Civil Liberties Chapter 4

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

Religion - How far does it go? Pot religion? Devil Worship?

Speech - Does all speech have to be spoken? What is protected? What is not?

1. What are Civil Liberties?

!Freedoms from an abusive government !Chapter 4 will delve into:

! 1st Am. - Religion, Speech, Press, Assembly ! 2nd Am - Gun Rights ! 4th Am. - Unlawful Searches/Seizures ! 5th/6th Am. - Criminal Liberties/Rights ! 8th Am. - Cruel & Unusual Punishments ! Multiple Am. - Zones of Privacy - Abortion

2. Applying the Constitution Gov’t Action - Start here!!!

! 1. Liberties are from GOV’T intrusion. Must have GOV’T acting to deny a right for the Constitution to apply.

! Think: I can sue the police for an illegal search of my car under the 4th Am, but I cannot sue my parents for searching my car…..SORRY! :)

3. Freedom of Religion

! A. Establishment Clause - No nat’l religion. ! Rule - Gov’t must not promote religion & actions

must be non-religious

! Engel v. Vitale - schools cannot sponsor religious activities. Can “open doors” to but be very careful NOT to promote

! B. Free Exercise of - Free exercise unless harmfully interferes w/ public policy (Ex. Heroin Religion won’t fly!)

! Wisconsin v. Yoder - Could not force Amish to go to school past the 8th grade.

! Government must show interference with public policies….

Step 1. State Action - Is the gov’t or school restricting

the speech?

Step 2 . ID Type of Speech

School Speech? - Speech within school or school event

Obscene Speech? - Cuss words, violent or sexually explicit

Political Speech? - related to feelings about our government

Step 3. Gov Stopping PowerHIGH - Restrict if prove school disruption (Tinker) OR speech goes against school mission (Morse)

MED - Gov’t can restrict in time & place as relates to minors

LOW - Clear Present Danger and Bad Tendency Test - Gov’t must show speech is clear threat to public safety (Schenck v. U.S.)

4. Free Speech Test

A. Mary is upset about school, particularly the school lunch program that is controlled by the federal, state, and local governments. Mary wants more choices and more servings at lunch as she is exhausted and hungry again when practice rolls around at 4pm each day. Mary decides she will protest this outside of her school on a Monday morning as school is about to begin. Mary decides to stand across the street from school on a public sidewalk with a sign that reads:

Honk if you are upset and hungry about our school lunch! Thanks First Lady!

Not wanting to cause a scene the principal of the school asks Mary to stop her protest. Mary refuses. Mary is then suspended for the rest of the day from school but vows to continue her protest throughout the week.

Work the Free Speech Test if you are Mary’s lawyer explaining the best path for a victorious lawsuit. Work 1,2,3 in a paragraph.

Step 1. State Action - Is the gov’t or school restricting

the speech?

Step 2 . ID Type of Speech

Political Speech? - related to feelings about our government

Step 3. Gov Stopping PowerLOW - Clear Present Danger and Bad Tendency Test - Gov’t must show speech is clear threat to public safety

Scenario AIf Mary’s Lawyer

The best path to the WIN!

End Lecture 1

B. Mary decides she will protest AGAIN outside of her school on a THURSDAY. Mary is a double early release senior with 3rd lunch. At 1pm she leaves school and walks to the windows outside of the lunch room with a sign that reads:

As students in 3rd lunch see this in the lunch line they cheer and begin chanting….”Better lunch, better lunch, better lunch!”

Then hundreds of students sit down and do not eat lunch. Responding to this, again the principal stops Mary’s protest and suspends her for 3 days.

Write the majority opinion in this case working all 3 steps in this case using these facts and underlining who wins the case. In your test - ASSUME SCHOOL SPEECH THIS TIME!

Use at least (1) one of the following precedents in your PARAGRAPH opinion - Tinker - Symbolic speech needs to cause a school disruption to learning for a school to win. Simply wearing arm bands against a war is not a disruption.

Morse - Symbolic speech can be suppressed by a school if the message goes against a school mission. “Bong hits”….goes against this mission promoting drugs.

“Protest our school by NOT buying lunch today!”

Begin Lecture 2

TestStep 1. State Action - Is the gov’t or school restricting

the speech?

Step 2 . ID Type of Speech

School Speech? - Speech within school or school event

Step 3. Gov Stopping PowerHIGH - Restrict if prove school disruption (Tinker) OR speech goes against school mission (Morse)

4. Free Speech

Majority Opinion ExampleThe Constitution applies to Mary’s case

because she was arrested by a government actor, a principal who suppressed her speech (1). This speech is school speech directed at the school and on school grounds (2). School speech receives high restriction abilities of a school to protect the school mission and not cause school disruptions (3). Like the Tinker case however this does not seem to cause a disruption because not eating lunch did not cause any disruptions to the school day and unlike Morse this speech did not go against

the school mission’s of education as not eating lunch does not tie to that. Therefore,

we find for the student, Mary, whose free speech rights were wrongly violated by the

school. (Applying 3)

5. Freedom of Press! Prior Restraint - Gov’t restricting press

before something happens. Censorship!

! NY Times v. US ! Preferred Position Doctrine - Strong

preference to press publishing if Gov’t wants to use prior restraint. ! Gov’t censor ONLY if threat to

ongoing national security

! Pentagon Papers - Could not show ongoing security risk….past acts not a current threat.

6. Gun Rights - 2nd Amendment

McDonald v. Chicago 2010 Chicago = Crime. Chicago law of disassembled guns in home, trigger locks, lots of restrictions.

Infringe upon 2nd Am. rights? YES Is an individual right. All gun laws may not unnecessarily infringe on this right.

7. 4th Amendment - Search and Seizure Tests

1. State Action - Are the police searching and seizing?

2. No unreasonable searches and seizures.

3A. Home RulesHigh Privacy RightsOnly reasonable without a warrant if: 1. consent 2. emergency to save lives OR evidence.

3B. Car RulesLower Privacy Rights -Reasonable to search without a warrant if:1. See evidence in plain view/smell2. consent by driver 3. Search Relationships

A. Officer’s Safety at Risk (Knowles)B. Search related to arrest - (Gant)

! Exclusionary Rule: excludes use of improperly seized evidence at trial if warrant or 1 of the above exceptions is not present. Mapp v. Ohio

End Lecture 2Assign DP Debate

1. Application of the Constitution. When!?

2. Freedom of Religion - Lemon Test

3. Freedom of Speech Test 4. Freedom of the Press -

Prior Restraint and Preferred Position Doctrine.

5. Freedom of Assembly Rule

1. 4th Amendment Test. Homes vs. VehiclesStart Lecture 3

4TH AMENDMENT ACTIVITYCASESGREENWOOD - SEARCHING TRASH W/O WARRANT?

KNOWLES - SPEEDING SEARCH CASE

GANT - SEARCHES RELATED TO ARRESTS

End Lecture 3

7. 4th Amendment - Search and Seizure Tests

1. State Action - Are the police searching and seizing?

2. No unreasonable searches and seizures.

3A. Home RulesHigh Privacy RightsOnly reasonable without a warrant if: 1. consent 2. emergency to save lives OR evidence.

3B. Car RulesLower Privacy Rights -Reasonable to search without a warrant if:1. See evidence in plain view/smell2. consent by driver 3. Search Relationships

A. Officer’s Safety at Risk (Knowles)B. Search related to arrest - (Gant)

! Exclusionary Rule: excludes use of improperly seized evidence at trial if warrant or 1 of the above exceptions is not present. Mapp v. Ohio

8. Privacy Rights! Various Amendments imply “zones of privacy” ! Roe v. Wade - privacy right to trimester 1 abortion ! Casey - “No undue burdens” in 1st trimester….

Not Undue Burdens - Constitutional ! 24h wait, mandatory counseling, minors needing

permission, outlawing public $$ for abortions, 2nd/3rd trimester abortion outlawed

Undue Burdens - Unconstitutional ! Spousal permission ! Special Clinic/Doctor Restrictions

! See page 119-120 Start Lecture 4

9. Rights of the Accused! Ex. Branch - charging crimes. ! Arrest - 51% evidence….probable cause

! Jud. Branch - convicting crimes. ! Guilt - 90%….beyond reasonable doubt

! Implied Liberties of Accused….. 5th & 6th Am. ! Gideon- right to attorney if charged w/ FELONY ! Escobedo - right to attorney w/ interrogations ! Miranda- requires right of silence + all other criminal rights

reminders….

10. 8th Amendment - No Cruel or Unusual

Punishments

Quick history - Recall the Constitution was written during a time when beheadings and being burned at the stake still took place. Yes, jolly old England burned a woman at the stake in 1789. The Founding Fathers desired more “humane”

punishments like firing squads and hangings. Both are still around TODAY!

Firing Squad - ID, UT, and OK - used in 2010Hanging - WA and NH - used in 1996

Gas Chamber and Electric Chair - Mainly in SE US - used in 2010.

All states that have the DP have lethal injection. 16 states have abolished the DP.

UT’s firing squad chair

Delaware hanged a guy in 1996, the last in the US

1. State Action - Is the gov’t punishing someone

2. No “Cruel or Unusual Punishment”

“Cruel Punishment” Exceptions

Cannot kill:-handicapped-minors-non-homicide offenders???-Cannot give life w/o parole for minors.

Rule - Can kill any competent adult in a homicide case.

Exceptions: Treason & Terroristic acts

% Breakdown

1. Rights of Accused2. Abortion Rights3. 8th Amendment - Who can

and cannot be put to death.

11. BoR & State Gov’t Application! Barron v. Baltimore (1833) - BOR doesn’t apply to state

laws. ! 14th Am (1868) - STATES must provide some BoR

protections to all

! Don’t need to write…just a reminder of Amendment “No State shall make or enforce any law which shall abridge the privileges or immunities (BoR!) of citizens of the United States

! 14th Am overrules Barron, enforcement a long process…..

! Selective Incorporation Theory: Process case by case to apply the BoR liberties to states ! 14th Am is vehicle to force this upon the

states14th

You will only need to the theory of Incorporation... I will specify the cases you need to know for the test!

End Lecture 4 Capital Punishment Assignment

2010 Individual Gun Rights II McDonald v. Chicago