Civil Liberties AP Government Unit 9

1
Civil Liberties AP Government Unit 9
2
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

3
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.

4
The 1st 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.

5
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!

6
1st 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.

7
1st Amendment

• Freedom of Religion Cases
• West Virginia Board of Ed v Barnette 1943
• Free Exercise Clause Case
• Jehovahs 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

8
1st 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 Amendments Establishment Clause
• Neither the prayer's nondenominational character
  nor its voluntary character saved it from
  unconstitutionality.

9
1st 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."

10
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
  non-public schools.
• The Rhode Island statute provided direct
  supplemental salary payments to teachers in
  non-public elementary schools. Each statute made
  aid available to "church-related educational
  institutions."

11
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

12
1st 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?

13
1st 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.

14
1st 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.

15
1st 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

16
1st Amendment

• Freedom of Religion Cases
• Church of the Lukumi Babalu Aye v. Hialeah, 1993
• The Church of Lukumi Babalu Aye practiced the
  Afro-Caribbean-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

17
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.

18
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?

19
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."

20
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?

21
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?

22
1st and 14th AmendmentIncorporation

• 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
  citizens 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

23
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.

24
1st AmendmentFreedom 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"

25
Morse v. Frederick, 2007

• 1) Does the First Amendment allow public schools
  to prohibit students from displaying messages
  promoting the use of illegal drugs at
  school-supervised events?
• YES2) 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???

26
1st AmendmentFreedom 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

27
1st AmendmentFreedom 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

28
1st AmendmentObscenity 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."

29
1st AmendmentObscenity 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?

30
1st AmendmentObscenity 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

31
1st AmendmentFreedom 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

32
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?

33
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

34
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

35
1st Amendment Freedom of Press

• Other Important Laws and Acts dealing with the
  Freedom of the Press
• Sunshine Laws
• Freedom of Information Act

36
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

37
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

38
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)

39
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.

40
4th 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?

41
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

42
4th 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

43
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.

44
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!

45
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.

46
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

47
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

48
5th Amendment Eminent DomainKelo 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?

49
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.'"

50
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.

51
5th and 6th Amendments Fair Trial/Due Process
Case

• Sheppard v Maxwell (1966)
• After suffering a trial court conviction of
  second-degree 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?.

52
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.
• FYIAt his second trial, 12 years after the
  first, Sheppard was acquitted. ?

53
5th and 6th 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

54
8th Amendment

• Excessive bail shall not be required, nor
  excessive fines imposed, nor cruel and unusual
  punishments inflicted.

55
8th Amendment

• Is the death penalty cruel and unusual
  punishment?
• Furman v Georgia, 1972
• Gregg v Georgia, 1976

56
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?

57
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.

58
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?

59
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.

60

• Please read
• Chapter 5
• and study your case file and notes!!!