Chapter 4 - Civil Liberties

Chapter 4 - Civil Liberties 1st Amendment Freedoms

The First Amendment Civil Liberties • The personal guarantees and freedoms that government cannot abridge, by law, constitution, or judicial interpretation. What are the freedoms included in the first amendment? • Freedom of Religion • Freedom of Speech • Freedom of the Press • Freedom of Assembly • Freedom of Petition

Freedom of Religion Establishment Clause • “Congress shall make no law respecting an establishment of religion…” • Directs the national government not to sanction an official religion Free Exercise Clause • “... or prohibiting the free exercise thereof” • Guarantees citizens that the national government will not interfere with their practice of religion

Establishment Clause Separation of Church and State • Tested and upheld by the Supreme Court • “In God We Trust” and Congressional prayers/chaplains • Funding for books/busses for religious-based schools Rejection of School Prayer • Engel v. Vitale (1962) - Nondenominational prayer unconstitutional • Abington School District v. Schempp (1963) - Bible recitation NO GO • Lemon v. Kurtzman (1971) • Lemon Test - Policy is constitutional if: • Had a legitimate secular purpose • Neither advance nor inhibit religion • Did not foster an excessive government entanglement

Establishment Clause Rules about Establishment • Court has upheld aid to religious and private schools via books and technology • Disallowed funding of programs which limited membership to only people of a particular religious affiliation • Governments can give funding to parents to choose which schools to send their children, including religious schools • Court seems to support programs as long as they provide aid to religious and nonreligious schools alike • Student-led student-initiated prayer is unconstitutional • Donated display of the 10 commandments was unconstitutional • White Cross at a WWI memorial on federal land was allowed

Free Exercise Clause What is a god? What is a religious faith?

Free Exercise Clause Court Rulings • Court rules for Vietnam conscientious objectors even though they did not follow a “traditional” organized religion - as long as their reasons for objecting paralleled those of others in those religions • Catholic, Protestant, Jewish, and Buddhist inmates are allowed to hold services, but Muslims are not (for security reasons) • U.S. or State laws can outlaw practices if shown compelling reasons to do so (polygamy, snake-handling) • Congress has acted to allow certain substances for Native American religious observances - the current Court now allows this among other substances for religious purposes Governmental interests can outweigh free exercise

Freedom of Speech A democracy depends on the free exchange of ideas The Court grants: • Greatest freedom to individual’s thoughts • Some freedom to speech, depending on content and purpose • Less freedom to actions or deeds The 1st Amendment is protection against what is called Prior Restraint • Constitutional doctrine that prevents the government from prohibiting speech or publication before the fact

Freedom of Speech Early Challenges to Free Speech • Alien and Sedition Acts (1798) • Prohibited making publication of “any false, scandalous writing against the government” • Not renewed and allowed to expire under the next Congress • Civil War and Abolitionists • Abolitionist press was outlawed or anti-abolitionist press was outlawed, depending on which state you were in (N or S) • Lincoln suspended freedom of the press during the war • Espionage Act (1917) • Outlawed resistance to the draft, or distribution of anti-war leaflets

Freedom of Speech Court cases on Free Speech • Schneck v. U.S. (1919) • Congress has the right to restrict speech “of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent.” • Brandenburg v. Ohio (1969) • Government could punish speech if it was directed to “inciting or producing imminent lawless action and is likely to incite or produce such action” Tests of Constitutionality of Laws • Clear and Present Danger Test • Direct Incitement Test

Freedom of Speech Protected Speech • Less Prior Restraint allowed • Anti-war Press allowed • Pure Speech • Speaking to people, or via text/writing • Symbolic Speech • A means of expression including symbols or signs • Stromberg v. California (1931) • Display of red flag in protest is protected • Tinker v. Des Moines School District (1969) • Black armband is protected as symbolic protest of war

Freedom of Speech Limitations on Free Speech • “Bong Hits 4 Jesus” Case • Suspension of student was allowed because it promoted illegal activity • Hate Speech • Banned in many cities, and on many college campuses • Governments cannot “silence speech on the basis of its content.” • “Free Speech Zones” created to prevent disruption of university activities • Restrict the time, place, or manner of speech

Freedom of Speech Unprotected Speech and Press • Libel • False written statement that defames the character of a person • Statements must be proven untrue • If against public officials, the statement author must show knowing disregard for the truth • Even intentional emotional distress is not enough • Slander • False statement that defames the character is spoken • Fighting Words • Words “by their very utterance inflict injury” • Governments can regulate “profanity, obscenity, and threats”

Freedom of Speech Unprotected Speech and Press • Obscenity • Roth v. U.S. (1957) • To be obscene, it had to be “without redeeming social importance” • If an average person, applying the material to what is common in one’s community, found it to be lewd or lustful • Roth Test hard to define or standardize for many cases • Miller v. California (1973) • Governments can regulate obscenity by asking whether the material depicts or describes patently offensive sexual conduct and whether it lacks serious value • PROTECT Act (2008) • Outlawed the sale or transmission of child pornography

Freedom of Speech Various things are not protected by the 1st amendment because: “such expressions are no essential part of any exposition of ideals, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”

Freedoms of Assembly and Petition Peaceful Assembly for lawful discussion • The Freedom to assemble depends on peaceful conduct • If the actions or words of attendees/leaders of the peaceful assembly become unconstitutionally protected (libel, clear and present danger), that subjects the participants to government regulation, arrest, incarceration, or civil fines • Where can you peacefully assemble? • Private Property, as long as not breaking the law • Public Property as long as you are following the necessary permits from the local government • As long as you are not interfering with traffic in public areas, providing immediate threat to public order, or inciting the situation of a riot

Freedoms of Assembly and Petition Freedom of Petition • “To petition the government for a redress of grievances” • Includes petitions on behalf of private interests seeking personal gain • Not commonly challenged in court, mostly because it is usually so well entwined with the other freedoms mentioned in the 1st amendment

The Rest of the Bill of Rights

Ratification Three Arguments against the Bill of Rights being included in the Constitution • It would be unnecessary in a Constitutional republic founded on the idea of popular sovereignty and inalienable, natural rights • It would be dangerous - declaring things not be done when the government had no delegated powers to do those things. • It would be impractical to enforce - dependent on public opinion and the spirit of the people and government

Incorporation Doctrine Barron v. Baltimore • Supreme Court ruled the Bill of Rights only applied to actions by the Federal government, not the states 14th Amendment • Suggests that the Bill of Rights be applied to the states • Due Process Clause was rejected as making the Bill of Rights applicable to the states until the end of the 19th century • After that period, States are held to the substantive due process standard, where the STATE must prove their laws are a valid exercise of power

Incorporation Doctrine Gitlow v. New York • Supreme Court articulated the Incorporation Doctrine • Therefore ruling that the Bill of Rights protections extend to people who have their rights abused by the States • States are not allowed to abridge free speech protections • “[W]e may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgement by Congress - are among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states.”

Selective Incorporation Process to limit the Rights of States • Protecting citizens from abridgement of fundamental freedoms by the States • Requires that states respect freedoms of press, speech, and assembly, among other liberties • Considered fundamental to national notions of liberty and justice • Most of Amendments 1, 2, 4, 5, 6, and 8 are incorporated

2nd Amendment Rights The Right to Keep and Bear Arms • Early Americans needed to be armed against Native attacks and other dangers • Were called upon to serve in the State Militia if the need arose • Allowed the State Militias to continue • Preserved the unstated right - the right to revolt

2nd Amendment Rights National Firearms Act (1934) • Response to explosion of organized crime in 1920s • Imposed taxes on automatic weapons and shotguns DC v. Heller (2008) • Ruled the amendment protected an individual’s right to own a firearm in DC • Has since been extended to the states

Rights of Criminal Defendants Article I • Guarantees certain rights for persons accused of crimes • Writs of Habeas Corpus • Court orders in which a judge makes authorities prove they are holding a person lawfully • Accused persons have the right to know what charges are being made against them • Ex Post Facto Laws • Acts are punishable even if the act was legal when it was committed are prohibited • Bills of Attainder • Laws declaring an act illegal without a judicial trial are prohibited

Rights of Criminal Defendants The 4th Amendment • People are protected from unreasonable search and seizures by authorities • Details what cannot be searched without a search warrant obtained through a judge Supreme Court Decisions weigh in • Allows the Police to search… • The person arrested • Things in plain view of the accused person • Places and things that the arrested person could touch or reach, or that are otherwise in the arrestee’s immediate control

Rights of Criminal Defendants The 4th Amendment • Warrantless Searches • Reasonable suspicion of someone who is committing a crime or about to commit a crime is allowed • If police obtain consent from occupants of a house, then they can conduct a search • Police can search an open field if suspected of illegal activity • Houses, Property, Vehicles • Warrants must be obtained for extensive searches of houses, cars, offices - anywhere someone would expect a level of privacy • Courts do not require search warrants in suspected drunk driving cases - However, they are not allowed to use GPS trackers on suspects’ vehicles

Rights of Criminal Defendants The 4th Amendment • Drug Testing • Supreme Court supports mandatory drug testing for conditions of employment • People involved in accidents can be tested for drugs and alcohol

Rights of Criminal Defendants The 5th Amendment • Individuals accused of crimes can have their case heard in front of a grand jury • People do not have to be a witness against themselves • “Pleading the Fifth” - Not self-incriminating • Lawyers/Judges cannot imply that the accused person not being a witness is an admission of guilt, or that they have something to hide • No statements or confessions can be used unless they were obtained voluntarily • Beating, threatening, physical or verbal abuse, and being held without food or water were previous police tactics for obtaining involuntary statements or confessions

Rights of Criminal Defendants The 5th Amendment • Miranda v. Arizona (1966) • Ernesto Miranda was accused of a crime • He confessed only after several hours of questioning • He did not know he did not have to answer questions • He did not know he could be represented by a lawyer • “Miranda Rights” are often read to people to ensure they know their rights and police can conduct themselves legally • Double Jeopardy • Being charged with the same crime in the same jurisdiction is prohibited • Acquitted person can still be tried in a different jurisdiction (in State court instead of Federal court, and vice versa)

Rights of Criminal Defendants The Exclusionary Rule • Prohibits the use of illegally seized evidence at a trial • Judicially created to apply to evidence found or used that would apply to the 4th and 5th amendments • Law enforcement officers cannot violate any constitutional rights in their search for evidence • Not admissible in the courts • Wasted time/energy, and no conviction of a possibly guilty suspect

Rights of Criminal Defendants The 6th Amendment • Guarantees assistance of counsel • Early on, this meant that the accused could hire a lawyer • Many accused person cannot afford an attorney • Gideon v. Wainwright(1963) • Accused man was unable to provide defense, so he had no one to help him mount his own case • Supreme Court ruled that attorneys were a necessity for each party in the criminal courts • Now all criminal cases in Federal court must have a lawyer for the defense of the accused • Has since been expanded to include state courts and any appearance before a judge in a criminal case

Rights of Criminal Defendants The 6th Amendment • Guarantees a speedy and public trial • By an impartial jury of their peers • Has been tested by lawyers because of peremptory challenges • Used to exclude minorities from juries, or exclude one gender from a jury to try to sway the outcome • An impartial and objective group of people that are not discriminated against based on gender or race • Guarantees the right to confront witnesses against them • Cross-examination of the facts of the case as seen by the witness • Not an absolute right - with juveniles or in sexual assault cases • The counsel for the accused can still question them, just not in person

Rights of Criminal Defendants The 8th Amendment • Prohibits cruel and unusual punishments • Many have argued that the death penalty constitutes cruelty • Challenges to the Death Penalty • Not judged as cruel or unusual until the 1970s • Furman v. Georgia (1972) • Supreme Court ended capital punishment because it was being enforced arbitrarily in the states • States crafted new laws to adhere to the standards set by the Court • In 2008, the Court decided to exclude two groups from execution • Those considered mentally deficient • Those under the age of 18

Rights of Criminal Defendants The 8th Amendment • Protections for the Wrongly Convicted • Governors have recently “stayed” executions in their states • Support for the Death Penalty is at its lowest point since the 1970s • DNA testing has exonerated dozens of inmates on death row • Some states offer free DNA testing to those on death row • Racist application of death sentences has made less governors apt to support capital punishment

Right to Privacy Bill of Rights contains indications that the Framers expected some areas of life to be off limits to government • 1st amendment’s religious freedom implies the right to exercise private, personal beliefs • 4th amendment’s guarantee against unreasonable searches suggests people would be secure in their homes and should not fear that police will show up without cause

Right to Privacy Birth Control • Easy access to birth control was not always available • Connecticut and other states had restrictive laws against doctors speaking about contraceptives and/or selling them in stores • Griswold v. Connecticut (1965) • Supreme Court ruled that privacy for married (later expanded to unmarried) people to handle their reproduction was protected by the Constitution • 1,3,4,9,14 Amendments all said to have built-in protections for privacy of the people

Right to Privacy Abortion • Pressure in the 1960s resulted in more people wanting to obtain abortions - even in states that did not allow it • Women’s Rights Advocates • Believed it was a fundamental right for women to make a decision to take a pregnancy to term Roe v. Wade (1973) • Supreme court ruled to split rights based on trimesters • 1st Trimester - Privacy rights paramount; Women can terminate • 2nd Trimester - State has the right to regulate abortions only with respect to women's health • 3rd Trimester - State has rights to keep child, because it is viable

Right to Privacy Conflicts and Challenges regarding Roe v. Wade • Congress banned medicaid funds to go to abortions • Became a huge political issue • The Reagan and Bush administrations were pro-life • Led to Webster v. Reproductive Health Services (1989) which allowed states to impose stricter regulations and limited state aid to give abortions • In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) States could limit abortions as long as they do not pose “an undue burden” on pregnant women - created 24 hr waiting period and parental consent • Clinton was pro-choice • Vetoed Partial Birth Abortion bans twice from Congress

Right to Privacy • Congress finally passed a ban on Partial birth abortions • Galvanized the states to restrict abortions and require ultrasounds for pregnant women wanting to get an abortion • The Court is expected to continue to uphold state laws because they do not place “an undue burden” on pregnant women Homosexuality • Lawrence v. Texas (2003) • Constitutional right to privacy extends to private sexual acts • States cannot criminalize private sexual behavior • Gay Marriage is protected under the Constitution • Obergefell v. Hodges (2015) • Considered an equal protection/full faith and credit issue

Civil Liberties and Terrorism 1st Amendment • Certain rights are suspended under USA PATRIOT Act • Those given search orders were barred from disclosing that to anyone • FBI can investigate someone who exercises their freedom of speech even when no part of the speech could be labeled illegal • Pressure on the media to report positive aspects of the war on terror 4th Amendment • USA PATRIOT Act lifts search and seizure restrictions • Allows the examination of private records if held by 3rd parties • Expands the right to search property without notice • Expands ability to collect foreign intelligence information • Expanded ability to collect address and message information

Civil Liberties and Terrorism Due Process • Under USA PATRIOT Act • Habeas Corpus rights are suspended for suspected terrorists • Allows the government to declare permanent resident aliens to be enemy combatants and they could be held without trial or due process indefinitely • Roberts Supreme Court ruled this part unconstitutional, so the incarcerated have a right to challenge their detention in court • Rights to trial by jury are suspended • Obama Administration is against this, but has not returned any rights to detainees • Detainees are subject to torture in federal facilities across the world • No one has been prosecuted in relation to these actions

Civil Liberties and Terrorism USA Freedom Act • Reauthorization of the USA PATRIOT Act in 2015 • Ended bulk collection of phone records from US citizens • Kept many of the previous provisions of USA PATRIOT in place until 2019 • Heralded as a win for rights advocates, because many felt that the collection was in violation to the 4th Amendment • Obama supported passage along with both houses of Congress • Obama only supported when an investigation found that the collection was not necessary for investigations into possible terrorism

Chapter 4 - Civil Liberties