Unit 5
Civil Liberties
Section 1: The Bill of Rights and
Fundamental Freedoms
• BILL OF RIGHTS
1st 10
Amendments
Protect civil
liberties
Bill of Rights
Protects all US
Citizens + most
aliens
Framers believe
this is imp. Job
of gov.
Balancing Rights vs. Interest of Public Good
• Examples:
• Freedom of assembly. You do NOT have the right to riot
• Example: Freedom of press. Should press have right to
report on a criminal investigation if it threatens the
accused’s right to a fair trial?
• Example: Right to bear arms. Does this mean anyone can
own any weapon?
• How does the gov. try to balance individual rights
with the public good?
• Pass laws
• Courts use judicial review
Section 2: First Amendment
Rights:
Freedom of Religion
The Establishment Clause
“Congress shall make no law respecting
an establishment of religion.”
A. NO official religion
B. NO favoring one religion over
another
C. We are too diverse for this
D. “separation between church and
state”—T. Jefferson
Court Cases
• RELIGION IN PUBLIC
SCHOOLS
• RELIGION IN PUBLIC
SCHOOLS
• GOVERNMENT AID FOR
RELIGIONS
• McCollum v. Board of
Education
• A. Illinois
• B. 1948
• C. Religious instruction
program
unconstitutionally
established religion
because it received
official support
• Engle v. Vitale
• A. 1962
• B. Unconstitutional to
have any officially
sponsored prayer in
school, even if voluntary
• Lemon v. Kurtzman
• A. Lemon Test
• 1. Have a secular, or
nonreligious, purpose
• 2. Neither advance nor
limit religion
• 3. Not result in excessive
government involvement
with religion
• Other court cases
• No Bible readings
• No moments of silence
for meditation or
prayer
• *STUDENTS ARE
ALLOWED TO PRAY ON
THEIR OWN AT SCHOOL!
OYEZ—click on the links to read about
the case
• McCollum v. BOE
• Engle v. Vitale
• Lemon v. Kurtzman
Freedom of Religion, continued
– Government Aid for Religion
• Parochial schools—schools run by churches or religious
groups
– Some believe gov. money should go to parochials
» Taxpayers
» Tuition would be less—choice of schools
– Some believe gov. money should NOT go to parochials
» Families choose it
» $$$ would support religious education
– Currently—some money used for some services
• Ex: busing, special education teachers
• LEMON TEST NOW USED!!!!!!!!!
“In God We
Trust”
Congress
opening
session with
prayer
Should
any of
these be
allowed?
Nativity Scenes in
front of
Government
Buildings
Taxes and Religion
a. Property owned by churches is not taxed
– For: it taxed, the gov. could limit the freedom of religion
– Against: puts all tax burden on the non-exempt
b. Custom and Religion
• “In God We Trust”
• Nativity scenes
• Opening Congress with prayer
• *all seen as OK—SC says they represent most
Americans’ deeply held beliefs
The Free Exercise Clause
– “Congress shall make no law…prohibiting
the free exercise of religion.”
– A person can choose his/her religion and
beliefs
– Religious practices can be restricted if
• Threaten health and safety of others (Ex:
bigamy, vaccinations/medicine)
st
1
Section 3:
Amendment
Rights:
Freedom of Speech
and of the Press
Early Case
• *John Stubbs case:
• 1. 1579 he wrote a book criticizing a proposed
marriage of Queen Elizabeth
• 2. his hand was cut off
**United States—freedom of speech
guaranteed. However, individual rights
must be balanced against other liberties.
Treason and Sedition
• Treason—act of aiding and comforting an enemy of the
US
• Sedition—the use of language that encourages people
to rebel against lawful gov.
– Both of these can be debated, depending on point of view
– Courts have had to balance individual rights vs. national
security
Alien and Sedition Acts
• 1789
• Made it illegal to say anything “false, scandalous and
malicious” against the gov or its officials
• Many arrested
• Many felt this went against 1st Amendment
• Expired in 1801
Clear and Present Danger
• Schenk v. United States
• WWI
• Use of US PS to
distribute leaflets to
encourage men not to
join the draft
• Schenk found guilty of
Alien and Sedition Acts
OYEZ.ORG
SCHENCK V.
UNITED
STATES
Prior Restraint
• stopping someone from expressing an idea or providing
info
The gov. can not do this
• Established in Near v Minnesota, 1931 (Click on this
note to read about the case)
• 1971—Pentagon Papers
– Court ruled The New York Times could publish this info that
dealt with the Vietnam War
Trials
– Trials
• News reporters have used First Amendment
guarantee of a free press to avoid giving testimony
about the identities of their news sources or
about info they have discovered in their work
• Courts have refused to accept the argument that
the 1st Amendment protects media from naming
their sources
–Branzburg v Hayes
»Reporters have to name their sources
–Shield laws: some states passed laws that
allow reporters to protect the identity of their
sources from state courts
OYEZ—click on the link to read about
the case
• Branzburg v. Hayes
– Libel
• Written defamation of a person
– Slander
• Spoken defamation of a person
– Obscenity—something sexually indecent and highly offensive
• Miller v California, 1973
– Obscenity is material
» In which the major theme would be judged to appeal to
indecent sexual desires by the average person applying
“contemporary community standards”
» That shows in a clearly offensive way sexual behavior not
allowed by state laws; and
» That is “lacking serious literary, artistic, political, or scientific
value.”
• ***Very hard to prove obscenity—
people’s standards vary.
OYEZ—click on the link to read about
the case
• Miller v. California
Licensing
• Radio and TV have fewer 1st Amendment protections against
gov actions than do newspapers
• They broadcast over airwaves owned by the public
• Federal Communications Commission (FCC)—gives licenses
– Violence/sex during certain hours
– TV Ratings System
• *with satellite and cable TV, things have changed
over recent years
– False advertising
• Can not give false or misleading advertisements
– EX: can’t say a product has health benefits when it does not
Freedom of Speech and Individual
Behavior
– Personal Conduct
– The following 3 cases deal with symbolic speech
• United States v O’Brien (1968)
– Burning draft cards was illegal
– Men did this to protest the Vietnam War
• Tinker v Des Moines (1969)
– Students had the right to wear black armbands to school in
protest of the Vietnam War
• 1990—court ruled that people can burn the American
flag in protest—freedom of expression
OYEZ—click on the link to read about
the case
• United States v. O'Brien
• Tinker v. Des Moines
Hate Speech
• The expression of hatred or bias against a person,
based on characteristics such as race, sex religion, or
sexual orientation
• Tough to enforce—however today, there are harsher
penalties for those who commit hate violence.
Section 4: Fundamental Freedoms
• Freedom of Assembly and Petition
Demonstrations and Protests
– These are very common
• Equal rights
• Abortion
• Honoring certain groups or causes
– PURPOSE???
• Persuade gov officials and others to pursue certain
goals
– These are protected by Bill of Rights
– Gov can set boundaries to protect rights of others
Assembly and Public Property
–
–
–
–
–
Can not block streets, be too loud, etc
For parades—must get a permit
Police could end protests if they get violent
End protests that could disrupt school activities
Some protests allowed, even if unpopular
• Skokie case (1978)
– Skokie, Illinois
– Neo-Nazi parade
– Many in Skokie were Jews, including some who escaped the
concentration camps
– Parade was allowed
• KKK rallies are allowed in not violent
OYEZ—click on the link to read about
the case
• Skokie Case
Assembly and Private Property
– Protests are very restricted on private property
– Lloyd Corporation v Tanner
• 1972
• Shopping mall
• Protestors trying to pass out literature opposing
Vietnam War
• Court ruled mall owners could not allow them to do so
OYEZ—click on the link to read about
the case
• Lloyd Corporation v. Tanner
Section 5: Assuring Individual Rights:
Protecting Civil Liberties
• Due Process:
• gov. duty to follow fair procedures set by law
when carrying out gov. functions
• courts decide whether gov has acted with due
process. In other words, courts determine
whether gov uses its police power reasonably
2 types of due process
Procedural
Due Process
• gov must apply a law fairly and act
according to procedures and rules set by
that law
• Ex: “Save Our City” wants to hold a
demonstration of the city’s lax pollution
law. Gov. says they can, but must be before
6am outside city limit. IS THIS DUE
PROCESS???????
Substantive
Due Process
• the principle that a law must be fair and
reasonable. The right to substantive due
process requires a court to consider the
fairness of the law itself.
Due Process and the States
– Fifth amendment: protected people from federal
government actions only (not from the states)
– After Civil War (1860’s) this changed
• 14th Amendment: everyone born in the US is a US citizen and
therefore has the right of due process (including freed slaves)
– Added to this amendment are the words “the states may not deprive any
person of life, liberty, or property, without due process of law.”
• Gitlow v. New York (1925)—established that the states MUST
respect the fundamental freedoms guaranteed by the Bill of Rights
• In short, the due process clause limits the governments police
power—or its authority to promote and to protect the health,
safety, and welfare of the people. This power is exercised
primarily by state and local governments.
– Ex: police officers have the police power to fight crime. However, they
have to work within the framework of the Constitution on things like
search and seizure—getting a warrant
OYEZ—click on the link to read about
the case
• Gitlow v. New York
Protecting People From Government
Intrusion
• ***4th Amendment—“the right of people to
be secure in their persons, houses, papers,
and effects, against unreasonable searches
and seizures.”
Security at Home
• Police must follow a certain set of rules if they want
evidence to be used in a criminal trial
• Search warrant—allows police to enter homes and search
for certain items
– Judge will only issue if “probable cause” shown
– If evidence collected without search warrant, evidence not
allowed
» Exclusionary rule
» Mapp v. Ohio (1961)—extended this to state trials
– Exceptions
• Evidence ruled OK if the officer acted in “good faith”
• No warrant needed to search through garbage
• No warrant needed to search things “in plain view”
OYEZ—click on the link to read about
the case
• Mapp v. Ohio
Personal Security
• 4th amendment prevents police from conducting
unreasonable searches of people and their possessions
• Police can’t search someone for no reason
– Exceptions
• Court has allowed employee drug tests
• Police do not need search warrant to search autos,
boats, etc
– These can be driven away!
• Sobriety checks
Security and Private Communications
• 4th amendment protections have been extended to
private conversations
• Court used to allow wiretaps without warrants
(Olmstead v. United States, 1928)
• 1967—this changed
– Court ruled that a warrant was needed for wiretaps
OYEZ—click on the link to read about
the case
• Olmstead v United States
Student Rights
• School officials need “reasonable” grounds to search
lockers, etc
• New Jersey v. T.L.O
– 14 year old caught smoking
– School officials searched purse and found marijuana
– Court ruled school can search to guard students’ health and
safety and keep order
OYEZ—click on the link to read about
the case
• New Jersey v. TLO
Protecting the Right to Privacy
– 1928—wiretapping was legal.
– Justice Louis Brandies wrote for the minority
• Said it was wrong for the gov. to wiretap without a warrant
– 1955—Supreme Court reversed itself
• Griswold v. Connecticut
• Dealt with birth control being illegal
• The Court said that such laws violated a married couple’s
“zone of privacy created by several fundamental
constitutional guarantees.”
– Another example: 1973 Roe v. Wade
• Abortion in the 1st 3 months
OYEZ—click on the link to read about
the case
• Roe v. Wade
Section 6: Assuring Individual Rights:
Rights of the Accused
*The Framers of the
Constitution wanted to
guarantee that innocent
people would not be
wrongly convicted of
crimes
Writ of Habeas
Corpus
Bill of
attainder
Ex Post Facto
Laws
Grand jury
Selfincrimination
Explanations
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Writ of Habeas Corpus
– Police must appear in court with the accused and show good reason to keep him or her
in jail
Bill of attainder
– The government may not pass laws directed at specific individuals
– The United States v. Lovett (1946)
Ex Post Facto Laws
– The government may not pass laws that punish people for actins that were legal when
they took place
Grand jury
– A person accused of a federal crime must be brought before a panel of citizens who
decide if the government has enough evidence to try him or her on formal charges
Self-incrimination
– An accused person cannot be forced to proved evidence to support a criminal charge
against himself of herself
– Miranda v. Arizona (1966)
• Police must inform criminal suspects of their rights
• Ernesto Miranda—confessed to rape after 2 hours of questioning
• Confession ruled not allowed because he was not read his rights
OYEZ—click on the link to read about
the case
• Miranda v. Arizona
Section 6: Assuring Individual Rights:
Ensuring Fair Trials and Punishments
• ***Government MUST respect a person’s right to a fair
trial and must act fairly when punishing people
convicted of crimes
• ***Which parts of the Constitution requires the
government to respect the rights of a fair trial??? The
Fifth, Sixth, Seventh, and Eighth Amendments! These
give us the right to a speedy and public trial, the right
to a trial by jury, the rights to an adequate defense, and
restrictions on trying a person twice for the same
crime.
Right to a Fair Trial—5 items
– 1. Speedy Trial
• 6th amendment
• The time period between the filing of formal charges
and the start of a trial must be reasonable
– Accused is not in jail for extended period
– Evidence won’t be lost
• Extensions can be allowed by the judge to allow
attorneys to gain more evidence
• Accused may be released on bail that is not excessive
– Once trial starts, bail money is returned (as long as accused
shows up!)
Right to a Fair Trial—5 items
– 2. Public Trial
• Helps prevent abuses of the law
• How about televising trials???
– OJ Simpson case
» For: it’s the public’s right to witness trials
» Against: this case was a circus! Everybody got to watch it
and it could influence the court proceedings!
» *IN OJ CASE, THE JURY WAS SEQUESTERED!
Right to a Fair Trial—5 items
– 3, Trial by Jury
• 6th Amendment, 7th Amendment, and Article III, Section 2 guarantees the
right to a trial by jury
• Petit Jury—decides cases
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12
Trial must be held in the district in which the crime was committed
Jury is a cross-section of the registered voters
Can not be kept off jury because of race, sex, economic status, national origin, or
religion
• Change of venue
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–
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Accused can ask for change of venue
They think they will not get a fair trial in their home town
EX: Timothy McVeigh—blew up a government building in Oklahoma City
His trial was moved to Denver
• Unanimous (all 12 jurors) verdicts needed to convict
• Bench trial
– Accused can waive right of trial by jury
– Judge decides the case
– Judge can refuse this
Right to a Fair Trial—5 items
– 4. Adequate Defense
• Sixth Amendment guarantees this right
• People accused of crimes have the right to
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Be informed of the charges against them
Question witnesses against them in court
Present their own witnesses in court, and
Be represented by counsel—a lawyer
• 1932—Supreme Court ruled that the right to counsel was so critical in cases
involving capital offenses that the government MUST provide lawyers for
people who cannot afford them
• 1963 Gideon v. Wainwright
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Gideon accused of breaking into a pool hall with the intent to commit a misdemeanor.
He was too poor to afford a lawyer, and requested that one be provided.
Judge refused.
He got 5 year sentence.
Gideon mailed a petition about his case to the Supreme Court.
Court said that Gideon’s 6th Amendment right was violated
government MUST provide lawyer for anybody who can’t afford one
• 1973: Court extended the right to counsel even further
– Accused person cannot be sent to jail for any offense unless he or she has either been
represented by counsel or voluntarily given up that right
OYEZ—click on the link to read about
the case
• Gideon v. Wainwright
Right to a Fair Trial—5 items
– 5. Double Jeopardy—can not be tried twice for the
same crime
• Fifth Amendment guarantees this right
• Can not be found innocent in state court, then tried again in
federal court
• Can not be found guilty, then put on trial again to get a harsher
penalty
• Does NOT INCLUDE
– Situation when a person breaks both a state and federal law
– If a jury does not give a verdict in 1st trial, you can be tried again
Fair Punishment—8th Amendment
– Cruel and Unusual Punishment
– What is cruel and unusual punishment?
Whipping? Flogging? Quartering? Firing Squad?
Electric Chair?
– Supreme Court says cruel and unusual
punishment “is not fastened to the absolute but
may acquire meaning as public opinion becomes
enlightened by humane justice.”
– 1969—overcrowding in prisons included as cruel
and unusual
Capital Punishment
– Is it cruel and unusual?
– Court said it is not cruel and unusual until the 1970’s
– Furman v. Georgia
• Court said capital punishment against the 8th Amendment
• Too many death penalty cases were influenced by race or
other factors
– 1976 Gregg v. Georgia
• Georgia came up with a new system for death penalty cases
• 2 parts—both decided by the jury
– Conviction phase
– Penalty phase
• Also, the Supreme Court automatically reviews all death
penalty cases
OYEZ—click on the link to read about
the case
• Furman v. Georgia
• Gregg v. Georgia