Civil Liberties
“Your rights as Americans”
Civil Rights vs. Civil Liberties
• It is important to note the difference between "civil
rights" and "civil liberties."
• The legal area known as "civil rights" has
traditionally revolved around the basic right to be
free from unequal treatment based on certain
protected characteristics (race, gender, disability,
etc.) in settings such as employment and housing.
• "Civil liberties" concern basic rights and freedoms
that are guaranteed -- either explicitly identified in
the Bill of Rights and the Constitution, or interpreted
through the years by courts and lawmakers.
Civil Liberties
Civil Liberties include (but are not limited to)
• Freedom of speech
• The right to privacy
• The right to be free from unreasonable searches
of your home
• The right to a fair court trial
• The right to marry
• The right to vote
Civil Rights vs. Civil Liberties
• One way to consider the difference between "civil rights" and
"civil liberties" is to look at 1) what right is affected, and 2)
whose right is affected.
• For example, as an employee, you do not have the legal right
to a promotion, mainly because getting a promotion is not a
guaranteed "civil liberty."
• But, as a female employee you do have the legal right to be
free from discrimination in being considered for that promotion
-- you cannot legally be denied the promotion based on your
gender (or race, or disability, etc.).
• By choosing not to promote a female worker solely because
of the employee's gender, the employer has committed a civil
rights violation and has engaged in unlawful employment
discrimination based on sex or gender.
Founding Documents
• Declaration of Independence - “We hold these
truths to be self-evident; that all men are created
equal, that they are endowed by their Creator
with certain unalienable rights, that among these
are life, liberty, and the pursuit of happiness.”
• Constitution – framers believed in natural rights
– given by God – guaranteed a Constitution that
limits the power of the government over the lives
of the people
Writ of Habeas Corpus
• Art. 1, Sec. 9
• “Produce the body”
• Requires government officials to present a
prisoner in court and to explain to the
judge why the person is being held
Ex Post Facto Laws
• “after the fact”
• Being charged for committing a crime, that
wasn’t a crime when the person committed
the action
Bills of Attainder
• Legislative act that punishes an individual
without judicial trial
• Court should decide guilt, not Congress
Bill of Rights
1. Free speech, press, assembly, petition,
religion
2. Right to bear arms
3. Prohibits quartering soldiers
4. Restricts illegal search and seizures
5. Provides grand juries, restricts eminent
domain (gov can’t take private property
unless compensation), prohibits forced
self-incrimination, double jeopardy (can’t
be charged for the same crime twice)
Bill of Rights
6. Outlines criminal court procedure (lawyer; confronting
witnesses; speedy public trial)
7. Trial by jury in civil lawsuits over X $$$
8. Prevent excessive bail and cruel and unusual
punishment
9. Amendments 1-8 do not necessarily include all possible
rights of the people – you have certain rights even if they
are not enumerated by the USC
10. Reserves for the states any powers not delegated to
Fed. Gov by USC (States rights amendment – created to
counteract elastic/necessary and proper/implied powers
clause of congress)
14th Amendment
• “privileges and immunities” – Constitution
protects all citizens
• Due process – prohibits abuse of life,
liberty, or property of any citizen, state
rights were subordinate to Fed rights
• Equal protection clause – Constitution
applies to all citizens equally
Judicial Review
• Marbury v. Madison
• The power of the Supreme Court to judge
the constitutionality of a law
Legislative Action
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Sometimes laws can guarantee rights:
Civil Rights Act of 1964
Voting Rights Act of 1965
Americans with Disabilities Act of 1992
• Sometimes they restrict rights:
• Defense Of Marriage Act- will SCOTUS
rule it unconstitutional?
Religion
• “Establishment” clause – prohibits the gov’t from
establishing an official church
• “Free exercise” clause – allows people to worship as
they please
• Cases that come before the court fall into one of these
two categories
• “Public religion” (1790’s-1950’s) – no real separation
of church and state (God is on the money, in the POA,
prayer before sessions of Congress, inugurations,
even in schools)
• 1960’s – “Wall of Separation” built with Engle v. Vitale
(1962)
Religion cont.
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Establishment clause cases:
Engle v. Vitale – 1962
Lemon v. Kurtzman – 1971
Board of Ed. Westside v. Mergens (1990)
Mitchell v. Helms (2000)
McCreary County v. ACLU (2004)
Free exercise clause cases:
Wisconsin v. Yoder (1972)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
Employment Division Oregon v. Smith (1993)
Free Speech
• DOES NOT mean that you can “say anything you
want”… but pretty close
• Pure Speech, Speech Plus and Symbolic Speech
Restrictions
• TIME, PLACE, MANNER (Schenck 1919 – WW1)
• Threat to national security
• Libel – false written statement attacking someone’s
character, with intent to harm
• Obscenity – not protected, hard to define – Ex.
Pornographic material – each community decides
• Symbolic speech – action to convey a message some
actions – some actions are OK; others aren’t
Free Speech cont.
• Sedition Acts – 1798 and 1918 – both designed to
restrict free speech, especially if it criticized the
government
• 1798 – Federalists wanted to stifle Anti-Federalists
• 1918 – Gov. wanted to silence WW1 protestors
(Socialists, Communists – led to the Palmer Raids in
1919 and deportations of leftists immigrants)
• Schenk v. US 1919 – Time, place and manner
established – some speech is not free – can’t yell FIRE
in a crowded theater (incite panic)
• ACLU created at this time (American Civil Liberties
Union) – continues to defend civil liberties infringements
Free speech cont.
• Brandenburg v. Ohio (1969) softens Schenck stance –
added the word “imminent” – speech must result in
imminent or fairly immediate panic or riotous activity
• Smith Act 1940 – law passed that forbid anyone from
advocating a violent overthrow of the government; being
a member of a group that promotes violent overthrow or
publication of materials advocating an overthrow
• Used by Joseph McCarthy in the 1950’s to hunt for and
prosecute Communists – led to 50’s Red Scare paranoia
(similar to the Red Scare of 1919)
Free speech at school
• Tinker v. Des Moines (1969) – students do not leave
their rights at the school house door – do have free
speech rights (black armbands to protest Vietnam War)
• Morse v. Frederick (2007) – students do not have free
speech if it promotes illegal activity (drug use in this
case) – better known as the “Bong Hits for Jesus” case
Free Speech cont.
• Westboro Baptist Church - Snyder v. Phelps (2011)
• Court ruled that protesting or picketing a funeral, if all local
laws and ordinances were obeyed (purchasing permit, staying
X number of feet away from funeral home) is protected by the
First Amendment.
• The 8-1 decision had Justice Alito the lone dissenter. He said
"Our profound national commitment to free and open debate
is not a license for the vicious verbal assault that occurred in
this case.“
• He concluded, "In order to have a society in which public
issues can be openly and vigorously debated, it is not
necessary to allow the brutalization of innocent victims like
petitioner."
Right to Privacy
• Not in the Constitution – inferred based upon case law
and interpretations of the 9th amendment (if something
isn’t mentioned in the USC, you still have the right to
do it)
• Griswold v. Connecticut (1965) – access to birth
control
• Roe v. Wade (1971) – access to abortion
• Yahoo and Google – search engines and e-mails?
• Westboro case - Snyder argued that Westboro folks
violated his family’s right to privacy – the right to hold
his son’s funeral and be protected from public
humiliation
Freedom of the Press
• John Peter Zenger case (1735) – could openly criticize
royal governor
• Near v. Minnesota (1931) – first “prior restraint” case –
government can’t stop you from publishing something
before you publish it
• Also New York Times v. Sullivan (1964) – reported civil
right violence in the South – government tried to
suppress it.
• Also New York Times v. U.S. (1971) - Pentagon papers
– NYT could publish damaging information about the
conduct of Vietnam War
Freedom of Press
cont.
• Radio, TV, Internet
• FCC v. Pacifica (1978) George Carlin’s “7 Dirty Words You
Can’t Say on TV – played on radio – obscenity can’t be on
the air when children are likely to be awake and listening
• MGM v. Grokster (2005) file sharing case – copyright
infringement and paying of music industry royalties
• ACLU v. Reno (1997) Can’t censor the internet – struck
down a law that tried to ban obscenity from the internet
• FCC v. Fox Television (2012) Does the FCC have the right
to regulate speech (“fleeting expletives”) – continuation of
2009 SCOTUS case – both won (or lost) – FCC can
regulate but their definition of what an expletive is too
vague – make clearer standards
Freedom of Assembly
• You have the right to gather peacefully with likeminded individuals.
• Government can only regulate permits, zoning
issues, size of free speech zones, etc.
• Nazis wanted to march in Skokie, Ill. (Chicago
suburb with a heavy Jewish population) and their
right to do so was upheld.
• Same with Westboro folks.
Freedom of Petition
• Remember, we sent numerous petitions to King George III
– we wanted him to address our grievances – finally broke
free with D of I.
• Write, telephone call, email, FB posts, Tweet – all are forms
of petition.
• Also testifying in a congressional hearing or writing an
amicus curae brief to SCOTUS are examples as well.
• The White House now has an electronic petition application
– if you get x amount of signatures, they will answer your
petition with a written and posted response
• Recent “Death Star” petition has a cleverly worded reply!
Went viral a few weeks ago.
• www.whitehouse.gov/petitions
Search and Seizure
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4th Amendment
Freedom from “unreasonable search and seizure”
Prevent police abuse
THERE ARE EXCEPTIONS (“Plain View”, Terry Search,
Int’l Borders, Moveable objects)
• Mapp v. Ohio (1961) – exclusionary rule – can’t use
illegally obtained evidence
• Terry v. Ohio (1968) – exception to warrant – patting
down a suspect is not a S/S violation – protects the
safety of the police officer and the suspect
• US v. Jones (2012) – can GPS someone’s car if you get
a warrant
Due Process
• 5th and 14th Amendment
• Forbids national AND state gov to “deny any person life,
liberty, or property without due process of law.”
• Procedural – fair trial
• Substantive – fundamental fairness (based on USC and
precedents)
• 5th – Eminent domain – pay $ to take property
• Kelo v. City of New London (2005) – Can also take your
property for non-government reasons (shopping mall, condos,
etc.) if it can improve the financial health of the community
overall
• 5-4 vote – very controversial – could very well be reversed in
the future (Was this reverse Robin Hood – take from the poor
to give to the rich?)
Self-incrimination
• 5th Amendment
• No one “shall be compelled to be a
witness against himself.”
• Escobedo v. Illinois (1964) – coerced
confessions
• Miranda v. Arizona 1966 (5th and 6th
amendment rights together)
6th amendment
• Powell v. Alabama (1932) – Scottsboro 9 case; defendants
not given lawyers; all went to jail on fake rape charges
• Betts v. Brady (1942) – only severe cases get the right to
counsel – Gideon v. Wainwright (1963) overturned this
case.
• Sheppard v. Maxwell (1964) – jury tampering and
sensationalistic mass media coverage resulted in a new
trial for Dr. Sam Sheppard – violated 6th amendment right
to “fair” - mass media prejudiced the Cleveland community
as well
• In re Gault (1967) – child not told the reason for his
expulsion; did not receive due process; must have hearing
with due process when a child is expelled
7th amendment
• Originally part of English Common Law, it gave the right to decide
lawsuits to a jury, who would, in theory, be more impartial and less
controlled by the king than the judge.
• The jury in these cases listen to the evidence, determine what
actually happened, and can award monetary compensation based
on their verdict.
• A judge can however throw out or change the monetary sum if he
believes the jury has gone too far or not applied the law correctly.
• Lawyers generally get 30-50% of the settlement as their fee. So if
you think you deserve $1 million for your case; you sue for more to
cover lawyers costs.
• “Tort reform” proponents want a “loser pays” system. It is argued
that the above bullet results in runaway costs and too many
lawsuits. People would be less likely to initiate a lawsuit if they
knew they had to pay court costs for the other party. Many countries
have “loser pays”.
8th amendment
• Furman v. Georgia (1972) and Gregg v. Georgia (1977) –
Furman death penalty case indicated that Georgia’s death
penalty case criteria was arbitrary (blacks got DP; whites got
LIPw/oP).
• SCOTUS banned all executions in the US from 1972-76. Gregg
case reinstated the DP nationwide; states that the death penalty
is legal if everyone is subject to it for same crime and if all other
options an unavailable and unacceptable.
• Lockley v. Andrade (2003) – California’s “3 strikes” law is
constitutional – not cruel and unusual
• EXCEPTIONS:
• Atkins v. Virginia (2002) – can’t execute the mentally retarded
• Roper v. Simmons (2005) – can’t execute anyone under age 18
9 and 10 (and 14 again!)
• Rights under the 9th amendment that you might have but
aren’t specifically mentioned are: employment
opportunities, educational opportunities, the right to
marriage, the right to a driver’s or hunting license, etc.
• The 10th amendment indicates that it is the right of the
individual state to regulate these things.
• Violating these civil liberties, as protected under the 9th
and 10th amendments, can result in a “civil rights case”.
• Remember – any rights violation can also be argued
under one of the 3 clauses of the 14th amendment!
Voting Amendments
• 15th - universal male suffrage 1870 – men can vote; Jim
Crow laws violated this amendment; more on this in
Chapter 5
• 19th amendment – women’s suffrage 1920 – Seneca
Falls was 1848; took 70 years for the right to be won.
• 23rd amendment – DC votes for president - 1961; 60% of
DC was African-American in 1960; done as a civil rights
measure
• 26th amendment - 18-21 vote (1971) – in response to
Vietnam War protests over the draft law; Congress and
Nixon initially made it a law; states challenged it in court;
had to do it via amendment
Historical Groupings
• Civil War/Reconstruction Amendments – logical
progression - 13 – free the slaves; 14 – make them
citizens; 15 – extend suffrage.
• Progressive Era Amendments – clean up
inequalities from the Industrial Revolution/Gilded
Age (16 - fairness in taxation w/ income tax; 17 –
fairness in election of Senators; 18 – cure societal
ills by banning alcohol; 19 – fairness in voting for
women)
Right v. Right
• Justice and equality cases are not simple
• They often pit two rights against each other
• Freedom of press v. national security (wartime;
post 9/11)
• Freedom of speech vs. right to privacy (Westboro
Baptist church protests)
• Freedom from illegal S/S vs. the right to “ensure
domestic tranquility” and “provide for the common
defense”
• “Your rights end at the tip of my nose!?!?!?”