Civil Liberties
AP Government
Unit 9
Civil Liberties
• Civil liberties is the
name given to freedoms
that protect the
individual from
government.
• Civil liberties set limits
for government so that
it would not abuse its
power and interfere
with the lives of its
citizens.
• The term civil rights
refers to rights,
freedoms and liberties
and that should be
given to people no
matter their race,
ethnicity, lifestyles, or
beliefs
• They also can refer to
the nonpolitical rights
of a citizen or person
Civil Liberties
• Many of the world's democracies, such as the
United States and Canada, have bills of rights
or similar constitutional documents that
enumerate and seek to guarantee civil
liberties.
• Basic civil liberties include the:
–
–
–
–
–
Freedom of assembly
Freedom of religion
Freedom of speech
Due process
The right to a fair trial and to privacy.
The
st
1
Amendment
• 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.
1st Amendment
• Freedom of Religion
• The Establishment Clause
– There shall be no “established
state religion”
• The Free Exercise Clause
– Freedom to worship as you
please
• How can these clauses be
reconciled?
• It has proven to be difficult to
satisfy everyone!
st
1
Amendment
• Freedom of Religion Cases
– Reynolds v United States 1878
• Polygamy case concerning Mormon man who
married 2 women.
• Is this constitutional because of the Free Exercise
Clause?
• No!
– Society is built upon the civil contract of
marriage, the government can permissibly pass
laws regulating marriage.
st
1
Amendment
• Freedom of Religion Cases
– West Virginia Board of Ed v Barnette 1943
• Free Exercise Clause Case
• Jehovah’s Witness case concerning the requirement
to pledge to the American flag
• Did the compulsory flag-salute for public
schoolchildren violate the First Amendment?
• Yes, citing the Free Exercise Clause
– The students did NOT have to leave the room or pledge to
the flag
st
1
Amendment
• Freedom of Religion Cases
– Engel v Vitale 1962
• Required nondenominational school prayer in New
York:
– “Almighty God, we acknowledge our dependence upon
Thee, and beg Thy blessings upon us, our teachers, and our
country."
• Is this constitutional?
• NO!
– By providing the prayer, New York had officially approved
religion; this was found to violate the 1st Amendment’s
Establishment Clause
– Neither the prayer's nondenominational character nor its
voluntary character saved it from unconstitutionality.
st
1
Amendment
• Freedom of Religion Cases
– Abington School District v Schempp 1963
• At the beginning of the school day, students who attended
public schools in the state of Pennsylvania were required to
read at least ten verses from the Bible. After completing these
readings, school authorities required all Abington Township
students to recite the Lord's Prayer.
• The Court ruled that these required activities encroached on
both the Free Exercise Clause and the Establishment Clause of
the First Amendment since the readings and recitations were
essentially religious ceremonies and were "intended by the State
to be so."
1st Amendment
• Freedom of Religion Case
• Lemon v Kurtzman 1971
• The case involved controversies over laws in
Pennsylvania and Rhode Island.
– In Pennsylvania, a statute provided financial
support for teacher salaries, textbooks, and
instructional materials for secular subjects to nonpublic schools.
– The Rhode Island statute provided direct
supplemental salary payments to teachers in nonpublic elementary schools. Each statute made aid
available to "church-related educational
institutions."
Importance
• The Court ruled that public money for
religious schools is not constitutional
• Created “The Lemon Test”- A 3 Prong Test
– First, the statute must have a secular
legislative purpose
– Second, its principal or primary effect must
be one that neither advances nor inhibits
religion
– Finally, the statute must not foster "an
excessive government entanglement with
religion”
st
1
Amendment
• Freedom of Religion Cases
– Wisconsin v Yoder 1971
• Jonas Yoder and Wallace Miller, both members of the Old
Order Amish religion, and Adin Yutzy, a member of the
Conservative Amish Mennonite Church, were prosecuted
under a Wisconsin law that required all children to attend
public schools until age 16.
– The three parents refused to send their children to such schools
after the eighth grade, arguing that high school attendance was
contrary to their religious beliefs.
• Did Wisconsin's requirement that all parents send their
children to school at least until age 16 violate the First
Amendment by criminalizing the conduct of parents who
refused to send their children to school for religious reasons?
st
1
Amendment
• Freedom of Religion Cases
– Yes!
– In a unanimous decision, the Court held
that individual's interests in the free exercise
of religion under the First Amendment
outweighed the State's interests in
compelling school attendance beyond the
eighth grade.
st
1
Amendment
• Freedom of Religion Cases
– Employment Div., Dept. of Human Resources
Oregon v Smith 1990
• Free Exercise Clause Case
• Two Native Americans who worked as counselors
for a private drug rehabilitation organization,
ingested peyote -- a powerful hallucinogen -- as
part of their religious ceremonies as members of
the Native American Church.
• As a result of this conduct, the rehabilitation
organization fired the counselors who sued
claiming that the Free Exercise Clause protected
their religion.
st
1
Amendment
• Decision and Importance
– The Court disagreed and ruled that an
individual's religious beliefs do NOT excuse
him/her from compliance with an
otherwise valid law prohibiting conduct
that government is free to regulate.
• Taxes, military service, payment of taxes,
vaccination requirements, and child-neglect
laws…
st
1
Amendment
• Freedom of Religion Cases
– Church of the Lukumi Babalu Aye v. Hialeah, 1993
• The Church of Lukumi Babalu Aye practiced the AfroCaribbean-based religion of Santeria.
– Santeria used animal sacrifice as a form of worship in which an
animal's carotid arteries would be cut and, except during healing
and death rights, the animal would be eaten.
• The city of Hialeah passed an ordinance prohibiting the
possession of animals for sacrifice or slaughter soon after the
church opened.
• The Church challenged it claiming the Free Exercise Clause
allowed the practice
Decision and Importance
• The Court ruled for the church!
• The core failure of the ordinances were that
they applied exclusively to the church and
singled out the activities of the Santeria faith and
suppressed more religious conduct than was
necessary to achieve their stated ends.
– Only conduct tied to religious belief was burdened.
• The ordinances targeted religious behavior,
therefore they failed to survive the rigors of
strict scrutiny.
1st Amendment
• Freedom of Speech Cases
– Schenck v US 1919
– During World War I, Schenck mailed circulars to draftees
that suggested that the draft was a monstrous wrong
motivated by the capitalist system.
• The circulars urged "Do not submit to intimidation" but advised
only peaceful action such as petitioning to repeal the
Conscription Act.
– Schenck was charged with conspiracy to violate the
Espionage Act by attempting to cause insubordination in
the military and to obstruct recruitment.
– Were his words protected by the speech clause of the
First Amendment?
1st Amendment
• NO!
– During wartime, utterances tolerable in
peacetime can be punished.
– "The question in every case is whether the
words used are used in such circumstances and
are of such a nature as to create a clear and
present danger that they will bring about the
substantive evils that Congress has a right to
prevent."
1st Amendment
Freedom of Speech Limits
• Abrams v US 1919
– The defendants threw leaflets they printed and threw from
windows of a building.
• One leaflet signed "revolutionists" denounced the sending of
American troops to Russia.
• The second leaflet denounced the war and US efforts to impede
the Russian Revolution.
– The defendants were charged and convicted for inciting resistance
to the war effort and for urging curtailment of production of
essential war material
– They were sentenced to 20 years in prison and charged with
violations of 1917 Espionage Act
– Question of Law:
• Do the amendments to the Espionage Act or the application of
those amendments in this case violate the free speech clause of
the First Amendment?
1st Amendment
•Freedom of Speech Limits
– Decision and Importance
•Are they inciting violence in their speech?
– If so speech is NOT protected
•In the majority opinion, the leaflets are an
appeal to violent revolution, a call for a
general strike, and an attempt to curtail
production of munitions.
– The leaflets had a tendency to encourage war
resistance and to curtail war production
– Wartime is different than peacetime
•Is there … “a clear and [present] danger”?
1st and 14th Amendment
**Incorporation**
• Gitlow v NY 1925
– Overturned idea in Barron v Baltimore that
the Bill of Rights can only be applied to the
federal government and incorporated these
rights into the 14th amendment
– States were now prohibited from “impairing”
citizen’s personal freedoms and Constitutional
rights not just the federal government
• Brought Bill of Rights under the protection of the
14th Amendment
• Guaranteed due process clause of 14th Amendment
Incorporated or Not
Incorporated?
The Bill of Rights is Selectively Incorporated
• 1st Amendment: Fully incorporated.
• 2nd Amendment: No Supreme Court decision on incorporation since
1876 (when it was rejected).
– Heller concerning the District of Columbia did not incorporate
• 3rd Amendment: No Supreme Court decision; 2nd Circuit found to
be incorporated.
• 4th Amendment: Fully incorporated.
• 5th Amendment: Incorporated except for clause guaranteeing criminal
prosecution only on a grand jury indictment.
• 6th Amendment: Fully incorporated.
• 7th Amendment: Not incorporated.
• 8th Amendment: Incorporated with respect to the protection against
"cruel and unusual punishments," but no specific Supreme Court ruling
on the incorporation of the "excessive fines" and "excessive bail"
protections.
1st Amendment
Freedom of Expression
• Freedom of Expression Cases
– Tinker v Des Moines 1969
– Does a prohibition against the wearing of armbands
in public school, as a form of symbolic protest,
violate the First Amendment's freedom of speech
protections?
• The wearing of black arm bands in schools to
protest the Vietnam War were ruled to be a
constitutional expression of free speech
• Justice Brennan noted that students “do not shed
their constitutional rights to freedom of speech or
expression at the schoolhouse gate"
Morse v. Frederick, 2007
Joseph Frederick
• 1) Does the First
Amendment allow public
schools to prohibit
students from displaying
messages promoting the
use of illegal drugs at
school-supervised
events?
• YES
2) Does a school official
have immunity from a
damages lawsuit under
when, in accordance
with school policy, she
disciplines a student for
displaying a banner with
a drug reference at a
school-supervised event?
• MAYBE???
1st Amendment
Freedom of Expression
• Freedom of Expression Cases
– Island Trees School District v Pico 1982
– Does the First Amendment impose any limitations
upon the discretion of a local school board to
remove library books from the High School and
Junior High School?
• Banned book list was NOT constitutional
1st Amendment
Freedom of Expression
• Freedom of Expression Cases
– Brandenburg v Ohio 1969
• Can KKK make a hate-speech in Ohio?
– Incorporation of speech rights
• Yes. The KKK speech was constitutional as long as violence
was NOT incited (clear and present danger test)
– Texas v Johnson 1989
• A Texas law that banned flag burning was challenged
• The Court ruled that flag burning as a form of protest was
constitutional
• Symbolic speech
1st Amendment
Obscenity Cases
• Are there limits to free speech?
– Roth v United States 1957
• Facts of the Case
– Roth operated a book-selling business in New York and was
convicted of mailing obscene circulars and an obscene book in
violation of a federal obscenity statute.
• Importance
– The Court held that obscenity was not "within the area
of constitutionally protected speech or press."
– The Court noted that the First Amendment was not
intended to protect every utterance or form of
expression, such as materials that were:
• “Utterly
without redeeming social
importance."
1st Amendment
Obscenity Cases
• However in 1972, a new Court considered
the obscenity issue again in Miller v
California
– Miller, after conducting a mass mailing
campaign to advertise the sale of "adult"
material, was convicted of violating a California
statute prohibiting the distribution of obscene
material.
– Is the sale and distribution of obscene materials
by mail protected under the First Amendment's
freedom of speech guarantee?
1st Amendment
Obscenity Cases
• Ruling and Importance
– In a 5-to-4 decision, the Court held that obscene
materials did not enjoy First Amendment protection.
– The Court modified the test for obscenity
established in Roth v. United States
• The Court rejected the "utterly without redeeming social
value" ruling from Roth.
– The new standard became:
• “Does it have artistic, literary, political, scientific value or
social importance?”
• Also "community standards" must be taken in to account
1st Amendment
Freedom of Press
• Near v Minnesota, 1930
– Jay Near published a scandal sheet in Minneapolis, in
which he attacked local officials, charging that they
were implicated with gangsters
– Minnesota officials stopped Near from publishing his
newspaper under a state law that allowed such action
against periodicals.
– The law provided that any person publishing a
"malicious, scandalous and defamatory" newspaper
was guilty of a nuisance, and could be stopped from
further committing or maintaining the nuisance.
– The Court sided with Near claiming “No prior
restraint” of press
1st Amendment
Freedom of Press
• Hazelwood v Kuhlmeier, 1988
• The Spectrum, the school-sponsored newspaper of
Hazelwood East High School, was written and
edited by students. The school principal found
two of the articles in the issue to be inappropriate,
and ordered that the pages on which the articles
appeared be withheld from publication.
– Cathy Kuhlmeier and two other former Hazelwood East
students brought the case to court.
• Did the principal's deletion of the articles violate
the students' rights under the First Amendment?
1st Amendment
Freedom of Press
• No!
– In a 5-to-3 decision, the Court held that the
First Amendment did not require schools to
affirmatively promote particular types of
student speech.
– School newspapers may be regulated by
school officials
1st Amendment
Freedom of Press
• New York Times v Sullivan, 1964
– Sullivan claimed he had been harmed by an ad
– The Court held that the First Amendment protects
the publication of all statements, even false ones,
about the conduct of public officials except when
statements are made with actual malice
– New York Times v US , 1971
• Vietnam war/President Nixon case
• Pentagon Papers could be published
1st Amendment
Freedom of Press
• Other Important Laws and Acts dealing
with the Freedom of the Press
– Sunshine Laws
– Freedom of Information Act
1st Amendment
• Right to Privacy Cases
– Griswold v Connecticut 1965
– Facts
• Griswold was the Executive Director of the Planned
Parenthood League of Connecticut. Both she gave
information, instruction, and other medical advice to married
couples concerning birth control. Griswold and her colleague
were convicted under a Connecticut law which criminalized
the provision of counseling for purposes of preventing
conception.
– Conclusion
• Birth control for married couples was constitutional
• The First, Third, Fourth, and Ninth Amendments, create a new
constitutional right, the right to privacy in marital relations
– Roe v Wade 1973
• Abortion was constitutional- right to privacy
1st Amendment
• Right to Privacy Cases
– Webster v Reproductive Health Services, 1989
• Facts-Abortion clinics could limit abortions to
before 20 weeks in Missouri
• Conclusion-Affirmation of Roe but a roll back of
Roe and privacy rights
– Planned Parenthood v. Casey, 1992
• Facts-Pennsylvania case in which a 24 hour waiting
period, and a law requiring parental permission
were upheld
• Conclusion-An affirmation of Roe but another
rollback of Roe
2nd Amendment
• 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.
• Important Case
– District of Columbia v. Heller (2008)
4th Amendment
• The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
th
4
Amendment
• “Mapp v Ohio 1961
– Dolree Mapp was convicted of possessing
obscene materials after an admittedly illegal
police search of her home for a fugitive. She
appealed her conviction on the basis of
freedom of expression.
• Search and seizure” case
•Search of home by police found illegal
materials without warrant
– Is this constitutional?
4th Amendment
• “Search and Seizure” Cases
– No! The Court ruled for Mrs. Mapp
– The Exclusionary Rule was established
– Without warrant, items could not be used
against Mapp
– This is known as the “Fruit of a poisonous
tree”
– FYI, if police are in hot pursuit of criminals
they can be given the “good faith exception”
in most cases
th
4
Amendment
• Katz v US, 1968
– Katz ran an illegal gambling operation
– Acting on a suspicion that Katz was
transmitting gambling information over the
phone to clients in other states, federal agents
attached an eavesdropping device to the
outside of a public phone booth used by Katz
– Was this wiretapping constitutional?
– No!
•Wiretaps need a court order or search
warrant
•4th Amendment protects people not places
4th Amendment
• Safford Unified School District v.
Redding (2009)
• Savana Redding, an eighth grader at Safford
Middle School, was strip-searched by school
officials on the basis of a tip that she might
have ibuprofen on her person in violation of
school policy.
• She alleged her Fourth Amendment right to
be free of unreasonable search and seizure
was violated.
4th Amendment
• Question of Law
– Question 1: Does the Fourth Amendment
prohibit school officials from strip searching
students suspected of possessing drugs in
violation of school policy?
– Question 2: Are school officials individually
liable for damages in a lawsuit filed under 42
U.S.C Section 1983?
• Conclusion
– Question 1: Sometimes, but in this case no!
– Question 2: No!
5th Amendment
• No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
Due Process Rights found in 5th
Amendment
• Substantive due process rights are the rights
that you have when you wake up in the
morning as an American citizen
– Amendment 1: freedom of speech, religion, expression, etc.
– Also, Amendments 2 and 3.
• Procedural due process rights are the rights
that you have when you have entered the
legal system - freedom from unreasonable
search, right to an attorney, jury trial, freedom
from cruel and unusual punishment etc.
– Also refers to the "process liberties" the government
must adhere to when accusing an American of
committing a crime
Due Process Rights
Examples of Procedural
Due Process Rights
• Speedy trial
• Legal counsel
assistance
• Police strip searches
• Police have to have a
warrant
Examples of Substantive
Due Process Rights
• Minimum wage law
• Possession of
marijuana for medical
purposes
• Burning the flag
5th Amendment Eminent Domain
Kelo v City of New London, CT, 2005
• Facts of the Case
• New London, a city in Connecticut, used its eminent domain
authority to seize private property to sell to private developers.
• The city said developing the land would create jobs and
increase tax revenues.
• The property owners argued the city violated the Fifth
Amendment's takings clause, which guaranteed the government
will not take private property for public use without just
compensation.
– Specifically the property owners argued taking private
property to sell to private developers was not public use.
• Question
• Does a city violate the Fifth Amendment's takings clause if the
city takes private property and sells it for private development,
with the hopes the development will help the city's bad
economy?
Importance of Kelo
• Conclusion
• No. In a 5-4 opinion delivered by Justice John Paul
Stevens, the majority held that the city's taking of
private property to sell for private development
qualified as a "public use" within the meaning of the
takings clause.
• The city was not taking the land simply to benefit a
certain group of private individuals, but was following
an economic development plan.
– The takings here qualified as "public use" despite the fact that
the land was not going to be used by the public.
• The Fifth Amendment did not require "literal" public
use, the majority said, but the "broader and more
natural interpretation of public use as 'public purpose.'"
6th Amendment
• “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining
witnesses in his favor, and to have the
Assistance of Counsel for his defense.”
5th and 6th Amendments
Fair Trial/Due Process Case
• Sheppard v Maxwell (1966)
– After suffering a trial court conviction of seconddegree murder for the bludgeoning death of his
pregnant wife, Samuel Sheppard challenged the
verdict as the product of an unfair trial.
• The case received extensive coverage by the press, with
headlines such as "Why isn't Sam Sheppard in jail?" and
"Getting away with murder" covering the front pages of
newspapers.
– Sheppard alleged that the trial judge failed to
protect him from the massive, widespread, and
prejudicial publicity that attended his prosecution.
• Was there too much pre-trial publicity for
Sheppard to receive a fair trial?.
5th and 6th Amendments
Fair Trial/Due Process Case
• Yes!
• In an 8-to-1 decision the Court found that
Sheppard did not receive a fair trial.
• Noting that although freedom of expression
should be given great latitude, the Court held
that it must not be so broad as to divert the
trial away from its primary purpose:
adjudicating both criminal and civil matters in
an objective, calm, and solemn courtroom
setting.
• FYI…At his second trial, 12 years after the first,
Sheppard was acquitted. 
th
5
and
th
6
Amendments
• Attorney Rights/Due Process Cases
– Gideon v Wainwright 1963
• Right to an attorney
– Escobedo v Illinois 1964
• Right to speak to an attorney
– Miranda v Arizona 1966
• Miranda rights must be read
th
8
Amendment
• Excessive bail shall not be
required, nor excessive fines
imposed, nor cruel and
unusual punishments inflicted.
th
8
Amendment
• Is the death penalty “cruel and
unusual punishment”?
• Furman v Georgia, 1972
• Gregg v Georgia, 1976
Furman v Georgia, 1972
• Facts of the Case
• Furman was burglarizing a private home when a
family member discovered him.
– He attempted to flee, and in doing so tripped and fell.
– The gun that he was carrying went off and killed a resident of
the home.
• He was convicted of murder and sentenced to death.
• Question
• Does the imposition and carrying out of the death
penalty in these cases constitute cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments?
Importance
• Conclusion
• Yes. The imposition of the death penalty in
this cases constituted cruel and unusual
punishment and violated the Constitution.
• The Court's decision forced states and the
national legislature to rethink their statutes
for capital offenses to assure that the death
penalty would not be administered in a
capricious or discriminatory manner.
Gregg v Georgia, 1976
• Facts of the Case
• A jury found Gregg guilty of armed robbery and
murder and sentenced him to death.
– On appeal, the Georgia Supreme Court affirmed the death
sentence except as to its imposition for the robbery
conviction.
• Gregg challenged his remaining death sentence for
murder, claiming that his capital sentence was a "cruel
and unusual" punishment that violated the Eighth and
Fourteenth Amendments.
• Question
• Is the imposition of the death sentence prohibited
under the Eighth and Fourteenth Amendments as
"cruel and unusual" punishment?
Gregg v Georgia
• Conclusion
• No. In a 7-to-2 decision, the Court held that a
punishment of death did not violate the Eighth and
Fourteenth Amendments under all circumstances.
• In extreme criminal cases, such as when a defendant
has been convicted of deliberately killing another,
the careful and judicious use of the death penalty
may be appropriate if carefully employed.
– Moreover, the Court was not prepared to overrule the
Georgia legislature's finding that capital punishment serves
as a useful deterrent to future capital crimes and an
appropriate means of social retribution against its most
serious offenders.
•Please read
Chapter 5
and study your case
file and notes!!!