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Civil Liberties and Civil Rights
Terms for this unitAssimilationDue processProbable causeCivil libertiesCivil rightsSelective incorporationAffirmative actionStrict scrutinylibel
SlanderSeditious speechJus sanguinisJus soliNaturalizationReservationdeportation
Civil liberties vs. civil rights
Civil liberties are individual rights protected by the Constitution
Civil rights are the actions taken to make sure that groups are treated fairly
Bill of Rights is about civil liberties
Freedom of speech, religion, assembly, press, rights of the accused, right to a fair trial
The Constitution as originally written did not contain a number of specific rights and restrictions on government authority
Anti-Federalists objected to the lack of a bill of rights
Federalists said that the first congress would draw up a list of safeguards to protect basic rights
Led by James Madison, the first congress wrote 10 amendments which were passed by the states in 1791
Scope of the Bill of Rights
Note that the Bill of Rights originally applied to federal government only,. “Congress shall make no law…”
Barron v. BaltimoreJohn Barron claimed that the city had damaged his business because a construction program made it hard for vessels to land and do business
Chief Justice John Marshall and the Supreme Court ruled that property compensation (5th) did not apply to states
Fourteenth Amendment
Ratified in 1868Grants citizenship to all races“No STATE shall make any law which shall
abridge the privileges or immunities of citizens of the United States”
Write it out and in your own words
14th Amendment (658)Due Process Clause
Equal Protection Clause
Gitlow v. New York
1925 Gitlow wrote a pamphlet “The Revolutionary Age” urging people to join in a revolution to overthrow organized government
Arrested because of New York law against seditious speech
Court upheld conviction-seditious speech is not protected by Constitution
But also said that whatever free speech laws were applicable to US citizens had to be observed by the states
Incorporation Doctrine
The incorporation process did not occur all at once but is a series of Supreme Court decisions that made sure that Due Process Clause of the 14th amendment applied to states
List 2 court cases in which states had to change laws due to the incorporation doctrine
Freedom of religion- 1st amendment
-America’s religious liberties originated in colonial opposition to government sponsored churches
-2 clauses about religious freedom-Establishment Clause prohibits “establishment of religion”- Free Exercise Clause prohibits interference of free practice of religion
-Both of these protections have extended to states by the Due Process Clause of the Fourteenth Amendment
Establishment clause“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof”“Wall of Separation” -Thomas Jefferson contended that the First
Amendment created a “wall of separation between Church and State,” forbidding any government support for religion
- Although Americans have traditionally opposed the creation of a national church, school prayer and aid to church-related schools have sparked controversial court cases
Engel v. vital
1951 New York Public Schools issued a prayer for public schools
Steven Engel (father) objected (1962)Supreme Court said school prayer was
unconstitutional
Lemon v. Kurtzman
1968 Nonpublic elementary and secondary school Act that allowed the state Superintendent to reimburse private church-related schools for secular textbooks, teachers salaries for secular subjects, and instructional materials
Supreme Court said that if public money was going to give money to a private school that aid must do the following:
Lemon test
1.Must have a secular purpose2.Must neither advance or inhibit
religion3.Must not foster an excessive
entanglement between government and religion
Free exercise clauseCongress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof”
Free Exercise Clause guarantees each person the right to believe whatever they want
However a religion cannot make an act legal that would otherwise be illegal. The government can act when religious practices violate criminal laws, offend public morals, or threaten community safety
Oregon v. Smith (1990) the Supreme Court banned the use of a hallucinogen in religious ceremonies
Reynolds v. United states1879Reynolds was a member of the Mormon Church and
married to 2 womenConvicted of PolygamyWanted conviction overturned because of 1st AmendmentCourt said that beliefs could not be that “lies solely
between a man and his god”However society has the right to legislate against religious
activities that violate the law of the landReligious belief is not superior to the law of the land
Freedom of speech
1st Amendment, “Congress shall make no law… abridging the freedom of speech or the pressFramers believed that the right to free speech is a fundamental natural rightWriting of Voltaire14th amendment protects free speech and press at a state level
Protection of unpopular views
Intended to protect unpopular views
The freedom to differ is not limited to things that don’t matter much
Even if someone is wrong it does not mean they should be silenced
Clear and present danger test
The Espionage Act of 1917- prohibited forms of dissent deemed to be harmful to the nation’s war effort
Schenk v. United StatesSchenck opposed America’s participation
in WW1 and passed out leaflets about people resisting a potential draft
Arrested for violating Espionage Act
Schneck argued that the espionage act was unconstitutional because it violated freedom of speech
Justice Oliver Wendell Holmes said “Free speech would not allow a man to yell fire in a crowded theater and cause a panic
Words cannot create a “Clear and Present Danger”
Brandenburg v. ohio 1969
Limited Clear and Present Danger Test by ruling that the government could punish advocacy of illegal action only if “such advocacy is directed to inciting or producing immediate lawless action and is likely to incite or produce such an action”
Limits on free speech
Libel- written defamation that falsely hurts a persons reputation
Must be done maliciously (New York Times v. Sullivan)
Slander- spoken defamation that falsely hurts a persons reputation
*!#!
In Roth v. United States (1957)Supreme Court Said Obscenity is not protected by Free Speech
Miller v. California (1973)Court made test for obscenitiesIt is up to communities to implement the test or FCC
3-Pronged test
Obscenity Test
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.
Symbolic Speech
Symbolic speech includes forms of nonverbal communication including signs, clothes and burning the flag
1965 Tinker v. Des Moines (armband case) Freedom of Speech is protected in schools
More Cases
In Texas v. Johnson- Court (1989) said that flag burning is a protected form of free speech
Cannot use free speech to incite an illegal act. Cannot burn a cross to threaten someone
Prior Restraint
Attempt to limit freedom of press by preventing something from being published. A form of censorship
Supreme Court USUALLY rules that prior restraint is unconstitutional
Some extreme cases it’s allowed- someone advocating a terrorist act
School boards can exercise editorial control over the style and content of student speech in school sponsored activities as long as their actions are a reasonable pedagogical concern
Rights of the Accused- Original Constitution
1.“Writ of Habeas Corpus”- unless in cases of rebellion the public safety may require it
2.Bill of attainder- It’s illegal. You cannot punish someone without a trial
3.Ex post facto laws- Can’t be punished by a new law for something you did in the past
Searches and Seizures
4th Amendment- Right of people to be secure in their persons, houses, etc. against unreasonable search and seizure
Exclusionary Rule- Cannot admit evidence obtained illegally Weeks v. US 1914 established the rule for
federal cases Mapp v. Ohio (1961) state level (Part of
incorporation doctrine)
The right to counsel
6th amendment- “accused…assistance of counsel for his defense”
Gideon V. Wainwright (1963) Gideon accused of stealing money Judge refused to give court appointed
attorney Supreme Court unanimously ruled that
6th amendment right to counsel should also apply to major state crimes through Due Process clause of 14th amendment
Miranda Rule
5th Amendment prevents people from having to incriminate themselves
Miranda v. Arizona (1966) -Miranda mentally challenged accused of rape
and murder - 2 hour police interrogation, signed
confession - Never made aware of his rights - Supreme Court overturned conviction
What are you Miranda Rights????
Right to privacy
- Right to an Abortion falls in this category- “The Right to be Left Alone”- Bill of Rights does not specifically grant a right to privacy
but Constitutional provisions imply it:
- - 1st amendment Freedoms- - 3rd Amendment protection against forced
quartering of soldiers- - 4th Protection against unreasonable search and
seizure- - 5th Amendment private property cannot be seized
without due process of law
Griswold v Connecticut 1965
-Estelle Griswold (Planned Parenthood) challenged the constitutionality of a 1879 law that prohibited the use of any drug or instrument for the purpose of preventing conception
-Supreme court ruled that criminalizing the use of contraceptives violated the rights to marital privacy
- Right to privacy is an unstated liberty
Roe v. Wade 1973
Jane Roe (alias) challenged a Texas law outlawing abortion even if the mother’s life was at risk
Roe argued that her right to abortion was not government business and part of her right to privacy
Supreme Court struck down law 7 to 2
Challenges to Roe
Webster v. Reproductive Health Services 1989 - Supreme Court upheld a Missouri law
prohibiting abortion except when a mother’s life was in danger
Planned Parenthood v. Casey 1992 - A state may place reasonable limits on
abortions (24 hour waiting period, parent consent)