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Civil Liberties
PROTECTS CITIZENS AGAINST GOVERNMENT RESTRAINT
First…a discussion
MORSE V. FREDERICK—YES THIS IS A REAL CASE
Here’s What We’ll Learn…
 Civil Liberties under the original Constitution
 Incorporation
 First Amendment rights and restrictions
(scholars…get ready to argue!)
 Due Process rights
 Privacy rights
 Rights of the accused
 Capital Punishment
Civil Liberties Under the Original
Constitution
 Habeas Corpus—court order
directing that a prisoner be
presented in court and charges
explained
 Probably can never be suspended
(Lincoln tried in the Civil War)
 Enemy combatants???
 Ex Post Facto Laws—also banned
(retroactive punishments)
 Bill of Rights added
 Then…Amendment 14 and the Due
Process Clause (Civil War
Amendment)
Incorporation  Originally: Bill of Rights only
applied to the Federal
Government’s dealings with the
citizens
 Then the 14th Amendment
guaranteed under the Due
Process Clause that all citizens
had to be treated equally
 Substantive Due Process (limits
what government can do)
 Procedural Due Process (how
laws are applied)
 Gitlow v. New York (1925) began
incorporation, the case-by-case
extension of the bill of rights to
the states
Selective
Incorporation of
the Bill of Rights
Update!
McDonald v.
Chicago (handgun
band) incorporated
this in 2010
The First
Amendment
Rights From Amendment I
 Speech
 Press
 Religion
 Assembly
 Petition the Government
Freedom of Speech
 “Congress shall make no law
…abridging the freedom of
speech…”
 Pure speech v. symbolic
speech
 Is this an absolute right?
 When can it be LEGALLY
taken away
 Endangering public safety
 Advocating illegal activity
Overthrow of Government
(esp. wartime)
When Can It Be Regulated?
 Flag burning in a protest?
 YES (Texas v. Johnson)
 Burning Draft Card?
 No (US v. O'Brien)
 Picketing a private residence?
 NO (Frisby v. Schultz)
 Three part test to uphold:
 Within powers of government
 Regulation must be
unrelated to free speech
 Other channels of speech
are available
Unprotected Speech
 Sedition: urges resistance
to lawful authority or
government overthrow
 Defamatory speech: false
speech; damages
character or reputation
 Libel (written)
 Slander (spoken)
 Public official? OK
 Obscenity
 Fighting words: violent
reaction
 Student speech: can be
regulated
The Court's Test
 Evolution of established limits:
1. Clear and present danger
(immediate danger)
2. Bad Tendency Doctrine
(Restricted if it tended to lead
to an illegal action)
3. Preferred Position Doctrine—
Speech should almost NEVER
be restricted (speech has a
preferred position in the
constitution)
1. These are fundamental rights;
will assume law is
unconstitutional)
Freedom of Religion
“Congress shall
make no
law…respecting
the establishment
of religion…[or]
prohibiting the free
exercise of
religion…”
Establishment
Clause
Free Exercise
Clause
Separationof Church and State
 Establishment Clause
 No state-sponsored religion
 Wall of separation: how
high?
 Pledge of Allegiance
 Money
 Everson v. Board of Ed
(1947)
 New Jersey
 Public $ used to bus
 Upheld (furthered education,
not religion)
Lemon Test
 Lemon v. Kurtzman (1971)
 State aid to church is legal as along as:
1. Have a non-religious purpose
2. Can’t advance or inhibit religion
3. Avoid excessive government entanglement
in religion
 Engel v. Vitale (1962)
 Teaching of Intelligent Design?
Free Exercise Clause
 Polygamy (Reynolds v. US)
 Amish & compulsory
education laws (Wisconsin
v. Yoder)
 Jehovah’s Witnesses must
salute the flag (West
Virginia State Board of
Education v. Barnette)
 Using peyote
(Employment Division v.
Smith)
Press, Assembly, Property
LET’S DO SOME RESEARCH
Non-First
Amendment Rights
SHS SOCIAL STUDIES
Amendment IV (privacy)
 III: Quartering troops
 Searches & seizures—
must be reasonable
 Probable cause
 Search warrant
 Signed by judge
 Exclusionary rule
Right to Privacy
 Griswold v. Connecticut (1965)
 Roe v. Wade (1973)
 Ohio v. Akron Center (1990): parental consent
under 18
 Lawrence v. Texas (2003): Adults have a right to
consensual sexual relations with one another
Is A Warrant Needed?
 Belief that someone committed a felony?
 Yes
 Crime committed in presence of police?
 No
 Garbage cans
 Yes (unless garbage has been taken out)
 Drug test
 No
 Vehicle
 No (even things in the vehicle)
 Wiretap
 Yes
More Amendments…
 Amendment V: self-
incrimination (Miranda v.
Arizona)
 Amendment V: double
jeopardy (both state & federal
laws violated?)
 Amendment VI: assistance of
counsel (Gideon v.
Wainwright) 5 years
Amendment VIII
 Against cruel & unusual punishment
 Punishment must fit the crime
 Death penalty?
 Furman v. Georgia (1972): unconstitutional
 Gregg v. Georgia (1976): constitutional if death
penalty if certain procedures are followed—separate
deliberations; specific crimes; appeals)

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Civil Liberties

  • 1. Civil Liberties PROTECTS CITIZENS AGAINST GOVERNMENT RESTRAINT
  • 2. First…a discussion MORSE V. FREDERICK—YES THIS IS A REAL CASE
  • 3. Here’s What We’ll Learn…  Civil Liberties under the original Constitution  Incorporation  First Amendment rights and restrictions (scholars…get ready to argue!)  Due Process rights  Privacy rights  Rights of the accused  Capital Punishment
  • 4. Civil Liberties Under the Original Constitution  Habeas Corpus—court order directing that a prisoner be presented in court and charges explained  Probably can never be suspended (Lincoln tried in the Civil War)  Enemy combatants???  Ex Post Facto Laws—also banned (retroactive punishments)  Bill of Rights added  Then…Amendment 14 and the Due Process Clause (Civil War Amendment)
  • 5. Incorporation  Originally: Bill of Rights only applied to the Federal Government’s dealings with the citizens  Then the 14th Amendment guaranteed under the Due Process Clause that all citizens had to be treated equally  Substantive Due Process (limits what government can do)  Procedural Due Process (how laws are applied)  Gitlow v. New York (1925) began incorporation, the case-by-case extension of the bill of rights to the states
  • 6. Selective Incorporation of the Bill of Rights Update! McDonald v. Chicago (handgun band) incorporated this in 2010
  • 8. Rights From Amendment I  Speech  Press  Religion  Assembly  Petition the Government
  • 9. Freedom of Speech  “Congress shall make no law …abridging the freedom of speech…”  Pure speech v. symbolic speech  Is this an absolute right?  When can it be LEGALLY taken away  Endangering public safety  Advocating illegal activity Overthrow of Government (esp. wartime)
  • 10. When Can It Be Regulated?  Flag burning in a protest?  YES (Texas v. Johnson)  Burning Draft Card?  No (US v. O'Brien)  Picketing a private residence?  NO (Frisby v. Schultz)  Three part test to uphold:  Within powers of government  Regulation must be unrelated to free speech  Other channels of speech are available
  • 11. Unprotected Speech  Sedition: urges resistance to lawful authority or government overthrow  Defamatory speech: false speech; damages character or reputation  Libel (written)  Slander (spoken)  Public official? OK  Obscenity  Fighting words: violent reaction  Student speech: can be regulated
  • 12. The Court's Test  Evolution of established limits: 1. Clear and present danger (immediate danger) 2. Bad Tendency Doctrine (Restricted if it tended to lead to an illegal action) 3. Preferred Position Doctrine— Speech should almost NEVER be restricted (speech has a preferred position in the constitution) 1. These are fundamental rights; will assume law is unconstitutional)
  • 13. Freedom of Religion “Congress shall make no law…respecting the establishment of religion…[or] prohibiting the free exercise of religion…” Establishment Clause Free Exercise Clause
  • 14. Separationof Church and State  Establishment Clause  No state-sponsored religion  Wall of separation: how high?  Pledge of Allegiance  Money  Everson v. Board of Ed (1947)  New Jersey  Public $ used to bus  Upheld (furthered education, not religion)
  • 15. Lemon Test  Lemon v. Kurtzman (1971)  State aid to church is legal as along as: 1. Have a non-religious purpose 2. Can’t advance or inhibit religion 3. Avoid excessive government entanglement in religion  Engel v. Vitale (1962)  Teaching of Intelligent Design?
  • 16. Free Exercise Clause  Polygamy (Reynolds v. US)  Amish & compulsory education laws (Wisconsin v. Yoder)  Jehovah’s Witnesses must salute the flag (West Virginia State Board of Education v. Barnette)  Using peyote (Employment Division v. Smith)
  • 19. Amendment IV (privacy)  III: Quartering troops  Searches & seizures— must be reasonable  Probable cause  Search warrant  Signed by judge  Exclusionary rule
  • 20. Right to Privacy  Griswold v. Connecticut (1965)  Roe v. Wade (1973)  Ohio v. Akron Center (1990): parental consent under 18  Lawrence v. Texas (2003): Adults have a right to consensual sexual relations with one another
  • 21. Is A Warrant Needed?  Belief that someone committed a felony?  Yes  Crime committed in presence of police?  No  Garbage cans  Yes (unless garbage has been taken out)  Drug test  No  Vehicle  No (even things in the vehicle)  Wiretap  Yes
  • 22. More Amendments…  Amendment V: self- incrimination (Miranda v. Arizona)  Amendment V: double jeopardy (both state & federal laws violated?)  Amendment VI: assistance of counsel (Gideon v. Wainwright) 5 years
  • 23. Amendment VIII  Against cruel & unusual punishment  Punishment must fit the crime  Death penalty?  Furman v. Georgia (1972): unconstitutional  Gregg v. Georgia (1976): constitutional if death penalty if certain procedures are followed—separate deliberations; specific crimes; appeals)