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Civil Liberties

Civil Liberties . Liberties v. Rights. Civil Rights are government guarantees of political equality . Civil Liberties protect individuals from governmental interference. Civil Rights tend to apply to groups, whereas Civil Liberties are individual protections.

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Civil Liberties

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  1. Civil Liberties

  2. Liberties v. Rights • Civil Rights are government guarantees of political equality. • Civil Liberties protect individuals from governmental interference. • Civil Rights tend to apply to groups, whereas Civil Liberties are individual protections.

  3. The Bill of Rights - Early Interpretation Early Supreme Court • Seen as weak institution • Cases are primarily about: • distribution of power among branches of government • relationship between state and federal government

  4. Early Interpretation of the Bill of Rights Barron v. Baltimore (1833)

  5. Early Interpretation of the Bill of Rights Barron v. Baltimore (1833) Bill of Rights does not apply to the States “Congress shall make no law…”

  6. Incorporation of the 14th Amendment Incorporation The process through which the Supreme Court examines individual provisions of the Bill of Rights and applies them against state and local officials

  7. Incorporation of the 14th Amendment After the Civil War, 14th Amendment added to the Constitution No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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

  8. Incorporation of the 14th Amendment Judges must determine what protections, if any, are provided by the phrases: • Privileges or immunities of citizens • Equal protection of the laws • Due process of law

  9. Incorporation of the 14th Amendment • First step towards incorporation: • 5th Amendment “Takings” Clause

  10. Incorporation of the 14th Amendment • Lawyers ask Supreme Court to interpret the Due Process Clause in such a way as to protect individual rights against state and local governments • Supreme Court refuses to incorporate a personal right until 1925 decision in Gitlow v. New York (1925)

  11. 1st Amendment Rights The First 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.

  12. Gitlow v. New York (1925) • "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State.“ • But the case does uphold the right to free speech • Clear and Present Danger was established in Schenck v. U.S. (1919)

  13. 1st Amendment Rights: Freedom of Speech Symbolic Speech When people take an action designed to communicate an idea

  14. 1st Amendment Rights: Freedom of Speech • Symbolic Speech can be granted 1st Amendment protection • Tinker v. Des Moines (1969) • Texas v. Johnson (1989)

  15. 1st Amendment Rights: Freedom of Speech Reasonable restrictions on assemblies: • Time • Place • Manner • Hate speech • Fighting words When can restrictions be put on First Amendment rights?

  16. Obscenity Roth v. United States (1957) Ban ok if…“average person, applying contemporary community standards” would find it “without redeeming social importance”

  17. Obscenity Miller v. California (1973) • Depicts or describes sexual conduct in a patently offensive way • “Lacks literary, artistic, political, or scientific value”

  18. Obscenity Potter Stewart’s Standard "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

  19. Obscenity in Music • 2 Live Crew • American Family Association: “Parental Advisory” not enough • 1988 – store owner in Alabama arrested • Broward County, FL declares album obscene • Obscenity is confirmed by the U.S. District Court

  20. Broward, huh?

  21. Broward County • Largely white retirees • Store owners arrested for selling the album • 3 members arrested after a live performance

  22. U.S. Court of Appeals • Dr. Henry Louis Gates • Lyrics have roots in African-American “vernacular, games, and literary traditions” • Members are acquitted in their trials • Appeals Court side with 2 Live Crew

  23. U.S. Court of Appeals • Dr. Henry Louis Gates • Lyrics have roots in African-American “vernacular, games, and literary traditions” • Members are acquitted in their trials • Appeals Court side with 2 Live Crew • 2 Live Crew later had a case go the Supreme Court • Campbell v. Acuff-Rose Music, Inc • Court sides with 2 Live Crew (fair use / parody)

  24. Media Freedom

  25. Prior Restraint • a governmental attempt to prevent certain information or viewpoints from being published

  26. 1st Amendment Rights: Freedom of the Press Near v. Minnesota (1931) The Supreme Court rules against the use of prior restraint of publications that criticize the government

  27. 1st Amendment Rights: Freedom of the Press • Press interests versus governmental priorities • Reporter’s privilege • Shield Laws • Reporters may be found in contempt of court if they refuse to cooperate with criminal investigations • Judith Miller of the New York Times

  28. Pentagon Papers • Reveal numerous government lies about the Vietnam War (under Kennedy & Johnson) • Nixon “protects” the right to secrets • Invokes Espionage Act of 1917 • NYT v. U.S (1971) • “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

  29. Civil Liberties and National Security • Some examples: • The USA PATRIOT Act (2001) • Military Commissions Act (2006)

  30. Patriot act • Senator Conyers: • "We don't really read most of the bills. Do you know what that would entail if we read every bill that we passed?...[It would] slow down the legislative process”

  31. Patriot Act • Concerns • Wiretaps don’t need a warrant • Voicemail access granted with a warrant, not a wiretap order • Law enforcement can “shop” for judges • Access to library records • Indefinite detention of accused terrorists

  32. Military Commissions Act (2006) • Detainees can have a military trial • Cannot use a civilian attorney • No habeas corpus* • No jury – a 2/3 vote from the Commission • Indefinite detention of “unlawful combatants” and “those awaiting determination” • Includes “aliens” and US citizens

  33. Area 51

  34. Area 51 • 1994: Contractors, widows sue the USAF • DOD: releasing evidence, ID’ing witnesses would “expose classified information and threaten national security” • Rejected by U.S. District Court

  35. Area 51 • 1994: Contractors, widows sue the USAF • DOD: releasing evidence, ID’ing witnesses would “expose classified information and threaten national security” • Rejected by U.S. District Court • Clinton exemption for “The Air Force’s Operational Location Near Groom Lake, Nevada” • Court drops the case (no evidence)

  36. Area 51 • 1994: Contractors, widows sue the USAF • DOD: releasing evidence, ID’ing witnesses would “expose classified information and threaten national security” • Rejected by U.S. District Court • Clinton exemption for “The Air Force’s Operational Location Near Groom Lake, Nevada” • Court drops the case (no evidence) • Appealed, “can reveal military operational capabilities or the nature and scope of classified operations” • Case dismissed

  37. Consider this… • Should the U.S. government have the authority to assassinate, without trial, people that are considered threats to U.S. national security?

  38. Consider this… • Should the U.S. government have the authority to assassinate, without trial, people that are considered threats to U.S. national security? • Should the U.S. government have the authority to assassinate, without trial, U.S. citizens that are considered threats to U.S. national security?

  39. Consider this… • Should the U.S. government have the authority to assassinate, without trial, people that are considered threats to U.S. national security? • Should the U.S. government have the authority to assassinate, without trial, U.S. citizens that are considered threats to U.S. national security? • Should the U.S. government have the authority to assassinate, without trial, U.S. citizens residing inside of the United States that are considered threats to U.S. national security?

  40. Religion

  41. 1st Amendment Rights: Freedom of Religion • Establishment Clause • “Congress shall make no law respecting an establishment of religion….” • Free Exercise Clause • “…or prohibiting the free exercise thereof.”

  42. 2 Views of Establishment Clause Separationist Government must avoid contacts with religion, especially those that lead to government support or endorsement of religious activities Accommodationist Would permit the government to provide support for religion and associated activities

  43. Freedom of Religion In the 1960s the Supreme Court adopts the Separationist Perspective • Engel v. Vitale (1962) -School Prayer • School District of Abington Township, Pennsylvania v. Schempp (1963) -School Bible readings

  44. 1st Amendment Rights: Freedom of Religion How does the Supreme Court decide cases that involve the Establishment Clause? Lemon test: a standard developed in the 1971 case Lemon v. Kurtzman. The court must ask three questions: 1) Does the law or practice have a secular purpose? 2) Does the primary intent or effect of the law either advance or inhibit religion? 3) Does the law or practice create an excessive entanglement of government and religion?

  45. Freedom of Religion • Free Exercise Clause: key cases • Minersville School District v. Gobitis (1940) • West Virginia v. Barnette (1943) • Employment Division of Oregon v. Smith (1990) • -right to free exercise of religion does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’”

  46. 2nd Amendment: Right to Bear Arms “Awell-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” • US v. Miller (1939) • D.C. v. Heller (2008)

  47. U.S. V. Miller • Supreme Court’s ruling • Commerce Clause applied • Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia • A sawed-off barrel made the NFA applicable

  48. D.C. V. Heller • Issue pushed by former AG Ashcroft • D.C. law banned handguns (unless retired police) • Rifles & shotguns had to be registered & have a trigger lock • Supreme Court struck down the law

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