Civil Liberties

1. Civil Liberties Civil liberties = protections the Constitution provides against the abuse of government power

2. Objective 7 Discuss the relationship of the Bill of Rights to the concept of democratic rule of the majority, and give examples of tension between majority rule and minority rights. Explain how the politics of civil liberties may at times become a mass issue, and over several examples

3. What are civil liberties? Civil liberties are the protections you have against the government Most of our civil liberties originate in the Bill of Rights—although there are others like Habeas Corpus found in the Constitution itself How is this different than civil rights?

4. Which of the BOR are most important? • Amendment One • Religion • Establishment Clause • Free Exercise Clause • Speech • Press • Peaceable Assembly • Petition for redress of grievances

5. Which of the BOR are most important? • Amendment Two • “…the right of the people to keep and bear arms shall not be infringed.” • Amendment Four • Search & Seizure • Amendment Five • Grand Jury • Double Jeopardy • Eminent Domain

6. Which of the BOR are most important? • Amendment Six • Speedy and Public Trial • Assistance of counsel • Amendment Eight • Cruel and unusual punishment • Excessive bail and fines • Amendment Nine • The listing of rights in the Constitution does not deny those retained by the people • Amendment Ten • Everything not listed here left to the states to decide

7. Objective 8 Explain how the structure of the federal system affects the application of the Bill of Rights. How has the Supreme Court used the Fourteenth Amendment to expand coverage in the federal system? Discuss changing conceptions of the due-process clause of the Fourteenth Amendment

8. Does the Bill of Rights apply to states? • Originally, the BOR only protected people from the Federal Government • Added as a promise that the new, and stronger, federal government wouldn’t get too strong • It was assumed that each state had its own bill of rights • Most of them did

9. Does the Bill of Rights apply to states? • Barron v. Baltimore (1833) • Eminent Domain Protection • Supreme Court ruled that the BOR only applied to the Federal government • States rights (10th Amendment) were viewed as more important than national supremacy • But…What happens if your state doesn’t want to protect your civil liberties?

10. 10th Amendment “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.”

11. Then came the 14th Amendment…

12. The Fourteenth Amendment (1868) Due Process Clause: “no state shall deprive any person of life, liberty or property without due process of law” Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws”

13. Slaughterhouse Cases (1873) In NO, the slaughterhouses were located upriver and the offal dumped into the river was contaminating the city’s water supply The Louisiana state legislature closed all upriver slaughter-houses and gave a monopoly to the Crescent City Livestock, Inc. which would be located downriver.

14. Slaughterhouse Cases (1873) I don’t have the privilege toearn a living! The Louisiana Law is unconstitutional because it violates the 14th A group of local butchers brought suit arguing that the law violated the “privileges and immunities” clause of the newly enacted Fourteenth Amendment.

15. Slaughterhouse Cases (1873)The 14th Amendment Does this section mean that now the states have to follow the Bill of Rights? Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No STATE shall make or enforce any law which shall abridge (deprive) the privileges or immunities of citizens of the United States;…

16. 5-4 Ruling Justice Samuel F. Miller Author of the Majority Opinion The “privileges or immunities’ clause was primarily designed to grant equality to the slave race. Furthermore, the clause does not require a state to extend privileges (like the right of every person to start a slaughterhouse). The clause merely requires states to apply its laws equally to state residents and out-of-staters. Louisiana’s slaughterhouse law does not violate the 14th amendment

17. 14th AmendmentDue Process and Equal Protection Clauses “…nor shall any state deprive any person of life, liberty, or property without due process of law; nor (shall any state) deny any person within its jurisdiction the equal protection of the law.”

18. “Selective” Incorporation On a case-by-case basis SCOTUS has nationalized (meaning applied to states) the BOR Once an amendment has been incorporated, you are protected from both the federal and the state governments

19. Sponge Analogy 5 1 4 6 The 14th Amendment is a sponge The 14th Amendment soaks up the 1st, 2nd, 4th and portions of the 5th, 6th, 8th and 9th Amendments The SCOTUS squeezes the sponge over state and local governments and soaks with a new constitutional standard I borrowed this idea from some dude online

20. Incorporation Cases 1925 (Gitlow v. New York): declared federal guarantees of free speech and free press also applied to states 1937 (Palkov. Connecticut): certain rights must apply to the states because they are essential to “ordered liberty” and they are “principles of justice” 1965 (Gideon v. Wainwright) Right to Counsel an essential right

21. Gideon v. Wainwright Incorporation Example Gideon was not allowed an attorney after being arrested for a felony A Florida STATE judge told Gideon that the 6th Amendment didn’t apply to him because he wasn’t being charged with aFEDERALcrime – therefore the state didn’t have to honor Gideon’s 6th Amendment protections

22. Gideon v. Wainwright Incorporation Example From prison, Gideon petitioned the Supreme Court to use the Due Process Clause to “soak up” the 6th Amendment and get a new trial – this time with an attorney He applied for a writ of certiorari

24. Incorporation Example Gideon v. Wainwright All people in the US, whether charged in federal or state court, have the right to an attorney (for felony charges) 14th Amendment Due Process Clause Ruling applies to all the states State laws change if necessary 6th Amendment Right to counsel (attorney)

25. Barron v. Baltimore Does the Bill of Rights apply to State Governments? NO!

26. Barron has been overturnedbrick by brick over time… The BARRON WALL – stops the States from having to follow the Bill of Rights Gitlow v. New York (1925) Freedom of Speech—1st Near v. MN (1931) Freedom of the Press—1st Mapp v. Ohio (1961) 4th McDonald v. Chicago (2010) Right to Bear Arms—2nd 3rd Griswold v. Ct (1965) Privacy—9th Gideon v. Wainwright (1963) Right to Counsel—6th 7th

28. The First Amendment • The First Amendment protects freedom of speech, press, assembly, religion and petition. • Freedom of religion is protected in two clauses • The Free Exercise Clause • The Establishment Clause

29. The Free Exercise Clause Insures that no law may impose particular burdens on religious institutions Prohibits abridgement of the freedom to worship (or not to worship) Some conflicts between religious freedom and public policy continue to be difficult to settle.

30. The Establishment Clause • Government involvement in religious activities is constitutional if it meets the following test, called the Lemon Rule or Test (Lemon v. Kurtzman, 1971): • Secular purpose • Primary effect neither advances nor inhibits religion • No excessive government entanglement with religion

31. “A wall of separation between church and state.” • Using a quote from a private letter written by Thomas Jefferson • He wrote of the need for “a wall of separation between church and state” • The Supreme Court has applied this to Establishment cases • Recently the court has begun to lower the wall • Neutrality and excessive entanglements

32. Nativity Scenes (w/Santa) on public property • Lynch v. Donnelly (1984) • 5-4 said that a nativity/holiday scene did not violate the establishment clause • Apply the 3 prong Lemon Test • Court as Constitutional “interior designers” • 1989 court ruled that a sole crèche display violated the 2nd prong of the Lemon Test • 1989 court ruled that a menorah beside a Christmas tree was OK

33. School prayer • New York public school prayer (1962) • “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country” • Engel v. Vitale (6-1) ruled that official state approval of prayer was unconstitutional • Moment of silence (no), prayer before games (no), prayer before graduation (no), student initiated/led before or after school or events (yes)

34. Vouchers • Vouchers • TODAY: Tax dollars go to public schools • W/Vouchers: Tax dollars would go to whatever school parents chose to send a student • Problems with this?

35. Key rulings • Establishment Clause • Engel v. Vitale (school prayer) • Lemon v. Kurtzman (state funding of private religious schools) • Free Exercise Clause • Reynolds v. United States (polygamy) • Oregon v. Smith (drug use in religious ceremonies)

36. Objective 9 List the categories under which the Supreme Court may classify “speech.” Explain the distinction between “protected” and “unprotected” speech and name the various forms of expression that are not protected under the First Amendment. Describe the test used by the Court to decide the circumstances under which freedom of expression may be qualified.

37. Freedom of Expression Freedom of Expression a summary phrase for speech and press As a general rule, the Court does not permit restraint of material prior (called prior restraint) to publication (New York Times v. Sullivan). There are limitations on freedom of expression, including speech that presents “a clear and present danger,” defamation, and obscenity.

39. Defamation Libel: a written false statement defaming another Slander: a defamatory oral statement Public figures must also show the words were written with “actual malice”—with reckless disregard for the truth or with knowledge that the words were false.

40. Freedom of Speech • Schenck (1919) printed anti-government pamphlets • The “Clear and Present Danger” test • “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” • Oliver Wendell Holmes • Ordinary times it would be allowed, but wartime was not ordinary • Tinker v. Des Moines (1969) protesting as protected speech • Texas v. Johnson (1989) flag burning is protected speech

41. Freedom of Speech on the Internet • Reno v. ACLU (1997) • Court ruled the Internet was more like the print media (which the Government has fewer controls over) than television • The Communications Decency Act was found unconstitutional—it tried to make it a crime for a person to knowingly circulate “patently offensive” sexual material to sites where children could view it

42. Obscenity • Roth v. US (1957) • Established the obscenity test – “whether to the average person, applying a contemporary community standards, the dominant theme of the material taken as a whole appeals to inciting lustful thoughts (prurient interest).” • Justice Potter Stewart’s test • “I know it when I see it”

43. Obscenity • Miller v. California (1973): • Something is obscene if: (called the Miller Test) • Appeals to prurient interests • Portrays sexual conduct in a patently offensive way • Work as a whole lacks serious literary, artistic, political, or scientific value • Local standards determine the first two prongs

44. Symbolic Speech Some speech can be made illegal, even though it conveys a political message (example: burning a draft card). However, statutes cannot make certain types of symbolic speech illegal: e.g., flag burning is protected speech.

45. Commercial Speech Commercial speech, such as advertising, can be restricted; the Federal Trade Commission (FTC) prohibits false claims. In FCC v. Pacifica (1978) the Court upheld restrictions on foul language over the public airways. Federal Communication Commission

46. Addition to Objective 3 More on how a court case moves its way through the judicial system in America

48. Crime timeline • Step 1: A crime is committed • Step 2: Police investigate • Gather evidence • Arrest suspect • Step 3: Convene grand jury • Grand jury: citizens are presented with evidence against suspect • Decide if there is enough evidence to indict the suspect. This is a formal charge resulting in a trial date • Note: most cases are pled out (plea deal) to a lesser charge, this can happen any time before step 6 • Step 4: Arraignment • Suspect hears charges against him • Enters a plea (guilty, not guilty or unable to stand trial) • Bail is set or denied

49. Crime timeline • Step 5: Trial • Both sides present their case before an unbiased jury • Step 6: Verdict • Guilty • Not guilty (acquit or acquittal) • Hung jury • Step 7: Sentencing • Lawyers present character witnesses • Mitigating circumstances: show criminal deserves less harsh punishment (family, friends, etc.) • Aggravating circumstances: show criminal deserves more harsh punishment (police, people hurt by crime, etc.) • Step 8: Appeal to higher court • Step 9: Punishment • Or start civil court proceedings (lawsuit)

50. 4th Amendment • Two guarantees: • Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures • And no warrants shall issue but upon probable cause • What is the difference between “probable cause” and “reasonable suspicion” • NJ v. TLO