Unit 2 Lecture Notes – Civil rights and Civil liberties
First amendment states that you have the right to assemble peacefully, speech, press, and petition
Civil rights are freedom from . . .
Civil liberties are freedom to . . .
Civil Liberties:
First Amendment Freedoms
The Unalienable Rights
A Commitment to Freedom
Bill of Rights – the first 10 amendments of Constitution
Civil Liberties – the guarantees of the safety of person, opinions, and property from the arbitrary acts of
government, including freedom of speech and freedom of religion.
Civil Rights – a term used for those positive acts of government that seek to make constitutional
guarantees a reality for all people.
Limited Government
Difference between democratic government and dictatorship governments?
Dictatorship – government power is unlimited, usually by one person.
Democratic – U.S. power and authority is strictly limited; power to the people.
Rights are Relative, Not Absolute
Each person’s rights are relative to the rights of every other person
Morse v. Frederick (2007); Known as the “Bong Hits for Jesus” case; student was sent home for
wearing an inappropriate t-shirt. Came to school the next day with a sign reading, “Bong hits for
Jesus.” Supreme Court granted his right of speech was relative.
Sheppard v. Maxwell (1966): about freedom of the press vs. freedom for the right of a trial. A
doctor was convicted of murdering his wife, and appealed it to the Supreme Court for the right
to a fair trial. Supreme Court ruled that he did not get a fair trial because it was so
sensationalized by the press. He was retried but still found guilty.
Whom are the rights guaranteed?
Everyone is granted these rights.
Aliens – foreign-born resident or noncitizen
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Four things you cannot do unless you are a citizen:
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Passport
Voting
Cannot hold or run for a public office
Cannot work for the federal government
Executive Order 9066 – internment of Japanese-American citizens; in 1988, the Supreme Court
overturned this order and said that it was unconstitutional; paid $20,000 for each person involved.
Federalism and Individual Rights – the Modifying Effect of the 14th Amendment
Due process clause – part of this amendment that guarantees that no state can deny basic rights to its
people.
Process of Incorporation – the process of incorporating, or including, most of the guarantees in the Bill
of Rights into the 14th Amendment due process clause.
Gitlow v.New York, 1925 – prior to WWII. Made speeches about communism, people should get
guns and overthrow the government. Convicted of criminal anarchy, passing out pamphlets,
and giving speeches.
The Ninth Amendment: states that there are so many rights out there that they cannot list them all, so
a person has more rights than can be listed.
Some examples:
Abortion
Section 2 – Freedom of Religion
Freedom of Expression
The 1st and 14th amendment set out two guarantees of religious freedom
These guarantees prohibit establish of religion (establishment clause) and
Any arbitrary reference by government in “the free exercise” of religion (the free exercise clause)
Establishment clause – separates church and state
Separation of Church and State
Pierce v. Society of Sisters 1925 – Oregon made a law that you must attend a public school not a
parochial school; Supreme Court struck down the law and made it unconstitutional; state could not pass
a law forcing a student
Parochial – church related
Everson v. Board of Education 1947 (the New Jersey School Bus case) – this was considered
constitutional since it was transportation, not religious
Released Time, Prayers, and the Bible
McCollum V. Board of Education, 1948 – the court struck down this case because students were leaving
instructional time to attend these classes.
Pg 539: review
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Student Religious Groups
The Equal Access Act of 1984 – declares that any public high school that receives federal funds must
allow students religious groups to meet in the school on the same terms that it sets for other students
organizations.
Evolution
Epperson v. Arkansas 1968 – able to teach evolution in public schools; must teach creationism and
evolution together
Aid to Parochial Schools
The Lemon Test
Standard Lemon Test
The [purpose of the aid must be clearly secular; not religious
Its primary effect must neither advance nor inhibit religion
It must avoid an excessive ----------Lynch v. Donnelly, 1984
County of Allegheny
Stone v. Graham – 10 commandments
Free Exercise Clause – the second part of the constitutional guarantee of religious freedom, which
guarantees to each person the right to believe whatever he or she chooses to believe in matters of
religion.
The free exercise clause does not give anyone the right to violate criminal laws, offend public morals or
otherwise threaten the safely of the community.
Limits on Free Exercise
Section 3: Freedom of Speech and Expression
Free Expression
 To guarantee to each person a right of free expression, in the spoken and the written word, and by
all other means of communication.
 To guarantee to all person a full, wide ranging discussion of public affairs.
Libel is the false and malicious use of printed words.
Slander is the false and malicious use of spoken words.
Seditious Speech
Sedition is the crime of attempting to overthrow the government by force or to disrupt its lawful
activities by violent acts.
Seditious Speech is the advocating or urging, of an attempt to overthrow the government by force or to
disrupt its lawful activities with violence.
Alien and Sedition Acts, 1789 (John Adams) - ability to deport any alien or arrest anyone who said any
malicious or false statements against the government; unconstitutional. Thomas Jefferson overthrew
these acts.
The Sedition Act of 1917 – WWI and Russian Revolution – print, write or publish articles against
government, interfere with the draft, etc. – expired, then came. . .
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The Smith Act of 1940 – passed one year before we entered WWII – still in effect today – crime to
advocate violent overthrow the government, speak out or distribute literature against the government,
or knowingly belong to a group planning to overthrow the government, etc.
Prior Restraint – the government cannot curb ideas before they are expressed. Cannot stop a speech
until it has been given.
Obscenity – 1st and 14th amendments protect obscenity.
Community standards must be violated; it must have no literary or artistic value.
The quality or state of being obscene: obscene words or actions, an offensive word.
First obscenity laws were passed in 1872.
The Media
Confidentiality
Shield Laws – a law which gives reporters some protection against having to disclose their
sources or reveal other confidential information in legal proceedings.
State and federal courts have rejected this law; some reporters go to jail to protect their sources.
Presidents can withhold information from the media except in criminal court cases – executive
privilege.
The Supreme Court said the press (journalists/reporters) like citizens must respond to certain
questions but 30 states have shield laws since 2008.
Motion Pictures/Radio and Television
In 1972, the Supreme Court revoked the law that movies can have freedom of expression via
motion pictures are guaranteed by the 1st and the 14th Amendment.
Movie industry can supply their own ratings for their movies.
Radio and television broadcasts are subject to federal regulation via a purchased license. The
air waves are public property and subject to government regulation (because of the military).
Cable television is not subject to this regulation.
Symbolic Speech
Symbolic speech – expression by conduct; communicating ideas through facial expressions,
body language, or by carrying a sign or wearing an arm band. Not on public air waves.
Picketing – patrolling of a business site by workers who are on strike. If it is peaceful, it is
protected by the 1st and 14th amendment.
Flag burning is protected form of speech by the 1st and 14th amendment. It is a symbol not a
venerated object (something not everyone has access to).
Commercial Speech
Is speech for business purposes; the term refers most often to advertising. Biglow v. Virginia – a
state law unconstitutional a newspaper that advertises abortion services.
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While some speech may be protected but you may not use it for illegal purposes such as
prostitution, sell marijuana, etc.
Freedom of Petition or Assembly
Constitution guarantees:
Assemble - to gather with one another
Time-Place-Manner Regulations
Content-neutral – the government may not regulate assemblies on the basis on what might be
said; noise level, location if it would interfere. Police can make you have permits.
Three or more persons standing on a corner and making themselves annoying to others – for
teenagers. Considered unconstitutional because it singled out a group of people.
Government can rule that it must be neutral, what is said, or what happen.
Public Property
Gregory v. Chicago 1969 –
If the protest takes place in a public place, the government can regulate time, place and
manner.
Private Property
The rights of assembly and petition do not give people a right to trespass on private property,
even if they wish to express political views. Lloyd Corporation v. Tanner
Freedom of Association
The right to associate with others to promote political, economic, and other social causes.
Civil Rights
If not us, then who? If not now, then when? - John E. Levin
Struggle for Equal Rights
 For Women
o Seneca Falls Convention in 1848 – Declaration of Sentiments
o 19th Amendments – women to vote in 1920
o Equal Pay Act in 1963 – if you are going to hire a woman in the federal government,
you must pay her the same amount as a man; prohibits gender discrimination
o Title IX – allowed women equal amount of opportunities in sports/scholarships
o Reed v. Reed 1971 – court ruled against arbitrary gender base discrimination is a
violation of the 14th Amendment equal protection clause- women became a
protective class; landmark case!
o Griswald v. Connecticut – woman has a right to privacy and does not have to share
information with anyone else
o Roe v. Wade 1973 – women’s right to privacy in medical decision
 For Blacks
o Dred Scott 1857 – slaves are property
o Civil War, Amendments 13 – eliminated slavery and the continuance of slavery,
o 14 – equal protection under the law and due process and 15 – gave Blacks the right
to vote
o Jim Crow – grandfather clause, poll taxes, literacy tests and Plessy v. Ferguson –
separate but equal
o Brown v. Board 1954 – separate was not equal 1955 – desegregation in the schools
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Achievement Gap – gap in the system of schools for minorities and socio-economic
reasons
De facto segregation – you live where and who you want to live with.
For Hispanics
o Bilingualism - (Lau v. Nicholas) 1972 - steps must take action and provide education
for non-English speaking students in their native – must provide the education and
support for them; ballots and driver’s test must be provided in their native language
o Immigration
o Electoral Politics
o Achievement Gap
For Asians
o Immigration Restrictions
o “Reverse Discrimination” in college admissions
o Achievement Gap – keep themselves apart from other minorities
Barriers to Voting
o 15th Amendment banned voting discrimination based on race
o White primaries were unconstitutional,
o Poll taxes – stopped by the 24th Amendment
o Literacy test – failed by Voting Rights Act 1968
o Grandfather clause – unconstitutional
Discrimination of the Federal Response
5th and 14th prohibit government from discriminating --> private individuals or
businesses?
o 13th amendment
o Commerce clause – regulates anything that crosses state lines
o Federal Legislation
o Civil Rights Act
o Age Discrimination in Employment Act
o Americans and Disabilities Act
Life, Liberty, Property and Due Process of Law
o Property rights have been associated with liberty and freedom
o Previous to this case, the Supreme Court ruled in the favor of homeowners; Kelo v.
New London, new turn in Supreme Court Law – if it is for the public goods, your
property could take away your property
o Some limited MAY be imposed on property rights
More Due Process
Procedural: “how” a law is applied
When government denies life, liberty, or property it must use fair procedures
o Observe the bill of rights
o Provide reasonable notice
o Provide you with a chance to be heard
Examples of violations:
o Illegal searches
o Unfair court procedures
Substantive “what the government may/may not do
It is not enough that they use “fair” procedures in denying life, liberty or property
The laws themselves that in enable the government to do so must be “fair”
Examples of violations of substantive due process
o Ban on all abortions within a state
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o County ordinances banning all firearms
Example of distinction: a law that prohibits possession of narcotics (substantive) ) and
police must generally obtain a warrant before conducting a search for narcotics in one’s
home (procedural).
Arrests Questioning and Imprisonment
Arrest “seizures may be conducted
o With a warrant issued upon “probable cause” – Amendment 4
o Without a warrant in emergencies, in case of “hot pursuit” or when probable cause
exists
Exclusionary Rule
o Illegally-obtained evidence may not be used in court -- Mapp v. Ohio
o Not used if:
 There would be “inevitable discovery”
 Police operate on “good faith: assumption that a warrant was valid.
Searches may be conducted without a warrants
o If probable cause exists with automobile
o Terry exceptions: if police have reason to believe suspect is armed and dangerous
o When police make a lawful arrest
o If suspect gives consent
o At border crossings
o If evidence is in plain view
o Exigent circumstances, e.g. to protect lives and property
o Schools can impose random drug tests on students in extracurricular activities
(Board v. Pottawatomie v. Earls, 2002)
Protection against self-incrimination
o Provided by 5th Amendment
o Associated with concept you are innocent until proven guilty
o Protects against testifying against themselves
o Can only be invoked if a crime involved – can’t be used to protect against
embarrassment
o Cannot be invoked when prosecutors grant immunity
Police Questioning
o Forced questioning prohibited
o Miranda earning to silence and counsel – Miranda v. Arizona
Habeas corpus
o A court order that requires the authorities to bring an accused person to court to
determine if he is being held legally. Therefore it prevents arbitrary and unfair
imprisonment.
Rights of the Accused
o Counsel
o Excessive bail and fines
o Speedy and Public Trial
o Grand jury indictment
o Trial by jury
o Witnesses
o Cruel and unusual punishment
o Double jeopardy – cannot be tried for the same crime
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