Civil Rights and Civil Liberties

Warm Up- 4/1/2013“I Have a Dream” Speech

Reflect- How have we seen the rights of African Americans transition since this speech was given?

What are civil rights and what are civil liberties?

Civil Rights = The right of every person to equal protection under the law and equal access to society’s opportunities and public facilities.

Civil Liberties = Individual rights that are protected from infringement by government.

Transformation of RightsWithin the 19th and 20th centuries, we have seen rights evolve:

1.African-Americans2.Women3.LGBT4.The Elderly5.People with Disabilities

Civil Rights and Equality“All men are created equal?”- Equality – One of the founding principles

of our democracy, yet still unrealized. What is equality?

- In theory, Americans have equal rights; in practice, they are not equal and never have been.

The Struggle for Equality: African Americans- Slavery and the Civil War- The 13, 14, and 15th Amendments

13 = Abolished Slavery14 = Guaranteed equal protection and due process.15 = Gave African Americans the right to vote.

- Jim Crow Laws (Post 1877)

Would you have been able to vote?The Alabama Literacy Test Which body of Congress can try impeachments of the

President? At what time of day on January 20th does the term of the President end? If the president does not sign a bill, how many days is he allowed in which to return it to Congress for reconsideration? If a bill is passed by Congress and the President refuses to sign it and does not send it back to Congress in session within the specified period of time, is the bill defeated or does it become law? If the United States wishes to purchase land for an arsenal and have exclusive legislative authority over it, consent is required from whom? Which officer of the United States government is designated as President of the Senate? When is the president not allowed to exercise his power to pardon? Why is the power to grant patents given to Congress? What is a tribunal? If a person charged with treason denies his guilt, how many people must testify against him before he can be convicted?

Landmark Court Cases- Plessy v. Ferguson (1896)

- “Separate but equal”- Court endorsed Jim Crow Laws- The use of race as a criterion of exclusion

in public matters was not unreasonable.

- Brown v. Board of Education (1954)

The Civil Rights Movement1955 – Bus Boycott in Montgomery, AL1957 – Little Rock, AK Desegregation

The Civil Rights Movement (continued)

1963 – March in Birmingham, AL led by MLK, Jr.

1963 – March on Washington, DC.

“I have a dream” speech.

The Civil Rights Acts- Three civil rights acts were passed

shortly after the Brown decision; did little to help the cause of blacks.

- Civil Rights Act of 1964- Civil Rights Act of 1968- Voting Rights Act of 1965

Women and the Struggle for Equality

- United States carried on policies from England when the nation was founded.

- 1848 – First Women’s Rights Convention in Seneca Falls, NY

- 19th Amendment in 1920 gave women the right to vote.

- ERA

Equality TodayAfrican Americans and Women:

Notable Gains v. Continued Struggles

De facto Discrimination: Discrimination that is the result of social, economic, or cultural biases or conditions.

De jure Discrimination: Discrimination based on the law.

Equality of Result: Policies aimed at reducing or eliminating de facto discrimination.Examples: Affirmative action and busing

Gay and lesbian Homophobia, or fear and hatred of homosexuals- has caused

many issues within the United States There have been many ruling against the civil rights of

Homosexuals The case of Bowers v Harwick allowed states to ban

homosexual relationships The Supreme Court also allowed the Boy Scouts to ban

homosexuals from their organization because it violated their principles

There have been recent success in the fight for gay civil rights Recently the “Don’t Ask, Don’t tell” policy was struck

down in the military In the case of Romer v Evans (1996) a state

constitutional amendment was struck down after it tried to legalize discrimination against gays

Understanding the Transformation of LGBT: TIME Article: History of Gays in the

Military: http://www.time.com/time/nation/article/0,8599,1958246,00.html

NBC- Today Show, reflection on the DOMA

The Elderly One group that has tried to hold on to their rights in this

changing work is the elderly People 65 and older make up about 37 million people

in the American population That is 12% of the American population

Many of the hot button issues regarding the elderly revolves around Social Security and Medicare/Medicade These programs account for a huge percentage of the

American budget and only appears to be an increasing expenditure.

The elderly American population is also dealing with age discrimination in the work place.

People with disabilities The Americans with Disabilities Act of

1990 strengthened the protection for Americans with disabilities The ADA requires employers and

administrations of public facilities to make “reasonable accommodations” and prohibits employment discrimination against people with disabilities.

After seeing the transformation of each group, is Affirmative Action still necessary?

Affirmative ActionAffirmative Action = Deliberate effort to provide

full and equal opportunities in employment, education, and other areas for women, minorities, and individuals belonging to other disadvantaged groups.

Many court cases have addressed the issue of affirmative action, including the following examples:

Regents of CA v. Bakke (1978)US Steel v. Weber (1979)Wards Cove v. Atonio (1989)Adarand v. Pena (1995)

What are some arguments in favor

of and in opposition to

affirmative action?

Homework, due next class…In order to understand the Civil Liberties ensured with Religious Freedom, please read:1.NYT’s Article: How Christian Were the Founders? 2.Pew Forum Article

Warm Up:How have we seen our nation evolve with Religious Freedom?

Do you think that decisions made today in our Court system, reflect our religious foundations? Why or Why not?

April 3, 2013

Civil LibertiesCivil Liberties = Individual rights that are

protected from infringement by government.

- Foundation for Civil Liberties = Bill of Rights and Interpretations of the Supreme Court

Our Civil Liberties1. The First Amendment

a. Freedom of Religionb. Freedom of Speechc. Freedom of the Press

2. The Second Amendment: The Right to Bear Arms

3. The Rights of the Accused4. The Right to Privacy

As Stated The first and fourteenth amendments

set out two guarantees concerning religious freedom. These guarantees prohibit: An establishment of religion

(establishment clause) Any arbitrary interference by government

in the free exercise of religion (free exercise clause)

Establishment Clause According to Thomas Jefferson the

establishment clause is: “a wall of separation between church and

state”

Free Exercise Both the first and fourteenth amendment

guarantees: “Each person has the right to believe

whatever he or she chooses to believe in matters of religion. No law and no other action by any government can violate that absolute constitutional right.”

There is a caveat to this though: No person has an absolute right to act as he

or she chooses.▪ i.e. A person does not have the right to violate

criminal laws, offend public morals, or other wise threaten the safety of the community.

Court Cases Engle v Vitale (1962):

Prior to the 1962 case of Engle V Vitale the New York Board of Regents had a prayer that students could recite. The prayer read: “Almighty God, we acknowledge our

dependence upon Thee, and we beg, Thy blessings upon us, our parents, our teachers, and our country.”

The Decision This court case outlawed the use, even

on a voluntary basis, of this prayer. The supreme court decision stated that:

“it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government”

Court Cases Lemon v. Kurtzman (1971):

This was a case involving a suit in which a state law required that financial payments be made to private schools to cover their costs for teachers’ salaries, textbooks, and other teaching materials in non-religious courses.

The decision The Supreme Court ruled that the

establishment clause is designed to: Prevent sponsorship, financial support, and

active involvement of the sovereign in religious activity.

The court then setup the Lemon test, to verify state aid was appropriate. The test has three prongs which state: The purpose of the aid must be clearly secular

not religious Its primary effect must neither advance nor

inhibit religion It must avoid an excessive entanglement of

government with religion

Court Cases In the case of Zelman v Simmons-Harris

Zelman sued to be able to use school vouchers to pay tuition at a religious school This case is very controversial as the

establishment clause generally prohibits public money from being used for private religious matters

The Decision In a 5-4 decision the Ohio voucher program was

upheld as constitutional. Under the Private Choice Test developed by the

court, for a voucher program to be constitutional it must meet all of the following criteria: the program must have a valid secular purpose aid must go to parents and not to the schools a broad class of beneficiaries must be covered the program must be neutral with respect to

religion there must be adequate nonreligious options

Rights of Assembly Under the 1st amendment, people are

guaranteed the right to assemble, or gather with one another to express their views on public matters

This amendment also protects peoples right to bring their views to the attention of public officials.

Limits The right to assembly does have its

limits though. Assembly must be peaceable.

People do not have the right to incite violence To block public streets To close a school Endanger life, property or public order

DeJonge vs. Oregon (1937) DeJonge had been speaking out about poor

jail conditions at a meeting of the Communist party.

In the case DeJonge was arrested under the pretence that he was committing criminal syndicalism. criminal syndicalism is the doctrine which

advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution

The Decision DeJonge’s conviction was struck down as it

was seen not to go against his states criminal syndicalism laws. The decision stated that the state law

violated the due process clause of the 14th amendment.

The Judges decision stated that the auspices under which a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the bounds of freedom of speech must be examined. It could not be proved this his speech

constituted a clear and present danger

NAACP v Alabama (1958) In 1958 the KKK tried to force the

NAACP to turn over their membership list. Because of the nature of the KKK this was

looked at as a way to intimidate and dissuade the lawful assembly of members of the NAACP

It was decided that forcing the NAACP to turn over their membership list was an unconstitutional restriction on freedom of association

Gregory vs. Chicago (1969) Protestors were arrested after

peacefully protesting segregation and asking for the firing of the school superintendent. Police officers demanded that the

protestors leave and when they refused to leave is when the arrests took place.

The Decision It was held that the protesters were arrested

for having a demonstration and not for violating the officers directives. The decision stated that since the protest was

peaceful and lawful that those who participated could not be arrested

Their right to demonstrate was upheld because of first amendment rights

Hecklers Veto- This required that a fee be paid by the group of

the main speaker of a demonstration This was found unconstitutional during the

Gregory V Chicago case.

Forms of Free Speech While free speech is guaranteed by the

1st amendment, there are certain restrictions. A person can be punished for:

Using obscene language. Using words in a way that causes another

person to commit a crime (i.e. to riot or to desert the military).

Another example of limited free speech, is when it contradicts the right to a fair trial guaranteed by the 6th amendment.

Student’s Rights??Do you as a student have rights?????

4th Amendment and Students Rights: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm

Please read, and afterward we will discuss.

Homework FRQ- please answer utilizing your

textbook or supplemental textbook.

State v Federal Originally the protections of the Bill of Rights were only available at the

federal level. There was no protection against states suppressing the freedoms

guaranteed by the Bill of Rights This concept is supported under the case of Barron v Baltimore

Barron had sued Baltimore for destroying his wharf during the creation of a public streets. He felt that under the 5th Amendment’s eminent domain clause he should be compensated for the destruction of his business.

The Supreme Court ruled that only the national government, not states or cities were responsible for adhering to the Bill of Rights

This practice ends with the passage of the 14th Amendment and the implications of the equal protection clause

SELECTIVE INCORPORATION: The process by which certain of the guarantees expressed in the Bill of Rights become applicable to the states through the Fourteenth Amendment. Under the total incorporation approach, an approach never adopted by a majority of the Supreme Court, all the Bill of Rights and the attendant case law interpreting them, are applied to the states. Under the selective incorporation approach, select guarantees in the Bill of Rights and their related case law are applied to the states, 391 U.S. 145.

April 5, 2013

Warm UPShould our federal government ensure rights for everyone? Or is this a job for states to ensure?

Gitlow v New York (1925) In the case of Gitlow v New York, Benjamin Gitlow,

a member of the Socialist Party of America who had served in the New York State Assembly, was charged with criminal anarchy under New York's Criminal Anarchy Law of 1902 for publishing in July 1919 a document called "Left Wing Manifesto“ While Gitlow’s conviction was upheld under the “clear

and present danger” doctrine this case establishes the precedent that the Supreme Court can review state suppression of free speech at the state level under the 14th amendment and therefore establishes that free speech is a right that must be extended to the states This doctrine states that if an individual is using their

speech to advocate the overthrow of the government, it is not constitutionally protected

Near vs. Minnesota (1931) This case struck down a state law that

prohibited the publication of any “malicious, scandalous, and defamatory” periodicals. The Saturday Press a Minnesota newspaper

charged public corruption and attacking “grafters” and “Jewish gangsters.”

The case guaranteed free speech can not be restrained unless in extreme cases of war, or when a publication is obscene or incites violence.

Dennis vs. United States (1951) This court case stemmed from the Smith

Act passed in 1940. This act made it illegal for “anyone to

advocate the violent overthrow the government of the United States.”

This court case upheld the Smith act. 11 communist party leaders were convicted of

advocating the overthrow of the federal government.

It was found that their that their actions constituted a clear and present danger to the country.

Sheppard v Maxwell (1966) In this case Dr. Samuel Sheppard was

convicted of murdering his wife. The long trial was nationally publicized. Because of the national publicity of the

trial, Sheppard claimed that he was not given a fair and unbiased trial.

The Supreme Court agreed and handed down a decision that stated that Sheppard should receive a new trial.

Brandenburg vs. Ohio (1969) A Ku Klux Klan leader, was convicted under the

Ohio Criminal Syndicalism statute for: advocat[ing] . . . the duty, necessity, or propriety

of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform and for voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.

This case stated that freedom of speech didn’t extend to those who incite others to take illegal actions.

New York Times CO v United States (1971) This case is most famously known as the Pentagon

Papers Case The Pentagon Papers are officially known under the document

name,  United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense

In this case, documents had been stolen from the State Department discussing strategy used during the Vietnam war. The government tried to stop the publication of these

documents, stating that the publication would damage national security. The court upheld the right of the New York Times to publish

these papers as the government did not prove that the publication of the Pentagon Papers would endanger the nation’s security.

Restraint Prior Restraint:

Prior restraint is an attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press.

Texas vs. Johnson (1989) According to this case, burning the

American flag as an act of political protest is expressive conduct protected by the 1st and 14th amendment. In a 5-4 decision it was ruled that a law

forbidding the “desecration of a venerated object” forbade freedoms of expression held up by the 1st and 14th amendment.

Other Cases to look at independently: Schenck v United States: “Clear and Present

Danger” Roth v United States: “Obscenity is not within

the area of constitutionally protected free speech or press”

Miller v California: Avoids defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a “Prurient interest” and being “patently offensive” and lacking value

New York Times v Sullivan: Having to do with Libel

The Shield

Shield Laws- A "shield law" is legislation designed to provide a

news reporter with the right to refuse to testify as to information and/or sources of information obtained during the newsgathering and dissemination process.

Gagged

Gag orders- Gag orders are a form of prior restraint that prohibit

parties, lawyers, prosecutors, witnesses, law enforcement officials, jurors and others from talking to the press. Frequently such orders are sought by one party in a case, although judges may issue gag orders on their own initiative.

The FCC

The FCC is responsible for: Regulating interstate and foreign communications

by: Radio Wire Satellite Cable

Radio and television tend to have greater regulation as compared to print media.

The internet is the least regulated type of media.

Terrorism and Civil Liberties

The debate: After 9/11, how do we prevent another terrorist attack?

Main Argument: National Security should take precedence over civil liberties (when they conflict).

Counter-Argument: Civil liberties should ALWAYS take precedence.

THE DEBATEWe want to be a stable, democratic

system. We do not want to be vulnerable to terrorist attacks.

What happens, however, when safety and stability are achieved or promoted through undemocratic means? Is compromising civil liberties undemocratic when it is necessary?

The Main Argument in Support of Compromising Civil LibertiesWhen they conflict,

national security takes precedence over civil liberties.

Examples (of why this is good): Foiled terrorist attacks. Most Americans are unaffected. Stability ensured. Democratic process as watchdog.

The Counter-Argument

Civil liberties take precedence over National Security.

Examples (of why this is bad): Racial profiling Japanese internment Discrimination against Muslims

The Patriot Act (2001)

What do you think?Does the government have the right to infringe on

civil liberties? When? How far is too far?

What about racial profiling? Is racial profiling an acceptable deviation from the equal protection clause?

Is the government protecting US citizens from future terrorist attacks or invading their privacy?

Is the Patriot Act a necessary part of life after September 11 or does it overstep the boundaries of privacy invasion?

HomeworkFRQ

Defendant’s rights and the right to privacy

April 9, 2013

Search and Seizure Prior to an arrest being made police need to be

able to establish probable cause Probable cause is the belief that there are

reasonable grounds to believe that someone is guilty of a crime This often requires physical evidence such as

fingerprints or possession of stolen property. The 4th Amendment forbids unreasonable

searches and seizures In order to prove that the search is reasonable

police often have to obtain a search warrant. Warrants are generally not given unless probably cause can be proven

Exclusion Since 1914 the Supreme Court has used the

exclusionary rule to weigh evidence in criminal cases The exclusionary rule prevents prosecutors from

introducing illegally seized evidence in court Until the case of Mapp v Ohio (1961) the

exclusionary rule only applied to federal cases In this case the Supreme Court ruled that Mapp

could not be charged for drug possession even though drugs were found when searching Mapp’s home for a fugitive

Exceptions There have been modern exceptions to the

exclusionary rule that have made the rule more lax. Justices have decided that good-faith

exceptions would be allowed in court If evidence was obtained illegally but the

officers believed that they were obtaining evidence legally, it could be valid in court.

In the case of Herring v United States (2009) it was established that the police must deliberately obtain evidence illegally for it to not be valid in court

Self-Incrimination The 5th amendment forbids forced self

incrimination This means that no person can be forced

to testify against themselves in a trial This protection is furthered by the case of

Miranda v Arizona The result of this case is the required

reading of one’s Miranda rights when arrested.

The Right to Counsel The 6th Amendment ensures the right to

counsel in federal courts, but did not extend to the states until 1963.

The case of Gideon v Wainwright (1963) heard a case in which Clarence Gideon was to poor to provide his own counsel At the time only capital offenses were

afforded a court appointed lawyer After the ruling of this case it was decided

that all individuals accused of a felony, no matter their financial situation, could have a court appointed lawyer defend them in a case

Cruel and Unusual Punishment The 8th Amendment protects Americans citizens from

cruel and unusual punishment In Gregg v Georgia (1976), Gregg was convicted of a

capitol crime and was to be sentenced to death Gregg challenged the death penalty as a violation

of the cruel and unusual punishment standard It was determined by the Supreme Court that

capitol punishment was not a violation of the cruel and unusual punishment standard as it was suitable sanction to the most extreme of crimes

Right to Privacy The Bill of Rights does not guarantee a

citizens express right to privacy The Bill of Rights was however interpreted to

provide privacy starting with the case of Griswold v Connecticut In Griswold v Connecticut, Connecticut had

tried to pass a law preventing the use of contraceptives It was determined that privacy was inherent in

the rights guaranteed by the Bill of Rights and that preventing someone from using a contraceptive was a violation of an individuals right to privacy

Right to Privacy Roe v Wade

The case of Roe v Wade challenged state bans on all abortions. It was determined that states could not legally

ban abortions and that the following abortions were allowed to be legal No law can forbid an abortion during the first

trimester Abortions are legal in the second trimester and

can be regulated, but only in a way that protects a mother’s health

Abortion is legal in the third trimester ifthe mother’s life is in danger

Homework Study For Test! FRQ Study Packet