Civil Liberties and Civil Rights

1. Civil Liberties and Civil Rights • End course by returning to the beginning: freedoms the founders fought for • Examine original ideas and how they have evolved over time • National and state governments have concurrent jurisdictions--U.S. constitution to apply to national sphere, although it is also the supreme law of the land

2. Civil Liberties and Civil Rights • Civil liberties: freedoms (choices) enjoyed by individuals in a democratic society • Freedom in government (to participate) • Freedom from government (to live one’s life) • Civil rights: rights of all persons to equal protection of the laws; the right not to be discriminated against because of race, ethnic background, religion, or gender. Obligations placed on government to protect freedoms.

3. Balancing Values

4. Balancing Values • Freedom of religion versus social order • Practicing bigamy (as a religious conviction) versus right of state to limit marriage to one person • Use of peyote by Native Americans versus state law • Freedom of expression versus social order • Anti-war & socialist sentiments to recruits in times of war • Indecent material on the internet versus constraints on material to which minors and others are exposed

5. First Amendment Rights • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or of abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.

6. Due Process and the States • Bill of Rights intended only for national govt. • Confirmed in Barron v. Baltimore (1833) • 5th Amendment (1791) “ No person shall…. be deprived of life, liberty, or property, without due process of law…” • 14th Amendment (1868) “…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.” • Supreme Court favors selective incorporation

7. Selective Incorporation • 1925: Gitlow v. New York • Applied speech and press freedoms to states for the first time even though Gitlow lost his case • Gitlow advocated violent overthrow of the U.S. government, violating New York’s criminal anarchy law • Court distinguished between speech and action

8. Freedom of Religion “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” • Establishment clause: prohibits the establishment of religion; interpreted as separation of church and state; can’t support or prefer one religion over another • Free exercise clause: prohibits government from interfering in religious beliefs

9. Freedom of Religion • Establishment clause: prohibits establishment of religion • Everson v. Board of Education (1947) government must maintain wall of separation between church & state: NJ allowed reimbursement for school transport --neither handicap nor favor religion; state reimbursement of transportation costs didn’t violate Constitution

10. Freedom of Religion • Establishment clause: prohibits establishment of religion • Lemon v. Kurtzman (1971) state can provide transportation to parochial students (1947), lend books to parochial school students (1968), but cannot contribute to salaries of parochial school teachers

11. Freedom of Religion • Lemon v. Kurtzman initiated 3 prong test: • statute must have secular purpose • statute’s primary effect should not be to advance or inhibit religion • statute must not excessively entangle government in religion • U.S. Supreme Court should apply when it considers the school voucher case this term

12. Freedom of Religion • Official endorsement of school prayer is unconstitutional • Engel v. Vitale (1962) • Abington Township v.Schempp (1963) • Santa Fe Independent School District v. Doe (2000) • Equal Access Act (1990) is constitutional; schools can provide space for religious group meetings • UVA may subsidize religious publications • U of Wisconsin may assess student fees

13. Freedom of Religion • Free exercise clause: • prevents interference in individual exercise of religion • Reynolds v. U.S. (1879) doesn’t protect polygamy practiced by Mormons • W.Va. State Bd. of Ed. v. Barnette (1943) overturns Gobitis (1940) and allows Jehovah's Witnesses to refrain from saluting the flag based on free expression (even in war, state can’t require patriotism if it denies religious freedom)

14. Freedom of Religion • Religious holy day: Sherbert v. Verner (1963) state can’t deny unemployment benefits because employee refuses to work on Saturday; neutral law which burdens religion must meet strict scrutiny--state must show compelling interest • Oregon law prohibiting use of peyote for religious purposes is constitutional (Employment Division v. Smith,1990) • Court discarded compelling state interest requirement

15. Freedom of Religion • Congress responded with the Religious Freedom Restoration Act of 1993 (RFRA) prohibiting any government from limiting the exercise of religion without demonstrating: • compelling government interest and • law was the least restrictive means of furthering that interest • 1997: Supreme Court struck legislation down in City of Boerne v. Flores (local zoning & historic preservation; Congress had no authority to dictate manner in which localities enforced ordinances)

16. Freedom of Expression • Ideas are essential to democracy; “truth” is derived from the marketplace of ideas (O. W. Holmes) • Holmes: It (democracy) is an experiment, as all life is an experiment… • Create state to obtain order; prevent harm to others; prevent destruction of the state

17. Freedom of Expression • Supreme Court has held different positions: • Absolutist approach: First Amendment to be interpreted literally-- “Congress shall make no law” means there are no circumstances when speech should be constrained (But even Hugo Black distinguished between speech and action) • Preferred-freedoms doctrine: Speech privileged over any other freedom (Holmes) • Balancing test: Speech must be weighed against other democratic values (Frankfurter)

18. Freedom of Expression • Political speech must meet clear and present danger test • Opposing recruitment for W.W.I violated Espionage Act in Schenck v.US (1919); socialist distributed anti-war leaflets; standard may be higher in times of war • Gitlow v. N.Y. (1925) distributing left wing manifesto during workers’ strikes is unconstitutional--first to apply free speech to states via 14th Amendment

19. Freedom of Expression • Political speech (cont.) • Pierce v. U.S. (1920) socialists distributing anti-war leaflets to general population; court ruled that legislatures may prohibit speech that encourages illegal action (bad tendency doctrine) • Dennis v. U.S. (1951) communists charged with conspiracy; court distinguished between bad tendency (more serious) and clear and present danger doctrines

20. Freedom of Expression • Political speech (cont.) • Clear and present danger standard: • Don’t falsely yell “fire” in crowded theater • “Hate speech” on campus is mostly tolerated • Brandenburg v. Ohio (1969) standard required of government raised: action must pose imminent danger • Speech is accorded preferred position

21. Freedom of Expression • Symbolic expression (nonverbal) • (1969) students may wear black arm bands • Texas v. Johnson (1989) flag burning is constitutional; relies on substantive theory of democracy not to ban unpopular speech

22. Unprotected Speech • Obscenity: difficult to define but unconstitutional if can • Roth v. U.S. and Alberts v. California (1957) found obscenity not to be protected by the Constitution • rule involved “average person” applying “community standards” • Miller v. California (1973) 3 pronged test: • as whole (Roth standard), appeals to prurient interests • portrays sexual conduct in a patently offensive way • as whole, lacks any artistic, etc. merit

23. Unprotected Speech • Obscenity (cont.) • Cincinnati jury applied Miller test to Mapplethorpe case involving homo-erotic art and found museum not guilty • District Court said pornography was not a form of sex discrimination and Supreme Court applied stare decisis (let decision stand)

24. Unprotected Speech • Libel (written) and slander (orally) • Several criteria (similar to standing to sue): • Third parties must be able to observe (not private) • Aggrieved party must be clearly specified • Aggrieved party must actually be harmed • NY Times v. Sullivan (1964) alleged libel or defamation of character against public official but Supreme Court approved as long as not knowingly false or reckless & no malicious intent

25. Freedom of the Press • Role of press has been central to democracy; the press has been the pivotal intermediary between government and the people • Protections are not absolute: does not protect reporters from revealing information in drug and other criminal trials • May be sued for investigating under false pretenses (Food Lion) • Sunshine laws can complicate government (i.e. Orange County bankruptcy; Governor Davis & energy contracts)

26. Freedom of the Press • Freedom of Information Act (1966) • Formal process for requesting non-classified documents • 1995 legislation set limit of 25 years for most classified documents • New Challenges with new media (internet, faxes, cell phones, etc.)

27. Freedom of the Press • Air waves have been public • Federal Communications Commission was established to regulate public space • FCC still licenses radio broadcasts; established fairness doctrine and equal access provisions • Telecommunications advances have made many regulations obsolete

28. Freedom of Assembly • Legislature may not regulate content of speech, but can regulate time, place and manner for protests and parades • ACLU supported Nazi party demonstration in Evanston, IL

29. Application of 14th Amendment • Due process clause says no state shall deprive any person of life, liberty, or property without due process of law • Procedural due process: procedures used or steps taken to implement the law • Originally applied only to criminal cases • Concerns mostly to executive & judicial branches

30. Application of 14th Amendment • Substantive due process: limits what government may do; applies mostly to Congress • Before 1937 Supreme Court limited application to questions of contract • More recently applied to questions of privacy

31. Application of 14th Amendment • Procedural due process (criminal proceedings): • Most criminal law is the prerogative of states • Application of 14th Amendment raises federalism question for many people (states’ rights) • Gideon v. Wainwright (1963) right to representation by an attorney (6th Amendment right to counsel) • Miranda v. Arizona (1966) protects accused against 5th Amendment protection against self-incrimination; requires notification of rights

32. Application of 14th Amendment • Criminal proceedings continued... • Mapp v. Ohio (1961) exclusionary rule protects individuals against use of evidence obtained in violation of 4th Amendment’s unreasonable searches & seizures • Nix v. Williams (1984) allowed evidence if it would have been found eventually through legal means (inevitable discovery) • U.S. v. Leon (1984) allowed evidence gathered “in good faith”

33. Application of 14th Amendment • 9th Amendment & Personal Autonomy • the enumeration of certain rights shall not be construed to deny or disparage others retained by the people....(penumbra or shadow) • Griswold v. Connecticut (1965) Douglas identified penumbras; privacy extended to sexual intercourse and forms of contraception

34. Application of 14th Amendment • 9th Amendment & Personal Autonomy • Roe v. Wade (1973) extended privacy to abortions during first trimester • Webster v. Reproductive Health.. (1989) upholds denial of public facilities for abortion unless danger to mother’s life • States may restrict access of minors or impose waiting period before abortion performed

35. Application of 14th Amendment • 9th Amendment & personal autonomy • Bowers v. Hardwick (1968) does not extend privacy rights to homosexuals--even among consenting adults in own homes (although Georgia legislature changed law and later allowed); issue is state prerogative • Supreme Court is increasingly deferring to states and the political process to resolve questions of privacy • California protects privacy in its Constitution