Civil Liberties I. First Amendment A. Religion Clauses 1. Establishment a) Wall of Separation? (1) Jefferson b) Engel v. Vitale (1962) (1) School Prayer c) Lemon v. Kurtzman (1971) (1) Three Part Lemon Test (a) Must have a secular legislative purpose (b) Primary effect may neither advance nor inhibit religion (c) No excessive government entanglement with religion d) Recent lowering of the Wall e) Equal Access Act (1984) (1) Upheld f) UVA case g) Zelman v. Simmons-Harris (2002) (1) Allowed Voucher system h) New conservative approach (1) Non-Preferential Test (2) O'Conner compromise (a) Non-Endorsement test i) Under God? 2. Free Exercise a) Not absolute (1) Secular Laws Often Upheld (a) Drugs (b) Snake Handling (c) Polygamy b) Compelling State Interest Test c) Oregon v. Smith (1990) (1) Peyote (2) Dropped "Compelling State Interest" Test (3) Government Must Be Neutral d) Religious Freedom Restoration Act (1993) (1) Bill Clinton (2) Bipartisan
e) City of Boerne v. Flores (1997) (1) RFRA Unconstitutional f) Court Reversal on Use of Peyote in 2006 B. Freedom of Speech and Press 1. Democracy Depends on Free Exchange of Ideas a) No Prior Restraint 2. Not Absolute 3. Hierarchy of Protection a) Thought b) Speech c) Action 4. History a) Alien and Sedition Acts b) Slavery Publications (1) Uncle Tom's Cabin c) The Civil War (1) Both Sides Violated Rights (2) Habeas Corpus (3) Press d) World War I (1) Espionage and Sedition Acts (2) Schenck v. U.S. (1919) (a) Clear and Present Danger Test e) Brandenburg v. Ohio (1969) (1) Direct Incitement Test 5. Protected Speech and Publications a) Prior Restraint (1) New York Times Co. v. U.S. (1971) (a) Pentagon Papers (2) Nebraska Press Association v. Stuart (1976) (a) Heavy Presumption Against Constitutionality b) Symbolic Speech (1) Stromberg v. California (1931) (a) Communist Youth Camp (2) Tinker v. Des Moines (1969) (a) Black Armbands in High School (3) Texas v. Johnson (1989) (a) Flag Burning c) Hate Speech (1) Content Neutral
(2) Cross Burning (a) R.A.V. v. City of St. Paul (1992) (i) Overbroad (b) Virginia v. Black (2003) (i) Intent to intimidate (3) College Campus Rules? 6. Unprotected Speech and Publications a) Libel and Slander (1) New York Times v. Sullivan (1964) (a) Actual Malice b) Fighting Words (1) Chaplinsky v. New Hampshire (1942) (a) Not Protected (2) Cohen v. California (1971) (a) "%#@*&! the Draft" c) Obscenity (1) Tendency to Corrupt (2) Roth v. U.S. (1957) (a) Average Person (b) Contemporary Community Standards (c) Dominant Theme (d) Taken as a Whole (e) Appeals to the Prurient Interests (3) Miller v. California (1973) (a) Essentially Same as Roth (4) Congress and Obscenity (a) NEA (b) Communications Decency Act (i) Materials Over the Internet for Those Under Eighteen (ii) Reno v. ACLU (1997) (a) Overturned C. Freedoms of Assembly and Petition 1. DeJong v. Oregon (1937) a) Applied Assembly to the States II. The Second Amendment A. Right to Keep and Bear Arms B. Keep Congress from disarming state militias C. Protect the ability to revolt against government tyranny D. Dred Scott v. Sanford (1857)
1. Listed right to own and carry a gun as a basic right of citizenship E. U.S. v. Miller (1939) 1. Upheld the National Firearms Act of 1934 which imposed taxes on automatic weapons and sawed off shotgun F. Washington D.C. v. Heller (2008) 1. Struck down D.C. handgun ban 2. Second Amendment protects individual right to own a firearm for personal use G. McDonald v. Chicago (2010) 1. Applied Second Amendment to States H. Brady Law and Assault Weapons Ban of the 1990's 1. Attempted assassination of Reagan in 1981 2. Five day waiting period on purchase of handguns 3. Ban expired in 2004 III. The Fourth Amendment A. Protects people against "unreasonable" searches and seizures B. Government needs a warrant to make it a reasonable search 1. Probable Cause 2. Specifics of search C. Warrantless Searches 1. 1989 a) Stop and Frisk b) Reasonable suspicion c) Further search requires probable cause 2. Consent a) Apartment v. House 3. Plain View 4. Hot Pursuit 5. Breathalyzer Test 6. Open Field a) Even if No Trespassing signs are posted b) May not use thermal imager without a warrant 7. Cars a) Probable Cause 8. Drug Testing IV. The Fifth Amendment A. Protection against self-incrimination 1. Taking the Fifth 2. Miranda v. Arizona (1966) a) Miranda Rights
B. Double Jeopardy C. Due Process D. Eminent Domain 1. Just Compensation V. The Exclusionary Rule A. Weeks v. U.S. (1914) 1. Rule first adopted B. Mapp v. Ohio (1961) 1. All evidence obtained in violation of Constitution is inadmissible C. Good Faith exceptions D. Inevitable Discovery VI. The Sixth Amendment A. Right to Counsel 1. Betts v. Brady (?) a) Capital case b) Special circumstances 2. Gideon v. Wainwright (1963) a) All cases b) Applied to states B. Speedy and Public Trial by an Impartial Jury 1. 1975 a) Court ruled that barring women from jury violated mandate that jury be a "fair cross section" of the community 2. Batson v. Kentucky (1986) a) Use of Peremptory Challenges to exclude African Americans violates the Equal Protection Clause of the 14th Amendment 3. 1994 a) Use of Peremptory Challenges to exclude Women violates the Equal Protection Clause of the 14th Amendment C. Confront Witnesses 1. Not Absolute 2. Maryland v. Craig (1990) a) Child abuse victim allowed to testify through one way closed circuit television VII. The Eighth Amendment A. Prohibits Cruel and Unusual Punishment B. U.S. is only Western nation that uses the death penalty 1. Extradition C. Death Penalty was used in all states at the adoption of the Constitution and Bill of Rights
D. Furman v. Georgia (1972) 1. Arbitrary manner of application was cruel and unusual 2. Effectively banned death penalty in U.S. for four years E. Gregg v. Georgia (1976) 1. Approved a new Georgia death penalty statute 2. Brought back the death penalty F. McCleskey v. Zant (1991) 1. Made death row appeals more difficult G. House v. Bell (2006) 1. Recognized the potential exculpatory VIII. The Ninth Amendment A. Rights Not Listed or Prohibited Belong to People IX. The Tenth Amendment A. Reserved Powers B. Powers of the States and the People C. Federalism X. Right to Privacy A. Not specifically mentioned in Constitution B. Various rights imply a right to privacy 1. First Amendment guarantee of free exercise of religion 2. Fourth Amendment protection against unreasonable searches and seizures 3. In 1928 Justice Louis Brandeis described privacy as "the right to be left alone-the most comprehensive of rights and the right most valued by civilized men" C. Birth Control 1. Griswold v. Connecticut (1965) a) Struck down a law prohibiting the dissemination of information about and/or the sale of contraceptives b) Various amendments cast penumbras thereby creating zones of privacy (1) First, Third, Fourth, Ninth, Fourteenth D. Abortion 1. Roe v. Wade (1973) a) A Texas law banning abortion violated a woman's right to privacy b) Divided pregnancy into three stages (1) First Trimester (a) Absolute right (2) Second Trimester (a) State may regulate abortions to protect the life of the mother
(3) Third Trimester (a) State interest in protecting potential life outweighs the rights of the mother (b) Abortions to save the life of the mother must be legal 2. Very controversial a) Polarized the parties b) Pro-choice and pro-life c) Supreme Court Nominations d) Led to rise of pro-life groups that helped elect Ronald Reagan in 1980 3. Amendment to a law banned the use of Medicaid funds for abortions a) Henry Hyde (R-IL) b) Upheld by Harris v. McRae (1980) 4. Webster v. Reproductive Health Services (1989) a) Upheld some restrictions on abortion b) Did not overturn Roe (1) O'Connor the deciding vote 5. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) a) Upheld a 24 hour waiting period and parental consent requirement b) Did not overturn Roe but abolished the trimester approach and replaced it with the undue burden test (1) Laws can regulate abortions as long as they don't create an undue burden for the mother 6. In 1993 Bill Clinton ended bans on fetal tissue research, abortions at military hospitals, and federal funding for overseas population control programs. Also lifted a gag rule preventing public health clinics receiving federal money from discussing abortion. a) All of these were later reversed by George W. Bush 7. Clinton also ended the ban on testing RU-486 which was made available in 2000 and appointed two pro-choice justices to the Supreme Court 8. Congress passed two partial birth abortion bans in the 1990s, but both were vetoed by Clinton 9. Stenberg v. Carhart (2000) a) Struck down a Nebraska partial birth abortion ban because it did not have an exemption for a woman's health 10. In 2003 George W. Bush signed the Partial Birth Abortion Ban Act into law 11. Gonzales v. Carhart (2007)
a) Upheld the Partial Birth Abortion Ban Act even though it contained no exceptions for the health of the mother E. Homosexuality 1. Bowers v. Hardwick (1986) a) Upheld Georgia anti-sodomy law 2. Lawrence v. Texas (2003) a) Overturned Bowers by striking down a Texas law and similar laws in 14 other states F. The Right to Die 1. Cruzan v. Director, Missouri Department of Health (1990) a) Parents could not withdraw a feeding tube from their comatose daughter 2. Vacco v. Quill (1997) a) Terminally ill patients do not have a right to Physician assisted suicide 3. Gonzales v. Oregon (2006) a) Oregon passed a law allowing assisted suicide b) Attorney General John Ashcroft issued a legal opinion that physician assisted suicide is not a legitimate medical purpose and called for the revocation of physicians prescription drug licenses c) Court ruled against Ashcroft's actions and upheld the Oregon law d) Since then other states have passed assisted suicide laws XI. The Fourteenth Amendment and the Incorporation Doctrine A. Due Process Clause 1. Substantive Due Process a) Gitlow v. New York (1925) (1) Free Speech b) Near v. Minnesota (1931) (1) Free Press 2. Incorporation Doctrine a) Application of rights in Bill of Rights to the states through Due Process Clause of the Fourteenth Amendment b) Selective Incorporation (1) Fundamental freedoms
Study Questions for Civil Liberties 1. Describe the First Amendment religion clauses, the establishment clause and the free exercise clause, and explain the current interpretation of those clauses and its impact on current issues such as LGBT rights. 2. Outline the First Amendment guarantees of and limitations on freedom of speech, press, assembly, and petition. What is meant by prior restraint as it pertains to First Amendment rights of free expression? Compare and contrast the clear and present danger test with the direct incitement test. Explain the Supreme Court s opinion about symbolic speech as expressed in Stromberg v. California (1931) and Tinker v. Des Moines Independent Community School District (1969). Distinguish between protected and unprotected speech and press such as slander and libel (see New York Times v. Sullivan 1964), fighting words, and obscenity. 3. Summarize changes in the interpretation of the Second Amendment in D.C. v. Heller (2008). 4. Describe the Fourth Amendment protection against unreasonable searches and seizures including any exceptions to the warrant rule (exigent circumstances). Distinguish between reasonable suspicion and probable cause. 5. Describe the Fifth Amendment protections against self-incrimination and double jeopardy including an explanation about the significance of Miranda v. Arizona (1966) and Miranda rights. 6. Describe the exclusionary rule, Weeks v. U.S. (1914), and the controversy that surrounds it. 7. Describe the Sixth Amendment right to counsel and how it was affected by Gideon v. Wainwright (1963). 8. Explain the components of trial by jury as described in the Sixth Amendment. 9. Explain the Supreme Court s rulings involving the Eighth Amendment in the 1970 s and more recent issues involving the death penalty and torture. 10. Explain the origin and significance of the right to privacy in the areas of birth control, Griswold v. Connecticut (1965), abortion, Roe v. Wade (1973), and sexual preference, Bowers v. Hardwick (1986) Lawrence v. Texas (2003), and more recent cases. 11. Evaluate the effectiveness of the Ninth and Tenth Amendments. 12. Explain how the due process clause (substantive due process) of the Fourteenth Amendment has been used to apply many of the rights in the Bill of Rights to the states through the process of selective incorporation of fundamental freedoms.