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)