Civil Liberties and Civil Rights
 End
course by returning to the beginning:
freedoms the founders fought for
 Examine original ideas and how they have
evolved over time
 National and state governments have
concurrent jurisdictions--U.S. constitution to
apply to national sphere, although it is also
the supreme law of the land
Civil Liberties and Civil Rights
 Civil
liberties: freedoms (choices) enjoyed
by individuals in a democratic society
 Freedom
in government (to participate)
 Freedom from government (to live one’s life)
 Civil
rights: rights of all persons to equal
protection of the laws; the right not to be
discriminated against because of race, ethnic
background, religion, or gender. Obligations
placed on government to protect freedoms.
Balancing Values
Social
Economic
Freedom
Order
Equality
Liberal
Populist
Freedom
Libertarian Conservative
Balancing Values
 Freedom
of religion versus social order
 Practicing
bigamy (as a religious conviction) versus
right of state to limit marriage to one person
 Use of peyote by Native Americans versus state law
 Freedom
of expression versus social order
 Anti-war
& socialist sentiments to recruits in times of
war
 Indecent material on the internet versus constraints on
material to which minors and others are exposed
First Amendment Rights
 Congress
shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or of abridging the
freedom of speech, or of the press; or the
right of the people to peaceably assemble,
and to petition the government for a redress
of grievances.
Due Process and the States
 Bill
of Rights intended only for national govt.
 Confirmed
in Barron v. Baltimore (1833)
 5th Amendment (1791) “ No person shall…. be
deprived of life, liberty, or property, without due
process of law…”
 14th Amendment (1868) “…nor shall any state deprive
any person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
 Supreme Court favors selective incorporation
Selective Incorporation
 1925:
Gitlow v. New York
 Applied
speech and press freedoms to states for
the first time even though Gitlow lost his case
 Gitlow advocated violent overthrow of the U.S.
government, violating New York’s criminal
anarchy law
 Court distinguished between speech and action
Freedom of Religion
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof;”
 Establishment
clause: prohibits the
establishment of religion; interpreted as
separation of church and state; can’t support or
prefer one religion over another
 Free exercise clause: prohibits government from
interfering in religious beliefs
Freedom of Religion
 Establishment
clause: prohibits establishment of
religion
 Everson v. Board of Education (1947)
government must maintain wall of separation
between church & state: NJ allowed
reimbursement for school transport --neither
handicap nor favor religion; state
reimbursement of transportation costs didn’t
violate Constitution
Freedom of Religion
 Establishment
clause: prohibits establishment of
religion
 Lemon v. Kurtzman (1971) state can provide
transportation to parochial students (1947), lend
books to parochial school students (1968), but
cannot contribute to salaries of parochial school
teachers
Freedom of Religion
 Lemon
v. Kurtzman initiated 3 prong test:
statute
must have secular purpose
statute’s primary effect should not be to advance or
inhibit religion
statute must not excessively entangle government in
religion
 U.S.
Supreme Court should apply when it
considers the school voucher case this term
Freedom of Religion
 Official
endorsement of school prayer is
unconstitutional
Engel
v. Vitale (1962)
Abington Township v.Schempp (1963)
Santa Fe Independent School District v. Doe (2000)
 Equal Access Act
(1990) is constitutional;
schools can provide space for religious group
meetings
 UVA may subsidize religious publications
 U of Wisconsin may assess student fees
Freedom of Religion
 Free
exercise clause:
 prevents
interference in individual exercise of
religion
 Reynolds v. U.S. (1879) doesn’t protect
polygamy practiced by Mormons
 W.Va. State Bd. of Ed. v. Barnette (1943)
overturns Gobitis (1940) and allows Jehovah's
Witnesses to refrain from saluting the flag based
on free expression (even in war, state can’t
require patriotism if it denies religious freedom)
Freedom of Religion
 Religious
holy day: Sherbert v. Verner (1963) state
can’t deny unemployment benefits because employee
refuses to work on Saturday; neutral law which
burdens religion must meet strict scrutiny--state must
show compelling interest
 Oregon law prohibiting use of peyote for religious
purposes is constitutional (Employment Division v.
Smith, 1990)
Court
discarded compelling state interest requirement
Freedom of Religion
 Congress
responded with the Religious Freedom
Restoration Act of 1993 (RFRA) prohibiting any
government from limiting the exercise of religion
without demonstrating:
compelling government interest and
law was the least restrictive means of furthering that
interest
 1997: Supreme Court struck legislation down in City
of Boerne v. Flores (local zoning & historic
preservation; Congress had no authority to dictate
manner in which localities enforced ordinances)
Freedom of Expression
 Ideas
are essential to democracy; “truth” is derived
from the marketplace of ideas (O. W. Holmes)
 Holmes: It (democracy) is an experiment, as all
life is an experiment…
 Create state to obtain order; prevent harm to
others; prevent destruction of the state
Freedom of Expression
 Supreme
Court has held different positions:
 Absolutist
approach: First Amendment to be
interpreted literally-- “Congress shall make no law”
means there are no circumstances when speech should
be constrained (But even Hugo Black distinguished
between speech and action)
 Preferred-freedoms doctrine: Speech privileged over
any other freedom (Holmes)
 Balancing test: Speech must be weighed against other
democratic values (Frankfurter)
Freedom of Expression
 Political
speech must meet clear and present
danger test
 Opposing
recruitment for W.W.I violated Espionage
Act in Schenck v.US (1919); socialist distributed antiwar leaflets; standard may be higher in times of war
 Gitlow v. N.Y. (1925) distributing left wing manifesto
during workers’ strikes is unconstitutional--first to
apply free speech to states via 14th Amendment
Freedom of Expression
 Political
 Pierce
speech (cont.)
v. U.S. (1920) socialists distributing anti-war
leaflets to general population; court ruled that
legislatures may prohibit speech that encourages illegal
action (bad tendency doctrine)
 Dennis v. U.S. (1951) communists charged with
conspiracy; court distinguished between bad tendency
(more serious) and clear and present danger doctrines
Freedom of Expression
 Political
 Clear
speech (cont.)
and present danger standard:
Don’t
falsely yell “fire” in crowded theater
“Hate speech” on campus is mostly tolerated
 Brandenburg
v. Ohio (1969) standard required of
government raised: action must pose imminent danger
 Speech is accorded preferred position
Freedom of Expression
 Symbolic
 (1969)
expression (nonverbal)
students may wear black arm bands
 Texas v. Johnson (1989) flag burning is constitutional;
relies on substantive theory of democracy not to ban
unpopular speech
Unprotected Speech
 Obscenity:
difficult to define but unconstitutional
if can
 Roth
v. U.S. and Alberts v. California (1957) found
obscenity not to be protected by the Constitution
rule
involved “average person” applying “community
standards”
 Miller
as
v. California (1973) 3 pronged test:
whole (Roth standard), appeals to prurient interests
portrays sexual conduct in a patently offensive way
as whole, lacks any artistic, etc. merit
Unprotected Speech
 Obscenity
(cont.)
 Cincinnati
jury applied Miller test to Mapplethorpe
case involving homo-erotic art and found museum not
guilty
 District Court said pornography was not a form of sex
discrimination and Supreme Court applied stare decisis
(let decision stand)
Unprotected Speech
 Libel
(written) and slander (orally)
 Several
criteria (similar to standing to sue):
Third
parties must be able to observe (not private)
Aggrieved party must be clearly specified
Aggrieved party must actually be harmed
 NY Times
v. Sullivan (1964) alleged libel or
defamation of character against public official but
Supreme Court approved as long as not knowingly
false or reckless & no malicious intent
Freedom of the Press
 Role
of press has been central to democracy; the press has
been the pivotal intermediary between government and
the people
 Protections are not absolute: does not protect reporters
from revealing information in drug and other criminal
trials
 May be sued for investigating under false pretenses (Food
Lion)
 Sunshine laws can complicate government (i.e. Orange
County bankruptcy; Governor Davis & energy contracts)
Freedom of the Press
 Freedom
of Information Act (1966)
 Formal
process for requesting non-classified
documents
 1995 legislation set limit of 25 years for most classified
documents
 New
Challenges with new media (internet, faxes,
cell phones, etc.)
Freedom of the Press
 Air
waves have been public
 Federal Communications Commission was
established to regulate public space
 FCC
still licenses radio broadcasts; established fairness
doctrine and equal access provisions
 Telecommunications
regulations obsolete
advances have made many
Freedom of Assembly
 Legislature
may not regulate content of speech,
but can regulate time, place and manner for
protests and parades
 ACLU
supported Nazi party demonstration in
Evanston, IL
Application of 14th Amendment
Due
process clause says no state shall deprive
any person of life, liberty, or property without
due process of law
Procedural due process: procedures used or
steps taken to implement the law
Originally
applied only to criminal cases
Concerns mostly to executive & judicial branches
Application of 14th Amendment
Substantive
due process: limits what
government may do; applies mostly to Congress
Before
1937 Supreme Court limited application to
questions of contract
More recently applied to questions of privacy
Application of 14th Amendment
Procedural
Most
due process (criminal proceedings):
criminal law is the prerogative of states
Application of 14th Amendment raises federalism
question for many people (states’ rights)
Gideon v. Wainwright (1963) right to representation
by an attorney (6th Amendment right to counsel)
Miranda v. Arizona (1966) protects accused against
5th Amendment protection against selfincrimination; requires notification of rights
Application of 14th Amendment
Criminal
Mapp
proceedings continued...
v. Ohio (1961) exclusionary rule protects
individuals against use of evidence obtained in
violation of 4th Amendment’s unreasonable searches
& seizures
Nix v. Williams (1984) allowed evidence if it would
have been found eventually through legal means
(inevitable discovery)
U.S. v. Leon (1984) allowed evidence gathered “in
good faith”
Application of 14th Amendment
9th Amendment
the
& Personal Autonomy
enumeration of certain rights shall not be
construed to deny or disparage others retained by
the people....(penumbra or shadow)
Griswold v. Connecticut (1965) Douglas identified
penumbras; privacy extended to sexual intercourse
and forms of contraception
Application of 14th Amendment
 9th Amendment
 Roe
& Personal Autonomy
v. Wade (1973) extended privacy to abortions
during first trimester
 Webster v. Reproductive Health.. (1989) upholds denial
of public facilities for abortion unless danger to
mother’s life
 States may restrict access of minors or impose waiting
period before abortion performed
Application of 14th Amendment
 9th Amendment
& personal autonomy
 Bowers
v. Hardwick (1968) does not extend privacy
rights to homosexuals--even among consenting adults
in own homes (although Georgia legislature changed
law and later allowed); issue is state prerogative
 Supreme Court is increasingly deferring to states and
the political process to resolve questions of privacy
 California
protects privacy in its Constitution