pearson education, inc. © 2005 civil liberties chapter 16

Pearson Education, Inc. © 2005

Civil LibertiesChapter 16


Origins: Bill of Rights• Articulation of basic freedoms found in colonial

American• During Revolution patriots trampled on rights of

Tories – called them traitorous • Constitution did not include explicit protection for

individual civil liberties.• States responsible for things such as regulating

speech and the press• Only when ratification of Constitution was in

danger did a federal Bill of Rights emerge.


Few Liberties Pre-Civil War• Bill of Rights originally only applied to national

government – NOT the states– Episcopal Church remained the official state church of

Virginia.– Puritan religion remained the established religion in

Massachusetts.– Some Bill of Rights provisions did not explicitly

mention federal or state government leaving possibility that they applied to both.

• Barron v. Baltimore (1833)• Main use of Bill of Rights prior to the Civil War

was to justify continued practice of slavery.


Applying the Bill of Rights

• The Civil War transformed the Bill of Rights.– Civil Rights Amendments

• The 13th, 14th, 15th Amendments, which abolished slavery, redefined civil rights and liberties, and guaranteed the right to vote to all adult male citizens.

– Due Process Clause• Found in the 5th and 14th Amendments to the Constitution:

forbids deprivation of live, liberty or property without the due process of law


Applying the Bill of Rights

• Language in the 14th Amendment applied the due process clause to the states

• BUT, the Supreme Court did not immediately conclude that the states must abide by the ENTIRE Bill of Rights.– If it did, would be difficult to enforce

– Gradual approach: selective incorporation• the case-by-case incorporation, by the courts, of the Bill of

Rights into the due process clause of the 14th Amendment


Freedom of Speech, Assembly, and Press

• 1st Amendment protects speech from regulation by Congress.– Majorities would have to tolerate dissent.– John Stuart Mill: in the free exchange of ideas, truth

would eventually triumph over error.– But what of vicious or offensive speech? Mill states

that even if such ideas were built on error, only by allowing it to be expressed can its proponents be denied the privilege of false martyrdom.

– Example: racial hatred/prejudice


“Bad Tendency” to “Clear and Present Danger”

• Bad Tendency: A rule from English law saying that expression could be punished if it could ultimately lead to illegal behavior.

• First major Supreme court decisions affecting freedom of speech arose out of the conscription of young men into the army during WWI.

• Schenck : socialist who mailed anti-conscription materials to draft-age men– found guilty of the 1917 Espionage Act (law that made it

illegal to obstruct armed forces recruitment)


“Bad Tendency” to “Clear and Present Danger”

• Supreme Court reviewed case and enunciated the Clear and Present Danger doctrine– The principle that people should have complete

freedom of speech unless their language endangers the nation

– Meaning open to interpretation– Abrams v. United States (1919) Holmes attempt to fine

tune the doctrine– Stromberg v. California (1931) gave 1st Amendment

protection to extremely unpopular opinions.


Fighting Words

• The principle endorsed by the Supreme Court that some words constitute violent acts and are therefore not protected under the 1st Amendment.

• Chaplinsky v. New Hampshire


Balancing Doctrine

• Freedom of speech must be balanced against other competing interests.

• Circumstances matter.

• Dennis v. United States (1951)

• Was used to reinterpret and place limits on the clear and present danger doctrine


Fundamental Freedoms Doctrine

• Doctrine stating that laws impinging on the freedoms that are fundamental to the preservation of democratic practice are to be scrutinized by the courts more closely than other legislation

• Fundamental freedoms: speech, press, assembly, and religion


Freedom of the Press

• Prior restraint doctrine– Legal doctrine that gives individuals the right to

publish without submitting material to a government sensor.

– Near v. Minnesota (1931)– New York Times v. United States (1971)


Freedom of Association

• Considered inseparable from freedom of speech and assembly

• Dennis v. United States

• NAACP v. Alabama (1958)

• Boy Scouts of a America v. Dale (2000)


Limitations on Free Express• Commercial Speech

– Advertising or other speech made for business purposes may be regulated

• Ex. Cigarette advertising on television and radio is forbidden

• Obscenity– Publicly offensive language or portrayals with no redeeming social

value– Redrup v. New York (1967)– Miller v. California (1973)

• Libel– False statement defaming another– New York Times v. Sullivan


Freedom of Religion

• Guaranteed by two clauses:– Establishment of religion clause– Free exercise of religion clause

• The first denies the government to establish any single religious practice as superior.

• The second protects the right of individuals to practice their religion without government interference.


Establishment of Religion Clause• Separation of church and state doctrine

– The principle that a wall should separate the government from religious activity

– Meek v. Pittenger (1975)• Public monies cannot be used for payment to religious-school

teachers, for curricular materials, or for any other expense at such schools, except for textbooks and the cost of transporting students to school.

– Agostini v. Felton• Court ruled that public school teachers can provide specialized

remedial instruction in religious schools so long as this instruction does not discriminate against students on the basis of religion.


Free Exercise of Religion Clause

• Seems to instruct states not to interfere with religious practices

• Guarantee of free exercise of religion has often forced the Court to draw fine distinctions about how the government can make its rules.– Court invalidated city ordinance that banned animal

sacrifices – infringed on practice of Santeria religion.– Court ruled Native Americans in Oregon could be

denied unemployment as they were fired because of their peyote use.


Establishment of Religion or Free Exercise?

• Wisconsin v. Yoder – What happens when the establishment and exercise clause conflict?

• School choice debate• Zelman v. Simmon-Harris

– Found constitutional a small voucher program serving low-income families in Cleveland even though the vouchers were used for religious schools.


Law, Order and Rights of Suspects

• Elections affect court interpretations of the procedural rights of the accused.

• Warren Court– issued a series of decisions that interpreted the Bill of

Rights as providing significant protections of the rights of the accused.

• Post-War Court– political circumstances led to tempering (qualifying) of

these decisions.


Search and Seizure

• 4th Amendment• Your house cannot be searched without your

permission unless a search warrant, based on evidence that a crime has probably been committed, is issued by a court.

• Exclusionary rule– legal standard that says that illegally obtained evidence

cannot be admitted in court

– Mapp v. Ohio (1961)


Immunity Against Self-Incrimination

• 5th Amendment

• Protects individuals from torture and coerced confessions by saying the persons cannot be forced to testify against themselves.

• Miranda v. Arizona (1966)


Impartial Jury

• 6th Amendment• Requirement that a jury must be impartial• Sheppard v. Maxwell (1966)

– safeguards put into place to ensure impartial juries

• Nebraska Press Association v. Stuart (1976)– “pre-trial publicity – even pervasive, adverse publicity

– does not inevitably lead to an unfair trial.”


Legal Counsel

• 6th Amendment

• Gideon v. Wainwright (1963)– All citizens accused of serious crimes are

constitutionally entitled to legal representation.– Office of public defender

• low pay, and systems and standards vary widely from state to state.


Double Jeopardy

• 5th Amendment

• Benton v. Maryland (1969)– States cannot try a person twice for the same

offense.– But a person can be tried in the federal courts,

even if acquitted in a state court.


Rights in Practice: Habeas Corpus

• Writ of habeas corpus– A judicial order that a prisoner be brought

before a judge to determine the legality of his or her imprisonment.

– The Great Writ• preserves the right of the accused to the due process

of law


Rights in Practice: The Plea Bargain

• Agreement between prosecution defense that the accused will admit having committed a crime, provided that other charges are dropped and the recommended sentence is shortened

• Extensive use of plea bargain at issue


The Right of Privacy

• 9th Amendment: The enumeration in the Constitution, of certain rights, shall be construed to deny or disparage others retained by the people.

• Right of privacy not explicit in Constitution


Regulation of Sexual Behavior

• Griswold v. Connecticut (1965)– Right to use contraceptives– Majority agreed

• Bowers v. Hardwick (1986)– Georgia law prohibiting sodomy under which two

homosexuals had been convicted– Behavior not supported by majority—court held state

could regulate. BUT…– In Lawrence v. Texas (2003) Court reversed itself on

this topic. Bowers should not be a biding precedent.


Abortion: Right to Life or Right to Choose

• Roe v. Wade (1973)– Court ruled that the right to privacy was broad enough

to include at least a partial right of abortion.– Launched powerful political movements

• Right-to-life• Pro-Choice

• Planned Parenthood v. Casey– Compromise decision: upheld some of the restrictions

on abortion but left intact the principle that states cannot outlaw all abortions


Privacy in the Information Age

• Kyllo v. United States (2001)– Court considered whether police departments

could make use of thermal imaging equipment to examine a suspect’s home without a search warrant.

– Found for the defendant—using imaging technology basically equal to unconstitutional search

pearson education, inc. © 2005 civil liberties chapter 16

Documents

federal bill of rights

pearson education

bill of rights language

bill of rights provisions

entire bill of rights

civil rights amendments

rights of tories

th amendment slide