CIVIL LIBERTIESGovernment Restrained

What is freedom? Do you live in a free country?

What are civil liberties?• Legal and Constitutional rights that protect individuals

from arbitrary acts of government. • Civil Liberties include freedom of speech, religion, and

guarantees a fair trial, among other things.• Civil liberties are not the same as civil rights. Civil

rights are simply an individual’s right to be treated fairly and equally under the law. Civil rights are usually displayed as policies designed to protect people against discrimination by government officials or individuals.

The Bill of Rights• 1st: Freedom of speech, press, religion, assembly &

petition.• 2nd: Militia & right to bear arms• 3rd: No quartering of soldiers• 4th: Search & Seizure• 5th: Grand Juries, Self-Incrimination, Double Jeopardy, Due

Process, and Eminent Domain• 6th: Criminal Court Procedures• 7th: Trial by jury in civil cases• 8th: Bail, Cruel & Unusual Punishment• 9th: The Rights Retained by the People• 10th: Reserved Powers of the States

How far do my civil liberties protections extend?

• The original intent of the Bill of Rights was only to limit the power of the federal government.

• The states did not have to guarantee these freedoms to you!

• In 1833, Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights did not apply to the state governments.

• In 1868, the 14th amendment was added to the Constitution, and it effectively stated that civil liberties guaranteed by the federal government could be applied to the states.

• “No state shall…deprive any person of life, liberty, or property, without due process of law.”

Incorporation Theory• Gradually, in a series of cases, the Supreme Court began

to apply the Bill of Rights to the states.• The Incorporation Theory is the legal interpretation that

the protections of the Bill of Rights are incorporated into the fourteenth amendment’s protection against state government actions.

Freedom of Religion: The Establishment Clause

Freedom of Religion• Establishment Clause:

“Congress shall make no law respecting an establishment of religion.”

• Jefferson’s “wall of separation” analogy.

• Related Cases:• 1962, Engle v. Vitale-• School prayer is

unconstitutional.• 1971, Lemon v.

Kurtzman- “Lemon Test- aid must be secular; cannot be used to advance religion; gov. must avoid entanglement with religion.

Establishment Cases• Wallace v. Jaffree, 1985- No moment of silence in schools• Epperson v. Arkansas, 1968-Schools cannot forbid the

teaching of evolution because it imposed religious beliefs on students.

• “Intelligent design” theory does not hold up in court as a viable scientific theory. (Kitzmiller v. Dover Area School District, 2005)

• Supreme Court suggests that some religious displays are okay, others are prohibited. Nativity scenes are fine as long as they are part of a broader holiday display that contains secular objects. A stand alone nativity scene is not acceptable. The same holds true with a display of the Ten Commandments in a government building.

The Free Exercise Clause: “Congress shall make no law…prohibiting the free exercise thereof…”

Free Exercise Clause• You can believe whatever you want, or nothing at all. • Your religious practices cannot be against the law, or

public policy: (vaccines, animal sacrifice, etc..)• Churches receive tax exempt status, and they are not, by

law, allowed to endorse political candidates.• Many do, however, and both parties benefit from

endorsements from the pulpit.• Only the most egregious have lost their tax exempt status

(Branch Ministries v. Rossetti, 2000)• In 1995, Church used tax exempt dollars to buy

newspaper ads denouncing Bill Clinton.

Free Exercise Cases• Reynolds v. United States, (1879) Banned polygamy• Oregon v. Smith, (1990) Banned the use of illegal drugs

during religious ceremonies

Free Speech Cases• Schenck v. United States (1919) established the “clear and

present danger test”, and limited free speech that caused a dangerous condition, actual or imminent, that Congress had the power to prevent.

• New York Times v. Sullivan (1964) Public officials must prove actual malice. Public figures have a greater burden of proof in defamation cases than do private individuals.

• Roth v. U.S. (1951) Obscenity is not constitutionally protected as free speech.

• Miller v. California (1973) “tests” for obscenity.• Tinker v. Des Moines School District, (1969) protected some

symbolic speech (arm band protests in schools)• Texas v. Johnson (1989) Flag burning is protected.

Applying the 14th Amendment: The Due Process Clause• Mapp v. Ohio (1961) Extended the Exclusionary Rule [first

introduced in Weeks v. U.S. (1914)] to the States• Gideon v. Wainwright (1963) Extended the right to an

attorney to the states• Miranda v. Arizona (1966) Police must inform suspects of

their rights.

Mapp v. Ohio (1961)

Gideon v. Wainwright (1963)

Miranda v. Arizona (1966)

Do you know your rights?• Even the most law abiding citizen can be detained,

questioned, or even arrested by police.

• 4th, 5th, 6th & 8th Amendments deal specifically with the rights of criminal defendants.

• Some rights are also guaranteed by the constitution.

• Some have been expanded by the Supreme Court.

Rights of the Accused:

• No unreasonable searches and seizures• No arrest without probable cause• No coerced confessions or illegal interrogations• No entrapment• On questioning, suspect must be informed of his/her

rights.

Defendant’s Pretrial Rights• Writ of Habeas Corpus (Article 1, Section 9)• Prompt arraignment• Legal counsel• Reasonable Bail• To be informed of charges• To remain silent

Trial Rights• Speedy & public trial• Impartial jury selected from a cross section of the

community• Trial atmosphere free of prejudice, fear & outside

interference• No compulsory self-incrimination• Adequate counsel• No cruel & unusual punishment• Appeal of convictions• No double jeopardy

U.S. Patriot Act of 2001• “Grave threats to liberty often come in times of urgency, when

constitutional rights seem too extravagant to endure.” ~Justice Thurgood Marshall

• September 11, 2001 significantly eroded at least some of our basic rights, particularly those protected by the 4th Amendment (freedom from unreasonable search & seizure)

• P.A. expanded the definition of terrorism to include domestic terrorism.

• It authorized searches of a home or business without the owner’s or occupant’s permission or knowledge.

• Allowed law enforcement to more easily search telephone, email, medical, financial, and other records.

• Reauthorized in 2006.

National Security Agency (NSA)• George W. Bush issued an executive order in 2001

authorizing the NSA to conduct secret surveillance without court (or special court) warrants.

• NSA could monitor phone calls between foreigners and people within the U.S. if one had suspected links to terrorist organizations.

• In 2007, Congress passes a law to authorize the warrantless NSA wiretaps. It has been subsequently reauthorized.

Do you have a RIGHT to privacy?• There is no explicit reference made in the United States

Constitution that guarantees a person’s right to privacy.• Until 1965, the Supreme Court did little to suggest that

Americans had a right to privacy.• The Ninth Amendment states, “The enumeration in the

Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”

• What does this mean?

Right to Privacy Cases• Griswold v. Connecticut (1965) SC ruled that

contraceptive laws violate the right to marital privacy.• Roe v. Wade (1973) SC ruled that abortion is protected by

the right to privacy implied by the Bill of Rights.