1. Civil Liberties Unit 7: The Judicial Branch, Civil Liberties, and Civil Rights

2. Civil Liberties Defined Legal, Constitutional protections individuals have from actions of the government. Sources 1)The Constitution 2)The Bill of Rights 3)The Fourteenth Amendment (“Selective Incorporation”) Congress can pass laws that place “some” limits on rights. Court decisions USUALLY decide if those limits are reasonable or not.

3. The 14 th Amendment (Selective Incorporation) “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Prior to passage of the 14 th Amendment the Constitution ONLY applied to Federal Law. “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

4. 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 Fines)

5. Constitutional Civil Liberties Writ of Habeas Corpus You must be brought before a court and informed of the charges against you No Bills of Attainder You cannot be punished without a trial No Ex Post Facto Laws Laws applied to acts committed before the laws’ passage are unconstitutional Trial By Jury Duh

6. Civil Liberties in the Bill of Rights Freedom of Religion (1 st Amendment) Freedom of Speech (1 st Amendment) Freedom of the Press (1 st Amendment) Freedom of Assembly and Petition (1 st Amendment) Property Rights (5 th Amendment) Rights of the Accused (4 th, 5 th, 6 th Amendment)

7. Freedom of Religion “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In essence there are two “liberties” here 1)Establishment Clause: Congress cannot establish a “national religion”, favor a one religion over another, or use tax dollars to support religion. 2)Free Exercise Clause: Guarantees your right to practice any religion or no religion at all

8. Establishment Clause The Establishment Clause is vague and has led to actions by the Supreme Court to set parameters Everson v Board of Education (1947): Courts allowed New Jersey to reimburse parents of Catholic School students for the cost of busing. Incorporated establishment clause to the states through 14 th amendment. Engel v. Vitale (1962): School-sanctioned prayer in public school is unconstitutional Lemon v. Kurtzman (1977): Court strikes down a Pennsylvania law reimbursing parochial schools for textbooks and salaries of teachers. Establishes the “Lemon Test”. To be constitutional a law must 1) be for a primarily secular purpose 2) principal effect neither aid nor inhibit religion and 3) must not create excessive entanglement between government and religion.

9. Free Exercise Clause The court has made a distinction between belief and practice. Religious belief is absolute, but the practice of beliefs may be restricted, especially if those practices conflict with criminal laws. Reynolds v. United States (1879): Court upheld the federal law that prohibited polygamy even though was part of the Mormon religious beliefs. Employment Division of Oregon v. Smith (1990): Court ruled that Oregon could deny unemployment benefits to workers fired for using drugs (peyote) as part of a religious ceremony.

10. Freedom of Speech Types of Speech 1)Pure Speech: Most common form of speech. Verbal speech. Given the most protection by courts 2)Symbolic Speech: Using actions and symbols to convey an idea rather than words. May be subject to government restrictions if it endangers public safety 3)Speech Plus: Verbal and symbolic speech used together, such as a rally and/or picketing. May be limited in regards to public safety Gitlow v. New York (1925): Incorporates the protections of Free Speech to the states through 14 th amendment

11. Regulating Speech The Court has established that not all Speech is protected. Speech that Threatens Public Safety Schenck v. United States (1919) Schenck mailed fliers to draftees during WWI urging them to peacefully protest the draft. Convicted of a law against encouraging disobedience of military orders. Court upheld conviction because during war time this speech creates a “clear and present danger.” Brandenburg v Ohio (1969): Made the “Clear and Present” danger test less restrictive saying that the speech must lead to “imminent” danger that would incite an illegal act.

12. Regulating Speech Obscenity Miller v. California (1973) Court established the Miller test, which sets standards for measuring obscenity. 1) major theme appeals to indecent sexual desires applying contemporary community standards 2) shows in clearly offensive way sexual behavior outlawed by state law and 3) lacks serious literary, artistic, political, or scientific value

13. Regulating Speech Symbolic Speech Tinker v. Des Moines (1969) Court ruled that wearing black armbands in protest of the Vietnam War at a school was symbolic speech. Texas v. Johnson (1989): Court ruled that flag burning is a protect form of symbolic speech. Courts have allowed a wide array of symbolic speech as long as it doesn’t endanger the public Commercial Speech Most restricted form of speech. Regulated by the Federal Trade Commission.

14. Freedom of the Press Prior Restraint Government cannot prevent a media outlet from running a story/providing information before it is run. Near v. Minnesota (1931): Incorporates protections of the free press using the 14 th amendment to the states. Prohibits prior restraint New York Times v. United States (1971): Reaffirms position of prior restrain, refusing to stop the publication of the Pentagon papers. Slander/Libel Libel is the publication of false or malicious statements that damage a person’s reputation. (Slander is when it is spoken) New York Times v. Sullivan (1964): Court establishes that public figures must prove a malicious intent on the part of the press in cases of libel and slander

15. Right to Privacy The Constitution makes no mentions of a “right to privacy.” The Supreme Court, however, has interpreted several rights that might fall under the category of privacy. Griswold v. Connecticut (1965) Struck down Connecticut law against birth control. Did so by saying aspects of the First, Third, Fourth, Ninth, and Fourteenth Amendments create a “zone of privacy.” Roe v Wade (1973) The outcome continued the recognition of the right to privacy.

16. Rights of the Accused Fourth Amendment: Search and Seizure Mapp v. Ohio (1961) Evidence obtained without a search warrant was excluded from trial (Exclusionary Rule). This incorporates the cases to the states through the 14 th Amendment. Fifth Amendment: Self-Incrimination Miranda v. Arizona (1966) Suspects in police custody have certain rights and that they must be informed of those rights. Incorporation case. Sixth Amendment: Right to an Attorney Gideon v. Wainwright (1963) Court ruled that in state trials, those who cannot afford an attorney will have one provided by the state.