CIVIL LIBERTIESCIVIL LIBERTIES

THE UNALIENABLE THE UNALIENABLE RIGHTSRIGHTS

Civil LibertiesCivil Liberties are …. are …. Protections against arbitrary acts of Protections against arbitrary acts of

governmentgovernment;; delineated in the Bill of delineated in the Bill of RightsRights

Framers felt primary purpose of Framers felt primary purpose of government is to protect individual rights – government is to protect individual rights – included in Dec. of Ind. AND Constitution.included in Dec. of Ind. AND Constitution.

HOWEVER,HOWEVER, individual rights are not individual rights are not unlimited – not absolute, but instead are unlimited – not absolute, but instead are relative – relative – they arethey are limited by the rights of limited by the rights of every other person – every other person – they MUST be balanced they MUST be balanced with the rights of others in society.with the rights of others in society. For example …..?For example …..?

Protection of individual Protection of individual rights applies to ….rights applies to ….

ALL PERSONS,ALL PERSONS, aliens a/w/a citizensaliens a/w/a citizens

BUT…BUT… KOREMATSU v. U.S.KOREMATSU v. U.S. – –

1944, rights can be 1944, rights can be suspended if ….suspended if ….

What about the What about the question question of education of illegal of education of illegal aliens?aliens?

PLYER v. DOEPLYER v. DOE,, 1982 1982 TX could not deny funding TX could not deny funding

for education to children who for education to children who were illegal immigrants (5-4 were illegal immigrants (5-4 decision)decision)

The right to an education is based on where a person lives, not their alien status.

SELECTIVE SELECTIVE INCORPORATIONINCORPORATION

Barron v. Baltimore, 1833Barron v. Baltimore, 1833 55thth Amendment eminent domain case Amendment eminent domain case

– Barron damaged by action of city – Barron damaged by action of city of Baltimore (“took” land – his wharf of Baltimore (“took” land – his wharf - w/o compensation)- w/o compensation)

Court held that Bill of Rights Court held that Bill of Rights restrained restrained ONLY the national ONLY the national governmentgovernment – they did not restrain – they did not restrain states and cities – city of Baltimore states and cities – city of Baltimore wins.wins.

Some felt Court had gone too far in saying Some felt Court had gone too far in saying states & cities were not restrained by ANY states & cities were not restrained by ANY of Bill of Rights.of Bill of Rights.

Your civil liberties protect you from what government?

Gitlow v. New York, 1925Gitlow v. New York, 1925 Free Speech & press caseFree Speech & press case

(anarchist/socialist speech/leaflet)(anarchist/socialist speech/leaflet) Began the Began the “incorporation doctrine”“incorporation doctrine”

Most of the protections in the Bill of Rights Most of the protections in the Bill of Rights are also covered by the 14are also covered by the 14thth Amendment’s due Amendment’s due process clause and therefore also apply to the process clause and therefore also apply to the statesstates

IncorporationIncorporation = merging the Bill of Rights = merging the Bill of Rights guarantees into the 14guarantees into the 14thth Amendment thereby Amendment thereby “nationalizing” the Bill of Rights.“nationalizing” the Bill of Rights.

Fourteenth AmendmentFourteenth Amendment, Sec. One, , Sec. One, prohibits any state from depriving "any prohibits any state from depriving "any person of life, liberty, or property, person of life, liberty, or property, without due process of lawwithout due process of law."."

Gitlow Ct. held that based on the “due Gitlow Ct. held that based on the “due process” clause of the 14process” clause of the 14thth Am., the Am., the fundamental speech and press fundamental speech and press protections of the First Amendment protections of the First Amendment should be extended to the states.should be extended to the states.

DUE PROCESS 5TH Amendment says FederalFederal government may not deprive a

person of life, liberty or property without due process of law 1414thth Amendment Amendment places this same restriction on the StatesStates “Due Process” simply means gov’t cannot deny rights to any

person that are considered basic/essential to the American concept of ordered liberty

Two types: Procedural due process – deals with HOW the gov’t acts

Gov’t has to act fairly & within the rules – for example, Gov’t has to act fairly & within the rules – for example, you have the right to be notified of charges or you have the right to be notified of charges or proceedings, the opportunity to be heard at these proceedings, the opportunity to be heard at these proceedings, and right of impartial decisions, etc.proceedings, and right of impartial decisions, etc.

Substantive due process provides that the laws, policies, rules of gov’t must be fair --- the “WHAT”

Rights that reserve to the individual the power to Rights that reserve to the individual the power to possess or to do certain things, despite the government’s possess or to do certain things, despite the government’s desire to the contrary- freedom of speech and religion, desire to the contrary- freedom of speech and religion, etc. etc.

By the 60s, most of Bill of Rights were By the 60s, most of Bill of Rights were incorporated.incorporated.

““Selective” Incorporation Selective” Incorporation though because though because only certain rights have been selected and only certain rights have been selected and incorporated via the 14incorporated via the 14thth Amendment. Amendment.Which ones have Which ones have NOTNOT been incorporated? been incorporated?

FREEDOM OF RELIGIONFREEDOM OF RELIGION

Is it in the Constitution?Is it in the Constitution?

Fundamental belief is that free expression, including freedom of religion, is necessary to a free society.

Two Clauses: Establishment and Free Exercise

Establishment Clause: Controversy: does it simply prohibit

favoring one religion over another?.... OR

Jefferson’s “wall of separation” between church and state? the wall prohibited not only

favoritism of a particular religion, but also ANY support for ANY religion at all.

Read the clause – what do you think? “Congress shall make no law

respecting an establishment of religion….”

Lemon v. Kurtzman, Lemon v. Kurtzman, 19711971 Landmark case on government

aid to church-related schools Was NOT allowed in this case Court set out 3 pronged “Lemon”

test:

1. Aid must have a secular purpose

2. Primary effect must not advance nor inhibit religion

3. Must not create excessive gov’t “entanglement” with religion

LBJ got parochial aid approved in 1965 - How?

Argued that aid went to the students, not the schools, & thus $ could go wherever the students were (but since most parochial schools are Catholic, is the Catholic religion favored?)

Permissible “religious” Permissible “religious” activities:activities:

Gov’t aid for textbooks, equipment, lunches, at parochial schools (but NOT teacher salaries)

Can schools deny religious meetings on campus? NO - 1984 Equal Access Act: schools

that receive federal funds must allow student religious meetings on campus if it opens its doors to other student meetings

U of VA was required to subsidize student religious magazine just like it did other student publications - 1995

SCHOOL PRAYER –ESTABLSHMENT CLAUSE:

Engle v. Vitale, 1962Engle v. Vitale, 1962 Forbids the sponsorship or

encouragement of prayer by public school officials

State officials had written non-sectarian prayer to be recited by NY schoolchildren at beginning of day

Court said religious beliefs were embodied in it even though not explicit

Same ruling in Abbington Abbington School District v. SchemppSchool District v. Schempp, 1963 – PA law that allowed a Bible passage to be read at beginning of day held unconstitutional

Majority of American public has never Majority of American public has never supported Court’s opinion on school supported Court’s opinion on school prayer prayer

Has it gone too far – has it gone far Has it gone too far – has it gone far enough?enough? 19921992 – school sponsored prayer at – school sponsored prayer at

graduation held to be unconstitutional; graduation held to be unconstitutional; again in 2011again in 2011

20002000 – student-led prayer at football game – student-led prayer at football game held to be unconstitutionalheld to be unconstitutional

Other Establishment issues:

LA required schools to teach creation science in addition to Darwin – Sup. Ct. struck it down in 1987.

Displays of religious symbols a confusing issue: Nativity scenes CAN be

okay …. Case by case basis…allowed sometimes if Santa Claus, or other secular symbols, there also

Ten Commandments now not allowed to be posted in public buildings … BUT, Alabama 2014 ….

FREE EXERCISE CLAUSE ““Congress shall make no law respecting an Congress shall make no law respecting an

establishment of religion, or prohibiting the free establishment of religion, or prohibiting the free exercise thereof…”exercise thereof…”

Free Exercise clause protects individuals’ right to BELIEVE – but not to DO – whatever they wish.

What kinds of actions might society find necessary that are forbidden by certain religions – or vice versa?

Amish – Ct. held in Wisconsin v. Yoder that Amish children CAN be released from compulsory education after 8th grade

Santeria case, Hialeah, FL – are animal sacrifices part of “free exercise” of religion? Court said yes

What about Christian Scientists & their beliefs?

11STST AMENDMENT AMENDMENT RESTRICTIONSRESTRICTIONS SPEECH:: Some speech is Some speech is UNPROTECTED –

for example? obscenity, child pornography, defamatory speech, and

seditious speech. Courts have to apply “balancing test” in determining

permissible or impermissible speech What do they balance freedom of expression against?

competing values like public order, national security, right to a fair trial, etc.

Courts also have to decide what “speech” actually is ASSEMBLY::

must be must be lawful + nonviolent; order is maintained by time, place, manner restrictions; precise, fairly administered & content neutral. NO private property trespassing!

FREEDOM OF SPEECH & PRESS

What is the difference between libel and slander?

Both concern false and malicious use of words

Libel = printed words; Slander = spoken words

Landmark Supreme Court Case: NY Times v. Sullivan (1964) Statements about public figures are libel ONLY if made with malice & reckless disregard for the truth

Supreme Court allows much in way ofSupreme Court allows much in way of parody or lampooning of public parody or lampooning of public

figures:figures: Falwell v. HustlerFalwell v. Hustler “first time” case “first time” case

“Prior Restraint” refers to … pre-publication

censorship by gov’t Landmark case:

Near v. Minnesota, 1931

“Jewish gangsters” Court generally

disallows prior restraint even in national security situations:

Pentagon Papers case NY Times v. U.S. Nixon seeking

injunction - Ct. ruled in favor of paper

Court DOES allow prior restraint in public schools - have power of censorship

Landmark Case: Hazelwood School

District v. Kuhlmeier (1988)

School newspaper not a“public forum”

Regulation (censorship) allowed –school has basic educational mission

Seditious speech is NOT protected.

Schenck v. the U.S. (1919) Socialist party official

urging men drafted in WWI to resist service

Court found the speech seditious

But, also set “clear and present danger doctrine”

Change in Brandenburg v. Ohio (1969)?

Can advocate overthrow in abstract; just can’t incite action toward it

OBSCENITY not protected either

Landmark Supreme Court Cases:

Roth v. U.S. (1957) Miller v. CA (1973)

Obscenity defined Problem is there’s no

nationwide definition of “lewd or offensive” or that it should be banned from adults

Laws protecting kids from it are upheld though

THE MEDIA & FREE THE MEDIA & FREE SPEECHSPEECH

Absolute right to cover trials (not necessarily pretrials)

Reporters & sources & testimony: Some states, including FL, have passed

“shield laws” to protect reporters NOT protected federally

Landmark Supreme Court Case: Branzburg. V. Hayes (1972) In absence of shield laws, right of a fair

trial preempts reporter’s right to protect sources & they have to provide them if asked

Movies, Radio, Movies, Radio, TV:TV: Have more restrictions

than print media Movies do enjoy 1st

amendment right to “liberty of expression”

Content of radio & TV broadcasts regulated by FCC (commerce power)

Radio & TV ads are subject to gov’t regulation through the FTC

Note though that restrictions have been loosened

And, more lax rules for cable

U.S. v. Playboy Entertainment (2000) Can’t ban programming;

subscriber must request blocking

SYMBOLIC SPEECH can be protected

Tinker v. Des Moines School District (1969) Black armbands

protesting Vietnam War

Court upheld students right of symbolic speech

Other Protected Other Protected “Expressions”“Expressions”

Burning the flag held to be “freedom of expression” – symbolic speech

Landmark Supreme Court Case: Texas v. Johnson

(1989) outside 1984 Republican

Convention in Dallas Flag Protection Act, 1989 Flag Protection Act, 1989

… struck down in 1990… struck down in 1990 Parades are protected

“speech” insofar as who is included

FREEDOM OF ASSEMBLY & PETITION Right to assemble guaranteed BUT

Government regulation can be imposed: Time, place, manner regulations Particularly near schools and churches Rules must be “content neutral” –

meaning? Harassment not allowed

“Right of association” To associate with people sharing common

interest NAACP v. Alabama (1958)

AL wanted membership list; Ct. said no Boy Scout case, 2000

How has the war on terror affected How has the war on terror affected your civil liberties?your civil liberties?

Defendants’ RightsAmendments 4, 5, 6, 8

44THTH AMENDMEDNT AMENDMEDNT: enacted in : enacted in response to British response to British writs of assistancewrits of assistance (blanket search warrants) during the (blanket search warrants) during the colonial dayscolonial days

Right to be secure in your persons, Right to be secure in your persons, homes, papers and protected against homes, papers and protected against unreasonable search and seizure.unreasonable search and seizure.

44thth Amendment protects you from Amendment protects you from unreasonableunreasonable search and seizuresearch and seizure

4th Amendment

SCOTUS has interpreted 4SCOTUS has interpreted 4thth Am. to say Am. to say that police CAN search the following that police CAN search the following without a warrant:without a warrant: a person being arresteda person being arrested evidence that is in “plain view”evidence that is in “plain view” Other things the person being arrested Other things the person being arrested

could touch or reach -- could touch or reach -- Wingspan ruleWingspan rule Otherwise, police need a search warrant Otherwise, police need a search warrant

specifying area of search & material sought specifying area of search & material sought UNLESS…..UNLESS…..

Police can also arrest w/o a warrant if have Police can also arrest w/o a warrant if have probable causeprobable cause to believe a crime has been or is to believe a crime has been or is about to be committed about to be committed

Officer does NOT need warrant to Officer does NOT need warrant to search car, boat, plane, etc. if there’s search car, boat, plane, etc. if there’s probable cause to believe it is probable cause to believe it is involved in illegal activities. involved in illegal activities. WHY?WHY?

1990s cases held that police who 1990s cases held that police who lawfully stop a car do not need a lawfully stop a car do not need a warrant to search anything in a car warrant to search anything in a car that they have reason to believe that they have reason to believe holds evidence of a crime – includes holds evidence of a crime – includes glove box, trunk, and the belongings glove box, trunk, and the belongings of the passengersof the passengers

4TH Amendment & Automobiles

What about GPS tracking devices on vehicles?2012 Roberts court decision -  police must obtain a warrant from a judge before placing a GPS tracking device on a vehicle.

4TH Amendment & Strip Searches

2012 case, 5/4 decision – jailers can 2012 case, 5/4 decision – jailers can use strip searches on people use strip searches on people arrested even for minor offenses. arrested even for minor offenses. Reasoning?Reasoning?

4TH Amendment & MandatoryDrug Testing?

Mandatory drug/alcohol testing of Mandatory drug/alcohol testing of employees involved in accidents employees involved in accidents held constitutional 1989held constitutional 1989

1995, SCOTUS ruled that 1995, SCOTUS ruled that mandatory drug testing of high mandatory drug testing of high school athletes was constitutionalschool athletes was constitutional

2002, SCOTUS extended 2002, SCOTUS extended permissibility for mandatory permissibility for mandatory testing to students in testing to students in extracurricular activities also – extracurricular activities also – band, chorus, etc.band, chorus, etc.

EXCLUSIONARY RULE Evidence gained as the result of an illegal act

by police cannot be used at the trial of the person from whom it was seized.

Has been changed over time to extend to the states - Landmark Supreme Court Case: Mapp v. Ohio – 1961 / exclusionary rule

incorporated/applicable to states Police can obtain only evidence found

through a legitimate search warrant & any other evidence found (unless “in plain view”) is inadmissible.

Note: Supreme Ct. has found some exceptions to the rule …. 1980s - can use the evidence if it led police to a

discovery they would have eventually made anyway without it

1995 – rule does not exclude evidence obtained illegally as result of clerical error

RIGHTS OF THE ACCUSED Writ of habeus corpus (writ of liberty)

Accused must be brought before Court and officer to show cause as to why he should not be released

No ex post facto laws (criminal laws) No bills of attainder (act made illegal w/o right of

jury trial)

Right to indictment (accusation) by grand jury Applies only to “serious” crimes

determined by the nature of the punishment that may be imposed; capital offenses require grand juries

Operate in closed (secret) deliberation proceedings No attorneys present for defendants, no exclusionary rule,

etc. Can call and examine witnesses w/o telling why

Has NOT been incorporated to states under 14th Amendment – so can be abolished by states…replaced in many by preliminary hearings instead

5th AMENDMENT RIGHTS:

RIGHTS OF THE ACCUSED

5th AMENDMENT Prohibition against Double Jeopardy Can’t be tried for the same crime twice

UNLESS…..what would be the exception?

Right against self-incrimination in any proceeding that could lead to a criminal charge (federal or state)Doesn’t just apply to trial - starts with arrest!

MIRANDA v. ARIZONA, 1966

Miranda

Multiple kidnapping/rape/robbery accusations Finally arrested and picked out of a line-up Confessed after 2 hrs. of police interrogation Had not been informed of his rights. The Supreme Court set aside Miranda's conviction, which was tainted by the

use of the confession that had been obtained through improper interrogation. The state of Arizona retried him. At the second trial, his confession was not introduced into evidence, but he was convicted again anyway. He was sentenced to 20 to 30 years in prison.

Miranda was paroled in 1972. After his release, he started selling autographed Miranda Warning cards for $1.50. Over the next years, Miranda was arrested numerous times for minor driving offenses and eventually lost the privilege to drive a car. He was arrested for the possession of a gun but the charges were dropped. But because this violated his parole he was sent back to Arizona State Prison for another year.

After his release, Miranda spent most of his time in poorly kept bars and cheap hotels in rough sections of Phoenix. Miranda, then working as a delivery driver, participated in a card game at La Amapola Bar.

On January 31, 1976, a violent fight broke out and Miranda received a mortal knife wound from a lettuce knife; he was pronounced dead on arrival at Good Samaritan Hospital. He was 34 years old.

Police officers apprehended a male suspect shortly afterward and read him his Miranda rights from a small rectangular card, while another suspect involved in the murder fled to Mexico.

6th AMENDMENT Right to a “fair and speedy trial” which includes

right to confront a witness against you right to a witness in your favor right to assistance of counsel in your defense right to be tried in district where crime was

committed right to be informed of the charges against you right to a PUBLIC trial - WHY?

But trial can’t be TOO public … i.e., allowing for mobs, etc. The dilemma with tv cameras is that the courtroom is

a public place where press is allowed, HOWEVER… Media cannot interfere with “fair” trial Judge gets to make the call on the media vs. “fair”

6th AMENDMENT

““Fair” trial includes Fair” trial includes right to an right to an attorneyattorney

Landmark Supreme Court Cases:Landmark Supreme Court Cases: Gideon v. WainwrightGideon v. Wainwright (1963) – (1963) –

right to attorney at trial for any right to attorney at trial for any criminal action (FL law only required criminal action (FL law only required state to appoint attorneys for capital state to appoint attorneys for capital offenses) – extended to state courtsoffenses) – extended to state courts

Escobedo v. IllinoisEscobedo v. Illinois (1964) - (1964) - & in & in police interrogationpolice interrogation

Miranda v. ArizonaMiranda v. Arizona (1966) (1966) – also – also rules in favor of right to secure counselrules in favor of right to secure counsel

8th AMENDMENTCRUEL & UNUSUAL

PUNISHMENT Applied to states through 14th amendment & is prohibited but not many cases on it

Court usually rules against claim of cruel & unusual punishment; most claims are on capital punishment

Landmark Supreme Court Case: Gregg v. Georgia (1976)

Death penalty NOT cruel & unusual (1989 – even for 16 & 17 year olds) 2002 – can’t execute mentally

retarded Baze v. Rees (2008)

Court held that KY’s lethal injection scheme did not violate the 8th Amend.

This June 18, 2010, file photo shows the firing squad execution chamber at the Utah State Prison in Draper, Utah. Ten years after banning the use of firing squads in state executions, Utah lawmakers on Wednesday, Nov. 19, 2014, endorsed a proposal to resurrect the practice in order to head off problems with the lethal injection drugs. 

8th Amendment - BAIL

Bail is $ accused is required to post as guarantee that he will appear in court at proper time

Note: the Constitution does NOT guarantee a right to bail, just that if it is set, it can’t be “excessive.” Why is bail even allowed?

“Excessive” is ruled to be amount higher than necessary to insure defendant’s appearance at trial

Some defendants (no flight risk, etc.) released “on their own recognizance” – their own honor

“Jumping bail” – failure to appear at Court – is a crime in and of itself

RIGHT TO PRIVACY NOT specifically guaranteed in Bill of Rights But, Court has now deemed it to be included and

implied by a “penumbra” of guarantees in the Bill of Rights (rt. to exercise private religious beliefs, protected in homes, 14th amendment due process, etc.)

First appears in 1965 contraceptives case, Griswold v. CT: 1879 CT law forbade the use of contraceptives

(trying to put an end to adultery) Court ruled that family planning (i.e., birth

control) is private between husband & wife and protected by the Constitution

A 1972 case extended the same right (under equal protection clause of 14th amendment) to unmarried couples as well

What about your trash? Can your trash be searched?

RIGHT TO PRIVACY

Most controversial application of privacy rights is with the issue of ABORTION Roe v. Wade – 1973

Ct. followed medical trimesters No state control allowed in 1st

trimester 2nd trimester – only to protect

mother Banned it during 3rd trimester

UNLESS mother’s life or health in danger

Test over state control originally WAS one of “strict scrutiny” of any restraints on a “fundamental right”

BUT, test of state control now is one of “undue burden,” not the trimesters of Roe Planned Parenthood v. Casey,

1992

Won by Love: Norma McCorvey, Jane Roe of Roe V. Wade, speaks out for the unborn as she shares her new conviction for life .

- State CAN place reasonable limits on woman’s right to an abortion but they can’t impose an undue burden on her choice to have the procedure- CAN require counseling, parent notification if a minor, 24 hour wait time, etc.

Florida & AbortionFlorida & Abortion Restrictions in effect as of April 2013: Health plans offered under Healthcare Reform Act can

only cover abortion in cases when the woman's life is endangered, rape or incest

The parent of a minor must be notified before an abortion is provided.

Public funding is available for abortion only in cases of life endangerment, rape or incest.

Ultrasound required beforehand - the provider must offer her the option to view the image. In Florida, 381,500

of the 3,505,482 women of reproductive age became pregnant in 2008.

61% of these pregnancies resulted in live births

25% in induced abortions.

RIGHT TO DIE? Is there a right to choose to die ? Cruzan v. Director, MO Dept. of Health, 1990

Individuals DO have the right to right to refuse medical treatment under the due process clause

BUT incompetent persons (e.g., in vegetative state) are NOT capable of making that decision

Need “clear and convincing evidence” that they would desire medical treatment to be withdrawn

Can parents choose to let their children die? This was the problem in the Terry Schiavo case in

FL – no directive lasted from 1990 to 2005 Case was in court over 20 times & each time the Court ruled that Terri’s fate was under her husband's control

Can parents choose to let their children die?

Assisted Suicide?Assisted Suicide? Court ruled in 1997 that there Court ruled in 1997 that there

is NO constitutional right to is NO constitutional right to physician-assisted suicide and physician-assisted suicide and that states may prohibit itthat states may prohibit it

Jack Kevorkian claimed to have Jack Kevorkian claimed to have assisted over 130 patients do so assisted over 130 patients do so – arrested, convicted of 2– arrested, convicted of 2ndnd degree murder, served 8 years degree murder, served 8 years (sentence of 10-25 years).(sentence of 10-25 years). Released on parole on June 1, 2007, on Released on parole on June 1, 2007, on

condition he would not offer suicide condition he would not offer suicide advice to any other person.advice to any other person.

Died at age 83 in 2011 – liver Died at age 83 in 2011 – liver problems/Hep C/kidney problems/Hep C/kidney problems/pneumonia/blood clotproblems/pneumonia/blood clot

DOMADOMA Enacted September 21, 1996Enacted September 21, 1996 Federal law that allows states to Federal law that allows states to

refuse to recognize same-sex refuse to recognize same-sex marriages from other statesmarriages from other states

BUT, Section 3 of the Act relating BUT, Section 3 of the Act relating to federal benefits was ruled to federal benefits was ruled unconstitutional in 2013 so that unconstitutional in 2013 so that now, for purposes of federal laws, now, for purposes of federal laws, same-sex couples can receive same-sex couples can receive federal marriage benefits. federal marriage benefits.

DOMA's passage did NOT prevent DOMA's passage did NOT prevent individual states from recognizing individual states from recognizing same-sex marriage, but it imposed same-sex marriage, but it imposed constraints on the benefits constraints on the benefits received by all legally married received by all legally married same-sex couples.same-sex couples.

http://www.nytimes.com/interactive/2013/06/26/us/annotated-supreme-court-decision-on-doma.html?_r=0

http://gregstoll.dyndns.org/marriagemap/Changes from 1996 when DOMA passed and after 2013 when court overruled Section 3: