Civil Rights and Civil LibertiesCHAPTERS 19 AND 20

What is the difference between a civil right and a civil liberty?YOUR ANSWER HERE:

The Answer: The two terms are often used interchangeably but think about civil liberties as protections AGAINST GOVERNMENT:

Examples – 4th Amendment – Protection from arbitrary searches and seizures 5th Amendment – Protection from prosecution without an indictment 8th Amendment – Protection from excessive bail or fines.

Think of civil rights as ACTS OF GOVERNMENT that seek to secure constitutional rights:2nd Amendment – The right to bear arms6th Amendment – The right to a speedy trial, the right to an attorney, the right to cross-examine witnesses.7th Amendment – The right to a trial by jury

Rights are relative, not absolute

This means that everyone has the right to do as they please as long as those actions do not infringe on the rights of others. So every person’s rights are relative to those of others and are not absolute. Rights often conflict. For example, the right to a fair trial often collide with freedom of the press.

So who resolves those conflicts when they arise?

Answer: The Supreme Court

The Supreme Court often looks to determine which of the rights is “basic or essential to the American concept of ordered liberty”. (Think about the words, “ordered liberty” and what you know about Thomas Hobbes, John Locke and the purpose of our government).

One example of the concept of ordered liberty is the Due Process Clause of the 14th Amendment. Recall that the Bill of Rights was originally intended to protect states against a federal government if it became too powerful, so the Bill of Rights did not originally apply to state governments.

Incorporation Theory

With the passage of time, the Supreme Court has INCORPORATED (merged) the Bill of Rights and made them enforceable against the States in order to protect those basic and essential freedoms from encroachment by the State. In order to do this, the Court has relied on the Due Process Clause of the 14th Amendment: “No State shall…deprive any person of life, liberty, or property, without due process of law”.

Beginning in 1925 with a case involving Benjamin Gitlow who had been convicted of anarchy in State court (Gitlow v. New York), the Supreme Court used the incorporation theory to strike the conviction as a State’s violation of Gitlow’s 1st Amendment right to free speech.

Since that time, the 1st, 2nd, 5th, 6th, and 8th Amendments have all been “incorporated” and enforced against State actions

14th Amendment Due Process Clause

5th Amendment

1st Amendment

2nd Amendment

1st Amendment Freedom of Speech and Press

The purpose of the 1st Amendment is to (1) provide to each person the right of free expression; and (2) to guarantee to each person the right to discuss wide-ranging public affairs. The ability to hear all interpretations of the facts is critical to making an informed decision. Informed decisions are critical to the health of our government:

“…wherever the people are well informed they can be trusted with their own government; that whenever things get so far wrong as to attract their notice,

they may be relied on to set them to rights.”

◦ -Thomas Jefferson, Letter to Richard Price, January 8, 1789.

Limitations on the Right of Free Speech

Recall that the right to free speech is relative to the rights of others, which means that reasonable restrictions can be placed on those rights. No person has the right to LIBEL or SLANDER another. LIBEL is the false or malicious use of printed words. SLANDER is the false and malicious use of spoken words.

SEDITION is the crime of attempting to overthrow government. In 1917 Congress passed a sedition law during World War I which made it a crime to interfere with the draft or recruiting, or the sale of government bonds. In 1919, Charles Schenck, a Socialist, was found guilty of obstructing the war effort by sending leaflets to draftees which urged resistance to the draft. The Supreme Court upheld the decision and established the “Clear and Present Danger” test:

“The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” – Schenck v. United States, Justice Oliver Wendell Holmes

Prior Restraint and various forms of speech:

Although the government can punish individuals for libel, slander or obscenity, the government CAN NOT prevent the expression of ideas by placing a PRIOR RESTRAINT on ideas before written or spoken.

For example, in Near v. Minnesota (1931), the Supreme Court struck down a law that allowed local public officials to prevent publication of anything “malicious, scandalous, or defamatory”, after the Saturday Press, a Minneapolis newspaper, published articles alleging corruption.

Another example is the Nixon administration which sought a court order (an injunction) to prevent the publication of documents which had been stolen. The Supreme Court held that there was a “heavy presumption” that the injunction was unconstitutional under the 1st Amendment and there was no evidence that the publication would endanger national security.

Symbolic speech is another way of communicating ideas. It is also to be protected if it can pass a test to determine if it is covered by the constitution, if the attempted restriction is not greater than necessary for an governmental interest that is not aimed at the expression of dissent.

Refer to the “Rules of the Road” on p. 564.

www.pd.clipart.org

1st Amendment Freedom of Assembly, Association and Petition

The answer is that the 1st Amendment rights must be exercised PEACEABLY—The 1st Amendment does not give the right to incite violence, block a street or otherwise endanger public safety, life or property. It instead gives the right to assemble and organize to influence public opinion, and to petition for change in written form or by parades and marches.

The test which the Supreme Court has used to determine whether an action is protected under the 1 st Amendment is TIME-PLACE-MANNER. Government’s attempts to restrict assembly and petition must be based on time, place, and manner (the where, when and how) ONLY and must not attempt to restrict gatherings on the basis of what might be said there (the why). In other words, the restriction must be CONTENT-NEUTRAL.

The 1st Amendment does not afford protection for assembly on private property.

The freedom to associate with political parties, etc. is inherent to the protected right of assembly and petition…do you recall what the word “inherent” means?

http://www.gannett-cdn.com/

Civil disobedience has been used over time to shape the laws in the United States. But recall that ALL rights are relative. What do you think this means, then, for the right to assemble?

Due Process under the 5th and 14th Amendments

Due Process means that the government cannot act unreasonably. The facts of each specific case will determine what is reasonable or not, so there is no established definition. There are, however, two types:

Procedural: This is used to describe the process of how rules are applied so that governments act fairly. (think: how in terms of procedures)

Substantive: This is used to describe an action of government. (think: what in terms substance)

Example: The Due Process Clause is what actually gives rise to a right of privacy, since it is not explicitly referenced in the Constitution. The Supreme Court actually declared the existence of such a right in the case of Griswold v. Connecticut (1965). This case involved a State law that prohibited the use of all birth control devices, but the Court held that the State has no business patrolling such private matters. The right of privacy continues to be litigated as different cases arise (recall that the facts of each case will determine what is reasonable or not).

The 4th Amendment: “The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

The rule which has been established by the Court on the 4th Amendment is that police officers must obtain a warrant based upon reasonable suspicion of a crime (probable cause). One of the exceptions is if evidence is in “plain view” in which case it can be seized. Another exception is when a person is arrested. In the case of an arrest, evidence can be seized from the area immediately surrounding the suspect (based on the assumption that the suspect could access a weapon or destroy evidence).

The real protection of the 4th Amendment is through the EXCLUSIONARY RULE. This means that any evidence that is obtained improperly as a result of an unlawful search and seizure CAN NOT be used at the trial for the person from whom it was seized.

The exclusionary rule was first used against a state in the case of Mapp v. Ohio in which Dollree Mapp was convicted of possessing obscene materials. The police had entered Mapp’s home without a warrant and claimed to be searching for a fugitive when the obscene materials were found.

Do you see both benefits and potential problems with the exclusionary rule?

Exceptions to the Rule The exclusionary rule has been narrowed over time, meaning that several exceptions have been carved out by the Supreme Court:

Inevitable Discovery – Otherwise tainted evidence can be admissible if it “would have been discovered by lawful means” (Nix v. Williams, 1984).

Good Faith – “When an officer acting with good faith has obtained a search warrant…and acted within its scope…there is nothing to deter.” (United States v. Leon, 1984).

Honest Mistakes – Maryland v. Garrison (1987) was a case in which officers had a warrant to search an apartment but searched the wrong apartment and found drugs.

Writ of Habeas Corpus…what is that?

The Writ of Habeas Corpus (Latin: “you should have the body”) is a court order that a prisoner be brought to court and the officer explain why the prisoner should not be released. It is a right that was written into the U.S. Constitution in Article I, Section 9, and is also found in each States’ constitutions.

Other rights held by an accused person are:

Protection against EX POST FACTO LAWS (Latin: “after the fact”). This refers to a criminal law which is passed AFTER an act which would be classified as a crime under that law. For example, a law that changes the penalty for a crime cannot be applied to a person who committed the crime before the change was made.

Protection from DOUBLE JEOPARDY. This refers to the prohibition in the 5th Amendment that no person be “twice put in jeopardy of life or limb”. This means that once a person has been tried for a crime, that person cannot be charged with the same crime.

The beginning of criminal trial…

The 5th Amendment states that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”

The grand jury consists of 16-23 people from the district. The grand jury reviews an INDICTMENT, which is a formal complaint prepared by the prosecution. If the grand jury finds enough evidence, the person is then held for prosecution. If insufficient evidence, the charge is dropped.

Most criminal cases are brought within the States by an INFORMATION, an affidavit by the prosecutor that there is enough evidence to justify a trial.

6th Amendment rights: The 6th Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”

Questions to ask: What is the length of the delay? What are the reasons for the delay, did the delay has harm the defendant? Did the defendant ask for a prompt trial?

The 6th Amendment also states that every person accused of a crime has the right to an adequate defense.

Gideon v. Wainwright: After defending himself at his trial and being found guilty, Clarence Gideon appealed to the Supreme Court that he had been unconstitutionally denied the right to counsel. The Supreme Court ordered a new trial and held that an attorney must be provided to those who cannot afford one.

Clarence Earl Gideon, Florida Dept. of Corrections

An Impartial Jury…that’s you! The 6th Amendment also states that persons accused of a federal crime must have the right to be tried “by an impartial jury”.

http://www.uscourts.gov/services-forms/jury-service

Because a defendant is entitled to an impartial jury, if a defendant can satisfy a judge that residents in a district may be prejudiced (for example, due to extensive media coverage prior to the trial), a CHANGE OF VENUE may be ordered by the judge, and the trial may be moved to another district with an impartial jury pool.

A defendant can also WAIVE his or her right to jury trial in which case a BENCH trial is held and only the judge hears and decides the case. A defendant can also PLEAD guilty and completely avoid a trial.

Voir Dire (French “to see, to speak”)

1. Assume you are an attorney in a civil case in which you are representing the defendant, a doctor who has been accused of committing medical malpractice. Trial is due to begin but first a jury must be selected through a process called voir dire.

You and the plaintiff’s counsel both get to ask each member of the jury pool a series of questions to assist you in determining which jurors are capable of being impartial.

What questions do you think you would ask? Write out four questions in complete sentences.

2. Assume you are an attorney for the defendant in a criminal trial. You are representing someone who has been accused of credit card fraud.

What questions do you think you would ask? Write out four questions in complete sentences.

Confronting an Accuser and Pleading “the Fifth”

A defendant also has the right under the 6th Amendment “to be confronted with the witnesses against him” in open court, and “to have compulsory process for obtaining witnesses in his favor”. A defendant therefore has the right to subpoena (a court order to appear) witnesses at trial.

As we know, the 5th Amendment provides a right to avoid incriminating oneself. The Supreme Court has interpreted the Amendment to include a requirement that police must inform a suspect of his or her constitutional right to remain silent prior to police questioning:

Miranda v. Arizona (1966): Ernesto Miranda was accused of kidnapping and rape and was questioned by the police for two hours before signing a confession. Miranda was convicted but appealed and argued that he had not been informed of his right to remain silent, or to have an attorney present. The Supreme Court held that “there can be no doubt that the 5th Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed…” -Chief Justice Earl Warren.

http://www.pbs.org/wnet/supremecourt/rights/landmark_miranda.html

So what does this all mean to me?

http://www.pbs.org/wnet/supremecourt/educators/adayinthelife.html

And it is still evolving… http://www.pbs.org/wnet/supremecourt/educators/sc_timeline.html

Argue Your Case! Take one of the cases you have learned about in Ch. 18-21 and write your own 1-2 page dissenting or concurring opinion as if you were one of the U.S. Supreme Court justices. Below is the rubric which will be used to assess your opinion. You will NOT be assessed on your opinion, but on your ability to meet the rubric requirements: vocabulary, cite to the U.S. Constitution and/or precedent (reference to another case), and document structure. Here is a cite which may be useful for locating additional information: http://www.pbs.org/wnet/supremecourt/pop_landmark_cases/

Requirement 10 Points 5 Points 2 PointsVocabulary 4 or more terms used correctly 2-3 terms used correctly 1 term used correctly

Facts 3 facts reference 2 facts reference 1 fact reference

Grammar 2 or fewer errors 3-4 errors 5 or more errors

Evidence 3 cites to either a constitutional principle, amendment, or other case

2 cites to either a constitutional principle, amendment, or other case

1 cite to either a constitutional principle, amendment, or other case

Organization 3 organizational headings 2 organizational headings 1 organizational heading