Civil Liberties

1. Civil Liberties • Are they any different than Civil Rights? • Yes, and No (mostly “No”) • Civil Rights are things that government must provide to you. • Fair courts • Fair voting process • Equal protection under the laws • Etc.

2. Civil Liberties • Civil Liberties are things that Government cannot stop you from doing. • Freedom of Speech • Freedom of Religion • Freedom of Assembly • Freedom of the Press • Freedom of Porn

3. Some initial questions... • Can Congress/President arrest people who are critical of the government during war time? • Never! • Of Course! • It depends…

4. Some initial questions... • Can the government tax religious groups? • Never! • Of Course! • It depends…

5. Some initial questions... • Can the government stop the media from printing materials it deems traitorous? • Never! • Of Course! • It depends…

6. Where do they come from? • In the original Constitution • Article 3, section 9 • Prohibition against suspending the writ of habeas corpus, passingbills of attainder, and ex post facto laws • In the Bill of Rights (1st ten fixes) • 14th amendment • Interpretations of the Courts over time

7. 14th Amendment • 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. • Nor shall any STATE deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

8. Incorporation • Nationalization of people’s “rights and liberties” • Applying particular rights and liberties to protection from state governments • Selective incorporation • Doing it piece by piece • Right by right, liberty by liberty • Are there still amendments that have not been incorporated?

9. Aristotle, Politics Book 1.2 “Voice, or course, serves to indicate what is painful and pleasant; that is why it is also found in the other animals…” “But speech (reasoned speech) serves to make plain what is advantageous and harmful and so also what is just and unjust.”

10. “Dozens arrested as Myanmar junta tightens grip”

11. Freedom of Speech • 1st amendment • Incorporated in Gitlow v. New York (1925) • Speaking out against the government • What is the Dilemma? • Security vs. abuse of power – bad tendency • Speaking out in a time of war • “clear and present danger” – Holmes's dissent • Brandenburg stands as current law

12. Brandenburg • We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.

13. Pentagon papers • http://www.youtube.com/watch?v=F4kQG1bPf2k

14. Vietnam War • Tinker – armbands (schools) • O’Brien – burning draft cards (government function) • Cohen (F&*^) the draft • Harlan: 'One man's vulgarity is another man's lyric‘ • Sometimes only one way to express something

15. Harlan – fighting words • “First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric (italics added). Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

16. Racial hatred • Racial hatred allowed • Misogynistic allowed • RAV (burning a cross on a black family private property) • Allowed. Narrowly defined, tailored for purpose • Wisconsin versus Mitchell (hate crimes) • Intent?

17. Disallowed speech • Obscenity (except SLAP) • Fighting words • Conspiracy • Perjury

18. Les Amants (1958)

19. Do you have a Constitutional Right to Porn? • Short answer: No • Long answer: Kind of, although it depends on the make-up of the courts and legislatures • Defining obscenity is very hard to do. • Justice Potter Stewart: Hard-core pornography is hard to define, but “I know it when I see it.”

20. Then, they got sick of seeing it… • Gave it up to local courts, called it a federal standard of community standards • Get it?

21. Three Tests for Obscene Expression • Community standards define what is lustful about it • Law must define exactly what is obscene • The work must lack serious literary, artistic, and political, or scientific value (SLAP)

22. The Framers on Religion "Providence has given to our people the choice of their rulers. And it is the duty as well as the privilege and interest, of a Christian nation to select and prefer Christians for their rulers." • Chief Justice of the Supreme Court, John Jay 1797.

23. Massachusetts Bay statute enacted in 1697 • Section 36. Whoever willfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, His creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

24. John Adams • “men ought, (after they have examined with unbiased Judgments, every System of Religion, and chosen one System on their own Authority, for themselves) to avow their Opinions and defend them with boldness.” Such intense study and robust debate can only exist where there is religious liberty.  • Late in life he told Jefferson that Massachusetts’ law against blasphemy was “a great embarrassment,” lamenting that it presented “great obstructions to the improvement of the human mind.”

25. The Framers on Religion “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” • Thomas Jefferson, Notes on Virginia, 1782

26. The Religion Question • What does the Constitution say about Religion? • Article VI • “But no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.”

27. The Religion Question • What does the Constitution say about Religion? • Article VI • “But no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.” • 1st amendment • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

28. Free exercise • Cantwell • Adell Sherbert • Braunfeld • Yoder • Smith

29. Lemon and Neutrality test • Lemon Test • Statute “must have a secular legislative purpose.” • Statue cannot “advance nor inhibit” religion • Statue cannot foster an “excessive government entanglement with religion” • Neutrality (1990’s)– policy cannot favor religion over non-religion

30. Blaine Amendments • When free exercise and establishment collide • When states can provide greater protections, but not fewer protections than the federal government • What is “greater” protections for establishment? • What is “greater” protections for free exercize? • Anti-catholic history – targeting?

31. Blaine Amendments • Witters, a blind man wanting extra help to study to be a minister • That help is provided to all students • But not students who are studying to be a minister

32. Do you have a right to privacy? • 9th Amendment • “The enumeration in the Constitution, of certain rights, shall be construed to deny or disparage others retained by the people.” Aw nuts… It’s debatable

33. Privacy • Pregnancy a natural punishment for vice • Poe versus Ullman • Griswold • Eisenstadt • Roe • Bowers versus Hardwick • Lawrence

34. Clint Eastwood