1. Civil Liberties
CH 4

2. The Politics of Civil Liberties
Civil liberties: protections the Constitution provides against the abuse of government power (freedom of speech, for ex)
Are listed in the Bill of Rights: States ratifying the US Constitution demanded the addition of the Bill of Rights; liberties are listed here
These limit what the national government can do to citizens (but not state govts)

3. The Fourteenth Amendment (1868)
Due Process Clause: “no state shall deprive any person of life, liberty or property without due process of law” (civil liberties)
Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws” (civil rights)

4. Incorporation
Most important protections in the Bill of Rights (freedom of speech, religion, etc.) have been incorporated or applied to state laws over time
But they didn’t originally apply to state laws
They have been incorporated or applied to state laws over time via the 14th Amendment

5. Incorporation—the Process
Barron v. Baltimore, 1833,
Supreme Court rules that states could NOT be forced to uphold Bill of Rights if it conflicted with their constitution.
Gitlow v. New York, 1925:
SC reversed Barron ruling citing 14th Amendment’s due process clause;
Says 1st amendment protections apply to state laws
Gitlow begins the process of selective incorporation—the gradual application of most BOR protections to state laws

6. The First Amendment The First Amendment protects FIVE freedoms
Freedom of Speech,
Freedom of the Press
The right to Assemble (gather to protest or celebrate)
Freedom of Religion and
The right to Petition the government (make a formal grievance)

7. Freedom of Religion
Freedom of religion has TWO different protections in two different clauses.
The Establishment Clause
“Congress shall make no law respecting the establishment of religion.”
The Free Exercise Clause
Prohibits government from interfering with the practice of religion
Some religious practices may conflict with other rights, and then be denied or punished

8. The Establishment Clause
Prohibits Congress from making laws that establish any religion by government means
There is disagreement over what it means
Some say it means: Government can’t favor one religion over another
Others say it means: There must be a wall of separation between church and state which forbids any government support of religion

9. The Establishment Clause
Government involvement in religious activities is constitutional if it meets the following test (as established in the case Lemon v. Kurtzman, 1971):
The challenged law or government action must have a secular (non-religious) purpose
The primary effect of the law or action must be to neither advance nor inhibit (hold back) religion
The operation of the law or action must not foster excessive entanglement of government with religion.

10. Lemon v. Kurtzman
Can the government fund religious schools? With what limits?
Can a Jewish community center receive public funds?
Can a teacher lead a prayer in a public school classroom?

11. Establishment Clause
Engel v. Vitale, 1962 and School District of Abington v. Schempp, 1963
Forbids the practice of prayer in school
Is a violation of the establishment clause and a breach of separation of church and state
Excessive entanglement if government and religion

12. Free Exercise
Supreme Court has said it means: Government can’t infringe on beliefs but can regulate conduct to some degree.
Laws that single out a religious practice and have no general benefit or weren’t pre-existing are unconstitutional
Is a law forbidding bigamy (marriage to more than one person at the same time) unconstitutional?

13. The Free Exercise Clause
Insures that no law may impose particular penalties on religious institutions
Prohibits limiting the freedom to worship (or not to worship)
Some conflicts between religious freedom and public policy continue to be difficult to settle.
For example, parents who choose to pray rather than to seek medical attention for sick children.

14. Free Exercise Clause
Case Study: A state requires those applying for unemployment benefits to accept appropriate jobs that are available. A woman is denied benefits because she refuses to accept a job that requires her to work on the day she celebrates the Sabbath.
Does this law interfere with her free exercise rights?

15. Freedom of Press
A free and independent press is essential to democracy as a check on government abuse of power
As a general rule, the Court does not permit prior restraint / censorship of material to publication (Near v. Minnesota, 1921)
Unless national security is a risk—but burden in on government to prove this (Pentagon Papers case, 1971).
It is OK to sue after publication, however.

16. Freedom of Speech Also known as freedom of expression
Speech is not easily limited but can be if it is needlessly harmful
Some expression is NOT protected, including:
Speech that presents “a clear and present danger,” (yelling “Fire!” in a crowded theater, for example)
Defamation (lies that damage reputations)
Obscenity (which is hard to define)

17. Freedom of Expression: Defamation
Libel: a written false statement defaming (damaging the reputation of) another
Slander: a defamatory spoken statement
Public figures must also show the words were written with “actual malice”—reckless disregard for the truth or with knowledge that the words were false.

18. Freedom of Expression Obscenity
No clear definition on what constitutes obscenity.
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”
Local areas make their own decisions on obscenity

19. Symbolic Speech
Definition: Nonverbal communication or actions that express an opinion; such as burning a flag or wearing an armband.
Generally is protected, but depends on circumstances (“time, place and manner.”)
Can sometimes be made illegal, even if it conveys a political message (example: burning a draft card) depending on time, place and manner
Court said this was too inflammatory in time of war
US Supreme Court has said flag burning is protected speech (Texas v. Johnson)

20. Commercial Speech Can be restricted; the FTC prohibits false claims.
Definition: Communication in the form of advertising.
Can be restricted; the FTC prohibits false claims.
In FCC v. Pacifica (1978) the Court upheld restrictions on foul language over the public airways.

21. Right to Assemble First Amendment guarantees the Right to Assemble
Generally permissible to gather publicly, but must be reasonable and follow local standards.
Court seeks a balance between freedom to assemble and order in society.
Includes the Right to Associate
Freedom to join groups / associations without government interference.

22. Quick Write
Is hate speech (deliberately racist, sexist, or otherwise denigrating speech) protected under the First Amendment? Why or why not?
Support your answer with legal reasoning!!

23. Defendant’s Rights

24. Rights of Defendants
The Fourth Amendment protects against unreasonable searches and seizures and requires search warrants.
The Fifth Amendment protects against self-incrimination.
The Sixth Amendment says the accused has a right to counsel.
The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.

25. 4th Amendment
Protects citizens from unreasonable searches and seizures by government
Police cannot search without a search warrant issued by court unless they believe evidence will disappear
No arrests without probable cause (a belief of guilt)

26. Search and Seizure Need a search warrant:
An order from a judge authorizing the search of a place and describing what is to be searched and seized;
Judge can issue only if there is probable cause (some evidence leading to suspicion of guilt)
What can the police search without a warrant?
The individual being lawfully arrested
Things in plain view
Things or places under the immediate control of the individual (traffic stop)
When consent is given

27. Exclusionary Rule Exclusionary rule (Mapp v. Ohio, 1961):
Was established / first applied to states in the case Mapp v. Ohio, 1961
Evidence gathered in violation of the Constitution cannot be used in a trial
Examples: A confession that was coerced; a search that yields evidence but that was done without a warrant
Stems from the Fourth Amendment (freedom from unreasonable searches and seizures) and the Fifth Amendment (protection against self incrimination)

28. Confessions and Self Incrimination (5th Amendment)
Person is innocent until proven guilty;
Burden is on the government to prove its case beyond reasonable doubt
Protects people from being forced to supply evidence against themselves
Miranda v. Arizona, 1966
S Court: confessions are presumed to be involuntary unless the suspect is fully informed of his or her rights
Miranda rights apply once a suspect is in custody.
Right to remain silent; to have an attorney

29. The Right to Counsel
The Sixth Amendment provides the accused with a right to have the assistance of counsel for his defense.
Gideon v. Wainright (1963)
Court Ruling: The state must provide an attorney in felony cases if the accused cannot afford one.
Used selective incorporation via 14th Amendment
This was an unfunded mandate.

30. The Death Penalty 8th Amendment forbids:
Excessive bail and
Cruel and unusual punishment
Is the Death Penalty for murder “cruel and unusual punishment?”
Furman v. Georgia (1972): the death penalty if applied in a random fashion is unconstitutional.

31. The Death Penalty / 8th A.
After Furman case, states rewrote their death penalty statutes to include aggravating (more serious) and mitigating (less serious) factors
In Gregg v. Georgia (1976):
Court upholds the death penalty;
Says it is NOT cruel and unusual punishment if used for extreme crimes
Other death penalty challenges: Is it racist? Can mentally disabled be given it? Can those under 18 who murder face it?

32. The Right to Privacy Is There a Right to Privacy?
Definition: The right to a private personal life free from the intrusion of government.
NOT explicitly stated in the Constitution
Implied by all BOR protections and especially the Fourth and Fifth Amendment
Very debatable if originally intended

33. Right to Privacy Is there a right to privacy?
Griswold v. Connecticut,1965: Can state laws forbid the use of contraceptives?
Is there a right to privacy?
Court: Yes. This law is unconstitutional
Roe v. Wade, 1973: Is seeking an abortion a protected right to privacy?
Court: Laws that ban abortion are illegal (in first trimester) but abortion can be limited.

34. The Right to Privacy Controversy over Abortion Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)
Some limits on abortion are OK-waiting period and parental notification
When should abortions be legal?
Figure 4.1