BELL RINGER

#140 Rights of the Accused

CIVIL LIBERTIES

TODAY WE WILL …OBJECTIVES

Discuss how the Bill of Rights has been applied to the states.

Identify key principles, terms and court cases that define our Freedoms of Religion & Speech and Due Process rights.

AGENDA

• Boston Bomber and Miranda article

• Slide/notes

• Quiz – CL - Ch. 18

HW:

1. Annotated Bib & Revised Source List

2. CR- Ch. 19 RQ’s

3. CL Court Cases Packet – due Monday 3/2

RIGHTS IN CONFLICT: BILL OF RIGHTS CONTAINS COMPETING RIGHTS

• Freedom of the press vs Right to fair trial• Sam Sheppard case

• US Government’s obligation to “provide for the common defense” vs freedom of the press

• Pentagon Papers case• Freedom of speech vs. preservation of public order

• Carl Kunz case

2. RIGHTS IN CONFLICT B/C WARActs of the US Congress restricting civil liberties during wartime (SC usually upholds these)

Sedition Act of 1789: after the French Revolution

• Crime to write, utter, or publish “any false, scandalous, and malicious writing” with the intent of defaming the president, Congress, or the government or of exciting against the government “the hatred of the people”.

• Basically you can’t bad mouth the Government

Espionage and Sedition Acts 1917 used in WWI

• Crime to utter false statements that would interfere with the American military, to send through the mails material “advocating or urging treason, insurrection, or forcible resistance to any law of the United States” or to utter or write any disloyal, profane, scurrilous, or abusive language intended to incite resistance to the United States or to curtail war production.

2. RIGHTS IN CONFLICT B/C WAR

Smith Act of WWII (1940)

• Illegal to advocate the overthrow of the U.S. government by force or violence

• Brandenburg v Ohio – any speech that does not call for illegal action is protected, and even speech that does call for illegal action is protected if the action is not “imminent” or there is reason to believe that the listeners will not take action

• Imminent = likely to occur at any moment

2. RIGHTS IN CONFLICT B/C WAR

2. RIGHTS IN CONFLICT B/C WAR

Internal Security Act of 1950, Korean War

• Required members of Communist Party to register with the Government.

Culture Conflicts

CULTURE CONFLICTS• Original settlement by white European

Protestants produced “America”

• Waves of immigration brought new cultures & conflicts

• Non-Christians offended by government-sponsored crèches at Christmas

• English speakers prefer monolingual schools

• Differences within cultural traditions

CHECK FOR UNDERSTANDINGThe First Amendment guarantees “the right of the people to peaceably assemble and to petition the Government for a redress of grievances.”

What does petition mean?

Why is it important that people be able to assemble freely?

What is freedom of association?

How does freedom of association relate to freedom of assembly?

APPLYING THE BILL OF RIGHTS TO THE STATES

ROLE OF THE 14TH AMENDMENT

• 14th Amendment addressed citizenship rights & equal protection of the law for former slaves

• Later used to apply these rights to the states

DUE PROCESS & EQUAL PROTECTION5th Amendment – rights of persons

Due process of law

• “No state shall …deprive any person of life, liberty or property, without due process of law”

Equal protection of the law

• “…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.”

• Ex: Gay marriage & Equal Protection

5. SELECTIVE INCORPORATION

Selective = process has been piecemeal & not a sudden change

Incorporation = some liberties in the BoR have been applied to the states using the 14th Amendment/due process clause

What about the 10th Amendment that reserves powers to the states? Shouldn’t states be able to pass their own restrictions?

GITLOW V. NEW YORK (1925)

• Anarchist calling for overthrow of the government w/“left wing manifesto”

• Convicted under a state criminal anarchy law• SC said that 1st Amendment applies to states &

states cannot deny freedom of speech• Protected through due process clause of 14th

Amendment

PALKO V. CONNECTICUT (1937)

• SC says that states must observe all “fundamental liberties”

• Provided test for determining which parts of Bill of Rights should be federalized - those which are implicitly or explicitly necessary for liberty to exist.

MCDONALD V CHICAGO (2010)

• 2nd amendment that allows the people to keep and bear arms applies to state governments, as well as federal gov.

CHECK FOR UNDERSTANDING

Which protections found in the Bill of Rights have been absorbed into the concept of due process b/c they are so fundamental to our understanding of liberty and justice?

FREEDOM OF SPEECH

7. WHAT IS SPEECH?

Forms of speech not automatically given constitutional protection:

1. Libel: written statement that defames the character of a person. (oral-slander)

2. Obscenity

• Average person, community standards• Prurient interest, offensive• Lacks serious literary, artistic, political, scientific• No redeeming social value

3. Symbolic speech

• Right to express opinion without actual use of words

• Ex: 1960s - burning your draft card to protest Vietnam War – SC ruled it illegal

4. False Advertising• A corporation/organization like a person

has certain First Amendment rights• Government can regulate advertisements

for harmful products & have narrow restrictions on less harmful products, if for a substantial public interest.

3. NO PRIOR RESTRAINT• Freedom from censorship, or rules telling a

newspaper in advance what it could publish.

• Even in cases of libel…

• Once a news paper has published an article or a person has delivered a speech, that paper or speaker has to take the consequences if what was written or said proves to be “improper, mischievous, or illegal”

4. CLEAR AND PRESENT DANGERSchenk v US (1919)

• What law was Schenk violating with his leaflets?• Ruling was that Schenck’s leaflets did create such

a danger• “like yelling ‘fire’ in a crowded theater”• Speech might be safe in peace-time but not war-

time

Test:

• The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

6. BRANDENBURG V. OHIO (1969)“We’ll take the [expletive] street later”

Supreme Court said:

• Any speech that calls for illegal action is protected if the action is NOT “imminent”

• No matter how offensive or provocative some forms of expression may be, this expression has powerful constitutional protections

• Today, hate speech is permissible, but not hate crime

9. LIMITATIONS TO SPEECH

Preferred Position

Right of Free Expression is preferred over many other rights

Prior Restraint

Censorship

Near v. MN (1931)

Imminent Danger: punishment for uttering inflammatory sentiments allowed only if an imminent danger to incite an unlawful act

Neutrality: Any restriction on speech, such as a requirement that demonstrations not disrupt people from exercise of their rights, must be neutral

• Must not favor one group over another

CHECK FOR UNDERSTANDING

Identify how each of the following influences the freedom of speech in the First Amendment:

• Prior restraint• Slander• Symbolic speech • Clear and present danger

FREEDOM OF RELIGION

CHURCH AND STATE

First Amendment has two clauses concerning religion:

• Free Exercise clause • Establishment clause

10. FREE EXERCISE CLAUSE“Congress shall make no law … prohibiting the free exercise [of religion.]”

• No interference, similar to speech• Law can’t discriminate based on religion

• Ex: Courts ruled that city of Hialeah, Florida cannot ban animal sacrifices by members of an Afro-Caribbean religion called Santeria. B/c killing animals is not generally illegal (hamburgers, chicken salad).

• Some cases very difficult to settle• Ex: Conscientious objection to war, military service

REYNOLDS V. UNITED STATES (1879)

“Congress shall make no law … prohibiting the free exercise [of religion.]”

Federal law prohibiting polygamy was challenged based on Free Exercise clause.

• Did the law violate the free exercise of religion?

Court said No, individual beliefs are no defense against the application of a general law to religious conduct.

The 1st Amendment does not protect religious practices that are judged to be criminal, such as bigamy.

• No religious exemptions from laws that bind all• Unanimous decision restricted polygamy

10. ESTABLISHMENT CLAUSE

“No national religion shall be established” or take any action that would show preferential treatment for one religion over another • Wall of Separation - gov. cannot be involved in religion

• Jefferson’s view• SC has more or less consistently kept

to this principle

ENGEL V. VITALE (1962)There may not be a prayer, even a non-denominational one, in public schools.

• Decision struck down state-sponsored prayer in school.

• Wallace v. Jaffree (1985) - Alabama’s moment of silence for “meditation or prayer” was struck down

ESTABLISHMENT CLAUSE

“No government involvement with religion at all, even on a non-preferential basis”• Lemon v Kurtzman (1971): state funding for private religious

schools is unconstitutional.• State funds to pay parochial teachers to give instruction in

secular subjects? • Aid to church-related schools must:

• Have a secular legislative purpose • Have a primary effect that neither enhances nor inhibits

religion• Not foster excessive entanglement between government

and religion

CHECK FOR UNDERSTANDING

What is the difference between the establishment clause and the free exercise clause?

Give an example of a Supreme Court decision for each.

CRIME AND DUE PROCESS

12. CRIME AND DUE PROCESSSearch & Seizure (4th Amendment)

• Search warrants

• Giving permission for a search

• Arrest

• “In plain view” and “under immediate control”

12. CRIME AND DUE PROCESSThe Exclusionary Rule

• Mapp v Ohio (1961)

• Illegally seized evidence can’t be used in court

• Good Faith Exception – evidence can be used when police relied in good faith on a defective search warrant

12. CRIME AND DUE PROCESS

Changing times:

• Confessions and self-incrimination

• Relaxing the exclusionary rule

• Terrorism & Civil Liberties

• Searches without warrants

CHECK FOR UNDERSTANDING

Suppose you were accused of a crime and faced the prospect of a large fine or going to jail.

What “process” would you expect to take place?

CLOSURE

Which rights do the following Supreme Court cases relate to

• Schenck v US (1919)• Brandenburg v Ohio (1969)• Miranda v. Arizona (1966)