Civil Rights Civil Liberties

1. Civil RightsCivil Liberties Chapter 3

2. Civil Liberties v. Civil Rights: NOTES • Check your book for the distinction, but the distinction will not be relevant to my discussion or your tests. • NOTE: the list on Page 79 only describes the first 10 Amendments – it ABSOLUTELY does not quote them. Do not use those descriptions in a citation, use the REAL language of the amendments instead.

3. Foundation of Rights and Liberties in US • US Constitution (at the core) • No ex post facto laws • No bill of attainder • Right of habeas corpus guaranteed • Right to a hearing by a judge • Specific charges must be brought • Sufficient evidence for suspicion required • Etc.

4. Bill of Rights • First 10 Amendments • Enumerate a list of specific limits on government • Guarantee a specific set of rights and liberties against government infringement

5. Bill of Rights Amendment IX • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X • The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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

7. First Amendment • Freedom of Religion • Freedom of Speech • Freedom of the Press • Right of Assembly • (association is implied) • Right of Petition

8. Freedom of Religion • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

9. Freedom of Religion Establishment clause: Original intent • No state religion • No preference • Only Jefferson saw a “wall of separation,” most others assumed some interplay

10. Establishment Clause Non Preference Test • Government must show no preference among various religions • Sees no problem with general support of all religions equally

11. Establishment Clause Lemon Test: a Constitutionally valid law: • Must have a secular purpose • Must neither advance nor inhibit religion • Must avoid “excessive government entanglement with religion”

12. Establishment Clause Endorsement Test: A Constitutionally valid law: • Must not give a reasonable person the impression of government endorsement of religion • (strict separation)

13. Freedom of Religion • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

14. Free Exercise Clause Compelling Interest Test: a constitutionally valid law: • Must show a “compelling public interest” to justify any restriction of religious practice • Must demonstrate that the restriction is the “least drastic means” of accomplishing the compelling interest • Religion is assumed to have a “preferred position”

15. Free Exercise Clause Employment Division V. Smith 1990. Under this test, a Constitutionally valid restriction on religion: • Must be generally applicable • Must not single out religious practices specifically as such • Religion has no special position or “preferred position”

16. Free Exercise Clause Employment Division V. Smith 1990 • Political reaction: • Religious Freedoms Restoration Act, 1993. (RFRA) • Ordered the Supreme Court to follow the “Compelling Interest” standard. • RFRA ruled unconstitutional 1997

17. Freedom of Speech Amendment I • Congress shall make no law . . . abridging the freedom of speech . . . • Preferred Position Doctrine: Free speech is so important it requires special protection from the courts

18. Freedom of Speech Doctrines and rules about when speech can be restricted: • Clear and Present Danger • Does the expression create an immediate and obvious physical danger? • If so, it may be restricted regulated

19. Freedom of Speech Doctrines and rules about when speech can be restricted: • Prior Restraint • Does the proposed restriction require approval or permission before a message/speech is delivered? • If so, then that law or restriction is unconstitutional

20. Freedom of Speech Doctrines and rules about when speech can be restricted: • Vagueness • Are the rules and definitions that identify illegal or restricted speech clear and specific? • If not, then the law restricting the expression is unconstitutional

21. Freedom of Speech Doctrines and rules about when speech can be restricted: • Least Drastic Means • Is there some other means to accomplish the valid government goal that does not require restricting free speech? • If another method exists, then the restriction or ban on speech is unconstitutional

22. Freedom of Speech Doctrines and rules about when speech can be restricted: • Content / Viewpoint Neutrality • Does the rule restricting speech favor one perspective or assault another? • If it shows favoritism or attacks one perspective, then it is unconstitutional

23. Freedom of Speech Unprotected Speech • Commercial speech • Slander • Obscenity • Hate speech???

24. Freedom of the Press Amendment I • Congress shall make no law . . . abridging the freedom . . . of the press . . . • Special access to information? • No • Right to withhold sources? • No • Shield laws in many states (including CA)

25. Freedom of the Press“Sunshine Laws” Freedom of Information Act: “FOIA” (Federal) All public records are public Must be accessible upon request Some exceptions: White House, Attorney/Client, national security, undercover investigations, personal info in personnel records, etc

26. Freedom of the Press“Sunshine Laws” Freedom of Information Act: On written request Government must provide access and copy opportunity If plaintiff sues and wins, Government pays costs. Over 90% success for plaintiffs

27. Freedom of the Press“Sunshine Laws” California Public Records Act: “CA PRA” (CA State) Similar to FOIA, but for State Fewer Exceptions State office must provide name of decision maker and the specific exception they are claiming if they deny access Can not deny access because document is “unreliable” or “inaccurate” Higher success rate for plaintiffs State pays costs if plaintiff wins

28. Sunshine Laws -- Both Both FOIA and CA PRA created for press access Both accessibly to anyone Both useful if ever you have a ‘beef’ with a government agency • They can’t keep secrets!!!

29. Expansion of Rights and Liberties: History of progressive Inclusion • Some selected historical cases and points. Check your book for more. Also check the outline posted on the web

30. Civil War Expansion 13th Amendment: • Abolition of Slavery 14th Amendment: • Privileges and Immunities, Due Process, Equal Protection (extends most of the Bill of Rights to states) 15th Amendment: • No rights to be denied on account of race

31. Post Civil War Exclusion Plessy v Ferguson: 1896 • “Separate but equal,” upholds segregation • Literacy Tests • Poll Taxes • White Primaries

32. Progressive Inclusion • 19th Amendment: Women’s Vote: 1920 • 1948 Shelly V. Kraemer • Housing: No racial exclusion in compacts • 1954 Brown V. Board of Education • Education: Strikes down “separate but equal” • 1964 Civil Rights Act • 1965 Voting Rights Act • 1968 Fair Housing Act

33. Judicial Tests: Discriminating Classifications Rational Basis Test • All classifications • Is there a rational reason? Heightened Scrutiny • Gender, Age, Religion • Is there an important public interest? • Is this classification substantially related to the public interest?

34. Judicial Tests: Discriminating Classifications Strict Scrutiny Test • Race • Is there a compelling public interest? • Is the policy narrowly tailored? • Is the policy the least drastic means?