Civil Rights
Civil Liberties
Chapter 3
Civil Liberties v. Civil
Rights: NOTES
1.
Check your book for the distinction, but the
distinction will not be relevant to my
discussion or your tests.
2.
NOTE: the list on Page 79 only describes
the first 10 Amendments – it ABSOLUTELY
does not quote them. Do not use those
descriptions in a citation, use the REAL
language of the amendments instead.
Foundation of Rights and
Liberties in US

US Constitution (at the core)
– No ex post facto laws
– No bill of attainder
– Right of habeas corpus guaranteed
 Right to a hearing by a judge
 Specific charges must be brought
 Sufficient evidence for suspicion
required
– Etc.
Bill of Rights

First 10 Amendments
– Enumerate a list of specific limits on
government
– Guarantee a specific set of rights and
liberties against government infringement
Bill of Rights
Amendment IX
 The enumeration in the Constitution,
of certain rights, shall not be
construed to deny or disparage
others retained by the people.
Amendment X
 The powers not delegated to the
United States by the Constitution,
nor prohibited by it to the states, are
reserved to the states respectively,
or to the people.
Bill of Rights
Amendment I
 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.
First Amendment




Freedom of Religion
Freedom of Speech
Freedom of the Press
Right of Assembly
– (association is implied)

Right of Petition
Freedom of Religion

Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof;
Freedom of Religion
Establishment clause: Original
intent
 No state religion
 No preference

Only Jefferson saw a “wall of
separation,” most others
assumed some interplay
Establishment Clause
Non Preference Test


Government must show no preference
among various religions
Sees no problem with general support
of all religions equally
Establishment Clause
Lemon Test: a Constitutionally



valid law:
Must have a secular purpose
Must neither advance nor inhibit
religion
Must avoid “excessive government
entanglement with religion”
Establishment Clause
Endorsement Test: A Constitutionally

valid law:
Must not give a reasonable person the
impression of government
endorsement of religion
– (strict separation)
Freedom of Religion

Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof;
Free Exercise Clause
Compelling Interest Test:


a constitutionally valid law:
Must show a “compelling public interest” to
justify any restriction of religious practice
Must demonstrate that the restriction is the
“least drastic means” of accomplishing the
compelling interest
– Religion is assumed to have a “preferred
position”
Free Exercise Clause
Employment Division V. Smith 1990.


Under this test, a Constitutionally valid
restriction on religion:
Must be generally applicable
Must not single out religious practices
specifically as such
– Religion has no special position or
“preferred position”
Free Exercise Clause
Employment Division V. Smith 1990


Political reaction:
Religious Freedoms Restoration Act,
1993. (RFRA)
– Ordered the Supreme Court to follow the
“Compelling Interest” standard.
– RFRA ruled unconstitutional 1997
Freedom of Speech
Amendment I
 Congress shall make no law . . .
abridging the freedom of speech
...

Preferred Position Doctrine: Free speech
is so important it requires special
protection from the courts
Freedom of Speech
Doctrines and rules about when speech
can be restricted:
 Clear and Present Danger
– Does the expression create an immediate
and obvious physical danger?
– If so, it may be restricted regulated
Freedom of Speech
Doctrines and rules about when speech
can be restricted:
 Prior Restraint
– Does the proposed restriction require
approval or permission before a
message/speech is delivered?
– If so, then that law or restriction is
unconstitutional
Freedom of Speech
Doctrines and rules about when speech
can be restricted:
 Vagueness
– Are the rules and definitions that identify
illegal or restricted speech clear and
specific?
– If not, then the law restricting the
expression is unconstitutional
Freedom of Speech
Doctrines and rules about when speech
can be restricted:
 Least Drastic Means
– Is there some other means to accomplish
the valid government goal that does not
require restricting free speech?
– If another method exists, then the
restriction or ban on speech is
unconstitutional
Freedom of Speech
Doctrines and rules about when speech
can be restricted:
 Content / Viewpoint Neutrality
– Does the rule restricting speech favor one
perspective or assault another?
– If it shows favoritism or attacks one
perspective, then it is unconstitutional
Freedom of Speech
Unprotected Speech
 Commercial speech
 Slander
 Obscenity

Hate speech???
Freedom of the Press
Amendment I
 Congress shall make no law . . .
abridging the freedom . . . of the
press . . .
 Special access to information?


No
Right to withhold sources?

No
– Shield laws in many states (including CA)
Freedom of the Press
“Sunshine Laws”
Freedom of Information Act: “FOIA”
(Federal)
All public records are public
Must be accessible upon request
Some exceptions: White House,
Attorney/Client, national security,
undercover investigations, personal info in
personnel records, etc
Freedom of the Press
“Sunshine Laws”
Freedom of Information Act:
On written request Government must
provide access and copy opportunity
If plaintiff sues and wins, Government pays
costs.
Over 90% success for plaintiffs
Freedom of the Press
“Sunshine Laws”
California Public Records Act: “CA PRA” (CA
State)
Similar to FOIA, but for State
Fewer Exceptions
State office must provide name of decision maker
and the specific exception they are claiming if
they deny access
Can not deny access because document is
“unreliable” or “inaccurate”
Higher success rate for plaintiffs
State pays costs if plaintiff wins
Sunshine Laws -- Both
Both FOIA and CA PRA created for press
access
Both accessibly to anyone
Both useful if ever you have a ‘beef’ with
a government agency
– They can’t keep secrets!!!
Expansion of Rights and
Liberties:
History of progressive
Inclusion

Some selected historical cases and
points. Check your book for more.
Also check the outline posted on the
web
Civil War Expansion
13th Amendment:
– Abolition of Slavery
14th Amendment:
– Privileges and Immunities, Due Process,
Equal Protection (extends most of the Bill
of Rights to states)
15th Amendment:
– No rights to be denied on account of race
Post Civil War Exclusion
Plessy v Ferguson: 1896
– “Separate but equal,” upholds
segregation



Literacy Tests
Poll Taxes
White Primaries
Progressive Inclusion


19th Amendment: Women’s Vote: 1920
1948 Shelly V. Kraemer
– Housing: No racial exclusion in compacts

1954 Brown V. Board of Education
– Education: Strikes down “separate but equal”



1964 Civil Rights Act
1965 Voting Rights Act
1968 Fair Housing Act
Judicial Tests:
Discriminating Classifications
Rational Basis Test
– All classifications
– Is there a rational reason?
Heightened Scrutiny
– Gender, Age, Religion
– Is there an important public interest?
– Is this classification substantially related to the
public interest?
Judicial Tests:
Discriminating Classifications
Strict Scrutiny Test
– Race
– Is there a compelling public interest?
– Is the policy narrowly tailored?
– Is the policy the least drastic means?