Chapter 4

1. Chapter 4 CIVIL LIBERTIES

2. Learning Objectives • 1) Define the term ______________, explain how civil liberties differ from civil rights, & state the constitutional basis for our civil liberties. • 2) List & describe the freedoms guaranteed by the 1st Amendment & explain how the courts have interpreted & applied these freedoms. • 3) Discuss why Americans are increasingly concerned about ____________________. • 4) Summarize how the Constitution & Bill of Rights protect the rights of accused persons.

3. Civil Liberties • Individual rights protected by Constitution against powers of the government. • Ex. 1st Amendment prohibits Congress from creating any law that abridges right to free speech.

4. The Constitutional Basis for our Civil Liberties • Safeguards in Original Constitution: • _____________________________: • An order that requires an official to bring a specified prisoner into court • & explain to a judge why the person is being held in prison.

5. The Constitutional Basis for our Civil Liberties • Safeguards in Original Constitution: • _____________________________: • A legislative act that inflicts punishment on particular persons or groups • w/o granting them the right to a trial.

6. The Constitutional Basis for our Civil Liberties • Safeguards in Original Constitution: • __________________________: • A criminal law that punishes individuals for committing an act that was legal • when the act was committed but that has since become a crime.

7. The Constitutional Basis for our Civil Liberties • ___________________________: • Courts assumed the Bill of Rights only limited actions of national government • Not the actions of state or local governments

8. Incorporation Issue • Founders believed state governments less likely to violate own citizens’ rights, due to their proximity to the people • Court upholds this view in: • Barron v. Baltimore (1833): Bill of Rights did not apply to state laws.

9. The Right to Due Process • 1868 (3 yrs. after Civil War) 14th Amendment added to Constitution: • ____________________________: • Constitutional guarantee by 5th & 14th Amendments • That government will not illegally or arbitrarily deprive a person of life, liberty, or property.

10. The Right to Due Process • __________________________: • Required by the 5th & 14th Amendments • Requirement that the government use • Fair, • Reasonable, • & Standard procedures • When taking any legal action against an individual.

11. Due Process • _______________________ due process: • Requires that any governmental decision to take life, liberty, or property be made equitably (fair). • ________________________ due process: • Focuses on the content, or substance, of legislation. • Law cannot limit a fundamental right w/o compelling state interest

12. Incorporating the Bill of Rights into the 14th Amendment Table 4-1 pg. 78

13. Selective Incorporation • Absorption of certain provisions of Bill of Rights • Gitlow v. New York (1925); 1st Amendment Freedom of Speech • These rights would now be protected by the federal courts from infringement by the states. • Amendments NOT incorporated: (2nd) Right to bear arms, (3rd) Right to refuse to quarter soldiers, & (5th) Right to grand jury

14. Protections Under 1st Amendment- Freedom of Religion • _______________________: Section of 1st Amendment that prohibits Congress from passing laws “respecting an establishment of religion.” • Issues concerning establishment clause: • Prayer in public schools • Teaching of fundamentalists theories of creation, • & Government aid to parochial schools

15. Protections Under 1st Amendment- Freedom of Religion • __________________: Provision of the 1st Amendment stating that government cannot pass laws “prohibiting the free exercise” of religion. • Free exercise issues: • Religious practices conflict w/ established laws

16. The Establishment Clause • _______________________________: • Engel v. Vitale (1962)/ Regents’ Prayer Case: (State Board of Regents in New York- nondenominational prayer) • Prayer in schools violates the establishment clause of the Constitution • Stone v. Graham (1980): • Court declares Kentucky law requiring Ten Commandments be posted in all public schools as a violation of the establishment clause

17. Establishment Clause • “Moments of Silence”: Court rules Alabama law authorizing daily one minute period of silence for meditation & voluntary prayer unconstitutional. • Lower courts allow schools to require “moment of silence” only if it serves a clear secular purpose.

18. Establishment Clause • Student Lead Prayer: • Court rules in 2000 that student lead prayer prior to public school sporting events is ____________________________. • Evolution v. Creationism: • Supreme Court holds unconstitutional, state laws that forbid the teaching of evolution in the schools.

19. Establishment Clause • Evolution v. Creationism: • Epperson v. Arkansas (1968): Court held Arkansas law prohibiting • teaching of evolution violated establishment clause because it imposed religious beliefs on students. • In 1987 Court held unconstitutional a Louisiana law requiring biblical story of creationism be taught along w/ evolution

20. Establishment Clause • Evolution v. Intelligent Design: • Public schools adopt “intelligent design”: Alternative “theory” to evolution • Advocates of “intelligent design” believe • An intelligent cause, & not an undirected process (natural selection), is responsible for creation & development of universe & living things. • Proponents believe theory doesn’t violate the 1st

21. Establishment Clause Aid to Parochial Schools • _________________: Lemon v. Kurtzman (1971) • Three-part test to determine whether government aid to parochial schools is constitutional. • To be constitutional, aid must • (1) be for clearly secular purpose; • (2) in its primary effect, neither advance nor inhibit religion; • & (3) avoid an “excessive government entanglement w/ religion.” • Lemon Test utilized w/ other cases dealing w/ establishment clause.

22. Establishment ClauseSchool Voucher Program • ____________________________: • Educational certificate provided by government • Allows a student to use public funds to pay for a private or a public school of their choice. • Deemed constitutional by the Court, $ goes to parents & not schools. • However some states (ie. Florida) deem voucher program as a violation of their state constitution.

23. Free Exercise ClauseBelief v. Practice • Reynolds v. United States (1878): • Issue: Polygamy- practice of having more than one spouse at a time. • Reynolds a Mormon, had two wives, encouraged by his religion. • Polygamy prohibited by federal law • Stare decisis decision by the court, not to allow Reynolds to practice polygamy. • To do so would allow religious doctrine to be superior to law

24. Free Exercise ClauseReligious Practices & Workplace • _________________________, Title VII: • Requires employers to accommodate their employees’ religious practices • Unless such accommodation causes an employer to suffer an “undue hardship.” • In 1999 Newark, NJ: Muslims police officers & religious need to keep facial hair, Court says ok! • In 2001 Washington, D.C.: Firefighters & Facial hair, Court holds to precedent.

25. Freedom of Expression • ______________________________: • The expression of : • beliefs, • opinions, or • ideas • Through forms other than speech or print; speech involving actions & other nonverbal expressions. • ie. Burning the Flag, wearing an armband in protest

26. Early Restrictions on ExpressionRight to Free Speech is NOT Absolute • Government passes laws against: • Violence • Espionage • Sabotage • & Treason

27. Espionage, Sabotage, & Treason • _______________: Practice of spying for a foreign power to obtain information about government plans & activities. • ________________: Destructive act intended to hurt nation’s defense efforts. • ________________: (Article III, Section 3) of Constitution, Act of levying war against the U.S. or adhering to its enemies.

28. Regulating Seditious Speech • Speech that urges resistance to lawful authority or that advocates the overthrowing of a government. • 1798 Alien & Sedition Acts: made it a crime to utter “any false, scandalous, & malicious” criticism against the government. • Considered unconstitutional however never tested in court

29. Regulating Seditious Speech • Alien & Sedition Acts of 1798: • Made a crime to print false or malicious newspaper stories about the president or other national officials • Espionage Act of 1917: • Prohibited forms of dissent deemed to be harmful to the nation’s effort in WWI

30. Regulating Seditious Speech • Sedition Act of 1918 • Illegal to utter, print, write, or publish anything negative about government • Smith Act of 1940 • Forbid violent overthrow of U.S. government • Since 1960’s Court has defined seditious speech to mean only the advocacy of imminent & concrete acts of violence against the government.

31. Limited Protection for Commercial Speech • _________________ Speech: Statements that describe products through advertising. • Receives ______________ protection under the 1st amendment than regular speech.

32. Unprotected Speech • ____________________________: • Publication of material that falsely damages a person’s reputation • ____________________________: • Spoken words that falsely damage a person’s reputation • “____________________________”: • Words so awful they provoke average listener to violence. • Clear invitation to immediate violence or breach of peace

33. Unprotected Speech • ________________________: (Difficult to define) • Indecency or offensiveness in • Speech, • Expression, • Behavior, • or Appearance. • Obscenity determined by community standards. • Miller v. California (1973): 3 part test pg. 88

34. Freedom of the Press • Schenck v. United States (1919): Upholds the conviction of a socialist who urged young men to resist the draft during WWI (convicted under Espionage Act of 1917) • Clear-and-Present-Danger Test: • Test devised by the Supreme Court • Defines limits of free speech in context of national security • According to Test: • Government cannot abridge political expression unless it presents a “clear and present danger” to the nation’s security

35. Freedom of Press & Prior Restraint • Strong Judicial Support: • New York Times Co. v. United States (1971): • DOJ could not block publication of “Pentagon Papers” to protect war effort • Unacceptability of Prior Restraint • Hazelwood Schools District v. Kuhlmeier (1988): Prior restraint justifiable • High school administrators can censor school publications

36. Freedom of Assembly • Right to assemble peacefully: • Adhere to time, place, & manner rules • Skokie, Illinois • Federal district court holds that Nazis’ 1st Amendment rights were violated. pg. 87

37. The Right to Privacy • Right to private personal life free from government intrusion. • Griswold v. Connecticut (1965): • Challenged state law prohibiting the use of birth control devices even by married couples • Court invalidates statute…state has no business interfering in marital affairs of contraception • Bill of Rights underlined “right to privacy”

38. Abortion Controversy • Roe v. Wade (1973): • “Right to privacy” basis of Roe v. Wade decision • Decision gave women full freedom to choose abortion during first three months of pregnancy • Griswold serves as precedent • Court upholds Partial Birth Abortion Ban Act in 2003: (Signed by President George W. Bush) • Even though Court invalidated Nebraska’s statute banning partial birth abortions in 2000

39. Euthanasia (mercy killing) • 1997 Supreme Court decision court asks: • Issue: Are state laws banning physician assisted suicide unconstitutional? • Answer: No (States’ policy of choice) • Although, Court upheld the states’ rights to ban euthanasia, the Court did not hold that state law permitting it were unconstitutional. • Oregon only state to allow mercy killing thus far

40. Personal Privacy & National Security • Civil Liberties v. National Security • USA Patriot Act of 2001: Domestic surveillance • National Security Agency monitoring phone calls w/o warrants • What line should be drawn to balance the two issues?

41. The Rights of the Accused • Specific procedural protections for the accused (4th, 5th, 6th, & 8th Amendments): • 4thUnreasonable search & seizures (probable cause) • 5th Double Jeopardy/Self-incrimination/Grand jury proceedings for indictment of crime • 6th Right to attorney/ confront witnesses/speedy trial/ right to trial by jury • 8thExcessive bail/cruel & unusual punishment

42. The Rights of the Accused • ______________________: 4th • Cause for believing there is a substantial likelihood that a person has committed or is about to commit a crime. • ______________________: 5th • To prosecute a person twice for the same criminal offense. • ______________________: 5th • Providing damaging information or testimony against oneself in court.

43. Exclusionary Rule • The legal principle that government is prohibited from using in trials evidence that was obtained by unconstitutional means • i.e. illegal search and seizure • Mapp v. Ohio (1961): • Unreasonable search & seizure (4th)

44. Miranda Warnings • Miranda Warnings: • A series of statements informing criminal suspects, on their arrest, of their constitutional rights • ie. Right to remain silent & Right to counsel • Miranda v. Arizona (1966): • Self-incrimination (5th)