civil liberties. objectives explain the purpose of the bill of rights and the process by which its...
TRANSCRIPT
Civil Liberties
ObjectivesObjectives• Explain the purpose of the Bill of Rights and the
process by which its provisions came to be “incorporated.”• Define prior restraint and exam the free-speech tests
devised by the Supreme Court to determine protected versus unprotected speech.• Explore the debate over where to draw the line
between protected free exercise of religion and unprotected conduct.
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ObjectivesObjectives• Discuss the arguments for and against the
constitutional right of privacy and recognize the types of issues to which it applies.• Understand the concept of procedural due process
and other rights of criminal defendants, and examine how judicial interpretation of constitutional language can affect those rights.
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The Bill of Rights
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• Civil Rights• Freedom from governmental discrimination (unequal
treatment).• Bill of Rights• The first 10 amendments of the Constitution, which
form the basis of civil liberties.• Civil liberties• Freedoms that citizens enjoy from government
interference• Freedom of speech, press, assembly, and religion;
guarantees of due process and other protections given to criminal defendants.
• Understand the difference?• Right to assembly = civil liberty. BUT if government
decides only people with red hair can assemble and others could not, that would be discrimination and a violation of civil rights.
The Bill of Rights: Origins
• George Mason’s proposal for a Bill of Rights was voted down unanimously by delegates.• Many felt there was no
need for a federal Bill of Rights.• Seven states had a bill of
rights in their state constitutions.• They believed the federal
government was limited and could not abridge the rights of individuals.
• Madison originally opposed it as well, but changes his position with persuasion by Jefferson and the need to ratify the Constitution.• First Congress sent 12
amendments to the states for ratification.• The first two, which dealt
with the size of the House and compensation for representatives and senators, were not ratified.
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The Bill of Rights & the States: The Original Understanding• The Bill of Rights originally thought to limit ONLY the power of the
national government … not the power of the states.• First Amendment: “Congress shall make no law…”• Barron v. Baltimore (1833)
• Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
• Unanimous decision: Chief Justice Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
• Slavery and the emergence of abolitionists• The Liberator• State restrictions on civil liberties. Example: VA made it a felony for
abolitionists to enter state and speak in favor of abolishing slavery. Missouri had elected officials swear oath in support of slavery.
• Bill of Rights offered no protection for abolitionists.
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Incorporation of the Bill of RightsIncorporation of the Bill of Rights• What is incorporation?• Applying the Bill of Rights to the states.• Means that an amendment limits not only the federal government, but the
state governments as well.• Total incorporation: making every specific provision of the Bill of
Rights applicable to the states.• Selective incorporation: making only the most essential provisions
applicable to the states.• Incorporation “plus”: unenumerated rights such as “privacy”? • Not enumerated in the Bill of Rights, but the Supreme Court has
recognized this right at the federal level. Should these be incorporated as well?
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Incorporation of the Bill of RightsIncorporation of the Bill of Rights• What justifies incorporation? Two clauses in the Fourteenth
Amendment• Privileges or immunities clause: “No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens in the United States…”
• Slaughterhouse Cases of 1873• Court narrowly interpreted privileges and immunities.• Thus limited use of privileges and immunities clause to incorporate
• Due process clause: “No state shall... Deprive any person of life, liberty, or property without due process of the law.”• Meant to guarantee fairness; • procedural due process and substantive due process• 20th century justices of the Supreme Court turned to the due process clause
to incorporate the Bill of Rights.• Long process of “selective incorporation” began• Most recent: Second Amendment
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First Amendment: Freedom of Press and Prior Restraint• Principle of freedom of press: no prior restraint on publishing• British common law tradition after 1695• Censorship before publication• Near v. Minnesota (1931) 5-4 vote, Supreme Court held prior restrain to
be unconstitutional• But in certain “exceptional” cases acceptable: troop movements in time of war;
obscene material• Also majority held that certain types of punishment after publication were
constitutional
• Pentagon Papers• Study of U.S. involvement in Vietnam commissioned by Sec. McNamara• Disclosed that government from Truman to Johnson administrations has misled
public
• Nixon administration tried to restrain publication of NYT articles relating to Vietnam. Cited national security.
• Court ruled 6-3 that the NYT could publish the articles
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What did the Framers Mean by “Freedom of Speech”?What did the Framers Mean by “Freedom of Speech”?• Not clear what the Founders meant by freedom of
speech.• Pennsylvania the only state with constitution that protected
speech; linked with freedom of press• So even after it was included in the Bill of Rights, the
specific meaning was unclear.• Does it guarantee more than protections against prior
restraint of the press?• Is protected speech limited to political speech?• Did it mean that only states could regulate speech and
not the federal government?• No Court suggests that freedom of speech is absolute.
Exactly what is protected?• Obscenity? False advertising? Written speech or spoken
words?
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The Alien and Sedition Acts of 1798The Alien and Sedition Acts of 1798• Four separate laws passed by the Federalist Party when U.S. was
under threat of war with France.• Sedition Act: allowed for the prosecution of anyone who “shall write,
print, utter or publish” any “scandalous and malicious” statements against the government.
• Targets of the law – opposition newspaper editors (often Democratic-Republicans).• Punishment: imprisonment for up to two years and a $2,000 fine if
convicted.• Ten people, including one House member, convicted before the act
expired in 1801. Later pardoned by Jefferson.• Court never ruled on the constitutionality of these acts. Nor did they rule
on any freedom of speech case until 1919!
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Supreme Court Confronts Restrictions on SpeechSupreme Court Confronts Restrictions on Speech
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Symbolic SpeechSymbolic Speech• Forms of expression such as signs or symbols• First Amendment protection given• Stromberg v. California (1931)
• Struck down a California law prohibiting the flying of red flag as a sign of opposition to government.
• Tinker v. Des Moines Independent Community School District (1969)• Black armbands used by students to protest Vietnam War; not an absolute
right, but students did not disrupt class with them.
• Morse v. Frederick (2007)• Bong Hits 4 Jesus sign at a school sponsored event; principal seized banner
as promoting drug use and suspended the student.• Were the student’s First Amendment rights violated?• 6-3 majority of the Court said NO. Clarence Thomas went so far as to stay
that students had no free speech rights and Tinker should be overturned.• Court said that school’s interest in deterring drug use by students justified
their action in this case.
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Symbolic SpeechSymbolic Speech• Symbolic speech cases often raise
issues of “conduct” – actions rather than words.
• Often intertwined• Is wearing an armband speech or
conduct?• What of flag burning:• Texas v. Johnson (1989)
• Johnson burned flag outside the 1984 Republican National Convention in Dallas.
• 5-4 decision; symbolic speech conveying an idea sometimes may fall within the protection of the First Amendment.
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ObscenityObscenity• Majority of the Court has never considered obscenity protected speech.• Problem: defining what is obscene.• Hicklin test: Regina v. Hicklin (1868) any material (whole or part, of
a book, for example) that has a tendency to deprave or corrupt a child could be outlawed.
• Comstock Act 1873• Illegal to mail “obscene, lewd, or lascivious” material; even included birth
control and abortion information.• Fined up to $2000 and imprisoned for up to 10 years with hard labor• Used Hicklin test to uphold the law in 1877.
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ObscenityObscenity• Roth v. United States (1957) new standard – the Roth Test• No longer used children as baseline but rather the average person
“applying contemporary community standards”• Open to interpretation
• Miller v. California (1973) another new standard as Court moved in a more conservative direction• Local community standards
• Current tendencies• Legal definition of obscenity: hard-core pornography• Broadcast media more stringently regulated – public airwaves are scarce,
so government may ban language and nudity on broadcast media that is offensive although not obscene.
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Libel and SlanderLibel and Slander
• Libel: Written defamation of character• Slander: Spoken defamation of character• New York Times v. Sullivan (1963)• Prove actual malice made with knowledge that it was false or reckless, regardless
of whether it was false or not• Keep political discourse free and flowing• Malice standard makes it very difficult for public figures to win libel suits• Opinion and parody are generally immune from libel charges
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Neither are protected by the First Amendment, but the Supreme Court has set a high standard for government officials and public figures who seek damages for defamation.
Other Areas of SpeechOther Areas of Speech• False Advertising• 1943 Court ruled that the First Amendment does not protect commercial
advertising.• But what about commercials that have some political content?• In 1970s Court struck down state laws that prevented lawyers from running
advertising and that banned advertising for abortion services.• Struck down federal law that banned mailing of unsolicited ads for contraceptives.• First Amendment does not prevent government from passing laws to prevent
false, misleading, or deceptive advertising.• Can require warning/informational labels on products.
• Campus Speech• Campus speech codes: designed to combat discrimination and harassment, but
some believe this squelches debate and limits free speech.• Supreme Court has not directly ruled on these codes, but lower courts have.• University of Michigan’s code struck down due to overly broad, vague language.
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Freedom of AssemblyFreedom of Assembly• First Amendment guarantees “the right of the people peaceably
to assemble.…”• Not absolute.• Restricted property versus public property.• Westboro Baptist Church protests to highlight their belief that ills
of the U.S. are God’s punishment for a society that condones homosexuality.• Picketed funeral of Matthew Shepard, who was beaten to
death because he was gay.• Picketers displayed signs that said “God Hates Fags.”
• 30 states have passed laws that restrict graveside demonstrations.• Respect for America’s Fallen Heroes (2006) – buffer zones
around military cemeteries during burials.
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First Amendment: Freedom of ReligionFirst Amendment: Freedom of Religion
Establishment Clause• Make no law respecting an establishment of
religion• Separation of church & state• Still disagreement as to meaning• Incorporation in 1947
• Everson v. Board of Education• Federal funding
• Battle between “separationists” and “accommodationists”
• Prayer in school; Ten Commandments• Lemon Test
• Secular purpose – intent prong• Primary effect is neither to advance or
prohibit religion – effect prong• Do not lead to excessive government
entanglement with religion –entanglement prong
Free Exercise Clause
• Cantwell v. Connecticut (1941)• Religious belief v. religions action (1879)
Mormonism & polygamy; Jehovah’s Witnesses and solicitation
• Incorporation of the free exercise clause• The Gobitis case (1940)
• Mandatory flag salutes and Jehovah’s Witnesses; upheld by Court as it had a legitimate secular purpose: fostering patriotism
• Violence against the group; called un-American
• The Barnette case (1943)• Reversed Gobitis; found that flag salute
was a form of symbolic expression and that for the government to compel such expression violated the First Amendment
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Right to PrivacyRight to Privacy• Natural Rights• Basic rights that all human beings are entitled to, whether or not they are formally
recognized by government• Is this a means for the Court to “find” new rights in the Constitution?
• Griswold v. Connecticut (1965)• Used constitutional right of privacy to strike down a law• Where did this right to privacy come from?• Justice Douglas: It is implied in the language in the Bill of Rights
• Free speech and assembly = freedom to associate, which implies a right to privacy in one’s associations
• Third Amendment: right not to quarter solders: zone of privacy• Fourth Amendment: ban against unreasonable search and seizure• Fifth Amendment: ban on self-incrimination
• Others, such as Hugo Black, argued there was no specific provision in the Constitution that prohibited the government in Connecticut from denying couples the right to use birth control.
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AbortionAbortion• Griswold paved the way for Roe v. Wade (1973) • Texas law criminalized abortion. Was that law constitutional?• 7-2 decision: Court ruled it was not constitutional, but in its decision, it
tried to balance two competing constitutional rights• Privacy right of a woman to control her own body• State’s interest in protecting the life of the fetus
• Justice Harry Blackman wrote the majority opinion• When did the state have a compelling interest in protecting the life of the
fetus? At conception? When it developed into a “person”?• He attempted to compromise with the point at which a fetus could survive
outside the womb (viability established at the end of the second trimester)• Established “trimester framework”; a middle-ground position which came
under attack from both sides
• Science and technology: Babies could survive earlier in the process and the Court changed composition.
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Abortion• Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)• Would Roe v. Wade be overturned?• 5-4 decision abandoned the trimester framework, but reaffirmed the “central
tenet” of Roe.• A woman's right to choose is still constitutionally protected, however, the
"strict scrutiny" standard was eliminated in favor of a lesser standard of protection for reproductive choice called "undue burden."
• Under Casey, state and local laws that favor fetal rights and burden a woman's choice to have abortion are permitted, so long as the burden is not "undue."
• Abortion is a very contentious issue in the U.S.• If Roe is overturned, each state will need to decide whether or not to allow
abortions, unless Congress establishes a uniform policy for the entire country.
• Political fights over the issue would likely be fierce.
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Other Rights Related to Privacy
Rights of Homosexuals
• Bowers v. Hardwick (1986)• State made it a felony to engage
in sodomy; applied to everyone • Civil suit: claimed his right to
privacy was violated• 5-4 vote Court rejected the claim
and upheld the GA law claiming it had a rational basis.
• Dissenters used strict scrutiny & said it violated the right to privacy
• Case overturned in Lawrence v. Texas (2003)• These laws criminalizing private,
consensual actions had no rational basis
• Same-sex marriage
Right to Die
• Complicated issue• Cruzan v. Director, Missouri
Department of Health (1990)• Court balanced competing
interests• Patients have right to refuse
treatment BUT the state had a right to protect life
• Need “clear and convincing” evidence that patient would want life support refused
• Later ruled right to privacy does not include suicide
• Only one state allows doctor-assisted suicide (Oregon), and Court rejected effort to block that law.
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Rights of Criminal DefendantsRights of Criminal Defendants
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• Only those specific guarantees of the Bill of Rights that the Court has deemed “fundamental” have become incorporated “selectively”
• But ambiguities still exist: right to jury trial in criminal cases, but what about the size of the jury?
• Some judicial opinions have expanded these rights: Gideon v. Wainwright (1963)• Lawyer for those who could not afford one
• Miranda v. Arizona (1966)• Weeks v. United States (1924)• Exclusionary rule in federal cases
• Mapp v. Ohion (1961) applied exclusionary rule to states• Controversial: some argue it goes too far to protect the rights of criminal
defendants.• Good faith exceptions
The Death Penalty• The Eighth Amendment bans “cruel and unusual punishment.”• U.S. has the fifth highest rate of confirmed executions in the world behind
China, Iran, North Korea and Yemen.• 34 states administer the death penalty.• Majority of Americans support the death penalty.
• Does this mean that capital punishment violates that ban? IF not, then what types of execution are constitutional?
• Controversies:• Lethal injections with improper administration• Random and arbitrary imposition of death penalty not constitutional• Excessive form of punishment for certain types of crime• Age and mental conditions must be considered
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Terrorism and Civil Liberties• Does combating terrorism justify restriction on civil liberties?• USA Patriot Act• Warrantless wiretaps• Treatment of suspected terrorists: indefinite detention; no charge or
access to lawyer• Hamdi v. Rumsfeld (2006)• U.S. citizens, including terror suspects, have the constitutional right to
consult a lawyer and to contest their detention before an independent tribunal.
• Hamdan v. Rumsfeld (2006)• Military commissions were not authorized by Congress and violated
international law and could not be used as a means to try detainees.• Congress addressed this by passing a law authorizing them. Were
banned by Obama administration, but they rescinded the ban in 2011.• Does warding off terrorism justify rescinding civil rights? Court has
generally decided that it does not.
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