CH. 5&6

CIVIL LIBERTIES & CIVIL RIGHTS

CIVIL LIBERTIES Civil liberties:

protections the Constitution provides against the abuses of government…

“policies designed to protect people against arbitrary or discriminatory treatment by government officials or individuals”

Constitution & Bill of Rights offer list of “competing” rights and duties interpretation by Supreme Court!

1st Amendment = most challenged and controversial

- Speech - Expression - Assemble

- Religion - Press - Petition

1ST AMENDMENT RIGHTS IN CONFLICTCongress restricting civil liberties during wartime:

Sedition Act of 1798

- Made it a crime to publish or say anything intentionally negative or false that painting U.S. Govt. & officials in negative character attempted to ward off any anarchy

Espionage and Sedition Acts 1917‒1918

- Made it a crime to publish or say anything intentionally negative or false that could potentially interfere with the U.S. military attempted to ward off any foreign “spies”

Smith Act 1940 & Internal Security Act 1950

- Made it illegal to advocate an overthrow of the U.S. Govt. through force or violence attempted to ward off threats to national security & communism

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1ST AMENDMENT CONFLICTSExamples:

• Religious displays on public property

• Is bilingual education constitutionally required?

• May private associations make their own rules concerning the right to “associate freely?”

• Balancing community sensitivities vs. personal self-expression

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CIVIL LIBERTIES1833 Supreme Court

- Bill of Rights only restricts the FEDERAL govt.

- state constitutions held their individual restrictions

* intentionally left up to the states to decide certain protections because founders never believed a Bill of Rights would exist!

14th Amendment (ratified 1868)

- DUE PROCESS & EQUAL PROTECTION clauses!

- states must honor certain protections in the Bill of Rights

- initially started with 1st Amendment

*speech, religion/churches, press

14TH AMENDMENT: APPLYING THE BILL OF RIGHTS TO THE STATES

• Due process of law

- no person can be deprived life, liberty, or property

- must follow a “proper process” in order to do so and determined under rule of law

• Equal protection of the law- All persons will be equally protected

• Selective incorporation

- certain “rights/freedoms” in the Bill of Rights that have required the states protect

- happened over time

- does NOT include 3rd (quartering of soldiers), 5th (grand jury indictments), 7th (jury trial in civil cases), 8th (ban on excessive bail and fines)

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1ST AMENDMENT: SPEECH & NATIONAL SECURITYPrior restraint:

Censorship & restrictions made in advance about

what may/may not be published

Schenck v. U.S. 1919

- Handing out leaflets urging the resistance of the draft during WWI

- Violating the Espionage Act?

- Pass the clear-and-present-danger test?!

Clear-and-present-danger test:

question of whether words and expressive speech create a “clear and present danger” of producing harmful actions to the nation’s security.

RULING:

Schenck’s actions created a threat to the nation’s security and could have potentially promoted a panic and riot

1ST AMENDMENT: SPEECH & NATIONAL SECURITYGitlow v. New York 1925

- Gitlow, a socialist, was distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form.

- Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force.

Question:

- Does the First Amendment apply to the states?

- Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?

Ruling:

-Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment).

- State may forbid speech and publication if they have a “tendency to result in action dangerous to public security,” even if there is no clear and present danger.

“Symbolic speech”: when young men burned their draft cards during the 1960s to protest the Vietnam War, the Supreme Court ruled that it was an illegal act for which they could be punished.

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Bettmann/CORBIS

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WHAT IS SPEECH?Forms of speech not

automatically given constitutional protection:

1. Libel

2. Obscenity

3. Symbolic Speech

4. False Advertising A Ku Klux Klan member uses his constitutional right to free speech to utter “white power” chants in Skokie, Illinois.

Tim Boyle/Newsmakers/Getty Images

1ST AMENDMENT: SPEECH

Libel:

written statement that defames (hurts a person’s character) an individual

* MUST PROVE THAT IT IS FALSE!

* MUST PROVE THAT IT WAS DONE MALICIOUSLY

Obscenity = NOT protected by the 1st Amendment!

- difficult to interpret WHAT “obscene” means

- protection of expression v. inappropriate influential exposure

- is left up to the state and local governments to interpret based off of “community standards”

1ST AMENDMENT: SPEECH

Symbolic Speech:

Acts that convey a political belief and/or message

Texas v. Johnson 1985

- burning American flag is protected symbolic speech!

1ST AMENDMENT: SPEECH

McConnell v. FEC 2002 (McCain-Feingold campaign finance reform -BCRA)

- prohibited CORPORATION and LABOR UNIONS spending of money on advertising INDEPENDENTLY (30 days of caucus/primary and 60 days general election)

Citizens United v. FEC 2010

- overturned/ruled the prohibition of corporations and labor unions advertising UNCONSTITUTIONAL!

1ST AMENDMENT:RELIGION

Wording of the first amendment with religion = CONFUSING!

- does not CLEARLY state the concept of “separation

of church and state”

Free Exercise Clause:

“Congress shall make no law prohibiting the free exercise of religion”

no law can prohibit/prevent free practice and exercise of a religion

Establishment Clause:

“Congress shall make no law respecting an establishment of religion”

government cannot declare or respect the establishment of an official religion

1ST AMENDMENT:RELIGION

Wall of Separation:

“separation of church and state”

ruling in which the government may not be involved in religion

Engel v. Vitale NO prayer in school!

Government involvement = CONSITUTIONAL if…

1. It has a strict secular purpose

2. The primary effect neither advances nor inhibits religion

3. It does not foster “excessive” government entanglement with religion

4TH AMENDMENT:SEARCHES & SEIZURES/ PRIVACY

Exclusionary Rule:

improperly gained evidence = MAY NOT be used in a criminal trial

Mapp v. Ohio

- broke in and searched Dolree Mapp’s home for a bombing suspect

- found no suspect, but instead arrested Mapp for obscene pictures in her house

* Judge/court order with a search warrant must be issued to search for specific items!

4TH AMENDMENT:SEARCHES & SEIZURES/ PRIVACY• You CAN be searched when you are being arrested… arrest also require warrants!

• You can be ARRESTED when…. you commit a crime in front of an officer OR there is probable cause that you have committed a serious crime!

Good-Faith Exception:

allows evidence that is gathered with good intention and a MINOR mistake may still be used in criminal trial

Public Safety Exception:

police can question an “unmirandized” suspect in the event of securing immediate public safety

Inevitable Discovery:

police can use evidence that would have been discovered inevitabley

4TH AMENDMENT:SEARCHES & SEIZURES/ PRIVACY

Terrorism & Civil Liberties

9/11 Patriot Act

- govt. can tap any phone use of suspected terrorists with court order

- govt. can tap internet with court order

- govt. can seize voice mail with court order

- govt. investigators can access grand jury indictment information

- govt. can detain illegal immigrants if seen as a security risk

- govt. can track money across borders (money laundering)

- govt. can increase penalties on terrorist crimes

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Inside a cell at the terrorist prison in Guantanamo, where Muslim inmates receive a copy of the Koran,a chess set, and an arrow pointing toward Mecca. p. 119

JOE SKIPPER/ Reuters/ Corbis

5TH & 6TH AMENDMENTS:SELF INCRIM. & RIGHT TO LAWYER

Miranda v. Arizona

- “mirandarized”

- “Miranda rights”

Gideon v. Wainwright

- “Gideon had a WainRIGHT to a Lawyer”

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2ND AMENDMENT:GUN RIGHTS

• District of Columbia v. Heller (2008)

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-

RULING:

• McDonald v. Chicago (2010)

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-

RULING:

** See HW assignment!!! Discussion will follow when analyzing court cases!Copyright © 2013 Cengage

COURT CASES:CONSTITUTIONAL UNDERPINNINGS

Gibbons v. Ogden (1824)

Question: Do the individual states have the right to regulate interstate commerce?

Yes or No? WHY?

Ruling : NO

Significance:

Only the national govt. can regulate trade among the states

Article 1 sec. 8

“The Congress shall have the power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.”

COURT CASES:CIVIL LIBERTIES

U.S. v. Lopez (1995)

Question:

Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?

Article 1 sec. 8

“The Congress shall have the power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.”

Lopez was charged with violating a federal criminal statute (law) facing jail and probation period.

Yes or No? WHY?

Ruling:

Yes. Gun possession in a school zone is not an economic activity with an effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.

COURT CASES:CIVIL LIBERTIES

U.S. v. Morrison (2000)

Question:

Christy Brzonkala = “raped” female student at Virginia Tech

Morrison & Crawford = accused football player rapists. Morrison was suspended for 2 semesters, but then had the punishment dropped. Crawford was not punished.

Brzonkala sued Morrison, Crawford, and Virginia Tech in Federal District Court, alleging that Morrison's and Crawford's attack violated 42 USC section 13981, part of the Violence Against Women Act of 1994 (VAWA), which provides a federal civil remedy for the victims of gender-motivated violence.

Does Congress have the authority to enact the Violence Against Women Act of 1994 under either the Commerce Clause or Fourteenth Amendment?

Article 1 sec. 8

“The Congress shall have the power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.”

Yes or No? WHY?

Ruling:

NO. Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that affected interstate commerce, nor did it compensate harm caused by the state.

***Significance:

Signifies the “devolution of federalism” in which states regained power to regulate

COURT CASES:CIVIL LIBERTIESWeeks v. U.S. (1914)

Wolf v. Colorado (1946)

Mapp v. Ohio

** See earlier in the Power Point for SIGNIFICANCE!!

COURT CASES:CIVIL LIBERTIESEverson v. Board of Ed. (1947)

Engel v. Vitale (1962)

** See earlier in the Power Point for SIGNIFICANCE!!

Lemon v. Kurtzman (1971)

Ruling:

Established the “lemon test” in which the 3 questions….