Civil Liberties and Civil Rights

1. Civil Liberties and Civil Rights

2. Terms for this unit Assimilation Due process Probable cause Civil liberties Civil rights Selective incorporation Affirmative action Strict scrutiny libel Slander Seditious speech Jus sanguinis Jus soli Naturalization Reservation deportation

3. Civil liberties vs. civil rights Civil liberties are individual rights protected by the Constitution Civil rights are the actions taken to make sure that groups are treated fairly

4. Bill of Rights is about civil liberties Freedom of speech, religion, assembly, press, rights of the accused, right to a fair trial The Constitution as originally written did not contain a number of specific rights and restrictions on government authority

5. Anti-Federalists objected to the lack of a bill of rights Federalists said that the first congress would draw up a list of safeguards to protect basic rights Led by James Madison, the first congress wrote 10 amendments which were passed by the states in 1791

6. Scope of the Bill of Rights Note that the Bill of Rights originally applied to federal government only,. “Congress shall make no law…” Barron v. Baltimore • John Barron claimed that the city had damaged his business because a construction program made it hard for vessels to land and do business • Chief Justice John Marshall and the Supreme Court ruled that property compensation (5th) did not apply to states

7. Fourteenth Amendment Ratified in 1868 Grants citizenship to all races “No STATE shall make any law which shall abridge the privileges or immunities of citizens of the United States”

8. Write it outand in your own words 14th Amendment (658) Due Process Clause Equal Protection Clause

9. Gitlow v. New York 1925 Gitlow wrote a pamphlet “The Revolutionary Age” urging people to join in a revolution to overthrow organized government Arrested because of New York law against seditious speech Court upheld conviction-seditious speech is not protected by Constitution But also said that whatever free speech laws were applicable to US citizens had to be observed by the states

10. Incorporation Doctrine The incorporation process did not occur all at once but is a series of Supreme Court decisions that made sure that Due Process Clause of the 14th amendment applied to states List 2 court cases in which states had to change laws due to the incorporation doctrine

11. Freedom of religion- 1st amendment -America’s religious liberties originated in colonial opposition to government sponsored churches -2 clauses about religious freedom -Establishment Clause prohibits “establishment of religion” - Free Exercise Clause prohibits interference of free practice of religion -Both of these protections have extended to states by the Due Process Clause of the Fourteenth Amendment

12. Establishment clause “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” “Wall of Separation” -Thomas Jefferson contended that the First Amendment created a “wall of separation between Church and State,” forbidding any government support for religion - Although Americans have traditionally opposed the creation of a national church, school prayer and aid to church-related schools have sparked controversial court cases

13. Engel v. vital 1951 New York Public Schools issued a prayer for public schools Steven Engel (father) objected (1962) Supreme Court said school prayer was unconstitutional

14. Lemon v.Kurtzman Nonpublic elementary and secondary school Act that allowed the state Superintendent to reimburse private church-related schools for secular textbooks, teachers salaries for secular subjects, and instructional materials Supreme Court said that if public money was going to give money to a private school that aid must do the following:

15. Lemon test Must have a secular purpose Must neither advance or inhibit religion Must not foster an excessive entanglement between government and religion

16. Free exercise clause Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” Free Exercise Clause guarantees each person the right to believe whatever they want However a religion cannot make an act legal that would otherwise be illegal. The government can act when religious practices violate criminal laws, offend public morals, or threaten community safety Oregon v. Smith (1990) the Supreme Court banned the use of a hallucinogen in religious ceremonies

17. Reynolds v. United states 1879 Reynolds was a member of the Mormon Church and married to 2 women Convicted of Polygamy Wanted conviction overturned because of 1st Amendment Court said that beliefs could not be that “lies solely between a man and his god” However society has the right to legislate against religious activities that violate the law of the land Religious belief is not superior to the law of the land

18. Freedom of speech 1st Amendment, “Congress shall make no law… abridging the freedom of speech or the press Framers believed that the right to free speech is a fundamental natural right Writing of Voltaire 14th amendment protects free speech and press at a state level

19. Protection of unpopular views Intended to protect unpopular views The freedom to differ is not limited to things that don’t matter much Even if someone is wrong it does not mean they should be silenced

20. Clear and present danger test The Espionage Act of 1917- prohibited forms of dissent deemed to be harmful to the nation’s war effort Schenk v. United States Schenck opposed America’s participation in WW1 and passed out leaflets about people resisting a potential draft Arrested for violating Espionage Act

21. Schneck argued that the espionage act was unconstitutional because it violated freedom of speech Justice Oliver Wendell Holmes said “Free speech would not allow a man to yell fire in a crowded theater and cause a panic Words cannot create a “Clear and Present Danger”

22. Brandenburg v. ohio 1969 Limited Clear and Present Danger Test by ruling that the government could punish advocacy of illegal action only if “such advocacy is directed to inciting or producing immediate lawless action and is likely to incite or produce such an action”

23. Limits on free speech Libel- written defamation that falsely hurts a persons reputation Must be done maliciously (New York Times v. Sullivan) Slander- spoken defamation that falsely hurts a persons reputation

24. *!#! In Roth v. United States (1957) Supreme Court Said Obscenity is not protected by Free Speech Miller v. California (1973) Court made test for obscenities It is up to communities to implement the test or FCC

25. 3-Pronged testObscenity Test (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

26. Symbolic Speech Symbolic speech includes forms of nonverbal communication including signs, clothes and burning the flag 1965 Tinker v. Des Moines (armband case) Freedom of Speech is protected in schools

27. More Cases In Texas v. Johnson- Court (1989) said that flag burning is a protected form of free speech Cannot use free speech to incite an illegal act. Cannot burn a cross to threaten someone

28. Prior Restraint Attempt to limit freedom of press by preventing something from being published. A form of censorship Supreme Court USUALLY rules that prior restraint is unconstitutional Some extreme cases it’s allowed- someone advocating a terrorist act School boards can exercise editorial control over the style and content of student speech in school sponsored activities as long as their actions are a reasonable pedagogical concern

29. Rights of the Accused- Original Constitution “Writ of Habeas Corpus”- unless in cases of rebellion the public safety may require it Bill of attainder- It’s illegal. You cannot punish someone without a trial Ex post facto laws- Can’t be punished by a new law for something you did in the past

30. Searches and Seizures 4th Amendment- Right of people to be secure in their persons, houses, etc. against unreasonable search and seizure Exclusionary Rule- Cannot admit evidence obtained illegally Weeks v. US 1914 established the rule for federal cases Mappv. Ohio (1961) state level (Part of incorporation doctrine)

31. The right to counsel 6th amendment- “accused…assistance of counsel for his defense” Gideon V. Wainwright (1963) Gideon accused of stealing money Judge refused to give court appointed attorney Supreme Court unanimously ruled that 6th amendment right to counsel should also apply to major state crimes through Due Process clause of 14th amendment

32. Miranda Rule 5th Amendment prevents people from having to incriminate themselves Miranda v. Arizona (1966) -Miranda mentally challenged accused of rape and murder - 2 hour police interrogation, signed confession - Never made aware of his rights - Supreme Court overturned conviction What are you Miranda Rights????

33. Right to privacy • Right to an Abortion falls in this category • “The Right to be Left Alone” • Bill of Rights does not specifically grant a right to privacy but Constitutional provisions imply it: • - 1st amendment Freedoms • - 3rd Amendment protection against forced quartering of soldiers • - 4th Protection against unreasonable search and seizure • - 5th Amendment private property cannot be seized without due process of law

34. Griswold v Connecticut 1965 -Estelle Griswold (Planned Parenthood) challenged the constitutionality of a 1879 law that prohibited the use of any drug or instrument for the purpose of preventing conception -Supreme court ruled that criminalizing the use of contraceptives violated the rights to marital privacy - Right to privacy is an unstated liberty

35. Roe v. Wade 1973 Jane Roe (alias) challenged a Texas law outlawing abortion even if the mother’s life was at risk Roe argued that her right to abortion was not government business and part of her right to privacy Supreme Court struck down law 7 to 2

36. Challenges to Roe Webster v. Reproductive Health Services 1989 - Supreme Court upheld a Missouri law prohibiting abortion except when a mother’s life was in danger Planned Parenthood v. Casey 1992 - A state may place reasonable limits on abortions (24 hour waiting period, parent consent)