1. Civil Liberties and Civil Rights --Civil Liberties and Civil Rights defined and compared --Evolution of Civil Liberties --Evolution of Civil Rights 1

2. Civil Liberties and Civil Rights Defined 1. Civil Liberties and Civil Rights Compared Civil Liberties: freedoms at risk from government. Protected by limiting government actions—vertical relationvertical relation Civil Rights: freedoms at risk from other citizens (or governments), usually protected through actions taken by government— horizontal relation horizontal relation 2. Civil Liberties Overview Only examples of important liberties Conditional nature of liberty; must compete with society’s interests First Amendment Freedoms—Free Speech Schenck v. US (1919)— “clear and present danger” doctrineclear and present danger Brandenburg v. Ohio (1969)– “incitement standard.” Speech must be likely to incite imminent lawless action (updates what constitutes a “clear and present danger”).incitement standard 2

3. Civil Liberties What is “speech”? Symbolic Speech: protected “speech” can include gestures, clothes, or conduct. Tinker v. Des Moines School District (1969)—Apparel can be protected “speech” even at school Texas v. Johnson (1989)—Flag burning is protected speech These cases highlight “freedom of expression” protected by the courts (though not specifically listed in the Bill of Rights) First Amendment Freedoms—Freedom of the Press Free press essential to democracy Press is strongly protected against three restrictions A. Prior Restraint (censorship): Near v. Minnesota (1931) B. Libel (injury to reputation): Sullivan v. NY Times (1964)— “actual malice” C. Obscenity: Miller v. California (1973) Not protected, but hard to defineNot protected, but hard to define 3

4. Civil Liberties First Amendment Freedoms—Freedom of Religion. Two components No Establishment—no official government church, and moreno official government church Engel v. Vitale (1962)—prohibition on guided prayer in public schools Lemon v. Kurtzman (1971)—3-part “Lemon Test”Lemon Test Free Exercise—Roots in earliest European-American history, protects beliefs and some actions Free Exercise City of Hialeah v. Church of Lukumi Babalu—governments cannot “pick on” specific religions There are some limits: Employment Division v. Smith—socially “abhorrent” practices are not allowed Criminal Suspects’ Protections—Search and Seizure (4 th ) Expectation of security varies with location (home vs. car) Exclusionary Rule: Mapp v. Ohio (1961) 4

5. Civil Liberties Criminal Suspects’ Protections—Self-Incrimination (5 th ) Miranda v. Arizona (1966)—must read suspects their rights Criminal Suspects’ Protections—Right to Counsel (6 th ) Gideon v. Wainwright (1963)1963 Implied Protections: “Penumbral Rights”—rights deduced from other parts of the Constitution Privacy Griswold v. Connecticut (1965) Roe v. Wade (1973) Incorporation Theory—the process of applying the Bill of Rights to the StatesStates Supreme Court interpretations over time Use the 14 th Amendment’s “due process” clause“due process” 5

6. Civil Rights—Racial Equality 1. Race-Based: earliest, most contentious Constitutional Protections for Slavery (written at Convention) 3/5 Compromise 1808 Slave Importation Protection Return of escaped slaves Supreme Court Protection of Slavery Dred Scott case (1857)—Court rules slaves not citizens, have no legal rights (they are property, and federal gov’t can’t interfere due to 5 th Amendment) CIVIL WAR Emancipation Proclamation (1863)—only in rebelling states1863 Slavery Abolished: 13 th Amendment (1865)1865 Southern states response: “Black Codes” limit contract rights, serving on juries, etc. 6

7. Civil Rights—Racial Equality Republican Response—Discrimination Denied Politically 14th Amendment: “due process” (extending protections for CIVIL LIBERTIES) and “equal protection” (extending protections for CIVIL RIGHTS) guarantees 14th Amendment Citizenship defined by birth 15 th Amendment: right to vote guaranteed, regardless of race 1877—end of Reconstruction (“Compromise of 1877”)Compromise of 1877 Discrimination Remains: “Separate but Equal” Dual Federalism: limits influence of national government (“home rule”) Jim Crow laws = segregation White primaries Poll taxes Literacy tests (**grandfather clause) Literacy tests Plessy v. Ferguson (1896): “separate but equal”— “de jure” segregation is legal 1909—NAACP forms, fights Jim Crow laws in the courts 7

8. Civil Rights—Racial Equality Segregation Prohibited: separate is NOT equal Truman desegregates the military (1948) Brown v. Board of Education (1954)1954 Civil Rights Movement (1950s – 1960s) Civil Rights more broadly protected Civil Rights Act of 1964—segregation banned in “public accommodations” Voting Rights Act of 1965—more African-American elected officials “Equal Opportunity”—what does it mean? De jure discrimination illegal, but de facto discrimination remains Response: Affirmative Action—federal program addressing “historical inequities” in hiring/education No quotas, but no clear standards 8

9. Civil Rights—Race, Gender, Ableness, and Marriage Challenges to Affirmative Action—what is “education”? Michigan Law School Admission (2003)—diversity serves a “compelling interest” Fisher v. University of Texas (2013)—Universities can use race as a factor, so long as other more neutral factors are shown to be insufficient Schuette v. Coalition to Defend Affirmative Action (2014)—Voters can ban the use of affirmative action in making higher educational admission decisions in their state (Case originated in Michigan, Nebraska is one of 8 states that bans such a use) 2. Sex-Based: Widespread Discrimination Progress… Kind of: Right to Vote—19 th Amendment (1920) Workplace—Equal Pay Act (1963) Education—Title IX (1972) Equal Rights Amendment (failed) 3. Disability-Based Americans with Disabilities Act (1990) Jobs, serious disabilities, public access (think Lincoln High School) 4. Same-Sex Marriage: Obergefell v. Hodges (2015) 9