Civil Liberties

• -definition
• -historical roots
• -3 “P’s”: privacy, political, punishment
• -selective incorporation

• freedoms from government
• limits on what government can legally do to individuals
• “negative” rights -- not freedom “to” but rather freedom “from”
• contrast with civil rights (freedoms guaranteed by government)

• based in classical liberal political theory
• individual is key element in society
• Brandeis: “Those who won our independence believed the final end of the state was to make men free to develop their [personal] faculties.”
• ironically perhaps, grows out of both
• British traditions
• reaction to British abuses in the colonies

• Magna Carta (1215)
• first written limits on king
• included guarantees of due process, local and speedy trials, no cruel or unusual punishments
• turbulent 1500s brought era of numerous abuses in Britain
• Protestant v Catholic, Crown v Parliament
• Elizabeth (1998)

• examples of abuses:
• inquisitional courts (Star Chamber)
• government = accuser, prosecutor, judge, and jury
• “In the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears…”
• no protection against self incrimination … torture
• Massachusetts was “enlightened”
• torture only after confession (accomplices)
• couldn’t be “barbarous or inhumane”
• general search warrants (writs of assistance)
• used extensively to catch smugglers

• British abuses led to calls for explicit bill of rights in the Constitution
• Antifederalist
• Founders opted not to include it in original
• saw Constitution as establishing limited government with enumerated powers
• Bill of Rights added in First Congress

• Bill of Rights outlines three basic types of civil liberties:
• Privacy
• Participation
• Punishment

• right to be left alone by government
• based on 1 st , 3 rd , and 4 th Amendments
• 1 st : speech, press, religion, assembly
• 3 rd : quartering of troops
• 4 th : “unreasonable searches and seizures”
• “persons, houses, papers, and effects”
• no general writs
• Griswold v CT (1965)
• “penumbral” right to privacy

• based originally on Article 1 and 1 st
Amendment
• “the House of Representatives shall be composed of Members chosen every second Year by the People of the several
States….”
• “Congress shall make no law respecting … the right of the people … to petition government for a redress of grievances.”
• Baker v. Carr – One Person, One Vote

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

• Time, place, or manner restrictions
• These get the lowest level of scrutiny and are usually upheld, unless their requirements have an especially burdensome impact on speech. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another).
• Content-based restrictions
• Restrictions that require examining the content of speech to be applied must pass strict scrutiny.
• Viewpoint-based restrictions
• Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are almost always overturned, unless they fall into one of the courts special exceptions.

• Holmes’ clear and present danger test
• Speech that presents a clear and present danger may also be restricted. The canonical example, enunciated by Justice Oliver Wendell Holmes, is falsely yelling "Fire!" in a crowded movie theater.
The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content.
• Flag burning case: Texas v. Johnson
• Other Exceptions:
• Obscenity: Justice Potter Stewart famously quipped: “I know it when I see it.”

• Types of speech
• Political Speech Almost All Protected
• Exception? McCain-Feingold
• Libel (slander)
• Obscenity
Partial
Partial
• Symbolic Speech Partial
• Commercial Speech Not Protected

• Centrality of Political Speech
• Though not absolute, freedom of expression occupies a higher, or more preferred position than other constitutional rights
• Within expression, political speech has a preferred position
• Buckley v. Valeo: contributions to candidates are political speech
• Cannot limit spending of own money
• Can limit but not prevent contributions to candidates (exception: corporations)

• CFR (1970’s):
• Federal Election Campaign Act (FECA)
• provisions included new, stricter and more comprehensive contribution and expenditure limits for campaigns and other committees, full public financing for presidential general election campaigns, and, for the first time, an independent agency to enforce campaign finance laws:
• the Federal Election Commission

• CFR (2000’s):
• Bipartisan Campaign Reform Act of 2002
• It eliminated all soft money donations to the national party committees
• but it also doubled the contribution limit of hard money, from $1,000 to $2,000 per election cycle, with a built-in increase for inflation.
• In addition, the bill aimed to curtail so called
"issue ads" by banning the use of corporate or union money to pay for broadcast advertising that identifies a federal candidate within 30 days of a primary or nominating convention, or 60 days of a general election.

• No Prior Restraint
• Can the government stop speech before it happens?
• If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must:
• clearly define what's illegal
• cover the minimum speech necessary
• make a quick decision
• be backed up by a court
• bear the burden of suing and proving the speech is illegal
• and show that allowing the speech would "surely result in direct, immediate and irreparable damage to our Nation and its people"
• Precedents
• Near v. Minnesota (1931)
• NY Times vs. USA (Pentagon Papers)

• Vagueness
• If there are restrictions on expression, how clear must a law be?
• Chilling Effect
• The ordinance in question must fall because in certain respects "men of common intelligence must necessarily guess at its meaning."
• Precedent
• Hynes v. Mayor and Council of Oradell (1976)
• Least Drastic Means
• If it is necessary to limit expression, in what way should it be done?
• The least drastic way possible…
• Precedent
• Nebraska Press Association v. Stuart (1976)

• Content Neutral
• Any restriction on speech must be neutral
• Must not favor any one group over another
• A city ordinance which prescribes no appropriate standard for administrative action and gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the city streets is invalid under the First and
Fourteenth Amendments.
• Precedent
• Kunz v. New York (1951)

• Establishment Clause
• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
• Wall of Separation
• Not only no national religion, no government involvement with religion
• Precedent
• Lemon v. Kurtzman (1971)

• The Lemon Test:
• State laws must have a secular legislative purpose
• State laws must not have an effect that advances or hinders a particular religion
• Laws must not promote an ‘excessive’ government entanglement with religion
• Future uncertain: Court has moved away from
Lemon towards more of a ‘balancing’ test

• Free Exercise Clause
• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
• Clearer than establishment clause, but still ambiguous
• US Congress cannot regulate religion
• States cannot regulate religion
• Also cannot pass a law that puts undue burden on a religion
• Precedent
• Jehovah’s Witnesses
• Santeria

• expanded in 19 th and 20 th centuries
• 15 th amendment (1870) – right to vote
• 17 th amendment (1913) – direct election of senators
• 19 th amendment (1920) – women’s right to vote
• 24 th amendment (1964) – eliminates poll tax
• 26 th amendment (1971) – right of eighteen year olds to vote
• series of court cases (Baker v Carr and its progeny) enforcing one person-one vote

• protection from arbitrary, capricious, abusive or inhumane treatment of those accused or convicted of crimes
• limit government’s ability to use criminal procedure for political ends
• based on 4 th , 5 th , 6 th , 7 th , and 8 th amendments

• 5 th amendment = indictments require grand jury, no self incrimination, no double jeopardy, due process, just compensation
• 6 th amendment = trial by jury in criminal cases
• public, impartial, speedy, local, face accusers, compel witnesses, access to counsel
• 7 th amendment = jury trial in major civil cases
• 8 th amendment = no excessive bail; no cruel and unusual punishments

• difficult questions include:
• death penalty (Furman v GA; Gregg v GA)
• discriminatory? (McCleskey v GA); minors; mentally impaired
• “good faith” exceptions to search and seizure
• exceptions to self incrimination
• public safety (NY v Quarles)
• how impartial do juries have to be?
• who can be excluded
• when should counsel be provided?

th
• “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

• Privacy – protection against unreasonable searches & seizures through warrant requirement
• Punishment – Exclusionary Rule: evidence gathered in violation of the Constitution cannot be used in a trial.
• Caveat – applies only to government; it does not guarantee the right to be free from unreasonable searches and seizures conducted by private citizens or organizations (i.e. “Cheaters”).

• The 4 th Amendment requires the government to obtain a valid warrant in order to conduct a search or a seizure.
• Valid warrants must establish “probable cause” – reasonable belief that a search or seizure would produce contraband or reveal a criminal activity
• Exceptions
• Plain View
• Search incident to arrest

• Exclusionary Rule (Weeks v. United
States) – evidence obtained through an illegal search is “fruit of the poisoned tree” and thus cannot be used at trial.
• Exceptions:
• “Good Faith” – evidence collected through a defective warrants could be used where police reasonably believed it to be a good warrant
(United States v. Leon)
• “Inevitable Discovery” – evidence collected illegally may be admitted at court if it can be reasonably argued the evidence would have been obtained legally

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.”

• Double Jeopardy – individuals may be tried only once for a particular offense
• Self-Incrimination – protects witnesses from being forced to incriminate themselves.
• To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence
• Due Process – the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property
• Due process embraces “fundamental fairness” & those fundamental rights that are "implicit in ordered liberty.“
• Notification of charges against you, right to be heard, etc.

• Fifth Amendment
• No self-incrimination
• Miranda v. Arizona (1966)
• ‘Voluntary Confessions’: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way."
• Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?
• The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards
"effective to secure the privilege against self-incrimination."
• Miranda Rights

• The Fifth Amendment limits the power of eminent domain (the power of the government to take private property for public use) by requiring that "just compensation" be paid if private property is taken for public use.
• What is “public use”?
• Kelo v. City of New London – private property seized for commercial use did not violate the Fifth Amendment.

• Eighth amendment: “Cruel & Unusual Punishment”
• Furman v. Georgia
• The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the
Constitution.
• However, it left the door open for states to put in place procedural safeguards that could permit the death penalty to pass constitutional muster.
• Gregg v. Georgia
• In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth
Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed.

Is there a right to Privacy?
• Griswold v. Connecticut (1965)
• “a right to privacy older then the Bill of Rights”
• Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy.
• Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations.
• Roe v. Wade (1973)
• a “woman’s right to privacy was so fundamental it could be infringed only when the state interest in doing so was compelling”
• The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the
Fourteenth Amendment.
• The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters.
• As a result, the laws of 46 states were affected by the Court's ruling.

• as originally written, Bill of Rights applied only to the national government
• 1st Amendment: “Congress shall make no law….”
• Madison proposed language to include states
• “no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases”
• but never adopted
• Barron v Baltimore (1833) – Court is explicit

• 14 th Amendment (1868)
• “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or property without due process of law”
• did this mean Bill of Rights applies to states?
• Supreme Court originally said it did not
• e.g., Twining v New Jersey (1908)

• Supreme Court begins to change in
1920s
• Gitlow v NY (1925) … socialist manifesto
• Supreme Court upholds conviction
(“dangerous tendency” test) … but holds that 14 th amendment extends 1 st amendment to states
• Near v MN (1931) … overturns prior restraint of Saturday Press to publish
“malicious, scandalous, and defamatory” statements

• since Gitlow and Near, Supreme Court has selectively incorporated most elements of Bill of Rights
• assembly (DeJonge v OR, 1937)
• religion (Cantwell v CT, 1940)
• public trial (In re Oliver, 1948)
• search and seizure (Wolf v CO, 1949)
• exclusionary rule (Mapp v OH, 1961)
• involved girlfriend of Don King

• cruel/unusual punishment (Robinson v CA, 1962)
• right to counsel (Gideon v Wainwright, 1963)
• self-incrimination (Malloy v Hogan, 1964)
• confront witnesses (Pointer v TX, 1965)
• impartial trial (Parker v Gladden, 1966)
• speedy trial (Klopfer v NC, 1967)
• compel witnesses (Washington v TX, 1967)
• jury trial (Duncan v LA, 1968)
• double jeopardy (Benton v MD, 1969)

• rationale = “fundamental to the American scheme of justice” (Duncan v LA, 1968)
• prominent items not incorporated
• right to keep and bear arms (2nd amendment)
• quartering troops (3rd amendment)
• jury trial for civil suits (7th amendment)
• also:
• part of 5th (grand jury) and 8th (excessive bail)

• Barron v. Baltimore (1833)– Bill of Rights does not apply to the States
• Supreme Court overturns Barron & Twining -adopts incorporation doctrine.
• Incorporation is legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth
Amendment.
• Selective Incorporation – the incorporation doctrine has been applied piecemeal, incorporating portions of BofR one at a time.
• Gitlow v. New York (1925) – 1 st amendment
• Wolf v CO (1949) – search & seizure
• Mapp v. Ohio (1961) – exclusionary rule