CIVIL LIBERTIES
This nation’s commitment to personal
liberty = necessity of limiting government
The Bill of Rights
1st 2nd 3rd 4th 5th 6th 7th 8th and the added
liberties proffered by 13th 14th and 15th amendments
remember the 9th = the “elastic clause “ of rights
for example : right of privacy
CIVIL LIBERTY : protection from government in areas of:
• religion
• speech
• press
• association
• fair trial
• fair treatment
• privacy
CIVIL RIGHT : positive acts required of government to guarantee the civil liberties of all;
to make full citizenship a reality for all. Prohibition against “discrimination”
based on race, gender, religion, nation of origin, age, beliefs, or orientation.
BUT THESE LIBERTIES & RIGHTS ARE NOT ABSOLUTE
Rights and liberties of individual citizens can conflict with the rights and liberties of others.
Therefore the need for government to ascertain the extent and implications of a person’s rights upon society, ever mindful
of this nation’s commitment to full personal liberty
Freedom of Religion
US tradition = no government sponsorship of a specific church over another church
The Pilgrims sought freedom from persecution, so they could persecute freely!
- Gore Vidal
-writer
1st Amendment and Religion
- establishment clause :
- free exercise clause:
“Congress shall make no law respecting the establishment of religion…”
“… or prohibiting the free exercise thereof ;”
Establishment Clause
- the notion of a “wall of separation” should exist between church and state
The USA opposes a national church, but demands that religion be respected by government
Engel v. Vitale (1962)
no school prayer
Lemon v. Kurtzman (1971)
fiscal re-imbursement to church schools for secular services ok’d
LEMON TEST:
1.
2.
3.
Must have a clear secular, non religious purpose
Must neither advance or inhibit religion
Must avoid an excessive entanglement of government and religion
Free Exercise Clause
- religion cannot make legal what is otherwise illegal
Oregon v. Smith (1990)
drugs as Eucharist
Reynolds v. US (1879)
no to polygamy
FREEDOM OF SPEECH
Fundamental natural right: intended to protect unpopular speech
The freedom to differ is not limited to things that do not matter much.
- Justice Robert Jackson
Do not fear error, it sharpens your own beliefs. If you believe in free speech- believe in its power
to overcome error in a fair debate
- John Stuart Mill
- philosopher
Clear and Present Danger Test
Schenk v. US (1919)
- free speech is not absolute
Brandenburg v. Ohio (1969)
- cannot punish the advocacy of illegal action unless it is
intended to incite or produce an imminent lawless act, and it is likely to
incite or produce such an act.
Limitations on Free Speech:
libel - lying
slander - intentional smearing of reputation
New York Times v. Sullivan (1964)
- public figures are libeled only when it is both false and purposely malicious.
obscenity
is not protected – ruled in Roth v. US (1957)
but obscenity laws are not to be used to place a limitation on “art” or “expression”
under Miller v. California (1973)
MILLER TEST
1. Must be viewed as “prurient” in accord with average sensibilities
2. Must have no redeeming merit - no scientific, educative, artistic value
3. Must be against existing community standards*
( *in accord with the notion of “police powers” )
symbolic speech (non verbal protest)
Tinker v. Des Moines (1969)
A student does not shed his rights at the school house door.
Justice Abe Fortas
Johnson v. Texas (1989)
- flag burning is ok as protest, but symbolic speech is not to be used to
incite illegal action. So Cross burning is not protected – it’s a crime.
Chaplinsky v. New Hampshire (1942) – “fighting words” not protected
threats or fear causing not free speech
Prior Restraint ( censorship)
Near v. Minnesota (1931)
New York Times v. US (1971)
But pedagogical concerns trumps “prior restraint” protections
Hazelwood v. Kuhlmeier (1988)
RIGHTS OF THE ACCUSED
I. Origins
- Habeas Corpus
- Bill of Attainder
- Ex Post Facto
II. 4th Amendment: Search and seizures
- EXCLUSIONARY RULE: Weeks v. US (1914) – but it was not INCORPORATED
Mapp v. Ohio (1961) – the 4th is INCORPORATED
because of the due process clause of the 14th Amendment
time, place, and other specifics required, if not – it is EXCLUDED
*** exceptions: important to keep the legal notion of “probable cause” in mind.
good faith
in plain view
inevitable discovery
others allowed especially for the safety of the police
III. Right to Counsel
6th Amendment
Gideon v. Wainwright (1963)
incorporated
writs of in forma pauperis introduced
5th Amendment
Miranda v. Arizona (1966)
5th Amendment
requires “due process”: government must follow all rules and procedures correctly
the 5th also protects Americans from “Self-incrimination” – the accused cannot be duped or
forced to aid the government in its case against him/her. Furthermore
Miranda Rights require the police to make the accused aware of this and all his/her rights as
an accused person.
A problem civil libertarians
have with rendition and other
anti-terrorist policies .
To be “Balanced and Fair”
THE CATCH-ALL 5TH AMENDMENT
IT PROTECTS AGAINST: - self-incrimination
- improper government action and procedure (due process)
- “double jeopardy”
and besides protection for the “accused” - it also protects citizens as property-holders
EMINENT DOMAIN - the government cannot take your property without just compensation $
tradition had been that
property was only taken for
the public interest ( highways
and hospitals and arenas), but
the current SCOTUS now
permits eminent domain for
private economic development –
shopping malls.
8th Amendment
“no cruel or unusual punishment” ???
Furman v. Georgia (1972) – placed a
moratorium on the death penalty,
Gregg v. Georgia (1976) permits it again
as long as it is applied without discrimination.
The “Right to Privacy”
The right to be left alone.
Justice Louis Brandeis (1890)
privacy is “the right to be free, except in very limited circumstances.”
- Stanley v. Georgia (1969)
Implied via:
1St Amendment – religious freedom
3rd Amendment – no quartering of troops
4th Amendment – secure in your property
5th Amendment - eminent domain only
thru due process
9th Amendment – citizen rights need not be listed
Griswold v. Connecticut (1973)
Roe v. Wade (1973)
7:2 vote by SCOTUS Majority opinion written by Justice Harry Blackmun
Challenges to Roe: Webster v. Reproductive Health Services (1989) taxes don’t have to pay for
Planned Parenthood v. Casey (1992)
no “undue burden” ok’d
Gonzalez v. Carhart (2007) ban on “partial birth” abortions ok’d
Gay Rights
Bowers v. Hardwick (1986)
5-4 decision states could enact anti-sodomy laws
Roemer v. Evans (1996)
5-4 decision states could not deny cities passing ordinances protecting gay rights
Lawrence v. Texas (2003)
6-3 decision overturning Bowers .
If the right of privacy means anything, it is the right of the individual, married or single, to be free from
Unwanted government intrusion”. The right of privacy means the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of human life.”
- from the Lawrence majority opinion
BUT, now the consequences … the Court have to decide: same sex marriage
standing of DOMA
Don’t Ask Don’t Tell in military
state laws shielding businesses from civil rights complaints = Religious Freedom laws
And remember, private groups and organizations can legally exclude homosexuals!
BSA v. Dale (2000)
Dale based on a “freedom of association”
(2014) Burwell v. Holly Hobby – religious freedom trumps
federal law requiring contraceptives accessibility
Often issues regarding civil liberties is a question of a right vs. a right
Courts have to make the judgment call on which one needs to take priority.
Additionally every person is not the law unto him or her self – society (government) has rights too –
COMPELLING INTEREST
which may supersede the individual’s rights to live or act as he or she chooses.
Civil Liberties are vital to our existence as American citizens , but they are not absolute