81
UNIT 7: Civil Rights/Civil Liberties
Civil Liberties and Civil Rights
• “Americans are freer to think what we will and say what we think than any other people, and freer today than in the past.”
– Anthony Lewis
• “What’s the most important law at the Supreme Court? Five! The law of five! With five votes, you can do anything around here!”
– Chief Justice Earl Warren
• “We are under a Constitution, but the Constitution is what the judges say it is.”
– Chief Justice Charles Evan Hughes
Civil Liberties versus Civil Rights
• civil liberties involve restraining the government’s action against individuals
• civil rights are rights all individuals share as provided for in the 14th amendment, which guarantees equal protection under the law
5
FIRST AMENDMENT
Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.
Civil Liberties
• First Amendment of Bill of Rights
– religion, speech, press, assembly, petition
• Fourteenth Amendment
– due process clause
– incorporation—applying the Bill of Rights to the states
– incorporation began in 1897
– most significant parts of Bill of Rights have been incorporated
The Constitutional Basis for Our Civil Liberties
• Safeguards in the Original Constitution – Guarantee of Habeas Corpus
– No bill of attainder
– No ex post facto law
• The Bill of Rights – Function is to protect the rights of minority
groups against the will of the majority.
• The Incorporation Issue
Selective Incorporation
• Creators of the Constitution had to formulate the structure in which states would give up power to the federal gov’t. • What was their solution? The Bill of Rights • What case was the first judicial determination of the application of the Bill of Rights to the states? What did it say?
Barron v Baltimore 1833
Equality Concepts
• Legal equality: law is the same for everyone
• Equality of opportunity: everyone has same chance to use abilities, work hard, and succeed
• Equality of conditions: guarantee of certain level of material conditions; most controversial
Americans favor equality of opportunity over equality of conditions/outcomes…….but is this changing?
First Amendment Cases: Religion
• Prior to WWII it was common to have state governments require some degree of piety or patriotism from its citizens. Prayer and Bible reading were staples in American education.
• Minersville School District v. Gobitis- Jehovah’s Witnesses lose establishment case. Schools had right to insist students participate in rituals if purpose is to “secure effective loyalty to the traditional ideals of democracy”
WWII= Change
12
First Amendment cases: Religion
Establishment Clause Everson v. Board of Education (1947) prohibits laws that benefit religion - must be a “wall of separation” * incorporates Establishment Clause Engel v. Vitale (1962) school prayer Abington School District v. Schemp (1963) no bible reading – was a religious exercise by the
state
13
Establishment Clause
Lemon v. Kurtzman (1971)
*Lemon Test ( 3 part precedent)
1. policy must be secular
2. primary effect neither advances nor inhibits
religion
3. must avoid “excessive entanglement” of
government & religion
Wallace v. Jaffree (1985)
moment of silence- intent of the law was to restore prayer in school
14
Establishment Clause
Lynch v. Donnelly ( 1984)
religious displays ok if contain some secular
symbols (Rehnquist Ct & Ten Commandments 2005):
KY case finds display in courtroom lacks secular
purpose
TX case allowed outdoor display as a balance of
freedom and tradition)
Lee v. Weisman (1992)
graduation prayers are a coercion of religion
Santa Fe School District v. Doe (2000)
prayer at a high school football game is coercion
15
Establishment Clause
Rehnquist Court
- moved away from the “wall of separation” between religion & gov’t
- opinions are now allowing the encouragement of religion but not the coercion or the endorsement of it
16
Free Exercise
Minersville v. Gobitis (1940) overturned by
W. Va. V. Barnette (1943)
flag salute – cannot be forced to salute
(also applied to pledge of allegiance currently
in the Newdow case)
Church of Lukimi Babalau Aye v. Hialeah (1993) religious animal sacrifice & substantive due process
Freedom of Religion
• separation of church and state
• comes from the 1st Amendment
• establishment clause
contemporary conflicts:
• state aid to church-related schools
• school voucher programs
• prayer in schools
• posting the Ten Commandments
• teaching evolution
• religious speech
• free exercise
19
Freedom of Speech
• “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” -Oliver Wendell Holmes Jr.
20
Freedom of Speech
• Free speech has limits! – Libel and slander
• Libel=written defamation that falsely attacks a person’s good name and reputation
– New York Times v. Sullivan (1964)- must be both false and purposely malicious
• Slander= spoken defamation that falsely attacks a person’s good name and reputation
– Obscenity • But what is obscene?
– Symbolic speech intended to incite illegal action • When is this the case?
– Brandenburg v. Ohio (1969)- “clear and present danger” limited to when it is directed to inciting or producing imminent lawless action and is likely to produce it
– Cross burning example
21
Freedom of Speech
Non-protected Speech Schenck v. U.S. (1919) speech that presents a “clear & present danger” (EX: yelling “fire” in a theater) Gitlow v. New York (1925) Gitlow published a call for “a revolutionary
dictatorship of the proletariat”; subversive speech is not protected from government regulation; Gitlow lost but court…
* Incorporates freedom of speech to the states ** This began the process of incorporating Bill of Rights
to states
22
Freedoms of Speech
Non-protected Speech
Dennis v. U.S. (1951)
Smith Act and seditious speech to overthrow
government
Brandenburg v. Ohio (1969)
speech must be directly related to imminent
lawless action to be suppressed not just
advocacy of action (KKK case)
23
Freedom of Speech Non-protected Speech
Miller v. CA. (1973) test for obscenity in speech: If the community standards find that:
1. the average person would find the speech or work appeals only to prurient interests
2. the work is patently offensive 3. the work taken as a whole lacks serious literary,
artistic, political, or scientific value
24
Freedom of Speech
Non-protected Speech
Bethel v. Fraser (1986)
first amendment does not prevent
school officials from banning lewd
speech that would undermine the
school’s basic educational mission
25
Freedom of Speech
Protected Speech
includes written, spoken, symbolic speech & assembly and speech that you hate
Buckley v. Valeo (1976)
campaign contributions to own campaign are
free speech
Reno v. ACLU (1997)
struck down internet law which banned child
access to pornography as a violation of adult’s
first amendment rights
26
Freedom of Speech
Protected Symbolic Speech R.A.V. v. City of St. Paul (1992)
cross burning is not one of the
categories of speech that can be limited
Tinker v. Des Moines (1969)
student silent protest with armbands is
not disruptive to the educational
process
27
Freedom of Speech
Protected Symbolic Speech
Texas v. Johnson (1989)
flag burning is protected under this
amendment (Court ruled on it twice)
Schenck v. Pro Choice Network (1997)
floating buffer zones around abortion clinics
offend free speech
28
Second Amendment
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.
29
Second Amendment
U.S. v. Miller (1939)
registration of sawed-off shotguns does not
violate the Second Amendment
Printz v. U.S. (1997)
federal government (via Brady Bill)
cannot compel states to administer a
federal regulatory program
(background check) – really a federalism
issue
30
Third Amendment
No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
* Never been the subject of a Supreme Court
decision except in support of the 9th Amendment in Griswold v. Conn.
“What does this have to do with birth control?”, you might ask….that is an excellent question.
31
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; and no warrants shall issue but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
32
Fourth Amendment Questions
What is probable cause ?
When is a warrantless search allowed ?
What is a reasonable search ?
What the exclusionary rule?
33
Fourth Amendment
Probable Cause is where the facts & circumstances within an officer’s knowledge , and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.
must be decided by a neutral magistrate
must describe in detail the place , person & things
34
Fourth Amendment
Reasonable expectation of privacy - upheld constitutionally and generally includes the physical body, the home & immediate area around it and the office. Generally governs searches under the fourth amendment.
Reasonable searches would be with a warrant or without a warrant if there is probable cause.
35
Fourth Amendment
What types of searches could be warrantless reasonable searches ?
- sobriety checkpoints
- border crossings / airports
- drug testing
- student searches
- consent searches which must be
authorized and not coerced
36
Fourth Amendment
When is a warrant needed? - an arrest in a person’s home - search of a home or office When is a warrant not needed? (warrantless
search) - search incident to lawful arrest - plain view – visible evidence - hot pursuit – follow into building - automobiles – less expectation of privacy - exigent circumstances - emergency
37
Fourth Amendment
The exclusionary rule was defined in the case Weeks v. U.S. (1914) which said that if evidence violated the Fourth Amendment and was illegally seized it could not be admitted at trial.
- this continues to be controversial as
can be seen in some Supreme Court
interpretations
38
Fourth Amendment
Expectation of Privacy
Katz v. U.S. (1967) - there can be no use of wiretaps without a warrant – even in a phone booth… this overruled Olmstead v. U.S. (1928) – 4th Amend. Protects the people (Katz) not the place (phone booth)
(Current Issue: cell phones & Patriot Act – are the ‘people’ protected?)
39
Fourth Amendment Warrantless Searches
• Wolf v. Colorado (1949) - *Incorporated no unreasonable search & seizure clause
Mapp v. Ohio (1961) – must have probable cause or evidence can be excluded (*Incorporated the exclusionary rule)
Terry v. Ohio (1968) – stop & frisk search for weapons is allowed
Minnesota v. Dickerson (1993) – frisk also allowed for contraband
40
Fourth Amendment
Warrantless Searches Chimel v. CA (1969) – search incident to
arrest is limited to area under the person’s immediate control in ‘search incident to arrest’
U.S. v. Leon (1984) – police can search on “good faith” that info given for probable cause is correct (good faith exception)
New Jersey v. T.L.O. (1985) – schools only need reasonable suspicion not probable cause for a search
41
Fourth Amendment Warrantless Searches (drugs)
Skinner v. Railway Laborers (1989) – federal transportation workers can be drug tested due to assurance of safety of railroads
* Chandler v. Miller (1997) – but not election candidates
Vernonia v. Acton (1995) – student athletes can be tested / safety/ diminished expectation of
privacy
Potowatamie v. Earls (2002) – all student activities participants – diminished expectation
of privacy
42
Fourth Amendment
Warrantless Searches
U.S. v. Ramirez (1998) – “good faith” exception to the “knock” rule
Vehicle Searches
U.S. v. Ross (1982) – with probable cause to suspect drugs/contraband may search entire car (the automobile exception)
43
Fourth Amendment
Vehicle Searches
CA. v. Acevedo (1991) – diminished expectation of privacy for cars– also search of container in trunk is allowed with probable cause
Maryland v. Wilson (1997) – can search passengers
Wyoming v. Houghton (1999) – can search personal items
44
Fourth Amendment
Vehicle Searches
Knowles v. Iowa (1998) – search not allowed w/out arrest or probable cause
2005: Illinois v. Caballes – drug dogs & traffic stop
Public Vehicle Searches
Fl v. Bostick (1991) – ok to search passengers luggage with consent
Bond v. U.S. (2000) – manipulation of luggage is not ok
45
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of an indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger; not shall anyone be subject for the same offense to be twice put in jeopardy life and limb; nor shall be
46
Fifth Amendment
Compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
47
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy & public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have
48
Sixth Amendment
compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
49
Fifth & Sixth Amendments
What constitutes self-incrimination?
What is covered under due process ?
Can a trial be too speedy & public to be fair?
How must you be informed of charges ?
What constitutes right to counsel ?
50
Fifth & Sixth Amendments
Escobedo v. Illinois (1964) – information obtained unlawfully in an interrogation (ie. Coerced confession) cannot be used in court
Miranda v. Arizona (1966) – set procedural safeguards after arrest (“you have the right to remain silent…”)
Davis v. U.S. (1994) – request for lawyer must be clear
51
Fifth & Sixth Amendments
Dickerson v. U.S. (2000) – applies Miranda to custodial interrogation in federal & state-Miranda may not be overruled by act of Congress
Missouri v. Seibert (2003) – ok to admit statements made before Miranda warning if made again after warning
Kelo v. New London (2005)– eminent
domain seizure for ‘public good’
52
Fifth & Sixth Amendments
Powell v. Alabama (1932) - * Incorporated right to counsel in capital cases
Gideon v. Wainwright (1963) – overturned Betts v. Brady and gave right to counsel for all felony cases – *Incorporated right to counsel in felony cases to states *in forma pauperus
Korematsu v. U.S. (1944) – during wartime gov’t may take extreme measures (that deny due process)
Sheppard v. Maxwell (1966) – if a judge does not have control of the courtroom there cannot be a fair trial ( ‘The Fugitive’)
53
Seventh Amendment
In suits in common law, where the controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be reexamined in any court of the Unites States other than according to the rules of common law.
54
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
55
Eighth Amendment Cruel & Unusual Punishment
(Death Penalty)
Robinson v. CA (1962) - * Incorporates the cruel & unusual punishment clause
Furman v. GA (1972) – application of the death penalty in GA is cruel & unusual (all states suspend death penalty for four years)
Gregg v. GA (1976) – arbitrary application of the death penalty corrected – penalty re-established in most states
56
Eighth Amendment Cruel & Unusual Punishment
(Death Penalty)
Buchanan v. Angelone (1998) – mitigating
circumstances & the death penalty – absence of jury instruction on mitigating circumstances does not violate 8th amendment
Atkins v. Virginia (2002) – prohibits death penalty for mentally retarded
Roper v. Simmons ( 2005) – prohibits death penalty for those 18 years of age & under
Ninth Amendment
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
* The Right to Privacy
Ninth Amendment
Unenumerated Rights
- those not specifically listed in the Bill of Rights
- those recognized through Supreme Court
decisions such as
* right to privacy (Griswold & Roe)
* right to interstate travel (Heart of
Atlanta Motel)
* right to vote
* freedom of association
Ninth Amendment
- sometimes drawn (implied ) from other
enumerated rights
ie: some aspects of right to privacy are
found in the 3rd, 4th & 5th
amendments
- through judicial interpretation : vague language that invites judges to rely on their own ideas of fairness rather than the law
Ninth Amendment
Right to Privacy Griswold v. Conn. (1965) struck down 1879 birth control law Supreme Court recognized a right to marital privacy under the 3rd, 4th, 5th which created zones of privacy ( these amendments had penumbras or shadows that emanate implied rights to others & the 14th amendment applies this to states
• “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
-Chief Justice William O. Douglas
Griswold v. Connecticut
Ninth Amendment
Roe v. Wade (1973)
struck down Texas abortion law that
said life begins at conception - tried
unsuccessfully to get an injunction
under the 1st ,4th, 5th, 9th & 14th
amendments – case went to S.C. who
said Texas law was too broad
Ninth Amendment
Court believed there was a compelling
state interest at some point so the trimester doctrine was contained in the opinion
* 1st trimester – abortion is the
exclusive right of a woman &
her physician
Ninth Amendment
2nd trimester & further – states may regulate in ways that are reasonably related to maternal health 3rd trimester – state has power to regulate and prohibit abortion except when necessary for the life and/or health of the mother *Rehnquist does not recognize right to
privacy
Ninth Amendment
Webster v. Reproductive Health Services (1989) - upheld a state’s ban on use of public facilities or employees for abortions - state can require viability testing after 20 weeks - Court did not rule on when life begins and the right to counseling - refused to overturn Roe
Ninth Amendment
Planned Parenthood of S.E. PA v. Casey
(1992)
- under stare decisis Roe’s essential holding was affirmed
- the state’s interest in potential life is affirmed through 24 hr waiting period, parental consent for minors, & a judicial bypass
- statute requiring husband consent is an undue burden
Ninth Amendment
Gonzalez . Carhart
(2006)
- Congressional ban on partial birth abortion is constitutional
- Some saw this as a shift by the Court toward restricting abortion rights (Alito replaces O’Connor)
Ninth Amendment
Unborn Victims of Violence Act 2004 (Laci and Connor’s Law)
- 2 charges can be filed against someone who murders a pregnant mother
- Contains a provision which bans charging a woman and her abortion doctor
- Many pro-choice lobbyists are adamantly opposed
- Many pro-life lobbyists point out the inherent logic contained in the act.
Ninth Amendment
Bowers v. Hardwick (1986) - challenged Georgia’s sodomy law as a violation of the right to privacy - Court did not agree with this use of the 9th amendment and upheld the Georgia law Lawrence v. Texas (2003) - Court overturned Bowers & the Texas law but did not essentially endorse the right to sodomy under the 9th amendment -Scalia’s dissent and gay-marriage
prediction
Ninth/Fourteenth Amendment
Right to Die Vacco v. Quill (1997) - state’s prohibition on assisting suicide does not violate the 9th or 14th amendment Cruzan v. Mo. Department of Health (1990) - Due Process does not require states to accept family members decisions w/out patient informed consent
Fourteenth Amendment
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the states in which 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,
Fourteenth Amendment
Liberty, or property without due process of law; nor deny to any person within it’s jurisdiction the equal protection of the laws.
Due Process Clause
Equal Protection Clause
Fourteenth Amendment
Plessy v. Ferguson (1896)
separate can be equal
Brown v. Board of Education (1954)
separate is not equal in educational
facilities
Heart of Atlanta Motel v. U.S. (1964)
used interstate commerce clause to
apply the federal law to hotels, motels, etc in
the states
Fourteenth Amendment
Loving v. VA (1967)
state laws prohibiting interracial
marriages violate the due process &
equal protection clauses
Regents of CA v. Bakke (1978)
affirmative action quota system @ the
medical school violated the equal
protection clause – ethnicity could be
considered for admission under the clause
Fourteenth Amendment
• Grutter v. Bollinger 2003
use of racial preference for diversity in U. of
Michigan law school is allowed since it is only
a consideration factor
• Gratz v. Bollinger 2003
automatic awarding of points for racial
preference is not allowed – similar to the
quota system rejected in Bakke
Fourteenth Amendment
United States v. VA (1996)
VMI’s exclusive male policy (gender
discriminationviolates the Equal
Protection Clause
Fourteenth Amendment
Sexual Harrassment : Title IX
Davis v. Monroe Board of Ed. (1999)
school boards can be held accountable
if they do not have an active policy
for student to student harassment
Gebser v. Lago Vista School Dist (1998)
same accountability for teacher to
student harassment
Fourteenth Amendment
Sexual Harassment: Title VII
Faragher v. City of Boca Raton (1998)
an employer is responsible for actions
of a supervisor – creation of hostile
environment: supervisor/employee
Oncale v. Sundowner Offshore (1998)
same as above for employee/employee
and same sex
Fourteenth Amendment
Incorporation
The application of the Bill of Rights and federal laws to the states
Development in Court
* Barron v. Baltimore (1833)
Court said Bill of Rights restrained
only federal government – not states
Fourteenth Amendment
* Gitlow v. New York (1925)
Court relied on the 14th Amendment &
said states could not abridge the
freedoms protected by the 1stAmendment
(and eventually most of the amendments
in the Bill of Rights)
* Known as the Incorporation Doctrine – HAS BEEN APPLIED ON A CASE-BY-CASE
METHOD KNOWN AS SELECTIVE INCORPORATION
Fourteenth Amendment
Amendments, or parts, that are still not incorporated:
- 2nd Amendment entirely
- 3rd Amendment entirely
- 5th Amendment – right to a grand jury
- 7th Amendment – jury trial in civil cases
- 8th Amendment – excessive bail & fines
