Civil Liberties and Civil Rights

Both Defined Civil Liberties: Legal, Constitutional protections against Government Civil Rights: Policies designed to protect people from arbitrary or discriminatory treatment by government officials or others

Civil Liberties (Then) Bill of Rights – Original intent was to limit the national government “Congress shall make no law…” – Rationale States had their own Bill of Rights that “mostly” reflected the ones found in the Federal Constitution. – Problem Slavery

Selective Incorporation “Incorporation”: The process in which the protection of the rights found in the Constitution have been extended to protect people from State Laws “Selective”: Has been done on a case by case basis and not all at once Mechanism: Supreme Court Justification: 14 th Amendment (No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States)

Rights Not Yet Incorporated 3 rd Amendment (Quartering Troops) 5 th Amendment (Grand Jury indictment needed for serious crimes) 7 th Amendment (Jury Trial in Civil Cases) 8 th Amendment (Excessive Bail and Fines)

1 st Amendment (Expression) No Prior Restraint – Government cannot prevent material from being published ahead of time.* Established by Near v. Minnesota (1931) – May be punished AFTER publishing Does not protect from consequences of speech Incorporated with Gitlow v. New York (1925) * Exception may be made during wartime.

Non-Protected Speech 1) Speech that threatens public order (“incendiary speech”) – Speech is limited if it presents a “clear and present danger.” Schenck v. US (1919) – Permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to IMMINENT lawless action Brandenburg v. Ohio (1969)

Non-Protected Speech 2) Obscenity – No clear definition on what constitutes obscenity Justice Potter Stewart: “I know it when I see it.” – Miller v. California (1973) stated that materials were obscene if the work: appeals “to a prurient interest in sex” showed “patently offensive” sexual conduct lacks “serious literary, artistic, political or scientific value” – Decisions on obscenity are based on local community standards.

Non-Protected Speech 3) Libel and Slander – Libel: the publication of false or malicious statements that damage someone’s reputation – Slander: the same thing, only spoken instead of printed New York Times v. Sullivan (1964): statements about public figures are libelous only if made with reckless disregard for truth. – Private individuals have lower standard to meet to win libel lawsuits.

Non-Protected Speech 4) Commercial Speech Definition: communication in the form of advertising Generally the most restricted and regulated form of speech (Federal Trade Commission) Symbolic Speech is protected along the same lines as verbal speech. Wearing an Armband Burning a flag

1 st Amendment (Religion) Two Aspects – Free Exercise Clause: Laws cannot prevent individuals from practicing their religion – Establishment Clause: More vague. Congress shall make no laws “respecting an establishment of religion.”

Free Exercise of Religion Straight Forward As long as the practicing of the religion does not violate others’ rights than it is allowed. NO HUMAN SACRIFICE!!!

Establishment Clause As stated it is ambiguously worded – “Wall between church and state” is commonly used but not a part of any legal document. – Any “wall” has been established by courts Incorporated to States by Everson v. Board of Education (1947) Prayer in Public School not allowed Engel v. Vitale (1962)

Establishment Clause The Lemon Test – Lemon v. Kurtzman (1971) – Three Part Test Secular Purpose Neither advocates nor inhibits religion Does not foster excessive government entanglement with religion

Establishment Clause Zelman v. Simmons-Harris (2002) – Issue: Voucher Program – Five Part Test Valid Secular Purpose Aid to Parents not School Broad class of beneficiaries Neutral with respect to religion Adequate nonreligious options

Rights of the Accused Searches and Seizures – Probable Cause: when the police have reason to believe that a person should be arrested – Unreasonable searches and seizures: evidence is obtained in a haphazard or random manner, prohibited by the Fourth Amendment – Exclusionary Rule: the rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained Mapp v. Ohio (1961): Incorporation

Rights of the Accussed Self-Incrimination – Definition: when an individual accused of a crime is compelled to be a witness against himself or herself in court – Police must inform suspects of these and other Fifth Amendment protections upon arrest. Miranda v. Arizona (1966): Incorporation – Protection from coerced confessions and entrapments

Defendants’ Rights The Right to Counsel – The state must provide lawyers in most criminal cases (Sixth Amendment). Gideon v. Wainwright (1963): Incorporation Protection against Cruel and Unusual Punishment (Eighth Amendment) – Death Penalty does not constitute cruel and unusual

Is it legal to discriminate in the United States?

Discrimination Short answer: “Yes, it is.” Long Answer: Discrimination just means to treat others differently. There are many situations where it makes sense and is legal to do so. – Age:(Minors vs. Adults) – Income: (Taxation purposes) – Handicapped: (Parking Places/Accessibility)

Equality First mention of equality in the constitution is in the 14 th Amendment. “Equal Protection of the Laws” Definition: The law must apply to all citizens in THE SAME circumstances in the same way. This does not mean that we can’t treat people differently. It means the distinctions we make must not be “arbitrary.”

Classifications

Evolution of Civil Rights Two Classes – Slavery Separate but Equal – Plessy v. Ferguson (1896) Full Integration – Brown v. Board (1954), Civil Rights Act (1964)

Affirmative Action Definition: a policy designed to give special attention to or compensatory treatment of members of some previously disadvantaged group In education – Regents of the University of California v. Bakke (1978) Racial set asides unconstitutional Race could be considered in admissions – Grutter v. Bollinger (2003) Race could be considered a “plus” in admissions

Affirmative Action In employment – United Steelworks v. Weber (1979) Quotas to remedy past discrimination are constitutional. – Adarand Constructors v. Pena (1995) To be constitutional, affirmative action must be “narrowly tailored” to meet a “compelling governmental interest.” Did not ban affirmative action, but severely limited its reach