Exam 4 Notes Civil Liberties

Transcription

1 Exam 4 Notes Civil Liberties

2 Amendment I (1) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Religion - How far does it go? Pot religion? Devil Worship? Speech - Does all speech have to be spoken? What is protected? What is not?

3 1. What are Civil Liberties?! Freedoms from an abusive government! Chapter 4 will delve into:! 1st Am. - Religion, Speech, Press, Assembly! 2nd Am - Gun Rights! 4th Am. - Unlawful Searches/Seizures! 5th/6th Am. - Criminal Liberties/Rights! 8th Am. - Cruel & Unusual Punishments! Multiple Am. - Zones of Privacy - Abortion

4 2. Applying the Constitution Gov t Action - Start here!!!! 1. Liberties are from GOV T intrusion. Must have GOV T acting to deny a right for the Constitution to apply.! Think: I can sue the police for an illegal search of my car under the 4th Am, but I cannot sue my parents for searching my car..sorry! :)

5 3. Freedom of Religion! A. Establishment Clause - No nat l religion.! Rule - Gov t must not promote religion & actions must be non-religious! Engel v. Vitale - no school sponsored prayer.! B. Free Exercise of - Free exercise unless harmfully interferes w/ public policy (Ex. Heroin Religion won t fly!)! Wisconsin v. Yoder - Could not force Amish to go to school past the 8th grade.! Religious freedoms outweigh state s desire for education.! Allows home schooling, etc. End Lecture 1

6 Step 1. State Action - Is the gov t or school restricting the speech? Step 2. ID Type of Speech School Speech? - Speech within school or school event Obscene Speech? - Cuss words, violent or sexually explicit Political Speech? - related to feelings about our government 4. Free Speech Test Step 3. Gov Stopping Power HIGH - Restrict if prove school disruption (Tinker) OR speech goes against school mission (Morse) MED - Gov t can restrict in time & place as relates to minors LOW - Clear Present Danger and Bad Tendency Test - Gov t must show speech is clear threat to public safety (Schenck v. U.S.)

7 A. Mary is upset about school, particularly the school lunch program that is controlled by the federal, state, and local governments. Mary wants more choices and more servings at lunch as she is exhausted and hungry again when practice rolls around at 4pm each day. Mary decides she will protest this outside of her school on a Monday morning as school is about to begin. Mary decides to stand across the street from school on a public sidewalk with a sign that reads: Honk if you are upset and hungry about our school lunch! Thank you Government! Not wanting to cause a scene the principal of the school asks Mary to stop her protest. Mary refuses. Mary is then suspended for the rest of the day from school but vows to continue her protest throughout the week. Work the Free Speech Test if you are Mary s lawyer explaining the best path for a victorious lawsuit. Work 1,2,3 in a paragraph.

8 Step 1. State Action - Is the gov t or school restricting the speech? Scenario A If Mary s Lawyer The best path to the WIN! Step 2. ID Type of Speech Political Speech? - related to feelings about our government Step 3. Gov Stopping Power LOW - Clear Present Danger and Bad Tendency Test - Gov t must show speech is clear threat to public safety

9 B. Mary decides she will protest AGAIN outside of her school on a THURSDAY. Mary is a double early release senior with 3rd lunch. At 1pm she leaves school and walks to the windows outside of the lunch room with a sign that reads: Protest our school by NOT buying lunch today! As students in 3rd lunch see this in the lunch line they cheer and begin chanting. Better lunch, better lunch, better lunch! Then hundreds of students sit down and do not eat lunch. Responding to this, again the principal stops Mary s protest and suspends her for 3 days. Write the majority opinion in this case working all 3 steps in this case using these facts and underlining who wins the case. In your test - ASSUME SCHOOL SPEECH THIS TIME! Use at least (1) one of the following precedents in your PARAGRAPH opinion - Tinker - Symbolic speech needs to cause a school disruption to learning for a school to win. Simply wearing arm bands against a war is not a disruption. Morse - Symbolic speech can be suppressed by a school if the message goes against a school mission. Bong hits.goes against this mission promoting drugs.

10 Step 1. State Action - Is the gov t or school restricting the speech? 4. Free Speech Test Step 2. ID Type of Speech School Speech? - Speech within school or school event Step 3. Gov Stopping Power HIGH - Restrict if prove school disruption (Tinker) OR speech goes against school mission (Morse)

11 Majority Opinion Example The Constitution applies to Mary s case because she was arrested by a government actor, a principal who suppressed her speech (1). This speech is school speech directed at the school and on school grounds (2). School speech receives high restriction abilities of a school to protect the school mission and not cause school disruptions (3). Like the Tinker case however this does not seem to cause a disruption because not eating lunch did not cause any disruptions to the school day and unlike Morse this speech did not go against the school mission s of education as not eating lunch does not tie to that. Therefore, we find for the student, Mary, whose free speech rights were wrongly violated by the school. (Applying 3) End Lecture 2

12 5. Freedom of Press! Prior Restraint - Gov t restricting press before something happens. Censorship!! NY Times v. US! Preferred Position Doctrine - Strong preference to press publishing if Gov t wants to use prior restraint.! Gov t censor ONLY if threat to ongoing national security! Pentagon Papers - Could not show ongoing security risk.past acts not a current threat.

13 6. Gun Rights - 2nd Amendment McDonald v. Chicago 2010 Chicago = Crime. Chicago law of disassembled guns in home, trigger locks, lots of restrictions. Infringe upon 2nd Am. rights? YES Is an individual right. All gun laws may not unnecessarily infringe on this right.

14 7. 4th Amendment - Search and Seizure Tests 1. State Action - Are the police searching and seizing? 2. No unreasonable searches and seizures. 3A. Home Rules High Privacy Rights Only reasonable without a warrant if: 1. consent 2. emergency to save lives OR evidence. 3B. Car Rules Lower Privacy Rights -Reasonable to search without a warrant if: 1. See evidence in plain view/ smell 2. consent by driver 3. Search Relationships A. Officer s Safety at Risk B. Search related to arrest! Exclusionary Rule: excludes use of improperly seized evidence at trial if warrant or 1 of the above exceptions is not present. Mapp v. Ohio End Lecture 3 Mapp Case Assignment

15 4th Amendment Cases 7. 4th Amendment - Search and Seizure Tests 1. State Action - Are the police searching and seizing? Begin - Jigsaw Cases 2. No unreasonable searches and seizures. 3A. Home Rules High Privacy Rights Only reasonable without a warrant if: 1. consent 2. emergency to save lives OR evidence (King). Trash? (Greenwood) 3B. Car Rules Lower Privacy Rights -Reasonable to search without a warrant if: 1. See evidence in plain view/ smell 2. consent by driver 3. Search Relationships A. Officer s Safety at Risk (Knowles) B. Search related to arrest (Gant)! Exclusionary Rule: excludes use of improperly seized evidence at trial if warrant or 1 of the above exceptions is not present. Mapp v. Ohio

16 1. Application of the Constitution. When!? Start Lecture 4 2. Freedom of Religion Rules 3. Freedom of Speech Test 4. Freedom of the Press - Prior Restraint and Preferred Position Doctrine. 5. 4th Amendment Test. Homes vs. Vehicles

17 8. Privacy Rights! Various Amendments imply zones of privacy! Roe v. Wade - privacy right to trimester 1 abortion! Casey - No undue burdens in 1st trimester. Not Undue Burdens - Constitutional! 24h wait, mandatory counseling, minors needing permission, outlawing public $$ for abortions, 2nd/3rd trimester abortion outlawed Undue Burdens - Unconstitutional! Spousal permission! Special Clinic/Doctor Restrictions! See page

18 9. Rights of the Accused! Ex. Branch - charging crimes.! Arrest - 51% evidence.probable cause! Jud. Branch - convicting crimes.! Guilt - 90%.beyond reasonable doubt! Implied Liberties of Accused.. 5th & 6th Am.! Gideon- right to attorney if charged w/ FELONY! Escobedo - right to attorney w/ interrogations! Miranda- requires right of silence + all other criminal rights reminders.

19 10. 8th Amendment - No Cruel or Unusual Punishments Quick history - Recall the Constitution was written during a time when beheadings and being burned at the stake still took place. Yes, jolly old England burned a woman at the stake in The Founding Fathers desired more humane punishments like firing squads and hangings. Both are still around TODAY! Firing Squad - ID, UT, and OK - used in 2010 Hanging - WA and NH - used in 1996 Gas Chamber and Electric Chair - Mainly in SE US - used in All states that have the DP have lethal injection. 16 states have abolished the DP. UT s firing squad chair Delaware hanged a guy in 1996, the last in the US

20 1. State Action - Is the gov t punishing someone 2. No Cruel or Unusual Punishment Rule - Can kill any competent adult in a homicide case. Exceptions: Treason & Terroristic acts Cruel Punishment Exceptions Cannot kill: -handicapped -minors -non-homicide offenders??? -Cannot give life w/o parole for minors.

21 % Breakdown

22 1. Rights of Accused 2. Abortion Rights 3. 8th Amendment - Who can and cannot be put to death.

23 11. BoR & State Gov t Application! Barron v. Baltimore (1833) - BOR doesn t apply to state laws.! 14th Am (1868) - STATES must provide some BoR protections to all! Don t need to write just a reminder of Amendment No State shall make or enforce any law which shall abridge the privileges or immunities (BoR!) of citizens of the United States! 14th Am overrules Barron, enforcement a long process..! Selective Incorporation Theory: Process case by case to apply the BoR liberties to states! 14th Am is vehicle to force this upon the states 14th

24 You will only need to the theory of Incorporation... I will specify the cases you need to know for the test! 2010 Individual Gun Rights II McDonald v. Chicago End Lecture 4, Assignment - Ch 5 Words