1. The Courts: Civil Liberties & Civil Rights

2. Who’s protected ? Who are we protected against?

3. Civil Liberties v. Civil Rights Civil Liberties- basic rights and freedoms that are guaranteed -- either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers; guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation (speech, press, trial by jury, etc.) Civil Rights- basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.)

4. The U.S. Supreme Court ruled that the Bill of Rights applied ONLY to the national government. Barron v. Baltimore (1833)

5. 14 th Amendment Citizenship- any person born or naturalized in the US and subject to its jurisdiction, is a citizen of the US and the state where they live Due Process- forbids government (states) from taking life, liberty or property without “due process” (regulation/policy affects everyone) – Procedural- notice and right to be heard – Substantive- fair and reasonable laws Equal Protection- government (states) must apply the law equally and cannot give preference to one person or class of persons over another (can’t discriminate) (regulation/policy affects a certain class of people: race, national origin, gender, age, etc.)

6. Gitlow v. NY (1925) The Supreme Court begins the process of incorporating MOST of the Bill of Rights to the states through the 14 th Amendment Due Process Clause States cannot deny freedom of speech but may prohibit speech having a tendency to cause danger to public safety

7. Selective Incorporation Incorporation- process by which courts have applied portions of the Bill of Rights to the states Selective- the Supreme Court deciding, on a case-by-case basis, which provisions of the Bill of Rights it wished to apply to the states through the due process clause.

8. 14 th Amendment Due Process Clause- “…nor shall any State deprive any person of life, liberty or property without due process of law;…”

9. First Amendment Religion: Establishment Clause Engel v. Vitale (1962): school/state sponsorship of religious activities (state- sponsored prayer) violates the establishment clause of the First Amendment (school-sponsored prayer) Lemon v. Kurtzman (1971): the establishment clause prohibits government support for parochial schools (state funding for private religious schools) where there is no secular purpose, religion is advanced, or excessive entanglement between government and religion occurs (Lemon Test)

10. First Amendment Religion: Free Exercise Clause Reynolds v. U.S. (1879): banned polygamy; distinguished between religious beliefs that are protected by the Free Exercise Clause and practices that may be restricted; religious practices cannot make an act legal that would otherwise be illegal Wisconsin v. Yoder (1972): compelling Amish students to attend school past the eighth grade violates the free exercise clause Oregon v. Smith (1990): banned the use of illegal drugs in religious ceremonies; ruled that the government can act when religious practices violate criminal laws

11. First Amendment Speech: Schenck v. U.S. (1919): held that speech creating a “clear & present danger,” is not protected by the First Amendment; established the “clear and present danger” test to define conditions under which public authorities can limit free speech Tinker v.Des Moines School District (1969): public school students could wear black arm bands in school to protest the Vietnam War; protected some forms of symbolic speech; students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Texas v. Johnson (1989): flag-burning is symbolic speech protected by the First Amendment Citizens United v. Federal Election Commission (2010): Court struck down federal limits on what organizations (including non-profit organizations, unions, and for-profit corporations) may say during elections; a ban on direct contributions to candidates was left in place; the speech limits violated the First Amendment and chilled political expression

12. Freedom of speech includes the right: Not to speak (specifically, the right not to salute the flag) – West Virginia Board of Education v. Barnette (1943) Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”) – Tinker v. Des Moines (1969) To use certain offensive words and phrases to convey political messages – Cohen v. California (1971) To contribute money (under certain circumstances) to political campaigns – Buckley v. Valeo (1976) To advertise commercial products and professional services (with some restrictions) – Virginia Board of Pharmacy v. Virginia Consumer Council (1976); Bates v. State Bar of Arizona (1977) To engage in symbolic speech, (e.g., burning the flag in protest) – Texas v. Johnson (1989); United States v. Eichman (1990)

13. Freedom of speech does not include the right: To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”) – Schenck v. United States (1919) To make or distribute obscene materials – Roth v. United States (1957) To burn draft cards as an anti-war protest – United States v. O’Brien (1968) To permit students to print articles in a school newspaper over the objections of the school administration – Hazelwood School District v. Kuhlmeier (1988) Of students to make an obscene speech at a school-sponsored event – Bethel School District #43 v. Fraser (1986) Of students to advocate illegal drug use at a school-sponsored event – Morse v. Frederick (2007)

14. First Amendment Unprotected Speech: Obscenity Fighting words Defamation (includes libel, slander) Child pornography Perjury Blackmail Incitement to imminent lawless action True threats Solicitations to commit crimes

15. First Amendment Press: Near v. Minnesota (1925): struck down a state law allowing prior restraint (government censorship in advance) as unconstitutional; applied the First Amendment’s protection of press freedom to the actions of state governments through the doctrine of incorporation. NY Times v. U.S. (1971): prior restraint is unconstitutional because the claimed threat to national security (printing of Pentagon Papers) was too vague to justify the infringement of the newspapers’ First Amendment rights

16. First Amendment Assembly & Petition: State and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.

17. Second Amendment McDonald v. City of Chicago (2010): most recently incorporated amendment; right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

18. Third Amendment Protection against the quartering of soldiers in our homes- not incorporated

19. Fourth Amendment Mapp v. Ohio (1961): applied the exclusionary rule to states in cases of unreasonable search and seizure; illegally obtained evidence cannot be used in court

20. Fifth Amendment Miranda v. Arizona (1966): upon arrest, a suspect has the right to protections against self-incrimination; suspects must be informed of their constitutional rights before questioning

21. Sixth Amendment Gideon v. Wainwright- the right-to-counsel provision applies to those accused of crimes under state laws; defendants in felony trials must be provided a lawyer free of charge if the defendant cannot afford one

22. Seventh Amendment Right to a jury trial in civil cases exceeding $20—not incorporated

23. Eighth Amendment Furman v. Georgia (1972): Georgia’s death penalty (as applied) constituted cruel and unusual punishment and was therefore unconstitutional Gregg v. Georgia (1976): upheld new Georgia death penalty laws requiring dual-phase trial and special circumstances; capital punishment does not constitute cruel and unusual punishment

24. Ninth Amendment Rights beyond those in the Constitution—implied rights Griswold v. Connecticut (1965): Constitution implicitly guarantees citizens’ right to privacy; a right that protects married couples in their access to and use of contraceptives Roe v. Wade (1973): extended the right of privacy to a woman’s decision to have an abortion while recognizing compelling state interests in potential life and maternal health; established national abortion guidelines for each trimester

25. 14 th Amendment Equal Protection Clause— “…nor deny to any person within its jurisdiction the equal protection of the laws.”

26. 14 th Amendment Scott v. Sandford (1857): Americans of African descent, whether free or slave, were not American citizens and could not sue in federal court; Congress lacked power to ban slavery in the U.S. territories; rights of slave-owners were constitutionally protected by the Fifth Amendment because slaves were categorized as property. Plessy v. Ferguson (1896): upheld “separate but equal” racial segregation by the states Brown v. Board of Education (1954): race-based school segregation violates the Equal Protection Clause of the Fourteenth Amendment; overturn “separate but equal” standard Brown v. Board of Education II (1955): school districts and federal district courts must implement the Court’s decision in Brown v. Board of Education (1954) “with all deliberate speed” University of California v. Bakke (1978): upheld affirmative action programs that used race as a basis of selecting participants as long as race was only one factor Grutter v. Bollinger (2003): upheld affirmative action policy of University of Michigan Law School