CIVIL LIBERTIES &CIVIL RIGHTSCHAPTERS 4 AND 5

APUSGovPol

Defining Civil Liberties and Civil Rights

• Civil Liberties versus Civil Rights:• Civil Liberties – Freedom (Bill of Rights)• Civil Rights – Equality

• In Civil Liberties cases, court must balance individual’s freedom with government interests and the public good.

Distinguishing Civil Liberties from Civil Rights

Balancing Interests

• Other interests competing with civil liberties:• Public safety • Public health• National security

Where to draw the line?

• First Amendment:• Free Speech: No right to yell “Fire!” in a crowded theater

(Justice Oliver Wendell Holmes, 1919)• Establishment Clause• Freedom of Press• Balancing of freedom of expression against competing

values, such as public order, national security, right to fair trial

• Fourth Amendment:• Freedom from unlawful searches and seizures

Origins of civil liberties

• Origins of the Bill of Rights• Antifederalists opposed ratification of the Constitution

absent the inclusion of a Bill of Rights• Bill of Rights passed in 1791, after Constitution had been

ratified• Bill of Rights originally applied only to the federal

government (and not to the states)• Barron v. Baltimore (1833): Chief Justice John Marshall:

SCOTUS has no authority to apply Bill of Rights to the states

Selective Incorporation and the 14th Amendment

• Fourteenth Amendment – ratified in 1868 (one of the three Civil War Amendments):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Selective Incorporation of the 14th Amendment

• Due Process Clause: Part of the Fourteenth Amendment that forbids states from denying “life, liberty, or property” to any person without due process of law. [A nearly identical clause in the Fifth Amendment applies only to the federal government.]

Selective incorporation

• Gitlow v. New York (1925): First time that the SCOTUS expressly held that the Fourteenth Amendment incorporated one of the amendments (First Am.) in the Bill of Rights and applied it to the states

• Palko v. Connecticut (1937): SCOTUS rejects total incorporation of Bill of Rights; any right “found to be implicit in the concept of ordered liberty” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental” would be applied to the states

Selective incorporation

• Selective incorporation: The process through which the civil liberties granted in the Bill of Rights have been applied to the states through the Fourteenth Amendment; done on a case-by-case (Amendment by Amendment) basis

The Warren Court & selective incorporation

• Earl Warren, Chief Justice of the SCOTUS from 1953-1969• Engel v. Vitale (1962): state-sponsored prayer in public

schools violates the establishment clause of the Frist Amendment (decision ended school-sponsored prayer)

• Abington School District v. Schempp (1963): officially-sanctioned, mandatory Bible reading in public schools violates First Amendment’s establishment clause

• SCOTUS: “the place of religion in our society is an exalted one, but in the relationship between man and religion, the State is firmly committed to a position of neutrality.”

The Warren Court & selective incorporation

• Warren Court’s expansion of rights of the accused:• Mapp v. Ohio (1961): “exclusionary rule” applied to the

states; can’t admit unlawfully-obtained (without a warrant) evidence at trial

• Gideon v. Wainwright (1963): counsel must be provided at states’ expense for indigent defendants charged with felonies

• Miranda v. Arizona (1966): police must notify suspects of certain rights prior to suspects’ interrogations

• Between 1961-1969, SCOTUS incorporated 11 provisions of the Fourth, Fifth, and Sixth Amendments

The First Amendment

• “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble.”

--First Amendment

Political Speech – free speech and public order

• Alien and Sedition Acts, 1798• Restrictions on speech relating to slavery during Civil

War• Schenck v. United States (1919): “clear and present

danger” test – the government can suppress speech that it thought was dangerous (in this case, war protests)

• Late 1940s/early 1950s - Communism/Red Scare period –Smith Act of 1940: forbade advocacy of violent overthrow of government

Two Standards for First Amendment protection

• Strict scrutiny: To pass this test, the law or policy must be shown to serve a “compelling state interest” or goal, it must be narrowly tailored to achieve that goal, and it must be the least-restrictive means of achieving the goal

• Intermediate scrutiny: To pass this test, the law or policy must further an important government interest in a way that is “substantially related” to that interest. That is, the law must use means that are a close fit to the government’s goal and substantially broader than is necessary to accomplish that goal

Political Speech

• Brandenburg v. Ohio (1968): “Direct incitement” test: protects threatening speech, unless that speech aims to and is likely to cause imminent “lawless action”• Under this standard, most, if not all, of the sedition

convictions in the early to mid-20th century would have been overturned

Symbolic Speech

• Symbolic speech: Nonverbal expression, such as the use of signs or symbols, picketing, etc., benefits from many of the same constitutional protections as verbal speech• Texas v. Johnson (1989): flag burning outside of the 1984

Republican national convention was protected, symbolic political speech

• Congress passed Flag Protection Act of 1989 in response; SCOTUS held Act was unconstitutional

Symbolic Speech – Spending for Campaigns

• Balancing of public interest in honest and ethical elections with candidates and their advocates’ First Amendment rights

• SCOTUS has upheld individual candidates’ right to spend their own money in federal elections, but a POTUS candidate gives up that right if he or she accepts federal campaign funds (taxpayer money)

• Candidates must report contributions and spending to Federal Election Commission (FEC)

Symbolic Speech

• Citizens United v. Federal Election Commission (2010): Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they make seek to persuade the voting public through other means, including ads.

Hate Speech

• Hate speech: Expression that is offensive or abusive, particularly in terms of race, gender, or sexual orientation, is not protected by the First Amendment• Cross burning cases: Most recently, SCOTUS ruled that

Virginia could prohibit cross burning if there was an intent to intimidate; law was neutral because it did not engage in viewpoint discrimination. That is, ANY burning of a cross in a threatening context was illegal; therefore, the law was constitutional

Freedom of Assembly

• Two aspects of freedom of assembly:• Right to assemble – subject to reasonable time, place and

manner restrictions• Rights to parade, picket, protest• Generally permitted on public property, subject to t, p, and m

• Right to associate – to assemble with people of common interests

Freedom of Assembly

• Reasonable time, place, and manner restrictions permissible, as long as government does not favor certain groups or messages over others• antiabortion protestors not allowed to picket a doctor’s

home; court ruled that ordinance banning ALL residential picketing was content neutral and there was government interest in preserving the “sanctity of the home”

• KKK could be denied permit for march around a football stadium on game day

Freedom of the Press

• Prior restraint: government’s right to prevent the media from publishing• When applied to information concerning an ongoing trial,

prohibition on publishing is called a gag order• War on Terror

• Shield Laws: enacted to protect reporters’ confidential sources• In absence of shield law, SCOTUS held right to fair trial

preempted reporter’s right to protect sources. Brazenburg v. Hayes (1972)

Less Protected Speech and Publications

• Fighting Words: words, which by their very utterance, inflict injury or tend to incite an immediate breach of the peace• Difficult test to apply – case-by-case basis

Less Protected Speech and Publications

• Slander and libel: • Slander: spoken false statements that damage someone’s

reputation• Libel: written false statements that damage someone’s

reputation• Distinction between speech about a public figure and

“regular” people – actual malice standard for public figures. New York Times v. Sullivan (1964)

Less protected speech

• Commercial speech: government may regulate commercial speech if it concerns an illegal activity, if the advertisement is misleading, or if regulating speech directly advances a government interest and the regulation is not excessive

• Federal Trade Commission (FTC) regulates on-air (radio, TV) advertising

• Federal Communications Commission (FCC) regulates content and nature of on-air programming

Less protected speech

• Obscenity: “I know it when I see it.” -- Justice Stewart

Miller v. California (1973)• Miller test: Speech may be banned when, viewing speech

pursuant to local community standards,:• 1) speech appeals to the prurient interest;• 2) speech is patently offensive; and• 3) the work as a whole lacks serious literary, artistic, political,

or scientific value

--States may protect children from obscenity. Osborne v. Ohio (1991)

Freedom of Religion

• Establishment Clause: Congress cannot sponsor or endorse any particular religion (Balancing test: does prayer at a public high school football game constitute state sponsorship of religion? Does nativity scene on government property constitute state sponsorship of religion?)

• Free Exercise Clause: Congress cannot interfere in the practice of religion (Balancing of interests: public safety concerns versus snake handling in religious services; public safety versus Amish buggies on highways)

Freedom of Religion

• General policy of noninterference and government neutrality toward religion

• “Wall of eternal separation between church and state” – Thomas Jefferson (1802)

Establishment Clause – School Prayer

• Engel v. Vitale (1962): school-sponsored prayer violates Establishment Clause

• One-minute moment of silence for “meditation or voluntary prayer” in Alabama public schools struck down in 1985

• Benedictions or prayers at public school graduations violated Establishment Clause

• Elected student representative’s leading prayer at high school football game violated Establishment Clause

Aid to Religious Organizations

• Lemon test: a practice violated the Establishment Clause if it:• 1) did not have a “secular legislative purpose;”• 2) either advanced or inhibited religion; or• 3) fostered “an excessive government entanglement with

religion”

-- Lemon v. Kurtzman (1971)

Post-Lemon litigation

• Endorsement test: government action is unconstitutional if a “reasonable observer” would think that the action either endorses or disapproves of religion• Under this test, court upheld a nativity display on Rhode Island

governmental property

• “three plastic animals rule” – if baby Jesus is surrounded by Rudolph the red-nosed reindeer and other secular symbols, the overall display is sufficiently nonreligious to be permissible

• Ten Commandments cannot be posted in two Kentucky courthouses but could be displayed on monument outside of capitol in Austin, Texas

Free Exercise Clause –hundreds of cases…

• May Amish parents be forced to send their children to schools beyond 8th grade? (no)

• May religion serve as the basis for attaining conscientious objector status and avoiding the draft? (generally, yes, but with many qualifications)

• Is animal sacrifice as part of a religious ceremony protected by the First Amendment? (generally, yes)

• May Mormons have multiple wives? (no)• May the Amish be compelled to follow traffic laws and put

license plates on their buggies? (yes)• Are religious organizations subject to child labor laws? (yes)

Free Exercise Clause –hundreds of cases…

• May people be forced to work on Friday night and Saturday if those are their days of worship? (no)

• May a city levy licensing fees that target the selling of religious books? (no)

• Does the First Amendment protect distributing religious leaflets on public streets? (yes)

• Does the First Amendment protect religious meetings held in public parks? (yes, subject to time, place, and manner restrictions)

• May religious dress be regulated? (generally, no, but in some contexts [military], yes)

• Are all prison inmates entitled to hold religious services? (apparently, yes, but still an open question)

Second Amendment

• 2008 case struck down DC’s ban on handguns, while noting that state and local governments could enforce ownership restrictions, such as preventing felons or the mentally impaired from buying guns

• 2010 case incorporated Second Amendment to the states (struck down Chicago gun control ordinance)

Fourth 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.”

Searches and Warrants

• Under most circumstances, law enforcement must inform the court of “personal knowledge” of “probable cause” of specific criminal activity and outline the evidence that is the target of the search

When warrantless searches are permitted

• Persons gives consent• Search of an area in the immediate vicinity of an arrest• Items in plain view• Roadblocks, as long as all drivers are stopped• Containers in cars, if officer has probable cause to suspect criminal

activity• Passenger area of car and passengers • Areas where crime is in progress or where armed and dangerous

suspects are located• School lockers, with probable cause• Searches for weapons and/or to prevent destruction of evidence