Civil Liberties 4 Video: The Big Picture 4 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED IA_1/polisci/presidency/OConner_Ch04_Civil_Liberties_Se g1_v2.html Learning Objectives 4.1 4.2 4 Outline the issues and compromises that were central to the writing of the Constitution Analyze the underlying principles of the Constitution Learning Objectives 4.3 4.4 4 Outline the First Amendment guarantees of and limitations on freedom of speech, press, assembly, and petition Summarize changes in the interpretation of the Second Amendment right to keep and bear arms Learning Objectives 4 4.5 Analyze the rights of criminal defendants found in the Bill of Rights 4.6 Explain the origin and significance of the right to privacy Learning Objectives 4.7 4 Evaluate how reforms to combat terrorism have affected civil liberties Video: The Basics 4 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED IA_1/polisci/presidency/Seg2_CivilLiberties_v2.html Roots of Civil Liberties: The Bill of Rights 4.1 Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation. These are limitations on the power of government to restrain or dictate how individuals act. The Incorporation Doctrine: The Bill of Rights Made Applicable to the States Selective Incorporation and Fundamental Freedoms Constitution’s Natural Rights • Writ of habeas corpus, no bills of attainder, no ex post facto laws, trial by jury in federal courts • Protections as citizens move from state to state • No titles of nobility • No religious oaths for holding federal office • Republican form of government for all states The Incorporation Doctrine: The Bill of Rights Made Applicable to the States 4.1 Fourteenth Amendment Bill of Rights applies to actions of states, not just federal government Due process clause Applied to Bill of Rights Substantive due process Procedural due process When did the Court first articulate the doctrine of selective incorporation? 4.1 Selective Incorporation and Fundamental Freedoms Fundamental freedoms protected under selective incorporation Rights that states must protect: Freedom of press Freedom of speech Freedom of assembly 4.1 TABLE 4.1 How has selective incorporation made the Bill of Rights applicable to the states? 4.1 Video: In Context 4.1 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED IA_1/polisci/presidency/Seg3_CivilLiberties_v2.html First Amendment Guarantees: Freedom of Religion 4.2 The First Amendment states that: “Congress shall make no law 1. respecting an establishment of religion, 2. or prohibiting the free exercise thereof;…” In this section we will look at each of these clauses of the First Amendment, the controversy and power struggles surrounding them and the way the Courts have interpreted and applied them. An Established Religion • means that the Government will create and support an official state church…often • tax dollars support that chosen church. • that church’s laws become the law of the land. • the Nation’s leader usually appoint the leading clerics. • often other religions are often excluded. Drafting the First Amendment • “Should we establish a religion or not?” • Thomas Jefferson wrote that there should be “a wall of separation between church and state.” Arguments for Religious Freedom • From the Holy Roman Empire to the Church of England , Spanish Inquisition, Bloody Mary I of England, Crusades, 30 Years War, history indicates that when church and state are linked, all individual freedoms are in jeopardy. • If government is merely an arm of God what power of government is not justified? • What could happen to religious minorities if government and religion were linked? The Establishment Clause 4.2 The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion. Supports the Separation of church and state Two Schools of Thought Separationists • Separationist's argue that a high “wall” should exist between the church and state. Accomodationist • Accomodationist’s contend that the state should not be separate from religion but rather should accommodate it, without showing preference. Examples would include providing financial support for programs. Faith Based Initiatives. Supreme Court Cases that Support the Establishment Clause • Everson v. Board of Education 1947 challenged a New Jersey town for reimbursing parents for the cost of transporting parochial students to school. • In Engel v. Vitale 1962, the Court ruled that even nondenominational prayer could not be required of public school children. Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen. • Wallace v. Jaffree 1985 banned Alabama’s “moment of silence” for meditation or voluntary prayer. Prayer in School • In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a middle school graduation unconstitutional. Coercion Test • Government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so. Santa Fe School District v Doe 2000 • Prior to 1995, a student elected as Santa Fe High School's student council delivered a prayer, described as overtly Christian, over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause of the First Amendment. Lemon v. Kurtzman • In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries. • To be Constitutional the challenged law must • Have a secular purpose (or pertaining to worldly things or to things that are not regarded as religious, spiritual, or sacred) • Neither advance nor inhibit religion • Not foster excessive government entanglement with religion. • In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms. Stone v Graham 1980 Allegheny v ACLU 1989 • First Amendment: Establishment of Religion The first display involved a Christian nativity scene inside the Allegheny County Courthouse. “"Glory to God for the birth of Jesus Christ," • The second display was a large Chanukah menorah, erected each year by a Jewish organization, outside the City-County building. • Did the public displays violate the Establishment Clause of the First Amendment? Lynch v Donnelly 1984 • The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. • The display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene. • Did the nativity scene violate the establishment clause? Endorsement test The endorsement test proposed by United States Supreme Court Justice Sandra Day O'Connor in the 1984 case of Lynch v. Donnelly asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment. Marsh v. Chambers 1983 • Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's chaplaincy practice in federal court. This practice involves the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. Does the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment? Mixed Record The Supreme Court has a mixed track record on Establishment Clause cases. The Court traditionally has allowed so-called "ceremonial deism" - references to a generic higher power with no real specific religious meaning, such as "God save the United States and this honorable Court," which begins every Supreme Court oral argument, or "In God We Trust," our national motto, which is on all U.S. currency. Free Exercise Clause 4.2 Free exercise clause not absolute "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion. This is not absolute Several religious practices have been ruled unconstitutional including: snake handling (State Laws) use of illegal drugs (Employment Division, Department of Human Resources of Oregon, et al. v. Smith et al) Polygamy (State Laws) Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion. State must provide compelling reason to limit exercise of religion "See You at the Pole" Student participation in before or after - school events, such as "see you at the pole," is permissible. School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event. Equal Access Act 1984 – Extracurricular Activities clubs to include bible club, gay/straight alliances federally funded secondary schools. Westside v. Mergens 1990 First Amendment Guarantees: Freedoms of Speech, Press, Assembly, and Petition Freedoms of Speech and the Press Protected Speech and Press Unprotected Speech and Press Freedoms of Assembly and Petition 4.3 Freedoms of Speech and the Press 4.3 Prior restraint Alien and Sedition Acts Censored criticisms of the government Slavery, Civil War speech again censored World War I and anti-government speech Schenck v. United States 1919 The bad tendency test was used by the Court. Engaging in speech that had a tendency to induce illegal behavior was not protected by the 1st Amendment. Justice Holmes defined the “Clear and Present Danger” test in the Schenck case. Brandenberg v Ohio 1968 Protected Speech and Press 4.3 Limiting prior restraint Near v. Minnesota 1931 NY Times v. US 1971 Symbolic speech – Tinker v. Des Moines 1969, Texas v. Johnson 1989, Morse v. Frederick 2007 Hate speech – Westboro Baptist Church – Snyder vs. Phelps 2011 How broad is the right to symbolic speech? 4.3 Unprotected Speech and Press 4.3 Unprotected speech Libel is a written false statement that attacks the character of a person, it is not automatically protected. NY Times v Sullivan 1964 Slander is spoken words that defame the character of a person. In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved. Hustler v Falwell 1998 Fighting words - Chaplisky v. New Hampshire 1942 Unprotected Speech and Press Obscenity - Miller vs. California In order to meet the definition of obscene material articulated in this case, three conditions must be met: 1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest 2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. 3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Freedoms of Assembly and Petition 4.3 Freedom to assemble hinges on peaceful conduct Subject to rules regarding free speech Right to petition government about issues How do we use our right to assemble? 4.3 Explore the Simulation: You Are a Police Officer http://media.pearsoncmg.com/long/long_longman_media _1/2013_mpsl_sim/simulation.html?simulaURL=5 4.3 Second Amendment: Right to Keep and Bear Arms Included to prevent Congress from disarming state militias District of Columbia v Heller(2008) The Court ruled 5 to 4 that the Second Amendment is more than a right of states to maintain militias and does, in fact, protect an individual's right to keep firearms in the home. The right to bear and carry arms a basic right of citizenship 4.4 Rights of Criminal Defendants 4.5 The Fourth Amendment and Searches and Seizures The Fifth Amendment The Fourth and Fifth Amendments: The Exclusionary Rule The Sixth Amendment: Right to Counsel The Sixth Amendment: Jury Trials The Eighth Amendment: Cruel and Unusual Punishment The Fourth Amendment and Searches and Seizures 4.5 Protection from unreasonable searches Warrants Wolf v. Colorado 1949, Schools – TLO v. New Jersey 1985, Stafford v. Redding 2009 Drug tests Work - Employment Division, Department of Human Resources of Oregon v. Smith, 1990 School - Vernonia School District 47J v. Acton, 1995 The Fifth Amendment Protection against self-incrimination Miranda v. Arizona (1966) Right to remain silent Knowledge that what you say can be used against you Right to an attorney present during questioning Right to have an attorney provided if you cannot afford one Rhode Island v Innis 1980 Double jeopardy 4.5 Why was Ernesto Miranda important to the development of defendants’ rights? 4.5 The Fourth and Fifth Amendments: Exclusionary Rule Mapp v. Ohio (1961) Exceptions to the exclusionary rule “Good faith” mistakes Quarles v. NY 1984 Boston bombers 4.5 The Sixth Amendment and Right to Counsel Sixth Amendment right to attorney Gideon v. Wainwright (1963) State must provide attorney for indigent Right to counsel begins with first appearance before a judge 4.5 The Sixth Amendment and Jury Trials Speedy and public trial by impartial jury Right to confront witnesses Jury of peers Racial peers Gender 4.5 The Eighth Amendment and Cruel and Unusual Punishment 4.5 Cruel and unusual punishment not defined Furman v. Georgia (1972) the Court ruled that the death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner. Protecting the wrongfully convicted Gregg v. Georgia 1976 death penalty constitutional. How do states vary in their application of the death penalty? 4.5 Video: In the Real World 4.5 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED IA_1/polisci/presidency/Seg5_CivilLiberties_v2.html Explore Civil Liberties: Should the Government Apply the Death Penalty? 5.4 http://media.pearsoncmg.com/long/long_oconnor_mpsla g_12/pex/pex4.html Right to Privacy Birth Control Abortion Homosexuality 4.6 Birth Control Right of women to obtain contraceptives Griswold v. Connecticut (1965) 4.6 What was the outcome of Griswold v. Connecticut (1965)? 4.6 Privacy Roe v. Wade Prohibits state bans on abortion Planned Parenthood v. Casey (1992) Restrictions cannot place “undue burden” on woman 4.6 Privacy Since Roe, a number of other cases on abortion have been decided, in general they have limited abortion rights in some way. Webster v. Reproductive Health Services (1989) - upheld fetal viability tests Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - The Court ruled 5 to 4 to affirm the central holding of Roe v Wade, that women have a right to have an abortion. Among the new provisions, the law required pre-abortion counseling and a 24 hour waiting period prior to the procedure. A minor (under 18) seeking an abortion required the consent of one parent or Judicial permission. Gonzales v Carhart (2007) “Partial-Birth" Abortion: The Court, voting 5 to 4, upheld a federal law banning so-called "partial birth abortions.” Homosexuality 4.6 Right to privacy extends to private sexual behavior Lawrence v. Texas (2003) Boy Scouts v. Dale 2000 Which case led to greater discussion of gay rights issues? 4.6 Video: Thinking Like a Political Scientist 4.6 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED IA_1/polisci/presidency/Seg3_CivilLiberties_v2.html Toward Reform: Civil Liberties and Combating Terrorism The First Amendment The Fourth Amendment Due Process Rights 4.7 The First Amendment USA PATRIOT Act Limits on freedom of speech Constraints on media Balance between national security and civil liberties USA Freedom Act 4.7 The Fourth Amendment The USA PATRIOT Act and impact on illegal search and seizure Private records Search of private property Collection of foreign intelligence Who is sending and receiving communications 4.7 Due Process Rights & Terrorism 4.7 Rasul v. Bush 2004 – The court ruled that the principle of habeas corpus requires that terrorist detainees must have access to federal courts if held in a territory that is functionally part of the United States. Hamdi v. Rumsfeld 2004 – The court ruled that a U.S Citizen held as an enemy combatant is entitled to due process. Hamdi was arrested in Afghanistan and detained in a Virginia Prison. As a citizen Hamdi had the right to contest his detention before a neutral authority. Hamdan v. Rumsfeld 2006 – The court held that military commissions were improperly established by the president, without Congressional authorization. Boumediene et al. v. Bush 2008 – The court ruled that prisoners at Guantanamo Bay have a constitutional right to go to federal court to challenge their continued detention. What are living arrangements like for detainees? 4.7 Discussion Question Overall, have the Court’s rulings on civil liberties strengthened citizens’ rights or weakened them in favor of government restrictions? Are there any notable trends over time? 4 Video: So What? 4 http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA _1/polisci/presidency/OConner_Ch04_Civil_Liberties_Seg6_v 2.html Further Review: On MyPoliSciLab Listen to the Chapter Study and Review the Flashcards Study and Review the Practice Tests 4