C
L
Related Text: Govt in America,
Ch

Rights & Freedoms
• Civil Liberties: constitutionally protected
freedoms (protected by BoR, due process)
– Free from unnecessary gov’t infringement
• Civil Rights: constitutional guarantees of all persons to due process and equal protection (5 th & 14 th )
• Legal privileges: granted by gov’t – can be restricted

Bill of Rights & States
• History of BoR
– Federalist vs. Antifederalist positions
– Originally applied only to nat’l gov’t, not states ( Barron v. Baltimore , 1833)
• 14 th amendment (1868): applies specifically to States, respecting rights of all persons
– Citizenship clause
– Due process clause
– Equal protection clause

Rights – Original Constitution
• Right to apply for writ of habeas corpus – intended to prevent unjust detainment
– Gov’t can’t suspend, unless in case “of rebellion or invasion of public safety”
– New issues with terrorism: what about “enemy combatants”? Where is U.S. civilian court jurisdiction vs. military?
– Decision: non-citizens in Gitmo have habeas right, use civilian courts
• Gov’t can’t pass ex post facto laws to disadvantage of person in a criminal trial

Bill of Rights & States
• Gitlow v. New York (1925): first selective incorporation case, applied 1 st amendment to the states
– Legislature can restrict speech/publication if they have “tendency” to result in action dangerous to public security
• Through 14 th , most of BoR protections are now incorporated to states
– Drastically altered federal relationship; Courts final arbiters of these disputes

Amendment 1
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

1 st Amendment - RELIGION
• Free exercise clause and establishment clause sometimes in conflict
Establishment clause :
• Debate: total gov’t neutrality toward religion vs. gov’t just not establishing official or showing preference to one sect?
• Lemon v. Kurtzman (1971): 3 part test …
– (1) does law have secular legislative purpose?
– (2) does law neither advance nor inhibit religion?
– (3) does law avoid “unnecessary entanglement”?

1 st Amendment - RELIGION
• Where does “wall of separation” lie?
– Endorsement test
– Nonpreferentialist test
– Strict separation
• Engel v. Vitale (1962): prayer in public schools violates est. clause

1 st Amendment - RELIGION
Free Exercise clause:
• Before 90s, religious practices given “mantle of protection”; burden on gov’t to prove compelling interest, least restrictive manner
• The Yoder Test –Wisconsin v. Yoder (1972):
– (1) Has the gov’t action created a burden on the free exercise of religion?
– (2) Is there a sufficiently compelling state interest to justify this infringement of liberty?
– (3) Has the gov’t used the least intrusive means possible to achieve the gov’t’s legitimate goal?

1 st Amendment - RELIGION
Free Exercise clause:
• • Employment Division of Oregon v. Smith (1990): law burdening religious behavior OK as long as
neutral in wording and application & doesn’t apply solely to religious practice
Use of illegal drugs during religious ceremony not protected by 1 st amend.

1 st Amendment - RELIGION
Free Exercise clause:
• • Church of Lukumi Babalu Aye v. City of Hialeah
(1993): not neutrally applied to all must undergo the most rigorous scrutiny
– Must advance compelling state interests & use least intrusive means possible to protect public interest
Sacrifice of animals during religious service – okay or not?

Amendment 1
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

1 st Amendment – EXPRESSION
• Belief vs. speech vs. action
Speech & Public Order:
• Clear & present danger test
( Schenk v. U.S.
)
**” Imminent lawless action ” test replaced
C&PD ( Brandenburg v. OH ): intent, imminence, & likelihood of criminal act
• Preferred position test
(speech given special place of protection)
*”Hate speech”

1 st Amendment – EXPRESSION
Protected Speech
• Symbolic speech is often protected
• Most attempts at prior restraint assumed unconstitutional
– Exceptions: military/security matters; HS student papers
• Laws restricting speech must be
– Clear (no vagueness)
– Least restrictive means possible
– Content/viewpoint neutral**

1 st Amendment – EXPRESSION
Nonprotected Speech
• Libel & slander: NY Times v. Sullivan : actual malice
• Obscenity: Miller v. California : community standards, conduct described in law specific
& offensive, lacking in “value”
• Fighting words : intended to cause injury to hearer, or incite immediate breach of peace
• Commercial speech : less protected, discourage false or misleading ads

Amendment 1
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

1 st Amendment – EXPRESSION
Press
• Prior restraint protected
– Can be punished after publication (libel/slander; private vs. public persons)
• Free press vs. fair trial
• No federal shield laws for reporters, but some states have passed them
• Freedom of Information Act: most records of federal exec agencies public record
– Burden on gov’t to say why withholding info

1 st Amendment – EXPRESSION
• Broadcasting gets least 1 st am. protection
• FCC grants licenses, regulates, imposes fines for misuse
– Can’t censor, but protected in imposing sanctions
• Internet treated uniquely – most attempts by Congress to implement restrictions struck down

Amendment 1
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

1 st Amendment – ASSEMBLY &
Assembly
PROTEST
• Gov’ts CAN place “reasonable” time, place,
& manner restrictions [Cox v. NH (1941)]
– Any restriction cannot be applied b/c of
content, must apply to all fairly
Right to Associate
• Freedom to associate & join groups w/o gov’t interference
– NAACP v. Alabama (1958)
• NAACP didn’t have to comply with AL’s request to turn over their membership list.

•
1 st Amendment – ASSEMBLY &
PROTEST
– Protects peaceful, not violent
– Can protest in private areas that have public purpose (shopping mall, parking lot, etc)
• Hill v. Colorado (2000): can est. a
“buffer” around targets of protest
• Though civil disobedience peaceful, not constitutionally protected

Amendment 2
“Collective” right vs.
“individual” right?

2 nd Amendment – BEAR ARMS
Recent developments …
• • D.C. v. Heller (2008):
SCOTUS est. 2 nd as an “individual” right
– Precedent favored “collective right” interpretation w/ focus on militia preamble
• • McDonald v. Chicago
2 nd to states
(2010):
• NOW: cannot ban owning a gun BUT can put limits on ownership requirements

4 th
SUMMARY OF CRIMINAL RIGHTS
AMENDMENTS
• No unreasonable search/seizure
• Need probable cause, warrant signed by judge; warrant must be specific
5 th
• Indictment by grand jury in federal criminal court for capital charge
• No double jeopardy
• Protection from self-incrimination
• Guarantee of due process of law
• Gov’t has power of eminent domain

Property Rights: Eminent Domain
• Must give “fair market value” as compensation
• Kelo v. City of New London (1994): can take private property for private purposes if it enhances community as a whole
Controversy: should gov’t be able to use power of E.D. for private economic development?
http://www.intellectualtakeout.org/library/chartgraph/eminent-domain-legislation-status-kelo

6 th
SUMMARY OF CRIMINAL RIGHTS
AMENDMENTS
• Guarantee of speedy & public trial
• Trial by impartial jury of peers in district where crime committed
• Informed of charges against; have ability to obtain witness in defense
• Right to confront your accuser
• Right to defense counsel (at no cost)
8 th • No excessive bail or fines
• No cruel or unusual punishment

SUMMARY OF CRIMINAL RIGHTS
AMENDMENTS
14 th
• No “person” denied equal protection & due process of law
*used to selectively incorporate protections from Bill of Rights into due process clause, affecting states

Rights of Criminal Suspects
Unreasonable Search & Seizure: 4 th Am.
• Need probable cause , warrant
– Must be relatively specific
• Mapp v. Ohio (1961): incorporated exclusionary rule to states
• Many exceptions to warrant requirement!
– Ex: consent; reasonable suspicion
• PATRIOT ACT: how to balance civil liberties with protection from terrorism?

Rights of Criminal Suspects
Right to Remain Silent: 5 th Am.
• No forced self-incrimination
Miranda Warning: 5 th & 6 th Am.
• Miranda v. Arizona (1966): suspects must be notified of rights to silence and lawyer if in custody, before interrogation
– Failure to do so = ??
• Critics: hampers ability of police to do their jobs
Right to Counsel: 6 th Am.
• Gideon v. Wainwright (1966): counsel must be provided at no expense

Fair Trial Procedures
*Vast majority of criminal cases end in guilty pleas, don’t go to full trial
Four Stages of Criminal Process:
1) Pretrial
• Grand jury indictment in capital case
– Information; not required of states
2) Trial
• Can accept plea bargain or go to trial
• 6 th: right to petit jury

TRIAL – The Details
Public Trial:
• Can’t bar press from room in general
(only certain kinds in room during trial)
• Defendant has right to freedom from outside interference
– Can request delay or change of venue if publicity too great during pre-trial
Big Q: Does the freedom of press conflict with right to fair trial?

TRIAL – The Details
Speedy Trial: how long is too long?
• Gov’t must vigorously pursue the accused to accord him speedy trial
• Gov’t can impose statutes of limitations/other laws to mandate quick time frame
• Gov’t cannot try someone in absentia
Impartial Jury
• History of conflict in including ppl of minority demographics (Jim Crow)
• Process of vior dire-question and rejection of jurors
• States can decide requirements of unanimity

Fair Trial Procedures
3) Sentencing
• Verdict: guilty or not guilty
• Judge usually hands down sentence
• Issues: death penalty, three strikes laws
4) Appeal
• If believe denied constitutional right or due process/equal protection of laws
• 5 th : double jeopardy only for same gov’t

Fair Trial Procedures
War on Terrorism
• Hamdi v. Rumsfeld (2004): detainees can challenge detention before judge (habeas)
• Boumediene v. Bush (2008): terror suspects can challenge detention in civilian courts

Death Penalty
• U.S. is one of only industrialized nations still using death penalty
• Gregg v. Georgia (1976): death penalty must be proportionate to severity of crime, consider record & character of offender
– Leaves sentence in judge/jury’s hands
• Some populations have been excluded

Privacy Rights
• Griswold v. CT (1965): privacy is implied in 4 th & 9 th
• Roe v. Wade (1973): abortion is protected by the right to privacy.
• Women’s rights cases –> abortion