CIVIL LIBERTIES

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CIVIL LIBERTIESCIVIL LIBERTIES

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FIRST AMENDMENTFIRST AMENDMENT

Congress shall make no law Congress shall make no law respecting the respecting the establishment of establishment of religion religion or prohibiting the or prohibiting the free free exercise exercise thereof; or abridging the thereof; or abridging the freedom of speechfreedom of speech,, or the or the presspress; or ; or the right of the people the right of the people peaceably to peaceably to assembleassemble, and to , and to petition the petition the government government for redress of for redress of grievances.grievances.

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First Amendment questionsFirst Amendment questions

What constitutes the What constitutes the establishment establishment of of religion? What is the religion? What is the wall of separation wall of separation ??

What is the abridgement of What is the abridgement of free free exercise exercise ??

How far does How far does freedom of speech freedom of speech go? Is go? Is symbolic speech symbolic speech (non-spoken) also (non-spoken) also protected?protected?

Is Is obscenityobscenity protected ? What is protected ? What is clear clear and present dangerand present danger ? ?

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First Amendment First Amendment questions…questions…

Free press Free press and the right to knowand the right to know

- what is - what is prior restraint prior restraint ??

- is - is libel libel protected?protected?

- is the - is the electronic media electronic media covered?covered?

What is What is peaceable assembly peaceable assembly ?? How do you How do you petition the government petition the government

??

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First Amendment cases: First Amendment cases: ReligionReligion

Establishment ClauseEstablishment Clause Everson v. Board of Education Everson v. Board of Education (1947)(1947) prohibits laws that benefit religion - prohibits laws that benefit religion -

must be a “wall of separation”must be a “wall of separation”* * incorporates Establishment Clauseincorporates Establishment Clause

Engel v. Vitale Engel v. Vitale (1962)(1962)school prayerschool prayer

Abington School District v. Schemp Abington School District v. Schemp (1963)(1963)no bible reading – was a religious exercise by no bible reading – was a religious exercise by the statethe state

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Establishment ClauseEstablishment Clause

Lemon v. Kurtzman Lemon v. Kurtzman (1971)(1971)*Lemon Test ( 3 part precedent)*Lemon Test ( 3 part precedent)1. policy must be secular1. policy must be secular2. primary effect neither advances nor inhibits2. primary effect neither advances nor inhibits

religionreligion3. must avoid “excessive entanglement” of3. must avoid “excessive entanglement” of

government & religiongovernment & religion Wallace v. JaffreeWallace v. Jaffree (1985) (1985)

moment of silence- intent of the law was moment of silence- intent of the law was to restore prayer in schoolto restore prayer in school

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Establishment ClauseEstablishment Clause Lynch v. Donnelly ( 1984)Lynch v. Donnelly ( 1984)

religious displays ok if contain some secularreligious displays ok if contain some secular

symbols (symbols (Rehnquist Ct & Ten Commandments Rehnquist Ct & Ten Commandments 20052005: :

KY case finds display in courtroom lacks secular KY case finds display in courtroom lacks secular

purpose purpose

TX case allowed outdoor display as a balance ofTX case allowed outdoor display as a balance of

freedom and tradition)freedom and tradition) Lee v. Weisman Lee v. Weisman (1992)(1992)

graduation prayers are a graduation prayers are a coercioncoercion of religion of religion Santa Fe School District v. Doe Santa Fe School District v. Doe (2000)(2000)

prayer at a high school football game is prayer at a high school football game is coercioncoercion

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Establishment ClauseEstablishment Clause

Rehnquist Court Rehnquist Court

- moving away from the “wall of - moving away from the “wall of separation” between religion & gov’tseparation” between religion & gov’t

- opinions are now allowing the - opinions are now allowing the encouragementencouragement of religion but not of religion but not the the coercioncoercion or the or the endorsementendorsement of of itit

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Free ExerciseFree Exercise

Minersville v. Gobitis Minersville v. Gobitis (1940) (1940) overturned byoverturned by

W. Va. V. BarnetteW. Va. V. Barnette (1943) (1943)

flag salute – cannot be forced to salute flag salute – cannot be forced to salute

(also applied to pledge of allegiance (also applied to pledge of allegiance currentlycurrently

in the in the Newdow Newdow case)case)

Church of Lukimi Babalau Aye v. Hialeah Church of Lukimi Babalau Aye v. Hialeah ((1993) 1993) religious animal sacrifice & religious animal sacrifice & substantive due processsubstantive due process

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Freedom of the PressFreedom of the Press Near v. Minnesota Near v. Minnesota (1931)(1931)

no prior restraintno prior restraint * Incorporates free press to all states* Incorporates free press to all states New York Times v. U.S. New York Times v. U.S. (1971)(1971)

““Pentagon Papers” – national securityPentagon Papers” – national securityv. public’s right to knowv. public’s right to know

Hazelwood v. Kuhlmeier Hazelwood v. Kuhlmeier (1988)(1988)prior restraint of student press byprior restraint of student press by

school administration allowed school administration allowed

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Freedom of SpeechFreedom of Speech

Non-protected SpeechNon-protected Speech Schenck v. U.S. Schenck v. U.S. (1919)(1919)

speech that presents a “clear & presentspeech that presents a “clear & present

danger”danger” Gitlow v. New York Gitlow v. New York (1925)(1925)

subversive speechsubversive speech is not protected from is not protected from

government regulationgovernment regulation

* * Incorporates freedom of speech to the statesIncorporates freedom of speech to the states

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Freedoms of SpeechFreedoms of Speech

Non-protected SpeechNon-protected Speech

Dennis v. U.SDennis v. U.S. . (1951)(1951)Smith Act and Smith Act and seditious speechseditious speech to to

overthrowoverthrow governmentgovernment Brandenburg v. Ohio Brandenburg v. Ohio (1969)(1969)

speech must be directly related to speech must be directly related to imminentimminent

lawless action to be suppressed not justlawless action to be suppressed not just advocacy of action (KKK case)advocacy of action (KKK case)

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Freedom of SpeechFreedom of SpeechNon-protected SpeechNon-protected Speech

Miller v. CA. Miller v. CA. (1973) (1973) test for test for obscenityobscenity in speech: in speech:

If the community standards find that:If the community standards find that:

1.1. the average person would find the speech or the average person would find the speech or work appeals only to prurient interestswork appeals only to prurient interests

2.2. the work is patently offensivethe work is patently offensive

33. the work taken as a whole lacks serious . the work taken as a whole lacks serious literary, artistic, political, or scientific valueliterary, artistic, political, or scientific value

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Non-protected SpeechNon-protected Speech Bethel v. Fraser Bethel v. Fraser (1986)(1986)

first amendment first amendment does notdoes not prevent prevent

school officials from banning lewdschool officials from banning lewd

speech that would undermine thespeech that would undermine the

school’s basic educational missionschool’s basic educational mission

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Protected SpeechProtected Speech includes written, spoken, symbolic speech & includes written, spoken, symbolic speech &

assembly and speech that you hateassembly and speech that you hate Buckley v. Valeo Buckley v. Valeo (1976)(1976)

campaign contributions to own campaign campaign contributions to own campaign areare

free speechfree speech Reno v. ACLU Reno v. ACLU (1997)(1997)

struck down internet law which banned struck down internet law which banned childchild

access to pornography as a violation of access to pornography as a violation of adult’sadult’s

first amendment rightsfirst amendment rights

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Protected Symbolic SpeechProtected Symbolic Speech R.A.V. v. City of St. Paul R.A.V. v. City of St. Paul (1992)(1992)

cross burning is not one of thecross burning is not one of the categories of speech that can be categories of speech that can be

limitedlimited Tinker v. Des Moines Tinker v. Des Moines (1969)(1969)

student silent protest with armbands student silent protest with armbands isis

not not disruptive to the educationaldisruptive to the educational processprocess

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Protected Symbolic SpeechProtected Symbolic Speech

Texas v. Johnson Texas v. Johnson (1989) (1989)

flag burning is protected under thisflag burning is protected under this

amendment (amendment (Court ruled on it twiceCourt ruled on it twice)) Schenck v. Pro Choice Network Schenck v. Pro Choice Network (1997)(1997)

floating buffer zones around abortion floating buffer zones around abortion clinicsclinics

offend free speechoffend free speech

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Second AmendmentSecond Amendment

A well regulated militia being A well regulated militia being necessary to the security of a free necessary to the security of a free state, the right of the people to state, the right of the people to keep keep and bear armsand bear arms shall not be infringed. shall not be infringed.

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Second AmendmentSecond Amendment

U.S. v. Miller U.S. v. Miller (1939)(1939)

registration of sawed-off shotguns does notregistration of sawed-off shotguns does not

violate the Second Amendmentviolate the Second Amendment Printz v. U.S. Printz v. U.S. (1997)(1997)

federal government (via Brady Bill) federal government (via Brady Bill)

cannot compel states to administer acannot compel states to administer a

federal regulatory program federal regulatory program

(background check) – (background check) – really a really a federalismfederalism

issueissue

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Third AmendmentThird Amendment

No soldier shall, in time of peace, be No soldier shall, in time of peace, be quartered in any house without the quartered in any house without the consent of the owner; nor in time of consent of the owner; nor in time of war, but in a manner to be prescribed war, but in a manner to be prescribed by law.by law.

* * Never been the subject of a Supreme Never been the subject of a Supreme Court decision except in support of the Court decision except in support of the 99thth Amendment in Griswold v. Conn. Amendment in Griswold v. Conn.

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Fourth AmendmentFourth Amendment

The right of the people to be secure in The right of the people to be secure in their persons, houses, papers, and their persons, houses, papers, and effectseffects againstagainst unreasonable searches unreasonable searches andand seizures, seizures, shall not be violated; shall not be violated; and noand no warrantswarrants shall issue but uponshall issue but upon probable cause, probable cause, supported by oath and supported by oath and affirmation,affirmation, andand particularly particularly describing describing thethe place place to beto be searched, searched, and theand the persons persons oror things things to beto be seized.seized.

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Fourth Amendment Fourth Amendment QuestionsQuestions

What is What is probable cause probable cause ?? When is a When is a warrantless search warrantless search

allowed ?allowed ? What is a What is a reasonable search reasonable search ?? What the What the exclusionary ruleexclusionary rule??

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Probable Cause Probable Cause is where the facts & is where the facts & circumstances within an officer’s circumstances within an officer’s knowledge , and of which they have knowledge , and of which they have reasonably trustworthy information, are reasonably trustworthy information, are sufficient in themselves to warrant a man sufficient in themselves to warrant a man of reasonable caution in the belief that an of reasonable caution in the belief that an offense has been committed.offense has been committed.

must be decided by a must be decided by a neutral magistrateneutral magistrate must must describe in detaildescribe in detail the place , person the place , person

& things& things

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Reasonable expectation of privacyReasonable expectation of privacy - - upheld constitutionally and generally upheld constitutionally and generally includes the physical body, the home includes the physical body, the home & immediate area around it and the & immediate area around it and the office. Generally governs searches office. Generally governs searches under the fourth amendment.under the fourth amendment.

Reasonable searches Reasonable searches would be with would be with a warrant or without a warrant if a warrant or without a warrant if there is there is probable causeprobable cause..

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What types of searches could be What types of searches could be warrantless warrantless reasonable searches reasonable searches ??

- sobriety checkpoints- sobriety checkpoints- border crossings / airports- border crossings / airports- drug testing- drug testing- student searches- student searches- consent searches which must - consent searches which must

be be authorizedauthorized and and not coercednot coerced

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Fourth AmendmentFourth Amendment When is a warrant needed?When is a warrant needed?

- an arrest in a person’s home- an arrest in a person’s home- search of a home or office- search of a home or office

When is a warrant When is a warrant not not needed? needed? ((warrantless searchwarrantless search))

- search incident to lawful arrest- search incident to lawful arrest- plain view – - plain view – visiblevisible evidence evidence- hot pursuit – - hot pursuit – follow into buildingfollow into building- automobiles – - automobiles – less expectation of less expectation of

privacyprivacy- exigent circumstances - - exigent circumstances - emergencyemergency

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The The exclusionary rule exclusionary rule was defined in the was defined in the case case Weeks v. U.S. Weeks v. U.S. (1914) (1914) which said that which said that if evidence violated the Fourth if evidence violated the Fourth Amendment and was illegally seized it Amendment and was illegally seized it could not be admitted at trial.could not be admitted at trial.

- - this continues to be controversial as this continues to be controversial as can be seen in some Supreme can be seen in some Supreme

CourtCourt interpretationsinterpretations

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Expectation of PrivacyExpectation of Privacy

Katz v. U.S. Katz v. U.S. (1967) (1967) - there can be no - there can be no use of wiretaps without a warrant – use of wiretaps without a warrant – even in a phone booth this overruled even in a phone booth this overruled Olmstead v. U.S. Olmstead v. U.S. (1928) (1928) – 4– 4thth Amend. Amend. Protects the people (Protects the people (Katz)Katz) not the not the place (place (phone boothphone booth))

(Current Issue: (Current Issue: cell phones & Patriot cell phones & Patriot Act – are the ‘people’ protected?)Act – are the ‘people’ protected?)

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Fourth AmendmentFourth AmendmentWarrantless SearchesWarrantless Searches

Wolf v. Colorado (1949)Wolf v. Colorado (1949) - - *Incorporated no unreasonable search *Incorporated no unreasonable search & seizure clause& seizure clause

Mapp v. Ohio Mapp v. Ohio (1961) (1961) – must have – must have probable cause probable cause or evidence can be or evidence can be excluded excluded (*Incorporated the (*Incorporated the exclusionary rule)exclusionary rule)

Terry v. Ohio Terry v. Ohio (1968) (1968) – stop & frisk – stop & frisk search for weapons is allowedsearch for weapons is allowed

Minnesota v. DickersonMinnesota v. Dickerson (1993) (1993) – frisk – frisk also allowed for contrabandalso allowed for contraband

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Fourth AmendmentFourth AmendmentWarrantless SearchesWarrantless Searches

Chimel v. CA Chimel v. CA (1969) (1969) – search incident – search incident to arrest is limited to area under the to arrest is limited to area under the person’s immediate control in ‘person’s immediate control in ‘search search incident to arrestincident to arrest’’

U.S. v. LeonU.S. v. Leon (1984) (1984) – police can – police can search on “good faith” that info given search on “good faith” that info given for probable cause is correct (for probable cause is correct (good good faith exception)faith exception)

New Jersey v. T.L.O. New Jersey v. T.L.O. (1985) (1985) – schools – schools only need only need reasonable suspicionreasonable suspicion not not probable cause probable cause for a searchfor a search

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Fourth AmendmentFourth AmendmentWarrantless Searches (drugs)Warrantless Searches (drugs)

Skinner v. Railway Laborers Skinner v. Railway Laborers (1989) (1989) – – federal transportation workers can be drug federal transportation workers can be drug tested due to assurance of safety of tested due to assurance of safety of railroadsrailroads * Chandler v. Miller * Chandler v. Miller (1997) (1997) – but – but notnot

election candidateselection candidates

Vernonia v. Acton Vernonia v. Acton (1995) (1995) – student athletes – student athletes cancan

be tested / safety/ diminished expectation be tested / safety/ diminished expectation of privacyof privacy

Potowatamie v. Earls Potowatamie v. Earls (2002) (2002) – all student – all student activities participants – diminished activities participants – diminished

expectation of privacyexpectation of privacy

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Warrantless SearchesWarrantless Searches U.S. v. Ramirez U.S. v. Ramirez (1998) (1998) – “good – “good

faith” exception to the “knock” rulefaith” exception to the “knock” rule

Vehicle SearchesVehicle Searches U.S. v. Ross U.S. v. Ross (1982) (1982) – with probable – with probable

cause to suspect drugs/contraband cause to suspect drugs/contraband may search entire car (may search entire car (the the automobile exception)automobile exception)

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Fourth AmendmentFourth AmendmentVehicle SearchesVehicle Searches

CA. v. Acevedo CA. v. Acevedo (1991) (1991) – diminished – diminished expectation of privacy for cars– also expectation of privacy for cars– also search of container in trunk is search of container in trunk is allowed with probable causeallowed with probable cause

Maryland v. Wilson Maryland v. Wilson (1997) (1997) – can – can search passengerssearch passengers

Wyoming v. HoughtonWyoming v. Houghton (1999) (1999) – can – can search personal itemssearch personal items

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Fourth AmendmentFourth AmendmentVehicle SearchesVehicle Searches

Knowles v. Iowa Knowles v. Iowa (1998) (1998) – search not – search not allowed w/out arrest or probable causeallowed w/out arrest or probable cause

2005: Illinois v. Caballes 2005: Illinois v. Caballes – drug dogs & – drug dogs & traffic stop traffic stop

Public Vehicle SearchesPublic Vehicle Searches Fl v. Bostick Fl v. Bostick (1991) (1991) – ok to search – ok to search

passengers luggage with consentpassengers luggage with consent Bond v. U.SBond v. U.S. (2000) . (2000) – manipulation of – manipulation of

luggage is not okluggage is not ok

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Fifth AmendmentFifth Amendment

No person shall be held to answer for a No person shall be held to answer for a capital, or otherwise infamous crime, capital, or otherwise infamous crime, unless on presentment of an unless on presentment of an indictment indictment of a grand jury, of a grand jury, except in cases arising except in cases arising in the land and naval forces, or in the in the land and naval forces, or in the militia, when in actual service in time of militia, when in actual service in time of war or public danger; not shall anyone war or public danger; not shall anyone be subject be subject for the same offense to be for the same offense to be twice put in jeopardy twice put in jeopardy life and limb; nor life and limb; nor shall be shall be

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Fifth AmendmentFifth Amendment

Compelled, in any criminal case, Compelled, in any criminal case, to be to be a witness against himselfa witness against himself; nor be ; nor be deprived of life, liberty, or property, deprived of life, liberty, or property, without without due process of law; due process of law; nor shall nor shall private property be taken for public private property be taken for public use, without use, without just compensationjust compensation..

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Sixth AmendmentSixth Amendment

In all In all criminal prosecutionscriminal prosecutions, the accused , the accused shall enjoy the right to a shall enjoy the right to a speedy & speedy & public trialpublic trial, by an , by an impartial juryimpartial jury of the of the state and district wherein the crime state and district wherein the crime shall have been committed, which shall have been committed, which district shall have been previously district shall have been previously ascertained by law, and to be ascertained by law, and to be informed informed of the nature and cause of the of the nature and cause of the accusation; accusation; to be to be confronted with the confronted with the witness against him; witness against him; to have to have

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Sixth AmendmentSixth Amendment

compulsory process compulsory process for obtaining for obtaining witnesses in his favor, and to have witnesses in his favor, and to have the the assistance of counsel assistance of counsel for his for his defense.defense.

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Fifth & Sixth AmendmentsFifth & Sixth Amendments

What constitutes What constitutes self-incriminationself-incrimination?? What is covered under What is covered under due due

process process ?? Can a trial be too Can a trial be too speedy & public speedy & public

to be fair?to be fair? How must you beHow must you be informed of informed of

charges charges ?? What constitutes What constitutes right to counselright to counsel ? ?

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Fifth & Sixth AmendmentsFifth & Sixth Amendments

Escobedo v. Illinois Escobedo v. Illinois (1964) (1964) – – information obtained unlawfully in an information obtained unlawfully in an interrogation (ie. Coerced confession) interrogation (ie. Coerced confession) cannot be used in courtcannot be used in court

Miranda v. Arizona Miranda v. Arizona (1966) (1966) – set – set procedural safeguards after arrest procedural safeguards after arrest (“you have the right to remain (“you have the right to remain silent…”)silent…”)

Davis v. U.S. Davis v. U.S. (1994) (1994) – request for – request for lawyer must be clearlawyer must be clear

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Fifth & Sixth AmendmentsFifth & Sixth Amendments Dickerson v. U.S. Dickerson v. U.S. (2000) (2000) – applies – applies

Miranda Miranda to custodial interrogation to custodial interrogation in federal & state-in federal & state-MirandaMiranda may not may not be overruled by act of Congressbe overruled by act of Congress

Missouri v. Seibert (2003)Missouri v. Seibert (2003) – – ok to ok to admit statements made before admit statements made before MirandaMiranda warning if made again warning if made again after warningafter warning

Kelo v. New LondonKelo v. New London (2005)(2005)– – eminent eminent domain domain seizure for ‘public good’seizure for ‘public good’

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Fifth & Sixth AmendmentsFifth & Sixth Amendments Powell v. Alabama (1932) Powell v. Alabama (1932) - - * Incorporated * Incorporated

right to counsel in capital casesright to counsel in capital cases

Gideon v. Wainwright Gideon v. Wainwright (1963) (1963) – overturned – overturned Betts v. Brady Betts v. Brady and gave right to counsel and gave right to counsel for all felony cases – for all felony cases – *Incorporated right *Incorporated right to counsel in felony cases to states to counsel in felony cases to states *in *in forma pauperusforma pauperus

Korematsu v. U.S. Korematsu v. U.S. (1944)(1944) – – during during wartime gov’t may take extreme wartime gov’t may take extreme measures (that deny due process)measures (that deny due process)

Sheppard v. Maxwell Sheppard v. Maxwell (1966)(1966) – – if a judge if a judge does not have control of the courtroom does not have control of the courtroom there cannot be a fair trial ( ‘The there cannot be a fair trial ( ‘The Fugitive’)Fugitive’)

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Seventh AmendmentSeventh Amendment

In suits in In suits in common law, common law, where the where the controversy shall exceed $20, the controversy shall exceed $20, the right of right of trial by jury trial by jury shall be shall be preserved, and no fact tried by a jury preserved, and no fact tried by a jury shall otherwise be reexamined in shall otherwise be reexamined in any court of the Unites States other any court of the Unites States other than according to the rules of than according to the rules of common law.common law.

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Eighth AmendmentEighth Amendment

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

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Eighth AmendmentEighth AmendmentCruel & Unusual PunishmentCruel & Unusual Punishment

(Death Penalty)(Death Penalty) Robinson v. CA (1962)Robinson v. CA (1962) - - * * Incorporates Incorporates

the cruel & unusual punishment clausethe cruel & unusual punishment clause Furman v. GAFurman v. GA (1972) (1972) – – application of application of

the death penalty in GA is cruel & the death penalty in GA is cruel & unusual (unusual (all states suspend death all states suspend death penalty for four years)penalty for four years)

Gregg v. GA Gregg v. GA (1976)(1976) – – arbitrary arbitrary application of the death penalty application of the death penalty corrected – penalty re-established in corrected – penalty re-established in most statesmost states

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Eighth AmendmentEighth AmendmentCruel & Unusual PunishmentCruel & Unusual Punishment

(Death Penalty)(Death Penalty) Buchanan v. Angelone Buchanan v. Angelone (1998)(1998) – –

mitigating circumstances & the death penalty mitigating circumstances & the death penalty – absence of jury instruction on mitigating – absence of jury instruction on mitigating circumstances does not violate 8circumstances does not violate 8thth amendmentamendment

Atkins v. Virginia (2002)Atkins v. Virginia (2002) – – prohibits death prohibits death penalty for mentally retardedpenalty for mentally retarded

Roper v. Simmons ( 2005)Roper v. Simmons ( 2005) – – prohibits death prohibits death penalty for those 18 years of age & underpenalty for those 18 years of age & under

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