BELL RINGER
#140 Rights of the Accused
CIVIL
LIBERTIES
TODAY WE WILL …
OBJECTIVES
Discuss how the Bill of
Rights has been applied
to the states.
Identify key principles,
terms and court cases
that define our Freedoms
of Religion & Speech and
Due Process rights.
AGENDA
• Boston Bomber and
Miranda article
• Slide/notes
• Quiz – CL - Ch. 18
HW:
1. Annotated Bib &
Revised Source List
2. CR- Ch. 19 RQ’s
3. CL Court Cases
Packet – due
Monday 3/2
RIGHTS IN CONFLICT: BILL OF RIGHTS
CONTAINS COMPETING RIGHTS
• Freedom of the press vs Right to fair trial
• Sam Sheppard case
• US Government’s obligation to “provide for the
common defense” vs freedom of the press
• Pentagon Papers case
• Freedom of speech vs. preservation of public
order
• Carl Kunz case
2. RIGHTS IN CONFLICT B/C WAR
Acts of the US Congress restricting civil liberties
during wartime (SC usually upholds these)
Sedition Act of 1789: after the French Revolution
• Crime to write, utter, or publish “any false, scandalous,
and malicious writing” with the intent of defaming the
president, Congress, or the government or of exciting
against the government “the hatred of the people”.
• Basically you can’t bad mouth the Government
2. RIGHTS IN CONFLICT B/C WAR
Espionage and Sedition Acts 1917 used in WWI
• Crime to utter false statements that would interfere with
the American military, to send through the mails material
“advocating or urging treason, insurrection, or forcible
resistance to any law of the United States” or to utter or
write any disloyal, profane, scurrilous, or abusive
language intended to incite resistance to the United
States or to curtail war production.
2. RIGHTS IN CONFLICT B/C WAR
Smith Act of WWII (1940)
• Illegal to advocate the overthrow of the U.S.
government by force or violence
• Brandenburg v Ohio – any speech that does not
call for illegal action is protected, and even speech
that does call for illegal action is protected if the
action is not “imminent” or there is reason to believe
that the listeners will not take action
• Imminent = likely to occur at any moment
2. RIGHTS IN CONFLICT B/C WAR
Internal Security Act of 1950, Korean War
• Required members of Communist Party to
register with the Government.
CULTURE CONFLICTS
• Original settlement by white European
Protestants produced “America”
• Waves of immigration brought new
cultures & conflicts
• Non-Christians offended by governmentsponsored crèches at Christmas
• English speakers prefer monolingual
schools
• Differences within cultural traditions
CHECK FOR UNDERSTANDING
The First Amendment guarantees “the right of the
people to peaceably assemble and to petition the
Government for a redress of grievances.”
What does petition mean?
Why is it important that people be able to assemble
freely?
What is freedom of association?
How does freedom of association relate to freedom of
assembly?
APPLYING
THE BILL
OF RIGHTS
TO THE
STATES
ROLE OF THE 14TH
AMENDMENT
• 14th Amendment
addressed citizenship
rights & equal protection
of the law for former
slaves
• Later used to apply these
rights to the states
DUE PROCESS & EQUAL
PROTECTION
5th Amendment – rights of persons
Due process of law
• “No state shall …deprive any person of life, liberty
or property, without due process of law”
Equal protection of the law
• “…nor shall any State deprive any person of life,
liberty or property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.”
• Ex: Gay marriage & Equal Protection
5. SELECTIVE INCORPORATION
Selective = process has been piecemeal & not a
sudden change
Incorporation = some liberties in the BoR have
been applied to the states using the 14th
Amendment/due process clause
What about the 10th Amendment that reserves
powers to the states? Shouldn’t states be able to
pass their own restrictions?
GITLOW V. NEW YORK (1925)
• Anarchist calling for overthrow of the government
w/“left wing manifesto”
• Convicted under a state criminal anarchy law
• SC said that 1st Amendment applies to states &
states cannot deny freedom of speech
• Protected through due process clause of 14th
Amendment
PALKO V.
CONNECTICUT (1937)
• SC says that states must observe all “fundamental
liberties”
• Provided test for determining which parts of Bill of
Rights should be federalized - those which are
implicitly or explicitly necessary for liberty to exist.
MCDONALD V
CHICAGO (2010)
• 2nd amendment that allows the people to keep and
bear arms applies to state governments, as well as
federal gov.
CHECK FOR
UNDERSTANDING
Which protections found in the Bill of Rights
have been absorbed into the concept of due
process b/c they are so fundamental to our
understanding of liberty and justice?
FREEDOM
OF SPEECH
7. WHAT IS SPEECH?
Forms of speech not automatically given constitutional
protection:
1. Libel: written statement that defames the character
of a person. (oral-slander)
2. Obscenity
• Average person, community standards
• Prurient interest, offensive
• Lacks serious literary, artistic, political, scientific
• No redeeming social value
3. Symbolic speech
• Right to express opinion without actual use
of words
• Ex: 1960s - burning your draft card to
protest Vietnam War – SC ruled it illegal
4. False Advertising
• A corporation/organization like a person
has certain First Amendment rights
• Government can regulate advertisements
for harmful products & have narrow
restrictions on less harmful products, if for a
substantial public interest.
3. NO PRIOR RESTRAINT
• Freedom from censorship, or rules telling a
newspaper in advance what it could publish.
• Even in cases of libel…
• Once a news paper has published an article
or a person has delivered a speech, that
paper or speaker has to take the
consequences if what was written or said
proves to be “improper, mischievous, or
illegal”
4. CLEAR AND PRESENT
DANGER
Schenk v US (1919)
• What law was Schenk violating with his leaflets?
• Ruling was that Schenck’s leaflets did create such
a danger
• “like yelling ‘fire’ in a crowded theater”
• Speech might be safe in peace-time but not wartime
Test:
• The question in every case is whether the words
used are used in such circumstances and are of
such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent.
6. BRANDENBURG V. OHIO (1969)
“We’ll take the [expletive] street later”
Supreme Court said:
• Any speech that calls for illegal action is protected if
the action is NOT “imminent”
• No matter how offensive or provocative some forms
of expression may be, this expression has powerful
constitutional protections
• Today, hate speech is permissible, but not hate
crime
9. LIMITATIONS TO
SPEECH
Preferred Position
Prior Restraint
Right of Free Expression
is preferred over many
other rights
Censorship
Near v. MN (1931)
Imminent Danger:
punishment for
uttering inflammatory
sentiments allowed
only if an imminent
danger to incite an
unlawful act
Neutrality: Any
restriction on speech,
such as a requirement
that demonstrations
not disrupt people
from exercise of their
rights, must be neutral
• Must not favor one
group over another
CHECK FOR
UNDERSTANDING
Identify how each of the following influences the
freedom of speech in the First Amendment:
• Prior restraint
• Slander
• Symbolic speech
• Clear and present danger
FREEDOM
OF
RELIGION
CHURCH AND STATE
First Amendment has two clauses concerning religion:
• Free Exercise clause
• Establishment clause
10. FREE EXERCISE
CLAUSE
“Congress shall make no law … prohibiting the free exercise
[of religion.]”
• No interference, similar to speech
• Law can’t discriminate based on religion
• Ex: Courts ruled that city of Hialeah, Florida cannot ban
animal sacrifices by members of an Afro-Caribbean
religion called Santeria. B/c killing animals is not
generally illegal (hamburgers, chicken salad).
• Some cases very difficult to settle
• Ex: Conscientious objection to war, military service
REYNOLDS V. UNITED
STATES (1879)
“Congress shall make no law … prohibiting the free
exercise [of religion.]”
Federal law prohibiting polygamy was challenged based on
Free Exercise clause.
• Did the law violate the free exercise of religion?
Court said No, individual beliefs are no defense against the
application of a general law to religious conduct.
The 1st Amendment does not protect religious practices that are
judged to be criminal, such as bigamy.
• No religious exemptions from laws that bind all
• Unanimous decision restricted polygamy
10. ESTABLISHMENT
CLAUSE
“No national religion shall be established” or
take any action that would show preferential
treatment for one religion over another
• Wall of Separation - gov. cannot be
involved in religion
• Jefferson’s view
• SC has more or less consistently kept
to this principle
ENGEL V. VITALE
(1962)
There may not be a prayer, even a non-denominational
one, in public schools.
• Decision struck down state-sponsored prayer in
school.
• Wallace v. Jaffree (1985) - Alabama’s moment of
silence for “meditation or prayer” was struck down
ESTABLISHMENT
CLAUSE
“No government involvement with religion at all, even on a nonpreferential basis”
• Lemon v Kurtzman (1971): state funding for private religious
schools is unconstitutional.
• State funds to pay parochial teachers to give instruction in
secular subjects?
• Aid to church-related schools must:
• Have a secular legislative purpose
• Have a primary effect that neither enhances nor inhibits
religion
• Not foster excessive entanglement between government
and religion
CHECK FOR
UNDERSTANDING
What is the difference between the establishment clause and
the free exercise clause?
Give an example of a Supreme Court decision for each.
CRIME AND
DUE
PROCESS
12. CRIME AND DUE
PROCESS
Search & Seizure (4th Amendment)
• Search warrants
• Giving permission for a search
• Arrest
• “In plain view” and “under immediate control”
12. CRIME AND DUE
PROCESS
The Exclusionary Rule
• Mapp v Ohio (1961)
• Illegally seized evidence can’t be used in court
• Good Faith Exception – evidence can be used when
police relied in good faith on a defective search
warrant
12. CRIME AND DUE
PROCESS
Changing times:
• Confessions and self-incrimination
• Relaxing the exclusionary rule
• Terrorism & Civil Liberties
• Searches without warrants
CHECK FOR
UNDERSTANDING
Suppose you were accused of a crime and faced the
prospect of a large fine or going to jail.
What “process” would you expect to take place?
CLOSURE
Which rights do the following Supreme Court cases relate to
• Schenck v US (1919)
• Brandenburg v Ohio (1969)
• Miranda v. Arizona (1966)