Civil Liberties
& Civil Rights
Greatest Hits
Civil Liberties v. Civil Rights
 Civil Liberties/Bill of Rights/1-10 amendments/God
Given/Inalienable Rights/Constitutional Rights What do they do?
 Civil Rights/11-27
 What do they do?
 How does America feel?
 Civil Liberties?
• Trade Civil Liberties for Security
• Unless you have a
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What are Civil Liberties?
Civil
Liberties
protect/shield
you from your
government
 Civil Liberties are basic rights and
freedoms that are guaranteed by
the Constitution (or interpreted to
be there by the courts)
 Most of our civil liberties originate
in the Bill of Rights – although
there are others like Habeas
Corpus found in the Constitution
itself.
What are Civil Liberties?
How different than Civil Rights?
 Civil Rights are the basic right to be
free from unequal treatment based
on certain protected characteristics
(race, gender, disability)
Civil Rights are policies
created by the government to
protect people from
discriminatory treatment
Do the Bill of Rights apply to
the states?
 Originally, the BOR only protected
people from the Federal
Government
 Remember…the BOR was added as a
promise that the new, and stronger, federal
government wouldn’t be too powerful.
 It was assumed that each state had its own
bill of rights
Barron v. Baltimore (1833)
Baltimore Harbor
My wharf is
very profitable.
I’m rich!
Barron v. Baltimore
Baltimore Harbor
Sorry. Street
repairs silted
your wharf.
I’m going to
sue in State
civil court.
I can’t dock
at Barron’s
wharf
anymore!
After losing in State Court,
Barron sues in Federal Court
The 5th Amendment’s TAKINGS
CLAUSE says “nor shall private
property be taken for public use,
without just compensation.”
Baltimore’s street repairs “took” my
wharf from me. They should
compensate me.
The government taking your
property for public use is
called eminent domain
The Marshall Court Rules
Barron v. Baltimore
The first ten "amendments
contain no expression
indicating an intention to
apply them to the State
governments. This court
cannot so apply them.”
Barron lost. But more
importantly, the case set the
precedent that the BOR did
not apply to the states.
The Long-Term
Effect of Barron v. Baltimore
BILL of RIGHTS
1st Amend.
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
The Long-Term
Effect
BILL of RIGHTS
1st Amend.
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
B
A
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R
O
N
I’m protected against
actions of my state
government only if
my state wants to
protect me (by
having a state BOR)
v.
B
A
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T
I
M
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R
E
Bill of Rights only protects you from the FEDERAL gov, not STATE govs
“Selective” Incorporation
Theory
 On a case-by-case (little by little) basis
the SCOTUS has nationalized the Bill of
Rights
 Once an amendment has been
incorporated/nationalized, a citizen is
protected from both the federal and the
state governments
 In other words, the states have to follow
the Bill of Rights.
Bill of Rights and the States
 Barron v. Baltimore
 1833-Bill of Rights is only For Federal
 Slowly each Amendment starts to
defy this. Selective Incorporation
 Gitlow v. New York
 1925- Press and Speech are “Fundamental
personal rights and liberties protected by
Due Process Clause of the 14th Amendment
• DPC- guarantees life , liberty , and property
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14th Amendment
Due Process and
Equal Protection Clauses
“… nor shall any state deprive
any person of life, liberty, or
property without due process
of law; nor (shall any state)
deny any person within its
jurisdiction the equal
protection of the law.”
Freedom Of Religion
 1st Amendment
 Establishment Clause• Engel v. Vitale- recite prayer by N School Children
• Lemon Test (Lemon v. Kurtzman 1971)
• Secular Purpose
• Neither advances or inhibits religion
• Don’t foster excessive government entanglement
• Slow Change
• 1997- Agostini v. Felton- pay teacher for remedial students
• 2002- Zelman v. Simmons-Harris – Ohio allow school
Vouchers
• 1984 Equal Access Act – Allow religious groups to meet if
all groups meet
 Should we allow for Vouchers? Creation
Science/Darwinism? Nativity Scenes at school?
 Jeffersonian Model- Separation of Church and State,
How Separate are we?
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Free Exercise Clause
 People can believe what they want
to believe
 Employment Division V. Smith 1988
• State Laws about religion are ok as long as they
are not pointed at a specific religion
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Freedom of Expression
 Fire!!!
 Prior Restraint-censorship
 Near v. Minnesota- newspaper shut down
before printing, Grafters, Jewish Gangsters
War/Secrets
 Population Favors not letting our secrets out to other
countries
 Includes formerer, CIA, FBI, etc…
 1919 Schenck v. U.S. – clear and present danger
 Smith Act of 1940 – advocating overthrow of the
government
Obscenity

Obscene is not within the Constitutionally protected speech
 Roth v. United States
• Justice Potter Stewart- “Ill know it when I see it”
 Miller v. California
• As whole-to a indecent interest in sex
• Patently or clearly offensive
• Lack serious literacy, artistic, political, or science value
 Local Standard will dictate –Mostly genitalia- what about anatomy text?
 Problems:
• No national wide definition
• Regulation aimed at young(Technology) Pornography
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Libel and Slander
 New York Times v. Sullivan- Libel
only if malice and reckless
disregard for the truth
 Have to know that they are not true-difficult
to win case for public figure
 Private citizens just need statement but
mostly don’t pursue
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Symbolic Speech
 Tinker and Des Moines-black arm bands, can be stopped
 Texas V. Johnson- Burning of Flag
 Express Opinion without words
 Burning a cross is only against the law if it can be proved that it
intended to threaten
 Defying norms of society does not make it against the law
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Commercial Speech
 FTC Federal Trade Commission-ensures
product is not misleading and tell the truth
 Only real concern is unlawful activity and
misleading
 Joe Camel, Cartoons,
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Commercial Speech
 FCC Federal Communications
Commission- regulate communications
 Obscene words that can not be said on air when
children are present
• 10:00pm-6:00am
• What about private channels, XFM Radio, Howard Stern,
etc….
• 2000 U.S. V Playboy Entertainment- People that want to
watch all day, ask the cable company to block then.
 Based on the population
 Still have to leave time for public service, news,
children programs (radio)
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Right to Assemble
 Literal Right - to make a statement
 Can manage- time, place, manner restrictions
 No real limitation, except
• Abortion, Soldiers Funerals
 Right to Association
 Common interest
• Watched online Nazi, KKK, hate groups
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Let’s say Missouri banned
ALL guns…
would the ban be
constitutional?
Right to Bear Arms
 Court of District of Colombia v. Heller 2008
 Handgun possession, disassemble in home, bound trigger in
home.
 Since 2010- Rights with weapons have been free to the states
to decide.
• CCW, Castle Law, etc….
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New Day
 More Incorporation
Incorporation Example
Gideon v. Wainwright
 Gideon was not allowed an
attorney after being arrested
for a felony
 A Florida STATE judge told
Gideon that the 6th
Amendment didn’t apply to
him because he wasn’t being
charged with a FEDERAL
crime – therefore the state
didn’t have to honor the right
to an attorney.
Incorporation Example
Gideon v. Wainwright
 From prison, Gideon
petitioned the Supreme Court
to use the Due Process
Clause to “soak up” the 6th
Amendment and get a new
trial – this time with an
attorney
 He applied for a writ of
certiorari (orders the case to
go immediately to the
SCOTUS “to be made more
certain”)
Incorporation Example
Gideon v. Wainwright (1965)
14th Amendment Sponge
w/ Due Process Pores
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6
6
Amend 6
6
GIDEON v. WAINWRIGHT
All people in the US, whether
charged in federal or state
court, have the right to an
attorney (for felony charges)
6th Amendment Incorporation








1932
1948
1963
1965
1966
1967
1968
1972
Right to Counsel in Capital Cases
Right to a Public Trial
Right to counsel in felony cases
Right to confrontation of witnesses
Right to an impartial jury
Right to a speedy trial
Right to jury trial for serious crimes
Counsel for all crimes w/ prison
Powell v. Alabama
In re Oliver
Gideon v. Wainwright
Pointer v. Texas
Parker v. Gladden
Klopfer v. NC
Duncan v. LA
Argersinger v. Hamlin
The 6th Amendment was incorporated (nationalized)
little by little over the course of 40 years.
Evolution of Incorporation
 Palko (Palka) v. CT (1937)
 Palko was charged with 1st degree murder
but was convicted of 2nd degree and got life
 CT appealed the decision. In the new trial,
Palko was found guilty of 1st degree murder
and was sentenced to death. CTs
constitution didn’t protect its citizens from
double jeopardy in this situation
 Palko appealed to the SCOTUS saying that
his new conviction violated his 5th
Amendment protection against double
jeopardy through the 14th (Due Process)
Evolution of Incorporation
 The SCOTUS upheld Palko’s
2nd conviction
 Some BOR guarantees are fundamental
and “neither liberty nor justice would
exist if they were sacrificed”
 Some BOR guarantees are valuable
and important, but not essential
 Palko was executed by electrocution in
1938.
 The Palko decision was
overturned in 1969 (Benton v.
MD)
BILL of RIGHTS
1st Amend.
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
The Bill of Rights
protects me
against the
FEDERAL
government.
Does the Bill of Rights
protect me against my
STATE government?
NO!
BILL of RIGHTS
1st Amend.
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
B
A
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R
O
N
So how can I
guarantee that I
receive the
protections in the Bill
of Rights?
v.
B
A
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T
I
M
O
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E
Bill of Rights only protects you from the FEDERAL gov, not STATE govs
14th Amendment’s
Due Process Clause
Nor shall any STATE deprive any
person of life, liberty, or property
without due process of law.
amplifies the power
of the Bill of Rights
BILL of RIGHTS
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
So how can I
guarantee that I
receive the
protections in the Bill
of Rights?
v.
DUE PROCESS
1st Amend.
B
A
R
R
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N
B
A
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T
I
M
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Bill of Rights only protects you from the FEDERAL gov, not STATE govs
B
A
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R
O
N
BILL of RIGHTS
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
DUE PROCESS
1st Amend.
v.
Now I can use the
6th Amendment to
protect myself
against the State
of Minnesota!
B
A
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T
I
M
O
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E
Bill of Rights only protects you from the FEDERAL gov, not STATE govs
B
A
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R
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N
BILL of RIGHTS
2nd Amend.
4th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
DUE PROCESS
1st
Amend.
1st Amend.
v.
B
A
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T
I
M
O
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E
Bill of Rights only protects you from the FEDERAL gov, not STATE govs
B
A
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N
BILL of RIGHTS
2nd Amend.
4th Amend.
4th Amend.
5th Amend.
5th Amend.
6th Amend.
8th Amend.
9th Amend.
8th Amend.
9th Amend.
DUE PROCESS
1st
Amend.
1st
Amend.
st
1 Amend.
2nd Amend.
v.
Through
SELECTIVE
INCORPORATION
on a case by case
basis,
basis,basis,
over
overtime,
time,I
am protected by
nearly the entire
BOR against
BOR actions
of my STATE
government.
B
A
L
T
I
M
O
R
E
Bill of Rights only protects you from the FEDERAL gov, not STATE govs
Mapp v. Ohio (1961)
Dollree Mapp’s Porn Case
 Nationalized the
Exclusionary Rule
 “Fruit from a poisonous
tree is poisonous”
 Overturned Wolf v.
Colorado (1949)
4th Amendment
@ School
 New Jersey v.
TLO (1985)
 Safford Unified
School District
v. Redding
(2009)
Probable
Cause
Reasonable
Suspicion
Equal Access Scenario #1
 Students at Central Christian High
School want to start a Buddhism
Meditation Group after school.
 Does the school have to grant them
a right to meet?
Equal Access Scenario #2
 You are a student at a public high
school that gets federal financial
assistance and you want to have a
Bible Study Club meet before
school. Presently, the school only
has a French Club that meets after
school.
 Does the school have to allow the
club?
Equal Access Scenario #3
 You are a student at a public high
school with a limited open forum;
you wish to hold your Bible Club
meetings on Sunday at the school.
 Does the school have to allow the
club?
Equal Access Scenario #4
 You are a student at a public high
school with a limited open forum;
you want to invite your imam to lead
prayers during Ramadan.
 Do students have a right to invite
the imam to meet with their
“Students of Faith” club?
Equal Access Scenario #5
 You are a student at a public high
school with a limited open forum;
you want to hold Neo-Nazi
meetings at the school.
 Does the school have to allow the
club?
Privacy
Right to Privacy
Griswold v. CT (1965)
Overturned an 1879 Connecticut law
that made the contraceptives illegal to
married couples
Even though “privacy” doesn’t appear
in the con
Specific guarantees in the 1st, 3rd,
4th, and 5th Amendments create a
Abortion & Privacy
Roe v. Wade (1973)
 Blackmun wrote in a 7-2 decision
that a right to privacy extended to
the right to terminate a pregnancy.
All states had to respect it because
of the Due Process clause
 1st trimester abortions are allowed
 2nd trimester abortions can be restricted, but not
prohibited by the state
 3rd trimester abortions can be regulated or prohibit
abortions except when medical judgment determines
that an abortion is necessary to save a woman’s life
Abortion & Privacy
 Planned Parenthood v. Casey
(1992)
 Roe not overturned, but new limits were
allowed as long as they didn’t pose an
“undue burden”
 Recently unsealed records show that Roe
was going to be overturned until Kennedy
changed sides at the last moment
 2000 the SCOTUS struck down a
NE law that banned “partial-birth”
abortions (without exceptions) b/c it
would be a ‘undue burden’
Patriot Act
 Federal government power to stop
terrorist
 Examine records and third party records
 Search private property without prior notice
 Watch international phone calls without
warrants
 NSA did not use warrants until 2005 and
now because of the Foreign Intelligence
Surveillance Act the warrants are much
broader
 Wire Tapping American is a little52harder
Rights of the Accused
Rights of the Accused
 Miranda v. Arizona (1966)
 Miranda was arrested for robbery
but confessed to the rape of an
18-year-old woman.
 Miranda was NOT made aware
that he could have counsel or the
right to not incriminate himself.
“I plead the Fifth”
 5th Amendment gives protection
against testifying against yourself
 Exceptions
 If you testify in your behalf you forfeit your
right the 5th
 You cannot invoke the 5th to avoid answering
an embarrassing question
 You cannot invoke the 5th to avoid
incriminating someone else
Civil Rights
 Protect the People from the People
 “All Men are Created Equal”
Racial Equality
 Affirmative Action
 Not Equal- Just Equal opportunity
 Problem: not equal results or rewards
 Founders Fathers did not want
everyone to actually be equal.
 No Guaranteed Rights
 14th Amendment- Equal Protections of the
law
Affirmative Action: Policies designed to
give special attention or compensatory
treatment of members of some
previously disadvantaged groups
Is Affirmative Action the
same thing as Quotas?
 Quotas require that a certain number or
percentage of a disadvantaged group
get a job
 Some, but not all, Affirmative Action
programs use quotas
 For example, if it is proven that a police
force actively discriminated against
hiring minority officers, a quota may be
used to correct past discrimination
Bakke v. Regents of
California at Davis
 UC Davis Medical School desired to
produce more minority doctors so
they set aside 16 (out of 100)
places in the entering class for
members of disadvantaged groups
 Alan Bakke, a white applicant, was
repeatedly deferred even though his
MCAT scores were substantially
higher than most of the minority
applicants who were accepted
Bakke v. Regents of
California at Davis
 Bakke sued the University using the 14th
Amendment and claiming that they
denied him equal protection – he also
claimed the quotas violated the Civil
Rights Act of 1964
 Bakke said he was eligible for 84 spots
while a minority applicant was eligible for
all 100 spots
 In 1978, the SCOTUS ordered Bakke
admitted and said the quota-based
admissions policy was discriminatory
SCOTUS Equal Protection
Clause Standards
Race
Gender
Inherently suspect almost always the
classification is
unconstitutional.
Intermediate
standard - probably
unconstitutional.
“Somewhere
between”
Other
(age, wealth, disability, etc.)
If a classification is
“reasonable” it will
be found
constitutional.
For example, a state law that mandated that people of color were
not allowed to serve in the National Guard would be found
unconstitutional because it is “inherently suspect” to not allow
people of color to serve. However, a law that prohibited people
who were blind from serving would be found “reasonable.”
Era’s of Equal Rights
 Slavery
 Scott V Sandford- Blacks had no power
under the white mans government, even
blacks that escaped to the North
• Congress did not have the power to ban slavery
 Thirteenth Amendment
• Civil War
Era of Reconstruction
 Freedmen’s Bureau- provided
assistance to former slaves
 1876 Rutherford Hayes
 Pull troops out returns to old ways
 Jim Crow Laws
 Plessy v. Fergusan
 Rail Cart 7/8 White- Separate But Equal
was ok
Era of Civil Rights
 NAACP- Linda Brown 1954
 Brown v. the Board of Education
 Slowly Integration is put into play
 Does it really matter if the law says that segregation is
not allowed?
 De Jure- by Law- we can not openly with the law
allow segregation
 De Facto- in Reality- look at communities, economic
and social make up
• Still Segregated
 Media 1960-70 changes the minds by making sure the
U.S. has a Conscience
Voting Rights
 Civil Rights Act of 1964
 Racial discrimination against any group in
businesses and in Jobs
• EEOC- Equal Employment Opportunity
Commission
 Slowly eliminate all Segregation
 Voting Rights Act of 1965
 Government sent to district to make sure
African American can Vote
Right to Suffrage
 15th Amendment- Race, color,
previous condition
 What about Registration?
•
•
•
•
Literacy Test
Grand Father Clause
Poll Taxes
White Primary
• Unconstitutional in 1944- Smith v. Allwright
 24th Amendment
 Good Bye to Poll Taxes
Gerrymandering
 Miller v. Johnson- 1995
 UnConst- draw lines for the Minority
Women
 19th Amendment- 1920 Allows
women to vote
 Before
 Coverture- no identity from their husband
 Rule of Thumb
 Can only change through the right to vote
Women Rights
 19th Amendment- 1920’s
 Era 1920-60’s- bread bakers of
America
 Protectionism compared to equal rights
 Equal Rights Amendment (ERA) try
finally passed in 1972- cannot be
denied rights based on sex
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Women Part II
 Feminist Wave
 National Organization of Women and
National Political Caucus organized
 Reed v. Reed- 1971-gender classification
violated equal protection clause of the 14th
amendment
• Medium scrutiny- “exceedingly persuasive
justification” to classify
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Women Making Strides
 Traditional Roles
 Civil Rights Act of 1964- banned
gender discrimination in employment
 Pregnancy Discrimination Act of 1978cant exclude pregnancy and childbirth
from their sick leave
 Education- Title IX- 1972 forbids
gender discrimination in federally
subsidized educational programs
(Also athletics)
 Military Schools cannot keep women out
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Women and more women
 Wages
 Comparable Worth- females are paid less
thene males
 Military
 Opened Service in 1975
 Now serve in Combat Roles (Special
Forces)
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Harassment
 1964 Civil Rights Act- cannot create a
hostile or abusive work environment
 Title VII- catches harassment before
severe psychological injury
 All work places are required to have a
system of reporting harassment- Penn
State Police v. Suders
 School districts- if knowledgeable of
harassment makes them liable to be
sued.
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Civil Right Groups
 Elderly-Social security 1930’s, not
enough
 Age Discrimination –jobs, education, etc..
 Disabilities Rehabilitation Act of 1973 – added to be
protected by discrimination
 American Disabilities Act of 1990- ADA
• Create reasonable Accommodations in public areas
 Gay and Lesbian Rights- DOMA
 Don’t ask Don’t Tell
 2003 Bowers v. Hardwick- antisodomy laws were
against the right to privacy
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