Civil Liberties

1. Civil Liberties What some examples? Write below:

2. History of Limitations • Sedition Act 1798- made it a crime to write, publish, or utter “false, scandalous, or malicious material” about the government. • Espionage and Sedition Act 1917- advocate treason or incite resistance. Schenck v. US. ->clear and present danger test and “fire in a theatre” example. • Smith Act 1940, Internal Security Act 1950, Communist Control Act in 1954. Senator Joseph McCarthy. • Executive Order 9066- Japanese Internment-Korematsu v. U.S. 1944- citizens can be detained in emergencies.

3. Extension of Civil Liberties • Incorporation- 6.07b. • Barron v. Baltimore 1833- Bill of Rights do not restrict the states. • Gitlow v. New York- 14th Amendment • Due process clause: “no state shall…deprive any person of life, liberty, or property, without due process of the laws.”

4. The First Amendment • What does it protect?

5. What is protected? • Hateful speech? • Unpopular speech? • Dangerous speech? • Malicious/false speech? • Speech in schools?

6. Freedom of Speech • Protections-Gitlow v. New York • Unpopular speech- • Brandenburg v. Ohio and the KKK – threats must be proven to result in lawlessness. • Snyder v. Phelps- protests at funerals • Symbolic • Texas v. Johnson: flag burning (also unpopular) • Tinker v. Des Moines 1969: arms bands/freedom of speech in schools

7. Freedom of Speech • Limits • Clear and present danger test (Schenck v. US) • “Fighting words” Chaplinsky v. N.H. • Libel and slander: must be proven false and malicious. • Obscenity: can be regulated by the state. Difficult to define. Stewart: “I know it when I see it”.

8. Definition of Obscenity • Miller v. CA (Miller Test) • Nudity not obscene • Must have political, literary, or artistic merit. • Judged by the average community standards as obscene (child pornography) • Content depicted in an offensive way.

9. Symbolic Speech • Less expectation of protection. • Not protected: Burning draft card. • Protected: Burning American flag. • What’s the difference?

10. Who has freedom of speech? • Corporations • Businesses • Organizations • (more limits than non commercial speech) • Students • Students have free speech- Tinker • Less speech in school- Hazelwood High Newspaper

11. Freedom of the Press • Near V. Minnesota (1931)- Near established that states prevention of publication is in violation of 1st Amendment. Incorporates freedom of press and denies prior restraint. • New York Times v. US (1971)- Pentagon Papers, the court rejected the government’s prior restraint. • Hazelwood school v. Kuhlmeier- school officials have the authority to prevent publication in school newspapers.

12. Freedom of Religion • “separation of church and state” is not clear. • Free exercise clause- Congress shall make no law prohibiting the “free exercise” of religion. • Establishment clause- Congress shall make no law “respecting and establishment of religion.”

13. Free Exercise Clause • Freedom of Religion allows for practices if they do not harm others, but it is not always clear cut. • Protected: animal sacrifice, conscientious objection, no license fee for religious solicitation (Jehovah Witnesses) • Not protected: polygamy, drug use (Employment Division v. Smith, soliciting donations (Hare Krishnas)

14. Establishment Clause • Supreme court ruling support “wall of separation” between church and state which supports Jefferson’s views. (Everson v. Board of Education 1947)

15. Not protected • School sponsored prayer (Engle v. Vitale) • Minister/rabbi leading prayer (Lee v. Wiesman) • Student leading prayer at school assembly/game (Santé Fe Independent School District v. Doe) • Prohibition of teaching evolution in schools. (Epperson v. Arkansas) • Taking time away from school for religious activities. • Nativity scene in local park • 10 commandments in Kentucky courthouse.

16. Protected • Government aid and tax incentives to religious organizations. • Vouchers for students to go to public and private schools (Zelman v. Simmons-Harris) • Menorah and Christmas tree outside public area. • 10 commandments in Kentucky courthouse. • Prayer in Congress • “in God we trust” on money • Champlain in armed services

17. Lemon Test • Lemon v. Kurtzman • Money given to religious schools • Does the law have a secular, rather than religious, purpose? • Does the law neither promote nor discourage religion? • Does the law avoid “excessive entanglement” of the government and religious institutions?

18. Protections of the Accused • Double jeopardy • Right to counsel- Gideon v. Wainwright • Speedy trial • Impartial jury • Unreasonable search and seizures- Mapp v. Ohio • Excessive bail • Cruel and Unusual punishment • Self incrimination- Miranda v. Arizona

19. The Exclusionary Rule • 4th Amendment: search and seizure • 5th Amendment: self incrimination • 1961 Mapp v. Ohio-Incorporates 4th Am., establishes Exclusionary Rule. • Legal search • Warrant issued by a judge with probable cause. • Arrest • Good faith exception US v. Leon • Inevitable discovery rule- evidence that would have been found legally is allowed. • Confessions • Involuntary confessions excluded from trial • Miranda rights

20. Death penalty • 8 Amendment- “cruel and unusual punishment”- some restrictions, but upheld as constitutional. • Furman v. GA (1972)- Court looked at the death penalty in the US and found that it is often racist and arbitrary. Halted death penalty. • Gregg v. GA (1976)- convinced the court that it had a fair system for trying capital offenses. Resumed penalty.

21. Terrorism and Civil Liberties • Patriot Act- (court order) tap any telephone of suspect, internet taps, voicemail taps, grand jury information released, non citizens can be held for 7 days, money laundering investigations, no statue of limitations. • Executive Order by Bush- suspected terrorists can be tried in military court *can be secret. • Wiretappings without approval revealed in 2005 • Rasul v. Bush/Hamdi v. Rumsfeld- Terrorist a detainees have access to neutral court.

22. How to discuss a court case… • Don’t spend too much time on the background of the case. • The decision is what is important. • Marbury v. Madison- establishes judicial review.

23. Kaplan FRQ Practice • Ever since the formation of the Constitution in 1787, the federal government has attempted to balance the notions of Liberty v. Order. • A. Describe of the following provisions of the Constitution and, using a specific historical example explain how this provision has been used to enhance or diminish the balance between liberty and order. • Due process clause as described in the 5th and 14th Amendments. • Freedom of expression clause of the 1st Amendment. • B. Explain a key provision of each of the following laws and related court decisions and explain how each of these laws and decisions has enhanced the federal government’s desire for order at the expense of liberty. • Executive Order 9066 (1942)- Korematsu v. U.S. (1944) • Espionage Act of 1917-Schenck v. United States (1919)

24. A- How many points? • Due process clause: • Describe: • Enhance or hinder: • Historic example: • Freedom of expression: • Describe: • Enhance or hinder: • Historic example:

25. Part A- 2 points • Due process clause: • Describe: • The 5th Amendment: cannot be deprived of life liberty or property without due process of law. • 14th Amendment:“no state shall…deprive any person of life, liberty, or property, without due process of the laws.” This is used to incorporate the Bill of Rights. • Enhance or hinder: Enhance • Historic example: Mapp v. Ohio: extends 4th Amendment to the states, exclusionary rule. • Note: you should always use complete sentences. This is an outline.

26. Part B- How many points? • Executive Order 9066 (1942)- Korematsu v. U.S. (1944) • Explain provision: • Explain how this is order at expense of liberty: • Espionage Act of 1917- Schenck v. U.S. • Explain provision: • Explain how this is order at expense of liberty:

27. Part B- 4 points • Executive Order 9066 (1942)- Korematsu v. U.S. (1944) • Explain provision: detains Japanese on the W. Coast following Pearl Harbor attack… • Explain how this is order at expense of liberty: citizens can be detained in emergency… • Espionage Act of 1917- Schenck v. U.S. • Explain provision: 1917- prohibited speech advocating treason or inciting resistance • Explain how this is order at expense of liberty: speech can be punished if it creates clear-and-present-danger