federal government 2305 unit 8 civil liberties civil liberties = the rights and freedoms protecting...
TRANSCRIPT
Federal Government 2305
Unit 8
Civil Liberties
Civil Liberties
Civil Liberties =
The rights and freedoms protecting the people from
government
Civil Liberties: Religious Displays
Civil Liberties: School Prayer
Civil Liberties: Pledge of Allegiance
Civil Liberties: Right to Dissent and Protest
Civil Liberties: Freedom of Speech & Assembly
Civil Liberties: Right to Demonstrate
Civil Liberties: Right to Demonstrate
Civil Liberties: Right to Demonstrate
Civil Liberties: Right to Protest & Demonstrate
Civil Liberties: Protest
Civil Liberties: Television
Civil Liberties: Rights of the Accused
Civil Liberties: Rights of “Criminals”
Civil Liberties: Rights of the Guilty
Civil Liberties: Rights of the Accused—Miranda Rights
Civil Liberties: Public Schools & Student Rights
Power and Individual Liberty
Authority and Liberty
How much liberty must individuals
surrender in order to secure a
peaceful society?
Democracy and Individual Liberty
The purpose of the Constitution and Bill of Rights is to place personal liberty beyond the reach of government
THREE POSITIONS ON CIVIL
LIBERTIES Individual Rights Government Powers to
(speech, press, -protect national security religion, assembly, -protect public morality privacy) -maintain law & order A
T N Preferred O A Position T R _________________________________________________ A C L H Absolutist Balanced I Y Position Position T A R I A N I S M
3 Positions on Civil Liberties Absolutist Position:
Few or no limits on Bill of Rights freedoms and rights—they are absolute
Preferred Position: Bill of Rights freedoms take precedence and top
priority over other interests—although they are not absolute
Balancing Position Equally balance competing interests of protecting
individual rights and governmental powers to regulate
Important Civil Liberties Quote
“THE RIGHT TO SWING MY FIST ENDS WHERE THE OTHER MAN’S NOSE BEGINS.”
SUPREME COURT JUSTICE OLIVER
WENDELL HOLMES
What is his point??
Importance of ACLU
ACLU (American Civil Liberties Union) established in 1920 (during the Red Scare) to
fight for the constitutional rights of people who were denied them due to the “unpopularity” of their ideas, goals, objectives, etc.
Frequently represent “unpopular” or
“extremist” groups—WHY??
2nd Important Civil Liberties Quote
“First they came for the Jews, and I did not speak out because I was not Jewish.
Then they came for the Catholics, and I did not speak out because I was not Catholic.
Then they came for the gays and I did not speak out because I was not gay.
Then they came for me and there was no one left to speak out for anybody.”
Important point of this viewpoint??
Americans’ “Soft” Support for Civil Liberties (March 1970 Poll)1
1. As long as there appears to be no clear danger of violence, do you think any group, no matter how extreme, should be allowed to organize protests against the government? Yes_____ NO 76%
2. If a man is found innocent of a serious crime but new
evidence is uncovered later, do you think he should be tried again for the same crime? Yes 58% No_____
3. If a person is suspected of a serious crime, do you think
the police should hold him in jail until they get enough evidence to officially charge him? Yes 58% No_____
Americans’ “Soft” Support for Civil Liberties (March 1970 Poll)2
4. Except in time of war, do you think newspapers, radio, and TV should have the right to report any story, even if the government feels it’s harmful to our national interest? Yes____
No 55%
5. Do you think everyone should have the right to
criticize the government even if the criticism is damaging to our national interests? Yes____
No 54%
Early Interpretation of the Bill of Rights
Barron v. Baltimore (1833)
In early 1830s, John Barron files suit against City of Baltimore Alleged that city ruined his wharf business Claimed protection under 5th Amendment
(government cannot take private property without due process)
Supreme Court decides against him
Bill of Rights doesn’t apply to states—it only applies to the federal government
Early Interpretation of the Bill of Rights2
Why didn’t the Framers apply the
Bill of Rights to state
governments?
Nationalizing the Bill of Rights1
IncorporationThe process by which the Supreme Court examines individual provisions of the Bill
of Rights and applies Bill of Rights freedoms to against state and local
governments and officials
Nationalizing the Bill of Rights2
After the Civil War, 14th Amendment added to the Constitution
14th Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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
Nationalizing the Bill of Rights3
Judges must determine what protections, if any, are provided by the phrases:
•Privileges or immunities of citizens
•Equal protection of the laws
•Due process of law
Gitlow v. New York (1927)
New York prosecuted Gitlow, a Socialist, for advocating the overthrow of the U.S. Government
Supreme Court ruled that individuals enjoy the protections of free speech against actions by state governments (beginning the process of incorporation)
The Incorporation Processand the Nationalization of Constitutional Rights1
IncorporationThe process through
which the Supreme Court examines
individual provisions of the Bill of Rights and applies them
against state and local officials
Provisions of the Bill of Rights that have never been incorporated:
Second Amendment provision linking “a well-regulated Militia” and the right to bear arms
3rd Amendment provision against housing troops in private homes
The Incorporation Processand the Nationalization of
Constitutional Rights2
Provisions of the Bill of Rights that have never been incorporated (continued):
5th Amendment right to a grand jury 7th Amendment requirement of jury
trials in cases over $20 8th Amendment prohibition of
excessive bail
Amendment 1
Congress shall make no law respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition government for a redress of grievances.
First Amendment Rights
Freedom of Religion
Establishment Clause “Congress shall make
no law respecting an establishment of religion….”
Free Exercise Clause “…or prohibiting the
free exercise thereof.”
Establishment Clause Framer’s Intent:
No national church No official religion No government financial support
Supreme Court Interpretation: No government favoritism Government neutrality No government financial support “Separation of church and state” Lemon Test
Freedom of Religion: What Constitutes “Establishment”?
Prayer in school
Engel v. Vitale (1962)
School District of Abington Township, Pennsylvania v. Schempp (1963)
Freedom of Religion: What Constitutes “Establishment”?
How does the Supreme Court decide cases that involve religion?
Lemon test standard developed in the 1971 case Lemon v. Kurtzman.
The court must ask three questions:
Three-Part Lemon Test
TO BE VALID, A LAW OR PROGRAM MUST: 1. REFLECT A SECULAR LEGISLATIVE PURPOSE
2. NEITHER ADVANCE OR INHIBIT RELIGION
3. AVOID EXCESSIVE ENTANGLEMENT WITH
RELIGION No SPONSORSHIP No FINANCIAL SUPPORT No ACTIVE INVOLVEMENT IN RELIGIOUS ACTIVITIES
Freedom of Religion: No Establishment of Religion
Justice Hugo Black’s “Wall-of-Separation” Doctrine (1947)
•Neither a state nor the Federal Government can set up a church.
• Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
•Neither can force nor influence a person to go to or to remain away from church…or force him to profess a belief or disbelief in any religion…
•No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
Establishment Clause Cases Allowed
Voluntary prayer/public schools
“Moment of silence laws”/p.s Voluntary Bible reading/p.s Bible reading—secular
course/p. schools Tax exemption for churches Tax $ for Christmas
decorations—if done correctly Prayers in Congress, state
legislature, city council, etc. Military chaplains Sunday closing laws Tax $ for texts, testing, busing
students to parochial schools State scholarships for religion
majors
Not Allowed Organized prayer in public
schools Organized Bible reading in
public schools Required posting of 10
Commandments in public schools
Banning of evolution Required teaching of
creationism “Equal time” laws Tax $ used for nativity
scenes- depends on how done
Free Exercise Clause
Framer’s Intent: Freedom to believe Freedom to worship
Supreme Court Interpretation: Freedom of believe is absolute Freedom to worship is not absolute-
it can be limited
Why??
Freedom of Religion:The Free Exercise Clause
Not all conduct carried out in the name of
religion is permissible
A balancing of religious freedom and valid secular purposes
Beliefs
Protected absolutely
Practices
Not absolute
Governmental restrictions are often upheld by the Court
when enacted for valid, secular purposes
the “valid secular test.”
Free Exercise Clause Cases
Protected Not Protected•Amish—No school after 8th grade•Jehovah Witnesses—No saluting the flag•Jehovah Witnesses—No blood transfusions-adults•Navajos---use of hallucinogenic drug peyote•Rastafarians—use of marijuana•Santeria Church—sacrificing chickens•Quakers—exemption from draft•Atheists—exemption from draft•Muslims—head scarf & school dress codes
•Jehovah Witnesses—No blood transfusions-child•Mormons--polygamy•Christian Scientists—exemption from vaccinations•White Hippies-joining Navajo faith to use peyote•Muslims—Headscarf & drivers license pictures•Christian Cults-Snake Handling
First Amendment Rights: Freedom of Speech
Not all types of speech are protected by the 1st amendment Laws must balance individual liberties versus
societal interests
During World War I, federal government prosecuted people for being critical of the government. Supreme Court upheld convictions
Espionage Act of 1917 & Sedition Act of 1918
Freedom of Speech The Smith Act (1940)
•“It shall be unlawful for any person to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any suchgovernment.”
•Subject to up to a $20,000 fine and/or 20 years in prison
Four Types of Speech(Different standards & rules)
Political
Pure
Commercial
Symbolic
Freedom of Speech
Justice Oliver Wendell Holmes’s “Clear and Present Danger” Test for
Political Speech:
Would permit prosecution only for speeches and publications that actually
posed a tangible, immediate threat to American society
Clear & Present Danger Rulefor Political Speech
Government can punish or outlaw speech only if it causes substantive evils so immediate and imminent that no opportunity for discussion exists.
Government must prove speech presents and immediate danger Rioting, lawlessness, destruction of property
Courts & Free Speech Cases JUDGES CONSIDERS:
WHAT WAS SAID
HOW IT WAS SAID
INTENT OF THE SPEAKER
WHERE WAS IT SAID
JUDGE CONSIDERS CIRCUMSTANCES: HOW IS GOVERNMENT ATTEMPTING TO REGULATE SPEECH
WHY IS GOVERNMENT ATTEMPTING TO REGULATE SPEECH
Pure Speech
“Over-the-backyard-fence” speech
Speech between family, friends, and neighbors
Speech is non-political
Courts: government has no business regulating pure speech
Commercial Speech
Must be truthful to be protected
Captive Audience Rule
Government can restrict or regulate if aimed at a captive audience (people who cannot easily escape it)
Examples: bus riders students in classroom
Symbolic Speech
When people take an action designed to communicate an idea
Examples: Wearing a black armband to school Wearing the peace sign or peace sign jewelry Burning your draft card Burning the American flag Wearing a shirt or clothing with a political
message Cross burning Giving the finger
Symbolic Speech Guidelines
1. Must not disrupt a government program 2. Must not interfere with the operation(s) of the
facility where it takes place · -Black armband worn to school· -Burning your draft card· - Wearing the peace sign· -Flying the US flag upside down· -Burning the American flag· -Wearing a t-shirt with an obscene word (“_uck the Draft”) into
the California state assembly· -Giving a policeman the finger
Freedom of Speech: Symbolic Speech
In 1965, Tinker wore a black armband to school in order to express opposition to Vietnam War and was suspended
Supreme Court decided 7-2 that the school had violated her 1st Amendment rights
Freedom of Press I. All Written Material Newspapers Magazines/journals Brochures/pamphlets Fliers Books Fiction and Nonfiction Poetry II. The Electronic Media Radio Television Movies/videos/dvds Music: records/tapes, cds Internet
Freedom of the Press
1931 Supreme Court case Near v. Minnesota
The Supreme Court argues against the use of advance censorship (no prior restraint rule) of
publications that criticize the government
Prior restraint: a governmental attempt to prevent certain information or viewpoints from being published
Freedom of Press & “No Prior Restraint Rule” “No Prior Restraint Rule”
No advance government censorship unless:
Causes “irreparable harm” to national security
Violates a defendant’s right to a fair trial Harms “vital national interests”
Protecting a Defendant’s Right to a Fair Trial
Trial judge can: Informally ask all lawyers & parties to refrain
from discussing certain aspects of the case Either party can ask for a change of venue
Move the trial to another location where there has been less publicity about the trial & crime
Sequester the jury Put jury up in hotel room & limit news and
communication with jurors for duration of trial As a last resort: issue a “gag order”—restricting
what the media can report, publish & broadcast
Freedom of the Press
1971 Supreme Court Case, New York Times Company v. U.S. (Pentagon Papers case)
• During the Vietnam war, Daniel Ellsberg, a Defense Department analyst, leaked top-secret papers about the war to the newspapers
• The government tried to stop their publication on the grounds that their publication would hurt national security
• Supreme Court ruled that the papers could be published because the government did not prove “irreparable harm”
Freedom of the Press, No Prior Restraint, & Irreparable Harm
A doctoral student wrote his dissertation on how to build your own atomic bomb
After graduation he sold it to a journal for publication
The Ford administration went to court to stop publication
The Ford administration lost because all information used was already available on library shelves available to the public
The Electronic Media 1. TV
regulated by FCCa voluntary industry ratings system
2. Radioregulated by FCC
3. Movies
Can be seized for obscenity reasonsA quick judicial hearing (trial) must be provided
An industry rating system
4. MusicA rating system by the industry—parental advisory stickers
5. InternetTwo federal laws (to protect children from porn) were declared unconstitutionalParental responsibility-use blocking software
Freedom of the Press:Movies
Film censorship Gradually films have
been protected
Still can be censored by the government – for obscenity reasons
Freedom of the Press:Special Rights?
Media claims for special rights
Reporter’s privilege to keep confidential sources secret (to not reveal identity of
informants in court) Press Shield Laws
Freedom of Press:What is Not Protected
Libel
Reporter’s confidential sources (unless a shield law)
Obscene Material (Pornography)
Obscenity and the LawChanging Definitions
Roth v. United States (1957) If the dominant theme appeals to the
“prurient interest” & is “utterly without redeeming social importance.”
Fanny Hill case (1966) If the dominant theme appeals to the
prurient interest” & is “utterly without redeeming social value.”
Current Obscenity Standard: The “Miller Test”
Miller v. California (1973) guidelines:
1. Whether the average person, “applying contemporary community standards,” would find that the work, taken as a whole, “appeals to prurient interests.”
2.Whether the work depicts “in a patently offensive way” sexual conduct defined & forbidden by state law.
3.Whether the work as a whole “lacks serious literary, artistic, political, or scientific value.”
Allowed more restrictions on pornography, especially in more conservative, small-town & rural American
Freedom of Assembly
Must be peaceful Need consent of
property owner
When can restrictions
be put on freedom of assembly?
Three permissible restrictions on assembly:
• Time• Place• Management
Right To Petition Government for a “Redress of Grievances”
This protects the right of any person (especially lobbyists and interest groups) to communicate with government, contact government, attempt to influence or visit government officials, or lobby government and government officials.
Must be peaceful
Freedom of Association(An Implied Right)
This is the constitutional right to belong to any organization, club, or group (no matter how disgusting, unpopular, radical or extremist) of your choice
Government cannot ban or make groups illegal
Protects rights of unpopular/extremist groups: Communists Nazis Ku Klux Klan Gay Liberation
Right to Demonstrate(An Implied Right)
Must be peaceful Need consent of
property owner
When can restrictions
be put on right to demonstrate?
Three permissible restrictions on right to demonstrate:
• Time• Place• Management
Five Types of Expression Not Protected by the 1st Amendment
Libel/slander
Obscenity/pornography
Fraudulent advertising
“Fighting words”– “Well defined & narrowly limited classes of speech which by
their very nature inflict injury or tend to incite an immediate breach of peace.
Sedition & Subversion– “Speech & press encouraging the use of force in violation of
the laws, producing imminent lawless action.”
Right to Privacy
The word “privacy” does not appear in the Constitution
However, in 1965 (Griswold v. Conn.), the Supreme Court determined that the right to privacy existed as an “unstated element” in several rights in the
Bill of Rights
Amendment IX“The enumeration in the constitution , of certain
rights, shall not be construed to deny or disparage others retained by the people.”
Areas Protected by the Right To Privacy
An adult’s right to have access to birth control (Griswold v. Conn.-1965)
No wiretapping of phone without prior court order (Katz v. U.S. – 1967)
Right to possess pornography in your home--not child pornography (Stanley v. Georgia – 1969)
Woman’s right to an abortion (Roe v. Wade -1973)
An adult’s right to engage in consensual sexual activities in the privacy of the home (Texas v. Lawrence -2003)
Privacy, Abortion and the Constitution
Roe v. Wade (1973)
A woman in Texas claimed she was raped and not legally allowed by state law to have an abortion
Brought the case to the Supreme Court
The Court ruled 7 to 2 that the Texas law violated her constitutional right to personal privacy
Roe v. Wade Trimester Framework
_________________________ 0 Months 3 4 Months 6 7 Months 9
1st Trimester 2nd Trimester 3rd Trimester
No restrictions Safety & Health States can still ban
Regulations any/all abortions
= Viability
Chipping Away at Roe v. Wade
Webster decision (1989): States may place “reasonable restrictions” on abortion.
Significance: Allows state to place more restrictions on abortion & conservative judges uphold more “reasonable restrictions”
Problem: What are “reasonable restrictions”?
Minors: Parental notification or permission laws are permissible IF the law has a “judicial bypass” provision
Privacy, Abortion, and the Constitution
Recent changes in the Court’s composition have opened up the possibility to the Roe ruling eventually being overturned
Abortion & Public Opinion: The “Hot Button Issue”
Abortion: Do Americans Favor or Oppose the Following Proposals?
Privacy & Sexual ConductLawrence v. Texas (2003)
Case was concerned with Texas statute that criminalized sexual contact between two people of the same gender
Reversed Bowers v. Hardwick (1986)
Gay Marriage Supreme court has not ruled on any cases “Full Faith and Credit” constitutional provision requires
that marriage in one state is obligated to be recognized by another
1996 Defense of Marriage Act—allows states to decide whether to recognize same sex marriages legalized in other states
The Right to Die Cruzan Case (1990)
Established a constitutional right to die Based on the 14th Amendment’s “liberty” in the due process
clause:
“…(no) state shall deprive a person life, liberty, or property without due process of law”
For patient to choose to refuse or discontinue medical
treatment, patient must be: Competent Adult States may establish procedures to regulate this
Importance of living wills, directive to physician, durable power of attorney
Rights of Criminal Defendants
Amendments 4-8
& The Guarantee of the Writ
of Habeas Corpus (Article I, Section 9)
Amendment IV “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 & particularly describing the place to be searched, and the persons or things to be seized.”
The exclusionary rule (Weeks v. US – 1914) Applied to state courts in 1961 (Mapp v. Ohio)
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be subject for the
same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law*; nor shall private property be taken for public use,
without just compensation
*Miranda ruling
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed…and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him, and to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of
counsel for his defense.
Amendment VII
In suits of common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
No Cruel & Unusual Punishment
No barbarous, lingering, tortuous punishment
No disproportionate sentences
No inhumane prison/jail conditions
For the death penalty to be constitutional, Supreme Court guidelines must be followed
Capital Punishment1
Can it be considered
“cruel and unusual”
punishment?
Supreme Court Guidelines forCapital Punishment
Death penalty legal only if a life taken
No automatic death penalty
Two part process to be followed: guilt & punishment phases
Aggravating & mitigating factors must be presented at punishment phase Aggravating leads to death penalty Mitigating leads to incarceration
Character & record of defendant must be considered
No execution of juveniles (under 18)
No execution of mentally retarded (IQ-59)
Capital Punishment
Summary: Rights of Suspects
1. No unreasonable search x seizures (4)– Exclusionary rule (4)
2. No wire tapping or electronic eavesdropping without prior court order (4)
3. No self-incrimination or coerced confessions (5)
– Right to remain silent (5) 4. No coercion or torture during interrogation (No
3rd degree) (5) 5. Required reading of Miranda rights (5 & 6) 6. Arrest on warrant or sufficient cause (4)
Summary: Rights of the Accused 1. Indictment by grand jury (5)
2. No excessive bail (8)
3. Trial by jury (6) (a) public trial (b) speedy trial (c) impartial jury
4. Right to counsel (6)
5. Double jeopardy (5)
6. Unanimous verdict- (Federal Criminal trials)
7. Right to confront witness
Summary: Rights of the Guilty/Convicted
1. No excessive fines (8)
2. Right to appeal
3. No cruel & unusual punishment (8)
4. Right to writ of habeas corpus (Article I. Section 9)
Writ of Habeas Corpus Right to writ of habeas corpus (Article I.
Section 9)
If in custody, person can demand to be taken before a judge and those holding the suspect must justify the detention of the suspect—otherwise, judge orders suspect released
Importance?
The Rights of the Accused & The Rights of Victims
Amendment II: The Right to Bear Arms
A well-regulated Militia, being necessary for the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
• Prior to 2008, the Supreme Court has never treated the final part of the amendment as a separate clause that provides individual citizens with a right to own guns. They have ruled it protects a collective right to own weapons as they relate to the defense of the nation. A 2008 Supreme Court decision recognized an individual right to possess a weapon for self-defense.
• The Second Amendment has never been incorporated.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,nor in time of war, but in a manner to be prescribed by law.
Brought about by the British forcing the American colonists to house British soldiers in colonial homes without the consent of the owner.
Amendment X
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.
Defines state powers (reserved powers) as those not given to the federal government and not denied to the states.
= a very broad, vague definition of state (reserved) powers