Download civil liberties - Bibb County Schools

CIVIL LIBERTIES
Chapter 4
What are civil liberties?


Personal freedoms
Restraints on government action against
individuals


Found primarily in the Bill of Rights
A few are in the main body of the Constitution
(privilege of writ of habeas corpus, ban on
bills of attainder – punishment without trial,
ex post facto laws)
Bill of Rights










1 – Religion, Speech, Press, Assembly, Petition
2 – Right to Bear Arms
3 – Quartering of Soldiers
4 – Searches and Seizures
5 – Grand Juries, Self-Incrimination, Double Jeopardy, Due Process,
Eminent Domain
6 – Criminal Court Procedures (fair and public trial, know the
charges, lawyer, right to testify in own defense)
7 – Trial by Jury in Civil Cases
8 – Bail, Cruel and Unusual Punishment
9 – Rights Retained by the People (civil rights that aren’t listed are
still held by the people)
10 – Reserved Powers of the States (powers not delegated to the
federal government or denied to the states belong to the states and
the people)
Why do we have a Bill of Rights?


Came out of fear of tyrannical government
(colonial experience)
Added to gain support for the
Constitution.
Conflicts over Bill of Rights

Meaning



Brief and very broad guidelines, subject to
interpretation which changes with the Court.
As interpretations change, rights change with
them.
Who does it limit?


Federal government only?
State governments?
Bill of Rights and State
Governments

Bill of Rights protected people from the national
government, not the states!




Barron v. Baltimore (1833)


little worry over states
States had similar bills of rights in their constitutions
States interpreted rights differently, citizens had
different civil rights from state to state
Supremes said Bill of Rights didn’t apply to states
1868, 14th amendment (due process) became
part of the Constitution.

It imposed most of the Constitutional protections of
civil liberties on state governments.
Incorporation Theory



Due process clause of 14th amendment
extends the Bill of Rights to the states
Took the courts until 1925 to use it in this
way - Gitlow v. NY - held that the 14th
amendment protected freedom of speech
guaranteed by the 1st amendment
Other rights have been selectively
incorporated (case by case basis) – see
chart pg. 128.
Freedom of Religion

2 main ideas:




Separation of church and state
Free exercise
Congress can’t pass laws that establish
government involvement in religion.
Congress can’t pass laws that deny people
the right to practice their religious beliefs.
Separation of Church and State

The establishment clause


1st Amendment – national government can’t
support a church.
This has been applied to:
State and local governments aiding religious
organizations and schools
 Legality of school prayer
 Teaching evolution

Separation of Church and State

Aid to church-related schools



Generally ruled out by establishment clause (Lemon v. Kurtzman
– can’t use direct state aid to subsidize religious instruction)
Recently Supremes have allowed aid that goes to ALL schools,
religious or public. (Mitchell v. Helms – public funds to provide
technology to all schools)
School vouchers


Current controversy – can vouchers be used for religious
schools? Some states have allowed this as part of education
reform and the Court has said it’s okay.
Next question will likely be do those private schools now have to
comply with disability and civil rights laws that public schools
have to follow…
Separation of Church and State

School Prayer



Engel v. Vitale (1962) – officially sponsored
prayer in schools is unconstitutional
Court has allowed moment of silence…
Prayer Outside the Classroom

Students in public schools can’t use public
address system to pray at sporting events

Often ignored in the South…

“Almighty God, we acknowledge our dependence upon Thee, and
we beg Thy blessings upon us, our parents, our teachers and our
country.”
–New York State school prayer
Separation of Church and State

Ten Commandments

Posting in classrooms or public buildings


2005 ruling said a judge couldn’t display them in the
courthouse, but that a monument outdoors in Texas
was okay because it had been there for 40 years
without complaint.
Nov. 2008


Case in Utah, Court just heard arguments
Deciding if a city must accept all displays on public
land if they allow one…
Separation of Church and State

Teaching evolution


Courts have interpreted establishment clause
to mean that no state can ban the teaching
of evolution or to require teaching
creationism.
January 2005 Atlanta

federal judge in Atlanta, Georgia, has ruled that a
suburban county school district's textbook stickers
referring to evolution as "a theory not a fact" are
unconstitutional (Cobb County)
Cobb County sticker
Separation of Church and State

Religious Speech

Public schools and colleges can’t place
restrictions on religious organizations that are
not also placed on nonreligious ones.
Ex: can’t refuse to fund Christian newsletter and
grant funds to other student organizations.
 Ex: can’t refuse to allow religious club to meet on
school grounds while allowing other clubs to meet.


Discriminates against religious speech
Free Exercise Clause

1st Amendment guarantees free exercise
of religion.

Restrained when religious practices interfere
with public policy.
Ex: government can require vaccinations even if it
is against parent’s religious beliefs
 Ex: can’t interfere with a school districts ability to
select books for students b/c of religion – public
school students can be required to study from
books chosen by the system regardless of their
religious beliefs.

Free Exercise Clause

Religious Freedom Restoration Act (1993)



Requires national, state, and local
governments to “accommodate religious
conduct” unless they can show a compelling
reason not to.
If religious practice was regulated had to be
as little restriction as possible.
1997 case (City of Boerne v. Flores) said
Congress went too far with this act, exceeded
constitutional authority.
Free Exercise Clause

Free Exercise in the Public Schools

When the courts overturned the Religious Freedom
Restoration Act, this paved the way for schools to set
regulations that seem neutral, but actually limit
religious expression.


Ex: rule banning hats – created by many schools to keep
gangs from displayed insignias – has been interpreted to ban
religious head coverings (Jewish caps, scarves, etc.)
National government now using NCLB Act to keep
schools from overly regulating – to get funds ,
schools have to certify that they do not ban prayer or
religious expression made in constitutionally
appropriate manner.
Freedom of Expression


Right to have free speech and free press
without government interference.
Since 1950’s, more and more Supremes
abridge speech ONLY under extreme
circumstances.
Freedom of Expression

No prior restraint



Can’t restrict an activity before it occurs
Prior restraint = censorship
Courts very critical of any government attempt to do
this.

New York Times v. US (1971)


Times and Washington Post were about to publish the
Pentagon Papers (secret documents, obtained illegally).
Government wanted to prevent publication, wanted court
order, claimed national security issues. Newspaper won the
right to publish.
If publication violates a law, the law can only be
invoked after publication.
Freedom of Expression

Protection of Symbolic Speech

Signs, gestures, articles of clothing that
convey meaning are constitutionally protected
speech.


Tinker v. Des Moines (1969) black armbands
protesting Vietnam War (Tinker Test)
Burning American flag = free speech
Texas v. Johnson (1989)
 Congress reacted with Flag Protection Act (1989)
which Court ruled unconstitutional in 1990.

Freedom of Expression

Symbolic Speech


Court protected organizers of Boston St.
Patty’s Day Parade – didn’t have to allow
gays/lesbians in parade.
2003 Court held that cross burning wasn’t
free speech – instrument of racial terror,
threatening, overshadows free speech
concerns.
Freedom of Expression

Protection of Commercial Speech

Advertising statements
Have limited 1st amendment protection
 Advertisers can be held liable for lies in ways that
don’t apply to noncommercial speech.
 Most regulated type of speech.

Freedom of Expression

Permitted Restrictions on Expression

Clear and Present Danger



Speech that would harm the public is restricted
Originally imposed on advocates of revolution – 1919
socialist opposing the draft…
Modifications: Grave and Probable Danger Rule



1925 bad tendency rule (if actions might lead to some evil –
overthrow of govt)
1951 grave and probable danger rule (harder for government
to meet)
1969 incitement test – allows restrictions only when speech
is incitement to illegal action.

Guarantees free speech to advocates of revolution for the first
time.
Freedom of Expression

Unprotected Speech

Obscenity


Pornography/Internet Porn




Problems defining it – does the average person find it
obscene, shows offensive conduct, lacks serious
literary/artistic/merit (see p. 140)
States can outlaw possession of child porn, exploitation of
kids
Federal crime to knowingly receive it through mail
Internet harder to regulate
Slander

Can’t make false statements intended to hurt someone’s
character when anyone other than that person can hear.
Freedom of Expression

Campus Speech

Using student fees to support things that the
student doesn’t approve of…
Student activity fees – can be distributed among
student groups, even those some students don’t
approve of…
 Campus speech and behavior codes – generally
unconstitutional, but they continue to exist.



Codes designed to prohibit “hate speech” – victimize
people based on race, religion, etc.
Clothing items that might cause “ill will or hatred” – tshirts with some messages, Confederate flags
Freedom of Expression

Hate Speech on the Internet

Restrictions exist in other countries, but not in
the US

2000 case involving Yahoo – Court said banning
display of Nazi memorabilia in France couldn’t be
enforced in US.
Freedom of Press

When the Constitution was written, this
meant newspapers, magazines and books.




Definition has changed with technology
Questions remain over what can and can not be
printed.
Can censor press in interests of natl & military
security.
Reporter’s Privilege Laws vary state to state (State
Shield laws). Reporters can refuse to turn over confidential info
and be somewhat protected by state shield laws.
Freedom of Press

Defamation in Writing

Libel – like slander, only happens if observed
by third party.


Can write someone and accuse them of things, call
them names – only libel if you make it public.
Higher standards for public figures to win
lawsuit

Must show statement was made with actual malice
(reckless disregard of truth, knowledge of falsity.
Freedom of Press

Free Press v. Fair Trial

Gag orders can be used to ensure fair trial
Restrict publication of news about trial to protect
right to fair trial.
 can prevent public from attending to ensure fair
trial.

Freedom of Press

Films, Radio, TV


Freedom of press no longer limited to print
media
Newer forms don’t get the same protection as
print media

Some language not protected even though it’s not
obscene.
Right to Assemble and to Petition
the Government

Important to those who want to communicate
their ideas to others.


Court has held that state and local govts can’t keep
individuals from assembling.
State and local govt can require permits




Helps keep order
Can’t be selective as to who gets a permit
Some anti-loitering laws have been upheld
Questions remain about online assembly – particularly antiabortion groups who advocate violence against doctors who
perform abortions.
RIGHT TO PRIVACY?


Not mentioned in the Constitution
Right to privacy is an interpretation by the
Supremes (read p. 149)



Basis comes from 1st, 3rd, 4th, 5th and 9th
amendments. IMPLIED by Bill of Rights.
Right established in Griswold v. CT (1965)
Very controversial issues today


Computers and personal information
Sacrificing privacy for national security
Right to Privacy

Griswold v. CT (1965)

(read p. 149)
Court overthrew law prohibiting use of
contraceptives, said it violated right to privacy
Right to Privacy

Privacy in the Information Age

You have the right to see the information that
the government has on you. (Privacy Act
1974)

Can get copies of records collected by fed agencies
so that you can correct errors
Right to Privacy

Privacy Rights and Abortion

Roe v. Wade (1973)


Governments can’t totally prohibit abortions, violates woman’s right
to privacy
Limits depending on stages of pregnancy







States can ban use of government funding
Can require 24 hr waiting period
Can require parental or judicial permission if under 18
Some limits on protests outside abortion clinics


1st trimester – can only require doctor perform it
2nd trimester – only to protect health of mother
3rd trimester – states may prohibit
Can’t block entrances
Current controversy over attempts to ban some 2nd trimester
procedures – so far courts have ruled all unconstitutional.
Right to Privacy

Privacy Rights and the “Right to Die”

Karen Quinlan case 1976



Parents wanted respirator removed after year in coma
Court said when a patient can’t speak for self, family can
speak for them
Cruzan v. Director, Missouri Department of Health
(1997)


Patient’s life support can be withdrawn by family member
with “clear and convincing evidence” of patient wishes.
Led to “living wills”


If no living will, spouse is the relative with authority
Physician-Assisted Suicide – Court has said Constitution doesn’t
include a right to commit suicide.
 This left the issue up to states to legislate
 1997 only Oregon had legalized this
Right to Privacy

Privacy Rights v. Security Issues

9/11
“roving wiretaps” – would allow person (and
his/her communications) to be searched, rather
than just a place.
 May violate 4th amendment

Rights of the Accused v. Rights of
Society



Balancing act
In 1960’s Warren Court significantly
expanded rights of accused persons.
Criminal suspects are given rights to avoid
convicting the innocent.


Everyone is entitled to due process and fair
treatment.
Assumed innocent until PROVEN guilty.
Rights of the Accused

The Bill of Rights sets forth specific rights:

Fourth Amendment



Fifth Amendment




No coerced confessions
No compulsory self-incrimination
No double jeopardy
Sixth Amendment





No unreasonable searches and seizures
No arrest except on probably cause
Legal counsel
Informed of charges
Speedy and public trial
Impartial jury by one’s peers
Eighth Amendment


Reasonable bail
No cruel or unusual punishment
Rights of the Accused


Remember, Bill of Rights was originally
applicable only to national government.
14th amendment has made these rights
applicable to state governments.

Most of this has happened in the last half of
the 20th Century….1960’s Warren Court.
Rights of the Accused

Extending Rights of the Accused

Limits on conduct of police and prosecutors

Right to an attorney if can’t afford one – expanded to state
cases (Gideon v. Wainwright, 1963)



Inform of rights (Miranda v. Arizona, 1966)
Exceptions to Miranda


Used to only get an attorney in a capital case (prosecution for
murder, deciding on death penalty)
“public safety” – illegal confessions need not bar conviction if
other evidence is strong.
Video recording of Interrogations

Shows no coercion, may render Miranda warnings
unnecessary. Could be misleading?
Rights of the Accused

Exclusionary Rule

Prohibits admission of illegally seized evidence




Mapp v. Ohio (1961)


Includes evidence gathered in violation of suspect’s Miranda rights
or of 4th amendment.
Forces police to gather evidence properly
Critics say it allows guilty to go free b/c of innocent mistakes.
Woman convicted of possession of obscene materials found after a
search w/o warrant and after she refused to allow the search.
Exceptions are on the rise


Can admit illegal evidence if they can show they would have found
the evidence through other means legally.
Can admit if the officer acted in good faith and didn’t know there
was a problem with a warrant.
Death Penalty

Is it cruel and unusual punishment?

1970’s – most found unconstitutional b/c of
inconsistent application from state to state.
Imposed for a variety of crimes and allowed juries
to decide when to use it.
 Furman v. Georgia (1972) – Court said imposition
of death penalty was random and arbitrary. This
violated the 8th Amendment.


Not cruel and unusual if criminal killed or attempted to
kill
Death Penalty

1976, 25 states had two-stage (bifurcated)
procedure for capital cases:



Jury determines guilt
Jury considers evidence to decide if death sentence is
warranted
Gregg v. Georgia (1976) – upheld Georgia’s
bifurcated process.
Death Penalty Today






37 states allow it
2001 executions of Timothy McVeigh (Oklahoma City)
and Juan Raul Garza (murder and drug trafficking) – 1st
federal death sentences since 1963.
1998 – 98 executions
Numbers falling since, indicates less support for death
penalty.
2002 Court ruling that only juries, not judges could
impose the death penalty
Time limits on appeals

Severe time limit shortens the process, some worry it may
increase possibility of innocent person being executed.
Death Penalty