Unit 5

Civil Liberties

Section 1: The Bill of Rights and Fundamental Freedoms

• BILL OF RIGHTS

Bill of Rights

1st 10 Amendments

Protect civil liberties

Framers believe this is imp. Job

of gov.Protects all US Citizens + most

aliens

Balancing Rights vs. Interest of Public Good

• Examples:• Freedom of assembly. You do NOT have the right to riot• Example: Freedom of press. Should press have right to

report on a criminal investigation if it threatens the accused’s right to a fair trial?

• Example: Right to bear arms. Does this mean anyone can own any weapon?

• How does the gov. try to balance individual rights with the public good?

• Pass laws• Courts use judicial review

Section 2: First Amendment Rights:

Freedom of Religion

The Establishment Clause

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

A. NO official religionB. NO favoring one religion over anotherC. We are too diverse for thisD. “separation between church and state”—T. Jefferson

Court Cases• RELIGION IN PUBLIC

SCHOOLS

• McCollum v. Board of Education

• A. Illinois• B. 1948• C. Religious instruction

program unconstitutionally established religion because it received official support

• RELIGION IN PUBLIC SCHOOLS

• Engle v. Vitale• A. 1962• B. Unconstitutional to

have any officially sponsored prayer in school, even if voluntary

• Other court cases• No Bible readings• No moments of silence

for meditation or prayer

• *STUDENTS ARE ALLOWED TO PRAY ON THEIR OWN AT SCHOOL!

• GOVERNMENT AID FOR RELIGIONS

• Lemon v. Kurtzman• A. Lemon Test• 1. Have a secular, or

nonreligious, purpose• 2. Neither advance nor

limit religion• 3. Not result in excessive

government involvement with religion

OYEZ—click on the links to read about the case

• McCollum v. BOE• Engle v. Vitale• Lemon v. Kurtzman

Freedom of Religion, continued

– Government Aid for Religion• Parochial schools—schools run by churches or religious

groups– Some believe gov. money should go to parochials

» Taxpayers» Tuition would be less—choice of schools

– Some believe gov. money should NOT go to parochials» Families choose it» $$$ would support religious education

– Currently—some money used for some services

• Ex: busing, special education teachers• LEMON TEST NOW USED!!!!!!!!!

Should any of

these be allowed?

“In God We Trust”

Nativity Scenes in front of

Government Buildings

Congress opening

session with prayer

Taxes and Religion

a. Property owned by churches is not taxed– For: it taxed, the gov. could limit the freedom of religion– Against: puts all tax burden on the non-exempt

b. Custom and Religion• “In God We Trust”• Nativity scenes• Opening Congress with prayer

• *all seen as OK—SC says they represent most Americans’ deeply held beliefs

The Free Exercise Clause

– “Congress shall make no law…prohibiting the free exercise of religion.”–A person can choose his/her religion and

beliefs–Religious practices can be restricted if• Threaten health and safety of others (Ex:

bigamy, vaccinations/medicine)

Section 3: 1st Amendment Rights:

Freedom of Speech and of the Press

Early Case

• *John Stubbs case: • 1. 1579 he wrote a book criticizing a proposed

marriage of Queen Elizabeth• 2. his hand was cut off

**United States—freedom of speech guaranteed. However, individual rights

must be balanced against other liberties.

Treason and Sedition

• Treason—act of aiding and comforting an enemy of the US• Sedition—the use of language that encourages people

to rebel against lawful gov.– Both of these can be debated, depending on point of view– Courts have had to balance individual rights vs. national

security

Alien and Sedition Acts

• 1789• Made it illegal to say anything “false, scandalous and

malicious” against the gov or its officials• Many arrested• Many felt this went against 1st Amendment• Expired in 1801

Clear and Present Danger

• Schenk v. United States• WWI• Use of US PS to

distribute leaflets to encourage men not to join the draft

• Schenk found guilty of Alien and Sedition Acts

OYEZ.ORG SCHENCK V. UNITED STATES

Prior Restraint

• stopping someone from expressing an idea or providing info

The gov. can not do this• Established in Near v Minnesota, 1931

(Click on this note to read about the case)• 1971—Pentagon Papers

– Court ruled The New York Times could publish this info that dealt with the Vietnam War

Trials– Trials• News reporters have used First Amendment guarantee

of a free press to avoid giving testimony about the identities of their news sources or about info they have discovered in their work• Courts have refused to accept the argument that the

1st Amendment protects media from naming their sources–Branzburg v Hayes»Reporters have to name their sources

–Shield laws: some states passed laws that allow reporters to protect the identity of their sources from state courts

OYEZ—click on the link to read about the case

• Branzburg v. Hayes

– Libel• Written defamation of a person

– Slander• Spoken defamation of a person

– Obscenity—something sexually indecent and highly offensive• Miller v California, 1973

– Obscenity is material» In which the major theme would be judged to appeal to indecent sexual

desires by the average person applying “contemporary community standards”

» That shows in a clearly offensive way sexual behavior not allowed by state laws; and

» That is “lacking serious literary, artistic, political, or scientific value.”

• ***Very hard to prove obscenity—people’s standards vary.

OYEZ—click on the link to read about the case

• Miller v. California

Licensing• Radio and TV have fewer 1st Amendment protections

against gov actions than do newspapers• They broadcast over airwaves owned by the public• Federal Communications Commission (FCC)—gives licenses

– Violence/sex during certain hours– TV Ratings System

• *with satellite and cable TV, things have changed over recent years– False advertising

• Can not give false or misleading advertisements– EX: can’t say a product has health benefits when it does not

Freedom of Speech and Individual Behavior

– Personal Conduct– The following 3 cases deal with symbolic speech• United States v O’Brien (1968)

– Burning draft cards was illegal– Men did this to protest the Vietnam War

• Tinker v Des Moines (1969)– Students had the right to wear black armbands to school in

protest of the Vietnam War

• 1990—court ruled that people can burn the American flag in protest—freedom of expression

OYEZ—click on the link to read about the case

• United States v. O'Brien• Tinker v. Des Moines

Hate Speech

• The expression of hatred or bias against a person, based on characteristics such as race, sex religion, or sexual orientation• Tough to enforce—however today, there are harsher

penalties for those who commit hate violence.

Section 4: Fundamental Freedoms

• Freedom of Assembly and Petition

Demonstrations and Protests

– These are very common• Equal rights• Abortion• Honoring certain groups or causes

– PURPOSE???• Persuade gov officials and others to pursue certain

goals

– These are protected by Bill of Rights– Gov can set boundaries to protect rights of others

Assembly and Public Property

– Can not block streets, be too loud, etc– For parades—must get a permit– Police could end protests if they get violent– End protests that could disrupt school activities– Some protests allowed, even if unpopular

• Skokie case (1978)– Skokie, Illinois– Neo-Nazi parade– Many in Skokie were Jews, including some who escaped the

concentration camps– Parade was allowed

• KKK rallies are allowed in not violent

OYEZ—click on the link to read about the case

• Skokie Case

Assembly and Private Property

– Protests are very restricted on private property– Lloyd Corporation v Tanner• 1972• Shopping mall• Protestors trying to pass out literature opposing

Vietnam War• Court ruled mall owners could not allow them to do so

OYEZ—click on the link to read about the case

• Lloyd Corporation v. Tanner

Section 5: Assuring Individual Rights: Protecting Civil Liberties

• Due Process:

• gov. duty to follow fair procedures set by law when carrying out gov. functions

• courts decide whether gov has acted with due process. In other words, courts determine whether gov uses its police power reasonably

2 types of due process

Procedural Due Process

• gov must apply a law fairly and act according to procedures and rules set by that law

• Ex: “Save Our City” wants to hold a demonstration of the city’s lax pollution law. Gov. says they can, but must be before 6am outside city limit. IS THIS DUE PROCESS???????

Substantive Due Process

• the principle that a law must be fair and reasonable. The right to substantive due process requires a court to consider the fairness of the law itself.

Due Process and the States– Fifth amendment: protected people from federal government

actions only (not from the states)– After Civil War (1860’s) this changed

• 14th Amendment: everyone born in the US is a US citizen and therefore has the right of due process (including freed slaves)– Added to this amendment are the words “the states may not deprive any person of

life, liberty, or property, without due process of law.”

• Gitlow v. New York (1925)—established that the states MUST respect the fundamental freedoms guaranteed by the Bill of Rights

• In short, the due process clause limits the governments police power—or its authority to promote and to protect the health, safety, and welfare of the people. This power is exercised primarily by state and local governments.– Ex: police officers have the police power to fight crime. However, they have to

work within the framework of the Constitution on things like search and seizure—getting a warrant

OYEZ—click on the link to read about the case

• Gitlow v. New York

Protecting People From Government Intrusion

• ***4th Amendment—“the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Security at Home• Police must follow a certain set of rules if they want

evidence to be used in a criminal trial• Search warrant—allows police to enter homes and search

for certain items– Judge will only issue if “probable cause” shown– If evidence collected without search warrant, evidence not allowed

» Exclusionary rule» Mapp v. Ohio (1961)—extended this to state trials

– Exceptions• Evidence ruled OK if the officer acted in “good faith”• No warrant needed to search through garbage• No warrant needed to search things “in plain view”

OYEZ—click on the link to read about the case

• Mapp v. Ohio

Personal Security

• 4th amendment prevents police from conducting unreasonable searches of people and their possessions• Police can’t search someone for no reason

– Exceptions• Court has allowed employee drug tests• Police do not need search warrant to search autos,

boats, etc– These can be driven away!

• Sobriety checks

Security and Private Communications

• 4th amendment protections have been extended to private conversations• Court used to allow wiretaps without warrants

(Olmstead v. United States, 1928)• 1967—this changed

– Court ruled that a warrant was needed for wiretaps

OYEZ—click on the link to read about the case

• Olmstead v United States

Student Rights

• School officials need “reasonable” grounds to search lockers, etc• New Jersey v. T.L.O

– 14 year old caught smoking– School officials searched purse and found marijuana– Court ruled school can search to guard students’ health and

safety and keep order

OYEZ—click on the link to read about the case

• New Jersey v. TLO

Protecting the Right to Privacy

– 1928—wiretapping was legal. – Justice Louis Brandies wrote for the minority

• Said it was wrong for the gov. to wiretap without a warrant

– 1955—Supreme Court reversed itself• Griswold v. Connecticut• Dealt with birth control being illegal• The Court said that such laws violated a married couple’s

“zone of privacy created by several fundamental constitutional guarantees.”

– Another example: 1973 Roe v. Wade• Abortion in the 1st 3 months

OYEZ—click on the link to read about the case

• Roe v. Wade

Section 6: Assuring Individual Rights: Rights of the Accused

*The Framers of the Constitution wanted to

guarantee that innocent people would not be wrongly convicted of

crimes

Writ of Habeas Corpus Bill of attainder Ex Post Facto

Laws Grand jury Self-incrimination

Explanations• Writ of Habeas Corpus

– Police must appear in court with the accused and show good reason to keep him or her in jail• • Bill of attainder

– The government may not pass laws directed at specific individuals– The United States v. Lovett (1946)

• • Ex Post Facto Laws

– The government may not pass laws that punish people for actins that were legal when they took place

• • Grand jury

– A person accused of a federal crime must be brought before a panel of citizens who decide if the government has enough evidence to try him or her on formal charges

• • Self-incrimination

– An accused person cannot be forced to proved evidence to support a criminal charge against himself of herself

– Miranda v. Arizona (1966)• Police must inform criminal suspects of their rights• Ernesto Miranda—confessed to rape after 2 hours of questioning• Confession ruled not allowed because he was not read his rights

OYEZ—click on the link to read about the case

• Miranda v. Arizona

Section 6: Assuring Individual Rights: Ensuring Fair Trials and Punishments

• ***Government MUST respect a person’s right to a fair trial and must act fairly when punishing people convicted of crimes

• ***Which parts of the Constitution requires the government to respect the rights of a fair trial??? The Fifth, Sixth, Seventh, and Eighth Amendments! These give us the right to a speedy and public trial, the right to a trial by jury, the rights to an adequate defense, and restrictions on trying a person twice for the same crime.

Right to a Fair Trial—5 items

– 1. Speedy Trial• 6th amendment• The time period between the filing of formal charges

and the start of a trial must be reasonable– Accused is not in jail for extended period– Evidence won’t be lost

• Extensions can be allowed by the judge to allow attorneys to gain more evidence• Accused may be released on bail that is not excessive

– Once trial starts, bail money is returned (as long as accused shows up!)

Right to a Fair Trial—5 items

– 2. Public Trial• Helps prevent abuses of the law• How about televising trials???

– OJ Simpson case» For: it’s the public’s right to witness trials» Against: this case was a circus! Everybody got to watch it

and it could influence the court proceedings!» *IN OJ CASE, THE JURY WAS SEQUESTERED!

Right to a Fair Trial—5 items– 3, Trial by Jury

• 6th Amendment, 7th Amendment, and Article III, Section 2 guarantees the right to a trial by jury

• Petit Jury—decides cases– 12– Trial must be held in the district in which the crime was committed– Jury is a cross-section of the registered voters– Can not be kept off jury because of race, sex, economic status, national origin, or religion

• Change of venue– Accused can ask for change of venue– They think they will not get a fair trial in their home town– EX: Timothy McVeigh—blew up a government building in Oklahoma City– His trial was moved to Denver

• Unanimous (all 12 jurors) verdicts needed to convict• Bench trial

– Accused can waive right of trial by jury– Judge decides the case– Judge can refuse this

Right to a Fair Trial—5 items– 4. Adequate Defense

• Sixth Amendment guarantees this right• People accused of crimes have the right to

– Be informed of the charges against them– Question witnesses against them in court– Present their own witnesses in court, and– Be represented by counsel—a lawyer

• 1932—Supreme Court ruled that the right to counsel was so critical in cases involving capital offenses that the government MUST provide lawyers for people who cannot afford them

• 1963 Gideon v. Wainwright– Gideon accused of breaking into a pool hall with the intent to commit a misdemeanor. – He was too poor to afford a lawyer, and requested that one be provided. – Judge refused. – He got 5 year sentence. – Gideon mailed a petition about his case to the Supreme Court.– Court said that Gideon’s 6th Amendment right was violated– government MUST provide lawyer for anybody who can’t afford one

• 1973: Court extended the right to counsel even further– Accused person cannot be sent to jail for any offense unless he or she has either been

represented by counsel or voluntarily given up that right

OYEZ—click on the link to read about the case

• Gideon v. Wainwright

Right to a Fair Trial—5 items– 5. Double Jeopardy—can not be tried twice for the

same crime• Fifth Amendment guarantees this right• Can not be found innocent in state court, then tried again in

federal court• Can not be found guilty, then put on trial again to get a harsher

penalty• Does NOT INCLUDE

– Situation when a person breaks both a state and federal law– If a jury does not give a verdict in 1st trial, you can be tried again

Fair Punishment—8th Amendment

– Cruel and Unusual Punishment– What is cruel and unusual punishment?

Whipping? Flogging? Quartering? Firing Squad? Electric Chair?

– Supreme Court says cruel and unusual punishment “is not fastened to the absolute but may acquire meaning as public opinion becomes enlightened by humane justice.”

– 1969—overcrowding in prisons included as cruel and unusual

Capital Punishment

– Is it cruel and unusual?– Court said it is not cruel and unusual until the 1970’s– Furman v. Georgia

• Court said capital punishment against the 8th Amendment• Too many death penalty cases were influenced by race or other

factors

– 1976 Gregg v. Georgia• Georgia came up with a new system for death penalty cases• 2 parts—both decided by the jury

– Conviction phase– Penalty phase

• Also, the Supreme Court automatically reviews all death penalty cases

OYEZ—click on the link to read about the case

• Furman v. Georgia• Gregg v. Georgia