Civil Liberties chapter 4Civil Liberties chapter 4

What is the difference What is the difference between Civil liberties and between Civil liberties and

civil rights?civil rights? Civil liberties are protections against government- Civil liberties are protections against government-

this means either federal or even state this means either federal or even state Civil rights- positive acts of government to protect Civil rights- positive acts of government to protect

our rights- our constitutional guaranteeour rights- our constitutional guarantee Civil liberties are protected by the 1Civil liberties are protected by the 1stst

amendment and civil rights are protected amendment and civil rights are protected by the 5by the 5th (national gov’t)th (national gov’t) and 14 and 14th(states)th(states) Amendment Amendment

ConflictsConflicts Many conflicts occur with Many conflicts occur with

civil libertiescivil liberties Sometimes rights are Sometimes rights are

taken away in times of taken away in times of war- Japanese in 1940’s, war- Japanese in 1940’s, Muslims 2000’sMuslims 2000’s

What are our rights?What are our rights? first 10 amendments- bill of rights first 10 amendments- bill of rights

(protection from national)(protection from national) 1414thth amendment- (protection from amendment- (protection from

state)state) Most rights and liberties are Most rights and liberties are

granted to all in the US- regardless granted to all in the US- regardless of citizenship *(non-citizens may of citizenship *(non-citizens may not vote, be on juries, hold public not vote, be on juries, hold public office or certain jobs)office or certain jobs)

Supreme courts Supreme courts process of process of incorporationincorporation- has merged most - has merged most of Bill of Rights along with 14of Bill of Rights along with 14thth amendmentamendment

What has the 14What has the 14thth amendment done for us?amendment done for us?

Due process clause applied to most provisions of BoR to the statesDue process clause applied to most provisions of BoR to the states ““selective incorporation”- apply only to some provisions, case-by-selective incorporation”- apply only to some provisions, case-by-

case (total incorporation would be to nationalize BoR)case (total incorporation would be to nationalize BoR) Gitlow v New York (1925)- (freedom of speech – anti-gov’t Gitlow v New York (1925)- (freedom of speech – anti-gov’t

communist)communist) Examples of selective incorporation on BoRExamples of selective incorporation on BoR

AssemblyAssembly PetitionPetition ReligionReligion Search and seizure protectionsSearch and seizure protections Self-incriminationSelf-incrimination Double jeopardyDouble jeopardy Right to counselRight to counsel Right to bring witness, to confront witnessRight to bring witness, to confront witness Protection against cruel and unusual punishmentProtection against cruel and unusual punishment

PALKO Test (Palko v. connecticut)-double jeopardy-”essential PALKO Test (Palko v. connecticut)-double jeopardy-”essential to a fundamental scheme of ordered liberty”." 9to a fundamental scheme of ordered liberty”." 9thth amendmentamendment

What about the 9What about the 9thth AmendmentAmendment

Griswold v. Connecticut (1965)-Griswold v. Connecticut (1965)-right to privacy- contraceptivesright to privacy- contraceptives

Though the Constitution does not explicitly protect a Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital constitutional right, the right to privacy in marital relations.relations.

Boy Scouts of America v. Dale (2000)Boy Scouts of America v. Dale (2000)-- Yes- "applying New Jersey's public Yes- "applying New Jersey's public

accommodations law to require the Boy Scouts accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of effect, the ruling gives the Boy Scouts of America a constitutional right to bar America a constitutional right to bar homosexuals from serving as troop leaders.homosexuals from serving as troop leaders.

How is religion protected?How is religion protected?

11stst amendment- amendment- Establishment Establishment clauseclause-”-”

11stst amendment- amendment- free exercise free exercise clauseclause--

Wall of separation between Wall of separation between Church and State- thomas Church and State- thomas JeffersonJefferson

Religion and EducationReligion and Education

Biggest controversies- can religion be Biggest controversies- can religion be taught at school? Prayers allowed at taught at school? Prayers allowed at Schools? Teach Creation? Team Schools? Teach Creation? Team prayers?prayers?

Public schools cannot sponsor religious Public schools cannot sponsor religious exercisesexercises

Bible is allowed to be studied in literary Bible is allowed to be studied in literary or historical context only- cannot be or historical context only- cannot be taughttaught

How does the supreme How does the supreme court deal with religious court deal with religious

cases at schools?cases at schools? Lemon v. Kurtzman 1971-Lemon v. Kurtzman 1971- Created 3 part Lemon Test ( to see if Created 3 part Lemon Test ( to see if

states can give money to private states can give money to private parochial schools)parochial schools)

Other issues with establishingOther issues with establishingreligionreligion

Issues of Seasonal themes- Issues of Seasonal themes- Christmas, Hannukah, etc- at Christmas, Hannukah, etc- at government placesgovernment places

Prayers led by Chaplains at Prayers led by Chaplains at government meetingsgovernment meetings

Displaying ten commandments in Displaying ten commandments in front of government buildingsfront of government buildings

Free Exercise?Free Exercise?

ReviewReview What does the constitution say about religion?What does the constitution say about religion? Gov’t may not establish an official religionGov’t may not establish an official religion What case created the testing of the What case created the testing of the

establishment clause?establishment clause? Lemon v. Kurtzman (lemon’s test)Lemon v. Kurtzman (lemon’s test) What court case focused on the 9What court case focused on the 9thth amendment amendment

and incorporation of the Bill of Rights?and incorporation of the Bill of Rights? Gitlow v. New YorkGitlow v. New York What amendments protect Civil rightsWhat amendments protect Civil rights 55thth (national gov’t) and 14 (national gov’t) and 14thth (states) (states) What is selective incorporation?What is selective incorporation? View that some provisions of the Bill of Rights are View that some provisions of the Bill of Rights are

applied on a case by case basisapplied on a case by case basis

Next slides about Next slides about speech/assembly/pressspeech/assembly/press

Freedom of Speech, Freedom of Speech, assembly, press assembly, press

(nationalizing effects of 14(nationalizing effects of 14thth amendment)amendment)

3 Types of Speech3 Types of Speech

1) Pure 1) Pure Speech:Speech:

I don’t like I don’t like you, you, president, president, congresscongress

2) Speech plus 2) Speech plus Action:Action:

Right to Right to protestprotest

3) Symbolic Speech:3) Symbolic Speech:- Texas v. Johnson Texas v. Johnson

(1989), (1989), - In a 5-to-4 decision, the In a 5-to-4 decision, the

Court held that Johnson's Court held that Johnson's burning of a flag was burning of a flag was protected expression protected expression under the First under the First Amendment. The Court Amendment. The Court found that Johnson's found that Johnson's actions fell into the actions fell into the category of expressive category of expressive conduct and had a conduct and had a distinctively political distinctively political nature- even if society nature- even if society finds it offensivefinds it offensive

Limits on Free SpeechLimits on Free Speech• Free Speech vs. Free Speech vs.

Public Safety, Public Safety, Public Welfare, or Public Welfare, or National SecurityNational Security

• Sedition:Sedition:• In law, sedition is overt

conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order.

                

                     

                  

* * “Clear and Present “Clear and Present Danger”:Danger”:

- Schenck v. U.S.Schenck v. U.S. (1919): (1919):- "The question in every case is "The question in every case is

whether the words used are whether the words used are used in such circumstances and used in such circumstances and are of such a nature as to are of such a nature as to create a clear and present create a clear and present danger that they will bring danger that they will bring about the substantive evils that about the substantive evils that Congress has a right to Congress has a right to prevent." During wartime, prevent." During wartime, utterances tolerable in utterances tolerable in peacetime can be punished.peacetime can be punished.

• “Imminent Danger”:- [Brandenburg v.

Ohio (1969)]:The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."

• Defamation:Defamation:1) 1) Slander: spokenSlander: spoken2) 2) Libel: writtenLibel: written

Criticism of Public Figures IS

Protected, even if it is cruel

• ““Fighting Words”:Fighting Words”:

Freedom of Assembly and Freedom of Assembly and PetitionPetition

Right to petition the gov’t for redress of Right to petition the gov’t for redress of grievances- right to ask for gov’t actiongrievances- right to ask for gov’t action

BSA v. Dale (2000) BSA v. Dale (2000) allows Boys scouts to ban allows Boys scouts to ban homosexuals from being scout leaders homosexuals from being scout leaders (personal/private club)(personal/private club)

Hatch Act Hatch Act restricts federal employees from restricts federal employees from political activitiespolitical activities

Campaign contributions can be limitedCampaign contributions can be limited (person (person can spend on their own campaign)can spend on their own campaign)

Freedom of AssemblyFreedom of Assembly- gov’t can regulate time, - gov’t can regulate time, place and manner, require police permits place and manner, require police permits

Freedom of PressFreedom of Press Press gets access but Press gets access but

not all the time not all the time ((Freedom of Freedom of information Act information Act (1966)(1966)- allows public - allows public to view gov’t files (now to view gov’t files (now electronic 1996)electronic 1996)

(US v. Nixon 1974(US v. Nixon 1974))

Gag orders (cannot speak Gag orders (cannot speak about trials or case)about trials or case)

Shield laws-Shield laws- Defamation-Defamation- Obscenity- not protected by Obscenity- not protected by

11stst amend.- amend.- Miller v. CA Miller v. CA 19731973

Student press- Student press- Hazelwood Hazelwood v. Kuhlmeierv. Kuhlmeier--

Regulating airwaves-Regulating airwaves-

22ndnd amendment – right to amendment – right to bear arms.bear arms.

Next slides due processNext slides due process

Chapter 4Chapter 4Due Process and its Due Process and its

AmendmentsAmendments

Due Process of LawDue Process of Law“The government cannot deprive anyone of “life, “The government cannot deprive anyone of “life,

liberty, or property, without due process of law..nor liberty, or property, without due process of law..nor deny anyone equal protection under the law.”deny anyone equal protection under the law.”

•The constitutional The constitutional right of every right of every citizen to fair citizen to fair treatment under treatment under the lawthe law

•Basic civil libertiesBasic civil liberties

2 Aspects of Due Process2 Aspects of Due Process (5 (5thth Fed, and 14 Fed, and 14thth State) State)

• 1) 1) Substantive Due Process-Substantive Due Process- The laws The laws themselves must be reasonable and fair themselves must be reasonable and fair (ex. banning all abortions in a state)(ex. banning all abortions in a state)

• 2) 2) Procedural Due ProcessProcedural Due Process-- Rules of Rules of conduct for police officers, judges, conduct for police officers, judges, lawyers, and courts to protect persons lawyers, and courts to protect persons suspected, accused, or convicted of a suspected, accused, or convicted of a crime- observing bill of rightscrime- observing bill of rights

What is an example of substantive What is an example of substantive vs. proceduralvs. procedural• A law prohibits possession of narcotics A law prohibits possession of narcotics

(substantive) and police must be generally obtain (substantive) and police must be generally obtain a warrant before conducting a search for a warrant before conducting a search for narcotics in one’s home (procedural)narcotics in one’s home (procedural)

• Quick quizQuick quiz

• 1. police strip searches1. police strip searches

• ProceduralProcedural

• 2. Compulsory vaccination laws2. Compulsory vaccination laws

• SubstantiveSubstantive

• 3. minimum wage law3. minimum wage law

• SubstantiveSubstantive

• 4. firing a city employee without giving a hearing4. firing a city employee without giving a hearing

• ProceduralProcedural

44thth Amendment Amendment

•Protects us Protects us from from unreasonable unreasonable search and search and seizureseizure

•Mapp v. Ohio Mapp v. Ohio (1961) (1961)

Authorization for Search and Authorization for Search and Seizures (4Seizures (4thth amendment) amendment)

•Need to have a Need to have a warrantwarrant- a court order - a court order that authorizes law-that authorizes law-enforcement officials enforcement officials to make an arrest, to make an arrest, search a person or search a person or place, or take place, or take property as evidenceproperty as evidence

Steps for a WarrantSteps for a Warrant• 1) Police must appear before a judge or 1) Police must appear before a judge or

magistratemagistrate

• 2) The police must swear under oath that 2) The police must swear under oath that they have they have probable causeprobable cause, a reasonable , a reasonable belief that a particular crime has been or belief that a particular crime has been or is being committedis being committed

• 3) The judge or magistrate must issue a 3) The judge or magistrate must issue a warrant that describes the exact place to warrant that describes the exact place to be searched. It must also describe the be searched. It must also describe the specific persons or items to be seized. A specific persons or items to be seized. A random searchrandom search is is unconstitutionalunconstitutional

Searches Without WarrantsSearches Without Warrants

Exclusionary Exclusionary RuleRule

• Weeks v. United StatesWeeks v. United States

• Mapp v. Ohio (states)- Mapp v. Ohio (states)-

• Discourages police misconduct vs. Discourages police misconduct vs. let’s crooks off the hooklet’s crooks off the hook

Exceptions to Exclusionary Exceptions to Exclusionary RuleRule• Nix v. Williams-Nix v. Williams-

• U.S. v. Leon-U.S. v. Leon-

• CA v. Hodari D.CA v. Hodari D.

44thth AmendmentAmendment

Electronic Electronic SurveillanceSurveillance

• Katz v. U.S. (1967)- the 4Katz v. U.S. (1967)- the 4thth Amendment Amendment protects “people, not places”protects “people, not places”

- Patriot Act of 2001 (renewed in 2006)-Patriot Act of 2001 (renewed in 2006)-

- Growth of fed powers weakens 4Growth of fed powers weakens 4thth amend. amend.

55thth Amendment Amendment

66thth Amendment Amendment• Gideon v. Wainwright- Gideon v. Wainwright-

Right to legal counsel -Right to legal counsel -state and Federal levelstate and Federal level

88thth Amendment Amendment

Some other Some other protected protected provisionsprovisions• Miranda v. Arizona Miranda v. Arizona

19661966

• Habeas Corpus-Habeas Corpus-

Other constitutional guarantees-Other constitutional guarantees-both cannot be passed by both cannot be passed by CongressCongress• Ex post facto laws-Ex post facto laws-

• Bill of attainder-Bill of attainder-

Quick Quiz reviewQuick Quiz review• 1. What court case helped those poor 1. What court case helped those poor

receive counselreceive counsel

• Gideon v. wainwrightGideon v. wainwright

• 2. Court case that involved an illegal 2. Court case that involved an illegal search and seizuresearch and seizure

• Mapp v. OhioMapp v. Ohio

• 3.What can the police say in order to 3.What can the police say in order to get a warrantget a warrant

• Probable causeProbable cause