Civil Liberties

2. 4 Civil Liberties

3. 4 Video: The Big Picture http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/OConner_Ch04_Civil_Liberties_Seg1_v2.html

4. 4 LearningObjectives Outline the issues and compromises that were central to the writing of the Constitution 4.1 Analyze the underlying principles of the Constitution 4.2

5. 4 LearningObjectives Outline the First Amendment guarantees of and limitations on freedom of speech, press, assembly, and petition 4.3 Summarize changes in the interpretation of the Second Amendment right to keep and bear arms 4.4

6. 4 LearningObjectives Analyze the rights of criminal defendants found in the Bill of Rights 4.5 Explain the origin and significance of the right to privacy 4.6

7. 4 LearningObjectives Evaluate how reforms to combat terrorism have affected civil liberties 4.7

8. Video: The Basics 4 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg2_CivilLiberties_v2.html

9. 4.1 Roots of Civil Liberties: The Bill of Rights • Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation. • These are limitations on the power of government to restrain or dictate how individuals act. • The Incorporation Doctrine: The Bill of Rights Made Applicable to the States • Selective Incorporation and Fundamental Freedoms

10. Constitution’s Natural Rights • Writ of habeas corpus, no bills of attainder, no ex post facto laws, trial by jury in federal courts • Protections as citizens move from state to state • No titles of nobility • No religious oaths for holding federal office • Republican form of government for all states

11. 4.1 The Incorporation Doctrine: The Bill of Rights Made Applicable to the States • Fourteenth Amendment • Bill of Rights applies to actions of states, not just federal government • Due process clause • Applied to Bill of Rights • Substantive due process • Procedural due process

12. 4.1 When did the Court first articulate the doctrine of selective incorporation?

13. 4.1 Selective Incorporation and Fundamental Freedoms • Fundamental freedoms protected under selective incorporation • Rights that states must protect: • Freedom of press • Freedom of speech • Freedom of assembly

14. 4.1 TABLE 4.1 How has selective incorporation made the Bill of Rights applicable to the states?

15. Video: In Context 4.1 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg3_CivilLiberties_v2.html

16. 4.2 First Amendment Guarantees: Freedom of Religion • The First Amendment states that: “Congress shall make no law • respecting an establishment of religion, • or prohibiting the free exercise thereof;…” • In this section we will look at each of these clauses of the First Amendment, the controversy and power struggles surrounding them and the way the Courts have interpreted and applied them.

17. An Established Religion • means that the Government will create and support an official state church…often • tax dollars support that chosen church. • that church’s laws become the law of the land. • the Nation’s leader usually appoint the leading clerics. • often other religions are often excluded.

18. Drafting the First Amendment • “Should we establish a religion or not?” • Thomas Jefferson wrote that there should be “a wall of separation between church and state.”

19. Arguments for Religious Freedom • From the Holy Roman Empire to the Church of England , Spanish Inquisition, Bloody Mary I of England, Crusades, 30 Years War, history indicates that when church and state are linked, all individual freedoms are in jeopardy. • If government is merely an arm of God what power of government is not justified? • What could happen to religious minorities if government and religion were linked?

20. 4.2 The Establishment Clause • The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion. • Supports the Separation of church and state

21. Two Schools of Thought Separationists Accomodationist Accomodationist’s contend that the state should not be separate from religion but rather should accommodate it, without showing preference. Examples would include providing financial support for programs. Faith Based Initiatives. • Separationist's argue that a high “wall” should exist between the church and state.

22. Supreme Court Cases that Support the Establishment Clause • Everson v. Board of Education 1947 challenged a New Jersey town for reimbursing parents for the cost of transporting parochial students to school. • In Engel v. Vitale 1962, the Court ruled that even nondenominational prayer could not be required of public school children. Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen. • Wallace v. Jaffree 1985 banned Alabama’s “moment of silence” for meditation or voluntary prayer.

23. Prayer in School • In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a middle school graduation unconstitutional.

24. Coercion Test • Government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so.

25. Santa Fe School District v Doe 2000 • Prior to 1995, a student elected as Santa Fe High School's student council delivered a prayer, described as overtly Christian, over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause of the First Amendment.

26. Lemon v. Kurtzman • In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries. • To be Constitutional the challenged law must • Have a secular purpose (or pertaining to worldly things or to things that are not regarded as religious, spiritual, or sacred) • Neither advance nor inhibit religion • Not foster excessive government entanglement with religion. • In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms. Stone v Graham 1980

27. Allegheny v ACLU 1989 • First Amendment: Establishment of ReligionThe first display involved a Christian nativity scene inside the Allegheny County Courthouse. “"Glory to God for the birth of Jesus Christ," • The second display was a large Chanukah menorah, erected each year by a Jewish organization, outside the City-County building. • Did the public displays violate the Establishment Clause of the First Amendment?

28. Lynch v Donnelly 1984 • The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. • The display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene. • Did the nativity scene violate the establishment clause?

29. Endorsement test The endorsement test proposed by United States Supreme Court Justice Sandra Day O'Connor in the 1984 case of Lynch v. Donnellyasks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment.

30. Marsh v. Chambers1983 • Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's chaplaincy practice in federal court. This practice involves the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. Does the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment?

31. Mixed Record The Supreme Court has a mixed track record on Establishment Clause cases. The Court traditionally has allowed so-called "ceremonial deism" - references to a generic higher power with no real specific religious meaning, such as "God save the United States and this honorable Court," which begins every Supreme Court oral argument, or "In God We Trust," our national motto, which is on all U.S. currency.

32. 4.2 Free Exercise Clause • Free exercise clause not absolute • "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion. • This is not absolute • Several religious practices have been ruled unconstitutional including: • snake handling (State Laws) • use of illegal drugs (Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al) • Polygamy (State Laws) • Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion. • State must provide compelling reason to limit exercise of religion

33. "See You at the Pole" Student participation in before - or after - school events, such as "see you at the pole," is permissible. School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event. Equal Access Act 1984 – Extracurricular Activities clubs to include bible club, gay/straight alliances federally funded secondary schools. Westside v. Mergens 1990

34. 4.3 First Amendment Guarantees: Freedoms of Speech, Press, Assembly, and Petition • Freedoms of Speech and the Press • Protected Speech and Press • Unprotected Speech and Press • Freedoms of Assembly and Petition

35. 4.3 Freedoms of Speech and the Press • Prior restraint • Alien and Sedition Acts • Censored criticisms of the government • Slavery, Civil War • speech again censored • World War I and anti-government speech • Schenck v. United States 1919 • The bad tendency test was used by the Court. Engaging in speech that had a tendency to induce illegal behavior was not protected by the 1st Amendment. Justice Holmes defined the “Clear and Present Danger” test in the Schenck case. • Brandenberg v Ohio 1968

36. 4.3 Protected Speech and Press • Limiting prior restraint Near v. Minnesota 1931 NY Times v. US 1971 • Symbolic speech – Tinker v. Des Moines 1969, Texas v. Johnson 1989, Morse v. Frederick 2007 • Hate speech – Westboro Baptist Church – Snyder vs. Phelps 2011

37. 4.3 How broad is the right to symbolic speech?

38. 4.3 Unprotected Speech and Press • Unprotected speech • Libel is a written false statement that attacks the character of a person, it is not automatically protected.NY Times v Sullivan 1964 • Slander is spoken words that defame the character of a person. In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved. Hustler v Falwell 1998 • Fighting words - Chaplisky v. New Hampshire 1942

39. Unprotected Speech and Press Obscenity - Miller vs. California In order to meet the definition of obscene material articulated in this case, three conditions must be met: whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

40. 4.3 Freedoms of Assembly and Petition • Freedom to assemble hinges on peaceful conduct • Subject to rules regarding free speech • Right to petition government about issues

41. 4.3 How do we use our right to assemble?

42. Explore the Simulation: You Are a Police Officer 4.3 http://media.pearsoncmg.com/long/long_longman_media_1/2013_mpsl_sim/simulation.html?simulaURL=5

43. Included to prevent Congress from disarming state militias District of Columbia v Heller(2008) The Court ruled 5 to 4 that the Second Amendment is more than a right of states to maintain militias and does, in fact,  protect an individual's right to keep firearms in the home. The right to bear and carry arms a basic right of citizenship 4.4 Second Amendment: Right to Keep and Bear Arms

44. 4.5 Rights of Criminal Defendants • The Fourth Amendment and Searches and Seizures • The Fifth Amendment • The Fourth and Fifth Amendments: The Exclusionary Rule • The Sixth Amendment: Right to Counsel • The Sixth Amendment: Jury Trials • The Eighth Amendment: Cruel and Unusual Punishment

45. 4.5 The Fourth Amendment and Searches and Seizures • Protection from unreasonable searches • Warrants Wolf v. Colorado 1949, • Schools – TLO v. New Jersey 1985, Stafford v. Redding 2009 • Drug tests • Work -Employment Division, Department of Human Resources of Oregon v. Smith, 1990 • School - Vernonia School District 47J v. Acton, 1995

46. 4.5 The Fifth Amendment • Protection against self-incrimination • Miranda v. Arizona (1966) • Right to remain silent • Knowledge that what you say can be used against you • Right to an attorney present during questioning • Right to have an attorney provided if you cannot afford one • Rhode Island v Innis 1980 • Double jeopardy

47. 4.5 Why was Ernesto Miranda important to the development of defendants’ rights?

48. 4.5 The Fourth and Fifth Amendments: Exclusionary Rule • Mapp v. Ohio (1961) • Exceptions to the exclusionary rule • “Good faith” mistakes • Quarles v. NY 1984 • Boston bombers

49. 4.5 The Sixth Amendment and Right to Counsel • Sixth Amendment right to attorney • Gideon v. Wainwright (1963) • State must provide attorney for indigent • Right to counsel begins with first appearance before a judge

50. 4.5 The Sixth Amendment and Jury Trials • Speedy and public trial by impartial jury • Right to confront witnesses • Jury of peers • Racial peers • Gender