Human Rights/Civil Liberties. Chapter 13: Constitutional Freedoms Debate over human rights goes...

Human Rights/Civil LibertiesHuman Rights/Civil Liberties

Chapter 13: Constitutional Freedoms

Debate over human rights goes back to ratification debates Federalists vs. Antifederalists Result: The Bill of Rights: guarantees rights of

individuals, limitations & restrictions on government

Civil liberties (negative) vs. civil rights (positive) No one has right to do anything he/she please

Have right as long as it does not infringe upon rights of others

Example: Right to freedom of speech but no one enjoys the freedom of absolute freedom of speech

What are civil liberties?What are civil liberties?

Protections against the government, Protections against the government, guarantees of safety, freedom of thought, guarantees of safety, freedom of thought, etc.etc.Examples include:Examples include:– Freedom of religionFreedom of religion– Freedom of speechFreedom of speech– Right to petitionRight to petition– Right to counselRight to counsel– Protection from search and seizureProtection from search and seizure

Development & Application of the Development & Application of the Bill of RightsBill of Rights

The ConstitutionThe Constitution– Limited Government—no titles of nobility, no ex post facto, etcLimited Government—no titles of nobility, no ex post facto, etc– Bill of Rights (Federalists/Anti-Federalists debate)Bill of Rights (Federalists/Anti-Federalists debate)

Can states deny people their rights?Can states deny people their rights?– State Constitutions—Bill of RightsState Constitutions—Bill of Rights– Barron v. Baltimore (1833)Barron v. Baltimore (1833)

Does the Federal Bill of Rights apply to the states?Does the Federal Bill of Rights apply to the states?No, it only protects from the national governmentNo, it only protects from the national government

1414thth Amendment Due Process Clause— Amendment Due Process Clause—No state shall No state shall deprive any person of life, liberty, or property without due deprive any person of life, liberty, or property without due process of lawprocess of law

1414thth Amendment & Incorporation Amendment & Incorporation

Selective Incorporation:Selective Incorporation: the process in which the the process in which the courts have gradually applied the BoR to the courts have gradually applied the BoR to the states through various court decisionsstates through various court decisions

Gitlow v. New York, 1925—Gitlow v. New York, 1925—11stst application of the application of the Bill of Rights to the states Bill of Rights to the states (freedom of speech)(freedom of speech)

Other examples:Other examples:– Mapp v. Ohio, 1964 Mapp v. Ohio, 1964 (4(4thth amendment) amendment)– Gideon v. Wainwright, 1963Gideon v. Wainwright, 1963 (6 (6thth amendment) amendment)

Today, almost all are incorporated (applicable to Today, almost all are incorporated (applicable to the states)the states)

11stst Amendment Amendment

Five basic freedoms:Five basic freedoms:– Freedom of religionFreedom of religion– Freedom of speechFreedom of speech– Freedom of the pressFreedom of the press– Right to petitionRight to petition– Right to assembleRight to assemble

How are religious liberties How are religious liberties protected in the Constitution?protected in the Constitution?

11stst Amendment Amendment– Establishment ClauseEstablishment Clause– Free Exercise ClauseFree Exercise Clause

1414thth Amendment (applies it to the states) Amendment (applies it to the states)

Establishment ClauseEstablishment Clause

““Congress shall make no law respecting an Congress shall make no law respecting an establishment of religion…”establishment of religion…”Government cannot establish a national religion or aid Government cannot establish a national religion or aid religionreligionCreates a “wall of separation” between church and stateCreates a “wall of separation” between church and state—how high is the wall?—how high is the wall?Does it simply prevent favoritism towards a religion or Does it simply prevent favoritism towards a religion or prohibit govt. encouragement of religious activity or prohibit govt. encouragement of religious activity or some support for religion?some support for religion?How is religion part of American life and government?How is religion part of American life and government?– Oaths of office, military chaplains, prayer in Congress, money, Oaths of office, military chaplains, prayer in Congress, money,

pledge of allegiance, tax exempt statuspledge of allegiance, tax exempt status

Establishment Clause & EducationEstablishment Clause & Education

Can a school district pay busing costs for students to go Can a school district pay busing costs for students to go to a private school?to a private school?– Yes—Everson v. Board of Education, 1947 (safety issue vs. Yes—Everson v. Board of Education, 1947 (safety issue vs.

religious favoritism)religious favoritism)

What else can religious schools be compensated for?What else can religious schools be compensated for?– Lemon Test Lemon Test (Lemon v. Kurtzman, 1971)—3 prong test: Does it…(Lemon v. Kurtzman, 1971)—3 prong test: Does it…

serve a religious purpose?serve a religious purpose?create excessive entanglement?create excessive entanglement?have a primary purpose of advancing or inhibiting religion?have a primary purpose of advancing or inhibiting religion?

– Acceptable for reimbursement: textbooks, state mandated tests, Acceptable for reimbursement: textbooks, state mandated tests, interpreter, lunchesinterpreter, lunches


Prayer in schoolPrayer in schoolCan schools lead students in non-denominational Can schools lead students in non-denominational prayer? prayer? "Almighty God, we acknowledge our dependence upon "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."and our Country."

– No—Engel v. Vitale, 1962No—Engel v. Vitale, 1962

Bible readings and the Lord’s Prayer?Bible readings and the Lord’s Prayer?– No—Abington v. Schempp, 1963No—Abington v. Schempp, 1963

Moment of silence for meditation/prayer?Moment of silence for meditation/prayer?– No—Wallace v. Jaffree, 1985No—Wallace v. Jaffree, 1985

School sponsored prayer at graduation?School sponsored prayer at graduation?– No—Lee v. Weisman, 1992No—Lee v. Weisman, 1992

Prayer at football game?Prayer at football game?– No—Santa Fe Independent School District v. Doe, 2000No—Santa Fe Independent School District v. Doe, 2000


EvolutionEvolutionCan a school ban the teaching of evolution?Can a school ban the teaching of evolution?– No—Epperson v. Arkansas, 1968No—Epperson v. Arkansas, 1968

Can a school require the teaching of Can a school require the teaching of creationism?creationism?– No—Edwards v. Aguilard, 1987No—Edwards v. Aguilard, 1987

Student GroupsStudent GroupsCan religious groups meet on school grounds?Can religious groups meet on school grounds?– Yes—Westside v. Mergens, 1990Yes—Westside v. Mergens, 1990

Establishment Clause & Public Establishment Clause & Public PlacesPlaces

Can religious figures be part of a Christmas Can religious figures be part of a Christmas display on city property?display on city property?– Yes—Lynch v. Donnelly, 1984Yes—Lynch v. Donnelly, 1984– Must include secular symbolsMust include secular symbols

Can the Ten Commandments be posted at Can the Ten Commandments be posted at government facilities?government facilities?– Yes and noYes and no– Schools—no (Stone v. Graham, 1980)Schools—no (Stone v. Graham, 1980)– Texas State Capitol—yes (Van Orden v. Perry)Texas State Capitol—yes (Van Orden v. Perry)– Courthouses—no?Courthouses—no?

Is this constitutional?Is this constitutional?

Nope.Nope.

Free Exercise ClauseFree Exercise Clause

Government cannot restrict beliefs, but may Government cannot restrict beliefs, but may restrict actionsrestrict actions

Free Exercise of Religion Issues/CasesFree Exercise of Religion Issues/Cases

Polygamy?Polygamy?– Reynolds v. U.S. (1879) Govt. may outlaw polygamyReynolds v. U.S. (1879) Govt. may outlaw polygamy

—subversive to good order—subversive to good order

Compulsory Education past 8Compulsory Education past 8thth grade? grade?– No—Wisconsin v. Yoder, 1972No—Wisconsin v. Yoder, 1972

Mandatory Vaccinations?Mandatory Vaccinations?


Poisonous snake handling?Poisonous snake handling?– Animal sacrifices– Conscientious objectors?Conscientious objectors?

Use of peyote in religious ceremonies?Use of peyote in religious ceremonies?

Medical attention for children?Medical attention for children?

Compulsory recitation of Pledge of allegiance?Compulsory recitation of Pledge of allegiance?– No—West Virginia v. Barnette, 1943No—West Virginia v. Barnette, 1943


How should the courts rule in this free exercise How should the courts rule in this free exercise case?case?George Daniels was fired in 1998 for wearing a George Daniels was fired in 1998 for wearing a small gold cross on his uniform collar. Daniels, small gold cross on his uniform collar. Daniels, an evangelical Christian and 14-year decorated an evangelical Christian and 14-year decorated sergeant, had been twice ordered to stop sergeant, had been twice ordered to stop wearing the pin. He began wearing it when he wearing the pin. He began wearing it when he was a plainclothes officer. The Arlington Police was a plainclothes officer. The Arlington Police Department said the agency's interest in Department said the agency's interest in maintaining a public appearance of impartiality maintaining a public appearance of impartiality outweighed Daniels' right to promote his outweighed Daniels' right to promote his Christianity.Christianity.

11stst Amendment & Freedom of Speech Amendment & Freedom of Speech

""If liberty means anything at If liberty means anything at all, it means the right to tell all, it means the right to tell people what they do not want people what they do not want to hear."to hear." (George Orwell) (George Orwell)

Why is freedom of speech & Why is freedom of speech & press so important in a press so important in a democracy?democracy?


What limits has the government placed on What limits has the government placed on freedom of speech?freedom of speech?

Punishable ActsPunishable Acts– Espionage, sabotage, treasonEspionage, sabotage, treason

Alien & Sedition Acts of 1798Alien & Sedition Acts of 1798– False, scandalous, and malicious criticism of False, scandalous, and malicious criticism of

the government was a crimethe government was a crime– Expired in 1801; Jefferson pardons offendersExpired in 1801; Jefferson pardons offenders


Words can create a “clear and present Words can create a “clear and present danger”danger”Govt. has a legitimate right to protect Govt. has a legitimate right to protect citizenscitizens– Schenck v. U.S., 1919—upheld law Schenck v. U.S., 1919—upheld law

prohibiting passing out pamphlets urging prohibiting passing out pamphlets urging draftees to resist the wardraftees to resist the war

– Cannot yell “fire” in a crowded movie theaterCannot yell “fire” in a crowded movie theater

Other efforts in the 1920s-1950s limited Other efforts in the 1920s-1950s limited socialist/communist activitiessocialist/communist activities


Slander—false & malicious use of spoken Slander—false & malicious use of spoken wordswordsCommercial SpeechCommercial Speech– Cannot have false or misleading advertising, Cannot have false or misleading advertising,

illegal goods or servicesillegal goods or services– restrictions on some products (i.e. tobacco, restrictions on some products (i.e. tobacco,

hard liquor)hard liquor)


““Fighting words”Fighting words”

Chaplinsky v. New Hampshire, 1942Chaplinsky v. New Hampshire, 1942– State can lawfully punish someone for the use State can lawfully punish someone for the use

of insulting "fighting words".of insulting "fighting words".

Cohen v. California, 1971Cohen v. California, 1971– ““F*** the Draft” is protected as a form of F*** the Draft” is protected as a form of

political speechpolitical speech

11stst Amendment & Freedom of Speech Amendment & Freedom of SpeechSymbolic Speech—is conduct protected by the 1Symbolic Speech—is conduct protected by the 1stst Amendment?Amendment?Can you burn your draft card?Can you burn your draft card?– U.S. v. O’Brien, 1968—no, because it is government U.S. v. O’Brien, 1968—no, because it is government

issuedissued

Are students protected under the 1Are students protected under the 1stst Amendment? Amendment?– Tinker v. Des Moines, 1969—yes, your rights do not stop Tinker v. Des Moines, 1969—yes, your rights do not stop

at the front doorat the front door– Bong Hits for Jesus?Bong Hits for Jesus?

Is it legal to burn an American flag?Is it legal to burn an American flag?– Texas v. Johnson, 1989—yes, it is protected as freedom Texas v. Johnson, 1989—yes, it is protected as freedom

of expressionof expression

Is it legal to burn a cross?Is it legal to burn a cross?– Virginia v. Black, 2003—if you can prove intentVirginia v. Black, 2003—if you can prove intent

A few cases involving studentsA few cases involving students

HandoutHandout

11stst Amendment & Freedom of the Press Amendment & Freedom of the Press

Restrictions on the press (review)Restrictions on the press (review)

Libel—false & malicious use of printed Libel—false & malicious use of printed wordword

Prior restraint?? (Near v. Minnesota, NY Prior restraint?? (Near v. Minnesota, NY Times v. U.S., Hazelwood v. Kuhlmeier)Times v. U.S., Hazelwood v. Kuhlmeier)

Shield lawsShield laws

Broadcast media regulated by FCCBroadcast media regulated by FCC

11stst Amendment & Freedom of the Press Amendment & Freedom of the PressObscenity-what is obscene?Obscenity-what is obscene?““I know it when I see it.” Justice Potter, I know it when I see it.” Justice Potter, (Jacobellis v. (Jacobellis v. Ohio)Ohio)

Miller v. California, 1973Miller v. California, 1973– 3-part test to determine what is obscene3-part test to determine what is obscene

Does the average person find it to excite lust?Does the average person find it to excite lust?Does it depict or describe sexual conduct in offensive Does it depict or describe sexual conduct in offensive manner?manner?Does the work lack serious artistic, literary, political, or Does the work lack serious artistic, literary, political, or scientific value?scientific value?

Child pornography can be bannedChild pornography can be banned11stst Amendment & the Internet Amendment & the Internet– Reno v. ACLU, 1997—The Court struck down 1996 Reno v. ACLU, 1997—The Court struck down 1996

Communications Decency Act on grounds that it was Communications Decency Act on grounds that it was too broadtoo broad

Freedom of the Press--studentsFreedom of the Press--students

HandoutHandout

11stst Amendment—Right to Petition & Assemble Amendment—Right to Petition & AssembleWhat limits can be placed on the right to What limits can be placed on the right to assemble or petitionassemble or petitionTime-Place-Manner RegulationsTime-Place-Manner Regulations– Demonstrations that disrupt school, court cases may Demonstrations that disrupt school, court cases may

be prohibitedbe prohibited– States & towns may require advance notice and States & towns may require advance notice and

permitspermits– May not set arbitrary feesMay not set arbitrary fees– May be broken up if it incites violenceMay be broken up if it incites violence– May not picket outside an individual’s residenceMay not picket outside an individual’s residence– May not demonstrate or assemble on private May not demonstrate or assemble on private

property, even if for public use (shopping centers)property, even if for public use (shopping centers)

11stst Amendment—Right to Petition & Assemble Amendment—Right to Petition & Assemble

Other petition & assemble issuesOther petition & assemble issuesCan the Nazis march in a predominantly Jewish Can the Nazis march in a predominantly Jewish neighborhood?neighborhood?– National Socialist Party v. Skokie, 1977—yes National Socialist Party v. Skokie, 1977—yes

Can you protest outside an abortion clinic?Can you protest outside an abortion clinic?– Yes, but you cannot block entrance, harass, Yes, but you cannot block entrance, harass,

employees or patientsemployees or patients

Can you protest at someone’s funeral?Can you protest at someone’s funeral?– States have passed legislation/articleStates have passed legislation/article– Snyder v. Phelps, 2011Snyder v. Phelps, 2011

44thth Amendment—Search & Seizure Amendment—Search & Seizure

Protection from unreasonable search & Protection from unreasonable search & seizure—secure in your possessionsseizure—secure in your possessionsPolice must have a warrant based on Police must have a warrant based on probable cause to search homeprobable cause to search homeExclusionary RuleExclusionary Rule—evidence gained —evidence gained through an illegal search cannot be used through an illegal search cannot be used against the personagainst the person– Mapp v. Ohio, 1961—4Mapp v. Ohio, 1961—4thth Amendment applied Amendment applied

to the states via the 14to the states via the 14 thth (selective incorporation!)(selective incorporation!)


Exceptions to the ruleExceptions to the rule– Exigent factors (i.e. destruction of evidence)Exigent factors (i.e. destruction of evidence)– ““Good faith” exceptionGood faith” exception– Items found “in plain view”Items found “in plain view”– Open fieldsOpen fields– During an arrestDuring an arrest– Automobiles?Automobiles?– Garbage left outsideGarbage left outside

44thth Amendment—Search & Seizure Amendment—Search & SeizureAre students protected from search and Are students protected from search and seizure?seizure?– New Jersey v. TLO, 1985—New Jersey v. TLO, 1985—reasonable suspicion reasonable suspicion

needed for search; less strict than police officersneeded for search; less strict than police officers– Safford v. Redding, 2009—search must not be Safford v. Redding, 2009—search must not be

excessively intrusive (strip search not ok)excessively intrusive (strip search not ok)

Are mandatory drug tests an infringement on an Are mandatory drug tests an infringement on an individual’s 4individual’s 4thth amendment rights? amendment rights?– SC has upheld various programs for federal SC has upheld various programs for federal

employees (railroad workers, customs agents, etc.)employees (railroad workers, customs agents, etc.)

Can schools require drug testing of students?Can schools require drug testing of students?– Courts have upheld testing of students in extra-Courts have upheld testing of students in extra-

curricular activities (Video @ 8:45 mark)curricular activities (Video @ 8:45 mark)


Does wiretapping violate the 4Does wiretapping violate the 4thth amendment?amendment?– Katz v. U.S., 1967—wiretapping of phones Katz v. U.S., 1967—wiretapping of phones

unconstitutional w/o warrantunconstitutional w/o warrant

GPS devices on cars?GPS devices on cars?

Cell phones—tracking? (article)Cell phones—tracking? (article)

Questions about the war on terror and Questions about the war on terror and violations of the 4violations of the 4thth Amendment Amendment– NSA wiretappingNSA wiretapping– Patriot ActPatriot Act

Rights of the Accused—5Rights of the Accused—5thth, 6, 6thth, & 8, & 8thth Amendments Amendments

Provisions of the 5Provisions of the 5thth Amendment Amendment

Double Jeopardy—may not be tried for the same Double Jeopardy—may not be tried for the same crime twicecrime twice– Exceptions: state/federal crime, hung jury, Exceptions: state/federal crime, hung jury,

civil/criminal casecivil/criminal case

Eminent domain—govt. can take away your Eminent domain—govt. can take away your property for “legitimate govt. purpose”property for “legitimate govt. purpose”– Kelo v. City of New London, 2005—expands the Kelo v. City of New London, 2005—expands the

definition of govt. purpose to include commercial definition of govt. purpose to include commercial developmentdevelopment

Rights of the Accused—5Rights of the Accused—5thth, 6, 6thth, & 8, & 8thth AmendmentsAmendments

Self-incrimination—cannot be compelled Self-incrimination—cannot be compelled to be a witness against oneselfto be a witness against oneself– May only claim this right for yourself; may be May only claim this right for yourself; may be

compelled to testify against others (spousal compelled to testify against others (spousal exception)exception)

Miranda v. Arizona, 1966—have to be told Miranda v. Arizona, 1966—have to be told of your constitutional rightsof your constitutional rights

Rights of the Accused—6Rights of the Accused—6thth Amendment Amendment

Provisions include:Provisions include:– Speedy and public trialSpeedy and public trial– Know charges against youKnow charges against you– Confront witnessesConfront witnesses– Call witnessesCall witnesses– Right to CounselRight to Counsel

66thth Amendment—Right to Counsel Amendment—Right to Counsel

Powell v. Alabama, 1932—Powell v. Alabama, 1932—right to counsel in capital right to counsel in capital casescasesGideon v. Wainwright, 1963—Gideon v. Wainwright, 1963—SC incorporated 6SC incorporated 6thth Am. right Am. right to counsel to states in all to counsel to states in all criminal casescriminal casesEscobedo v. Illinois, 1964—Escobedo v. Illinois, 1964—extends the right to counsel to extends the right to counsel to when you are being when you are being questioned, not just trialquestioned, not just trial

88thth Amendment—Cruel & Unusual Punishment Amendment—Cruel & Unusual PunishmentRelevant cases:Relevant cases:Furman v. Georgia, 1972—ruled that the death Furman v. Georgia, 1972—ruled that the death penalty was being unfairly used; imposed a penalty was being unfairly used; imposed a moratoriummoratoriumGregg v. Georgia, 1976—death penalty ok if Gregg v. Georgia, 1976—death penalty ok if proper guidance provided to jurorsproper guidance provided to jurorsOther issues:Other issues:– Death penalty for mentally challenged?Death penalty for mentally challenged?– Death penalty for minors?Death penalty for minors?

Roper v. Simmons, 2005Roper v. Simmons, 2005

– Life sentences for minors?Life sentences for minors?

Civil Liberties—The Right to PrivacyCivil Liberties—The Right to Privacy

No mention of the right to privacy in the No mention of the right to privacy in the Const.Const.– 11stst major case—Griswold v. Connecticut, 1965 major case—Griswold v. Connecticut, 1965

(birth control)(birth control)– ““Penumbra”—shadows of the 1Penumbra”—shadows of the 1stst. 3. 3rdrd, 4, 4thth, 5, 5thth, ,

99thth, & 14, & 14thth Amendments Amendments

The Right to Privacy—AbortionThe Right to Privacy—Abortion Roe v. Wade, 1973—states cannot prohibit Roe v. Wade, 1973—states cannot prohibit abortion (regulations by trimesters)abortion (regulations by trimesters)Abortion rights expand over the next 15 yearsAbortion rights expand over the next 15 yearsBeginning in 1989, abortion rights begin to Beginning in 1989, abortion rights begin to narrownarrow““Undue burden” doctrineUndue burden” doctrineWebster v. Reproductive Health Services, 1989Webster v. Reproductive Health Services, 1989– No public employees/facilitiesNo public employees/facilities

Planned Parenthood v. Casey, 1992Planned Parenthood v. Casey, 1992– 24 hr. waiting period24 hr. waiting period– Parental notificationParental notification– InformationInformation– Did NOT overturn Roe thoughDid NOT overturn Roe though

Other privacy issuesOther privacy issues

Right to MarriageRight to Marriage– Loving v. Virginia, 1967Loving v. Virginia, 1967

Right to DieRight to Die– Cruzan v. Missouri Dept. of Health, 1990Cruzan v. Missouri Dept. of Health, 1990

Sexual behaviorSexual behavior– Bowers v. Hardwick, 1986Bowers v. Hardwick, 1986– Lawrence v. Texas, 2003Lawrence v. Texas, 2003– Springboard to recognizing same-sex Springboard to recognizing same-sex

marriage??marriage??

Human Rights/Civil Liberties. Chapter 13: Constitutional Freedoms Debate over human rights goes...

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