- Slides: 38
What are civil liberties? ◦ Civil liberties are your legal and constitutional protections against the government ◦ Outlined in the Bill of Rights ◦ Supreme Court final decider on these issues
The Bill of Rights and the States ◦ Originally, all of the BOR applied only to the federal government ◦ Court upheld this idea in Barron v. Baltimore 1833
◦ However, after the Civil War, the 13 th, 14 th, and 15 th amendments were passed ◦ There is a really important clause in the 14 th amendment called the due process clause ◦ “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. ”
◦ In 1925, in the case of Gitlow v. New York, Court said that states could not abridge freedom of speech and press, not because of the 1 st amendment but because of the 14 th
The Incorporation Doctrine ◦ Over time, the 14 th amendment has been used to apply more and more of the Bill of Rights to the states ◦ This is known as the Incorporation Doctrine
Freedom of Religion ◦ 1 st Amendment contains the establishment clause and the free exercise clause ◦ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. ◦ Sometimes these two clauses conflict
◦ Why the establishment clause?
◦ Two hot-button issues ◦ 1. Aid to parochial (church related) schools ◦ 2. Prayer in school
◦ Does giving aid to a religious school (like Bishop Gorman or Faith Lutheran) violate the establishment clause? Or does it simply benefit students who happen to be at a religious school?
Lemon v. Kurtzman ◦ Lemon v. Kurtzman (1971) ◦ Court rules that aid to parochial schools must: ◦ 1. ) Have a secular purpose ◦ 2. ) Must have a primary effect that neither advances nor inhibits religion ◦ 3. ) Not foster an excessive government entanglement with religion ◦ These guidelines are sometimes referred to as “The Lemon Test”
◦ Public funds and taxpayer money can go to religious schools for: buildings, textbooks, lunches and school buses (among other things), but not to teacher salaries or field trips ◦ Why not?
◦ Supreme Court has also favored opening up public schools to religious activities ◦ If non-religious groups are allowed to use a school’s facilities, then religious groups should also be able to use them ◦ The more direct religious education in a public school is, the more likely it is to be prohibited ◦ Can’t bring in teachers to teach religion ◦ Can’t post the Ten Commandments ◦ What if a World History teacher posted the 5 Pillars of Islam?
School Prayer ◦ Engel v. Vitale (1962) – school prayer violated first amendment (what part of the 1 st does it violate? ) ◦ Praying is not unconstitutional (moment of silence? ); government can’t regulate people’s thoughts; only the sponsorship of prayer by public school officials is ◦ Can’t do “moment of silence for mediation or voluntary prayer” because the goal of such a practice would be clear
◦ Things are not always cut and dry though: ◦ Nativity scene in courthouse with other Christmas symbols: Ok ◦ Nativity scene in courthouse without other symbols: Not ok
Free Exercise ◦ Simple on the surface: anybody should be free to practice any religion they wish or none at all ◦ But it gets tricky: What if a religion forbids something society thinks is good? What if it allows something society thinks is bad? Polygamy? Illegal drugs? Human sacrifices?
◦ Belief and practice are two different things ◦ You can believe what you want ◦ You can’t always put it into practice
◦ Employment Division, Department of Human Resources of Oregon v. Smith (aka Oregon v. Smith) 1990 – said you can ban religious practices as long as the law doesn’t single out a religion because it is a religion ◦ But the Court has also used the free exercise clause to protect religious practices
Freedom of Expression ◦ Why can’t you shout “fire” in a crowded theater? ◦ “Clear and present danger” – Schenk v. United States ◦ Sometimes the right to free expression conflicts with safety, public order, national security, or the right to a fair trial ◦ What about hate speech?
◦ What about the violent overthrow of the government? ◦ Initially the Court was pretty strict on this but later said that theoretically talking about overthrowing the govt. is different than actually planning to do it
Free Press and Fair Trials ◦ Sometimes the rights of a free press and fair trial conflict
◦ New York Times v. U. S. (1971) aka “Pentagon Papers” ◦ Court rules that W. P. can print info ◦ See “The Post”
Libel and Slander ◦ New York Times v. Sullivan (1964) – statements are only libelous if made with “malice and reckless disregard for the truth” – good luck proving that
Symbolic Speech ◦ Tinker v. Des Moines (1969) – speech goes beyond just talking and can involve other forms of expression, i. e. “symbolic speech” ◦ Texas v. Johnson – You can burn the flag ◦ There are limits of course ◦ In Tinker, the Court decided that the armbands posed no major distraction or danger ◦ However, in 2007, as students gathered outside to watch the Olympic torch pass by, one student displayed a sign that read “BONG HITS 4 JESUS” and was suspended ◦ Court upheld ruling because sign promoted illegal drug use ◦ Bethel School District v. Fraser (1986) – similar ruling
Freedom of Assembly ◦ Basis for interest groups, political parties, and protesting ◦ There are certain restrictions though ◦ Groups must apply for permits, and permits must be granted as long as police can reasonably police the demonstration ◦ Abortion clinics – protesters must be a certain distance from the clinic, and can’t harass individual women or doctors
Defendant’s rights ◦ 4 th, 5 th, 6 th, 7 th, 8 th amendments protect the rights of the accused ◦ Often vague language ◦ How speedy is a speedy trial? (in mph? ) ◦ What is cruel and unusual? (Mr. Rehfeldt’s lectures? ) ◦ What is an excessive fine?
Searches and Seizures ◦ Cannot arrest without a reason ◦ Need probable cause (usually in the form of physical evidence) ◦ Most searches take place without warrants (if a legal violation is in plain view, the subject consents, or the search takes place during an arrest) ◦ Exclusionary rule – illegally obtained evidence cannot be used to obtain a conviction ◦ Mapp v. Ohio (1961) – upheld exclusionary rule
Self-Incrimination ◦ 5 th Amendment protects against self-incrimination – you don’t have to say you’re guilty or help the case against you. The burden of proof is on the prosecution ◦ Most important case: Miranda v. Arizona (1966) – Overturned conviction of Ernesto Miranda because he was not read his rights:
◦ “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me? ” ◦ These rights are now usually read from a card ◦ Later, Miranda himself was murdered and the police read the suspect their rights from a Miranda card
Right to Counsel ◦ 6 th Amendment ◦ 1963 Gideon v. Wainright – right to an attorney applies to state courts too; especially benefited the poor
Trials ◦ Jury size not specified by Const. but usually 12 ◦ 6 th also says you have the right to: ◦ Be brought before a judge (so a cop can’t just sentence you) ◦ Public trial (so if you’re mistreated, everyone will see) ◦ Speedy trial (at least 35 mph) ◦ Confront witnesses against you (why? )
Cruel and Unusual Punishment ◦ 8 th amendment ◦ Most issues regarding cruel and unusual punishment center around the death penalty ◦ Court has generally sided with death penalty ◦ Gregg v. Georgia (1976) – death penalty is an expression of society’s outrage; a severe punishment for a severe crime
Right to Privacy ◦ Does it exist? ◦ It’s not in the Bill of Rights… ◦ However, it’s implied a lot: you can clearly have private beliefs, and a private body (protections against illegal searches and seizures) so a general privacy seems reasonable ◦ 4 th amendment
◦ But the biggest issue over privacy came in a lil’ ol’ case called Roe v. Wade (1973) ◦ Court ruled in Roe’s favor, based, essentially, on the right to privacy ◦ Divided pregnancy into three trimesters ◦ 1 st trimester – states can’t regulate abortion ◦ 2 nd trimester – states can regulate abortion only to protect mother’s health ◦ 3 rd trimester- states can ban abortions, except if the mother’s health is in danger
Your online self and privacy ◦ Is the data you share, voluntarily or involuntarily, protected by privacy rights? ◦ No, Mark Zuckerberg owns your soul. ◦ “Third Party Doctrine” – you give up the expectation of privacy when you voluntarily share information with a third party ◦ Carpenter v. United States – 2017