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Bell Ringer• The SROs bring the drug dogs who

alert on your locker. Without your permission, administration searches it. Were your rights violated? Explain.• You sew a flag to the seat of your

pants to show displeasure with the government. The school suspends you. Were your rights violated? Explain.

Civil Liberties

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Introduction• In the first scenario, the officers have

“reasonable suspicion” and thus administrators do have the right to reasonably search you• In the second scenario, you have the

right to wear the flag in a “contemptuous” manor (with few exceptions) and cannot be suspended

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Introduction• When you claim that your rights have

been violated, keep this in mind:–The Founding Fathers created a

document stating what the federal government could do, not what state/local governments couldn’t do–They believed that the Constitution was

so limiting that a Bill of Rights wasn’t even necessary

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Introduction• Because the states feared the federal

government would become too power hungry, they forced the creation of the Bill of Rights–The states never dreamed that they would

one day be forced to adhere to the Bill of Rights themselves–They had planned on writing their own Bill

of Rights into their state constitutions (like VA had)

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Politics, Culture, and Civil Liberties

• The Bill of Rights protects us from two things: the (federal) government and ourselves• With this in place, why do some issues

become huge while others stay in the background?–Rights are conflicting–Policy entrepreneurs–Cultural Conflicts

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Politics, Culture, and Civil Liberties

• Conflicting Rights–A local KKK group decides to stand on a corner in Paramore and spew racists remarks, the police intervene—freedom of speech or preservation of public order?

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Politics, Culture, and Civil Liberties

• Policy Entrepreneurs– People try to generate support for a cause (ex:

freedom of speech)– In times of crisis the government has been able

to limit liberties• Sedition Act (1789)—Quasi War• Espionage and Sedition Act (1917-1918)—WWI, fear

of spies/radicals• Smith Act (1940), Internal Security Act (1950)

Communist Control Act (1954)—WWII/Korean War/McCarthyism, fear of spies trying to subvert the US government

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Politics, Culture, and Civil Liberties

• Policy Entrepreneurs–Courts often uphold such restriction during the time of crisis and overturn them after the crisis–Today, the Court has been more restrictive on Congress’ ability to limit speech/liberties

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Politics, Culture, and Civil Liberties

• Cultural Conflicts– America’s heritage is synonymous with White-Anglo

Protestantism, yet our culture has become a melting pot in modern times

– So, do we honor our heritage by putting a nativity scene in front of the county court house, or do we respect the wishes of the other cultures that live here and keep Christianity away from government property?

– Should we teach students in both Spanish and English?

– Should the Boy Scouts be forced to allow homosexuals to be Scout leaders?

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Interpreting and Applying the First

Amendment• The two most contested parts of the

First Amendment are freedom of expression and freedom of religion• Under freedom of press, William

Blackstone said the press should be free from prior restraint—the government can’t deny right to print something before it is printed

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Interpreting and Applying the First

Amendment• Blackstone also pointed out that

the aftermath is another issue–If a paper prints something “improper, mischievous, or illegal” they should face the consequences–Sedition laws didn’t stand because they invoke prior restraint

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Interpreting and Applying the First

Amendment• There is some conflicting wording in the

Constitution: one part allows for Congress to do what is “necessary and proper” for America, the other says they shall make “no law” restricting First Amendment freedoms

• The Supreme Court established the Clear and Present Danger test: If the words are being used to establish a clear and present danger to the people, Congress can prohibit them

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Interpreting and Applying the First

Amendment• Justice Holmes added that the

Constitution does NOT protect a person “falsely shouting fire in a theatre and causing a panic”• This is why it is not legal for the

press to disclose secret military positions (if they know them) since it creates a danger for the soldiers

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Interpreting and Applying the First

Amendment• Certain parts of the Bill of Rights are forced on

the states by the Fourteenth Amendment– “No state shall…deprive any person of life, liberty

or property, without due process of law”– Prior to Gitlow v. New York (1825) the Court had

only applied the Fourteenth to the federal government• Justice Taft said that these rights are “fundamental

personal rights” that the STATE cannot infringe upon• The Second Amendment is not included in these

“forced” rights—it is currently being debated in courts around the country

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What is Speech?• There are four types of speech

that are not automatically granted constitutional protection:• Libel• Obscenity• Symbolic• False Advertising

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What is Speech?• Libel: a written

statement that defames the character of another person (if its orally stated, it’s slander)– You must show that

you have suffered, the statement was false, and it was printed with malice

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What is Speech?• Obscenity-

– Not protected by the Supreme Court

– Court says that because it has no social value, such as political or literary interests, it can be regulated by the state

– Therefore, each state has their own version of obscenity laws So, would this be considered obscene?

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What is Speech?• Symbolic Speech-• Can you burn the American

flag?– Yes! In Texas v. Johnson flag

burning was ruled as protect speech because it was symbolic

– Can you claim that anything is protected speech-NO!• The Court has also said that

burning a draft card to make a point is illegal because the government does have the right to instate a draft and therefore burning government property is unacceptable

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Who Is a Person?• If a person has right to speech and

publication, what about companies and children?– Yes and yes

• “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”– Also, the right to speak includes the choice of

what not to say

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Who Is a Person?• Do you lose your First Amendment rights when you

come through the door?– No!

• Hazelwood v. Kuhlmeier says that students do not “shed their constitutional rights to freedom of speech at the schoolhouse gate”– You cannot be punished for expressing personal views– However, you cannot impeded “the education mission of

the school” AND you cannot use school-sponsored activities (plays, newspapers, curriculum)• In other words, these activities can be controlled as long as

the controls are “reasonably related to legitimate pedagogical concerns.”

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Church and State

• The First Amendment does NOT establish “separation of church and state”• This portion of the 1st

Amendment has 2 parts–Free-exercise clause–Establishment clause

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Church and State• Free-exercise: Congress shall make no law

prohibiting the “free exercise” of religion– Government cannot ban religious practices OR

impose greater burdens on some churches and not others• They cannot create a license fee for doing door-to-

door solicitation because that would negatively impact Jehovah’s Witnesses• Court ruled that Hialeah, FL cannot ban animal

sacrifices by those practicing Santeria because it would be specifically targeting that religion and its practice

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Church and State• That doesn’t mean you can do whatever

you want and call it religious practice– If it is already a crime (murdering humans)

you cannot hide from the law if you want to sacrifice humans– In areas where there is compulsory

vaccinations, you have to get vaccinated, even if your religion is against medicine

• Many things fall under the religious argument when you start questioning it

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Church and State• Establishment Clause: Congress shall

make no law “respecting an establishment of religion”–The original line was “no national

religion shall be established”–That would have been easier—the Court

has decided that our current wording means that government will have NO involvement with religion at all

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Church and State• This was tested in 1947– A town in NJ was sued for reimbursing parents for

the cost of taking kids to school (no public busses available), in particular, the parents who sent their kids to a Catholic school

– Court found in favor of the school district saying bussing was religiously neutral (despite going to a religious school)• However, it did include that the government cannot

profess belief or disbelief in a religion; cannot aid one, some, or all religions, cannot tax in support of any/all religious institutions

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Church and StateCan-dos

• Give tax exemption for tuition of kids at private school

• Provide funds for building private school buildings, or gathering materials

No-Nos • Church leader cannot lead

prayer at graduation• Cannot impede teaching

evolution OR force teaching of creationism

• Can’t take time out of day to teach religious courses

• Can’t pray before football games

• Can’t pay salaries of teachers at private schools

• Can’t create special district for religious group(s)

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Church and State• General rule of thumb to follow:–Government involvement IS

constitutional if it meets these tests:1. It has a secular purpose2. Its primary affect neither advances

nor inhibits religion3. It does not foster an excessive

government entanglement with religion

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Crime and Due Process• Most countries in the world believe that

even if evidence in a crime was collected incorrectly by the police, it can still be used against you, and the office will be punished for his mishandling– In the United States we believe that

evidence that is not “above reproach” should not be used against you–This is called the exclusionary rule

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Crime and Due Process• This issue wasn’t challenged until 1949– The Court said that evidence should NOT be

exclude from trial-rather, the officer should be punished

– However, in Mapp v. Ohio, 1961 the Court changed it’s mind• Police in OH broke in to a home looking for drugs,

arrested the home owner for possession of obscene material instead—Court said this was an unreasonable search and seizure (they had ample time to get a warrant) and therefore the evidence couldn’t be used

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Crime and Due Process• There are only three times when it is okay for an

officer to execute a search:1. You give them permission2. They have a search warrant (proven probably cause

to a judge)3. You are being arrested (committed a crime or are in

process—reasonable suspicion/expectation a crime will be committed)

• Once arrested they can search:1. You2. Things in plain view3. Things or places under your immediate control

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Crime and Due Process• What is “in plain view” or “under your control”?– The room you are in, open fields, your car (to include

passengers in your car, bags, closed areas, etc.)• Court attempts to protect from searches that occur

places with “reasonable expectation of privacy”– Your body (they can’t make you have surgery to

remove bullet that could be evidence• They can make you take a breathalyzer test

– If you work for the government they can’t search your desk unless they are looking for work related stuff

– If you work for a private company, they CAN search “your” area

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Crime and Due Process• With the good-faith exception evidence will not

be thrown out if the police have a warrant that was not issued properly (they wouldn’t know that the judge used the wrong form, for example)– The Court also upheld that if it can be proven that

the evidence would (reasonably) have inevitably been discovered, it can still be used

• “Right to privacy” doesn’t constitutionally exist– Some people hope the Court will develop that

right (is it the Court’s place to do this?)

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Homework• Study for test next

week!