Civil Liberties

2. Civil Liberties

3. Civil Liberties and Civil Rights • Civil Liberties: Protections of citizens from the government • Substantive: Limits on what the government can or cannot do • Procedural: Rules regarding how the government must act • Civil Rights: Protection of citizens by the government

4. A Brief History of the Bill of Rights • The drafters of the Constitution considered including a list of rights, but a majority thought it unnecessary • Federalists though enough rights were covered already

5. A Brief History of the Bill of Rights

6. A Brief History of the Bill of Rights • Bill of Rights: The first ten amendments to the Constitution • Incorporation: The process of extending the Bill of Rights to the states • 14th Amendment provides the basis for incorporation • Selective incorporation • Incorporation occurred gradually

7. Civil Liberties in the Bill of Rights

8. A Brief History of the Bill of Rights

9. A Brief History of the Bill of Rights

10. The First Amendment Guarantees Freedom of Religion • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” • Establishment clause • Free exercise clause

11. The First Amendment Guarantees Freedom of Religion • How to interpret the Establishment Clause • Preventing an official church • Government can aid religious institutions as long as it does not favor some over others • Wall of Separation

12. The First Amendment Guarantees Freedom of Religion • Establishment Clause • Dilemma: How to deal with longstanding traditions in an increasingly secular world

13. Separation between Church and State

14. The First Amendment Guarantees Freedom of Religion • Free Exercise of Religion • One can believe in and practice the religion of one’s choice, or be a non-believer, as long as one does not harm others

15. The First Amendment and Freedom of Speech • “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” • Freedom of speech is one of the preferred freedoms • Democracy depends on freedom of speech • Strict scrutiny • most stringent standard of judicial review used by US courts-it is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle • Places heavy burden of proof on the government if it seeks to regulate or limit freedom of speech • Does not mean that speech can never be regulated

16. The First Amendment and Freedom of Speech • Political speech versus other speech • Political speech is highly protected by the standard of strict scrutiny • The first modern free speech case came right after World War I • Political speech is protected unless it will lead to immediate harm (clear and present danger) • The Court ruled in favor of the Espionage and Sedition Acts – made it illegal to incite political unrest about US involvement in WWI

17. Campaign Funding • Does donating or spending money on campaigning equal speech? • This has been a source of controversy – regulating campaign spending by wealthy people and corporations • In order to limit the corruption of “big money” in political campaigns, Congress has limited or regulated campaign spending/donations • Bipartisan Campaign Reform Act 2002 – limited “soft money” – money contributed to a political party, not to a candidate; issue ads could not be restricted (when ads are not funded by the candidate) • Citizens United v. Federal Election Commission 2010 - it was decided that corporations were entitled under the First Amendment to spend money without limits on political ads • In the same case, the court left restrictions on corporate contributions given directly to candidates and a requirement that corporations must disclose their spending if asked

18. Symbolic Speech, Speech Plus, and the Rights of Assembly and Petition • The First Amendment also protects actions that express a political idea – speech plus – • Freedom of speech, but action-oriented • Symbolic actions (i.e., flag burning) • Assemblies, protests, marches • Read page 102

19. Freedom of the Press • The government cannot prevent the print media from publishing what it desires • However, broadcast and electronic media are subject to federal regulation • The press is protected under the doctrine against “prior restraint” – this forbids censorship by the government except under the most extraordinary circumstances

20. Near v. Minnesota 1931 • The Supreme Court ruled that newspapers and magazines can print whatever they want (except under the most extraordinary of circumstances)

21. New York Times v. US • This was the Pentagon Papers case • The New York Times leaked secret documents from the Defense Department during the Vietnam War that made the US involvement look bad • The Supreme Court ruled that the New York Times had the right to do this and the government could not prevent the publication of the information

22. Should journalists be forced to reveal their sources?

23. Shield Laws • State laws that protect journalists’ sources of information • The government argues that names and sources may be relevant to criminal or national security investigations • There is no federal law protecting journalists’ sources • Edward Snowden and the NSA • 2005 case of NY Times reporter being imprisoned for contempt for not revealing source of leaked identity of CIA analyst

24. Limits on Freedom of Speech • Four forms of speech fall outside the realm of absolute protection under the First Amendment: • libel • slander • obscenity • pornography • fighting words

25. Libel and Slander • Libel – a written statement, made in reckless disregard of the truth which is considered damaging to a victim • EX. – The National Inquirer is always getting sued by celebrities • Slander – an oral statement, made in reckless disregard of the truth which is considered damaging to a victim • It is always difficult to prove if false and malicious material is printed deliberately!

26. New York Times Co. v. Sullivan, 1964 • To win a libel case, public figures must prove “actual malice” on the part of the writer • In 1964, the Times published an ad critical of an elected commissioner of an Alabama city • The commissioner sued for libel and won • The Supreme Court overturned that ruling, and said that, to ensure “uninhibited, robust and wide-open” debate about public figures, the law must protect writers from libel suits • Thus, unless the words are penned with “knowing falsity” or “reckless disregard for the truth,” a writer cannot be successfully sued by a public figure for libel

27. Obscenity and Pornography • Difficult to define and hard for governments to regulate, as long as it is kept out of reach or sight of children • Art? • Freedom of speech? • Supreme Court Justice Stewart defined pornography as “I know it when I see it” – what does that mean? • Child pornography is banned, since it is seen as harmful to the children involved • Libraries have installed anti-pornography software on computers • Illegal to sell child pornography on the Internet

28. Obscenity and Pornography • In 1973 the Supreme Court tried to define it: • Deemed indecent by the “average person” according to “community standards” • Depicts sexual conduct in an offensive way • Lacks serious literary, artistic, political, or scientific value

29. Cyberporn • Opponents argue against it because of the easy access for children • Communications Decency Act (CDA)1996 was designed to regulate the online transmission of obscene material • The American Civil Liberties Union (ACLU) challenged the constitutionality of the act • Reno v. ACLU 1997 – struck down the CDA ruling saying that it suppressed speech that “adults have a constitutional right to receive”; “the level of discourse reaching the mailbox simply cannot be limited to that which would be suitable for a sandbox”

30. Radio and Television • Subject to more control than the Internet • In 2000, the highest degree of 1st Amendment protection was extended to cable television • US v. Playboy Entertainment Group – struck down a portion of the Telecommunications Act of 1996 that required cable TV companies to limit the broadcast of sexually explicit programming to late-night hours • Parents have access to blocking devices • Parents would have to purchase those channels

31. Fighting Words • When words leave the realm of thought and move into direct and immediate action, their speaker can be held accountable • 1942, man was arrested and convicted for using offensive language; called the officer a “goddamned racketeer” and “a damn Fascist” (how times have changed if that was considered offensive!) • The Supreme Court said that the 1st Amendment provides no protection for such offensive language

32. Cohen v. California (1971) • The Supreme Court ruled that an individual’s wearing of a jacket bearing the words “Fuck the Draft” in a California courthouse did not constitute fighting words, because Cohen did not direct the message at a particular person or group. • “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult,” the Court said. • The Cohen ruling specified that “fighting words” generally applies only to direct, face-to-face personal insults. • Even then, the Court has sometimes invalidated convictions for someone’s harsh language directed toward another, particularly if the charging statute or ordinance is too broad.

33. Commercial Speech • Newspaper or television advertisement • Typically, a government need only have a rational reason to ban an advertisement • False and misleading ads • Upheld laws prohibiting electronic media from carrying cigarette ads • Upheld university ban on Tupperware parties in college dorms

34. Speech by Public School Students • Public school students have only a limited right of free speech • In 1986, the Supreme Court upheld the punishment of a high school student for making a sexually suggestive speech • The Court opinion held that such a speech interfered with the school’s goal of teaching students the limits of socially acceptable behavior

35. “BONG HiTS 4 JESUS” • 2007, Morse v. Frederick • The Supreme Court upheld a principal’s decision for suspending a student displaying a banner at school proclaiming “BONG HiTS 4 JESUS” • The Court said that schools have the right to censor student speech that advocates or celebrates the use of illegal drugs

36. The Second Amendment andthe Right to Bear Arms

37. 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. • The 2nd Amendment was included in the Bill of Rights to protect the rights of citizens to keep and bear arms if called into militia service by the government • This is where the controversy comes in – we don’t have militias today – is the amendment outdated? • In1939, the Court ruled that the amendment has as its obvious purpose the protection of gun ownership only when related to the preservation or efficiency of a well regulated militia • Recent controversy over some citizens who have sought to form their own private militias, not connected with the government

38. The Second Amendment and the Right to Bear Arms • The Second Amendment is slowly being incorporated to include states and localities • Boundaries of this amendment are currently being contested • Right to form private militias not granted under Second Amendment

39. D.C. v Heller, 2008 • Supreme Court struck down a gun control law as in violation of the right to bear arms • Ruled that 2nd Amendment protected the personal right to own a gun, for personal self-defense at home • This decision represented a major victory for gun rights organizations

40. Rights of the Criminally Accused • 4th, 5th, 6th, and 8th Amendments • The essence of the due process of the law: the right of every citizen against arbitrary action by national or state governments

41. Fourth Amendment – Protects Against Unlawful Searches and Seizures The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and he persons or things to be seized. • How are we to define what is reasonable and unreasonable? • Mapp v. Ohio (1961) set up the exclusionary rule - the ability of courts to exclude illegally obtained evidence • Even people who are clearly guilty of the crime of which they are accused must not be convicted if the only evidence for their conviction was obtained illegally (page 109)

42. 5th Amendment – Court-Related Rights • Grand Juries: a jury that determines whether sufficient evidence is available to justify a trial; grand juries do not rule on the accused’s guilt or innocence • Play role in federal criminal cases • Some states operate without grand juries • Double Jeopardy: a protection to prevent a person from being tried more than once for the same crime • Self-Incrimination: the guarantee that no citizen shall be compelled in any criminal case to be a witness against himself • Miranda v. Arizona led to the Miranda rule which is the requirement that persons under arrest must be informed prior to police interrogation of their rights • Eminent Domain: The power of any government to take private property for a public use with just compensation • “taking clause”; a protection against the taking of private property without just compensation

43. The Fifth Amendment

44. Rights of the Criminally Accused • Sixth Amendment • Right to Counsel: Anyone facing imprisonment has the right to an attorney, even if that person cannot afford one • Gideon v. Wainwright 1963 • Eighth Amendment • Prohibits excessive bail, excessive fines, and cruel and unusual punishment • The death penalty is allowed, but must follow due process carefully

45. The Right to Privacy • Right to Privacy: the right to be left alone, which has been interpreted by the Supreme Court to entail free access to birth control and abortions • Right to privacy is not explicitly written in the Constitution, but has been interpreted in the Fourth Amendment and facilitated by the Ninth Amendment • Birth Control • Abortion • Homosexuality • The Right to Die

46. Civil Rights Are Protections by the Government Pages 114 - 122

47. Civil War Amendments to the Constitution • Thirteenth Amendment abolished slavery • Fourteenth Amendment guaranteed equal protection under the law – the wording is very vague: • No state shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the laws. • Fifteenth Amendment guaranteed voting rights for African Americans

48. Separate but Equal • The Supreme Court initially interpreted the Fourteenth Amendment very narrowly • Ruled the Civil Rights Act of 1875 unconstitutional for targeting private actions • Plessy v. Ferguson (1896) upheld the concept of “separate but equal”

49. The Civil War Amendments to the Constitution The 1896 Supreme Court case of Plessy v. Ferguson upheld legal segregation and created the “separate but equal” rule, which fostered national segregation. Overt discrimination in public accommodations was common.

50. The Struggle for Civil Rights • Organizing for equality: NAACP (National Association for the Advancement of Colored People) was established in1909 • A series of cases in the 1940s and 1950s chipped away at the “separate but equal” doctrine