Civil Liberties The Bill of Rights

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.”

Freedom of Religion: Establishment Clause Prohibits the national government from establishing a national religion Engel v. Vitale 1962: no school prayer Lemon test: (Lemon v. Kurtzman, 1971: state aid for private—religious-- school teachers) Law, action is ok IF: Secular purpose Neither advances nor inhibits religion Does not foster an excessive government entanglement with religion Court decided state funds for paying private school teachers did not meet this standard

The Free Exercise Clause a citizen’s right to practice his or her religion Beliefs (not limited) vs. Actions (can have limits) Snake handling, illegal drug use, polygamy Prisoners have a right to practice not always On peyote use: http://www.law.cornell.edu/uscode/search/display.html?terms=1996a&url=/uscode/html/uscode42/usc_sec_42_00001996---a000-.html

Freedom of Speech Historic limits: Alien and Sedition Acts Civil War: Lincoln World War I: Schenk v. US “Clear and present danger” 1969 “direct incitement” Direct incitement?

Freedom of Speech and Press Prior Restraint: prevents the government from prohibiting speech or publication before the fact; a violation of the First Amendment Prior Restraint: Daniel Ellsberg: Pentagon Papers http://www.mostdangerousman.org/trailer/ (Trailer)

Symbolic speech: protected Arm bands flags flag burning

Hate speech: an emerging area Is it different and therefore not protected? Cross burning in 2002 http://www.cato.org/pubs/scr/2003/firstamendment.pdf (p88 and end) While it is symbolic speech and therefore they overturned Virginia’s law banning cross burning, they also said due to its history, it is kind of like hate speech and therefore might not always be protected.

Hate Speech, Unpopular Speech, Speech Zones Two-thirds of colleges and universities have banned a variety of forms of speech or conduct that creates or fosters an intimidating, hostile or offensive environment on campus. Some have created free speech zones. These restrict the time, place or manner of speech Implication that speech can be limited on other parts of campus ACLU a critic a such policies; filed number of suits, but none has reached the Supreme Court hate

Unprotected Speech and Publications Slander Untrue spoken statements that defame the character of a person Libel False written statements or written statements tending to call someone’s reputation into disrepute Burden of proof: that statement is untrue “actual malice” must be provided to support a finding of libel against a public figure. “knowledge of falsity,” “reckless disregard for the truth” Malice standards make it difficult for public officials or persons to win libel cases.

Not protected Fighting Words Obscenity and Lewdness Definition? Roth v. US (1957): utterly without redeeming social value and if applying contemporary community standards wholly appeals to the prurient interest LAPS test, 1973 “I know it when I see it”

Second 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.” 2008 Supreme Court Case: http://www.npr.org/templates/story/story.php?storyId=91911807 Not just for militia, but a private citizen’s right Gun rights timeline: http://www.npr.org/templates/story/story.php?storyId=91942478

Third Amendment No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Fourth 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.”

Court: police can search without a warrant The person arrested Things in plain view of the accused person Places or things that the arrested person could also touch or reach or are otherwise in the arrestee’s immediate control. BUT: police must knock and announce their presence before entering a home or apartment to execute a search

Searches: no warrant “Reasonable Suspicion” : that someone committed or may be about to commit a crime: a lower standard Consent is given Drunk Drivers Open fields: no expectation of privacy

Searches Houses: private: usually need a warrant Cars: less clear Drug testing: “your person” so usually allowed

Fifth Amendment “No person shall . . . be subject for the same offense 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.”

Miranda Rights Are confessions “voluntary”? http://www.usconstitution.net/miranda.html

Sixth 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. . . 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.”

6th Amendment Gideon v. Wainwright (1963): Court will provide an attorney Jury selection: preemptory challenges: no reason need be given for excluding jurors Recently Af Ams can’t be excluded: 1986 Women: 1994

Eighth Amendment “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

What is cruel and unusual? Furman v. Georgia, 1971: “degrading to humanity” (torture) Arbitrarily enforced (death penalty?) Utterly rejected by society unnecessary

Right to Privacy Implied in freedom of religion, freedom from searches and seizures “The right to be left alone” Issues: Birth Control Abortion: Roe v. Wade Sex Right to Die

Due Process In the 5th and 14th Amendments http://www.usconstitution.net/consttop_duep.html

Incorporation Do the states laws have to be in line with the Constitutional Bill of Rights? 1800s: not really 1900s: more rights were “incorporated”: states had to uphold too Chart in book

More Amendments http://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution