Bell Ringer
• The SROs bring the drug dogs who
alert on your locker. Without your
permission, administration searches it.
Were your rights violated? Explain.
• You sew a flag to the seat of your
pants to show displeasure with the
government. The school suspends you.
Were your rights violated? Explain.
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Civil Liberties
Introduction
• In the first scenario, the officers have
“reasonable suspicion” and thus
administrators do have the right to
reasonably search you
• In the second scenario, you have the
right to wear the flag in a
“contemptuous” manor (with few
exceptions) and cannot be suspended
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Introduction
• When you claim that your rights have
been violated, keep this in mind:
– The Founding Fathers created a
document stating what the federal
government could do, not what
state/local governments couldn’t do
– They believed that the Constitution was
so limiting that a Bill of Rights wasn’t
even necessary
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Introduction
• Because the states feared the federal
government would become too power
hungry, they forced the creation of the
Bill of Rights
– The states never dreamed that they would
one day be forced to adhere to the Bill of
Rights themselves
– They had planned on writing their own Bill
of Rights into their state constitutions (like
VA had)
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Politics, Culture,
and Civil Liberties
• The Bill of Rights protects us from
two things: the (federal) government
and ourselves
• With this in place, why do some issues
become huge while others stay in the
background?
– Rights are conflicting
– Policy entrepreneurs
– Cultural Conflicts
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Politics, Culture,
and Civil Liberties
• Conflicting Rights
–A local KKK group decides to stand
on a corner in Paramore and spew
racists remarks, the police
intervene—freedom of speech or
preservation of public order?
7
Politics, Culture,
and Civil Liberties
• Policy Entrepreneurs
– People try to generate support for a cause (ex:
freedom of speech)
– In times of crisis the government has been able
to limit liberties
• Sedition Act (1789)—Quasi War
• Espionage and Sedition Act (1917-1918)—WWI,
fear of spies/radicals
• Smith Act (1940), Internal Security Act (1950)
Communist Control Act (1954)—WWII/Korean
War/McCarthyism, fear of spies trying to subvert
the US government
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Politics, Culture,
and Civil Liberties
• Policy Entrepreneurs
–Courts often uphold such restriction
during the time of crisis and overturn
them after the crisis
–Today, the Court has been more
restrictive on Congress’ ability to
limit speech/liberties
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Politics, Culture,
and Civil Liberties
• Cultural Conflicts
– America’s heritage is synonymous with White-Anglo
Protestantism, yet our culture has become a melting
pot in modern times
– So, do we honor our heritage by putting a nativity
scene in front of the county court house, or do we
respect the wishes of the other cultures that live here
and keep Christianity away from government
property?
– Should we teach students in both Spanish and
English?
– Should the Boy Scouts be forced to allow homosexuals
to be Scout leaders?
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Interpreting and Applying
the First Amendment
• The two most contested parts of the
First Amendment are freedom of
expression and freedom of religion
• Under freedom of press, William
Blackstone said the press should be
free from prior restraint—the
government can’t deny right to print
something before it is printed
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Interpreting and Applying
the First Amendment
• Blackstone also pointed out that
the aftermath is another issue
–If a paper prints something
“improper, mischievous, or illegal”
they should face the consequences
–Sedition laws didn’t stand because
they invoke prior restraint
12
Interpreting and Applying
the First Amendment
• There is some conflicting wording in the
Constitution: one part allows for Congress to
do what is “necessary and proper” for
America, the other says they shall make “no
law” restricting First Amendment freedoms
• The Supreme Court established the Clear and
Present Danger test: If the words are being
used to establish a clear and present danger to
the people, Congress can prohibit them
13
Interpreting and Applying
the First Amendment
• Justice Holmes added that the
Constitution does NOT protect a
person “falsely shouting fire in a
theatre and causing a panic”
• This is why it is not legal for the press
to disclose secret military positions (if
they know them) since it creates a
danger for the soldiers
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Interpreting and Applying
the First Amendment
• Certain parts of the Bill of Rights are forced on the
states by the Fourteenth Amendment
– “No state shall…deprive any person of life, liberty or
property, without due process of law”
– Prior to Gitlow v. New York (1825) the Court had only
applied the Fourteenth to the federal government
• Justice Taft said that these rights are “fundamental
personal rights” that the STATE cannot infringe upon
• The Second Amendment is not included in these “forced”
rights—it is currently being debated in courts around the
country
15
What is Speech?
• There are four types of speech that
are not automatically granted
constitutional protection:
• Libel
• Obscenity
• Symbolic
• False Advertising
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What is Speech?
• Libel: a written
statement that defames
the character of
another person (if its
orally stated, it’s
slander)
– You must show that you
have suffered, the
statement was false, and
it was printed with
malice
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What is Speech?
• Obscenity– Not protected by the
Supreme Court
– Court says that because
it has no social value,
such as political or
literary interests, it can
be regulated by the
state
– Therefore, each state
has their own version of
obscenity laws
So, would this be considered obscene?
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What is Speech?
• Symbolic Speech• Can you burn the American
flag?
– Yes! In Texas v. Johnson flag
burning was ruled as protect
speech because it was symbolic
– Can you claim that anything is
protected speech-NO!
• The Court has also said that
burning a draft card to make a
point is illegal because the
government does have the right
to instate a draft and therefore
burning government property is
unacceptable
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Who Is a Person?
• If a person has right to speech and
publication, what about companies and
children?
– Yes and yes
• “Corporations and other associations, like
individuals, contribute to the ‘discussion,
debate, and the dissemination of information
and ideas’ that the First Amendment seeks to
foster.”
– Also, the right to speak includes the choice of
what not to say
20
Who Is a Person?
• Do you lose your First Amendment rights when you
come through the door?
– No!
• Hazelwood v. Kuhlmeier says that students do not
“shed their constitutional rights to freedom of
speech at the schoolhouse gate”
– You cannot be punished for expressing personal views
– However, you cannot impeded “the education mission
of the school” AND you cannot use school-sponsored
activities (plays, newspapers, curriculum)
• In other words, these activities can be controlled as long as
the controls are “reasonably related to legitimate
pedagogical concerns.”
21
Church and State
• The First Amendment does NOT
establish “separation of church and
state”
• This portion of the 1st Amendment
has 2 parts
–Free-exercise clause
–Establishment clause
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Church and State
• Free-exercise: Congress shall make no law
prohibiting the “free exercise” of religion
– Government cannot ban religious practices OR
impose greater burdens on some churches and
not others
• They cannot create a license fee for doing door-todoor solicitation because that would negatively
impact Jehovah’s Witnesses
• Court ruled that Hialeah, FL cannot ban animal
sacrifices by those practicing Santeria because it
would be specifically targeting that religion and its
practice
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Church and State
• That doesn’t mean you can do whatever
you want and call it religious practice
– If it is already a crime (murdering humans)
you cannot hide from the law if you want to
sacrifice humans
– In areas where there is compulsory
vaccinations, you have to get vaccinated,
even if your religion is against medicine
• Many things fall under the religious
argument when you start questioning it
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Church and State
• Establishment Clause: Congress shall
make no law “respecting an
establishment of religion”
– The original line was “no national
religion shall be established”
– That would have been easier—the Court
has decided that our current wording
means that government will have NO
involvement with religion at all
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Church and State
• This was tested in 1947
– A town in NJ was sued for reimbursing parents
for the cost of taking kids to school (no public
busses available), in particular, the parents who
sent their kids to a Catholic school
– Court found in favor of the school district saying
bussing was religiously neutral (despite going to
a religious school)
• However, it did include that the government cannot
profess belief or disbelief in a religion; cannot aid
one, some, or all religions, cannot tax in support of
any/all religious institutions
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Church and State
Can-dos
• Give tax exemption for
tuition of kids at private
school
• Provide funds for building
private school buildings, or
gathering materials
No-Nos
• Church leader cannot lead
prayer at graduation
• Cannot impede teaching
evolution OR force teaching
of creationism
• Can’t take time out of day to
teach religious courses
• Can’t pray before football
games
• Can’t pay salaries of teachers
at private schools
• Can’t create special district
for religious group(s)
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Church and State
• General rule of thumb to follow:
– Government involvement IS
constitutional if it meets these tests:
1. It has a secular purpose
2. Its primary affect neither advances nor
inhibits religion
3. It does not foster an excessive
government entanglement with
religion
28
Crime and Due Process
• Most countries in the world believe that
even if evidence in a crime was collected
incorrectly by the police, it can still be
used against you, and the office will be
punished for his mishandling
– In the United States we believe that
evidence that is not “above reproach”
should not be used against you
– This is called the exclusionary rule
29
Crime and Due Process
• This issue wasn’t challenged until 1949
– The Court said that evidence should NOT be
exclude from trial-rather, the officer should be
punished
– However, in Mapp v. Ohio, 1961 the Court
changed it’s mind
• Police in OH broke in to a home looking for drugs,
arrested the home owner for possession of obscene
material instead—Court said this was an
unreasonable search and seizure (they had ample
time to get a warrant) and therefore the evidence
couldn’t be used
30
Crime and Due Process
• There are only three times when it is okay for an
officer to execute a search:
1.
2.
3.
You give them permission
They have a search warrant (proven probably cause
to a judge)
You are being arrested (committed a crime or are in
process—reasonable suspicion/expectation a crime
will be committed)
• Once arrested they can search:
1.
2.
3.
You
Things in plain view
Things or places under your immediate control
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Crime and Due Process
• What is “in plain view” or “under your control”?
– The room you are in, open fields, your car (to include
passengers in your car, bags, closed areas, etc.)
• Court attempts to protect from searches that occur
places with “reasonable expectation of privacy”
– Your body (they can’t make you have surgery to
remove bullet that could be evidence
• They can make you take a breathalyzer test
– If you work for the government they can’t search your
desk unless they are looking for work related stuff
– If you work for a private company, they CAN search
“your” area
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Crime and Due Process
• With the good-faith exception evidence will not be
thrown out if the police have a warrant that was
not issued properly (they wouldn’t know that the
judge used the wrong form, for example)
– The Court also upheld that if it can be proven that the
evidence would (reasonably) have inevitably been
discovered, it can still be used
• “Right to privacy” doesn’t constitutionally exist
– Some people hope the Court will develop that right (is
it the Court’s place to do this?)
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Homework
• Study for test next
week!
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