CIVIL LIBERTIES
• Civil liberties are the personal rights
and freedoms that the federal
government cannot abridge, either by
law, constitution, or judicial
interpretation.
• These are limitations on the power of
government to restrain or dictate how
individuals act.
U.S. Constitution - what the
government can do.
Bill of Rights - What the
government cannot do.
The Bill of Rights
• The Bill of Rights consists of the first
ten amendments to the Constitution
and includes specific guarantees such
as free speech, free press, and religion.
• The proposed Bill of Rights was sent
to the states for ratification and was
approved in 1791.
The Selective Incorporation
Doctrine
• The Bill of Rights was designed to limit the powers of
the national government.
• In 1868, the Fourteenth Amendment was added to the
Constitution and its language suggested that the
protections of the Bill of Rights might also be extended
to prevent state infringement of those rights.
• The amendment begins: "No state shall....deprive any
person, of life, liberty, or property without due process
of law."
• The Supreme Court did not interpret the 14th
Amendment that way until 1925 in Gitlow v. New York.
The Selective Incorporation
Doctrine
• In 1925, the Court ruled in Gitlow v. New York
that states could not abridge free speech due to
the 14th Amendment's Due Process Clause.
• This was the first step in the development of the
incorporation doctrine whereby the Court
extended Bill of Rights protections to restrict
state actions.
• Not all of the Bill of Rights has been
incorporated. For example the 3rd and 7th
amendments have not been incorporated.
Provision
1st Amendment
Freedom of Speech & Press
Freedom of Assembly
Freedom of Petition
Free Exercise of Religion
Establishment of Religion
nd
2 Amendment
Right to Keep & Bear Arms
rd
3 Amendment
Right Against Quartering Soldiers
th
4 Amendment
Unreasonable Search & Seizure
Exclusionary Rule
th
5 Amendment
Payment of Compensation for Taking of
Private Property
Self-Incrimination
Double Jeopardy
When Jeopardy Attaches
th
6 Amendment
Public Trial
Due Notice
Right to Counsel (Felonies)
Confrontation & Cross Examination of
Adverse Witnesses
Speedy Trial
Compulsory Process to Obtain Witnesses
Jury Trial
Right to Counsel (Misdemeanor when Jail
is Possible)
th
7 Amendment
Right to Jury Trial in Civil Cases
8th Amendment
Cruel & Unusual Punishment
9th Amendment
Privacy (Not Specifically Mentioned)
Case
Gitlow v. New York
DeJonge v. Oregon
Hague v. CIO
Cantwell v Connecticut
Everson v. Board of Education
McDonald v Chicago
Year
1925
1937
1939
1940
1947
2009
Not Incorporated
Wolf v. Colorado
Mapp v. Ohio
1949
1961
Chicago, Burlington & Quincy
Railway Co. v Chicago
Malloy v. Hogan
Benton v. Maryland
Crist v. Bretz
1897
In re Oliver
Cole v. Arkansas
Gideon v. Wainwright
Pointer v. Texas
1948
1948
1963
1965
Klopfer v. North Carolina
Washington v. Texas
Duncan v. Louisisana
Argersinger v. Hamlin
1967
1967
1968
1972
1964
1969
1978
Not Incorporated
Louisiana ex rel. Francis v. Resweber
1947
Griswold v. Connecticut
1965
Amendment I
Freedom of religion,
speech, press, and
assembly
First Amendment:
Freedom of Religion
The First Amendment states that: “Congress
shall make no law
1. respecting an establishment of religion,
2. or prohibiting the free exercise thereof;…”
In this section we will look at each of these clauses of
the First Amendment, the controversy and power
struggles surrounding them and the way the
Courts have interpreted and applied them.
An Established Religion
means that the Government will create and
support an official state church…often
– tax dollars support that chosen church.
– that church’s laws become the law of the
land.
– the Nation’s leader usually appoint the
leading clerics.
– often other religions are often excluded.
Drafting the First Amendment
• They asked, “Should
we establish a religion
or not?”
• Thomas Jefferson
wrote that there
should be “a wall of
separation between
church and state.”
Arguments for Religious Freedom
1. From the Holy Roman Empire to the
Church of England history indicates that
when church and state are linked, all
individual freedoms are in jeopardy.
•
•
If government is merely an arm of God what
power of government is not justified?
What could happen to religious minorities if
government and religion were linked?
Arguments for Religious Freedom
2. Many of the founding fathers believed that the
spiritual purity and sanctity of religion would be
ruined if it mixed with the worldly realm of
politics.
If religion becomes part of the government, in
Madison’s words, it results in “pride and
indolence in the clergy; ignorance and servility
in the laity; in both superstition, bigotry and
persecution.”
The Establishment Clause
• The Establishment Clause of
the First Amendment
guarantees that the
government will not create
and or support an official
state religion.
Separationists vs. Accomodationists
How high should the wall
between church and state
be?
Separartionists argue that
a high “wall” should
exist between the church
and state.
Accomodationists
contend that the state
should not be separate
from religion but rather
should accommodate it,
without showing
preference.
The Supreme Court and the
Establishment Clause
•The Supreme Court has held fast to the rule of
strict separation between church and state when
issues of prayer in public school are involved.
•In the early 1960s, the Court ruled that official
lead prayer and bible reading is unconstitutional.
•In Engel v. Vitale, the Court ruled that even
nondenominational prayer could not be required
of public school children.
Prayer in School
• In Lee v. Weisman
(1992), the Court
continued its
unwillingness to allow
organized prayer in
public schools by
finding the saying of
prayer at a middle
school graduation
unconstitutional.
Lemon v. Kurtzman
•
•
In 1971, the Court ruled that • In 1980, this Lemon
New York state could not
Test was used to
use state funds to pay
invalidate a Kentucky
parochial school teachers’
salaries.
law that required the
To be Constitutional the
posting of the Ten
challenged law must
1.
2.
3.
Have a secular purpose
Neither advance nor inhibit
religion
Not foster excessive
government entanglement
with religion.
Commandments in
public school
classrooms.
Establishment Tests
• In recent years, the Court has begun to examine the rigidity
of the Lemon Test. Issues have arisen that have called into
question the credibility and validity of the Lemon Test and
its application. Some of the issues are:
–
–
–
–
–
Nativity scenes in holiday displays on public property
The posting of the Ten Commandments in a courtroom
The daily prayer to start business in Congress
The words, “In God We Trust” on currency
The study of the Bible and religion as part of secular education in
public schools
– Loans of books and other services from public schools to private
religious schools
TEST #2- THE COERCION TEST- Based on the 1992 case of Lee v.
Weisman, 505 U.S. 577 the religious practice is examined to see to what extent,
if any, pressure is applied to force or coerce individuals to participate. The
Court has defined that "Unconstitutional coercion occurs when: (1) the
government directs (2) a formal religious exercise (3) in such a way as to oblige
the participation of objectors."
TEST #3- THE ENDORSEMENT TEST- Finally, drawing from the 1989 case of
Allegheny County v. ACLU, the practice is examined to see if it unconstitutionally
endorses religion by conveying "a message that religion is 'favored,' 'preferred,' or
'promoted' over other beliefs."
Establishment clause-Government
Cans
• Teach about religions in
school
• Allow voluntary prayer
in many examples
• Transport students to a
religious school
• Read Bible for culture
or literacy content
Cannot
• Set a state religion
• Government cannot
order a prayer
• Teach religious doctrine
in the school
• Pay seminary teachers
• Teach creationism
The Free Exercise Clause
• "Congress shall make no law.....prohibiting the free
exercise thereof (religion)" is designed to prevent the
government from interfering with the practice of
religion.
• This freedom is not absolute.
• Several religious practices have been ruled
unconstitutional including:
– snake handling
– use of illegal drugs
– Polygamy
• Nonetheless, the Court has made it clear that the government
must remain NEUTRAL toward religion.
"See You at the Pole"
• Student participation in
before - or after - school
events, such as "see you
at the pole," is
permissible.
• School officials, acting
in an official capacity,
may neither discourage
nor encourage
participation in such an
event.
Free Exercise—The person
Can
Cannot
• Choose whatever
religion
• Lead a prayer in most
examples
• Ask questions about
religions
• Worship who ever you
want
• Break the law and claim
it is religious belief
• Raise children without
education
• Deprave children of
basic needs
YOU BE THE JUDGE
The following cases all involve government action and religion. Amendment One of the Constitution says, “Congress
shall make no law respecting an establishment of religion (the establishment clause) or prohibiting the free exercise
thereof” (the free exercise clause). For each case, determine whether:
The case involves the Establishment Clause, the Free Exercise Clause, or both
Whether the action of the government violates the First Amendment protections
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
A state government pays a chaplain to open each legislative session with a prayer.
A state law allows tax deductions for tuition and school expenses for the parents of
students in both public and religious (parochial) schools.
A state unemployment bureau refuses to give unemployment benefits to a Jehovah’s
Witness who left his job with a defense contractor for religious reasons.
A state law authorizes a one-minute period of silence in all public schools for
meditation or voluntary prayer.
The federal Internal Revenue Service refuses to grant tax-exempt status to a private
university which does not permit interracial dating for religious reasons.
A city erects a Christmas display which includes Santa Clause, a Christmas tree,
reindeer and a nativity scene.
A state law requires that the Ten Commandments be posted in each public school
classroom.
A state motor vehicle department refuses to grant a photograph-free driver’s license to a
person who believes that photographs are forbidden by the Second Commandment.
A state law allows employees to refuse to work on the day of the week they select as
their Sabbath.
A state university makes facilities available for all student groups except religious
groups.
First Amendment: Freedom
of Speech and Press
• Speech - communication of ideas,
beliefs and feelings.
“make no law”
The Courts have frequently wrestled with the
question of whether freedom of expression
is an absolute. Does no mean no?
Supreme Court Justice Hugo Black believed that the
words no law literally meant that Congress shall make
no laws abridging the fundamental rights of the First
Amendment.
A Balance
• In their attempt to draw the line
separating permissible from
impermissible speech, judges have had
to balance freedom of expression
against competing values like
– Public order
– National security
– and the right to a fair trial
Freedom of the Speech
Protected Speech
•
Symbolic Speech
– Sit-ins
– Wear armbands (Tinker v Des
Moines)
– Burn American flag (Texas v
Johnson)
•
•
•
•
•
Protection against Prior Restraint
Unpopular speech – hate speech
Speech criticizing the government
(political speech)
Unconventional ideas
The right to hear, see, read, and be
exposed to different messages and
ideas.
Unprotected Speech
•
•
•
•
•
Seditious Speech
Obscenity
Defamation
Fighting Words
Commercial Speech
What Types of Speech are
Protected?
1. Symbolic speech--symbols, signs, and other
methods of expression. The Supreme Court has
upheld as constitutional a number of actions
including:
– An example of protected symbolic speech would be
the right of high school students to wear armbands to
protest the Vietnam War (Tinker v. De Moines
Independent Community School District, 1969).
– flying a communist red flag
– burning the American flag
Flag Burning
• Burning the American
flag is a form of
protected symbolic
speech.
• The Supreme Court
upheld that right in a
5-4 decision in Texas
v. Johnson (1989).
"if there is any principle of the
Constitution that more
imperatively calls for attachment
than any other, it is the principle
of free thought—not free thought
for those who agree with us but
freedom for the thought that we
hate.“
Oliver Wendell Holmes 1929
What Types of Speech are
Protected? Pentagon Papers
• 2. Prior Restraint – a government action
that prevents material from being
published.
• The Supreme Court has generally struck
down prior restraint of speech and press
(Near v. Minnesota, 1931).
• In NYT v. United States (1971) the Court
ruled that the publication of the top-secret
Pentagon Papers could not be blocked.
What Types of Speech are
Protected?
3. Hate Speech
4. Politically Correct Speech
• This controversy grew out of the
movement colleges to ban offensive
speech.
• Incidents in which reprimanded
students have challenged the
college’s code of speech have been
challenged successfully by the
American Civil Liberties Union
• Thefire.org
Unprotected Speech
(attempts to limit speech)
Alien and Sedition Acts (1798)
• These acts were designed to silence
criticism of the government.
• They made it a criminal offense to publish
“any false, scandalous writing against the
government of the United States.”
• A new Congress allowed the acts to
expire before the Supreme Court had a
chance to rule on the Constitutionality of
the laws.
Espionage Act (1917)
• In World War I anti-German feelings ran
high. Anything German was renamed – such as Sauerkraut to
Liberty Cabbage.
• This law curtailed speech and press during
World War I.
• The law made it illegal to urge resistance to
the draft, and even prohibited the
distribution of antiwar leaflets.
• Nearly 2,000 Americans were convicted
under the Espionage Act.
Espionage Act (continued)
• Schenck v. United States (1919) the
Supreme Court upheld the conviction
of Schenck (a secretary of the Socialist
Party) for interfering with the draft.
• The bad tendency test was used by the
Court. Engaging in speech that had a
tendency to induce illegal behavior
was not protected by the 1st
Amendment.
Espionage Act (continued)
• Holmes sought to allow limits on the 1st
Amendment.
• 1. Justice Holmes defined the “Clear
and Present Danger” test in the Schenck
case.
• “Even the most stringent protection of
free speech would not protect a man
falsely shouting fire in a crowded
theatre.” Justice Holmes.
Defamation
• False statements about someone that
damages their reputation
• Libel is a written statement that defames
the character of a person.
• Slander is spoken words that defame the
character of a person.
• In the United States, it is often difficult
to prove libel or slander, particularly if
“public persons” or “public officials”
are involved.
What is “obscene”?
• Efforts to define obscenity have perplexed
courts for years. Public standards vary from
time to time, place to place and person to
person.
• Work that some call “obscene” may be “art” to
others. Justice Potter Stewart once said he
couldn't define obscenity, but "I know it when I
see it." The ambiguity of definition still exists
and is becoming even more problematic with
the Internet.
• No nationwide consensus exists that offensive
material should be banned.
4. Obscenity
• The courts have consistently ruled that states
may protect children from obscenity
(Osborne v. Ohio, 1991); while adults often
have legal access to the same material.
• Although the Supreme Court has ruled that
“obscenity is not within the area of
constitutionally protected speech or press”
(Roth v. United States, 1957) it has proven
difficult to determine just what is obscene.
Miller vs. California
• Miller concerned bookseller Marvin
Miller's conviction under California
obscenity laws for distributing
illustrated books of a sexual nature.
• In Miller, the Court's decision stated
that obscene material is not
protected by the First Amendment.
"Three-Pronged Test" for
Obscenity
In order to meet the definition of obscene
material articulated in this case, three
conditions must be met:
1. whether the average person, applying
contemporary community standards, would find
that the work, taken as a whole, appeals to the
prurient (unwholesome interest or desire) interest
2. whether the work depicts or describes, in a
patently offensive way, sexual conduct
specifically defined by the applicable state law.
3. whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
value.
Fighting Words
• Words spoken face-to-face that are likely to
cause immediate violence
• Not used in courts much today
Commercial Speech
• When speech is intended to reach customers
• Government can ban or restrict
– False or misleading speech about a product
– Information about illegal products
– Speech if there is a “good” reason
• Alchol advertising to targeting children
• Distracting billboards on highway
Speech in Special Places
• Government can
require permits
• Government can limit
time, place, and
manner.
• Limitations must be
enforced even
handedly
• Armed Forces
– Subject to the Uniform
Code of Military Justice so
some additional speech can
be restricted
– Speech must reflect respect
for chain of command
• Prison
– Restricts speech that can
endanger other inmates or
staff
Schools
• Tinker v Des Moines (1969)
– Can restrict speech if it interferes with maintaining a
good learning environment.
• Bethel v Fraser (1986)
– Schools can punish lewd and indecent speech that
would be protected outside of school
• Hazelwood v Kuhlmeier (1988)
– Schools can regulate speech in school sponsored
activities (school newspaper, etc)
Freedom of the press-the press
Can
• Print any political
position
• Make fun of people,
especially politicians
• Expose wrongs by the
government
• Say things you might
not agree with
Cannot
• Libel– intentionally
injuring a person’s
reputation by false facts
• Disclose defensesecurity secrets
• Detail how to make a
certain weapons
Freedom of Assembly--Individual
Can
Cannot
• Protest
• Parade (with a
permit)
• Parade chanting hate
slogans
• Gang members can
congregate in public
• Protest by throwing
rocks and breaking
windows
• Hang out on private
land against owners
will—loitering
• Teen curfew
Amendment II
A well regulated militia,
being necessary to the
security of a free state, the
right of the people to keep
and bear arms, shall not be
infringed.
The Right to Keep
and Bear Arms
• The 2nd Amendment states that
• "A well regulated militia, being necessary to the
security of a free state, the right of the people to
keep and bear arms, shall not be infringed."
• This amendment has been hotly contested in
recent years particularly since the 1999 shootings
at Columbine High School.
• The Amendment was incorporated in 2009
McDonald v Chicago
Amendment III
Prohibition against
quartering of troops in
private homes
Amendment IV
Prohibition against
unreasonable searches
and seizures
IV Basics
CONDUCT CONSTITUTING A SEARCH OR SEIZURE
• A search is a governmental invasion of a person's privacy. The Supreme
Court has adopted a two-part test to determine whether a person's
expectation of privacy is legitimate. First, the individual must exhibit an
actual subjective expectation of privacy. Second, society must be prepared
to recognize that expectation as objectively reasonable.
• FOURTH AMENDMENT DOES NOT APPLY TO
• Private Citizens (“Silver Platter Doctrine”)
• Abandoned Property
• Items Exposed to Public (i.e. pay phones, restaurant booths, areas of a
business open to the public, areas considered semi-private- including
buildings in the “open fields”)
• School Locker
• Use of “reasonable” Optical Aids (i.e. binoculars, mirrors, cameras) are
OK if used in an area where law enforcement has a lawful right to be
• WARRANT REQUIREMENTS
• Probable Cause
• Neutral Magistrate
• Supporting Affidavit
• Required Specificity
• Use of Informants to Obtain OK if Proven Reliable
Amendment V
Rights guaranteed to the
accused: requirement for
grand jury indictment;
protections against double
jeopardy, self-incrimination;
guarantee of due process
Amendment VI
Right to a speedy and
public trial before an
impartial jury, to crossexamine witnesses, and to
have counsel
Amendment VII
Right to a trail by jury in
civil suits
Amendment VIII
Prohibition against excessive
bail and fines, and cruel and
unusual punishment
Amendment IX
Rights not listed in
Constitution are
retained by the people
Amendment X
States and the people
retain those powers not
denied to them by the
Constitution or delegated to
the national government
Rights of Criminal Defendants
are the due process rights and
the procedural
guarantees provided by the
Fourth, Fifth, Sixth, and
Eighth Amendments
Fourth Amendment
• The 4th Amendment’s general purpose
– is to deny the government the authority to
make general searches.
• The Supreme Court has interpreted the 4th to
allow the police to search
– The person arrested
– Things in plain view of the accused
– Places or things that the person could touch or reach,
or which are otherwise in the arrestee’s “immediate
control.”
Fourth Amendment
• Provides protection against
“unreasonable” searches and seizures
• Requires search warrants-probable cause
• Allows “Stop and Frisk”-warrant less
searches only with reasonable suspicion
Exclusionary Rule
A policy forbidding the
admission at trial of illegally
seized evidence.
Weeks vs. U.S. (1914)
Established the
“exclusionary rule”
Fifth Amendment
• The 5th Amendment
states that “No person
shall be …compelled
in any criminal case to
be a witness against
himself.
• So the accused cannot
be required to take the
stand in a trial.
House Committee on Un-American Activities
Miranda vs. Arizona (1966)
“you have the right to . . . .
. . . . . .”
Sixth Amendment
• The 6th Amendment Guarantees a right to counsel.
• In the past this meant that a defendant could hire an
attorney.
• Since most criminals are poor they did not have
counsel.
• Gideon v. Wainwright (1963).
Sixth Amendment
• Trials
– Plea bargaining: a bargain between the prosecution and
defense for a defendant to plead guilty to a lesser crime;
90 percent of cases end here and do not go to trial
– The Sixth Amendment also guarantees a “speedy and
public” trial.
– The War on Terrorism –
• Hamdi v. Rumsfeld (2004) provided detainees, who are U.S
citizens, the right to challenge their detention before a judge
• Boumediene v. Bush (2008) foreign prisoners had a right to
habeas corpus under the Constitution.
Eighth Amendment
• The 8th Amendment prohibits cruel and unusual
punishment.
• The 8th is most often used in arguing death penalty
cases? Some of the major death penalty cases are:
– Furman v. Georgia (1972)
– Mckleskey v. Kemp (1987) the Court rules that the death
penalty – even when it appeared to discriminate against
African Americans – did not violate the constitution.
– McKleskey v. Zant (1991) the Court made it more difficult
for death row inmates to file repeated appeals.
The Right to Privacy
• The Supreme Court has also given
protection to rights not specifically
enumerated.
• The Court has ruled that though privacy
is not specifically mentioned in the
Constitution, the Framers expected
some areas to be off-limits to
government interference.
Right to Privacy
Implied in 1,3,4,5,14
amendments
Griswald v CT
Year: 1965
Issue: Is privacy protected by the
Constitution?
Amendments: 4th, 9th & 14th
Significance of Ruling: Court establishes that
there is a penumbra of rights (unstated
liberties implied by the explicitly stated
rights) protecting a right to privacy.
The Right to Privacy - Abortion
• In Roe v. Wade (1973) The Supreme Court ruled that
a Texas law prohibiting abortion violated a
woman's constitutional right to privacy.
• Since Roe, a number of other cases on abortion
have been decided, in general they have limited
abortion rights in some way.
• Webster v. Reproductive Health Services (1989) upheld fetal viability tests
• Planned Parenthood of Southeastern
Pennsylvania v. Casey (1992) - Pennsylvania was
allowed to limit abortions as long as they did not
pose 'an undue burden' on pregnant women.
The Right to Privacy
Homosexuality
• In 1986, the Court upheld a Georgia law against
sodomy in a 5-4 decision in the case of Bowers v.
Hardwick.
• However, in 1996, the Court ruled that a state could not
deny rights to homosexuals simply on the basis of
sexual preference.
• The Court extended privacy rights to protect
homosexual acts in the case Lawrence and Garner v.
Texas. (2003) This case overturned Bowers v.
Hardwick
The Right to Privacy
The Right to Die
• In 1990, the Court heard the case Cruzan by
Cruzan v. Director, Missouri Department of
Health.
• In a 5-4 ruling, the Court rejected a right to
privacy in such cases but argued that living wills,
written when competent, were constitutional.
• In 1997, the Court ruled that there was no
constitutional right to assisted suicide.
THINK!
As it becomes easier and
easier to get more and more
information about all of us,
what kind of civil liberties
(rights) protections do you
think the government should
institute?
Think!
What kinds of practices
that curtail some rights,
such as DNA testing, but
may contribute to the
betterment of life for the
majority, should be
permitted?