CIVIL LIBERTIES
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FIRST AMENDMENT
Congress shall make no law respecting the
establishment of religion or prohibiting
the free exercise thereof; or abridging the
freedom of speech, or the press; or the
right of the people peaceably to assemble,
and to petition the government for redress
of grievances.
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Background to Civil Liberties

Framers wanted 3 things.
– Limit federal powers and protect the state
constitutions.
– Wanted the Constitution to proclaim what the
federal government could do.
 Not what it couldn’t do.
– Anything else, left to the _________.
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Background to Civil Liberties
Continued…

Historically contentious for 3 reasons.
– Bill of Rights is contradictory.
 Media’s right to broadcast a trial vs. an individual’s
right to a fair trial.
– Casey Anthony? George Zimmerman?
 Government officials are good at restricting the
rights of a minority in times of ‘emergency’
– Cold War- Cong required Communists to register
 Immigrants and racial minorities create(d) cultural
conflicts.
– Jews vs. a town’s nativity scene. English as the national
lang?
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Selective Incorporation

14th Amendment: created the possibility
that the B of R would apply to states.
– Based on the “due process clause”
– Gitlow v. NY (1925): a person’s fundamental
rights are protected from infringement from
the states because of 14.
 Most of the rights have been “incorporated”
(applied to the states).
 Most recent, 2nd with gun ownership in D.C. and
Chicago.
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First Amendment questions
 What
constitutes the establishment of
religion? What is the wall of separation ?
 What is the abridgement of free exercise ?
 How far does freedom of speech go? Is
symbolic speech (non-spoken) also
protected?
 Is obscenity protected ? What is clear and
present danger ?
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First Amendment questions…
 Free
press and the right to know
- what is prior restraint ?
- is libel protected?
- is the electronic media covered?
 What is peaceable assembly ?
 How do you petition the government ?
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First Amendment cases: Religion
Establishment Clause
Everson v. Board of Education (1947)
prohibits laws that benefit religion must be a “wall of separation”
* incorporates Establishment Clause
 Engel v. Vitale (1962)
school prayer
 Abington School District v. Schemp (1963)
no bible reading – was a religious exercise by the
state

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Establishment Clause

Lemon v. Kurtzman (1971)
*Lemon Test ( 3 part precedent)
1. policy must be secular
2. primary effect neither advances nor inhibits
religion
3. must avoid “excessive entanglement” of
government & religion

Wallace v. Jaffree (1985)
moment of silence- intent of the law was to
restore prayer in school
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Establishment Clause

Lynch v. Donnelly ( 1984)
religious displays ok if contain some secular
symbols (Rehnquist Ct & Ten Commandments 2005:
KY case finds display in courtroom lacks secular
purpose
TX case allowed outdoor display as a balance of
freedom and tradition)

Lee v. Weisman (1992)
graduation prayers are a coercion of religion

Santa Fe School District v. Doe (2000)
prayer at a high school football game is coercion
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Establishment Clause

Rehnquist Court
- moving away from the “wall of
separation” between religion & gov’t
- opinions are now allowing the
encouragement of religion but not the
coercion or the endorsement of it
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Free Exercise

Minersville v. Gobitis (1940) overturned by
W. Va. V. Barnette (1943)
flag salute – cannot be forced to salute
(also applied to pledge of allegiance currently
in the Newdow case)

Church of Lukimi Babalau Aye v. Hialeah
(1993) religious animal sacrifice & substantive
due process
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Freedom of the Press



Near v. Minnesota (1931)
no prior restraint
* Incorporates free press to all states
New York Times v. U.S. (1971)
“Pentagon Papers” – national security
v. public’s right to know
Hazelwood v. Kuhlmeier (1988)
prior restraint of student press by
school administration allowed
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Freedom of Speech
Non-protected Speech
Schenck v. U.S. (1919)
speech that presents a “clear & present
danger”
 Gitlow v. New York (1925)
subversive speech is not protected from
government regulation
* Incorporates freedom of speech to the states

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Freedom of Speech

Not protected…
– Libel (written defamation) and slander
(spoken)
 Must be with malice, reckless disregard for the
truth, with knowledge the words are false.
– Some obscenity
 Porn stores, theaters given to towns. Internet, TV,
generally protected.
 Simulated child pornography protected.
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Freedom of Speech
– Symbolic speech is NOT protected when it
involves an illegal act
 Burning a draft card not OK, burning flag OK
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Freedoms of Speech
Non-protected Speech
Dennis v. U.S. (1951)
Smith Act and seditious speech to overthrow
government
 Brandenburg v. Ohio (1969)
speech must be directly related to imminent
lawless action to be suppressed not just
advocacy of action (KKK case)

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Freedom of Speech
Non-protected Speech

Miller v. CA. (1973)
test for obscenity in speech:
If the community standards find that:
1. the average person would find the speech or
work appeals only to prurient interests
2. the work is patently offensive
3. the work taken as a whole lacks serious literary,
artistic, political, or scientific value
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Freedom of Speech
Non-protected Speech
 Bethel v. Fraser (1986)
first amendment does not prevent
school officials from banning lewd
speech that would undermine the
school’s basic educational mission
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Freedom of Speech
Protected Speech
includes written, spoken, symbolic speech &
assembly and speech that you hate
 Buckley v. Valeo (1976)
campaign contributions to own campaign are
free speech
 Reno v. ACLU (1997)
struck down internet law which banned child
access to pornography as a violation of adult’s
first amendment rights
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Freedom of Speech
Protected Symbolic Speech
 R.A.V.

v. City of St. Paul (1992)
cross burning is not one of the
categories of speech that can be limited
Tinker v. Des Moines (1969)
student silent protest with armbands is
not disruptive to the educational
process
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Freedom of Speech
Protected Symbolic Speech
Texas v. Johnson (1989)
flag burning is protected under this
amendment (Court ruled on it twice)
 Schenck v. Pro Choice Network (1997)
floating buffer zones around abortion clinics
offend free speech

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Second Amendment
A well regulated militia being necessary to
the security of a free state, the right of the
people to keep and bear arms shall not be
infringed.
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Second Amendment
 U.S. v. Miller (1939)
registration of sawed-off shotguns does not
violate the Second Amendment
 Printz v. U.S. (1997)
federal government (via Brady Bill)
cannot compel states to administer a
federal regulatory program
(background check) – really a federalism
issue
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Third Amendment
No soldier shall, in time of peace, be
quartered in any house without the
consent of the owner; nor in time of war,
but in a manner to be prescribed by law.
* Never been the subject of a Supreme
Court decision except in support of the 9th
Amendment in Griswold v. Conn.
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Fourth Amendment
The right of the people to be secure in their
persons, houses, papers, and effects
against unreasonable searches and
seizures, shall not be violated; and no
warrants shall issue but upon probable
cause, supported by oath and affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized.
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Fourth Amendment Questions




What is probable cause ?
When is a warrantless search allowed ?
What is a reasonable search ?
What the exclusionary rule?
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Fourth Amendment
Probable Cause is where the facts & circumstances
within an officer’s knowledge , and of which they
have reasonably trustworthy information, are
sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense
has been committed.
 must be decided by a neutral magistrate
 must describe in detail the place , person &
things
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Fourth Amendment
Reasonable expectation of privacy upheld constitutionally and generally
includes the physical body, the home &
immediate area around it and the office.
Generally governs searches under the
fourth amendment.
 Reasonable searches would be with a
warrant or without a warrant if there is
probable cause.

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Fourth Amendment
 What
types of searches could be
warrantless reasonable searches ?
- sobriety checkpoints
- border crossings / airports
- drug testing
- student searches
- consent searches which must be
authorized and not coerced
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Fourth Amendment
When is a warrant needed?
- an arrest in a person’s home
- search of a home or office
 When is a warrant not needed? (warrantless
search)
- search incident to lawful arrest
- plain view – visible evidence
- hot pursuit – follow into building
- automobiles – less expectation of privacy
- exigent circumstances - emergency

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Fourth Amendment
 The
exclusionary rule was defined in the
case Weeks v. U.S. (1914) which said that if
evidence violated the Fourth Amendment
and was illegally seized it could not be
admitted at trial.
- this continues to be controversial as
can be seen in some Supreme Court
interpretations
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Fourth Amendment
Expectation of Privacy
Katz v. U.S. (1967) - there can be no use of
wiretaps without a warrant – even in a
phone booth this overruled Olmstead v.
U.S. (1928) – 4th Amend. Protects the
people (Katz) not the place (phone booth)
(Current Issue: cell phones & Patriot Act –
are the ‘people’ protected?)
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Fourth Amendment
Warrantless Searches
 Wolf v. Colorado (1949) - *Incorporated
no unreasonable search & seizure clause
 Mapp v. Ohio (1961) – must have
probable cause or evidence can be
excluded (*Incorporated the exclusionary
rule)
 Terry v. Ohio (1968) – stop & frisk search
for weapons is allowed
 Minnesota v. Dickerson (1993) – frisk also
allowed for contraband
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Fourth Amendment
Warrantless Searches
Chimel v. CA (1969) – search incident to
arrest is limited to area under the person’s
immediate control in ‘search incident to
arrest’
 U.S. v. Leon (1984) – police can search on
“good faith” that info given for probable
cause is correct (good faith exception)
 New Jersey v. T.L.O. (1985) – schools
only need reasonable suspicion not
probable cause for a search

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Fourth Amendment
Warrantless Searches (drugs)

Skinner v. Railway Laborers (1989) – federal
transportation workers can be drug tested due to
assurance of safety of railroads
* Chandler v. Miller (1997) – but not
election candidates

Vernonia v. Acton (1995) – student athletes can
be tested / safety/ diminished expectation of
privacy

Potowatamie v. Earls (2002) – all student
activities participants – diminished expectation
of privacy
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Fourth Amendment
Warrantless Searches
 U.S. v. Ramirez (1998) – “good faith”
exception to the “knock” rule
Vehicle Searches
 U.S. v. Ross (1982) – with probable
cause to suspect drugs/contraband
may search entire car (the automobile
exception)
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Fourth Amendment
Vehicle Searches
 CA. v. Acevedo (1991) – diminished
expectation of privacy for cars– also
search of container in trunk is allowed
with probable cause
 Maryland v. Wilson (1997) – can search
passengers
 Wyoming v. Houghton (1999) – can
search personal items
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Fourth Amendment
Vehicle Searches
 Knowles v. Iowa (1998) – search not
allowed w/out arrest or probable cause
 2005: Illinois v. Caballes – drug dogs &
traffic stop
Public Vehicle Searches
 Fl v. Bostick (1991) – ok to search
passengers luggage with consent
 Bond v. U.S. (2000) – manipulation of
luggage is not ok
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Fifth Amendment
No person shall be held to answer for a
capital, or otherwise infamous crime,
unless on presentment of an indictment of
a grand jury, except in cases arising in the
land and naval forces, or in the militia,
when in actual service in time of war or
public danger; not shall anyone be subject
for the same offense to be twice put in
jeopardy life and limb; nor shall be
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Fifth Amendment
Compelled, in any criminal case, to be a
witness against himself; nor be deprived of
life, liberty, or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation.
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Sixth Amendment
In all criminal prosecutions, the accused
shall enjoy the right to a speedy & public
trial, by an impartial jury of the state and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witness against him; to have
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Sixth Amendment
compulsory process for obtaining witnesses
in his favor, and to have the assistance of
counsel for his defense.
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Fifth & Sixth Amendments
What constitutes self-incrimination?
 What is covered under due process ?
 Can a trial be too speedy & public to be
fair?
 How must you be informed of charges ?
 What constitutes right to counsel ?

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Fifth & Sixth Amendments
Escobedo v. Illinois (1964) –
information obtained unlawfully in an
interrogation (ie. Coerced confession)
cannot be used in court
 Miranda v. Arizona (1966) – set
procedural safeguards after arrest (“you
have the right to remain silent…”)
 Davis v. U.S. (1994) – request for
lawyer must be clear

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Fifth & Sixth Amendments
Dickerson v. U.S. (2000) – applies
Miranda to custodial interrogation in
federal & state-Miranda may not be
overruled by act of Congress
 Missouri v. Seibert (2003) – ok to
admit statements made before Miranda
warning if made again after warning

 Kelo
v. New London (2005)– eminent
domain seizure for ‘public good’
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Fifth & Sixth Amendments
 Powell v.
Alabama (1932) - * Incorporated
right to counsel in capital cases
 Gideon
v. Wainwright (1963) – overturned
Betts v. Brady and gave right to counsel for
all felony cases – *Incorporated right to
counsel in felony cases to states *in forma
pauperus

Korematsu v. U.S. (1944) – during
wartime gov’t may take extreme measures
(that deny due process)
 Sheppard v. Maxwell (1966) – if a judge
does not have control of the courtroom there
cannot be a fair trial ( ‘The Fugitive’)
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Seventh Amendment
In suits in common law, where the
controversy shall exceed $20, the right of
trial by jury shall be preserved, and no fact
tried by a jury shall otherwise be
reexamined in any court of the Unites
States other than according to the rules of
common law.
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Eighth Amendment
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishment inflicted.
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Eighth Amendment
Cruel & Unusual Punishment
(Death Penalty)
 Robinson v. CA (1962) - * Incorporates
the cruel & unusual punishment clause
 Furman v. GA (1972) – application of the
death penalty in GA is cruel & unusual
(all states suspend death penalty for four
years)
 Gregg v. GA (1976) – arbitrary
application of the death penalty corrected
– penalty re-established in most states
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Eighth Amendment
Cruel & Unusual Punishment
(Death Penalty)
 Buchanan v. Angelone (1998) – mitigating
circumstances & the death penalty – absence of
jury instruction on mitigating circumstances
does not violate 8th amendment
 Atkins v. Virginia (2002) – prohibits death
penalty for mentally retarded
 Roper v. Simmons ( 2005) – prohibits death
penalty for those 18 years of age & under
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Civil Liberties and Terrorism

9-11 led to Cong passing the PATRIOT Act
– Gov can tap any phone used by a suspect with a
court order.
– Can tap any internet with a court order
– Can seize voicemail with a court order
– Investigators can share info learned in a grand jury
– Any noncitizen can be held for 7 days or longer
– Can track $ across borders
– No statute of limitations for terrorism.
– Any noncitizen gets tried in military court (exec order)
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Civil Liberties and Terrorism

Why is the PATRIOT Act an issue?
– Increases police powers… investigate ppl with
no terrorist ties.
– Investigations are done in secret
– NSA was found to intercept all oversees
phone and emails.
 Bush argued that it did not have time to get court
orders
 Foreign Intelligence Surveillance Act Court….
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