Civil Liberties: First Amendment Freedoms I. Unalienable Rights

a. Revolutionary war was fought to expand the individuals rights vs. the rights of governmentb. Ratification of the constitution was reliant on the

Federalists agreeing to a bill of rights               i. The first 10 amendments declares

1. Civil Rights- positive acts of government that seek to make constitutional guarantees a reality for all people

a. I.E.- prohibitions on segregation2. Civil Liberties- protections against

governmentb. I.E.- freedom of speech, religion, and press

What are the differences between civil rights and liberties?

Civil Rights- positive acts of government that seek to make constitutional guarantees a reality for all people

Civil Liberties- protections against government

c. Limited Government               i. Limited by the rights of citizens laid out in

the constitutionii. Rights are relative

1. “the right to swing my fist ends with its contact with another’s jaw”

d. To whom are rights guaranteed?               i. All persons within the United States

1. Often including aliensii. Japanese internment 1944

How does that relate to Muslims in the United States today?

After 9-11 many Muslims rights were “suspended” through

Imprisonment at Guantanamo BayPatriot Act

e. Federalism and Rights               i. 5th and 14th Amendment-Due Process

Clause1. “No State shall…deprive any person of life, liberty, or property, without due process of law….”2. Causes States to incorporate the Bill of rights through the clause into their State Courts Upheld through

ii. 9th Amendment 1. Sets out that not all of a persons rights are laid out in the Constitution

II. Freedom of Religion a. Freedom of Expressionb. 1st and 14th Amendments

                i. Prohibits the establishment of a national religion in the Establishment Clauseii. Prohibits the government interference in the “free exercise of religion” (Free Exercise Clause)

c. Separation of Church and State

What does the Establishment Claus do?

Prevents the establishment of a national religion.

d. Religion and education                i. Students may be bussed to religious schools

ii. Students may be given “release time” to attend religious classesiii. Courts have struck down any reading of the bible, posting of religious documents, and moments of silence in certain statesiv. 1968 theory of evolution may to be taught

in public schools    

v. May give aid to religious schools1. Those who attend would be attending public school if they did not attend religious2. Lemon test (Lemon v. Kurtzman 1971)

a. Purpose for the aid must be secularb. Must not be to aid or hinder religionc. Must avoid, “excessive entanglement of government with religion

What is the function of the Lemon test?

Purpose for the aid must be secular

Must not be to aid or hinder religionMust avoid, “excessive entanglement of government with religion

e. Free Exercise Clausei. Any person has the right to believe in their chosen religionii. Limits

1. Use of poisonous snakes2. Use of child labor3. U.S. can take native American land used for religious purposes

III. Freedom of Speech and Pressa. 1st and 14th amendments serve two important purposes

                  i. Guarantee each person a right of free expression, in the spoken and the written wordii. Guarantee to all persons a full, wide ranging discussion of public affairs

b. Not protected          i. Libel

ii. Slanderiii. Seditious Speech

1. Support an overthrow of the governmentiv. Alien and Sedition acts of 1798

1. Allowed the president to deport those speaking against the government

v. Sedition act of 19171. Crime to encourage disloyalty, interfere with the draft, obstruct recruiting, incite insubordination in the armed forces, or hinder the sale of gov. bonds2. Upheld in Schneck v. United States, 1919

vi.     Smith Act 1940 made it a crime to 1. 1. Advocate a violent overthrow of the gov.

What is the difference between libel and slander?

Libel- Written Slander- Spoken

vii. Obscenity (Miller v. California) 1. Illegal if

a. The average community person finds the work to excite lustb. Work depicts or describes in an offensive way a form of sexual conduct specifically dealt with in an anti-obscinity lawc. Work taken as a whole lacks serious literary, artistic, political or scientific value

ix. The Media1. Confidentiality

a. Media must give up their sources upon government scrutiny

                                    i. Many have chosen to go to jail instead

2. 30 states have created “shield laws” to protect the media

2. Motion Picturesa. Most people rely on the film industry’s own rating system, very few independent review boars remain

3. Radio and TVa. FCC

                                    i. Forbidden to censor content of programs before they are broadcastii. Limited power because of 1st amendment freedoms

1. May ban use of indecent language

x. Symbolic speech1. Burning a draft card for example2. Flag burning

What organization regulates the Radio Waves?

Federal Communication Commission

IV. Freedom of Assembly and Petitiona. Assembly

               i. Protected by 1st and 14th amendmentii. Only if the assembly or petition is peaceable

b. Regulations                i. Government may govern the time-place-

manner of the assemblyii. Often require permits and advanced noticeiii. May not trespass on private property

c. Gregory v. Chicago, 1969               i. Gregory arrested after de-segregation march

ii. Supreme Court Held that the community and not the protestors were at fault

d. Freedom of associationi. The right to associate with others to promote political, economic, and other social causes

V. Due Processa. In whatever it does the government must act fairly in accord with established rules

               i. It may not act unfairly, arbitrarily, or unreasonably

b. 2 clauses in the Constitution                i. 5th Amendment

1. Federal Gov. cannot deprive any person of, “life, liberty or property” with out due process

ii. 14th Amendment1. Places the same restriction on the states

c. Supreme Court has refused to define, instead interpreting on a case by case basis

d. Procedural   i. Due process in the methods of

government actionii. Exemplified in Rochin v. California,1952

1. Narcotics buste. Substantive

              i. Policies of Government Actionii. Upheld in Pierce v. Society of Sisters,

1. Oregon wants to destroy parochial schools

VI. The Police Powera. The authority of each State to act to protect and promote the public health, safety, morals, and general welfareb. Often conflicts with civil rights protection

                i. Drunk Driving tests1. State and Federal Courts come down on the side of Police Powers2. Leading Case Schmerber v. California, 1966

ii. The state has often found to promote public health, safety, morals, and welfare they may override civil rights and

1. Limit the sale of alcoholic beverages and tobacco, make laws to combat pollution, and require vaccination of school children2. Forbid concealed weapons, require the use of seatbelts, and punish drunk drivers

VII. Right of Privacya. The right to be free, except in very limited circumstances from unwanted governmental intrusionsb. Roe v. Wade

i. Encompasses the woman’s right to terminate pregnancy

What is the landmark abortion case?

Roe v. Wade

      

ii. Since the decision State Courts have put limitations on abortions such as:

1. Not allowing an abortion after 20 weeks2. Forcing minors to gain consent of a parent3. Women seeking abortion must:

a. Be given professional counseling intended on changing her mindb. Delay the abortion for at least 24 hours after counseling

4. Doctors must keep detailed records of abortions they perform

VIII. Slavery and Involuntary Servitude  a. 13th Amendment

i. Does not forbid all forms of servitude1. 1918 Court drew the distinction between involuntary servitude and duty to rationalize the draft

ii. Its intended purpose was curtailed by The Civil Rights Cases, 1883

1. Gave the rights given to the freed slaves narrow scope2. Established discrimination legal, as it did not constitute slavery

iii. Empowered in 1964 with the Civil Rights Act

1. Supreme Court has since widened the scope and affirmed the act

IX.  Right to bear arms  i. 2nd Amendment

1.“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.”

ii. Regulated by the States

What amendment encompasses the right to bear arms?

2nd

X.  Security of Home and Person      i. 3rd Amendment

1. Forbids the housing of soldiers in private homes

ii. 4th Amendment1. Prevents writs of assistance

a. Blanket search warrants with which British customs officials had used to invade homes to search for smuggled goods

 i. Probable Cause

1. A reasonable suspicion of a crime2. Police have not general right to search for evidence or to seize either evidence or persons unless they have probable cause3. Florida v. J.L., 2000

a. Police did not acquire a warrant for a concealed handgun on a teenager

4. Arrestsa.When police make a lawful arrest they do not need a warrant to search, “the area within which the suspect might gain possession of a weapon or destructible evidence.”b. Illinois v. Wardlow, 2000

i. Fleeing the scene reasonable cause

5. Automobilesa. From 1925-1991 Search required a warrantb. California v. Acevedo, 1991

                                    i. “Whenever police lawfully stop a car, they do not need a warrant to search anything in that vehicle that they have reason to believe holds evidence of a crime.”ii. Includes passenger’s

belongings

6. Exclusionary Rulea. Evidence gained as the result of an illegal act by police cannot be used at the trial of the person from who it was seizedb. Mapp v. Ohio, 1961

i. Pornography evidence found without a warrant

                                                                                     7. Drug Testing

a. Can be conducted without warrants or indications of drug use

                          i. Upheld at the School District Level1. Vernonia School District v. Action, 1995

8. Wiretappinga. Katz v. United States, 1967

i. Not allowed to wire tapb. Challenged by Patriot Act