Civil Liberties chapter 4
What is the difference between
Civil liberties and civil rights?
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Civil liberties are protections against government- this
means either federal or even state
Civil rights- positive acts of government to protect our
rights- our constitutional guarantee
Civil liberties are protected by the 1st amendment
and civil rights are protected by the 5th (national gov’t)
and 14th(states) Amendment
Conflicts
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Many conflicts occur with civil
liberties
Sometimes rights are taken
away in times of warJapanese in 1940’s, Muslims
2000’s
What are our rights?
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first 10 amendments- bill of rights
(protection from national)
14th amendment- (protection from
state)
Most rights and liberties are granted to
all in the US- regardless of citizenship
*(non-citizens may not vote, be on
juries, hold public office or certain jobs)
Supreme courts process of
incorporation- has merged most of
Bill of Rights along with 14th
amendment
What has the 14th
amendment done for us?
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Due process clause applied to most provisions of BoR to the states
“selective incorporation”- apply only to some provisions, case-by-case (total
incorporation would be to nationalize BoR)
Gitlow v New York (1925)- (freedom of speech – anti-gov’t
communist)
Examples of selective incorporation on BoR
 Assembly
 Petition
 Religion
 Search and seizure protections
 Self-incrimination
 Double jeopardy
 Right to counsel
 Right to bring witness, to confront witness
 Protection against cruel and unusual punishment
PALKO Test (Palko v. connecticut)-double jeopardy-”essential to a
fundamental scheme of ordered liberty”." 9th amendment
What about the 9th
Amendment
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Griswold v. Connecticut (1965)right to privacy- contraceptives
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.
Boy Scouts of America v. Dale (2000)Yes- "applying New Jersey's public
accommodations law to require the Boy Scouts to
admit Dale violates the Boy Scouts' First
Amendment right of expressive association." In
effect, the ruling gives the Boy Scouts of America
a constitutional right to bar homosexuals from
serving as troop leaders.
How is religion protected?
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1st amendment- Establishment clause-”
1st amendment- free exercise clauseWall of separation between Church
and State- thomas Jefferson
Religion and Education
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Biggest controversies- can religion be
taught at school? Prayers allowed at
Schools? Teach Creation? Team prayers?
Public schools cannot sponsor religious
exercises
Bible is allowed to be studied in literary or
historical context only- cannot be taught
How does the supreme court
deal with religious cases at
schools?
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Lemon v. Kurtzman 1971Created 3 part Lemon Test ( to see if
states can give money to private parochial
schools)
Other issues with establishing
religion
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Issues of Seasonal themes- Christmas,
Hannukah, etc- at government places
Prayers led by Chaplains at government
meetings
Displaying ten commandments in front of
government buildings
Free Exercise?
Review
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What does the constitution say about religion?
Gov’t may not establish an official religion
What case created the testing of the establishment
clause?
Lemon v. Kurtzman (lemon’s test)
What court case focused on the 9th amendment and
incorporation of the Bill of Rights?
Gitlow v. New York
What amendments protect Civil rights
5th (national gov’t) and 14th (states)
What is selective incorporation?
View that some provisions of the Bill of Rights are
applied on a case by case basis
Next slides about
speech/assembly/press
Freedom of Speech, assembly,
press (nationalizing effects of
14th amendment)
3 Types of Speech
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1) Pure Speech:
I don’t like you,
president,
congress
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2) Speech plus
Action:
Right to protest
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3) Symbolic Speech:
Texas v. Johnson
(1989),
In a 5-to-4 decision, the
Court held that Johnson's
burning of a flag was
protected expression
under the First
Amendment. The Court
found that Johnson's
actions fell into the
category of expressive
conduct and had a
distinctively political
nature- even if society
finds it offensive
Limits on Free Speech
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Free Speech vs.
Public Safety, Public
Welfare, or National
Security
Sedition:
In law, sedition is overt
conduct, such as speech and
organization, that is deemed
by the legal authority to tend
toward insurrection against
the established order.
* “Clear and Present
Danger”:
- Schenck v. U.S. (1919):
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"The question in every case is
whether the words used are
used in such circumstances
and are of such a nature as to
create a clear and present
danger that they will bring
about the substantive evils
that Congress has a right to
prevent." During wartime,
utterances tolerable in
peacetime can be punished.
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“Imminent Danger”:
[Brandenburg v. Ohio
(1969)]:The Court used
a two-pronged test to
evaluate speech acts:
(1) speech can be
prohibited if it is
"directed at inciting
or producing
imminent lawless
action" and (2) it is
"likely to incite or
produce such action."
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Defamation:
1) Slander: spoken
2) Libel: written
Criticism of Public
Figures IS Protected,
even if it is cruel
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“Fighting Words”:
Freedom of Assembly and
Petition
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Right to petition the gov’t for redress of grievancesright to ask for gov’t action
BSA v. Dale (2000) allows Boys scouts to ban
homosexuals from being scout leaders (personal/private
club)
Hatch Act restricts federal employees from political
activities
Campaign contributions can be limited (person can
spend on their own campaign)
Freedom of Assembly- gov’t can regulate time, place
and manner, require police permits
Freedom of Press
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Press gets access but not
all the time (Freedom of
information Act
(1966)- allows public to
view gov’t files (now
electronic 1996)
(US v. Nixon 1974)
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Gag orders (cannot speak about
trials or case)
Shield lawsDefamationObscenity- not protected by 1st
amend.- Miller v. CA 1973
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Student press- Hazelwood v.
KuhlmeierRegulating airwaves-
2nd amendment – right to bear
arms.
Next slides due process
Chapter 4
Due Process and its
Amendments
Due Process of Law
“The government cannot deprive anyone of “life, liberty, or
property, without due process of law..nor deny anyone
equal protection under the law.”
• The constitutional
right of every
citizen to fair
treatment under
the law
• Basic civil liberties
2 Aspects of Due Process
(5th Fed, and 14th State)
• 1) Substantive Due Process- The laws
themselves must be reasonable and fair (ex.
banning all abortions in a state)
• 2) Procedural Due Process- Rules of conduct
for police officers, judges, lawyers, and
courts to protect persons suspected,
accused, or convicted of a crime- observing
bill of rights
What is an example of substantive vs.
procedural
• A law prohibits possession of narcotics (substantive) and
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police must be generally obtain a warrant before
conducting a search for narcotics in one’s home
(procedural)
Quick quiz
1. police strip searches
Procedural
2. Compulsory vaccination laws
Substantive
3. minimum wage law
Substantive
4. firing a city employee without giving a hearing
Procedural
4th Amendment
• Protects us from
unreasonable
search and
seizure
• Mapp v. Ohio
(1961)
Authorization for Search and Seizures
(4th amendment)
• Need to have a
warrant- a court order
that authorizes lawenforcement officials
to make an arrest,
search a person or
place, or take
property as evidence
Steps for a Warrant
• 1) Police must appear before a judge or
magistrate
• 2) The police must swear under oath that they
have probable cause, a reasonable belief that a
particular crime has been or is being committed
• 3) The judge or magistrate must issue a
warrant that describes the exact place to be
searched. It must also describe the specific
persons or items to be seized. A random search
is unconstitutional
Searches Without Warrants
Exclusionary
Rule
• Weeks v. United States
• Mapp v. Ohio (states)• Discourages police misconduct vs. let’s
crooks off the hook
Exceptions to Exclusionary Rule
• Nix v. Williams• U.S. v. Leon• CA v. Hodari D.
4th
Amendment
Electronic
Surveillance
• Katz v. U.S. (1967)- the 4th Amendment protects
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“people, not places”
Patriot Act of 2001 (renewed in 2006)Growth of fed powers weakens 4th amend.
5th Amendment
6th Amendment
• Gideon v. Wainwright- Right
to legal counsel -state and
Federal level
8th Amendment
Some other protected
provisions
• Miranda v. Arizona 1966
• Habeas Corpus-
Other constitutional guarantees-both
cannot be passed by Congress
• Ex post facto laws• Bill of attainder-
Quick Quiz review
• 1. What court case helped those poor
receive counsel
• Gideon v. wainwright
• 2. Court case that involved an illegal
search and seizure
• Mapp v. Ohio
• 3.What can the police say in order to get a
warrant
• Probable cause