trial.

Freedom of the Press w Judges may restrain trial press coverage by: 1) moving trial to new venue to avoid pre-trial publicity. 2) limiting number of reporters in courtroom. 3) placing controls on reporter conduct in courtroom. 4) isolating jurors and witnesses from press. 5) Having jury sequestered (isolated until trial is over. ) Sheppard v. Maxwell (1966) Gag Order--Judge bars press from publishing info about pending court case (struck down by Court if vague and overbroad. )

Freedom of the Press w Print vs Non-print media n Print has greatest protection, broadcast least. Internet speech closer to print than broadcast. l Broadcast TV has more restriction than cable/satellite l w Licensing and rules

Freedom of the Press w “Beyond the Pale” Unprotected Press n Libel Knowingly publish, with malice or reckless disregard for the truth, statements known to be false and injurious to a person’s character or reputation (Court allows some defamatory speech about public figures. ) l

Freedom of the Press Pornography/Obscenity l l Roth v. United States (1957) Miller v. California (1973) Obscenity is unprotected, Indecent speech is.

Freedom of the Press w 3 -prong test for obscenity: a) "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest. b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by existing state law. c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Freedom of the Press w Regulations limiting commercial speech (advertising) do not violate the First Amendment if: 1. The regulated speech concerns an illegal activity 2. The speech is misleading 3. The government's interest in restricting the speech is substantial (i. e. product endangers public health/safety) 4. The regulation is narrowly tailored

Freedom of the Press w Protecting News Sources Can a reporter refuse to testify if he/she has information the defense or gov’t needs to prove its case? 1 st Amendment doesn’t give special privileges to news reporters. Special exemptions must come from Congress or States. Shield Law: gives reporters protection against being forced to reveal confidential sources/info.

Freedom to Assemble w Balance right to free association with right for public order w Permissible for localities to require permits in order to protest

Freedom to Assemble w Government can enforce reasonable rules covering time, place, and manner of assemblies (parades, marches, rallies, etc. ) w Such rules must be specific, neutral, and equitably enforced. w Freedom of assembly and petition protections do not apply to private property.

LO 4. 4 Freedom of Assembly w Right to Associate n n Freedom to join groups or associations without government interference. NAACP v. Alabama (1958) ruled that the NAACP did not have to reveal its membership list and thus subject its members to harassment. To Learning Objectives

Second Amendment “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. ”

Right to Bear Arms w Many communities have passed restrictions on owning and carrying handguns. n n Laws have mandated background checks for gun buyers and limited the sale of certain types of weapons altogether. Laws have required that guns be stored in a fashion to prevent their theft or children from accessing and firing them. Copyright © 2011 Pearson Education, Inc. Publishing as Longman

LO 4. 5 Right to Bear Arms w District of Columbia v. Heller (2008) n n Right to possess a firearm for self-defense within the home. Requiring firearm in a home to be disassembled or bound by trigger lock is unconstitutional. w Mc. Donald v. Chicago (2010) n Extended 2 nd Amendment’s limits on restricting right to bear arms to state and local laws.

Third Amendment w This amendment prohibits the federal government from commandeering private homes for the military in peacetime without consent of the owner. w In time of war, however, it can happen with appropriate legislation.

Rights of the Accused w Founders were concerned with crime, but their concerns were different from ours w Wanted to find ways to protect individuals from overambitious state activities w Variety of provisions built into the Bill of Rights to make it more difficult for states to deprive people of their liberty

Due Process and Police Power Procedural Due Process: Government must act fairly and in accordance with its established rules. Substantive Due Process: The laws under which government act must be fair. Police Power: State’s power to protect public health, safety, morals, and welfare. Courts decide how police power may be exercised—carefully balancing needs of society against rights of individuals.

Rights of the Accused w Pretrial Rights n 4 th Amendment protections: no unreasonable search & seizure l police need warrant to search or arrest l n 5 th Amendment protections: no self-incrimination l grand jury indictment (sufficient evidence exists to warrant a trial) l

Rights of the Accused w Trial Rights n n n habeas corpus -- accused must be brought before judge and be publicly informed of charges (Art. 1, sec. 9, clause i) right to counsel (6 th Amendment) right to confront witnesses (6 th Amendment)

Rights of the Accused w Trial Rights (continued) n Due Process provisions (6 th Amendment) speedy and public trial l jury of peers l presumption of innocence l trial conducted in jurisdiction where crime is alleged to have occured l

Rights of the Accused w Post Trial Rights n n no double jeopardy (5 th Amendment) no cruel and unusual punishment (8 th Amendment)

Rights of the Accused w Key additions or amendations to basic rights n Gideon v. Wainwright (1963) -- right to counsel even if can’t afford an attorney; state must provide one

Rights of the Accused n Mapp v. Ohio (1961) -Exclusionary Rule; illegally obtained evidence is inadmissable at trial. "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court. "

Rights of the Accused w Exceptions to Exclusionary Rule n “Plain sight”: l n Alternative means: l n evidence not on a warrant but in “plain sight” of the police is admissable in court If police can demonstrate they would inevitably have found the evidence legally anyway, even though it was illegally obtained originally, the evidence is admissable “Good faith”: l if police believe they are conducting a “reasonable” search, and a subsequent court rules that the search was in fact unreasonable, the evidence is admissable

Rights of the Accused w Miranda v. Arizona (1966) -- police must inform accused of rights prior to taking into custody

Rights of the Accused w Exceptions to Miranda: n n n “Public Safety” Conviction possible if other evidence at trial would have been enough to convict, even if confession was coerced or suspect was not read Miranda rights Ambiguity l Suspects must clearly state that they would like to speak to counsel or exercise other provisions of their Miranda rights

Rights of the Accused w Exceptions: n n War on Terror and enemy combatants Bush Administration argued that terrorists taken into custody are outside both international law (Geneva Conventions regarding Prisoners of War) and US civil law

Death Penalty w Death penalty and the 8 th Amendent n n “cruel and unusual” refers to punishment that is excessive (punishment did not fit the crime) and needlessly inflicts suffering on the convict Furman v. Georgia (1972) l Death penalty unconstitutional because its use was random and arbitrary

Death Penalty w Gregg v. Georgia (1976) n n States adopt, and court approves a “two step” process for capital cases Death penalty is not necessarily unconstitutional w Ring vs Arizona (2002) n n Only juries, not judges, can impose the death penalty Death Row statistics from the Bureau of Justice Statistics

Other Rights w Privacy Rights n n Privacy not mentioned specifically in the Constitution or the Bill of Rights Griswold v. Connecticut (1965) l Privacy implied in the 1 st, 3 rd, 4 th, 5 th, 9 th amendments

Privacy Rights w Privacy and the USA Patriot Act n n n allows government officials to secretly search a suspected terrorist house with special warrant allows government to monitor internet, phone conversation, banking, and book purchases with special warrant allows government to open mail with special warrant

Privacy Rights -Privacy and the Patriot Act Liberty v. Security argument -Privacy and Roe V. Wade Legality of abortion in first trimester based on implied “right to privacy” and 14 th Amendment guarantee of liberty as “right to choose” -SCOTUS applied “privacy” in 4 areas: contraceptives, abortion, marriage, and parenting (CAMP)