Civil Liberties AP Government

Unit 3

You should be reading:Chapters 18 and 19

Bill of Rights14th Amendment

Civil Liberties

• Civil liberties is the name given to freedoms that protect the individual from government.

• Civil liberties set limits for government so that it would not abuse its power and interfere with the lives of its citizens.

Civil Liberties

• Many of the world's democracies, such as the United States and Canada, have bills of rights or similar constitutional documents that enumerate and seek to guarantee civil liberties.

• Basic civil liberties include the:– Freedom of assembly– Freedom of religion– Freedom of speech– Due process– The right to a fair trial and to privacy.

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.

1st Amendment

• Freedom of Religion• The Establishment Clause

– There shall be no “established state religion”

• The Free Exercise Clause– Freedom to worship as you please

• How can these clauses be reconciled?• It has proven to be difficult to satisfy

everyone!

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.

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

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 the prayer, New York had officially approved religion; this was found to violate the 1st Amendment’s Establishment Clause

– Neither the prayer's nondenominational character nor its voluntary character saved it from unconstitutionality.

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."

1st Amendment

• Freedom of Religion Case • Lemon v Kurtzman 1971• The case involved controversies over laws in

Pennsylvania and Rhode Island. – In Pennsylvania, a statute provided financial

support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools.

– The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions."

Importance

• The Court ruled that public money for religious schools is not constitutional

• Created “The Lemon Test”- A 3 Prong Test– First, the statute must have a secular

legislative purpose– Second, its principal or primary effect

must be one that neither advances nor inhibits religion

– Finally, the statute must not foster "an excessive government entanglement with religion”

1st Amendment

• Freedom of Religion Cases– Wisconsin v Yoder 1971

• Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16.

– The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs.

• Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons?

1st Amendment

• Freedom of Religion Cases– Yes!– In a unanimous decision, the Court

held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade.

1st Amendment

• Freedom of Religion Cases– Employment Div., Dept. of Human

Resources Oregon v Smith 1990• Free Exercise Clause Case• Two Native Americans who worked as

counselors for a 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, the rehabilitation organization fired the counselors who sued claiming that the Free Exercise Clause protected their religion.

1st Amendment

• Decision and Importance– The 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…

1st Amendment

• Freedom of Religion Cases– Church of the Lukumi Babalu Aye v. Hialeah

• The Church of Lukumi Babalu Aye practiced the 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

Decision and Importance

• The 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.

1st Amendment• Freedom of Speech Cases

– Schenck v US 1919 – During World War I, Schenck mailed circulars to

draftees that suggested that the draft was a monstrous wrong motivated by the capitalist system.

• The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act.

– Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

– Were his words protected by the speech clause of the First Amendment?

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."

1st AmendmentFreedom 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?

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”?

1st and 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

Incorporated or Not Incorporated?

The Bill of Rights is Selectively Incorporated

• 1st Amendment: Fully incorporated. • 2nd Amendment: No Supreme Court decision on

incorporation since 1876 (when it was rejected). – 2008 Heller Case

• 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.

1st Amendment

Freedom 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

1st Amendment

Freedom of Expression

• Freedom of Expression Cases– Island Trees SD 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

1st Amendment

Freedom of Expression

• Freedom of Expression Cases– Brandenburg v Ohio 1969

• Can KKK have a parade 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

Can a Story go too Far??

• Obscenity in the media• Playboy, Penthouse, Hustler…

– Does it have social value?• The People v Larry Flynt

• Does it incite violence?– Schenck v US

1st Amendment

Obscenity 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."

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 . .”

1st Amendment

Obscenity 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?

1st Amendment

Obscenity 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

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.

1st Amendment

Freedom 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 press

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?

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

1st Amendment Freedom 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

1st Amendment Freedom of Press

• Other Important Laws and Acts dealing with the Freedom of the Press– Sunshine Laws– Freedom of Information Act

1st Amendment

• Right to Privacy Cases– Griswold v Connecticut 1965

• Birth control for married couples was constitutional

– Roe v Wade 1973• abortion was constitutional- right to privacy

– Webster v Reproductive Health Services, 1989• Abortion clinics could limit abortions to before

20 weeks in Missouri• Roll back of Roe and privacy rights

– Planned Parenthood v. Casey, 1992• Pennsylvania case in which a 24 hour waiting

period, and a law requiring parental permission were upheld…another rollback of Roe

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– Printz v US– District of Columbia v. Heller (2008)

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.

4th Amendment

• “Search and seizure” Cases• Mapp v Ohio 1961

– Search of home by police found illegal materials without warrant

– Is this constitutional?– No!– The Exclusionary Rule established

• Without warrant, items could not be used against Mapp

• “Fruit of poisonous tree”

4th Amendment

• “Search and seizure” Cases• 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

5th Amendment

• 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.

5th Amendment Eminent Domain

Kelo v City of New London, CT

• Facts of the Case• New London, a city in Connecticut, used its eminent

domain authority to seize private property to sell to private developers.

• The city said developing the land would create jobs and increase tax revenues.

• The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation. – Specifically the property owners argued taking private

property to sell to private developers was not public use.• Question• Does a city violate the Fifth Amendment's takings clause if

the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy?

Importance of Kelo

• Conclusion• No. In a 5-4 opinion delivered by Justice John Paul

Stevens, the majority held that the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause.

• The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. – The takings here qualified as "public use" despite the

fact that the land was not going to be used by the public.

• The Fifth Amendment did not require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'"

6th Amendment

• “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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

5th and 6th Amendments Fair Trial/Due Process Case

• Sheppard v Maxwell (1966)– After suffering a trial court conviction of

second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial.

– Sheppard alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. • Was there too much pre-trial publicity for

Sheppard to receive a fair trial?.

5th and 6th Amendments Fair Trial/Due Process Case

• Yes!• In an 8-to-1 decision the Court found that

Sheppard did not receive a fair trial. • Noting that although freedom of

expression should be given great latitude, the Court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting.

5th and 6th Amendments

• Attorney Rights/Due Process Cases– Gideon v Wainwright 1963

• Right to an attorney

– Escobedo v Illinois 1964• Right to speak to an attorney

– Miranda v Arizona 1966• Miranda rights must be read

8th Amendment

• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

8th Amendment

• Is the death penalty “cruel and unusual punishment”?

•Furman v Georgia, 1972•Gregg v Georgia, 1976

Furman v Georgia, 1972

• Facts of the Case• Furman was burglarizing a private home when

a family member discovered him. – He attempted to flee, and in doing so tripped and fell. – The gun that he was carrying went off and killed a

resident of the home. • He was convicted of murder and sentenced to

death.• Question• Does the imposition and carrying out of the

death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?

Importance

• Conclusion• Yes. The imposition of the death penalty

in this cases constituted cruel and unusual punishment and violated the Constitution.

• The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.

Gregg v Georgia

• Facts of the Case• A jury found Gregg guilty of armed robbery and

murder and sentenced him to death. – On appeal, the Georgia Supreme Court affirmed the

death sentence except as to its imposition for the robbery conviction.

• Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and unusual" punishment that violated the Eighth and Fourteenth Amendments.

• Question• Is the imposition of the death sentence

prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment?

Gregg v Georgia

• Conclusion• No. In a 7-to-2 decision, the Court held that a

punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances.

• In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed. – Moreover, the Court was not prepared to overrule the

Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.