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