Core Issues For Courts

• Is the law fair and reasonable and within scope of government – substantive due process

• Are the safeguards, practices and processes followed- procedural due process.

Procedural Due Process

• Warrants and probable cause• No self-incrimination, right to remain silent• Right to an attorney and bail hearing• Plea bargaining and immunity• Indictment- grand jury• Speedy and public trial before peers (petit jury)• Question and present witnesses• No double jeopardy for same crime• No cruel or unusual punishment

Broad Areas: Civil Liberties versus Civil Rights

• Civil Liberties - restrains government’s actions against individuals. Person may or may not be a citizen.

• Civil Rights are practices/processes granted to citizens. (14th amendment - equal protection under the law)

4 Civil Liberties in 1st Amendment

• Freedom of Religion

• Freedom of Speech

• Freedom of Press

• Freedom to Assemble

Freedom of Religion

Two Provisions in 1st Amendment Regarding Religion

1. Separation of Church and State

2. Free Exercise of Religion

Separation of Church and State

1st amendment

• “establishment clause” forbids use of government to advance or impede religion and/or religious beliefs.

Establishment Issues

• Everson v. Board of Education (1947) – $ to bus children to parochial schools

• Lemon v. Kutzman (1971) – $ to pay for courses using public school

materials and instructors at parochial school

• Rosenberger v. University of Virginia (1995)– $ to pay for religious magazine from student

fees

Related Issues

• School vouchers (public $) to attend parochial schools

• School prayers- e.g. in class, sporting events, graduation

• Teaching evolution vs. “intelligent design”

Freedom of Religion

• Free Exercise– religious practices (within reason)

cannot be prohibited and/or restricted by the government

Free Exercise

• Welsh v. U. S. (1970)– Service in the armed forces

• Employment Division of Oregon v. Smith (1990)– Use of peyote in sacramental ritual

• Church of Lukumi Babalu Aye v. City of Hialeah (1993)– Animal Sacrifice rituals

Freedom of Expression (Speech)

Court limitations and doctrines

•“clear and present danger” – yelling fire in crowded theater• speech that leads to “bad action” –the bad tendency rule• fraudulent advertising• obscenity e.g. child pornography

• Roth v. United States (1957)-- Federal law prohibiting distribution of “obscene” material through the mail

• Miller v. California (1973)-- State law prohibits the mailing of sexually explicit material

• National Endowment of the Arts v. Finley (1998)--Congressional limitations on NEA funds

Freedom of Expression Cases

Freedom of the Press

• No prior constraint of press

• Press protected from libel--Except where malice can be proven.

• Press protected from gag orders during trials –some exceptions

• Radio and T. V. enjoys less latitude with 1st amendment protections

Press Cases

Gitlow v. People of New York (1925)

Advocating overthrow of government by violent and unlawful means protected speech?

Near v. Minnesota (1931)

Can court stop publication of scandalous article?

New York Times v. U. S. (1971)

Can government stop publication of Pentagon documents?

Right to Assemble and Petition the Government

• Yates v. United States (1957)-- Advocating overthrow of government protected

• Shelton v. Tucker (1960)--Public school teachers filing affidavit of organizations violates right of association

Privacy Rights and Abortion

• 1st+ 3rd+ 4th+ 5th +9th +14th = Roe v. Wade (1973)

• Reproductive rights – Griswold v. Connecticut (1965)

• Court more restrictive regarding rights in Roe today –Webster v. Reproductive Health Services (1989)

Rights of the Accused and of the Community

• Standards for Police Officer and Prosecutor’s Conduct

• Defendant’s Pre-Trial Rights

• Trial Rights

Cases Regarding the AccusedGideon v. Wainwright (1963)

--right to counsel

Miranda v. Arizona (1966)--right to know rights and remain silent

Mapp v. Ohio (1961)-- warrant-less search and evidence

Terry v. Ohio (1968)--police discretion and probable cause

You Be the Judge

• Case• Arguments pro and con• ‘Decision of the judges’• Basis for decision/dissent• Participant names

QUESTIONS?