Civil Liberties AP Government Unit 5

1. Civil Liberties AP Government Unit 5

2. Civil liberties: name given to freedoms that protect individual from government. Set limits for government so that it would not abuse its power and interfere with lives of citizens. Civil rights: rights, freedoms and liberties that should be given to people no matter their race, ethnicity, lifestyles, or beliefs Also can refer to nonpolitical rights of citizen or person Civil Rights & Liberties

3. Civil Liberties • Many of world's democracies, such as US and Canada, have bills of rights that enumerate and seek to guarantee civil liberties. • Basic civil liberties include: • Freedom of assembly • Freedom of religion • Freedom of speech • Due process • Right to a fair trial and to privacy.

4. 1st Amendment • Freedom of Religion • Establishment Clause • There shall be no “established state religion” • Free Exercise Clause • Freedom to worship as you please

5. 1st Amendment • 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.

6. 1st Amendment • Freedom of Religion Cases • Reynolds v United States 1878 • Polygamy case concerning Mormon man who married 2 women. • Is this constitutional because of the Free Exercise Clause? • No! • Society is built upon the civil contract of marriage, the government can permissibly pass laws regulating marriage.

7. 1st Amendment • Freedom of Religion Cases • West Virginia Board of Ed v Barnette 1943 • Free Exercise Clause Case • Jehovah’s Witness case concerning the requirement to pledge to the American flag • Did the compulsory flag-salute for public schoolchildren violate the First Amendment? • Yes, citing the Free Exercise Clause • The students did NOT have to leave the room or pledge to the flag

8. 1st Amendment • Freedom of Religion Cases • Engel v Vitale 1962 • Required nondenominational school prayer in New York: • “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." • Is this constitutional? • NO! • By providing prayer, NY officially approved religion; found to violate 1st Amendment’s Establishment Clause • Neither prayer's nondenominational character nor its voluntary character saved it from unconstitutionality.

9. 1st Amendment • Freedom of Religion Cases • Abington School District v Schempp 1963 • At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. • The Court ruled that these required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so."

10. 1st Amendment • Freedom of Religion Case • Lemon v Kurtzman 1971 • Involved controversies over laws in Pennsylvania and Rhode Island. • In PA, statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. • RI statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions."

11. Importance • Court ruled that public money for religious schools is unconstitutional • Created “Lemon Test”- 3 Prong Test • First, statute must have secular legislative purpose • Second, its principle or primary effect must be one that neither advances nor inhibits religion • Finally, statute must not foster "an excessive government entanglement with religion”

12. 1st Amendment • Freedom of Religion Cases • Wisconsin v Yoder 1971 • Jonas Yoder and Wallace Miller, both members of Old Order Amish religion, and Adin Yutzy, member of Conservative Amish Mennonite Church, prosecuted under Wisconsin law that required all children to attend public schools until age 16. • The 3 parents refused to send their children to schools after 8th grade, arguing that high school attendance contrary to religious beliefs. • Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate 1st Amendment by criminalizing conduct of parents who refused to send their children to school for religious reasons?

13. 1st Amendment • Freedom of Religion Cases • Yes! • In unanimous decision, Court held that individual's interests in free exercise of religion under 1st Amendment outweighed state's interests in compelling school attendance beyond 8th grade.

14. 1st Amendment • Freedom of Religion Cases • Employment Div., Dept. of Human Resources Oregonv Smith 1990 • Free Exercise Clause Case • 2 Native Americans who worked as counselors for private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. • As a result of this conduct, rehabilitation organization fired counselors who sued claiming that Free Exercise Clause protected their religion.

15. 1st Amendment • Decision and Importance • Court disagreed and ruled that an individual's religious beliefs do NOT excuse him/her from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. • Taxes, military service, payment of taxes, vaccination requirements, and child-neglect laws…

16. 1st Amendment • Freedom of Religion Cases • Church of the Lukumi Babalu Aye v. Hialeah, 1993 • Church of Lukumi Babalu Aye practiced Afro-Caribbean-based religion of Santeria. • Santeria used animal sacrifice as a form of worship in which an animal's carotid arteries would be cut and, except during healing and death rights, the animal would be eaten. • The city of Hialeah passed an ordinance prohibiting the possession of animals for sacrifice or slaughter soon after the church opened. • The Church challenged it claiming the Free Exercise Clause allowed the practice

17. Decision and Importance • Court ruled for the church! • The core failure of the ordinances were that they applied exclusively to the church and singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. • Only conduct tied to religious belief was burdened. • The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict scrutiny.

18. 1st Amendment • Freedom of Speech Cases • Schenck v US 1919 • During World War I, Schenck mailed circulars to draftees that suggested draft was monstrous wrong motivated by capitalist system. • Urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal Conscription Act. • Schenck charged with conspiracy to violate Espionage Act by attempting to cause insubordination in military and to obstruct recruitment. • Were his words protected by speech clause of 1st Amendment?

19. 1st Amendment • NO! • During wartime, utterances tolerable in peacetime can be punished. • "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."

20. 1st Amendment Freedom of Speech Limits • Abrams v US 1919 • The defendants threw leaflets they printed and threw from windows of a building. • One leaflet signed "revolutionists" denounced the sending of American troops to Russia. • The second leaflet denounced the war and US efforts to impede the Russian Revolution. • The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material • They were sentenced to 20 years in prison and charged with violations of 1917 Espionage Act • Question of Law: • Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?

21. 1st Amendment • Freedom of Speech Limits • Decision and Importance • Are they inciting violence in their speech? • If so speech is NOT protected • In the majority opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. • The leaflets had a tendency to encourage war resistance and to curtail war production • Wartime is different than peacetime • Is there … “a clear and [present] danger”?

22. Snyder v. Phelps, 2010 • Family of deceased Marine Lance Cpl. Matthew Snyder filed lawsuit against members of Westboro Baptist Church who picketed at his funeral. Accused church of defamation, invasion of privacy and intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. • Question  • Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?

24. SNYDER v. PHELPS • Yes. Court held that 1st Amendment shields those who stage protest at funeral of military service member from liability. • Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."

25. 1stand 14th Amendment**Incorporation** • Gitlow v NY 1925 • Overturned idea in Barron v Baltimore that the Bill of Rights can only be applied to the federal government and incorporated these rights into the 14th amendment • States were now prohibited from “impairing” citizen’s personal freedoms and Constitutional rights not just the federal government • Brought Bill of Rights under the protection of the 14th Amendment • Guaranteed due process clause of 14th Amendment

26. Incorporated or Not Incorporated? The Bill of Rights is Selectively Incorporated • 1st Amendment: Fully incorporated. • 2nd Amendment: Incorporated in 2010 when first Supreme Court decisions on incorporation since 1876 • Heller and McDonald cases • 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. • 4th Amendment: Fully incorporated. • 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. • 6th Amendment: Fully incorporated. • 7th Amendment: Not incorporated. • 8th Amendment: Incorporated with respect to the protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.

27. 1st AmendmentFreedom of Expression • Freedom of Expression Cases • Tinker v Des Moines 1969 • Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? • The wearing of black arm bands in schools to protest the Vietnam War were ruled to be a constitutional expression of free speech • Justice Brennan noted that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"

28. Joseph Frederick Morse v. Frederick, 2007 • 1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? • YES2) Does a school official have immunity from a damages lawsuit under when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event? • MAYBE???

29. 1st AmendmentFreedom of Expression • Freedom of Expression Cases • Island Trees School District v Pico 1982 • Does the First Amendment impose any limitations upon the discretion of a local school board to remove library books from the High School and Junior High School? • Banned book list was NOT constitutional

30. 1st AmendmentFreedom of Expression • Freedom of Expression Cases • Brandenburg v Ohio 1969 • Can KKK make a hate-speech in Ohio? • Incorporation of speech rights • Yes. The KKK speech was constitutional as long as violence was NOT incited (clear and present danger test) • Texas v Johnson 1989 • A Texas law that banned flag burning was challenged • The Court ruled that flag burning as a form of protest was constitutional • Symbolic speech

31. Can a Story go too Far?? • Obscenity in the media • Playboy, Penthouse, Hustler… • Does it have social value? • Hustler Magazine v. Falwell • Does it incite violence • Schenck v US

32. 1st AmendmentObscenity Cases • Are there limits to free speech? • Roth v United States 1957 • Facts of the Case • Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. • Importance • The Court held that obscenity was not "within the area of constitutionally protected speech or press." • The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were: • “Utterly without redeeming social importance."

33. He was only reading “the articles”  • In 1964, Justice Potter Stewart tried to explain "hard-core" pornography, or what is obscene, by saying, • "I shall not today attempt further to define the kinds of material I understand to be embraced . . . but I know it when I see it . .”

34. 1st AmendmentObscenity Cases • However in 1972, a new Court considered the obscenity issue again in Miller v California • Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. • Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

35. 1st AmendmentObscenity Cases • Ruling and Importance • In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. • The Court modified the test for obscenity established in Roth v. United States • The Court rejected the "utterly without redeeming social value" ruling from Roth. • The new standard became: • “Does it have artistic, literary, political, scientific value or social importance?” • Also "community standards" must be taken in to account

36. Interesting Facts about Miller v California • The law clerks and the Justices sat down to eat popcorn and see the porn films for the case on “Movie Day”. • Justice Hugo Black, who served from 1937 to 1971, always refused “Movie Day” by saying "if I want to go see that film, I should pay my money." • Justice Black and Justice William Douglas, who served from 1939 to 1975, at the time were the only two Justices who believed that speech should be entirely free of restrictions.

37. The 1st Amendment • 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.

38. 1st AmendmentFreedom of Press • Near v Minnesota, 1930 • Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters • Minnesota officials stopped Near from publishing his newspaper under a state law that allowed such action against periodicals. • The law provided that any person publishing a "malicious, scandalous and defamatory" newspaper was guilty of a nuisance, and could be stopped from further committing or maintaining the nuisance. • The Court sided with Near claiming “No prior restraint”of printed media

39. 1st Amendment Freedom of Press • Hazelwood v Kuhlmeier, 1988 • The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. The school principal found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. • Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. • Did the principal's deletion of the articles violate the students' rights under the First Amendment?

40. 1st Amendment Freedom of Press • No! • In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. • School newspapers may be regulated by school officials

41. 1st AmendmentFreedom of Press • New York Times v Sullivan, 1964 • Sullivan claimed he had been harmed by an ad • The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice • New York Times v US , 1971 • Vietnam war/President Nixon case • Pentagon Papers could be published

42. 1st Amendment Freedom of Press • Other Important Laws and Acts dealing with the Freedom of the Press • Sunshine Laws 1st Amendment Right to Privacy • SCALIA VIDEO ON RIGHT TO PRIVACY

43. The 1st Amendment • 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. = PRIVACY

44. 1st Amendment Right to Privacy • Griswold v Connecticut 1965 • Facts • Griswold was the Executive Director of the Planned Parenthood League of Connecticut. She gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling for purposes of preventing conception. • Conclusion • Birth control for married couples was constitutional • The First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations • Roe v Wade 1973 • Abortion was constitutional- right to privacy

45. 1st Amendment Right to Privacy • Webster v Reproductive Health Services, 1989 • Facts-Abortion clinics could limit abortions to before 20 weeks in Missouri • Conclusion-Affirmation of Roe but a roll back of Roe and privacy rights • Planned Parenthood v. Casey, 1992 • Facts-Pennsylvania case in which a 24 hour waiting period, and a law requiring parental permission were upheld • Conclusion-An affirmation of Roe but another rollback of Roe

46. 2nd Amendment • A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. • Important Cases • District of Columbia v. Heller (2008) • McDonald vs City of Chicago (2010)

47. 4th Amendment • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

48. 4th Amendment • “Mapp v Ohio 1961 • Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. • Search and seizure” case • Search of home by police found illegal materials without warrant • Is this constitutional?

49. 4th Amendment • “Search and Seizure” Cases • No! The Court ruled for Mrs. Mapp • The Exclusionary Rule was established • Without warrant, items could not be used against Mapp • This is known as the “Fruit of a poisonous tree” • FYI, if police are in hot pursuit of criminals they can be given the “good faith exception” in most cases

50. 4th Amendment • Katz v US, 1968 • Katz ran an illegal gambling operation • Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz • Was this wiretapping constitutional? • No! • Wiretaps need a court order or search warrant • 4th Amendment protects people not places