Civil Liberties: First Amendment Freedoms
I. Unalienable Rights
a. Revolutionary war was fought to expand the individuals
rights vs. the rights of government
b. Ratification of the constitution was reliant on the
Federalists agreeing to a bill of rights
i. The first 10 amendments declares
1. Civil Rights- positive acts of government that
seek to make constitutional guarantees a
reality for all people
a. I.E.- prohibitions on segregation
2. Civil Liberties- protections against
government
b. I.E.- freedom of speech,
religion, and press
What are the differences between
civil rights and liberties?
Civil Rights- positive acts
of government that seek
to make constitutional
guarantees a reality for
all people
Civil Libertiesprotections against
government
c. Limited Government
i. Limited by the rights of citizens laid out in
the constitution
ii. Rights are relative
1. “the right to swing my fist ends with
its contact with another’s jaw”
d. To whom are rights guaranteed?
i. All persons within the United States
1. Often including aliens
ii. Japanese internment 1944
How does that relate to Muslims in the United
States today?
After 9-11 many Muslims rights were
“suspended” through
Imprisonment at Guantanamo Bay
Patriot Act
e. Federalism and Rights
i. 5th and 14th Amendment-Due Process
Clause
1. “No State shall…deprive any person
of life, liberty, or property, without
due process of law….”
2. Causes States to incorporate the Bill
of rights through the clause into
their State Courts Upheld through
ii. 9th Amendment
1. Sets out that not all of a persons
rights are laid out in the Constitution
II. Freedom of Religion
a. Freedom of Expression
b. 1st and 14th Amendments
i. Prohibits the establishment of a
national religion in the
Establishment Clause
ii. Prohibits the government
interference in the “free exercise of
religion” (Free Exercise Clause)
c. Separation of Church and State
What does the Establishment
Claus do?
Prevents the establishment of a national
religion.
d. Religion and education
i. Students may be bussed to religious schools
ii. Students may be given “release time” to
attend religious classes
iii. Courts have struck down any reading of
the bible, posting of religious documents,
and moments of silence in certain states
iv. 1968 theory of evolution may to be taught
in public schools
v. May give aid to religious schools
1. Those who attend would be attending
public school if they did not attend
religious
2. Lemon test (Lemon v. Kurtzman
1971)
a. Purpose for the aid must be
secular
b. Must not be to aid or hinder
religion
c. Must avoid, “excessive
entanglement of government
with religion
What is the function of the Lemon
test?
Purpose for the aid must be secular
Must not be to aid or hinder religion
Must avoid, “excessive entanglement of
government with religion
e. Free Exercise Clause
i. Any person has the right to believe in their
chosen religion
ii. Limits
1. Use of poisonous snakes
2. Use of child labor
3. U.S. can take native American land
used for religious purposes
III. Freedom of Speech and Press
a. 1st and 14th amendments serve two important
purposes
i. Guarantee each person a right of free
expression, in the spoken and the written
word
ii. Guarantee to all persons a full, wide
ranging discussion of public affairs
b. Not protected
i. Libel
ii. Slander
iii. Seditious Speech
1. Support an overthrow of the government
iv. Alien and Sedition acts of 1798
1. Allowed the president to deport those
speaking against the government
v. Sedition act of 1917
1. Crime to encourage disloyalty, interfere
with the draft, obstruct recruiting, incite
insubordination in the armed forces, or hinder
the sale of gov. bonds
2. Upheld in Schneck v. United States, 1919
vi. Smith Act 1940 made it a crime to
1.
1. Advocate a violent overthrow of the gov.
What is the difference between
libel and slander?
Libel- Written
Slander- Spoken
vii. Obscenity (Miller v. California)
1. Illegal if
a. The average community person finds
the work to excite lust
b. Work depicts or describes in an
offensive way a form of sexual
conduct specifically dealt with in an
anti-obscinity law
c. Work taken as a whole lacks serious
literary, artistic, political or scientific
value
ix. The Media
1. Confidentiality
a. Media must give up their sources
upon government scrutiny
i. Many have chosen to go to jail
instead
2. 30 states have created “shield laws” to
protect the media
2. Motion Pictures
a. Most people rely on the film
industry’s own rating system, very
few independent review boars remain
3. Radio and TV
a. FCC
i. Forbidden to censor content of
programs before they are
broadcast
ii. Limited power because of 1st
amendment freedoms
1. May ban use of indecent
language
x. Symbolic speech
1. Burning a draft card for example
2. Flag burning
What organization regulates the
Radio Waves?
Federal Communication Commission
IV. Freedom of Assembly and Petition
a. Assembly
i. Protected by 1st and 14th amendment
ii. Only if the assembly or petition is peaceable
b. Regulations
i. Government may govern the time-placemanner of the assembly
ii. Often require permits and advanced notice
iii. May not trespass on private property
c. Gregory v. Chicago, 1969
i. Gregory arrested after de-segregation march
ii. Supreme Court Held that the community
and not the protestors were at fault
d. Freedom of association
i. The right to associate with others to promote
political, economic, and other social causes
V. Due Process
a. In whatever it does the government must act fairly
in accord with established rules
i. It may not act unfairly, arbitrarily, or
unreasonably
b. 2 clauses in the Constitution
i. 5th Amendment
1. Federal Gov. cannot deprive any
person of, “life, liberty or property”
with out due process
ii. 14th Amendment
1. Places the same restriction on the
states
c. Supreme Court has refused to define, instead
interpreting on a case by case basis
d. Procedural
i. Due process in the methods of
government action
ii. Exemplified in Rochin v. California,1952
1. Narcotics bust
e. Substantive
i. Policies of Government Action
ii. Upheld in Pierce v. Society of Sisters,
1. Oregon wants to destroy parochial
schools
VI. The Police Power
a. The authority of each State to act to protect and
promote the public health, safety, morals, and
general welfare
b. Often conflicts with civil rights protection
i. Drunk Driving tests
1. State and Federal Courts come down
on the side of Police Powers
2. Leading Case Schmerber v.
California, 1966
ii. The state has often found to promote public
health, safety, morals, and welfare they
may override civil rights and
1. Limit the sale of alcoholic beverages
and tobacco, make laws to combat
pollution, and require vaccination of
school children
2. Forbid concealed weapons, require
the use of seatbelts, and punish drunk
drivers
VII. Right of Privacy
a. The right to be free, except in very limited
circumstances from unwanted governmental
intrusions
b. Roe v. Wade
i. Encompasses the woman’s right to
terminate pregnancy
What is the landmark abortion
case?
Roe v. Wade
ii. Since the decision State Courts have put
limitations on abortions such as:
1. Not allowing an abortion after 20 weeks
2. Forcing minors to gain consent of a parent
3. Women seeking abortion must:
a. Be given professional counseling
intended on changing her mind
b. Delay the abortion for at least 24
hours after counseling
4. Doctors must keep detailed records of
abortions they perform
VIII. Slavery and Involuntary Servitude
a. 13th Amendment
i. Does not forbid all forms of servitude
1. 1918 Court drew the distinction
between involuntary servitude and
duty to rationalize the draft
ii. Its intended purpose was curtailed by The
Civil Rights Cases, 1883
1. Gave the rights given to the freed
slaves narrow scope
2. Established discrimination legal, as it
did not constitute slavery
iii. Empowered in 1964 with the Civil Rights
Act
1. Supreme Court has since widened the
scope and affirmed the act
IX. Right to bear arms
i. 2nd Amendment
1.“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.”
ii. Regulated by the States
What amendment encompasses
the right to bear arms?
2nd
X. Security of Home and Person
i. 3rd Amendment
1. Forbids the housing of soldiers in private
homes
ii. 4th Amendment
1. Prevents writs of assistance
a. Blanket search warrants with which
British customs officials had used to
invade homes to search for smuggled
goods
i. Probable Cause
1. A reasonable suspicion of a crime
2. Police have not general right to search for
evidence or to seize either evidence or
persons unless they have probable cause
3. Florida v. J.L., 2000
a. Police did not acquire a warrant for a
concealed handgun on a teenager
4. Arrests
a.When police make a lawful arrest
they do not need a warrant to search,
“the area within which the suspect
might gain possession of a weapon or
destructible evidence.”
b. Illinois v. Wardlow, 2000
i. Fleeing the scene reasonable
cause
5. Automobiles
a. From 1925-1991 Search required a
warrant
b. California v. Acevedo, 1991
i. “Whenever police lawfully stop
a car, they do not need a
warrant to search anything in
that vehicle that they have
reason to believe holds
evidence of a crime.”
ii. Includes passenger’s
belongings
6. Exclusionary Rule
a. Evidence gained as the result of an
illegal act by police cannot be used at
the trial of the person from who it was
seized
b. Mapp v. Ohio, 1961
i. Pornography evidence found
without a warrant
7. Drug Testing
a. Can be conducted without warrants or
indications of drug use
i. Upheld at the School District Level
1. Vernonia School District v.
Action, 1995
8. Wiretapping
a. Katz v. United States, 1967
i. Not allowed to wire tap
b. Challenged by Patriot Act