Civil Liberties & Civil Rights

1. Civil Liberties & Civil Rights The Evolution of the Bill of Rights

2. Civil Liberties vs. Civil Rights Civil Liberties • The Bill of Rights • The legal constitutional protections against the government • Limitations on government power • What the government cannot do Civil Rights • 14th Amendment • What the government must do to ensure equal protection • Protects against discriminatory treatment • Require government action

3. The Incorporation of the rights • Barron v Baltimore 1833 • Fourteenth Amendment • Gitlow v New York 1925 • Gitlow, a socialist, was arrested for 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. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

4. The Incorporation of the rights • Gitlow v New York 1925 • Question:  • Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? • Conclusion:  • Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

5. Selective Incorporation of the Bill of Rights • The BoR were originally written to protect citizens from the national government (“Congress shall make no law…”) • Barron v. Baltimore (1833): The BoR only apply to national government… NOT the states • However, over time most liberties protected by the BoR have been “selectively incorporated” (or applied) to the states through the 14th Amendment’s due process clause

6. Selective Incorporation of the Bill of Rights • The first Supreme Court case to “selectively incorporate” a part of the BoR was Gitlow v. New York (1925) • Applies first Amendment protection of free speech to the states • Since Gitlow, the Supreme Court has gradually incorporated other selected parts of the BoR to the states

8. Freedom of Religion

9. Freedom of Religion “Congress shall make no law respecting the establishment of religion nor prohibiting the free exercise thereof…” Two Key Principles • The Establishment Clause: The Separation of Church and State • “Congress shall make no law respecting the establishment of religion…” • The Free Exercise Clause: • Prevents the government from prohibiting individuals from practicing religion of their choice • How can these two conflict with one another?

10. The Establishment Clause: Aid to Schools • Everson v. Board of Education (1947) • New Jersey law giving money to school busses both public and private, secular and religious. • Does this violate the Establishment Clause? • Law Constitutional because it applied to everyone evenly regardless of faith • Incorporated the Establishment Clause

11. The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.’ Justice Hugo Black

12. The Establishment Clause: Aid to Schools • Lemon v. Kurtzman(1971) • PA law to reimburse non-public schools for salaries of teachers who don’t teach religion classes. Had to be subjects that were taught in public schools with no religious content. • 95% of non-public schools were Catholic. 100% of the money went to 250 teachers at Catholic Schools. • Does it violate the Establishment Clause? • YES! Must avoid “Excessive Entanglement” • Set-up the three-part “Lemon test:” • For a law to be constitutional under the establishment clause, it: • Must have a secular (non-religious) legislative purpose • Can neither advance nor inhibit religion • Must not result in excessive government “entanglement” • If any of these conditions are violated, the law is unconstitutional… but Court has changed opinion

13. Establishment Clause: School Prayer • Engle v. Vitale (1962) Mandatory daily prayer in New York public schools written by the school board • NO! • Wallace v. Jaffee (1985)Alabama moment of silence for the purpose of prayer • NO! Although the moment is okay, religious purpose makes it unconstitutional. • Prayer before meetings or athletic events led by school official • Lee v. Weisman (1992) • NO! • Sante Fe School District v. Doe (2000) What if student council votes for it? • NO!

14. Free Exercise Clause • Reynolds v. US (1879) Mormon Polygamy Outlawed • YES! Laws can’t outlaw religions but can outlaw their practices • Incorporated in Cantwell v. CT (1940) • Strict Scrutiny (1960’s): Religious Freedom essential to liberty and must be protected. Laws must meet very high standards if they infringe on religious practices • Law must be Neutral and Generally Applicable • Law can’t be religious in nature [Accidentally restrictive] • State must have a Compelling Interest in restricting the practice • Must be the least restrictive means possible

15. Free Exercise Clause • Wisconsin v. Yoder (1972) WS law requiring children to attend school until 18 but Amish schools only go to 13. Amish being charged with truancy. • NO! Neutral on face but can’t create an “Undue Burden” on religious activity • Employment Division v. Smith (1992) Peyote use by workers at a rehab clinic. Drug taken on reservation. • YES! Law didn’t target a specific practice

16. Free Exercise Clause • Church of LukumiBabalu Aye v. City of Hialeah (1993) Ritual slaughter outlawed with exceptions for Kosher Judaism • NO! Not Generally applicable

17. Freedom of the Press

18. The Role of a Free Press • Blackstone: 1700’s judge and legal scholar • Only in a free market of opinions can the people find the truth for themselves. • Freedom of the press has a utilitarian value to democracy • “Congress shall make no law…abridging the freedom of the press…” • Near v. Minnesota (1929) • Jay Near’s scandal paper accused Minnesota politicians of corruption. Officials obtained an injunction (order to stop) against the paper and forbade it from publishing. • Violation of Free Press? • YES! Established the doctrine of Prior Restraint—Can’t stop before something is published even if it’s punishable after it is published. Censorship of the press unconstitutional. • Also incorporated free press.

19. Freedom of the Press • US v. NY Times (1971) The Pentagon Papers • The US Department of Defense wrote a secret study of US actions in Vietnam covering 1948-1966. Daniel Ellsberg, who worked on the study, illegally smuggled the documents out of the Pentagon and gave them to the New York Times who wanted to publish them in chapters. After the first chapter was printed the government sought an injunction against further printing. • Does the 1st Amendment allow items related to national security to be printed even if they are obtained illegally? • YES! The government didn’t prove that any actual harm to current national security would come from the publication.

20. Freedom of the Press • Slander and Libel: NY Times v. Sullivan (1964) • NY Times ran an add that said incorrect things about the Alabama police. The police chief sued and won $500,000 for libel. Does the 1st Amendment cover factually incorrect statements? • YES! In order to prove libel you must prove a knowing disregard of the truthand “actual malice” to to real harm. Otherwise you create a Chilling Effect. • What about satire and parody? Hustler Magazine v. Falwell (1988) • Jerry Falwell, a nationally famous preacher and moral crusader was constantly attacking Hustler Magazine and its publisher Larry Flint. Hustler ran a parody of a liquor ad in which Falwell described his first sexual experience as having been with his mother in an outhouse. Falwell sued for infliction of emotional distress. • Does the 1st Amendment cover a parody if it damages the subjects image? • Movie Clip • YES! Because Falwell was a public figure in a public debate and it’s a parody.

21. Freedom of the Press: Obscenity • Obscenity and Pornography • “Hicklin Rule” from 1868 any material that tended to "deprave and corrupt those whose minds are open to such immoral influences” was obscene and could be banned. • Roth v. US (1957) • David Roth published American Aphrodite, a literary erotica magazine that contained nude photographs. One of his publishers was arrested for distributing obscenity through the mail. Roth appealed the conviction. • Should the 1st Amendment protect obscenity and what is it? • NO! • The Roth Test: Material is obscene if: • It is “utterly without social importance” • "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

22. Freedom of the Press: Obscenity • Miller v. California (1971) • Time had passed and the sexual revolution had dramatically liberalized sexual values. Marvin Miller operated a mail order service for pornography. He was arrested for dealing in obscenity. • Is obscenity still protected? Is there a new definition? • NO! Not protected. • The Miller Test: Community not national standards • The work appealed to a “prurient interest in sex” • The work portrays sexual conduct “in a patently offensive way” • The work “lacks serious literary, artistic, political, or scientific value.”

23. Freedom of the Press: Obscenity • Current Issues • Cable TV can show sexually explicit content at any time since parents have the choice to order the service. • The internet can have explicit material for the same reason. • Important to note that even after the internet, SCOTUS says anything that involves or even depicts minors engaging in sexually explicit acts can be made illegal.

24. The 2nd Amendment • “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” • History: Citizen militias were an essential part of colonial life. The British army would not station troops to defend colonists against the French and Native Americans on the frontier so towns and villages formed their own militias who were self armed. • Militias played a large role on BOTH sides of the American Revolution. • After the Revolution the Anti-Federalists feared that Congress would create a national standing army and disarm local militias. This would have the effect of leaving the people defenseless to Native Americans on the frontier. It also had an element of the fear of powerful government.

25. The 2nd Amendment • United States v. Miller (1939) • In response to the St. Valentines Day Massacre Congress passed the National Firearms Act which required certain types of firearms (including sub machine guns and sawed of shot guns) to pay a $200 registration fee because they were criminal weapons and not for legitimate military use in a militia. • Miller and friends were arrested carrying a sawed off shot gun across the Arkansas state line for the purpose of sale without paying the registration fee. Miller argued the tax violated the 2nd Amendment. • Does the 2nd Amendment guarantee an individual’s right to keep and bear arms? • NO! Since the gun in question isn’t for military use, it is not protected. The 2nd Amendment covers weapons in “common use at the time”. The government can regulate the types of guns owned by Americans and where and when they can carry them, however saying they can’t own any is not allowed.

26. The 2nd Amendment • DC v. Heller (2008) • Handgun possession is banned under District of Columbia law. The law prohibits the registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully owned firearms must be kept unloaded and disassembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business. • A DC police officer refused to surrender his sidearm. Argued the DC law violated the 2nd Amendment. • Does the 2nd Amendment guarantee an individual’s right to keep and bear arms? • YES! The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home…Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional.

27. The 2nd Amendment • McDonald v. Chicago (2010) • Chicago had a city wide ban on handgun registration since 1982. McDonald wanted to defend his home against gang violence, which happened near his house fairly often. He owned shotguns for hunting but wanted a handgun for home defense. He argued the Chicago law violated the 2nd Amendment. • How is this different from Heller? • Should the 2nd Amendment be incorporated under the 14th? • YES! (5-4) Alito wrote that handguns are part of the country’s history of maintaining “well ordered liberty”. The decenters argued that the 2ndAmendment is not a “fundamental liberty” protected by the Due Process clause of the 14th.

28. Privacy Rights: Inferred • Not in the Constitution: Inferred from 1st, 3rd, 4th,5th, and 9th • “The right to be let alone”

29. Privacy Rights: Family Planning • Birth Control: Comstock Laws • Griswold v. Connecticut (1965) • Estelle Griswold was arrested for distributing information about birth control methods to doctors and women. Arrested and fined $100. • Should the right to privacy include decisions related to birth control? • YES! “a right of privacy older the the Bill of Rights itself.” “the concept of liberty…embrace the right of marital privacy…”

30. Privacy Rights: Abortion • Roe v. Wade (1973) • Compelling interest? • Trimester variation and limits available • Planned Parenthood v Casey (1992) • Can restrict, but can’t create an “undue burden”

31. Privacy Rights: Homosexuality • Sodomy Law: Prohibited non standard sex acts • Bowers v. Hardwick (1986) • Michael Hardwick arrested when an officer was invited into his home by a roommate and checked his bedroom. He found in bed with another man engaging in consensual sex. • Compelling interest with consenting adults? • NO! “the state should not be omnipresent in the home…petitioners are entitled to respect for their private lives.” • Lawrence v. Texas (2003) States can’t make private sex acts illegal.

32. Privacy Rights: The Right to Die • Gonzales v. Oregon (2006) • Oregon had the “Death with Dignity Act” allowing doctor assisted suicide. John Ashcroft (US AG) threatened to repeal the license of doctors under the Federal Controlled Substances Act of 1970. • Did the Controlled Substances Act authorize the attorney general to ban the use of controlled substances for physician-assisted suicide in Oregon? • NO! The FCSA was intended to prevent illicit drug dealing not to give the government the right to set medical standards of practice.

33. The Rights of Defendants and the Accused • Much of the Bill of Rights (Amendments 4, 5, 6, 7, and 8) apply to people accused of crimes • Like other civil liberties, defendants’ rights are not clearly defined in the BoR • Just how speedy is a “speedy” trial? • How “cruel and unusual” must a punishment be to violate the 8th amendment? • Courts continually rule on what action of the government is constitutional and what is not.

34. The Rights of Defendants and the Accused

35. The Rights of Defendants and the Accused Searches and Seizures • Probable Cause: police must have reason to believe that a person should be arrested • Unreasonable searches and seizures (4th Amendment): evidence is obtained in a haphazard or random manner, prohibited by the Fourth Amendment • Probable cause and a search warrant are required in most cases to make a search and seizure constitutional

36. The Rights of Defendants and the Accused Searches and Seizures • Exclusionary Rule: the rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained • The Court broadens the application of this rule in Mapp v. Ohio (1961) • Selective incorporation: Because of Mapp, the exclusionary rule applies to state governments

37. The Rights of Defendants and the Accused Self-Incrimination • Definition: when an individual accused of a crime is compelled to be a witness against himself or herself in court • Court has ruled that police must inform suspects of these and other Fifth Amendment protections upon arrest. • Miranda v. Arizona (1966) • However, a coerced confession does not necessarily mean a mistrial if it is a “harmless error”

38. The Rights of Defendants and the Accused Miranda Warnings • You have the right to remain silent. • Anything you say can and will be used against you in a court of law. • You have the right to have an attorney present before any questioning. • If you cannot afford an attorney, one will be appointed to represent you before any questioning. Do you understand these rights?

39. The Rights of Defendants and the Accused The Right to Counsel(Sixth Amendment) • Always ensured in federal courts, but not state • Gideon v. Wainwright (1963) • Court rules that the state must provide lawyers in the case of a felony

40. The Rights of Defendants and the Accused Cruel and Unusual Punishment (8th Amendment) • Centered around the death penalty • Furman v. Georgia (1972): Court overturned Georgia’s death penalty law because it punishment was arbitrary and random • Gregg v. Georgia (1976) • The court has ruled that the death penalty is not cruel and unusual. • It is “an extreme sanction, suitable to the most extreme crimes.”