Civil Liberties

1. Civil Liberties “Your rights as Americans”

2. In this chapter we will cover… 1. The foundations of civil liberties 2. The Bill of Rights 3. First Amendment: Freedom of Religion 4. First Amendment: Freedom of Speech and Press 5. The Right to Keep and Bear Arms 6. The Rights of Criminal Defendants 7. The Right to Privacy

3. Bill the Bulwark Give an example of a civil liberty.

4. What are civil liberties? • Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation. • These are limitations on the power of government to restrain or dictate how individuals act.

5. Bill the Bulwark What US documents protect our Civil Liberties?

6. Founding Documents • Declaration of Independence - “We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” • Constitution – framers believed in natural rights

7. Writ of Habeas Corpus • Art. 1, Sec. 9 • “Produce the body” • Requires government officials to present a prisoner in court and to explain to the judge why the person is being held

8. Ex Post Facto Laws • “after the fact” • Being charged for committing a crime, that wasn’t a crime when the person committed the action

9. Bills of Attainder • Legislative act that punishes an individual without judicial trial • Court should decide guilt, not Congress

10. Bill of Rights • Free speech, press, assembly, petition, religion • Right to bear arms • Prohibits quartering soldiers • Restricts illegal search and seizures • Provides grand juries, restricts eminent domain (gov can’t take private property unless compensation), prohibits forced self-incrimination, double jeopardy (can’t be charged for the same crime twice)

11. Bill of Rights 6. Outlines criminal court procedure 7. Trial by jury 8. Prevent excessive bail and cruel and unusual punishment 9. Amendments 1-8 do not necessarily include all possible rights of the people 10. Reserves for the states any powers not delegated to Fed. Gov by Constitution

12. + 1…the 14th Amendment • The Bill of Rights was designed to limit the powers of the national government. • In 1868, the Fourteenth Amendment was added to the Constitution and its language suggested that the protections of the Bill of Rights might also be extended to prevent state infringement of those rights. – The amendment begins: “All persons born or naturalized…are citizens…No state shall....deprive any person, of life, liberty, or property without due process of law.“ – Also includes equal protection clause (next slide) – The Supreme Court did not interpret the 14th Amendment that way until 1925 in Gitlow v. New York.

13. 14th Amendment • “privileges and immunities” – Constitution protects all citizens • Due process – prohibits abuse of life, liberty, or property of any citizen, state rights were subordinate to Fed rights • Equal protection clause – Constitution applies to all citizens equally

14. 14th Amendment (con’t) • In 1925, the Court ruled in Gitlow v. New York that states could not abridge free speech due to the 14th Amendment's Due Process Clause. • This was the first step in the development of the incorporation doctrine whereby the Court extended Bill of Rights protections to restrict state actions. • Not all of the Bill of Rights has been incorporated. For example the 2nd and 3rd amendments have not been incorporated.

15. The 1st Amendment….Freedom of Religion, Speech & Press • The First Amendment states that: “Congress shall make no law 1. respecting an establishment of religion, 2. or prohibiting the free exercise thereof;…”

16. Bill the Bulwark What civil liberties are protected by the 1st Amendment? What was the founding fathers’ point of view about the 1st Amendment?

17. Did Ya Know? The 1st Amendment was actually the 3rd—Congress originally voted that the 1st Amendment should be about voting themselves raises and the second unlimited terms of office—go figure…

18. The Founding Fathers & the 1st Amendment • While not all of the founders endorsed religious freedom for everyone, some of them notably Jefferson and Madison, cherished the right of all individuals to believe as they pleased. (Tommy J was a deist…) • Many of the colonies and later states had established religions. After independence all but TWO of the former colonies had declared themselves “Christian states.” • Non-Christian minorities were rarely tolerated (Jews could not hold office in Massachusetts until 1848).

19. What “establishment” historically meant… • means that the Government will create and support an official state church…often – tax dollars support that chosen church. – that church’s laws become the law of the land. – the Nation’s leader usually appoint the leading clerics. – often other religions are often excluded.

20. US point of view of establishment • They asked, “Should we establish a religion or not?” • Thomas Jefferson wrote that there should be “a wall of separation between church and state.” Tommy J rocks!!!!

21. Religion…as a result • “Establishment” clause – prohibits the gov’t from establishing an official church • “Free exercise” clause – allows people to worship as they please

22. Separationists vs. Accomodationists How high should the wall between church and state be? Accomodationists contend that the state should not be separate from religion but rather should accommodate it, without showing preference. Separationists argue that a high “wall” should exist between the church and state.

23. Judicial Review • Marbury v. Madison • The power of the Supreme Court to judge the constitutionality of a law

24. Legislative Action • Sometimes laws can guarantee rights • Ex. Civil Rights Act of 1964

25. The Supreme Court and the Establishment Clause • The Supreme Court has held fast to the rule of strict separation between church and state when issues of prayer in public school are involved. •In the early 1960s, the Court ruled that official lead prayer and bible reading is unconstitutional. •In Engel v. Vitale, (1962) the Court ruled that even nondenominational prayer could not be required of public school children

26. School Prayer • In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a middle school graduation unconstitutional.

27. Bill the Bulwark What does the Lemon Test refer to? What S. Ct. case most closely relates to this issue?

28. In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries. • To be Constitutional the challenged law must 1. Have a secular purpose 2. Neither advance nor inhibit religion 3. Not foster excessive government entanglement with religion. Lemon v. Kurtzman—i.e. the Lemon Test • In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

29. Free Exercise Clause • "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion. • This freedom is not absolute. • Several religious practices have been ruled unconstitutional including: – snake handling – use of illegal drugs – Polygamy ‘Violation of social duties or subversive of good order” • Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

30. “See You At the Pole” • Student participation in before - or after - school events, such as "see you at the pole," is permissible. • School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event.

31. Equal Access to Schools • 1984 Congress passed Equal Access Act public high schools receiving gov’t funds must allow student groups to meet regardless of religious or political content if other non-curricular clubs also meet • Westside Community Schools v Mergens 1990-upheld Act “Crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clause protects”.

32. Still 1st Amendment…Freedom of Speech • In the United States we each have the right to speak our mind (within some broad limits). • In this section we will discuss – The history of speech in the United States – Prior Restraint – Politically Correct and Hate Speech – Symbolic Speech – Libel and Slander – The Internet

33. Free Speech • DOES NOT mean that you can “say anything you want”… but pretty close Restrictions • Threat to national security—this now includes saying things like…”I’m glad they didn’t find the bomb in my bag”—while in line at the airport! • Libel – false written statement attacking someone’s character, with intent to harm • Obscenity – not protected, hard to define – Ex. Pornographic material • Symbolic speech – action to convey a message

34. Alien & Sedition Acts (1798) • These acts were designed to silence criticism of the government. • They made it a criminal offense to publish “any false, scandalous writing against the government of the United States.” • A new Congress allowed the acts to expire before the Supreme Court had a chance to rule on the Constitutionality of the laws.

35. War and Freedom of Speech • During the Civil War, President Lincoln suspended the free press provision of the First Amendment. • President Lincoln also ordered the arrest of editors of two New York newspapers. Congress support him.

36. Espionage Act (1917) • In World War I anti-German feelings ran high. Anything German was renamed – such as Sauerkraut to Liberty Cabbage. • This law curtailed speech and press during World War I. • The law made it illegal to urge resistance to the draft, and even prohibited the distribution of antiwar leaflets. • Nearly 2,000 Americans were convicted under the Espionage Act.

37. Espionage Act Con’t • Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft. • The bad tendency test was used by the Court. Engaging in speech that had a tendency to induce illegal behavior was not protected by the 1st Amendment.

38. Clear and Present Danger Test • Holmes sought to allow limits on the 1st Amendment. • Justice Holmes defined the “Clear and Present Danger” test in the Schenck case. • “Even the most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre.” Justice Holmes.

39. Debs v US (1919) • In Debs the Court upheld the conviction of Eugene V. Debs (a Socialists candidate for the U.S. Presidency) because his anti-war speeches had the “tendency” to obstruct recruitment efforts.

40. Did Ya Know??? • While serving his 20 year prison sentence he received nearly one million votes in the 1920 presidential election! – Debs was later pardoned by President Harding.

41. Libel and Slander • Libel is a written statement that defames the character of a person. • Slander is spoken words that defame the character of a person. • In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved. – Actual malicious intent must be proved NY Times v Sullivan 1964

42. Obscenity and the 1st Amendment • Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place and person to person. • Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it." The ambiguity of definition still exists and is becoming even more problematic with the Internet. • No nationwide consensus exists that offensive material should be banned—even some porn.

43. Obscenity con’t • The courts have consistently ruled that states may protect children from obscenity (Osborne v. Ohio,1991); while adults often have legal access to the same material. – BUT Court struck down Child Pornography Prevention Act in Ashcroft v Free Speech Coalition. The act was aimed at restricting minors viewing pornography at libraries • Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States,1957) it has proven difficult to determine just what is obscene.

44. Miller v California • Miller concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature. • In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.

45. The “Three Pronged Test” for Obscenity • In order to meet the definition of obscene material articulated in this case, three conditions must be met as determined in Miller V California 1973: 1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest 2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. 3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific

46. Bill the Bulwark What types of speech is NOT protected by the Constitution?

47. What Types of Speech areProtected? • Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including: – An example of protected symbolic speech would be the right of high school students to wear armbands to protest the Vietnam War (Tinker v. De Moines Independent Community School District, 1969). – flying a communist red flag – burning the American flag

48. Protection—even when burning a flag • Burning the American flag is a form of protected symbolic speech. • The Supreme Court upheld that right in a 5-4 decision in Texas v. Johnson (1989).

49. What Types of Speech areProtected? Pentagon Papers • Prior Restraint – a government action that prevents material from being published. • The Supreme Court has generally struck down prior restraint of speech and press (Near v. Minnesota, 1931). • In NYT v. United States (1971) the Court ruled that the publication of the top- secret Pentagon Papers could not be blocked.

50. What Types of Speech areProtected? • Hate Speech – hate speech is the new frontier. • Campus speech codes, city ordinances, and the Communications Decency Act are just a few examples.