CH. 5&6
CIVIL LIBERTIES & CIVIL RIGHTS
CIVIL LIBERTIES
Civil liberties:
protections the Constitution provides against the abuses
of government…
“policies designed to protect people against arbitrary or
discriminatory treatment by government officials or individuals”
Constitution & Bill of Rights offer list of “competing”
rights and duties  interpretation by Supreme Court!
1st Amendment = most challenged and controversial
- Speech
- Expression
- Assemble
- Religion
- Press
- Petition
1ST AMENDMENT
RIGHTS IN CONFLICT
Congress restricting civil liberties during wartime:
Sedition Act of 1798
- Made it a crime to publish or say anything intentionally
negative or false that painting U.S. Govt. & officials in
negative character  attempted to ward off any anarchy
Espionage and Sedition Acts 1917‒1918
- Made it a crime to publish or say anything intentionally
negative or false that could potentially interfere with the U.S.
military  attempted to ward off any foreign “spies”
Smith Act 1940 & Internal Security Act 1950
- Made it illegal to advocate an overthrow of the U.S. Govt.
through force or violence  attempted to ward off threats to
national security & communism
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1ST AMENDMENT
CONFLICTS
Examples:
• Religious displays on public property
• Is bilingual education constitutionally required?
• May private associations make their own rules concerning the
right to “associate freely?”
• Balancing community sensitivities vs. personal selfexpression
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CIVIL LIBERTIES
1833 Supreme Court
- Bill of Rights only restricts the FEDERAL govt.
- state constitutions held their individual restrictions
* intentionally left up to the states to decide certain
protections because founders never believed a Bill of
Rights would exist!
14th Amendment (ratified 1868)
- DUE PROCESS & EQUAL PROTECTION clauses!
- states must honor certain protections in the Bill of
Rights
- initially started with 1st Amendment
*speech, religion/churches, press
14TH AMENDMENT: APPLYING THE
BILL OF RIGHTS TO THE STATES
• Due process of law
- no person can be deprived life, liberty, or property
- must follow a “proper process” in order to do so and
determined under rule of law
• Equal protection of the law
- All persons will be equally protected
• Selective incorporation
- certain “rights/freedoms” in the Bill of Rights that have
required the states protect
- happened over time
- does NOT include 3rd (quartering of soldiers), 5th (grand
jury indictments), 7th (jury trial in civil cases), 8th (ban on
excessive bail and fines)
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1ST AMENDMENT: SPEECH &
NATIONAL SECURITY
Prior restraint:
Censorship & restrictions made in advance about
what may/may not be published
Schenck v. U.S.
1919
-
Handing out leaflets urging the resistance of the draft during WWI
-
Violating the Espionage Act?
-
Pass the clear-and-present-danger test?!
Clear-and-present-danger test:
question of whether words and expressive speech create a “clear
and present danger” of producing harmful actions to the nation’s
security.
RULING:
Schenck’s actions created a threat to the nation’s security and could have
potentially promoted a panic and riot
1ST AMENDMENT: SPEECH &
NATIONAL SECURITY
Gitlow v. New York 1925
- Gitlow, a socialist, was distributing copies of a "left-wing manifesto" that called for the
establishment of socialism through strikes and class action of any form.
- Gitlow was convicted under a state criminal anarchy law, which punished advocating the
overthrow of the government by force.
Question:
- Does the First Amendment apply to the states?
- Is the New York law punishing advocacy to overthrow the government by force an
unconstitutional violation of the free speech clause of the First Amendment?
Ruling:
-Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment).
- State may forbid speech and publication if they have a “tendency to result in action dangerous to
public security,” even if there is no clear and present danger.
“Symbolic speech”: when
young men burned their
draft cards during the
1960s to protest the
Vietnam War, the Supreme
Court ruled that it was an
illegal act for which they
could be punished.
Bettmann/CORBIS
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WHAT IS SPEECH?
Forms of speech not
automatically given
constitutional
protection:
1. Libel
2. Obscenity
3. Symbolic Speech
4. False Advertising
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Tim Boyle/Newsmakers/Getty Images
A Ku Klux Klan member uses
his constitutional right to free
speech to utter “white power”
chants in Skokie, Illinois.
1ST AMENDMENT:
SPEECH
Libel:
written statement that defames (hurts a person’s
character) an individual
* MUST PROVE THAT IT IS FALSE!
* MUST PROVE THAT IT WAS DONE MALICIOUSLY
Obscenity = NOT protected by the 1st Amendment!
- difficult to interpret WHAT “obscene” means
- protection of expression v. inappropriate influential
exposure
- is left up to the state and local governments to interpret
based off of “community standards”
1ST AMENDMENT:
SPEECH
Symbolic Speech:
Acts that convey a political belief and/or message
Texas v. Johnson 1985
- burning American flag is protected symbolic
speech!
1ST AMENDMENT:
SPEECH
McConnell v. FEC 2002 (McCain-Feingold campaign finance
reform -BCRA)
- prohibited CORPORATION and LABOR UNIONS
spending of money on advertising INDEPENDENTLY
(30 days of caucus/primary and 60 days general
election)
Citizens United v. FEC 2010
- overturned/ruled the prohibition of corporations and
labor unions advertising UNCONSTITUTIONAL!
1ST AMENDMENT:
RELIGION
Wording of the first amendment with religion = CONFUSING!
- does not CLEARLY state the concept of “separation
of church and state”
Free Exercise Clause:
“Congress shall make no law prohibiting the free exercise of religion”
no law can prohibit/prevent free practice and exercise of a religion
Establishment Clause:
“Congress shall make no law respecting an establishment of religion”
government cannot declare or respect the establishment of an
official religion
1ST AMENDMENT:
RELIGION
Wall of Separation:
“separation of church and state”
ruling in which the government may not be involved in
religion
Engel v. Vitale  NO prayer in school!
Government involvement = CONSITUTIONAL if…
1. It has a strict secular purpose
2. The primary effect neither advances nor inhibits religion
3. It does not foster “excessive” government entanglement
with religion
4TH AMENDMENT:
SEARCHES & SEIZURES/ PRIVACY
Exclusionary Rule:
improperly gained evidence = MAY NOT be used in a
criminal trial
Mapp v. Ohio
- broke in and searched Dolree Mapp’s home for a bombing
suspect
- found no suspect, but instead arrested Mapp for obscene
pictures in her house
* Judge/court order with a search warrant must be issued to search
for specific items!
4TH AMENDMENT:
SEARCHES & SEIZURES/ PRIVACY
•
You CAN be searched when you are being arrested… arrest also require warrants!
•
You can be ARRESTED when…. you commit a crime in front of an officer OR there is
probable cause that you have committed a serious crime!
Good-Faith Exception:
allows evidence that is gathered with good intention and a
MINOR mistake may still be used in criminal trial
Public Safety Exception:
police can question an “unmirandized” suspect in the event of
securing immediate public safety
Inevitable Discovery:
police can use evidence that would have been discovered
inevitabley
4TH AMENDMENT:
SEARCHES & SEIZURES/ PRIVACY
Terrorism & Civil Liberties
9/11  Patriot Act
- govt. can tap any phone use of suspected terrorists with
court order
- govt. can tap internet with court order
- govt. can seize voice mail with court order
- govt. investigators can access grand jury indictment
information
- govt. can detain illegal immigrants if seen as a security risk
- govt. can track money across borders (money laundering)
- govt. can increase penalties on terrorist crimes
JOE SKIPPER/ Reuters/ Corbis
Inside a cell at the terrorist prison in Guantanamo,
where Muslim inmates receive a copy of the Koran,
a chess set, and an arrow pointing toward Mecca.
p. 119
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5TH & 6TH AMENDMENTS:
SELF INCRIM. & RIGHT TO LAWYER
Miranda v. Arizona
- “mirandarized”
- “Miranda rights”
Gideon v. Wainwright
- “Gideon had a WainRIGHT to a Lawyer”
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2ND AMENDMENT:
GUN RIGHTS
• District of Columbia v. Heller (2008)
RULING:
• McDonald v. Chicago (2010)
RULING:
** See HW assignment!!! Discussion will follow when analyzing
court cases!
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COURT CASES:
CONSTITUTIONAL
UNDERPINNINGS
Gibbons v. Ogden (1824)
Question: Do the individual states have the right to regulate interstate
commerce?
Yes
or
No?
WHY?
Ruling : NO
Significance:
Only the national govt. can regulate trade among the states
Article 1 sec. 8
“The Congress shall have the power to regulate commerce with foreign nations
and among the several states, and with the Indian tribes.”
COURT CASES:
CIVIL LIBERTIES
U.S. v. Lopez (1995)
Question:
Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying
a gun in a school zone, unconstitutional because it exceeds the power of Congress to
legislate under the Commerce Clause?
Article 1 sec. 8
“The Congress shall have the power to regulate commerce with foreign nations and among
the several states, and with the Indian tribes.”
Lopez was charged with violating a federal criminal statute (law) facing jail and
probation period.
Yes or
No?
WHY?
Ruling:
Yes. Gun possession in a school zone is not an economic activity with an effect on
interstate commerce. The law is a criminal statute that has nothing to do with
"commerce" or any sort of economic activity.
COURT CASES:
CIVIL LIBERTIES
U.S. v. Morrison (2000)
Question:
Christy Brzonkala = “raped” female student at Virginia Tech
Morrison & Crawford = accused football player rapists. Morrison was suspended for 2 semesters, but then had the
punishment dropped. Crawford was not punished.
Brzonkala sued Morrison, Crawford, and Virginia Tech in Federal District Court, alleging that Morrison's and
Crawford's attack violated 42 USC section 13981, part of the Violence Against Women Act of 1994 (VAWA), which
provides a federal civil remedy for the victims of gender-motivated violence.
Does Congress have the authority to enact the Violence Against Women Act of 1994 under either the
Commerce Clause or Fourteenth Amendment?
Article 1 sec. 8
“The Congress shall have the power to regulate commerce with foreign nations and among the several states, and
with the Indian tribes.”
Yes or
No?
WHY?
Ruling:
NO. Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth
Amendment since the statute did not regulate an activity that affected interstate commerce, nor did it
compensate harm caused by the state.
***Significance:
Signifies the “devolution of federalism” in which states regained power to regulate
COURT CASES:
CIVIL LIBERTIES
Weeks v. U.S. (1914)
Wolf v. Colorado (1946)
Mapp v. Ohio
** See earlier in the Power Point for SIGNIFICANCE!!
COURT CASES:
CIVIL LIBERTIES
Everson v. Board of Ed. (1947)
Engel v. Vitale (1962)
** See earlier in the Power Point for SIGNIFICANCE!!
Lemon v. Kurtzman (1971)
Ruling:
Established the “lemon test” in which the 3 questions….