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In the United States:

• The political culture is centered around

rights

• “I have my rights!”

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• Natural rights, Unalienable rights• Bill of Rights• States’ Rights• Sovereignty rights• Gun rights• Voting Rights• Civil Rights• Women’s Rights• Privacy Rights• Right against self-incrimination• Right to a lawyer• Right to remain silent• Right against illegal searches and seizures

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1.American Revolution was essentially over liberty—asserting rights

2.Animating spirit of the Constitution was the effort to reconcile personal liberty with social control

3.Concern with assertion and maintenance of rights has resulted in an adversarial culture

4.Long-standing distrust of authority reflects belief that human nature is depraved (original sin)

5.In that context, we can talk about civil liberties

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• Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation.

• These are limitations on the power of government to restrain or dictate how individuals act.

CIVIL LIBERTIES

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Civil Liberties vs. Civil Rights

• What’s the difference?– civil liberties adhere to individuals rather than

groups– negative vs. positive freedom

• civil liberties are about what government must not do; civil rights are largely about what government must do

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U.S. Constitution - what the government can do.

Bill of Rights - What the government cannot do.

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The Bill of Rights• The Bill of Rights consists of the first

ten amendments to the Constitution and includes specific guarantees such as free speech, free press, and religion.

• The proposed Bill of Rights was sent to the states for ratification and was approved in 1791.

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Amendment I

Freedom of religion, speech, press, and

assembly

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Amendment II

The right to bear arms

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Amendment II

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Amendment III

Prohibition against quartering of troops in

private homes

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Amendment IV

Prohibition against unreasonable searches

and seizures

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Amendment V

Rights guaranteed to the accused: requirement for

grand jury indictment; protections against double jeopardy, self-incrimination; guarantee of due process

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Amendment 5

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Amendment VI

Right to a speedy and public trial before an

impartial jury, to cross-examine witnesses, and to

have counsel

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Amendment VII

Right to a trial by jury in civil suits

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Amendment VIII

Prohibition against excessive bail and fines, and cruel and unusual punishment

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Amendment IX

Rights not listed in Constitution are

retained by the people

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Amendment X

States retain those powers not denied to them by the

Constitution or delegated to the national government

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Incorporation

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The Incorporation Doctrine• The Bill of Rights was designed to limit the powers

of the national government.• In 1868, the Fourteenth Amendment was added to

the Constitution and its language suggested that the protections of the Bill of Rights might also be extended to prevent state infringement of those rights.

• The amendment begins: "No state shall....deprive any person, of life, liberty, or property without due process of law."

• The Supreme Court did not interpret the 14th Amendment that way until 1925 in Gitlow v. New York.

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The Incorporation Doctrine

• In 1925, the Court ruled in Gitlow v. New York that states could not abridge free speech due to the 14th Amendment's Due Process Clause.

• This was the first step in the development of the incorporation doctrine whereby the Court extended Bill of Rights protections to restrict state actions.

• Not all of the Bill of Rights has been incorporated. For example the 3rd amendment has not been incorporated.

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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, and to petition

the government for a redress of grievances.

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First Amendment: Freedom of Religion

In this section we will look at each of these clauses of the First Amendment, the controversy and power struggles surrounding them and the way the Courts have interpreted and applied them.

The First Amendment states that: “Congress shall make no law

1.1. respecting an establishment of respecting an establishment of religionreligion,

2. or prohibiting the free exercise thereoffree exercise thereof;…”

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An Established Religion

means that the Government will create and support an official state church…with state religions, often:– tax dollars support that chosen church.– that church’s laws become the law of the

land.– the Nation’s leader usually appoints the

leading clerics.– other religions are excluded.

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Drafting the First Amendment

• They asked, “Should we establish a religion or not?”

• Thomas Jefferson wrote that there should be “a wall of separation between church and state.”

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Arguments for Religious Freedom

1. From the Holy Roman Empire to the Church of England history indicates that when church and state are linked, all individual freedoms are in jeopardy.

• If government is merely an arm of God what If government is merely an arm of God what power of government is not justified?power of government is not justified?

• What could happen to religious minorities if What could happen to religious minorities if government and religion were linked?government and religion were linked?

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Arguments for Religious Freedom

2. Many of the founding fathers believed that the spiritual purity and sanctity of religion would be ruined if it mixed with the worldly realm of politics.

If religion becomes part of the government, in Madison’s words, it results in “pride and indolence in the clergy; ignorance and servility in the laity; in both superstition, bigotry and persecution.”

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The Establishment Clause

• The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion.

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Separationists vs. Accomodationists

How high should the wall between church and state be?

Accomodationists contend that the state should not be separate from religion but rather should accommodate it, without showing preference.

Separationists argue that a high “wall” should exist between the church and state.

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The Supreme Court and the Establishment Clause

•The Supreme Court has held fast to the rule of strict separation between church and state when issues of prayer in public school are involved.

•In the early 1960s, the Court ruled that officially-led prayer and bible reading is unconstitutional.

•In Engel v. Vitale, (1962), the Court ruled that even nondenominational prayer could not be required of public school children.

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ENGEL V. VITALE

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy

blessing upon us, our parents, our teachers and our Country.

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ENGEL V. VITALE

“We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessing of the Almighty.”

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ENGEL V. VITALE

“…in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

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• Engel became the basis for several subsequent decisions limiting government-directed prayer in school.

• In Wallace v. Jaffree (1985), the Supreme Court ruled Alabama's law permitting one minute for prayer or meditation was unconstitutional.

• In Lee v. Weisman (1992), the court prohibited clergy-led prayer at school graduation ceremonies.

• Lee v. Weisman, in turn, was a basis for Santa Fe ISD v. Doe (2000), in which the Court extended the ban to school sanctioning of student-led prayer at high school football games.

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Lee v. Weisman

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Prayer in School

• In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a school graduation unconstitutional.

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Lee v. Weisman (1992)

• In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony.

• Daniel Weisman's daughter, Deborah, was among the graduates.

• Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restraining order in District Court - but was denied.

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Lee v. Weisman (1992)

• After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies.

• When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari.

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Question

• Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment?

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Conclusion

• Yes. • In a 5-to-4 decision, the Court held that

government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school."

• Such conduct conflicts with settled rules proscribing prayer for students.

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Lemon v. Kurtzman

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Lemon v. Kurtzman

• In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries.

• To be Constitutional the challenged law must

1. Have a secular purpose2. Neither advance nor inhibit

religion3. Not foster excessive

government entanglement with religion.

• In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

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The Free Exercise Clause• "Congress shall make no law.....prohibiting the free

exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion.

• This freedom is not absolute. • Several religious practices have been ruled

unconstitutional including:– snake handling– use of illegal drugs– Polygamy

• Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

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"See You at the Pole"

• Student participation in before - or after - school events, such as "see you at the pole," is permissible.

• School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event.

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FREE SPEECH

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First Amendment

• The First Amendment states that: “Congress shall make no law…

• …abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

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“make no law”The Courts have frequently wrestled with the

question of whether freedom of expression is an absolute. Does no mean no?

Supreme Court Justice Hugo Black believed that the words no law literally meant that Congress shall make no laws abridging the fundamental rights of the First Amendment.

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The Supreme Court Speaks:• “No” law means that Congress and the

states can make “SOME” laws• Case by case, the Court determined

what is protected speech and what is not

• The Court also decided what is “speech”– It happens to be “expression” and

symbolic speech– It happens to NOT be libel, slander,

obscenity

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What Types of Speech are Protected?

• The word speech in the First Amendment has been extended to a generous sense of "expression" –

• verbal• non-verbal• visual

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What Types of Speech are Protected?

Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including:– An example of protected symbolic speech would

be the right of high school students to wear armbands to protest the Vietnam War (Tinker v. De Moines Independent Community School District, 1969).

– flying a communist red flag– burning the American flag

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Flag Burning

• Burning the American flag is a form of protected symbolic speech.

• The Supreme Court upheld that right in a 5-4 decision in Texas v. Johnson (1989).

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A Balance• In their attempt to draw the line

separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like– Public order

– National security

– The right to a fair trial

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Standards and Tests to determine Constitutionality

• Preferred Position

• Prior Restraint

• Imminent danger– Clear and Present danger

• Neutrality

• Clarity

• Least-restrictive means

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Preferred Position• In Murdock v. Pennsylvania (1943), the

Supreme Court, in striking down a law requiring a license fee for canvassers and solicitors, held that “[f]reedom of press, freedom of speech, [and] freedom of religion are in a preferred position.”

• Thus, when the courts are in a position of balancing multiple fundamental rights, they often hold First Amendment rights in a “preferred position.”

• While this language has been dropped from modern opinions, its notion has not.

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Prior Restraint

• This violation of the First Amendment occurs when the government attempts to censor expression before its publication.

• Near v. Minnesota

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Near v. Minnesota (1931)• Near v. Minnesota is a monumental Supreme Court case,

regarding the five freedoms of expression, particularly FREE SPEECH.

• In this case the Supreme Court invalidated a state law in Minnesota that allowed public officials, or private citizens, to file a lawsuit against publishers that published a “malicious, scandalous and defamatory newspaper, magazine or other periodical," unless the publisher could prove it had good intentions and ends.

• The Supreme Court said that the state statute was unconstitutional, in violating both the First and Fourteenth Amendments.

• This gave publishers the right to publish (almost) anything they pleased, and the states unable to take that right away.

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Clear and Present Danger• Espionage Act (1917) • In World War I anti-German feelings ran

high. Anything German was renamed – such as Sauerkraut to Liberty Cabbage.

• This law curtailed speech and press during World War I.

• The law made it illegal to urge resistance to the draft, and even prohibited the distribution of antiwar leaflets.

• Nearly 2,000 Americans were convicted under the Espionage Act.

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Clear and Present Danger (continued)

• Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft.

• Engaging in speech that had a tendency to induce illegal behavior was not protected by the 1st Amendment.

• Advocacy of ideas is OK• Incitement is NOT OK

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Clear and Present Danger (continued)

• Holmes sought to allow limits on the First Amendment

• Justice Holmes defined the “Clear and Present Danger” test in the Schenck case.

• “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre, and causing a panic.” --Justice Holmes.

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Clear and Present Danger Cases

• Schenk v. United States (1919)

• Debs v. United States (1919)

• Abrams v. United States (1919)

• Gitlow v. People of New York (1925)

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Imminent Danger• Brandenburg v. Ohio (1969)• Pendulum swung back in the direction of

freedom• Threatening speech is protected unless the

government can prove that the advocacy is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”. 

– Is it “directed at inciting or producing imminent lawless action”?

– Is it “likely to incite or produce such action”?

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Standards and Tests to determine Constitutionality

• Preferred Position

• Prior Restraint

• Imminent danger– Clear and Present danger

• Neutrality

• Clarity

• Least-restrictive means

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Neutrality

• Restrictions can exist, but they cannot favor one group over another

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Clarity

• For a parade the rules must be clear

• To punish obscenity, there must be a clear definition of what it is

Wassily Kandinsky

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Least-Restrictive Means

• If press coverage threatens a person’s right to a fair trial, the judge may only do what is minimally necessary to avoid it, such as transferring the case to another town rather than issuing a “gag order.”

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Free Speech in School

• Brett Barber: International Terrorist Shirt http://college.hmco.com/polisci/janda/chall_dem/8e/instructors/talking/Ch15/Bretton_Barber_NPR.mp3

• 2003 T-shirt picturing President Bush• Assistant principal gave three choices: wear another

shirt, turn the shirt inside out, or go home.• He went home• With help from the ACLU, he took the District to court• FREEDOM vs. ORDER• The decision:• Nine months after his protest, a federal court in Detroit

ruled in his favor, declaring that worries about inflaming passions at the school lacked any basis “aside from the fact that the T-shirt conveyed an unpopular political message.” from The Challenge of Democracy by Janda

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LANSDALE, PA -- Dec. 13, 2005

• Chris Schiano's T-shirt said "International Terrorist" and had a picture of President Bush.

• A security guard at his high school north of Philadelphia told him to take it off. He refused.

• The principal says after hearing from the ACLU, school officials realized that the shirt, while potentially offensive, didn't violate the school's dress code. It had no references to sex, drugs, ethnic intimidation or explicit language.

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What speech is NOT protected?

•Defamation (libel, slander)

•Obscenity

•“Fighting Words” or Breach of the peace

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Libel and Slander

UNPROTECTED SPEECH

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Libel and Slander

• 1. Libel is a written statement that defames the character of a person.

• 2. Slander is spoken words that defame the character of a person.

• In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved.

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• Hulu - Family Guy: Libel is a Civil Matter

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Obscenity

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What is “obscene”?• Efforts to define obscenity have perplexed

courts for years. Public standards vary from time to time, place to place and person to person.

• Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it." The ambiguity of definition still exists and is becoming even more problematic with the Internet.

• No nationwide consensus exists that offensive material should be banned.

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Obscenity• The courts have consistently ruled that

states may protect children from obscenity (Osborne v. Ohio, 1991); while adults often have legal access to the same material.

• Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States, 1957) it has proven difficult to determine just what is obscene.

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Miller vs. California

• Miller concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.

• In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.

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"Three-Pronged Test" for ObscenityIn order to meet the definition of obscene material articulated in this case, three conditions must be met:

Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest

Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

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“Fighting words”or Breach of the Peace

• Chaplinsky v New Hampshire (1942)

• Jehovah’s Witness called a city marshal a “G_ _da_ _ed racketeer” and “a da_ _ ed fascist”

• Words that “inflict injury or tend to incite an immediate breach of the peace” do not convey ideas and are not protected

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Famous:

Harry S Truman, 1950“In a free country we punish men for crimes they commit but never

for the opinions they have.”

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Famous:• "I disapprove of what you say, but I will defend to

the death your right to say it". --Commonly attributed to Voltaire

• "The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate."

-- US Supreme Court Justice Oliver Wendell Holmes in United States v. Schwimmer (1929).

• “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

--Thomas Jefferson (1786)

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Free Press

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Free Press• When the first amendment was ratified in 1791, the

right of free press was included to make certain that written, printed, and oral communication were all protected by the first amendment.

• Freedom of press relates to the publication of free speech.

• The free press clause protects news-gathering organizations. The “press” includes newspapers, television, the internet.

• The press is often called “the fourth branch of government” because it helps to keep the other three branches in check. Without a free press, this would not be possible, and the democratic conditions which we are used to, and enjoy in the United States, would not exist.

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• In NYT v. United States (1971) the Court ruled that the publication of the top-secret Pentagon Papers could not be blocked.

• Prior Restraint – a government action that prevents material from being published.

• The Supreme Court has generally struck down prior restraint of speech and press (Near v. Minnesota, 1931).

Pentagon Papers

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Near v. Minnesota (1931)• Near v. Minnesota is a monumental Supreme Court case,

regarding the five freedoms of expression, particularly FREE SPEECH.

• In this case the Supreme Court invalidated a state law in Minnesota that allowed public officials, or private citizens, to file a lawsuit against publishers that published a “malicious, scandalous and defamatory newspaper, magazine or other periodical," unless the publisher could prove it had good intentions and ends.

• The Supreme Court said that the state statute was unconstitutional, in violating both the First and Fourteenth Amendments.

• This gave publishers the right to publish (almost) anything they pleased, and the states unable to take that right away.

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Hustler Magazine, Inc. v. Falwell (1988)• The Hustler case is an important Supreme Court

case in the history of FREE PRESS.• Hustler magazine published a liquor

advertisement parody about Reverend Jerry Falwell. It contained extremely offensive material.

• Since Falwell was a public figure he had to prove actual malice before the Supreme Court, which the court did not find.

• The court ruled that political cartoons and satire, such as this parody, DO have a place in society and in free press. Although the material was outrageous and offensive to some, parody’s have played a major role in public and political debate, and are protected by the first amendment.

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Second Amendment

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What does the 2nd Amendment do?

• Protects the right of the states to maintain collective militias?

• Protects the right of individuals to own and use guns?

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The Right to Keep and Bear Arms

• The 2nd Amendment states that • "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."

• This amendment has been hotly contested in recent years particularly since the 1999 shootings at Columbine High School.

• The Court has not incorporated this right, nor have they heard many cases about it.

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District of Columbia v. Heller• A landmark legal case in which the Supreme Court of

the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use in federal enclaves.

• A ruling on states has yet to be made. • It is the first Supreme Court case in United States

history to directly address whether the right to keep and bear arms is a right of individuals in addition to a collective right that applies to state-regulated militias.

• On June 27, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia

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The Right to Privacy• The Supreme Court has also given

protection to rights not specifically enumerated.

• The Court has ruled that though privacy is not specifically mentioned in the Constitution, the Framers expected some areas to be off-limits to government interference.

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The Ninth Amendment

• The Ninth Amendment, which protects rights not specifically enumerated in the Constitution, has been used by the Supreme Court to define the limits of government encroachment on personal autonomy.

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Right to Privacy

Implied in 1,3,4,5,14 amendments

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Griswold v. Connecticut

• In Griswold v. Connecticut (1965), the Court asserted that the Bill of Rights created a zone of privacy for the individual that gave the individual the right to make choices regarding sexual intercourse and reproduction.

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• In Roe v. Wade (1973) The Supreme Court ruled that a Texas law prohibiting abortion violated a woman's constitutional right to privacy.

• Since Roe, a number of other cases on abortion have been decided, in general they have limited abortion rights in some way.

The Right to Privacy - Abortion

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• Webster v. Reproductive Health Services (1989) - upheld fetal viability tests

• Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - Pennsylvania was allowed to limit abortions as long as they did not pose 'an undue burden' on pregnant women.

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The Right to PrivacyHomosexuality

• The Court has declined to extend privacy rights to protect homosexual acts.

• In 1986, the Court upheld a Georgia law against sodomy in a 5-4 decision in the case of Bowers v. Hardwick.

• However, in 1996, the Court ruled that a state could not deny rights to homosexuals simply on the basis of sexual preference.

• Texas v. Lawrence 2003 – overturned. • "Bowers was not correct when it was decided, and

it is not correct today."

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Public Opinion on Gay Rights Has Changed as Gay and Public Opinion on Gay Rights Has Changed as Gay and Lesbian Political Activism Has IncreasedLesbian Political Activism Has Increased

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The Right to PrivacyThe Right to Die

• In 1990, the Court heard the case Cruzan v. Director, Missouri Department of Health.

• In a 5-4 ruling, the Court rejected a right to privacy in such cases but argued that living wills, written when competent, were constitutional.

• In 1997, the Court ruled that there was no constitutional right to assisted suicide.

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Rights of Criminal Defendants

are the substantive due process rights and the procedural

guarantees provided by theFourth, Fifth, Sixth, and

Eighth Amendments

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Procedural Due Process and Substantive Due Process

• http://fora.tv/2006/10/14/State_of_Civil_Liberties#chapter_06

• http://fora.tv/2006/10/14/State_of_Civil_Liberties#chapter_07

~4:00

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Fourth Amendment• The 4th Amendment’s general purpose

– is to deny the government the authority to make general searches.

• The Supreme Court has interpreted the 4th to allow the police to search– The person arrested– Things in plain view of the accused– Places or things that the person could touch or

reach, or which are otherwise in the arrestee’s “immediate control.”

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Fourth Amendment• Provides protection against

“unreasonable” searches and seizures

• Requires search warrants-probable cause

• Allows “Stop and Frisk”-warrant less searches only with reasonable suspicion

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Exclusionary Rule

A policy forbidding the admission at trial of illegally

seized evidence.

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Weeks vs. U.S. (1914)

Established the “exclusionary rule”

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Fifth Amendment• The 5th Amendment

states that “No person shall be …compelled in any criminal case to be a witness against himself.

• So criminals cannot be required to take the stand in a trial.

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Miranda vs. Arizona (1966)

“you have the right to . . . . . . . . . .”

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Sixth Amendment• The 6th Amendment Guarantees a right to counsel. • In the past this meant that a defendant could hire an

attorney.• Since most criminals are poor they did not have counsel. • Gideon v. Wainwright (1963). • In Gideon, a poor man, was accused of a crime and denied

a lawyer. • The Court ruled unanimously that a lawyer was a necessity

in criminal court, not a luxury. The state must provide a lawyer to poor defendants in felony cases.

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Eighth Amendment• The 8th Amendment prohibits cruel and unusual

punishment.• The 8th is most often used in arguing death penalty cases.

Some of the major death penalty cases are:– Furman v. Georgia (1972) the Court ruled that the

death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner.

– Mckleskey v. Kemp (1987) the Court ruled that the death penalty – even when it appeared to discriminate against African Americans – did not violate the constitution.

– McKleskey v. Zant (1991) the Court made it more difficult for death row inmates to file repeated appeals.

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Eighth Amendment• The death penalty is not cruel

• The death penalty is not unusual

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Liberty vs. Order

• So You're Living in a Police State | The Daily Show | Comedy Central