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Civil Liberties

PSCI 1040 – U.S. & Texas Government

Civil LibertiesCivil LibertiesProtected areas of freedom that must be respected by the government.

Bill of Rights is the source of civil liberties.

L b b lLiberties are not absolute.

Most civil liberties questions deal with when government regulation is excessiveregulation is excessive.

PSCI 1040 - Civil Liberties2

The First Constitutional Amendments: The Bill f Ri htBill of Rights

1787 – Most state constitutions explicitly protected a variety of l lib ipersonal liberties

Speech, religion, freedom from unreasonable search and seizure, trial by jury

New Constitution shifted power to the national governmentp gWould the national government uphold these liberties?

Anti-Federalists voiced this concern


The First Constitutional Amendments: The Bill f Ri htBill of Rights

Bill of Rights addition defeated unanimously at the federal conventionconventionFederalists argued that a bill of right was unnecessary.

Already included by statesFoolhardy to list things that the national government had NO power Foolhardy to list things that the national government had NO power to do

1789, in response to anti-Federalist objections, Congress sent proposed Bill of Rights to the states for ratification, which occurred in 1791g


Applicability of the Bill of RightsBill of Rights intended to limit powers of the national government

First amendment begins with the phrase, “Congress shall make no law . . .”

Barron v Baltimore (1833) Court ruled that the national Bill of Barron v. Baltimore (1833)—Court ruled that the national Bill of Rights limited only the actions of the U.S. government and not those of the states.


The Incorporation Doctrine: The Bill of Rights Made Applicable to the States

14th Amendment Adopted at the end of the Civil War (along with the 13th and 15th amendments)the 13th and 15th amendments)

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any p , y, p p y, p ; y yperson within its jurisdiction the equal protection of the laws.

The U.S. Supreme Court has followed the doctrine of selective incorporation, whereby parts of the Bill of Rights have been made p , y p gapplicable to the states on a case by case basis by incorporating them into the meaning of the “due process” clause.


First Amendment Guarantees: Freedom of R li iReligion

Framers did not support a national church or religion.A l VI d h “ l T h ll b d Article VI provides that “no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States.”First Amendment specifies: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”



Establishment Clause: “Congress shall make no law respecting an establishment of religion”

Prohibits the national government from establishing a national religionnational religion



Engel v. Vitale (1962) School Prayer

Lemon v. Kurtzman (1971) -The Lemon TestIs there a secular purpose?N i h d i hibi li iNeither advances nor inhibits religionDoes not foster excessive government entanglement with religiong


Aid to Religious SchoolsAid to Religious SchoolsChild benefit theory permitted indirect aid.

Zelman v. Simmons-Harris (2002) upheld law permitting government to give money to parents to send children to private or religious schoolsprivate or religious schools



Free Exercise Clause: “Congress shall make no law respecting an bli h f li i hibi i h f i h f ”establishment of religion, or prohibiting the free exercise thereof ”

Prohibits the U.S. government from interfering with a citizen’s right to practice his or her religiong p g

In 1990 Supreme Court upheld an Oregon statute banning use of peyote in some Native American services.

In 1993 the Supreme Court ruled that members of the Santeria Church had In 1993 the Supreme Court ruled that members of the Santeria Church had the right to sacrifice animals during services


First Amendment Guarantees: Freedom of Speech and Press

Democracy depends on a free exchange of ideas.Volatile area of constitutional interpretationFirst amendment says: “Congress shall make no law abridging the freedom of speech or of the press”the freedom of speech, or of the press1798 - Alien and Sedition Acts threatened this principle by making it a crime to criticize the government.



Bad Tendency Test: a rule from English law saying that expression could be punished if it could ultimately lead to illegal behaviorcould be punished if it could ultimately lead to illegal behaviorWWI – Congress attempted to outlaw anti-governmental speech in 1917 Espionage ActClear and Present Danger TestClear and Present Danger Test

Test articulated by the Supreme Court in Schenck v. U.S. (1919) to draw the line between protected and unprotected speech.The Court looks to see “whether the words used” could “create a clear The Court looks to see whether the words used could create a clear and present danger that they will bring about substantive evils” that Congress seeks “to prevent.”But what constitutes a danger?

Direct Incitement TestA test articulated by the Supreme Court in Brandenburg v. Ohio (1969) that holds that advocacy of illegal action is protected by the Fi A d l i i l l i i i d d d


First Amendment unless imminent lawless action is intended and likely to occur.

Fundamental Freedoms DoctrineFundamental Freedoms DoctrineDoctrine stating that laws impinging on the freedoms that are fundamental to the preservation of democratic practice are to be scrutinized by the courts more closely than other legislationlegislation

Fundamental freedoms: speech, press, assembly, and religion

Texas v. Johnson (1989) (flag burning upheld as expressive . J ( ) ( g g p pconduct that did not breach the peace)

United States v. Eichman (1990) (declared a law banning flag burning to be unconstitutional)

R.A.V. v. City of St. Paul (1990) (gave protection to speech i i i i i l h i )criticizing particular ethnic groups)


First Amendment Guarantees: Freedom of Press

Court has made it clear that it will not tolerate prior t i t f bli tirestraint of publication

New York Times Co. v. United States (1971) (Pentagon Papers case) Supreme Court ruled that the U.S. government could not block the publication of secret Department of Defense documents illegally furnished to the Times by anti-war activists.Nebraska Press Association v. Stuart (1976) - Court ruled in favor of ( )press’s right to cover trial.



Symbolic SpeechSymbols, signs, and other methods of expression generally also considered to be protected by the First AmendmentStromberg v. California (1931) Upheld flying of red flag (symbol Stromberg v. California (1931) Upheld flying of red flag (symbol of opposition to U.S. government)Tinker v. Des Moines Independent Community District School (1969)

h ld f bl k b dCourt upheld wearing of black armbands as protest against Viet Nam War


First Amendment Guarantees: Speech Zones

Two-thirds of colleges and universities have banned a variety of f f h d h f i i id i forms of speech or conduct that creates or fosters an intimidating, hostile or offensive environment on campus.

Some have created free speech zonespThese restrict the time, place or manner of speech.

Implication that speech can be limited on other parts of campus.


Freedom of Speech and ObscenityFreedom of Speech and ObscenityEnglish Common Law: “Whether the tendency of the matter . . . is to deprive and corrupt those whose minds are open to such immoral influence. . . .”

Tended to make the “most susceptible person” the testTended to make the most susceptible person the test


Freedom of Speech and ObscenityFreedom of Speech and ObscenityRoth test was created in 1957

Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole the dominant theme of the material taken as a whole appeals to the prurient interests.Utterly without redeeming social importancey g p


Freedom of Speech and ObscenityFreedom of Speech and ObscenityMiller v. California (1973)

Does it depict or describe in a patently offensive way, sexual conduct specifically defined by state law?Does the work taken as a whole lack serious literary artistic Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?Does it offend local community standards?


Freedom of Speech and ObscenityFreedom of Speech and ObscenityIn 1990 Congress instructed the National Endowment for the

t t t k i t id ti l t d d f d arts to take into consideration general standards of decency and respect for the diverse beliefs and values of the American people when making awards.In 1998 Supreme Court upheld the legislation, since it was only one of the criteria to be considered in making awards.


Libel and Slander Not Protected by First A d tAmendment

Libel: publication of false statements that are malicious and damage a person’s reputation.

Slander: spoken defamation.

N Y k T S ll (1964) k h d f bl New York Times v. Sullivan (1964) makes it hard for public figures to successfully sue for libel.

Reckless disregard for the truthReckless disregard for the truth.Malicious intent.


Commercial SpeechCommercial SpeechIncludes advertising and broadcasting.

More extensive regulation is permitted.If speech contains unlawful activity.Wh h i i l diWhen speech is misleading.


Th Ri ht f C i i l D f d tThe Rights of Criminal DefendantsDue process rights: Procedural guarantees provided by the F th Fifth Si th d Ei hth A d t f th Fourth, Fifth, Sixth and Eighth Amendments for those accused of crimes.Warren Court made several provisions of the Bill of Rights p gdealing with the liberties of criminal defendants (those charged but not yet tried) applicable to the states through the Fourteenth AmendmentFourteenth Amendment.


Fourth AmendmentFourth Amendment“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures 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 describing the place to be searched, and the persons or things to be seized.”


Fourth Amendment Protects Against U bl S h d S iUnreasonable Search and Seizure

Implication is that most searches must be conducted with a warrant issued by a magistratewarrant issued by a magistrate.The key issue becomes, “What are the exceptions; when can a search be conducted without a warrant?”


Rules Regarding WarrantsRules Regarding WarrantsTo get a warrant authorities must be able to show probable cause; i.e., that reasonable grounds to believe that a crime has been committed.

Warrants must be specific regarding “the place to be Warrants must be specific regarding the place to be searched, and the persons or things to be seized.”


W tl S h Th t A L lWarrantless Searches That Are LegalUsually involves searches that part of an arrest.Search is necessary to protect officer’s safety.Search is limited to material relevant to the suspected crime.Evidence is within the suspect’s immediate controlEvidence is within the suspect s immediate control.


Exclusionary RuleExclusionary RuleWhat happens when evidence is illegally obtained?In 1914, the Supreme Court applied the rule to federal cases.In Mapp v. Ohio (1961), the Supreme Court extended the rule to state casesrule to state cases.This includes evidence found that was not specified in the warrant.


E ti t th E l i R lExceptions to the Exclusionary RuleEvidence leads police to a discovery they would have made without the tainted evidence.

Good faith exception: police mistakenly thought they were operating under a constitutionally valid warrantoperating under a constitutionally valid warrant.

Evidence illegally obtained as a result of clerical errors.


Searching a VehicleSearching a VehicleOfficers may order a driver and passengers out of a car while issuing a traffic citation and may search for weapons to protect themselves.

If no detainee is not a threat to officers a full search is not If no detainee is not a threat to officers, a full search is not permitted and evidence obtained in such a search is not admissible.


P t ti A i t D bl J dProtection Against Double JeopardyFifth amendment: No person shall be subject for the same offense “to be twice put in jeopardy of life or limb”

Does not prevent both civil criminal trials fro the same offense (e g O J Simpson)offense (e.g., O.J. Simpson)

Does not prevent state and federal trials that may arise out of the same action


P t ti A i t S lf I i i tiProtection Against Self IncriminationFifth Amendment: No person shall be compelled in any

i i l t b it i t hi lfcriminal case to be a witness against himself.1966-Miranda v. Arizona spelled out this right

“You have the right to remain silent.”g“Anything you say can and will be used against you.”

Court reaffirmed the Miranda decision in 2000.


Right to CounselRight to CounselSixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to have the assistance of accused shall enjoy the right to have the assistance of counsel for his defense. Miranda warning includes

You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at

government expense. 1968 – In Gideon V. Wainwright the Supreme Court extended the right to counsel to trials in state courts by

hg y

incorporating it into the due process clause of the 14th

Amendment.


Eight AmendmentEight AmendmentEight Amendment: Excessive bail shall not be required,

i fi i d l d l nor excessive fines imposed, nor cruel and unusual punishments inflicted. Death penalty has been attacked as cruel and unusual.Death penalty has been attacked as cruel and unusual.1972-In Furman v. Georgia the Supreme Court found the capital punishment laws of Texas and Georgia

l b hunconstitutional because they were too vague.States re-enacted their death penalty statutes to meet Supreme Court objectionsSupreme Court objections.


Eighth AmendmentEighth AmendmentTwo groups are exempted from death penalty

h d h fThose under the age of 15.Those who are mentally retarded.

Lethal injection procedures are currently under review by Lethal injection procedures are currently under review by the Supreme Court to see if they violate the “cruel and unusual punishment” clause.


Right to PrivacyRight to PrivacyNot specifically mentioned in the constitution.

A right to privacy is suggested by the 4th amendment: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and papers, and effects, against unreasonable searches and seizures, shall not be violated.”


S C t d Ri ht t P iSupreme Court and Right to PrivacyFirst clearly specified in 1965 in Griswold v. Connecticut.

The court overturned a Connecticut statute banning the distribution of birth control devices.

The court found the decision to use contraception to be protected by a right of privacy.

Th j ti d th t th i ht t i i li d b The justices argued that the right to privacy was implied by provisions of the 1st, 3rd, 4th, 9th and 14th amendments.


Supreme Court Expands Ri ht t P i R W dRight to Privacy: Roe v. Wade

Roe v. Wade 1973 extended the right of privacy to protect woman’s decision to seek an abortion.

Court attempted to balance the woman’s right to privacy i d ti tt ith th t t ’ i t t i in reproductive matters with the state’s interest in protecting human life.


Supreme Court Expands Ri ht t P i R W dRight to Privacy: Roe v. Wade

Divided pregnancy into three trimestersIn first trimester, no compelling state interest that offsets a woman’s privacy rights.In the second trimester a state can regulate access to In the second trimester, a state can regulate access to abortions, if it does so reasonably.In the last trimester, state state’s interest becomes more compelling and it can limit or prohibit abortions as long as the mother’s life is not in danger.


2007 Ruling Upholds Ban P ti l Bi th Ab tion Partial Birth Abortion

In Gonzales v. Carhart, the Supreme Court upheld the federal Partial Birth Abortion Ban Act of 2003.

The court said that the plaintiffs had not demonstrated “th t it i d b d ' i ht t “that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." exception.


2007 Ruling Upholds Ban P ti l Bi th Ab tion Partial Birth Abortion

Decision does not overturn Roe v. Wade.I k h fi i h C h h ld l It marks the first time the Court has upheld a complete ban on an abortion procedure.Court had previously overturned several state laws banning p y gpartial birth abortion.Ruling shows the impact of changed composition of the Supreme Court.Supreme Court.

Resignation of Sandra Day O’ConnorAppointment of Justice Alito and Chief Justice Roberts by Bush administration administration. Majority: Roberts, Alito, Scalia, Thomas, Kennedy


War on Terror and Civil LibertiesWar on Terror and Civil LibertiesSeptember 11, 2001 – Attack on World Trade Center

October 26, 2001 – Passage of USA Patriot Act.


USA Patriot ActUSA Patriot ActUniting andStrengtheningStrengtheningAmerica byProvidingAppropriateToolsRequired toqIntercept andObstructT iTerrorism


A f C b t th P t i t A tAreas of Concern about the Patriot ActGave the federal government the power to examine a terrorist

’ d h ld b hi d i h d lib i suspect’s records held by third parties such as doctors, libraries, bookstores, universities, and Internet service provides.

It allows “delayed notice” search warrants that permit the y pgovernment to search an area without removing anything and without providing immediate notice to the person whose property

as searchedwas searched.


A f C b t th P t i t A tAreas of Concern about the Patriot ActThe act permits the indefinite detention of immigrants and other noncitizensnoncitizens.

The Attorney General needs only assert reasonable grounds that one is involved in terrorism or engaged in activity that poses a danger to national security

The Patriot Act repealed certain precautions regarding the sharing of information between domestic law enforcement agencies and the intelligence community.

d “ ” h f Patriot Act permitted “roving” wiretaps, permitting the tapping of devices used by a target rather than of a single device.


NSA WiretappingNSA WiretappingIn 2005, it was revealed that President Bush had authorized wiretapping without a warrant by the National Security Agencywithout a warrant by the National Security Agency.President Bush alleged that it was authorized by the congressional resolution authorizing the war on Iraq.I 2006 F d l Di t i t C t j d l d th NSA ill In 2006, Federal District Court judge ruled the NSA surveillance unconstitutional.In January 2007, the Attorney General announced that the warrantless

i t i ld d th t f t l t i ill ld wiretapping would cease and that future electronic surveillance would be conducted subject to approval of the Foreign Intelligence Surveillance Court.


Patriot Act Reauthorized in 2006Patriot Act Reauthorized in 2006Reauthorization in March 2006.

Provided additional protections for civil liberties and increased judicial oversight.


War on Terror Raises Old DilemmaWar on Terror Raises Old DilemmaHow much freedom should we give up as a part of programs to defeat an enemy?

If we surrender too many liberties, have we undermined our system?system?


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