Ch. 5: Civil Liberties

Ch. 5: Civil Liberties Unit VI: 5-15%

I. Civil Liberties and Civil Rights A. Sources of Protection • The Constitution • No ex post facto laws or bills of attainder, habeas corpus • Bill of Rights, and subsequent amendments • Guarantee of rights and liberties • Legislation • Civil Rights Acts of 1964 and 1968, Voting Rights Act of 1965 • Court decisions • Brown v. Board, Roe v. Wade • State constitutions

B. Limits of Government Nature of Civil Liberties: • Not absolute: they may be exercised so long as they do not infringe on the rights of others • Balancing test: courts balance individual rights and liberties with society’s need for order and stability To whom are they guaranteed? • Most rights and liberties are granted to all in the U.S. regardless of citizenship • Exceptions: non-citizens may not vote, serve on juries, stay in the U.S. unconditionally, or hold public office or certain jobs

C. Impact of Federalism Bill of Rights were intended as restrictions on the national government, not the States (Barron v. Baltimore, 1833) 14th Amendment modified the Constitution • Due Process Clause means that no State can deny to any person basic rights and liberties. This clause bans states from denying life, liberty, or property without due process of law. Freedom of speech, for example, is a “liberty,” therefore states cannot deny freedom of speech without due process of law. • Protections set out in the Bill of Rights are also covered by the 14th Amendment and so apply against States (“process of incorporation”) • The “total incorporation” view would apply all of the provisions of the Bill of Rts. to the states. It argues for nationalization of the BOR. • The “selective incorporation” view would apply only some of these provisions, and would do so on a gradual, case-by-case basis over time. • Gitlow v. NY, 1922: • Court upheld conviction of Gitlow (a communist), but added that states may not deny freedom of speech and press, protected by the 14th A. Due Process Clause

3) Selective Incorporation Subsequent cases nationalized the following parts of the BOR on a selective incorporation basis: • Assembly (1st) • Petition (1st) • Religion (1st) • Right to bear arms (2nd) (McDonald v. Chicago, 2010) • Search and seizure protections (4th) • Self-incrimination (5th) • Double jeopardy (5th) • Right to counsel (implied by 5th – Miranda; stated in 6th) • Right to bring witnesses (6th) • Right to confront witnesses (6th) • Protection against cruel and unusual punishment (8th) Which rights must states uphold? The Palko test (Palko v. CT, 1937) tells us that any right that is so important that liberty would not exist without it must be upheld by states. All provisions of the BOR except Amendments 3, 7, and 10 as well as the grand jury requirement of the 5th have been nationalized

4) 9th Amendment • Declares there are rights beyond those expressed in the Constitution (the “enumerated” rights) • Examples of “other” rights protected by the 9th Amendment: • Privacy (Griswold v CT, 1965) • Travel • Freedom of Association (Boy Scouts of America v. Dale, 2000 – Boy Scouts can ban homosexuals from being scout leaders via Amendment 1 and 9) • Homosexual conduct (Lawrence v. TX, 2003: using the right of privacy, this decision struck down a TX law that banned sodomy. It reversed the decision of Bowers v. Hardwick, 1986, which upheld a Georgia law banning sodomy.)

II. The 1st Amendment: Free Expression • Guaranteed by the 1st and 14th Amendments for spoken, written, and other forms of communication to ensure open public debate of ideas, especially unpopular views • “freedom for the thought that we hate” (Holmes) • Belief is most protected, action can be most restricted, but speech falls somewhere in between

A. Historic Tests used by courts to determine if speech is protected • Bad tendency doctrine • State legislatures, not the courts, should generally determine when speech should be limited • Speech can be limited when it might lead to harm/illegal action. EX: university speech code banning “racially abusive” speech would be constitutional. • A restrictive test. • Clear and present danger doctrine. • Schenck v. U.S., 1919. Case involved a man who was urging others to avoid the draft during WWI. Upheld, however: Speech can be suppressed only if there is an imminent threat to society (fire in a crowded theater). • University speech code here would be unconstitutional because there is no imminent threat. • Preferred position doctrine. • Free speech is of utmost importance and should thus occupy a “preferred position” above other values; gov should virtually never restrict it. • University code would thus be unconstitutional

B. Non-protected speech • Libel and slander (NY Times v. Sullivan, 1968) • Obscenity (Miller v. CA, 1973) • “fighting words:” speech that leads to violence can be restricted. • Commercial speech is subjected to more regulation than political speech • Sedition: • In the past, could be mere criticism of the government (Alien and Sedition Acts) • Smith Act, 1940: banned advocacy of overthrowing the government (upheld: Dennis v. U.S., 1951) • SCOTUS narrowed the definition even further when it stated that sedition was prohibited only when: • There is imminent danger of an overthrow, and • People are actually urged to do something rather than merely believe something (Yates v. U.S., 1957)

C. Protected Speech • Prior Restraint: Blocking speech before it is given (or published) • Presumed by courts to be unconstitutional • In the Pentagon Papers case, the court refused to impose prior restraint: the revelations may have embarrassed the gov, but did not endanger national security • Clarity: Speech restrictions cannot be written in too vague a manner, they must be clear to the average person • Least-restrictive means: Laws cannot restrict speech if there are other means to handle the problem. (no gag orders unless necessary for fair trial) • Centrality of political speech: given special protection because of its importance in a democracy. (Are corporations “people?”) • McCain-Feingold 2002 (BCRA) placed restrictions on electioneering communications • Essentially overturned by Citizens United v. FEC, 2010, which removed restrictions on corporations and unions to give money to campaigns, “political expression” protected by 1st and 14th A. • Symbolic speech • Between speech and action. Generally protected. • U.S. v. O’Brien, 1968: Texas v. Johnson, 1989 Snyder v. Phelps, 2010 • Tinker v. Des Moines, 1969: U.S. v. Eichman, 1990

D. Freedom of the Press • Right of access: Generally granted to the press • “sunshine laws” require agencies to open their meetings to the public and press • FOIA: Freedom of Information Act (1966) allows public access to government files. • Electronic FOIA (1996) requires agencies to put files online. • Executive privilege :Right of presidents to withhold information from Congress or the courts. • U.S. v. Nixon, 1974: • Shield laws: protect reporters from having to reveal sources • Defamation: NY Times v. Sullivan • Obscenity: Miller set 3-part test: • Community standards must be violated • State obscenity laws must be violated • Material must lack serious literary, artistic, or political value. • Student press: Hazelwood v. Kuhlmeier, 1988

10. Regulation of Electronic Media • Radio and TV must comply with FCC regulations to get license • FCC restricts use of obscene words • Communications Decency Act (CDA) 1997, struck down by Court • Ashcroft v. ACLU, 2002:

E. Freedom of Assembly and Petition Freedom of Petition • Right to petition the gov for redress of grievances • Constitutional justification for lobbying • Also provides constitutional basis for freedom of association (2 types): • Political association (parties, interest groups, and PACs) • Personal association (private clubs) Boy Scouts v. Dale, 2000 • Limited by the Hatch Act for federal employees (limits their political activities) • Limited by restrictions on campaign contributions, but Court struck down limits on spending in Buckley v. Valeo and on contributions in Citizens United v. FEC Freedom of Assembly • Government may regulate the time, place, and manner of assemblies • Rules must be specific, neutral, and equitably enforced • Applies to public, not private, places

III. Freedom of Religion Protected by the 1st and 14th Amendments: Prohibits an establishment of religion (Establishment Clause) Any arbitrary interference by the government in the “free exercise of religion” (Free Exercise Clause) Article VI bans religious tests and oaths as a qualification to hold public office

Separation of Church and State The Establishment Clause. Basic meaning: Government may not establish an official religion. • Most challenges to the Establishment Clause deal with religion and education • Pierce v. Society of Sisters, 1925 • Everson v. Board of Ed, 1947 (NJ School Bus Case)

Religion and Education • Release Time • Zorach v. Clauson, 1952 • Prayers and the Bible • Engel v. Vitale, 1962 • Basis: the government must “maintain strict neutrality, neither aiding nor opposing religion” • Abbington v. Schempp, 1963 • Epperson v. Arkansas, 1968 • Stone v. Graham, 1980 (10 Commandments in school) • Wallace v. Jaffree, 1985 (moment of silence law) • Lee v. Weisman, 1992 (graduation prayer) • Santa Fe School District v. Doe, 2000

D. Student Religious Groups • E. Aid to Parochial Schools • States give aid to private schools for transportation, books, standardized testing, lab equipment, etc. • Reasoning: • Schools enroll large numbers of students • Double burden of parents financially • Schools devote time to secular subjects • (Zelman v. Simmons-Harris, 2002) • Equal Access Act of 1984 • Any public school that receives federal funds must allow student religious groups to meet in school as other clubs • Westside Community Schools v. Mergens, 1990

F. The Lemon Test • Court uses to determine the legitimacy of aid (Lemon v. Kurtzman, 1971) • Purpose must be secular • It may neither advance nor inhibit religion • It must avoid “excessive entanglement of government and religion” G. Other Establishment Clause Cases: • Seasonal displays cannot endorse Christian doctrine, but can include religious objects if non-religious objects are featured • Prayer in Congress (Marsh v. Chambers) Town of Greece v. Galloway, 2014: “Establishment Clause was never meant to prohibit legislative prayer, which created the proper deliberative mood and acknowledged religion’s role in society”

Free Exercise Clause Guarantees each person the right to believe whatever they choose in matters of religion Does not give the right to violate laws, offend public morals, or threaten the health, safety, or welfare of the community Distinction between belief and action

Religious Practices that have been restricted: Religious practices that have been permitted: • Reynolds v. U.S., 1879 • Jacobson v. Massachusetts, 1905 (vaccination laws) • Welsh v. U.S., 1970 (draft) • U.S. v. Lee, 1982 • Oregon v. Smith, 1990 • West VA Board of Ed v. Barnette, 1943 • Wisconsin v. Yoder, 1972 • Church of Lukumi Babalu Aye v. Hialeah, 1993

IV. Due Process of Law I. Meaning of Due Process Substantive vs. Procedural Due Process • 2 Clauses: • 5thprotects against violations from the Federal Government. Government cannot deprive any person of “life, liberty, or property, without due process of law.” • 14th protects against violations from the States and their local governments • The government must act fairly and in accordance with established rules. Substantive DP: the substance and content of the laws themselves must be fair (the “what”) Procedural DP: the procedures followed in upholding the laws must be fairly and consistently carried out (the “how”) Rochin v. CA, 1952 Pierce v. Society of Sisters, 1925

4th Amendment: Searches and Seizures • Wiretapping: only legal if a warrant has been issued • FISA Court • Patriot Act 2002 SEARCH CASES: • Maryland v King, 2012 • Florida v. J.L., 2000 • Anonymous tip • Minnesota v. Carter, 1999 • Evidence in plain view • California v. Greenwood, 1988 • No reasonable expectation of privacy • Michigan v. Tyler, 1978 • Emergency situation • Riley v. CA, 2014 A. Police have no right to search for or seize evidence or people unless they have a proper warrant obtained with probable cause B. Arrests (“seizures”) • Police can arrest a person in a public place without a warrant with probable cause to believe the person has or is about to commit a crime • Illinois v. Wardlow, 2000 C. Searches : 1. Automobile Exception • Michigan v. Sitz, 1990 • Missouri v McNeely, 2012 • California v. Acevedo, 1991 • Wyoming v. Houghton, 1999

D. Exclusionary Rule Evidence gained illegally cannot be used against a person in court CASES: • Weeks v. U.S., 1914 (Federal Gov.) • Mapp v. Ohio, 1961 (State Gov.) Exceptions: • “Inevitable discovery” (Nix v. Williams, 1984 • “good faith rule” (U.S. v. Leon, 1984 and Arizona v. Evans, 1995) • “honest mistakes” (Maryland v. Garrison, 1987) • Critics claim that it lets criminals “off the hook” on technicalities. They ask why society should pay for the misconduct of a few police officers. • Supporters claim that it discourages police misconduct

E. Rights of the Accused 1. Writ of Habeas Corpus 3. Ex Post Facto Laws • Intended to prevent unjust arrests/imprisonments • Can only be suspended in times of rebellion/invasion (Habeas Corpus Act of 1863) • 2. Bills of Attainder • Legislative acts that inflict punishment without a trial (banned by the Constitution) • Congress cannot both make laws and decide guilt or innocence (separation of powers) • Criminal laws that either define a crime or provide punishment retroactively (banned by Constitution) • Civil laws may be passed retroactively

F. 5th Amendment I. Grand Jury 2. Double Jeopardy • In federal cases, the Constitution provides for a grand jury: in order to charge a person with a serious federal crime, the federal prosecutor must obtain an indictment (not required by states – not incorporated) • The 5th Amendment guarantees against being charged twice for the same crime • If both a State and a federal crime are committed simultaneously, one may be tried in both State and federal courts • In the case of a mistrial or an appeal, there may be another trial

3. Self-Incrimination • The 5th also guarantees against self-incrimination • A person may not be forced to testify against themselves or their spouse • The Miranda Rule states that police must inform a person of their rights before being questioned (Miranda v. Arizona, 1966) • The burden of proof is always on the prosecution • 4. Witnesses: right to bring witnesses on your own behalf, and confront witnesses

5. 5th Amendment: Eminent Domain • Property rights vs. public welfare • States MAY impose limits on property rights: • States may exercise police powers to protect public health, safety, welfare, and morals • States may exercise right of eminent domain: • Kelo v. City of New London, 2005

G. The 6th Amendment 1. Speedy and Public Trial 2. Trial by Jury • In most cases, trials must be within 100 days of arrest • Right of a public trial belongs to the defendant, not the media, and coverage of the trial must not infringe on the defendant’s rights • TV cameras are thus banned from all federal courts • Guaranteed in criminal cases (though most cases are disposed of by plea bargaining) • Guaranteed in civil cases worth more than $20 (7th Amendment)

3. Right to Counsel • Right to be told the charges, to confront witnesses against them, to compel witnesses to testify, and to have assistance of counsel • CASES: • Gideon v. Wainwright, 1963 • Escobedo v. Illinois, 1964

H. The 8th Amendment I. Bail and Preventative Detention 2. Cruel and Unusual Punishment: Capital Punishment • Is Constitutional, but certain methods are banned • Ewing v. CA, 2003: 3-strikes law (CA Prop 184 1994) • CA Prop 36 (2012) modified 3-strikes law (felony conviction must be for “serious or violent” crimes) • Bail or fine must be reasonable in relation to the seriousness of the crime • Justification for bail: • A person should not be jailed until guilt is established • A defendant can better prepare for their trial outside of jail • 1984 Preventative Detention Congressional Law: • States a person can be held without bail if the Court believes the person will not appear or if there is reason to believe s/he will commit another serious crime

Death Penalty Cases: • Furman v. Georgia, 1972 (struck down D.P. laws) • Gregg v. Georgia, 1976 (created a 2-step process: a separate trial to determine guilt or innocence; a second hearing to determine punishment) • Coker v. Georgia, 1977 (crimes involving death of victim) • Roberts v. Louisiana, 1977 (juries must consider mitigating circumstances) • Atkins v. Virginia, 2002 (Is the execution of mentally retarded persons prohibited by the 8th Amendment?) • Ring v. Arizona, 2002 (only decided by jury, not by judge) • Roper v. Simmons, 2005 (Does the execution of minors violate the prohibition of "cruel and unusual punishment" found in the 8th & 14th Amendment?) • Miller v. Alabama, 2011 & Jackson v. Hobbs, 2011 (are mandatory life-without-parole sentences for all children 17 or younger convicted of homicide unconstitutional?)

CH. 6: CIVIL RIGHTS

I. Struggle for Equal Rights: Blacks • Dred Scott decision, 1857, denied the right of Scott to sue-slaves were not citizens. • Civil War Amendments: 13, 14, 15-to protect blacks against state governments • 5th & 14th prohibit government from discriminating, but what about protection from private acts? • 13th has been broadly interpreted to prohibit the “badges” of slavery, Commerce Clause, power to tax and spend • Jim Crow laws; Plessy v. Ferguson, 1896 “separate but equal” • Barriers to de jure segregation: use of the courts-Brown v. Board, 1954 • Civil disobedience in 1950s-60s, violent demonstrations 1960s • Civil Rights Act of 1964: • Title II bans discrimination in places of public accommodation on the basis of race, color, national origin, or religion. Based upon Congress’ power to regulate interstate commerce. • Title VII: prohibits employment discrimination (sex & race), required federal contractors to adopt affirmative action, enforced by EEOC • Civil Rights Act of 1968 (Fair Housing Act)

H. Voting Rights Act of 1965 15th A. banned voting discrimination, but states found ways: white primary, poll tax, literacy tests, grandfather clause. Remedies: • Banned literacy tests • Allowed federal officials to register voters and ensure they could vote, to count ballots • Amendments require states to include ballots in other languages • STRUCK DOWN 2012*: States with a history of voting discrimination must clear w/ Justice any changes in voting practices (“preclearance”) • Resulted in huge increases in black turnout, black elected officials, and voter power *Shelby County v. Holder, 2012: SCOTUS struck down Section 4 of VRA stating it “imposes current burdens that are no longer responsive to the current conditions in the voting districts in question,” and “the formula for determining whether changes to a state’s voting procedure should be federally reviewed is now outdated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question.”

Voter turnout rates. Census Bureau

II. Struggle for Equal Rights: Women • First Wave: Seneca Falls (1848), 19th Amendment (1920) • 2nd Wave: 1960-present • The Feminine Mystique, Betty Friedan (1963) • NOW, Emily’s List and other women’s groups • Legislation: • Equal Pay Act of 1963, Lilly Ledbetter Fair Pay Act of 2009 • Civil Rights Act of 1964, Title VII • ERA’s failure • Title IX of Education Act of 1972 • Cases: (“Reasonableness” [heightened scrutiny]Test) • Reed v. Reed, 1971 • Roe v. Wade, 1973 • Electoral Success: 1992-Year of the Woman: many women elected to Congress • Rise of women representatives in Congress, on Court, as constituent voting bloc

III. Equal Protection Under the Law • Discrimination • Classification/treating groups differently usually on ethnic or racial lines • Some is inevitable (age requirements, income tax) • Issue: are such differences “reasonable” • 14th Amendment (1868) Equal Protection Clause bans the states from unreasonable discrimination • Court tests: • Rational basis test: discrimination is constitutional if it has a reasonable relationship to a broader purpose of gov • Cannot be used if a case involves a suspect class, an almost-suspect class, or a fundamental right • strict scrutiny: Suspect classifications test • Suspect class: a class that has historically suffered unequal treatment on the basis of race or national origin • Discrimination is subject to strict scrutiny: there must be a compelling purpose for the discrimination to be constitutional

Affirmative Action • Strict Scrutiny cases: • UC Regents v. Bakke, 1978, • Gratz v. Bollinger, 2003, • Grutter v. Bollinger, 2003; • CA Prop 209 • Fisher v. University of Texas, 2012 • Racial gerrymandering banned: • Shaw v. Reno; Miller v. Johnson • Reasonableness Test (“heightened scrutiny”): • For quasi-suspect class: sex • Not quite as high as for race • Discriminatory laws must be reasonable, not arbitrary, and bear some relation to gov. objective

4. Fundamental Rights Test • Those which are explicitly stated in the Constitution, and implied, such as: travel, political association, privacy, marriage (2015) Abortion cases: • Roe v. Wade, 1973: based on right to privacy implied in the Bill of Rights (Griswold v. CT, 1965) • Webster v. Reproductive Health Services, 1989 • Planned Parenthood v. Casey, 1992 • Gonzales v. Carhart, 2007 Voting: • Bush v. Gore, 2000 Same-sex marriage: • DOMA (1996); struck down as a violation of EPC (US v Windsor, 2012) • Hollingsworth v. Perry, 2012: petitioner (Hollingsworth) did not have standing, and thus no jurisdiction to decide the case • Obergefell v Hodges, 2014 (Does the 14th A require states to license & recognize same sex marriage? YES and YES – basis: DPC as marriage is a fundamental right AND EPC.) Gay rights: • Lawrence v. TX, 2003 • Repeal of Don’t Ask, Don’t Tell

IV: Struggle for Equal Rights-Other Groups A. For Hispanics: • Key issues: • Bilingualism (Lau v. Nichols, 1974: schools must take active steps to help non-English speaking students) • States must now provide bilingual ballots for areas with a high concentration of non-English speakers • Immigration • Obama EO “Dream Act” • Electoral politics: shift in voting to Democrats from 2008 and 2012 (71%) B. For Asians: • Key Issues: • Immigration restriction in the past • Internment, Korematsu v. U.S. 1944; reparations • “reverse discrimination” in college admissions • “model minority” C. Age/Disability: • Age Discrimination in Employment Act, 1967: bans age discrimination for jobs unless related to performance • ADA, 1990: bans job and access to facilities discrimination if “reasonable accommodation” can be made

V. Citizenship A. Methods of Acquisition: • Birth Jus soli • All born in the U.S., regardless of parentage, are citizens as per 14th A. Jus sanguinis • Anyone born to U.S. citizens living overseas is a citizen • Possibility of dual citizenship • Naturalization: individual or collective B. Methods of losing: • Expatriation • Denaturalization

C. Aliens • Types: • Resident • Nonresident • Illegal • Enemy • Refugee • Rights: mostly the same as citizens with some exceptions: • Suffrage • Serving on juries • Holding certain jobs (teachers, police officers) • Unconditionally staying in U.S. D. Entry into U.S. • Current law allows ~700,000 to be legally admitted each year • Based on preference system: • Relatives in U.S. • Needed job skills • “diversity exceptions” for Europeans • Political refugees (~100,000) allowed above 700,000

E. Simpson-Mazzoli Bill of 1986: Provisions for illegal aliens: • Amnesty for those here before 1982 • Fines for employers who knowingly hire illegal workers • Certain number of aliens allowed to enter each year as temporary farm workers F. Sources of Immigration: • Pre-1880: primarily Northern and Western Europe • 1880-1920: primarily from Southern and Eastern Europe • 1924: National Origins Act-set a nation-by-nation quota system that gave large quotas to N. and W. European nations, but smaller ones to S. and E. Europe and Asia • 1965: National Origins Act repealed; replaced with preference system • Most immigrants now from Latin America and Asia

Ch. 5: Civil Liberties