Civil Liberties
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Objectives
• Explain the purpose of the Bill of Rights and the
process by which its provisions came to be
“incorporated.”
• Define prior restraint and exam the free-speech tests
devised by the Supreme Court to determine protected
versus unprotected speech.
• Explore the debate over where to draw the line
between protected free exercise of religion and
unprotected conduct.
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Objectives
• Discuss the arguments for and against the
constitutional right of privacy and recognize the types
of issues to which it applies.
• Understand the concept of procedural due process
and other rights of criminal defendants, and examine
how judicial interpretation of constitutional language
can affect those rights.
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Why are we the way
we are?
Why does it matter
to you?
In particular,
how has the
U.S. system’s
fundamental
commitment to
the rule of law
affected how the
Supreme Court
interprets those
liberties?
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Core Questions:
The Bill of Rights
• Civil Rights
• Freedom from governmental discrimination (unequal
treatment).
• Bill of Rights
• The first 10 amendments of the Constitution, which
form the basis of civil liberties.
• Civil liberties
• Freedoms that citizens enjoy from government
interference
• Freedom of speech, press, assembly, and religion;
guarantees of due process and other protections
given to criminal defendants.
• Understand the difference?
• Right to assembly = civil liberty. BUT if government
decides only people with red hair can assemble and
others could not, that would be discrimination and a
violation of civil rights.
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The Bill of Rights: Origins
• George Mason’s proposal
for a Bill of Rights was
voted down unanimously by
delegates.
• Many felt there was no
need for a federal Bill of
Rights.
• Seven states had a bill of
rights in their state
constitutions.
• They believed the federal
government was limited and
could not abridge the rights
of individuals.
• Madison originally opposed
it as well, but changes his
position with persuasion by
Jefferson and the need to
ratify the Constitution.
• First Congress sent 12
amendments to the states
for ratification.
• The first two, which dealt
with the size of the House
and compensation for
representatives and
senators, were not ratified.
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The Bill of Rights & the States:
The Original Understanding
• The Bill of Rights originally thought to limit ONLY the power of the
national government … not the power of the states.
• First Amendment: “Congress shall make no law…”
• Barron v. Baltimore (1833)
• Does the Fifth Amendment deny the states as well as the national
government the right to take private property for public use without justly
compensating the property's owner?
• Unanimous decision: Chief Justice Marshall argued that the Supreme Court
had no jurisdiction in this case since the Fifth Amendment was not applicable
to the states.
• Slavery and the emergence of abolitionists
• The Liberator
• State restrictions on civil liberties. Example: VA made it a felony for
abolitionists to enter state and speak in favor of abolishing slavery. Missouri
had elected officials swear oath in support of slavery.
• Bill of Rights offered no protection for abolitionists.
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Incorporation of the Bill of Rights
• What is incorporation?
• Applying the Bill of Rights to the states.
• Means that an amendment limits not only the federal government, but the
state governments as well.
• Total incorporation: making every specific provision of the Bill of
Rights applicable to the states.
• Selective incorporation: making only the most essential provisions
applicable to the states.
• Incorporation “plus”: unenumerated rights such as “privacy”?
• Not enumerated in the Bill of Rights, but the Supreme Court has
recognized this right at the federal level. Should these be incorporated as
well?
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Incorporation of the Bill of Rights
• What justifies incorporation? Two clauses in the Fourteenth
Amendment
• Privileges or immunities clause: “No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens in the
United States…”
• Slaughterhouse Cases of 1873
• Court narrowly interpreted privileges and immunities.
• Thus limited use of privileges and immunities clause to incorporate
• Due process clause: “No state shall... Deprive any person of life, liberty,
or property without due process of the law.”
• Meant to guarantee fairness;
• procedural due process and substantive due process
• 20th century justices of the Supreme Court turned to the due process clause
to incorporate the Bill of Rights.
• Long process of “selective incorporation” began
• Most recent: Second Amendment
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• Principle of freedom of press: no prior restraint on publishing
• British common law tradition after 1695
• Censorship before publication
• Near v. Minnesota (1931) 5-4 vote, Supreme Court held prior restrain to
be unconstitutional
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First Amendment:
Freedom of Press and Prior Restraint
• But in certain “exceptional” cases acceptable: troop movements in time of war;
obscene material
• Also majority held that certain types of punishment after publication were
constitutional
• Pentagon Papers
• Study of U.S. involvement in Vietnam commissioned by Sec. McNamara
• Disclosed that government from Truman to Johnson administrations has misled public
• Nixon administration tried to restrain publication of NYT articles relating to
Vietnam. Cited national security.
• Court ruled 6-3 that the NYT could publish the articles
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What did the Framers Mean by “Freedom
of Speech”?
• Not clear what the Founders meant by freedom of
speech.
• Pennsylvania the only state with constitution that protected
speech; linked with freedom of press
• So even after it was included in the Bill of Rights, the
specific meaning was unclear.
• Does it guarantee more than protections against prior
restraint of the press?
• Is protected speech limited to political speech?
• Did it mean that only states could regulate speech and
not the federal government?
• No Court suggests that freedom of speech is absolute.
Exactly what is protected?
• Obscenity? False advertising? Written speech or spoken
words?
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The Alien and Sedition Acts of 1798
• Four separate laws passed by the Federalist Party when U.S. was
under threat of war with France.
• Sedition Act: allowed for the prosecution of anyone who “shall write,
print, utter or publish” any “scandalous and malicious” statements
against the government.
• Targets of the law – opposition newspaper editors (often DemocraticRepublicans).
• Punishment: imprisonment for up to two years and a $2,000 fine if
convicted.
• Ten people, including one House member, convicted before the act
expired in 1801. Later pardoned by Jefferson.
• Court never ruled on the constitutionality of these acts. Nor did they rule
on any freedom of speech case until 1919!
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Supreme Court Confronts Restrictions on Speech
Espionage Act
of 1917
Schenck v. United
States (1919)
Abrams v. United
States (1919)
Gitlow v. New York
(1925)
Brandenburg v.
Ohio (1969)
• Illegal to cause
insubordination,
disloyalty, mutiny,
or refusal of
military or naval
duty
• Followed by
Sedition Act of
1918
• Led to the arrest
of over 6,000
people
• Debs, Socialist
Party opposed
entry into WWI
• Charles Schenck,
member of
Socialist Party
• Leaflets to
encourage draft
resistance but did
not advocate
directly
• Charged with
violating the
Espionage Act
• Convicted; 15
years in prison
• Appealed, but
Supreme Court
upheld
• Clear and Present
Danger Test
• No shouting fire in
crowded theatre
• Not ordinary
times; at war
• Abrams and
others were
anarchists
• Leaflets calling
workers to unite
against
“capitalistic”
government
• Charged with
violating
Espionage Act
• 7-2 majority found
for the
government
• Used clear and
present danger
test
• Workers made
goods for war
• Two dissenters:
Holmes and
Brandeis
• Majority now used
the bad
tendency test
• Less stringent
test; why wait for
clear and present
danger; spark
may kindle fire
• Holmes and
Brandeis
continued to
dissent; threat of
serious evil only
justification
• 1930s Court’s
composition
began to change;
FDR appointed a
new majority
• Move to
incorporate the
Bill of Rights
began as well
• ’40s and ’50s
communism
resurgence;
renewed
restrictions on
speech
• Eisenhower
appoints Earl
Warren
• His Court
overturned
existing free
speech precedent
in this case
• Overturned
Brandenburg’s
conviction
• But new
questions
emerge: What
forms of speech
are protected?
Pure speech?
Symbolic
speech?
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Symbolic Speech
• Forms of expression such as signs or symbols
• First Amendment protection given
• Stromberg v. California (1931)
• Struck down a California law prohibiting the flying of red flag as a sign of
opposition to government.
• Tinker v. Des Moines Independent Community School District (1969)
• Black armbands used by students to protest Vietnam War; not an absolute
right, but students did not disrupt class with them.
• Morse v. Frederick (2007)
• Bong Hits 4 Jesus sign at a school sponsored event; principal seized banner
as promoting drug use and suspended the student.
• Were the student’s First Amendment rights violated?
• 6-3 majority of the Court said NO. Clarence Thomas went so far as to stay
that students had no free speech rights and Tinker should be overturned.
• Court said that school’s interest in deterring drug use by students justified
their action in this case.
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Symbolic Speech
• Symbolic speech cases often raise
issues of “conduct” – actions rather
than words.
• Often intertwined
• Is wearing an armband speech or
conduct?
• What of flag burning:
• Texas v. Johnson (1989)
• Johnson burned flag outside the 1984
Republican National Convention in
Dallas.
• 5-4 decision; symbolic speech
conveying an idea sometimes may fall
within the protection of the First
Amendment.
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Obscenity
• Majority of the Court has never considered obscenity protected speech.
• Problem: defining what is obscene.
• Hicklin test: Regina v. Hicklin (1868) any material (whole or part, of
a book, for example) that has a tendency to deprave or corrupt a child
could be outlawed.
• Comstock Act 1873
• Illegal to mail “obscene, lewd, or lascivious” material; even included birth
control and abortion information.
• Fined up to $2000 and imprisoned for up to 10 years with hard labor
• Used Hicklin test to uphold the law in 1877.
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Obscenity
• Roth v. United States (1957) new standard – the Roth Test
• No longer used children as baseline but rather the average person
“applying contemporary community standards”
• Open to interpretation
• Miller v. California (1973) another new standard as Court moved in a
more conservative direction
• Local community standards
• Current tendencies
• Legal definition of obscenity: hard-core pornography
• Broadcast media more stringently regulated – public airwaves are scarce,
so government may ban language and nudity on broadcast media that is
offensive although not obscene.
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Libel and Slander
Neither are protected by the First Amendment, but the Supreme Court has set a high
standard for government officials and public figures who seek damages for defamation.
• Libel: Written defamation of character
• Slander: Spoken defamation of character
• New York Times v. Sullivan (1963)
• Prove actual malice made with knowledge that it was false or reckless, regardless
of whether it was false or not
• Keep political discourse free and flowing
• Malice standard makes it very difficult for public figures to win libel suits
• Opinion and parody are generally immune from libel charges
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Other Areas of Speech
• False Advertising
• 1943 Court ruled that the First Amendment does not protect commercial
advertising.
• But what about commercials that have some political content?
• In 1970s Court struck down state laws that prevented lawyers from running
advertising and that banned advertising for abortion services.
• Struck down federal law that banned mailing of unsolicited ads for contraceptives.
• First Amendment does not prevent government from passing laws to prevent
false, misleading, or deceptive advertising.
• Can require warning/informational labels on products.
• Campus Speech
• Campus speech codes: designed to combat discrimination and harassment, but
some believe this squelches debate and limits free speech.
• Supreme Court has not directly ruled on these codes, but lower courts have.
• University of Michigan’s code struck down due to overly broad, vague language.
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• First Amendment guarantees “the right of the people peaceably
to assemble.…”
• Not absolute.
• Restricted property versus public property.
• Westboro Baptist Church protests to highlight their belief that ills
of the U.S. are God’s punishment for a society that condones
homosexuality.
• Picketed funeral of Matthew Shepard, who was beaten to
death because he was gay.
• Picketers displayed signs that said “God Hates Fags.”
• 30 states have passed laws that restrict graveside
demonstrations.
• Respect for America’s Fallen Heroes (2006) – buffer zones
around military cemeteries during burials.
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Freedom of Assembly
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Establishment Clause
Free Exercise Clause
• Make no law respecting an establishment of
religion
• Separation of church & state
• Still disagreement as to meaning
• Incorporation in 1947
• Everson v. Board of Education
• Federal funding
• Battle between “separationists” and
“accommodationists”
• Prayer in school; Ten Commandments
• Lemon Test
• Secular purpose – intent prong
• Primary effect is neither to advance or
prohibit religion – effect prong
• Do not lead to excessive government
entanglement with religion –entanglement
prong
• Cantwell v. Connecticut (1941)
• Religious belief v. religions action (1879)
Mormonism & polygamy; Jehovah’s
Witnesses and solicitation
• Incorporation of the free exercise clause
• The Gobitis case (1940)
• Mandatory flag salutes and Jehovah’s
Witnesses; upheld by Court as it had a
legitimate secular purpose: fostering
patriotism
• Violence against the group; called unAmerican
• The Barnette case (1943)
• Reversed Gobitis; found that flag salute
was a form of symbolic expression and that
for the government to compel such
expression violated the First Amendment
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First Amendment: Freedom of Religion
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Right to Privacy
• Natural Rights
• Basic rights that all human beings are entitled to, whether or not they are formally
recognized by government
• Is this a means for the Court to “find” new rights in the Constitution?
• Griswold v. Connecticut (1965)
• Used constitutional right of privacy to strike down a law
• Where did this right to privacy come from?
• Justice Douglas: It is implied in the language in the Bill of Rights
• Free speech and assembly = freedom to associate, which implies a right to privacy in
one’s associations
• Third Amendment: right not to quarter solders: zone of privacy
• Fourth Amendment: ban against unreasonable search and seizure
• Fifth Amendment: ban on self-incrimination
• Others, such as Hugo Black, argued there was no specific provision in the
Constitution that prohibited the government in Connecticut from denying couples
the right to use birth control.
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Abortion
• Griswold paved the way for Roe v. Wade (1973)
• Texas law criminalized abortion. Was that law constitutional?
• 7-2 decision: Court ruled it was not constitutional, but in its decision, it
tried to balance two competing constitutional rights
• Privacy right of a woman to control her own body
• State’s interest in protecting the life of the fetus
• Justice Harry Blackman wrote the majority opinion
• When did the state have a compelling interest in protecting the life of the
fetus? At conception? When it developed into a “person”?
• He attempted to compromise with the point at which a fetus could survive
outside the womb (viability established at the end of the second trimester)
• Established “trimester framework”; a middle-ground position which came
under attack from both sides
• Science and technology: Babies could survive earlier in the process and
the Court changed composition.
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• Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
• Would Roe v. Wade be overturned?
• 5-4 decision abandoned the trimester framework, but reaffirmed the
“central tenet” of Roe.
• A woman's right to choose is still constitutionally protected, however, the
"strict scrutiny" standard was eliminated in favor of a lesser standard of
protection for reproductive choice called "undue burden."
• Under Casey, state and local laws that favor fetal rights and burden a
woman's choice to have abortion are permitted, so long as the burden is
not "undue."
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Abortion
• Abortion is a very contentious issue in the U.S.
• If Roe is overturned, each state will need to decide whether or not to
allow abortions, unless Congress establishes a uniform policy for the
entire country.
• Political fights over the issue would likely be fierce.
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Rights of Homosexuals
• Bowers v. Hardwick (1986)
• State made it a felony to engage
in sodomy; applied to everyone
• Civil suit: claimed his right to
privacy was violated
• 5-4 vote Court rejected the claim
and upheld the GA law claiming it
had a rational basis.
• Dissenters used strict scrutiny &
said it violated the right to privacy
• Case overturned in Lawrence v.
Texas (2003)
• These laws criminalizing private,
consensual actions had no
rational basis
• Same-sex marriage
Right to Die
• Complicated issue
• Cruzan v. Director, Missouri
Department of Health (1990)
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Other Rights Related to Privacy
• Court balanced competing
interests
• Patients have right to refuse
treatment BUT the state had a
right to protect life
• Need “clear and convincing”
evidence that patient would want
life support refused
• Later ruled right to privacy does
not include suicide
• Only one state allows doctorassisted suicide (Oregon), and
Court rejected effort to block that
law.
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Rights of Criminal Defendants
• Only those specific guarantees of the Bill of Rights that the Court has
deemed “fundamental” have become incorporated “selectively”
• But ambiguities still exist: right to jury trial in criminal cases, but what about
the size of the jury?
• Some judicial opinions have expanded these rights: Gideon v. Wainwright
(1963)
• Lawyer for those who could not afford one
• Miranda v. Arizona (1966)
• Weeks v. United States (1924)
• Exclusionary rule in federal cases
• Mapp v. Ohion (1961) applied exclusionary rule to states
• Controversial: some argue it goes too far to protect the rights of criminal
defendants.
• Good faith exceptions
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• The Eighth Amendment bans “cruel and unusual punishment.”
• U.S. has the fifth highest rate of confirmed executions in the world behind
China, Iran, North Korea and Yemen.
• 34 states administer the death penalty.
• Majority of Americans support the death penalty.
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The Death Penalty
• Does this mean that capital punishment violates that ban? IF not, then
what types of execution are constitutional?
• Controversies:
•
•
•
•
Lethal injections with improper administration
Random and arbitrary imposition of death penalty not constitutional
Excessive form of punishment for certain types of crime
Age and mental conditions must be considered
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• Does combating terrorism justify restriction on civil liberties?
• USA Patriot Act
• Warrantless wiretaps
• Treatment of suspected terrorists: indefinite detention; no charge or
access to lawyer
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Terrorism and Civil Liberties
• Hamdi v. Rumsfeld (2006)
• U.S. citizens, including terror suspects, have the constitutional right to
consult a lawyer and to contest their detention before an independent
tribunal.
• Hamdan v. Rumsfeld (2006)
• Military commissions were not authorized by Congress and violated
international law and could not be used as a means to try detainees.
• Congress addressed this by passing a law authorizing them. Were
banned by Obama administration, but they rescinded the ban in 2011.
• Does warding off terrorism justify rescinding civil rights? Court has
generally decided that it does not.
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