CIVIL LIBERTIES

1. CIVIL LIBERTIES

2. THE UNALIENABLE RIGHTS • Civil Liberties are …. • Protections against arbitrary acts of government; delineated in the Bill of Rights • Framers felt primary purpose of government is to protect individual rights – included in Dec. of Ind. AND Constitution. • HOWEVER, individual rights are not unlimited – not absolute, but instead are relative – they arelimited by the rights of every other person – they MUST be balanced with the rights of others in society. • For example …..?

3. Protection of individual rights applies to …. • ALL PERSONS, aliens a/w/a citizens • BUT… • KOREMATSU v. U.S. – 1944, rights can be suspended if …. • What about the question of education of illegal aliens? • PLYER v. DOE, 1982 • TX could not deny funding for education to children who were illegal immigrants (5-4 decision) The right to an education is based on where a person lives, not their alien status.

4. SELECTIVE INCORPORATION Your civil liberties protect you from what government? • Barron v. Baltimore, 1833 • 5th Amendment eminent domain case – Barron damaged by action of city of Baltimore (“took” land – his wharf - w/o compensation) • Court held that Bill of Rights restrained ONLY the national government – they did not restrain states and cities – city of Baltimore wins. • Some felt Court had gone too far in saying states & cities were not restrained by ANY of Bill of Rights.

5. Gitlow v. New York, 1925 • Free Speech & press case • (anarchist/socialist speech/leaflet) • Began the “incorporation doctrine” • Most of the protections in the Bill of Rights are also covered by the 14th Amendment’s due process clause and therefore also apply to the states • Incorporation = merging the Bill of Rights guarantees into the 14th Amendment thereby “nationalizing” the Bill of Rights. • Fourteenth Amendment, Sec. One, prohibits any state from depriving "any person of life, liberty, or property, without due process of law." • Gitlow Ct. held that based on the “due process” clause of the 14th Am., the fundamental speech and press protections of the First Amendment should be extended to the states.

6. DUE PROCESS • 5TH Amendment says Federal government may not deprive a person of life, liberty or property without due process of law • 14th Amendment places this same restriction on the States • “Due Process”simply means gov’t cannot deny rights to any person that are considered basic/essential to the American concept of ordered liberty • Two types: • Procedural due process – deals with HOW the gov’t acts • Gov’t has to act fairly & within the rules – for example, you have the right to be notified of charges or proceedings, the opportunity to be heard at these proceedings, and right of impartial decisions, etc. • Substantive due process provides that the laws, policies, rules of gov’t must be fair --- the “WHAT” • Rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary- freedom of speech and religion, etc.

7. By the 60s, most of Bill of Rights were incorporated. • “Selective” Incorporation though because only certain rights have been selected and incorporated via the 14th Amendment. • Which ones have NOT been incorporated?

8. FREEDOM OF RELIGION

9. Fundamental belief is that free expression, including freedom of religion, is necessary to a free society. • Two Clauses: Establishment and Free Exercise • Establishment Clause: • Controversy: does it simply prohibit favoring one religion over another?.... OR • Jefferson’s “wall of separation” between church and state? • the wall prohibited not only favoritism of a particular religion, but also ANY support for ANY religion at all. • Read the clause – what do you think? • “Congress shall make no law respecting an establishment of religion….” • How did LBJ get parochial aid approved in 1965? • Argued that aid went to the students, not the schools, & thus $ could go wherever the students were (but since most parochial schools are Catholic, is the Catholic religion favored?)

10. Lemon v. Kurtzman, 1971 • Landmark case on government aid to church-related schools • Was NOT allowed in this case • Court set out 3 pronged “Lemon” test: • Aid must have a secular purpose • Primary effect must not advance nor inhibit religion • Must not create excessive gov’t “entanglement” with religion

11. Permissible “religious” activities: • Gov’t aid for textbooks, equipment, lunches, at parochial schools (but NOT teacher salaries) • Can schools deny religious meetings on campus? • NO - 1984 Equal Access Act: schools that receive federal funds must allow student religious meetings on campus if it opens its doors to other student meetings • U of VA was required to subsidize student religious magazine just like it did other student publications - 1995

12. SCHOOL PRAYER –ESTABLSHMENT CLAUSE: • Engle v. Vitale, 1962 • Forbids the sponsorship or encouragement of prayer by public school officials • State officials had written non-sectarian prayer to be recited by NY schoolchildren at beginning of day • Court said religious beliefs were embodied in it even though not explicit • Same ruling in Abbington School District v. Schempp, 1963 – PA law that allowed a Bible passage to be read at beginning of day held unconstitutional

13. Majority of American public has never supported Court’s opinion on school prayer • Has it gone too far – has it gone far enough? • 1992 – school sponsored prayer at graduation held to be unconstitutional; again in 2011 • 2000 – student-led prayer at football game held to be unconstitutional

14. Other Establishment issues: • LA required schools to teach creation science in addition to Darwin – Sup. Ct. struck it down in 1987. • Displays of religious symbols also an issue: • Nativity scenes okay as long as Santa Claus, or other secular symbols, there also • Ten Commandments not allowed to be posted in public buildings

15. FREE EXERCISE CLAUSE • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” • Free Exercise clause protects individuals’ right to BELIEVE– but not to DO – whatever they wish. • What kinds of actions might society find necessary that are forbidden by certain religions – or vice versa? • Amish – Ct. held in Wisconsin v. Yoder that Amish children CAN be released from compulsory education after 8th grade • Santeria case, Hialeah, FL – are animal sacrifices part of “free exercise” of religion? • Court said yes • What about Christian Scientists & their beliefs?

16. 1ST AMENDMENT RESTRICTIONS • SPEECH: Some speech is UNPROTECTED – for example? • obscenity, child pornography, defamatory speech, and seditious speech. • Courts have to apply “balancing test” in determining permissible or impermissible speech • What do they balance freedom of expression against? • competing values like public order, national security, right to a fair trial, etc. • Courts also have to decide what “speech” actually is • ASSEMBLY: • must be lawful + nonviolent; • order is maintained by time, place, manner restrictions; precise, fairly administered & content neutral. • NO private property trespassing!

17. What is the difference between libel and slander? Both concern false and malicious use of words Libel = printed words; Slander = spoken words Landmark Supreme Court Case: NY Times v. Sullivan (1964) Statements about public figures are libel ONLY if made with malice & reckless disregard for the truth Supreme Court allows much in way of parody or lampooning of public figures: Falwell v. Hustler “first time” case FREEDOM OF SPEECH & PRESS

18. Court DOES allow it in public schools - have power of censorship • Landmark Case: • Hazelwood School District v. Kuhlmeier (1988) • School newspaper not a “public forum” • Regulation (censorship) allowed –school has basic educational mission • “Prior Restraint” refers to … • pre-publication censorship by gov’t • Landmark case: • Near v. Minnesota, 1931 • “Jewish gangsters” • Court generally disallows prior restraint even in national security situations: • Pentagon Papers case • NY Times v. U.S. • Nixon seeking injunction - Ct. ruled in favor of paper

19. Seditious speech is NOT protected. Schenck v. the U.S. (1919) Socialist party official urging men drafted in WWI to resist service Court found the speech seditious But, also set“clear and present danger doctrine” Change in Brandenburg v. Ohio (1969)? Can advocate overthrow in abstract; just can’t incite action toward it OBSCENITY not protected either Landmark Supreme Court Cases: Roth v. U.S. (1957) Miller v. CA (1973) Obscenity defined Problem is there’s no nationwide definition of “lewd or offensive” or that it should be banned from adults Laws protecting kids from it are popular though

20. THE MEDIA & FREE SPEECH • Absolute right to cover trials (not necessarily pretrials) • Reporters & sources & testimony: • Some states, including FL, have passed “shield laws” to protect reporters • NOT protected federally • Landmark Supreme Court Case: • Branzburg. V. Hayes (1972) • In absence of shield laws, right of a fair trial preempts reporter’s right to protect sources & they have to provide them if asked

21. Have more restrictions than print media Movies do enjoy 1st amendment right to “liberty of expression” Content of radio & TV broadcasts regulated by FCC (commerce power) Radio & TV ads are subject to gov’t regulation through the FTC Note though that restrictions have been loosened And, more lax rules for cable U.S. v. Playboy Entertainment (2000) Can’t ban programming; subscriber must request blocking SYMBOLIC SPEECH can be protected Tinker v. Des Moines School District (1969) Black armbands protesting Vietnam War Court upheld students right of symbolic speech Movies, Radio, TV:

22. Other Protected “Expressions” • Burning the flag held to be “freedom of expression” – symbolic speech • Landmark Supreme Court Case: • Texas v. Johnson (1989) • outside 1984 Republican Convention in Dallas • Flag Protection Act, 1989 … struck down in 1990 • Parades are protected “speech” insofar as who is included

24. FREEDOM OF ASSEMBLY & PETITION • Right to assemble guaranteed BUT • Government regulation can be imposed: • Time, place, manner regulations • Particularly near schools and churches • Rules must be “content neutral” – meaning? • Harassment not allowed • “Right of association” • To associate with people sharing common interest • NAACP v. Alabama (1958) • AL wanted membership list; Ct. said no • Boy Scout case, 2000

25. How has the war on terror affected your civil liberties?

27. Defendants’ RightsAmendments 4, 5, 6, 8 • 4TH AMENDMEDNT: enacted in response to British writs of assistance (blanket search warrants) during the colonial days • Right to be secure in your persons, homes, papers and protected against unreasonable search and seizure. • 4th Amendment – police have no general right to search and seize -- need a warrant (specifying area of search & material) obtained by probable cause … UNLESS….. • Evidence is in “plain view. • Police can also arrest w/o a warrant if have probable cause to believe a crime has been or is about to be committed - Wingspan rule?

28. 4TH Amendment & Automobiles • Officer does NOT need warrant to search car, boat, plane, etc. if there’s probable cause to believe it is involved in illegal activities. WHY? • 1990s cases held that police who lawfully stop a car do not need a warrant to search anything in a car that they have reason to believe holds evidence of a crime – includes glove box, trunk, and the belongings of the passengers • 2012 case, 5/4 decision – jailers can use strip searches on people arrested even for minor offenses. Reasoning? 4TH Amendment & Strip Searches

29. EXCLUSIONARY RULE • Evidence gained as the result of an illegal act by police cannot be used at the trial of the person from whom it was seized. • Has been changed over time to extend to the states - Landmark Supreme Court Case: • Mapp v. Ohio – 1961 / exclusionary rule incorporated/applicable to states • Police can obtain only evidence found through a legitimate search warrant & any other evidence found (unless “in plain view”) is inadmissible. • Note: Supreme Ct. has found some exceptions to the rule …. • 1980s - can use the evidence if it led police to a discovery they would have eventually made anyway without it • 1995 – rule does not exclude evidence obtained illegally as result of clerical error

30. RIGHTS OF THE ACCUSED • Writ of habeus corpus (writ of liberty) • Accused to be brought before Court and officer to show cause as to why he should not be released • Prohibition against ex post facto laws (criminal laws) • Right to indictment (accusation) by grand jury • Applies only to “serious” crimes • determined by the nature of the punishment that may be imposed; capital offenses require grand juries • Operate in closed (secret) deliberation proceedings • No attorneys present for defendants • Relaxed rules – exclusionary rules does NOT apply • Can call and examine witnesses w/o telling why • Has NOT been incorporated to states under 14th Amendment – so can be abolished by states…replaced in many by preliminary hearings instead 5th AMENDMENT RIGHTS:

31. RIGHTS OF THE ACCUSED 5th AMENDMENT Prohibition against Double Jeopardy Can’t be tried for the same crime twice UNLESS…..what would be the exception? Right against self-incrimination in any proceeding that could lead to a criminal charge (federal or state) Doesn’t just apply to trial - starts with arrest! MIRANDA v. ARIZONA, 1966

32. Miranda • Multiple kidnapping/rape/robbery accusations • Finally arrested and picked out of a line-up • Confessed after 2 hrs. of police interrogation • Had not been informed of his rights. • The Supreme Court set aside Miranda's conviction, which was tainted by the use of the confession that had been obtained through improper interrogation. The state of Arizona retried him. At the second trial, his confession was not introduced into evidence, but he was convicted again anyway. He was sentenced to 20 to 30 years in prison. • Miranda was paroled in 1972. After his release, he started selling autographed Miranda Warning cards for $1.50. Over the next years, Miranda was arrested numerous times for minor driving offenses and eventually lost the privilege to drive a car. He was arrested for the possession of a gun but the charges were dropped. But because this violated his parole he was sent back to Arizona State Prison for another year. • After his release, Miranda spent most of his time in poorly kept bars and cheap hotels in rough sections of Phoenix. Miranda, then working as a delivery driver, participated in a card game at La Amapola Bar. • On January 31, 1976, a violent fight broke out and Miranda received a mortal knife wound from a lettuce knife; he was pronounced dead on arrival at Good Samaritan Hospital. He was 34 years old. • Police officers apprehended a male suspect shortly afterward and read him his Miranda rights from a small rectangular card, while another suspect involved in the murder fled to Mexico.

33. 6th AMENDMENT • Right to a “fair and speedy trial” which includes • right to confront a witness against you • right to a witness in your favor • right to assistance of counsel in your defense • right to be tried in district where crime was committed • right to be informed of the charges against you • right to a PUBLIC trial - WHY? • But trial can’t be TOO public … i.e., allowing for mobs, etc. • The dilemma with tv cameras is that the courtroom is a public place where press is allowed, HOWEVER… • Media cannot interfere with “fair” trial • Judge gets to make the call on the media vs. “fair”

34. 6th AMENDMENT • “Fair” trial includes right to an attorney • Landmark Supreme Court Cases: • Gideon v. Wainwright (1963) – right to attorney at trial for any criminal action (FL law only required state to appoint attorneys for capital offenses) – extended to state courts • Escobedo v. Illinois (1964) - & in police interrogation • Miranda v. Arizona (1966) – also rules in favor of right to secure counsel

35. 8th AMENDMENTCRUEL & UNUSUAL PUNISHMENT • Applied to states through 14th amendment & is prohibited but not many cases on it • Court usually rules against claim of cruel & unusual punishment; most claims are on capital punishment • Landmark Supreme Court Case: • Gregg v. Georgia (1976) • Death penalty NOT cruel & unusual • (1989 – even for 16 & 17 year olds) • 2002 – can’t execute mentally retarded • Baze v. Rees (2008) • Court held that KY’s lethal injection scheme did not violate the 8th Amend.

36. 8th Amendment - BAIL • Bail is $ accused is required to post as guarantee that he will appear in court at proper time • Note: the Constitution does NOT guarantee a right to bail, just that if it is set, it can’t be “excessive.” Why is bail even allowed? • “Excessive” is ruled to be amount higher than necessary to insure defendant’s appearance at trial • Some defendants (no flight risk, etc.) released “on their own recognizance” – their own honor • “Jumping bail” – failure to appear at Court – is a crime in and of itself

37. RIGHT TO PRIVACY • NOT specifically guaranteed in Bill of Rights • But, Court has now deemed it to be included and implied by a “penumbra” of guarantees in the Bill of Rights (rt. to exercise private religious beliefs, protected in homes, 14th amendment due process, etc.) • First appears in 1965 contraceptives case, Griswold v. CT: • 1879 CT law forbade the use of contraceptives (trying to put an end to adultery) • Court ruled that family planning (i.e., birth control) is private between husband & wifeand protected by the Constitution • A 1972 case extended the same right (under equal protection clause of 14th amendment) to unmarried couples as well

38. RIGHT TO PRIVACY • What about GPS? Can the police attach a GPS device on a suspect’s vehicle for surveillance? • What about your trash? Can your trash be searched?

39. Won by Love: Norma McCorvey, Jane Roe of Roe V. Wade, speaks out for the unborn as she shares her new conviction for ife - State CAN place reasonable limits on woman’s right to an abortion but they can’t impose an undue burden on her choice to have the procedure - CAN require counseling, parent notification if a minor, 24 hour wait time, etc. • Most controversial application of privacy rights is with the issue of ABORTION • Roe v. Wade – 1973 • Ct. followed medical trimesters • No state control allowed in 1st trimester • 2nd trimester – only to protect mother • Banned it during 3rd trimester UNLESS mother’s life or health in danger • Test over state control originally WAS one of “strict scrutiny” of any restraints on a “fundamental right” • BUT, test of state control now is one of “undue burden” • Planned Parenthood v. Casey, 1992

40. Florida & Abortion In Florida, 381,500 of the 3,505,482 women of reproductive age became pregnant in 2008. 61% of these pregnancies resulted in live births 25% in induced abortions. Restrictions in effect as of April 2013: Health plans offered under Healthcare Reform Act can only cover abortion in cases when the woman's life is endangered, rape or incest The parent of a minor must be notified before an abortion is provided. Public funding is available for abortion only in cases of life endangerment, rape or incest. Ultrasound required beforehand - the provider must offer her the option to view the image.

41. RIGHT TO DIE? • Another controversial issue is whether there is a right to choose to die or a right for parents to allow their children to die • Cruzan v. Director, MO Dept. of Health, 1990 • Individuals DO have the right to right to refuse medical treatment under the due process clause • BUT incompetent persons (e.g., in vegetative state) are NOT capable of making that decision • Need “clear and convincing evidence” that they would desire medical treatment to be withdrawn • Court ruled in 1997 that there is no constitutional right to physician-assisted suicide and that states may prohibit it