Civil Liberties Lecture I. Unalienable & Civil Rights a. Unalienable Rights Defined natural rights that ALL humans should have like Life, Liberty, Property, Pursuit of happiness, etc (Locke and Jefferson) b. Civil Liberties Defined are protections against government i. i.e. English and USA Bill of Rights (1 st 10 Amendments in the US Constitution) c. Civil Rights Defined positive acts of government that seek to make constitutional guarantees a reality for ALL people II. Limited Government a. Defined the US Government/Constitution is an example of limited Gvt. b. There are many examples of this in the US Constitution those that guarantee personal freedoms i. Example: Freedom of religion, freedom of press, speech etc c. Civil Rights are NOT Absolute i. Example: Freedom of speech can be suppressed in certain situations 1. 1919 Schenck v US Justice Oliver Wendell Holmes said, The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. a. This case had to do with enforcing the Espionage and Sedition Act of 1917 which made it illegal to say or publish anything against the US Gvt or Army during WWI. b. Schenck, an immigrant, was found guilty of mailing pamphlets urging inductees to dodge the draft during WWI d. 14 th Amendment (1866) Civil Rights Amendment i. Due Process Clause: No State shall deprive any person of life, liberty or property, without due process of the law 1. The Supreme Court has often interpreted this to mean the following: NO state can deny to any person any right that is basic or essential to the American concept of ordered liberty. ii. What are basic or essential rights? 1. This has been answered in a LONG series of court cases dating back to 1925 in Gitlow v. NY (1925) a. Benjamin Gitlow made numerous pro-communist public speeches and even published a pamphlet urging violent overthrow of the US GVT. b. Gitlow was arrested on a NY law that made this illegal and US Supreme Court upheld the NY law and state court conviction c. But the SC also noted that Freedom of Speech and Press are also among the fundamental personal rights and liberties protected by the Due Process Clause of the 14 th Amendment from impairment by the states. d. Thereafter, the court upheld this line of thought again in 1927, 1931, 1937, etc as it declared various state laws unconstitutional as a violation of the 14 th Amendments Due Process Clause 2. 1960s, the SC extended the scope of the 14 th Amendment s Due Process Clause to cover nearly ALL of the Bill of Rights 10 Amendments EXCEPT the 2 nd (right to bear arms), 3 rd (quartering troops), 5 th (grand jury) and 7 th (trail by jury in civil cases) e. 9 th Amendment declares that there are rights beyond those set out in so many words in the Constitution The enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
2 f. Freedom of Religion i. US Constitution guarantees this in the 1 st and 14 th Amendments ii. These guarantees prohibit 1. Establishment Clause an establishment of religion 2. Free Exercise Clause any arbitrary interference by govt. in the free exercise of religion a. This allows each person the right to believe whatever he or she chooses to believe in matters of religion b. NO law or action of the GVT can violate this absolute constitutional right g. Freedom of Speech i. 1 st and 14 th Amendments guarantee free speech and press ii. These guarantees seek to ensure the freedom for the thought that we hate or dissenting views (according to Justice Oliver Wendell Holmes in 1929) iii. NOT covered under the US Constitution 1. Libel is the false and malicious use of printed words 2. Slander is the false and malicious use of spoken words 3. Sedition a crime of attempting to overthrow the GVT by force or to disrupt its lawful activities by violent acts a. Seditious Speech is the advocating, or urging, of such conduct iv. History & Sedition 1. Alien and Sedition Acts (1789) made it illegal to criticize the president and GVT (but NOT the VP TJ) and allowed the president to deport anyone he deemed against the GVT (mostly French and Irish immigrants who tended to vote for Jeffersonians) a. NOT declared unconstitutional since there wasn t an understanding of Judicial Review yet (Marbury v. Madison in 1803) and therefore, 25 ppl were arrested. 10 convicted b. 1801 the law expired and TJ (the new president) pardoned those in jail 2. Espionage and Sedition Act (1917) made it illegal to speak out against the US Gvt or armed forces a. More than 2000 were convicted of this b. This law was deemed constitutional by SC in Schenck v. US as stated above (1919) c. Justice Oliver Wendell Holmes wrote, Words can be weapons. The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. 3. Smith Act of 1940 This law is still on the books a. Makes it a crime for anyone to advocate the violent overthrow of the GVT and to distribute any material that teaches or advises violent overthrow, or to knowingly belong to any group with such an aim. b. SC upheld this law in Dennis v. US (1951) an attempt to overthrow the GVT by force, even though doomed from the outset because of inadequate numbers of power of the revolutionists, is a sufficient evil for Congress to prevent. v. Obscenity NOT covered by Constitution but the SC has taken many cases recently to determine a 3-part test to find the scope obscenity that would be disallowed 1. the average person, applying contemporary, local standards 2. the work depicts offensive sexual conduct 3. the work as a whole lacks serious literary, artistic, political or scientific value
3 vi. The Media/Radio and TV 1. Both are subject to major federal regulation 2. Federal Communications Act of 1934 est. the Federal Communications Commission a. The Commission oversees the content of material b. Congress has forbidden the FCC from censoring the content of programs BEFORE they are broadcast c. However, the FCC can prohibit the use of indecent language and content and give violators fees and restrict future broadcasting rights 3. US vs. Playboy Entertainment Group (2000) a. SC struck down a 1996 law by Congress that limited sexually explicit channels to late night hours. b. SC thought the idea was a worthy goal but nevertheless, against the 1 st Amendment vii. Symbolic Speech 1. Picketing patrolling of a business site by workers who are on strike is an example of this 2. If the picketing is peaceful, it is protected by the 1 st and 14 th Amendments 3. However, the SC also believes that other acts of dissent can be punished if: a. The object of the protest (war, drafts, etc ) is within the constitutional powers of the GVT b. Whatever restriction is placed on expression is no greater than necessary in the circumstances c. The GVT s real interest in the matter is not to squelch dissent 4. Virginia v. Black (2003) SC upheld a VA law that prohibited the burning of a cross as an act of intimidation, as a threat that can make a person fear for his/her safety which is against the 14 th Amendment 5. Flag Burning if it is done as an act of political protest this is then protected by the 1 st and 14 th Amendments a. Texas v. Johnson (1989) & US v. Eichmann (1990) upheld this in narrow 5-4 majorities 6. Commercial Speech a. Wooley v. Maynard, 1977, the SC held that a State cannot force its citizens to act as mobile billboards. b. P. Lorillard Co. v. Reilly, 2001, the SC overturned a MA ban on outdoor ads for smokeless tobacco and cigar advertising within 1000 feet of a school or playground. h. Freedom of Assembly i. Content Neutral while the GVT can regulate assemblies on the basis of time, place, and manner, it cannot regulate assemblies on the basis of what might be said there. ii. Public Property assemblies are legal but almost always require advance notice and permits for demonstrations in public places III. Due Process of the Law a. Defined the government must act fairly and in accord with established rules in all that it does. It may NOT act unfairly, arbitrarily, capriciously or unreasonably b. US Constitution has 2 clauses of due process i. 5 th Amendment declares that the Fed Gvt cannot deprive any person of life, liberty or property, without due process of the law. ii. 14 th Amendment places that same restriction on the states and local GVT as well
4 iii. Procedural Due Process has to do with the HOW (procedures, methods) of government action iv. Substantive Due Process involves the WHAT (substance and policies) of GVT action c. Police Power is the authority of each state to act to protect and promote the public health, safety, morals and general welfare. i. The use of Police Power often produces conflicts with civil rights protections ii. Example to determine if a person is drunk-driving, police give a breathalyzer test and or draw blood but do these tests violate person s rights under the 14 th Amendment? 1. Schmerber v. California (1966) SC found no objection to this since the officer had reasonable grounds to believe the suspect was drunk and therefore a search warrant wasn t necessary and the time needed to get one would hinder the investigation since the alcohol would be out of the suspect s system d. Right of Privacy i. US Constitution says, The right to be free, except in very limited circumstances, from unwanted governmental intrusions into one s privacy. 1. Stanley v. Georgia (1969) clarified The right to be let alone. ii. Griswold v. Connecticut (1965) 1. Constitution makes no specific mention of the right to privacy but the SC declared its existence in this case 2. Connecticut had passed a law outlawing birth-control counseling and prohibited all use of it 3. Overturned by SC as a violation of the 14 th Amendment iii. Roe v. Wade (1973) 1. Question: To what extent can a state limit a women s right to an abortion? 2. Answer: SC held that the 14 th Amendment s right of privacy encompasses a women s decision whether or not to terminate her pregnancy. a. In the 1 st trimester of pregnancy (about 3 months) abortion was legal b. 2 nd trimester a state can make reasonable regulations c. Final trimester, a state can choose to prohibit ALL abortions except those necessary to preserve the life or health of the mother 3. Limiting Roe a. Webster v. Reproductive Health Service (1989) i. SC upheld 2 key parts of a Missouri Law that prohibited abortions except those to preserve the mother s life or health in (1) any public hospital or clinic in that state and (2) when the mother is 20 or more weeks pregnant and tests show the fetus is viable (capable of sustaining life on its own) b. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) i. SC announced a new rule that a state may place a reasonable limit on abortions but cannot impose an undue burden on her choice ii. Using that new rule, some states have noted the following: 1) A Women who seeks an abortion must be given professional counseling intended to persuade her to change her mind 2) A women must delay an abortion for at least 24 hrs after counseling 3) An unmarried female under 18 must have the consent of a parent, or permission of a judge, before an abortion 4) Doctors and clinics must keep detailed records of all abortions they perform
5 e. Rights of the Accused i. Habeas Corpus the writ of habeas corpus is sometimes called the writ of liberty and is intended to prevent unjust arrests and imprisonments ii. This writ can NOT be suspended unless when in cases of Rebellion or Invasion the public safety may require it. 1. President Lincoln suspended this write in 1861 during the Civil War 2. Ex Parte Merryman (1861) by the Tanney court ruled this unconstitutional iii. Grand Jury 1. US Constitution notes that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. 2. Defined a formal device by which a person can be accused of a serious crime. a. In federal cases, a jury of 16-23 persons are present 3. Indictment a formal complaint that the prosecutor lays before a grand jury. iv. Double Jeopardy that once a person has been tried for a crime, he or she cannot be tried again for that same crime 1. The Constitution s 5 th Amendment says in part that no person can be twice put in jeopardy of life or limb. v. Right to a Speedy Trial & Public Trial but not too speedy or to public. vi. Trial by Jury is guaranteed by the 6 th Amendment AND 14 th Amendment 1. Bench Trial judge alone hears the case without a jury and can waived by the defendant vii. Right to Adequate Defense 1. 6 th Amendment says that defendants have the right a. to be informed of the nature and cause of the accusations, b. to be confronted with the witnesses against him and question them in open court, c. to have compulsory process for obtaining witnesses in his favor, and d. to have the assistance of council for his defense. 2. Gideon v. Wainwright (1963) SC held that an attorney must be furnished to a defendant who cannot afford one viii. Self-Incrimination 1. 5 th Amendment suggests that the guarantee against self-incrimination applies only to criminal cases. 2. Actually applies to any government proceeding that any question answered could lead to criminal charges. a. take the 5 th or plead the 5 th 3. Miranda v. AZ (1966) a. A mentally retarded man, Ernesto Miranda had been convicted of kidnapping and rape b. 2 days after the rape, the victim chose Miranda out of a line-up c. After 2 hrs of police questioning, during which police didn t tell him his rights, Miranda confessed d. SC struck down the confession since he was NOT aware of his constitutional rights f. Cruel and Unusual Punishment i. 8 th Amendment forbids cruel and unusual punishment ii. The 14 th Amendment extended this to the states as well iii. Lockyer v Andrade (2003) Andrade received 50 years for stealing $153.54 worth of children s videos from a K-Mart 1. SC overturned this sentencing on the 8 th Amendment
6 iv. Capital Punishment punishment by death 1. Constitutional?? 2. States have individually decided and some have stopped them but others haven t 3. the SC has NOT decided one-way-or-the-other (thus far) IV. Equal Protection Clause 14 th Amendment a. No State shall deny to any person within its jurisdiction the equal protection of the laws. b. Segregation Means the separation of one group from another c. Jim Crow Laws laws that separate people on the basis of race i. Usually aimed at African-Americans d. Plessy v. Ferguson (1896) VS. Brown v. Board of Education, Topeka, Kansas (1954) i. Separate but equal vs. integration/14 th Amendment e. de jure & de facto ségrégation i. de jure is segregation by law ii. de facto segregation by custom f. Civil Rights Act of 1964 i. Passed after the longest debate in the Senate s history 83 days ii. Outlaws discrimination in public accommodations iii. Prohibits discrimination against any person on grounds of race, color, gender, etc in any program that receives any federal funding iv. Forbids employers and labor unions to discriminate against any person in job related maters g. Voter Rights Act of 1965 outlawed literacy tests and allowed the Attorney General to oversee any elections (not just federal) i. Also, ANY new election law or change to any existing election law in any problematic states would have to be 1 st approved by the Department of Justice 1. ONLY those approved by the DOJ would be allowed! h. Civil Rights Act of 1968 often called the Open Housing Act i. With minor exceptions, it forbids anyone to refuse to sell or rent a dwelling to any person on grounds of race, color, religion, national origin, gender or disability ii. Also forbids to sell or rent to a family with children i. Affirmative Action i. Defined a policy requires that most employers take positive steps to remedy the effects of past discriminations ii. this policy applies to all the agencies of the Federal Gvt, to all the states and their local GVTs, and to all private employers who sell goods and services to any agency of the Fed. Gvt iii. CA is one of the exceptions with Prop 209 (passed in 1996) excludes CA from this requirement/understanding 1. Federal district court in late 1996 found the court unconstitutional but this was overturned by the 9 th Circuit Court of Appeals in 1997 2. The SC refused to hear the appeal and thus the last ruling still stands today in CA iv. Washington (in 1998) also passed a initiative measure similar to Prop 209 in CA v. UC Regents of CA v. Bakke (1978) 1. by a 5-4 majority, the SC held that Bakke had been denied equal protection and should be admitted to the medical school 2. by a differently composed 5-4 majority, the SC ruled that although the Constitution does NOT allow race to be used as the ONLY factor in making affirmative action decisions, both the Constitution and 1964 Civil Rights Act do allow its use as ONE among several factors in such situations
7 j. American Citizenship i. The 14 th Amendment (1868) notes, all persons born or naturalized in the US and subject to jurisdiction thereof are citizens of the United States and of the State wherein they reside. 1. persons can become an American citizen either by birth or by naturalization ii. Citizenship by Birth 1. Jus Soli law of the soil Citizenship by birth on American soil 2. Jus Sanguinis law of the blood or to whom one is born a. As long as ONE parent is a US citizen and lived in America then the child is an American citizen iii. Citizenship by Naturalization a legal process by which a person becomes a citizen of another country at some time after birth 1. Congress can ONLY naturalize individuals NOT States 2. Alien citizen or national of a foreign state living in America iv. Loss of Citizenship 1. Expatriation a legal process by which a loss of citizenship occurs 2. Denaturalization can occur only by court order and only after it has been shown that the person became a citizen by fraud or deception