Civil Liberties & Civil Rights 1st Amendment Issues Rights of the Accused & Criminal Justice Civil Rights Definition Civil Liberties -- Rights that need protection from the government. Civil Rights -- Rights that need protection by the government. Positive acts of govt seek to make the guarantees of Constitution a reality for all people. Each persons rights/liberties are relative to those of every other person. The Courts must weigh
conflicting claims carefully. Liberties & State Govt Judicial Review Marbury v. Madison (1803) Incorporation Definition Judicial Review: power of the Supreme Court to determine the meaning of the
constitution Incorporation Theory: applying the protections of the Bill of Rights to the actions of state governments via the 14th Amendment LO 4.1 The Bill of Rights and the States Barron v. Baltimore (1833) Bill of Rights restrict only the national government.
Gitlow v. New York (1925) 1st Amendment protection of speech first incorporated to states. Most now incorporated using the 14th Amendment and now restrict state and local governments. To Learning Objectives LO 4.1
To Learning Objectives Copyright 2011 Pearson Education, Inc. Publishing as Longman 1st Amendment Issues First Amendment rights include: Religious Freedom Free Speech Free Press
Free Assembly Freedom to petition the government 1st Amendment Issues Religious Freedom has 2 components Establishment Clause separation of church and state Free Exercise Clause
Religious Freedom Establishment Clause: No laws shall be made respecting the establishment of religion. 1971 - Lemon v. Kurtzman (Lemon Test) Government aid must be secular in intent
Its primary effect can neither enhance nor inhibit religion Government must avoid excessive entanglement with religion Religious Freedom Is aid (tax dollars) to church-related schools permissible? Courts have ruled that it is ok for tax dollars to be spent on: school lunch, transportation, speech/hearing support, standardized tests, computer purchases and internet access. Vouchers: subject to Lemon test
restrictions Religious Freedom School Prayer? Mandatory & state-sanctioned? No. Engel v. Vitale (1962) Daily bible readings? No. Abington School District v. Schempp (1963)
Moment of silent prayer? No. Wallace v. Jaffree (1985) Moment of silence for nonreligious reasons? Yes. Brown v. Gwinnett County S.D. (1997) Religious Freedom
Prayer outside of school Permissible to have religious leaders not affiliated with school lead prayer at official school events? No. Lee v. Weisman (1992) Permissible to have student led prayer at official school events? Yes. Santa Fe Independent S.D. v. Doe (2000) Student prayer must be nonsectarian and nonproselytizing. Religious Freedom
May student religious clubs/groups meet on school property after regular school hours? Court upheld (1990) the Equal Access Act, which requires that public secondary schools give religious groups the same access to their facilities that other extra-curricular groups enjoy Religious Freedom Display of Ten Commandments? Depends. Stone v. Graham (1980) -display of Ten Commandments is permissible in classrooms, but
cannot be required by the state McCreary County v. ACLU *Permissible if part of other document display and not given special pride of place treatment (Van Orden v. Perry ) (2005) -- cannot mandate display of 10 commandments in courtrooms Religious Freedom
Evolution vs. Creationism Edwards v. Aguillard (1987) -- states cannot mandate teaching of biblical creationism Religious Freedom Kitzmiller et. al. vs Dover Area School District (2005)
State cannot mandate teaching of Intelligent Design in the science curriculum LO 4.2 Religious Freedom The Free Exercise Clause Prohibits government from interfering with the practice of religion.
Some religious practices may conflict with others rights, and then be denied or punished. Courts have upheld state intervention in religious practices. People are not free to worship in ways that violate laws protecting the health, safety, or morals of the community. To Learning Objectives Religious Freedom Free Exercise Clause
Absolute freedom of belief. Government cannot infringe on right to freely practice religion w/o compelling state interest. Cantwell v Connecticut (1940) Is Drug Use permissible? Oregon v Smith (1988) Gonzales v O Centro Espirita Benficiente Unaio do Vegetal (2006) Religious Freedom
Free Exercise Court considers: 1) Does practice break criminal law? 2) Does practice endanger public safety? 3) Does practice endanger the social fabric? Religious Freedom Free Exercise Is animal sacrifice permissible? Yes. Church of the Lukumi Babalu Aye
v. City of Hialeah (1993) Religious Freedom Free Exercise Court considers: Does law target a particular group? Can a reasonable exception be made? Exemptions for religious groups from various regulatory requirements include: faith healing
immunization exemption reporting infectious disease exemption licensing exemption People vs. Vogelgesang (1917) faith healer "who advertised self as" specialist in all forms of chronic diseases "and who prescribed drugs wa not exempt. LO 4.2 To Learning Objectives Copyright 2011 Pearson Education, Inc. Publishing as Longman Freedom of Expression
Pure Speech Symbolic Speech http://www.hippocampus.org/HippoCampus/History %20%26%20Government;jsessionid=27DE44CFF878413F4BED146B6BCA1741?user=myKDE The Preferred Position Doctrine, as established by Murdock v. Pennsylvania (1943), states that freedom of the press, freedom of speech, and freedom of religion, should be given more importance in the event that they clash with other fundamental rights. When courts are in a position of balancing multiple fundamental rights, they often hold First Amendment rights (particularly speech) in a preferred position.
Freedom of Expression Permitted Restrictions Schenck v. United States (1919) - clear and present danger Gitlow v. New York (1925) - bad tendency Brandenburg v. Ohio (1969) - incitement to imminent lawlessness LO 4.3
Freedom of Expression Free Speech and Public Order Schenck v. US (1919) Speech may be limited if it presents a clear and present danger. Government may prohibit speech that creates an immediate threat of criminal action. Brandenburg v. Ohio (1969) It is permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to imminent lawless action.
To Learning Objectives Freedom of Expression Beyond the Pale Unprotected Speech
Obscenity Fighting Words Hecklers Veto Hate Speech Defamatory Speech Advocate illegal activities Sedition Freedom of Expression Is this protected speech? No. Morse v. Frederick (2007).
Students could be suspended for unfurling banner held to advocate the use of illegal drugs Other Speech Rights Symbolic Speech ... protected or not? Yes Tinker v. Des Moines School District (1969) Other Speech Rights Symbolic Speech
Is Flag burning protected? Yes- Texas v. Johnson (1989) Flag burning as part of a peaceful protest is protected by the First Amendment* *Its also the official way of disposing of old flags. Freedom of the Press
(In general, same protections as speech, with some permissible restrictions.) National Security Prior Restraintcensorship of information before it is publishedis unconstitutional. Near v. Minnesota (1931)
Censorship is permissible only if protects national security. Freedom of the Press fair trial issues protect witnesses protect accused
Publicity must not harm defendants right to fair trial. Freedom of the Press Judges may restrain trial press coverage by: 1) moving trial to new venue to avoid pre-trial publicity. 2) limiting number of reporters in courtroom. 3) placing controls on reporter conduct in courtroom. 4) isolating jurors and witnesses from press. 5) Having jury sequestered (isolated until trial is over.) Sheppard v. Maxwell (1966) Gag Order--Judge bars press from publishing info about pending court
case (struck down by Court if vague and overbroad.) Freedom of the Press Print vs Non-print media Print has greatest protection, broadcast least. Internet speech closer to print than broadcast. Broadcast TV has more restriction than cable/satellite Licensing and rules Freedom of the Press
Beyond the Pale Unprotected Press Libel Knowingly publish, with malice or reckless disregard for the truth, statements known to be false and injurious to a persons character or reputation (Court allows some defamatory speech about public figures.)
Freedom of the Press Pornography/Obscenity Roth v. United States (1957) Miller v. California (1973) Obscenity is unprotected, Indecent speech is. Freedom of the Press 3-prong test for obscenity: a) "the average person, applying contemporary community standards"
would find that the work, taken as a whole, appeals to the prurient interest. b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by existing state law. c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Freedom of the Press Regulations limiting commercial speech (advertising) do not violate the First Amendment if: 1. The regulated speech concerns an illegal activity 2. The speech is misleading 3. The government's interest in restricting the speech is
substantial (i.e. product endangers public health/safety) 4. The regulation is narrowly tailored Freedom of the Press Protecting News Sources Can a reporter refuse to testify if he/she has information the defense or govt needs to prove its case? 1st Amendment doesnt give special privileges to news reporters. Special exemptions must come from Congress or States. Shield Law: gives reporters protection against being forced to reveal confidential sources/info.
Freedom to Assemble Balance right to free association with right for public order Permissible for localities to require permits in order to protest Freedom to Assemble Government can enforce reasonable rules covering time, place, and manner of assemblies (parades, marches, rallies, etc.)
Such rules must be specific, neutral, and equitably enforced. Freedom of assembly and petition protections do not apply to private property. LO 4.4 Freedom of Assembly Right to Associate Freedom to join groups or associations without
government interference. NAACP v. Alabama (1958) ruled that the NAACP did not have to reveal its membership list and thus subject its members to harassment. To Learning Objectives Second Amendment A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed. Right to Bear Arms Many communities have passed restrictions on owning and carrying handguns. Laws have mandated background checks for gun buyers and limited the sale of certain types of
weapons altogether. Laws have required that guns be stored in a fashion to prevent their theft or children from accessing and firing them. Copyright 2011 Pearson Education, Inc. Publishing as Longman LO 4.5 Right to Bear Arms District of Columbia v. Heller (2008)
Right to possess a firearm for self-defense within the home. Requiring firearm in a home to be disassembled or bound by trigger lock is unconstitutional. McDonald v. Chicago (2010) Extended 2nd Amendments limits on restricting right to bear arms to state and local laws. Third Amendment
This amendment prohibits the federal government from commandeering private homes for the military in peacetime without consent of the owner. In time of war, however, it can happen with appropriate legislation. Rights of the Accused Founders were concerned with crime, but their concerns were different from ours
Wanted to find ways to protect individuals from overambitious state activities Variety of provisions built into the Bill of Rights to make it more difficult for states to deprive people of their liberty Due Process and Police Power Procedural Due Process: Government must act fairly and in accordance with its established rules. Substantive Due Process: The laws under which government act must be fair. Police Power: States power to protect public health, safety, morals, and welfare. Courts decide how police
power may be exercisedcarefully balancing needs of society against rights of individuals. Rights of the Accused Pretrial Rights 4th Amendment protections: no unreasonable search & seizure police need warrant to search or arrest
5th Amendment protections: no self-incrimination grand jury indictment (sufficient evidence exists to warrant a trial) Rights of the Accused Trial Rights
habeas corpus -- accused must be brought before judge and be publicly informed of charges (Art. 1, sec. 9, clause i) right to counsel (6th Amendment) right to confront witnesses (6th Amendment) Rights of the Accused Trial Rights (continued)
Due Process provisions (6th Amendment) speedy and public trial jury of peers presumption of innocence trial conducted in jurisdiction where crime is alleged to have occured Rights of the Accused Post Trial Rights
no double jeopardy (5th Amendment) no cruel and unusual punishment (8th Amendment) Rights of the Accused Key additions or amendations to basic rights Gideon v. Wainwright (1963) -- right to
counsel even if cant afford an attorney; state must provide one Rights of the Accused Mapp v. Ohio (1961) -Exclusionary Rule; illegally obtained evidence is inadmissable at trial. "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth
Amendment], inadmissible in a state court." Rights of the Accused Exceptions to Exclusionary Rule Plain sight: Alternative means:
evidence not on a warrant but in plain sight of the police is admissable in court If police can demonstrate they would inevitably have found the evidence legally anyway, even though it was illegally obtained originally, the evidence is admissable Good faith: if police believe they are conducting a reasonable search, and a subsequent court rules that the search was in fact unreasonable, the
evidence is admissable Rights of the Accused Miranda v. Arizona (1966) -- police must inform accused of rights prior to taking into custody Rights of the Accused Exceptions to Miranda:
Public Safety Conviction possible if other evidence at trial would have been enough to convict, even if confession was coerced or suspect was not read Miranda rights Ambiguity Suspects must clearly state that they would like to speak to counsel or exercise other provisions of their Miranda
rights Rights of the Accused Exceptions: War on Terror and enemy combatants Bush Administration argued that terrorists taken into custody are outside both international law (Geneva Conventions regarding Prisoners of War) and US civil law Death Penalty
Death penalty and the 8th Amendent cruel and unusual refers to punishment that is excessive (punishment did not fit the crime) and needlessly inflicts suffering on the convict Furman v. Georgia (1972)
Death penalty unconstitutional because its use was random and arbitrary Death Penalty Gregg v. Georgia (1976) States adopt, and court approves a two step process for capital cases
Death penalty is not necessarily unconstitutional Ring vs Arizona (2002) Only juries, not judges, can impose the death penalty Death Row statistics from the Bureau of Justice Statistics Other Rights Privacy Rights
Privacy not mentioned specifically in the Constitution or the Bill of Rights Griswold v. Connecticut (1965) Privacy implied in the 1st, 3rd, 4th, 5th, 9th
amendments Privacy Rights Privacy and the USA Patriot Act allows government officials to secretly search a suspected terrorist house with special warrant allows government to monitor internet, phone conversation, banking, and book purchases with
special warrant allows government to open mail with special warrant Privacy Rights -Privacy and the Patriot Act Liberty v. Security argument -Privacy and Roe V. Wade Legality of abortion in first trimester based on implied right to privacy and 14th Amendment guarantee of liberty as right to choose -SCOTUS applied privacy in 4 areas: contraceptives, abortion, marriage, and parenting (CAMP)
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