Chapter Four
CIVIL LIBERTIES
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Our State Standard Today
GC.7 Analyze how the Bill of Rights limits the powers of the federal
government and state governments. (P)
GC.8 Assess the claims, reasoning, and evidence of various authors
to analyze the tensions within our constitutional democracy and
the importance of maintaining a balance between the following
concepts: (H, P)
· Liberty and equality
· State and national authority in a federal system
· Civil disobedience and the rule of law
· Freedom of the press and censorship
· Relationship of religion and government
· Relationship of legislation and morality
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Learning Outcomes (Our Objectives Today)
3
1. Explain the origin of the Bill of Rights and
discuss how these rights were applied to
the states.
2. Explain how the Bill of Rights protects
freedom of religion while maintaining a
separation between the state and
religion.
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Learning Outcomes (Our Objectives Today)
4
3. Discuss the concept of privacy rights
and give examples of how individual
privacy is protected under the
Constitution.
4. Identify the rights of the accused and
discuss the role of the Supreme Court
in expanding those rights.
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Introduction
5
 Civil liberties: personal freedoms protected
for all individuals

Restraints on government actions
 Americans protected by Bill of Rights


First ten amendments to Constitution
Broad guidelines, not specific laws
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The Bill of Rights
6
 Colonists feared a tyrannical government
 Bill of Rights added by Framers to limit
national government
 In practice, shaped by judicial interpretation


Must balance personal freedoms with rights of all
citizens
Early conflict over issue of limiting state
government powers
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The Bill of Rights
7
 Extending the Bill of Rights to state
governments


Barron v. Baltimore
Most states had own bill of rights, but still subject
to judicial interpretation
 Incorporation of Fourteenth Amendment


Incorporation theory: most Bill of Rights
protections apply to state governments
Gitlow v. New York
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Barren vs Baltimore
“An 1833 case involving a land dispute in Baltimore led to a holding
from the Supreme Court that the Bill of Rights applied only to the
federal government and not to the states. Above, a map of the city of
Baltimore from the early 19th century.”
http://www.pbs.org/wnet/supremecourt/antebellum/landmark_barron.html
Gitlow v. New York
“Case in which the U.S. Supreme Court ruled on June 8, 1925, that the
U.S. Constitution’s First Amendment protection of free speech, which states
that the federal “Congress shall make no law…abridging the freedom of
speech,” applied also to state governments. The decision was the first in
which the Supreme Court held that the Fourteenth Amendment’s due
process clause required state and federal governments to be held to the
same standards in regulating speech.”
http://www.britannica.com/EBchecked/topic/1508178/Gitlow-v-New-York
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The Fourteenth Amendment
“Ratified in 1868, has generated more lawsuits than any other provision of the U.S.
Constitution. Section 1 of the amendment has been the centerpiece of most of this
litigation. It makes "All persons born or naturalized in the United States" citizens of
the United States and citizens of the state in which they reside. This section also
prohibits state governments from denying persons within their jurisdiction the
privileges or immunities of U.S. citizenship, and guarantees to every such person
due process and equal protection of the laws. The Supreme Court has ruled that any
state law that abridges Freedom of Speech, freedom of religion, the right to trial by
jury, the Right to Counsel, the right against Self-Incrimination, the right against
unreasonable searches and seizures, or the right against cruel and unusual
punishments will be invalidated under section 1 of the Fourteenth Amendment. This
holding is called the Incorporation Doctrine.”
http://legal-dictionary.thefreedictionary.com/fourteenth+amendment
What is significant about the year 1868?
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Incorporating the Bill of Rights into the
Fourteenth Amendment (Page 111)
10
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Freedom of Religion
11
 The separation of church and state –The
Establishment Clause







Aid to church-related schools
School vouchers
School prayer—Engel v. Vitale
Prayer outside the classroom
The Ten Commandments
Teaching evolution
Religious speech
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Engel vs Vitale – 1962
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and our Country.” If a public school
student were to say this non-denominational prayer quietly to herself, there would be
no constitutional conflict. If a group of students were to assemble before school and
say this prayer aloud, there would be no constitutional conflict. But what if all public
schools in a state began the day with a formal recitation of this prayer? Known as the
“Regents Prayer” this invocation was used to open the school day in New York
public schools for much of our nation’s history. Students who did not wish to say it
could choose to remain silent or stand outside the room, and face no penalty. This
practice was challenged in the landmark Supreme Court case Engel v. Vitale. (1962).
The First Amendment says “Congress shall make no law respecting an
establishment of religion.” This was originally added to the Constitution to keep the
federal government from establishing a national religion, and to stop it from
interfering with establishments of religion in the states. Today, the amendment is
often used to keep religion out of government spaces such as public schools,
libraries, and courtrooms. Challenges to religion in schools grew in the Twentieth
Century for two reasons: The growth of public schools in the twentieth century,
combined with the Supreme Court’s use of the Fourteenth Amendment to apply First
Amendment limitations to the states. In Engel v. Vitale, the Court ruled that for public
schools to hold official recitation of prayers violated the Establishment Clause.
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Questions
What was the “Regents’ Prayer”?
What was the original reason for adding the Establishment Clause to the
Constitution?
Why did challenges to religion in schools grow during the twentieth century?
How did the Supreme Court rule in Engel v. Vitale (1962), and why?
In his dissent, Justice Potter Stewart wrote, “ With all respect, I think the Court
has misapplied a great constitutional principle. I cannot see how an ‘official
religion’ is established by letting those who want to say a prayer say it. On the
contrary, I think that to deny the wish of these school children to join in reciting
this prayer is to deny them the opportunity of sharing in the spiritual heritage of
our Nation.”
http://billofrightsinstitute.org/resources/educator-resources/lessons-plans/landmark-cases-and-theconstitution/engel-v-vitale-1962/
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Freedom of Religion
14
 The Free Exercise Clause



What defines religious practice?
Oregon v. Smith
Religious Freedom Restoration Act (1993)


National, state and local governments must work to
accommodate religious conduct
Overturned by City of Boerne v. Flores
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Oregon vs Smith (1990)
Respondents Alfred Smith and Galen Black were fired from their jobs with a private
drug rehabilitation organization because they ingested peyote for sacramental
purposes at a ceremony of the Native American Church, of which both are members.
When respondents applied to petitioner Employment Division for unemployment
compensation, they were determined to be ineligible for benefits because they had
been discharged for work-related "misconduct".
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html
Justice SCALIA delivered the opinion of the Court
The Free Exercise Clause of the First Amendment, which has been made
applicable to the States by incorporation into [p877] the Fourteenth Amendment,
see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof. . . . " U.S. Const. Am. I (emphasis added). The free exercise of
religion means, first and foremost, the right to believe and profess whatever
religious doctrine one desires. Thus, the First Amendment obviously excludes all
"governmental regulation of religious beliefs as such."
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html
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Boerne v. Flores (1997)
Boerne involved the proposed expansion of a Catholic church in Boerne,
Texas. The church, built in 1923, was an historic, mission-style structure
designated as a landmark by the city, which had nonetheless become too
small for its growing parish. The Catholic Archbishop of San Antonio, Patrick
Flores, applied for a permit to expand the church, but the City of Boerne
denied it, maintaining that the church qualified as a historic structure under
the city's historic preservation ordinances, and that local zoning laws
forbade the expansion.
In Boerne v. Flores (1997), the Supreme Court ruled that Congress
exceeded its authority when it passed a law that, among other things,
prohibited the states from regulating religious uses of land.
http://www.pbs.org/wnet/supremecourt/democracy/landmark_boernes.html
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Freedom of Expression
17
 Free speech and free press without
government interference
 No prior restraint

New York Times v. U.S. (Pentagon Papers)
 WikiLeaks
 Protection of symbolic speech
 Protection of commercial speech

Citizens United v. FEC
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New York Times Co. v. United States
[The Pentagon Papers Case]
“The United States sought to enjoin the New York Times and the Washington Post
newspapers from publishing contents of a confidential study about the Government’s
decision making with regards to Vietnam policy.”
Ruling
“The responsibility must be where the power is. The Executive must have the large
duty to determine and preserve the degree of internal security necessary to exercise
its power effectively. The Executive is correct with respect to some of the documents
here, but disclosure of any of them will not result in irreparable danger to the public.
The United States has not met the very heavy burden, which it must meet to warrant
an injunction against publication in these cases.”
http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-sullivan/freedom-ofspeech-how-government-restricts-speech-modes-of-abridgment-and-standards-of-review/new-yorktimes-co-v-united-states-the-pentagon-papers-case/2/
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Citizens United vs FEC
“Political spending is a form of protected speech under the First Amendment, and the
government may not keep corporations or unions from spending money to support or
denounce individual candidates in elections. While corporations or unions may not
give money directly to campaigns, they may seek to persuade the voting public
through other means, including ads, especially where these ads were not broadcast.”
http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/
What was Citizens United?
During the 2008 election, a conservative non-profit organization named "Citizens United" produced
Hillary: The Movie, a documentary critical of then-Sen. Hillary Clinton. Because of the political nature
of the movie and the fact that Citizens United intended to purchase airtime on a video on-demand
service on cable television, the movie was deemed an "electioneering communication" by the Federal
Election Commission (FEC) and was therefore subject to the rules governing the production of
political ads, including limitations on who may fund them. Citizens United sued in federal court to
overturn the decision, lost and appealed to the Supreme Court.
Why does this matter? What do you think
this means for future elections?
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Freedom of the Press
20
 Defamation in writing



Libel
Public figures must meet higher standards
New York Times v. Sullivan (1964)


Actual malice must take place
Made it difficult to prove libel for public figures
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New York Times vs Sullivan
It was 1960 and the Civil Rights Movement was gaining strength. Civil rights leaders
ran a full-page ad in the New York Times to raise funds to help civil rights leaders,
including Martin Luther King, Jr. Sixty well-known Americans signed it. The ad
described what it called “ an unprecedented wave of terror” of police actions against
peaceful demonstrators in Montgomery, Alabama. What it described was mostly
accurate, but some of the charges in the ad were not true. For example, the ad said
that police “ringed” a college campus where protestors were, but this charge was
exaggerated. The ad also contained the false statement: “When the entire student
body protested to state authorities by refusing to re-register, their dining hall was
padlocked in an attempted to starve them into submission.”
L.B. Sullivan was one of three people in charge of police in Montgomery. He sued
the New York Times for libel (printing something they knew was false and would
cause harm). The ad did not mention Sullivan’s name. But Sullivan claimed that the
ad implied his responsibility for the actions of the police. He said that the ad
damaged his reputation in the community. In the Alabama court, Sullivan won his
case and the New York Times was ordered to pay $500,000 in damages.
In a unanimous decision, the United States Supreme Court ruled in favor of the
New York Times. In order to prove libel, a “public official” must show that the
newspaper acted “with ‘actual malice’–that is, with knowledge that it was false
or with reckless disregard” for truth.
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New York Times vs Sullivan
Questions
Why did L. B. Sullivan sue the New York Times?
How did the Court rule?
What was the Court’s reasoning?
Do you agree with the Court?
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Freedom of the Press
23
 Free press versus a fair trial: gag orders


Right of a defendant to a fair trial supersedes
right of public to “attend” the trial
Court permits press to publish factual information
 Films, radio and TV:

No longer limited to print media, though
broadcast media do not receive identical
protections
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The Right to Assemble and to
Petition the Government
24
 First Amendment guarantees
 Supreme Court: state and local governments
cannot bar individuals from assembling


Nazi Party
Westboro Baptist Church
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Westboro Baptist Church
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Westboro Baptist Church
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More Liberties Under Scrutiny:
Matters of Privacy
27
 No explicit Constitutional right to privacy, but
is interpretation by Supreme Court


First, Third, Fourth, Fifth, Ninth and Fourteenth
Amendments imply “zones of privacy”
Griswold v. Connecticut (1965)
 Privacy rights in an information age
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Griswold vs Connecticut (1965)
In Griswold v. Connecticut (1965), the Supreme Court ruled that a state's ban on the
use of contraceptives violated the right to marital privacy. The case concerned a
Connecticut law that criminalized the encouragement or use of birth control. The
1879 law provided that "any person who uses any drug, medicinal article or
instrument for the purposes of preventing conception shall be fined not less than
forty dollars or imprisoned not less than sixty days." The law further provided that
"any person who assists, abets, counsels, causes, hires or commands another to
commit any offense may be prosecuted and punished as if he were the principle
offender."
http://www.pbs.org/wnet/supremecourt/rights/landmark_griswold.html
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More Liberties Under Scrutiny:
Matters of Privacy
29
 Privacy rights and abortion



Roe v. Wade (1973)
Webster v. Reproductive Health Services
Planned Parenthood v. Casey
 The controversy continues
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Roe v Wade
““We … acknowledge our awareness of the sensitive and emotional nature of the
abortion controversy, of the vigorous opposing views, even among physicians, and
of the deep and seemingly absolute convictions that the subject inspires.”
— Justice Blackmun (1973), majority opinion in Roe v. Wade
Jane Roe was an unmarried and pregnant Texas resident in 1970. Texas law made
it a felony to abort a fetus unless “on medical advice for the purpose of saving the
life of the mother.” Roe filed suit against Wade, the district attorney of Dallas County,
contesting the statue on the grounds that it violated the guarantee of personal liberty
and the right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. In deciding for Roe, the Supreme Court invalidated any
state laws that prohibited first trimester abortions”
http://www.streetlaw.org/en/landmark/cases/roe_v_wade
Abortion continues to be one of the leading issues in political
campaigns and each party's Platform.
What is the stance of the Democratic party on the topic of abortion? Why
does the Democratic party take that stance?
What is the stance of the Republican party on the topic of abortion? Why
does the Republican party take that stance? How how does this issue rate in
importance to you in future elections you will be voting in?
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More Liberties Under Scrutiny:
Matters of Privacy
31
 Privacy rights and the “right to die”



Karen Ann Quinlan case
Living wills
Physician-assisted suicide
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Karen Ann Quinlan
“On April 14, 1975, after an evening out with friends during which she consumed
alcohol and sedatives, the 21-year-old New Jersey resident stopped breathing and
lapsed into a coma. After five months, doctors diagnosed Quinlan as being in a
persistent vegetative state; her parents, who believed there was no chance of her
returning to consciousness and who wanted to end her suffering, requested that
Quinlan be disconnected from the machines that were sustaining her. When her
doctors refused, they took the case to court — in what became one of the the first
"right to die" case in U.S. legal history. Based on the right to privacy, the court ruled
that "no compelling interest of the state could compel Karen to endure the
unendurable" and allowed her to be taken off life support. Her story made headlines
and provided the groundwork for numerous similar cases. But Quinlan's story didn't
end there: weaned from the respirator, she survived for nearly 10 more years, dying
of pulmonary failure on June 11, 1985 in a New Jersey nursing home.”
http://content.time.com/time/specials/packages/article/0,28804,1864940_1864939_1864909,00.html
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More Liberties Under Scrutiny:
Matters of Privacy
33
 Privacy rights versus security issues





Fourth Amendment protections
Increased in importance after 9/11 attacks
Threats to liberty may make rights “too
extravagant to endure”
USA PATRIOT Act
Civil liberties concerns

FISA Amendments Act
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Foreign Intelligence Surveillance Act (FISA)
Here's The Law The Obama Administration Is Using As Legal Justification For Broad
Surveillance, Brett LoGiurato Jun. 7, 2013 in Business Insider
“In an unusual statement late Thursday night, Director of National Intelligence James
Clapper justified the Obama administration's broadening surveillance powers under
Section 702 of the Foreign Intelligence Surveillance Act.
"Section 702 is a provision of FISA that is designed to facilitate the acquisition of
foreign intelligence information concerning non-U.S. persons located outside the
United States," Clapper said. "It cannot be used to intentionally target any U.S.
citizen, any other U.S. person, or anyone located within the United States."
FISA, which was first signed into law in 1978, has been repeatedly amended since
the Sept. 11, 2001, terrorist attacks. In December, President Barack Obama signed
an extension of the FISA Amendment Acts, which were set to expire at the end of
last year and include some of the most controversial warrantless interception
programs.”
http://www.businessinsider.com/fisa-amendments-act-how-prism-nsa-phone-collection-is-it-legal-2013-6
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The Great Balancing Act: The Rights of the
Accused versus The Rights of Society
35
 Extending the rights of the accused

Fourth Amendment



No unreasonable or unwarranted search or seizure
No arrest except on probable cause
Fifth Amendment


No coerced confessions
No compulsory self-incrimination
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Basic Rights of Criminal Defendants
36
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The Great Balancing Act: The Rights of the
Accused versus The Rights of Society
37
 Rights of the accused (continued)

Sixth Amendment





Legal counsel
Informed of charges
Speedy and public jury trial
Impartial jury by one’s peers
Eighth Amendment


Reasonable bail
No cruel or unusual punishment
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The Great Balancing Act: The Rights of the
Accused versus The Rights of Society
38
 Extending rights of the
accused


Gideon v. Wainwright
Miranda v. Arizona


Public-safety exceptions
Recorded interrogations
 Rights complicated for
Americans outside
U.S. borders
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Gideon vs Wainright (1963)
“Clarence Earl Gideon was an unlikely hero. He was a man with an eighth-grade
education who ran away from home when he was in middle school. Gideon was
charged with breaking and entering with the intent to commit a misdemeanor, which
is a felony under Florida law. At trial, Gideon appeared in court without an attorney.
In open court, he asked the judge to appoint counsel for him because he could not
afford an attorney. The trial judge denied Gideon’s request because Florida law only
permitted appointment of counsel for poor defendants charged with capital offenses.
At trial, Gideon represented himself – he made an opening statement to the jury,
cross-examined the prosecution’s witnesses, presented witnesses in his own
defense, declined to testify himself, and made arguments emphasizing his
innocence. Despite his efforts, the jury found Gideon guilty and he was sentenced to
five years imprisonment.
Gideon challenged his conviction and sentence on the ground that the trial judge’s
refusal to appoint counsel violated Gideon’s constitutional rights.
The US Supreme Court held that the Sixth Amendment’s guarantee of counsel is a
fundamental right essential to a fair trial and, as such, applies the states through the
Due Process Clause of the Fourteenth Amendment.”
http://www.uscourts.gov/educational-resources/get-involved/constitution-activities/sixthamendment/right-counsel/facts-case-summary-gideon.aspx
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Miranda v Arizona (1966)
“In Miranda v. Arizona, the Supreme Court ruled that detained criminal suspects,
prior to police questioning, must be informed of their constitutional right to an
attorney and against self-incrimination. The case began with the 1963 arrest of
Phoenix resident Ernesto Miranda, who was charged with rape, kidnapping, and
robbery. Miranda was not informed of his rights prior to the police interrogation.
During the two-hour interrogation, Miranda allegedly confessed to committing the
crimes, which the police apparently recorded. Miranda, who had not finished ninth
grade and had a history of mental instability, had no counsel present. At trial, the
prosecution's case consisted solely of his confession. Miranda was convicted of both
rape and kidnapping and sentenced to 20 to 30 years in prison. Miranda appealed to
the U.S. Supreme Court, which reviewed the case in 1966.
The Supreme Court, in a 5-4 decision written by Chief Justice Earl Warren, ruled that
the prosecution could not introduce Miranda's confession as evidence in a criminal
trial because the police had failed to first inform Miranda of his right to an attorney
and against self-incrimination. The police duty to give these warnings is compelled
by the Constitution's Fifth Amendment, which gives a criminal suspect the right to
refuse "to be a witness against himself," and Sixth Amendment, which guarantees
criminal defendants the right to an attorney.”
http://www.pbs.org/wnet/supremecourt/rights/landmark_miranda.html
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The Great Balancing Act: The Rights of the
Accused versus The Rights of Society
41
 Exclusionary Rule



Prohibits admission of illegally seized evidence
Mapp v. Ohio (1961)
Court has limited scope of exclusionary rule in
recent decades
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Mapp vs Ohio (1961)
“" . . . our holding that the exclusionary rule is an essential part of both the Fourth
and Fourteenth Amendments is not only the logical dictate of prior cases, but it also
makes very good sense. There is no war between the Constitution and common
sense." —Justice Clark, speaking for the majority
Suspicious that Dollree Mapp might be hiding a person suspected in a bombing, the
police went to her home in Cleveland, Ohio. They knocked on her door and
demanded entrance, but Mapp refused to let them in because they did not have a
warrant. After observing her house for several hours, the police forced their way into
Mapp's house, holding up a piece of paper when Mapp demanded to see their
search warrant. As a result of their search, the police found a trunk containing
pornographic materials. They arrested Mapp and charged her with violating an Ohio
law against the possession of obscene materials. At the trial the police officers did
not show Mapp and her attorney the alleged search warrant or explain why they
refused to do so. Nevertheless, the court found Mapp guilty and sentenced her to jail.
After losing an appeal to the Ohio Supreme Court, Mapp took her case to the U.S.
Supreme Court. The Court determined that evidence obtained through a search that
violates the Fourth Amendment is inadmissible in state courts.”
http://www.streetlaw.org/en/landmark/cases/mapp_v_ohio
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The States and the Death Penalty:
Executions 1976-2012 and Death Row Population
43
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The Death Penalty
44
 Cruel and unusual punishment?



Forbidden by Eighth Amendment
Supreme Court does NOT restrict all forms of
capital punishment
Many states adopt bifurcated procedure
 Death penalty today



Allowed by 33 states
Carried out mostly by state governments
Declining in number
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Group Work
In an orderly manner, go to your group location. Turn to page 140 and research
Figure 4-1 in your textbook as a group, discussing each member of your groups'
views on the death penalty.
What pattern do you see in each state's implementation of the death penalty?
Why do these patterns exist? Which state has executed the most inmates since
1976? Which state had the largest number of inmates on Death Row in 2006?
Discuss these questions in your group.
Now turn to page 139. Look at the photo at the top of the page and read its caption.
Discuss these questions:
Is the Death Penalty a deterrent against future crime? Is there a consensus of
opinion in your group or differing views? What arguments have been made in your
group? What is your opinion on the death penalty? Why do you have that opinion?
Copyright © 2014 Cengage Learning
Our State Standard Today
GC.7 Analyze how the Bill of Rights limits the powers of the federal
government and state governments. (P)
GC.8 Assess the claims, reasoning, and evidence of various authors
to analyze the tensions within our constitutional democracy and
the importance of maintaining a balance between the following
concepts: (H, P)
· Liberty and equality
· State and national authority in a federal system
· Civil disobedience and the rule of law
· Freedom of the press and censorship
· Relationship of religion and government
· Relationship of legislation and morality
Copyright © 2014 Cengage Learning
Learning Outcomes (Our Objectives Today)
47
1. Explain the origin of the Bill of Rights
and discuss how these rights were
applied to the states.
2. Explain how the Bill of Rights protects
freedom of religion while maintaining a
separation between the state and
religion.
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Learning Outcomes (Our Objectives Today)
48
3. Discuss the concept of privacy rights
and give examples of how individual
privacy is protected under the
Constitution.
4. Identify the rights of the accused and
discuss the role of the Supreme Court
in expanding those rights.
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Assessment and Closure
Explain the origin of the Bill of Rights and discuss how these rights were applied to the
states. In your opinion, which of the Ten Bill of Rights is the most important one? Why?
Explain how the Bill of Rights protects freedom of religion while maintaining a separation
between the state and religion. Do you think Thomas Jefferson's “Virginia Statute of
Religious Freedom” is being followed nationally today? Do you think it and the Bill Of
Rights is being interpreted correctly or not today when it comes to religion and public
places? Do you think the Ten Commandments should be allowed to be put up in our local
County Courthouse or not?
Discuss the concept of privacy rights and give examples of how individual privacy is
protected under the Constitution. Is it as protected today as our forefathers planned it to
be? Why do you feel the way you do on this topic?
Identify the rights of the accused and discuss the role of the Supreme Court in expanding
those rights. What do you hear as someone's rights when watching a television show or
movie? Which Supreme Court ruling led to police saying that to suspects?
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