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Chapter 4
Civil Liberties -individual legal and constitutional protections against the gov’t.
Bill of Rights
First Amendment -Religion, Speech, Assembly, Petition
Barron v. Baltimore -1833SC decision thatBill of Rights restrained ONLY to the national gov’t.
NOTstates or cities.
Gitlowv. NY -1925-SC ruled that state gov’t must respect some 1st Amendment rights and are
protected by the due process clause of the 14th Amendment.SC interpreted the 14th
amendment to say states could not abridge the freedoms of expression protected by the 1st
14th amendment -adopted after Civil War states: “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the US; 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”
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Development of INCORPORATION DOCTRINE -legal concept under theSC has nationalizedthe bill
of rights by making most of its provisions to the states through the 14th amendment.
Only the 2nd, 3rd, 7th, grand jury of 5th and prohibition against excessive fines and bail in the 8th
have NOT been applied to states.
Issue: CLEAR AND PRESENT DANGERwas brought up. This involves 2 elements: SERIOUSNESS:
does a speech create a threat to the state and/or gov’t? andIMMEDIACY: is the threat so imminent
that harm will happen before the state and/or gov’t gets to talk about it?
Establishment clause-Congress shall make no law respecting the establishment of religion
Free exercise clause -prohibits gov’t from interfering with the practice of religions.
Sometimes conflict ex.chaplain on military base
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Argument mixing religion and education. 1965 -Johnson passed to give aid (tax funds) to
parochial schools b/c went to students not schools.
Lemon v. Kurtzman-1971 -SC declared aid to church related schools must:
1. have a secular (not religious) legislative purpose
2. have primary effect that neither advances nor inhibits religion
3. not foster an excessive gov’t entanglement with religion
1984 -Equal Access Act-Congress made it lawful if any school received federal funds they must
allow students groups to use facility for religious worship IF school opens its facilities for other student
meetings. Also 1993 Court REQUIRED public schools that rent facilities to organizations to do the
same for religious groups
School prayer most controversial
Engel v. Vitale -1962-63 SC ruled voluntary recitations of prayers or Bible passages when done as
part of a classroom exercise in public schools violated the establishment clause.
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1963 -Abington School District v. SchemppOpinion -SCfound unconstitutional because violated the ESTABLISHMENT CLAUSE. A state
program touching upon religion or religious institutions must have a valid secular purpose and must
not have the primary effect of advancing or inhibiting religion.
State insisted that its Bible reading served secular purposes...moral values,contradicted materialistic
trends, perpetuation of our institutions and the teachings of literature, etc....
SC said that the school used the Bible forreligious purposes. The Bible when used for these
purposes constituted religious ceremony. Bible MAY be used for historical or literary studies.
QUESTION:Supposea school board in a largely Muslim neighborhood required a portion of the
Koran to be read in classes each day. Would this be allowed under the Court’s Abington decision?
NO, same reason. Civil authority and religious activity must remain SEPARATE. Gov’t must maintain
It is not unconstitutional to pray in school; may pray silently as much as they wish, Constitution
discourages sponsorship or encouragement of prayer.
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Prohibits gov’t from interfering with the practice of religions.
Religion sometimes forbids actions that society thinks are necessary.
ex. Muhammad Ali refused induction to the armed services during the Vietnam War b/c would
violate his Muslim faith.
Amish parents refuse to send their children to public schools-Wisconsin v. Yoder
Jehovah’s witnesses and Christian Scientists refuse to accept blood transfusions and certain other
medical treatment for themselves and children.
Court allowed Amish parents to take their children out of school after the 8th grade. Amish
community well established and its children would not be a burden to the state. A state can compel
parents to send their children to an accredited school, parents have the right to choose parochial vs.
public school (home schooled)
People can become conscientious objectors to war on religious grounds.
Court upholds laws and regulations forbidding polygamy,outlawing business activities on Sunday
as applied to Orthodox Jews, denying tax exemptions to religious schools that discriminate on the
basis of race, approving building a road through ground sacred to some Native Americans.
Chapter 4
Does “no law in the 1st Amendment really mean “No law”?
1919 Justice Holmes wrote “that most stringent protection of free speech would not protect a man
in falsely shouting “FIRE” in a theater and CAUSING a PANIC”
Courts have tried to draw the line separating permissiblefrom impermissible speech
Judges have had to BALANCE FREEDOM of expression against values like PUBLIC ORDER, NAT’L
Certain forms of NONVERBAL COMMUNICATION are considered SYMBOLIC SPEECH and are
protected under the 1st Amendment
Other forms of expression are considered to be ACTION and ARE NOT PROTECTED
Prior Restraint = a gov’ts action that prevent material from being published. (CENSORSHIP)
1931 -SC case NEAR v. MINNESOTA
Newspaper editor called local officials a string of names and the state closed down his business. SC
ordered paper to be reopened.
Writer or speaker could be punished for violating a law or someone’s rights after publication.
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1988 -Hazelwood School District v. Kuhlmeier-SC ruled a high school newspaper was not a public
forum and could be regulated in “any reasonable manner” by school officials.
Free speech and public order
War often brings gov’t efforts to enforce censorship
1919 -Schenckv. US -Justice Holmes declared that gov’t can LIMIT SPEECH if it PROVOKES a CLEAR
Charles Schenck, Sec’yAmerican Socialist Party distributed 1000's of leaflets urging young men to
resist the draft. Schenckwas charged with impeding the war effort.
SC -declared gov’t COULD LIMIT SPEECH if it provokes CLEAR & PRESENT danger of
1940 -SMITH ACT= forbade the advocacy of violent overthrow of the American gov’t
1951 -Dennis v. US-SC upheld prison sentences for communist party leaders for conspiring to
overthrow gov’t with violence. Although group was tiny, it resembled yelling fire in an empty theater
rather than a crowded one. Supreme Court ruled communist takeover was so grave a danger that
gov’t could squelch their threat DUE TO THE SMITH ACT. (Valued national security over 1st amend
Chapter 4
McCarthyism -1950's Senator McCarthy unproven accusations that many public officials were
Communists created an atmosphere in which broad restrictions were placed on freedom of
1960's -Court narrowed the interpretation of Smith Act so gov’t COULD NO LONGER use it to
prosecute dissenters. Courts said OK to advocate the violent overthrow of the gov’t in abstract, but
not actually to incite anyone to imminent lawless action. (Yates v. US 1957) (Brandenburg v. OH
EXCEPTIONSto the general doctrine that prohibits PRIOR RESTRAINT
Many argue that Gov’t should sometimes limit individual behavior on the grounds of NATIONAL
Courts have been reluctant but sometimes wartime brings censorship to protect
classified info.
ex. PENTAGON PAPERS -1971 -NY Times v. US
Nixon administration was unable to obtain an injunction against the Times that would prohibit
publication of secret documents pertaining to American involvement in the Vietnam War
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Free Press vs. free trial
Bill of Rights can be a source of conflict.
Constitution meant to guarantee right to a FAIR TRIAL and FREE PRESS
A trial MAY NOT BE FAIR if pretrial PRESS COVERAGE makes it impossible to select an impartial jury.
Journalists argue that the public has the right to know.
Reporters sometimes want TRIALS TO BE OPEN TO THEM BUT they sometimes defend their right to
keep some of their own files a secret in order to protect a CONFIDENTIAL SOURCE
Few states have passed SHIELD LAWS to protect reporters in situations to withhold information
from courts and where they need to protect a confidential source.
Some states DO NOT have SHIELD LAWS
SC ruled that in the absence of shield laws “the right to a fair trial preempts (takes the place of)the
reporter’s right to protect sources (Branzburgv. Hayes, 1972) and has sustained the right of police to
obtain a search warrant to search the files of a student newspaper (Zurcherv. Stanford Daily, 1976)
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Courts have difficult time in this area.
Public standards vary from TIME to TIME, PLACE to PLACE, PERSON to PERSON
Work can be looked at as OBSCENE or ART
No nationwide consensus exists that offensive material should be banned
Newest issue in obscenity controversy involves claim some women’s groups that pornography
degrades and dehumanizes women
Courts ruled that STATES MAY PROTECT CHILDREN from obscenity (Osborne v. Ohio, 1991) ;
ADULTS have access to same material
Although SC held that “obscenity is not within the area of constitutionality protected speech or press
(Roth v. US, 1957) it has proven difficult to determine just what is obscene (not clear)
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Miller v. California -1973-Court tried to clarify what could be classified as obscene and therefore
outside the 1st amendment protection
Justice Burger wrote materials were obscene if the work as a whole
a. appealed to a “prurient interest” in sex
b. showed “patently offensive sexual contact”
c. if it “lacked serious artistic, literacy, political, and scientific merit”
Justice Burger also ruled that decisions should be made by local communities
Another reason why obscenity convictions can be difficult is that no nationwide consensus exists
that offensive material should be least not to adults
Regulations aimed at keeping obscene material away from the young who are considered more
vulnerable to its harmful influences are more popular and courts have protected children.
Motion Picture Association of America is an example of keeping materials away from the young.
Violation of federal law to receive sexually explicit photos of children through the mail
1991 SC upheld Ohio’s law forbidding possession of child porn ( Osborne v. Ohio, 1991)
Internet makes porn to be distributed easily and rapidly
Chapter 4
1996 Congress passed the Communications Decency Act-banning obscene material and
criminalizing the transmission of indecent speech or images to anyone under 18 years of age.
1997 -SC overturned Communications Decency Actbeing very broad and vague and a violation of
free speech
SC views Internet similar to print media
Libel -publication of statements known to be false that tend to damage a person’s reputation
Slander -spoken defamation
Libel and Slander ARE NOT PROTECTED by the 1st Amendment
Libel and Slander involveFREEDOM OF EXPRESSION that involve competing values
Libel cases MUST BALANCE FREEDOM OF EXPRESSION with RESPECT for individual reputations
If public debate is not FREE there can be NO DEMOCRACY
Some reputations can be damaged in the process
Court held that statements about PUBLIC FIGURES are LIBELOUS ONLY IF made with MALICE and
RECKLESS DISREGARD for the truth (New York v. Sullivan, 1964)
Private citizens have a lower standard to meet for winning libel lawsuits. They need only show
statements were defamatory and the author was negligent. It is difficult to win a libel case and
people do not wish to draw attention to critical statements about themselves.
Chapter 4
Symbolic Speech
Refers to actions that do not consist of speaking or writing but that express an opinion
Tinker v. Des Moines-students wearing arm band to protest the Vietnam War
Broadly interpreted FREEDOM OF SPEECH is a guarantee of FREEDOM OF EXPRESSION
Burning a flag is PROTECTED SPEECH (Texas v. Johnson -1989) P.59 reggov’t bk
Burning a draft card IS NOT and (US v. O’Brian, 1968)burning draft card
Content Neutral Test = 1. There is a law in place. 2. Knowingly mutilating gov’t documents. 3. Fed
Wearing an armband, burning a flag, marching in a parade are examples of SYMBOLIC SPEECH;
Refers to actions that do not consist of speaking or writing but that express an opinion
Commercial Speech
such as advertising is MORE RESTRICTED than expressions of opinion on religious, political or other
Chapter 4
FTC -Federal Trade Commission decides what kinds of goods may be advertised on radio and TV
and regulates the content of such advertising.
Regulations changes with social mores and priorities. ex. 30 yrsago -tampons could not be
advertised on TV vs. cigarettes commercials were everywhere. Today situation is reversed.
FTC make sure that advertisers DO NOT MAKE false claims for their products but truth in advertising
does not prevent misleading promises.
ex. ad imply the right mouthwash or deodorant will improve one’s love life...message is legal
Courts have broadened its protection under the Constitution. Recent years court have struck down
many restrictions as violations of freedom of speech. (including restraints against advertising for
professional services and for certain products such as condoms)
FCC -Federal Communications Commission regulates the content and nature of radio & TV
Licensed station must comply with regs(certain percentage of broad cast time for public service,
news, children’s programming, political candidates)
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FCC regulates the use of obscene words b/c children might hear them
1992 the FCC fined Howard Stern 600,000 for indecency. If Stern’s comments were carried out by
cable or satellite instead of airwaves he could have expressed himself with impunity.
Technology has changed the line between broadcasting and private communications betw
Freedom of Assembly
Basis for forming interest groups, political parties, professional associations, picketing and protesting.
2 facets for freedom of assembly
1. literal right -gather together in order to make a statement
to assemble This freedom can conflict with societal values when it disrupts public order, traffic flow,
peace & quiet, or bystanders freedom to go about their business w/o interference
Within reasonable limits called TIME, PLACE, and MANNER RESTRICTIONS, freedom of assembly
includes: right to parade, picket, protest
Group must apply to local city gov’t for a permit and post bond
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Balance of freedom and order is tested when protest verges on harassment
ex. Protesters lining up outside abortion clinics; courts set limits on how close protesters can picket
on property, also can not parade in front of a residents property (doctor conducting abortions)
2. right to associate -with people who share a common interest
ex. 1958 NAACP v. Alabama-Alabama tries to harass NAACP to turn over its membership list. SC
protected the right to assembly that NAACP did not have to reveal membership and subject its
members to harassment.
Search & Seizures
Police cannot arrest someone without a reason
Police need evidence to arrest and courts need evidence to convict
Police need PROBABLE CAUSE -REASONABLE grounds to believe that someone is guilty of a
crime; often police need physical evidence
4th Amend -specific in forbidding UNREASONABLE searches & seizures.
To prevent abuse -courts cannot issue a search warrant UNLESS PROBABLE CAUSE
Chapter 4
Warrant is NOT a constitutional requirement but a reasonable police search. Most searches are
These searches are VALID if:
ex. aerial photos pg. 118 bottom; marijuana and chemical co
EXCLUSIONARY RULE -rule that evidence no matter how incriminating CANNOT be introduced into
a trial if it was not constitutionally obtained.
Until 1961 rule applied only to federal gov’t
SC case MAPP v. OHIOthat 4th amend must beextended to states as well
Critics of exclusionary rule argue that its strict application may permit guilty persons to go free
because of police carelessness or innocent errors. The guilty SHOULD NOT go free due to
Supporters say that everyone is presumed innocent until proven guilty -defendant’s rights protect
the ACCUSED not the guilty.
Chapter 4
Courts have MADE EXCEPTIONS to the exclusionary rule in the 1980s. The Court allowed illegally
obtained evidence that led the police to DISCOVERY that they would eventually would have made
without it
ex. Nix v. Williams -court allowed use of illegal obtained evidence with this evidence led police to
discover that they eventually would have found without it
ex.US v. Leon -Justices also decided to establish the GOOD-FAITH exception to the rule; evidence
could be used if the police mistakenly thought they were operating under a constitutionally valid
ex. Knowles v. Iowa
Stopped for speeding and having NO probable cause search car and found drugs. Court said can not
charge him with illegal possession.
Burden of proof rests on the police and the prosecutors.
Suspects can not be forced to help with own conviction
5th amend prohibits FORCED Self-Incrimination stating that “no person shall be compelled to be a
witness against himself”
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Under law the gov’t may guarantee suspects of IMMUNITY -exception from prosecution in
exchange for suspects’ testimony regarding their own and others’ misdeeds.
ex. Monica Lewinsky
Ernesto Miranda picked up as a prime suspect for rape and kidnaping of an 18 yrold girl. Girl
identified him in a lineup. Miranda questioned for 2 hours. During this time he was NOT told his
constitutional right against self-incrimination nor his right to counsel. He confess enough info to lead
to his conviction
SC reversed conviction.
This case established guidelines for police questioning. Suspects must be told:
1.they have a constitutional right to remain silent and may stop answering questions at any time
2.What they say can be used against them in a court of law
3.They have a right to have a lawyer present during questioning and that the court will provide an
attorney if they cannot afford their own lawyer.
Miranda ended up being murdered and suspect was read his rights.
Chapter 4
Right to Counsel
6th Amend-protect individuals accused of crimes. Includes: right to counsel, the right to confront
witnesses, and right to a speedy and public trial.
Right to counsel ensured in federal court...not extended to people tried in state courts until the 60s.
Until 1930s individuals were tried and sometimes convicted for capital offenses w/o a lawyer.
ex. Powell v. Alabama-1932, SC ordered the states to provide an attorney for poor defendants
accused of CAPITAL Crimes.
Most crimes are NOT capital crimes and tried in the STATE
1963 -Gideon v. Wainwright
SC extended the right to an attorney for everyone accused of a felony in a state court
Trial by Jury
Most cases are settled through the process called PLEA BARGAINING -bargain struck between the
defendant’s lawyer and the prosecutor to the effect that the defendant will plead guilty to a lesser
crime in exchange for the state’s promise not to prosecute the defendant for a more serious
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Critics believe that it allows many criminals to avoid the full punishment they deserve. Works to the
advantage of both sides -saves the state the time and money that would spend on trial AND
permits defendants to plead guilty to a lesser charge.
SC eroded tradition of 12 jurors in state ct. permitting states to use fewer than 12 to convict with a
less than unanimous vote
Federal courts still employ juries of 12 persons and require unanimous votes for a criminal
Cruel and Unusual Punishment
8th Amend -forbids cruel and unusual punishment but does not define phrase. 14th amend, bill of
rights provision applies to the states.
Furman v. Georgia-overturned death penalty law b/c its imposition was “freakish and random”
Question of whether the DEATH PENALTY is cruel and unusual punishment---no
ex. Gregg v. Georgia-upheld death penalty; extreme sanction suitable to the most extreme of
ex. MCCleskey v. Kemp-refused to rule that the death penalty violated equal protection of the law;
14th amendment -that there was no evidence that the juries intended to discriminate on basis of
Chapter 4
Death penalty is part of the justice system.
1989 -Court held it is constitutionally acceptable to execute 16-17 yrold and mentally retarded
Courts made more difficult for criminals to file habeas corpus petitions that would delay executions
Habeas corpus -ensure party’s imprisonment or detention is not illegal.
To be used to test legality of an arrest or commitment, may be used to review
1. regularity of the extradition process
2. the right to or amount of bail
3. the jurisdiction of a court that has imposed a criminal sentence
Right to Privacy
Right to privacy -right to private personal life free from the intrusion of gov’t
ex. birth control and abortion
ex. Roe v. Wade-by 1st trimester
ex. Planned Parenthood v. Casey-24 hour waiting period, parental consent, given medical
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Bill of Rights -Freedom of religion implies right to exercise private beliefs, protections against
unreasonable searches and seizures, make persons secure in their own homes, private property
cannot be seized without due process of law
ex. Griswold v. Conneticut-concluding right to privacy includes right to family plan between
husband and wife
Chapter 4