Civil Liberties chapter 4

1. Civil Liberties chapter 4

2. What is the difference between Civil liberties and civil rights? • Civil liberties are protections against government- this means either federal or even state • Civil rights- positive acts of government to protect our rights- our constitutional guarantee • Civil liberties are protected by the 1st amendment and civil rights are protected by the 5th (national gov’t) and 14th(states) Amendment

3. Conflicts • Many conflicts occur with civil liberties • Sometimes rights are taken away in times of war- Japanese in 1940’s, Muslims 2000’s

4. What are our rights? • first 10 amendments- bill of rights (protection from national) • 14th amendment- (protection from state) • Most rights and liberties are granted to all in the US- regardless of citizenship *(non-citizens may not vote, be on juries, hold public office or certain jobs) • Supreme courts process of incorporation- has merged most of Bill of Rights along with 14th amendment

5. What has the 14th amendment done for us? • Due process clause applied to most provisions of BoR to the states • “selective incorporation”- apply only to some provisions, case-by-case (total incorporation would be to nationalize BoR) • Gitlow v New York (1925)- (freedom of speech – anti-gov’t communist) • Examples of selective incorporation on BoR • Assembly • Petition • Religion • Search and seizure protections • Self-incrimination • Double jeopardy • Right to counsel • Right to bring witness, to confront witness • Protection against cruel and unusual punishment • PALKO Test (Palko v. connecticut)-double jeopardy-”essential to a fundamental scheme of ordered liberty”." 9th amendment

6. What about the 9th Amendment • Griswold v. Connecticut (1965)-right to privacy- contraceptives • Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. • Boy Scouts of America v. Dale (2000)- • Yes- "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders.

7. How is religion protected? • 1st amendment- Establishment clause-” • 1st amendment- free exercise clause- • Wall of separation between Church and State- thomas Jefferson

8. Religion and Education • Biggest controversies- can religion be taught at school? Prayers allowed at Schools? Teach Creation? Team prayers? • Public schools cannot sponsor religious exercises • Bible is allowed to be studied in literary or historical context only- cannot be taught

9. How does the supreme court deal with religious cases at schools? • Lemon v. Kurtzman 1971- • Created 3 part Lemon Test ( to see if states can give money to private parochial schools)

10. Other issues with establishingreligion • Issues of Seasonal themes- Christmas, Hannukah, etc- at government places • Prayers led by Chaplains at government meetings • Displaying ten commandments in front of government buildings

11. Free Exercise?

12. Review • What does the constitution say about religion? • Gov’t may not establish an official religion • What case created the testing of the establishment clause? • Lemon v. Kurtzman (lemon’s test) • What court case focused on the 9th amendment and incorporation of the Bill of Rights? • Gitlow v. New York • What amendments protect Civil rights • 5th (national gov’t) and 14th (states) • What is selective incorporation? • View that some provisions of the Bill of Rights are applied on a case by case basis

13. Next slides about speech/assembly/press

14. Freedom of Speech, assembly, press (nationalizing effects of 14th amendment)

15. 1) Pure Speech: I don’t like you, president, congress 3 Types of Speech

16. 2) Speech plus Action: Right to protest

17. 3) Symbolic Speech: Texas v. Johnson (1989), In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature- even if society finds it offensive

18. Free Speech vs. Public Safety, Public Welfare, or National Security Sedition: In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Limits on Free Speech

19. * “Clear and Present Danger”: Schenck v. U.S. (1919): "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.

20. “Imminent Danger”: [Brandenburg v. Ohio (1969)]:The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."

21. Defamation: 1) Slander: spoken 2) Libel: written Criticism of Public Figures IS Protected, even if it is cruel

22. “Fighting Words”:

23. Freedom of Assembly and Petition • Right to petition the gov’t for redress of grievances- right to ask for gov’t action • BSA v. Dale (2000) allows Boys scouts to ban homosexuals from being scout leaders (personal/private club) • Hatch Act restricts federal employees from political activities • Campaign contributions can be limited (person can spend on their own campaign) • Freedom of Assembly- gov’t can regulate time, place and manner, require police permits

24. Freedom of Press • Press gets access but not all the time (Freedom of information Act (1966)- allows public to view gov’t files (now electronic 1996) • (US v. Nixon 1974)

25. Gag orders (cannot speak about trials or case) • Shield laws- • Defamation- • Obscenity- not protected by 1st amend.- Miller v. CA 1973

26. Student press- Hazelwood v. Kuhlmeier- • Regulating airwaves-

27. 2nd amendment – right to bear arms.

28. Next slides due process

29. Chapter 4Due Process and its Amendments

30. Due Process of Law“The government cannot deprive anyone of “life, liberty, or property, without due process of law..nor deny anyone equal protection under the law.” • The constitutional right of every citizen to fair treatment under the law • Basic civil liberties

31. 2 Aspects of Due Process (5th Fed, and 14th State) • 1) Substantive Due Process- The laws themselves must be reasonable and fair (ex. banning all abortions in a state) • 2) Procedural Due Process- Rules of conduct for police officers, judges, lawyers, and courts to protect persons suspected, accused, or convicted of a crime- observing bill of rights

32. What is an example of substantive vs. procedural • A law prohibits possession of narcotics (substantive) and police must be generally obtain a warrant before conducting a search for narcotics in one’s home (procedural) • Quick quiz • 1. police strip searches • Procedural • 2. Compulsory vaccination laws • Substantive • 3. minimum wage law • Substantive • 4. firing a city employee without giving a hearing • Procedural

33. 4th Amendment • Protects us from unreasonable search and seizure • Mapp v. Ohio (1961)

35. Authorization for Search and Seizures (4th amendment) • Need to have a warrant- a court order that authorizes law-enforcement officials to make an arrest, search a person or place, or take property as evidence

36. Steps for a Warrant • 1) Police must appear before a judge or magistrate • 2) The police must swear under oath that they have probable cause, a reasonable belief that a particular crime has been or is being committed • 3) The judge or magistrate must issue a warrant that describes the exact place to be searched. It must also describe the specific persons or items to be seized. A random search is unconstitutional

37. Searches Without Warrants

38. Exclusionary Rule • Weeks v. United States • Mapp v. Ohio (states)- • Discourages police misconduct vs. let’s crooks off the hook

39. Exceptions to Exclusionary Rule • Nix v. Williams- • U.S. v. Leon- • CA v. Hodari D.

40. 4thAmendment

41. Electronic Surveillance • Katz v. U.S. (1967)- the 4th Amendment protects “people, not places” • Patriot Act of 2001 (renewed in 2006)- • Growth of fed powers weakens 4th amend.

42. 5th Amendment

43. 6th Amendment • Gideon v. Wainwright- Right to legal counsel -state and Federal level

44. 8th Amendment

45. Some other protected provisions • Miranda v. Arizona 1966 • Habeas Corpus-

46. Other constitutional guarantees-both cannot be passed by Congress • Ex post facto laws- • Bill of attainder-

47. Quick Quiz review • 1. What court case helped those poor receive counsel • Gideon v. wainwright • 2. Court case that involved an illegal search and seizure • Mapp v. Ohio • 3.What can the police say in order to get a warrant • Probable cause