Civil Liberties

1. Civil Liberties • Civil Liberties—protections against government that guarantee the safety of persons, opinions, and property from the arbitrary acts of government • Civil rights—positive acts** of government that seek to make constitutional guarantees a reality • Civil liberties are relative—you cannot infringe on the rights of others. The commitment to personal liberty stems from colonial times • Bill of Rights was the original set of civil liberties • The Bill of Rights apply only against the national government—NOT THE STATES • Sometimes rights conflict—ex. Sheppard trial

2. Sheppard v. Maxwell (1966) • Dr. Sam Sheppard was tried for murdering his wife • Trial received extensive media coverage • Sheppard appealed; sensationalism made a fair trial impossible • Appeals court agreed; new trial granted • Gag orders now common; juries can also be sequestered

3. Role of the 9th Amendment • Ninth Amendment provides for unenumerated rights. These include: • Right of people not be tried using evidence obtained illegally • Abortion rights (?) –continually challenged

4. Who is guaranteed these rights? • Constitution covers aliens as well as citizens • At the same time, Constitution does not apply until you enter the U.S. or its territorial waters. • Article IV, Section 2, Clause 1 and the 14th Amendment contain privileges and immunities clauses

5. Korematsu v. United States (1944) • n120,000 Japanese living on U.S. Pacific coast were relocated to internment camps inland following 12/7/41. Isei and Nisei interned. • Korematsu sued to terminate policy. • Supreme court upheld the evacuation as a reasonable wartime emergency measure • This was despite the fact that the Court ruled the same day that once the loyalty of any citizen had been established, internment had to end for that citizen (Ex parte Endo) • In 1988, Congress offered an official apology and $20,000 to each internee still alive.

6. The Role of Federalism • Federalism complicates the protection of individual rights—but this is a good thing • Bill of Rights only applied to the National Government originally. • Supreme Court affirmed this in Barron v. Baltimore, 1833.

7. Barron v. Baltimore (1833) • City of Baltimore, while paving streets, diverted some streams • As a result Barron’s wharf dried up and was unusable. • Barron sued, citing 5th Amendment protection of eminent domain • SC decided that Bill of Rights was not applicable to states; states had ample opportunity to guarantee such rights if they chose to • Barron loses, as SC cannot take case for lack of federal question.

8. After Barron…… • Barron seems to suggest that states can deny rights willy-nilly. • Two reasons, however, prevent this occurrence: First, states have their own Bills of Rights in Constitutions, and the 14th Amendment guarantees that most of the Bill of Rights must be observed by the states.

9. 14th Amendment (1868) • Contains Due Process Clause: “No state shall…deprive any person of life, liberty, or property, without due process of law.” • Procedural and Substantive Due Process • Due process= Government must act fairly and in accord with established rules. • Procedural--government must follow legal procedures for putting you on trial, etc. • Substantive-- laws must be fair themselves • Supreme Court has nationalized parts of the Bill of Rights--NOT #2, #3, #7,#9, and #10. Why those?

10. Weeks v. United States (1914) • Weeks was charged with the use of the mails for the purpose of transporting lottery tickets • Evidence was seized without a warrant • Normally searches require a warrant based on probable cause • Weeks was still convicted in federal court • On appeal, the Supreme Court threw out conviction. • SC developed exclusionary rule: Evidence obtained illegally may not be used against a defendant in Court • But what about STATE courts using evidence obtained unlawfully??

11. Wolf v. Colorado (1949) • Wolf was convicted of conspiracy to commit abortion. The evidence used against him consisted of his clinic appointment book and interviews of witnesses whose names were in the book. No search warrant was acquired prior to the raid. • Wolf was convicted in Colorado, then appealed, arguing that his 4th Amendment right to be exempt from unreasonable searches and seizure was violated • Court ruled that states do not have to give suspects the same protection that federal courts must.

12. Mapp v. Ohio (1963) • One night, seven police officers broke into and searched Dollree Mapp's home in Cleveland, Ohio. The search was prompted by an informant telling them that a suspect in a bombing was there. • No sign of the suspect was found; however, police did find some literature deemed obscene. • Although the police claimed to have a search warrant, none was produced. In court, their search was upheld and Mapp was convicted of the possession of obscene material. • The Supreme Court overturned this conviction on the grounds that the search was illegal. The Mapp case incorporated the 4th amendment into the Due Process clause of the 14th amendment and created the "exclusionary rule," which prevents the use of evidence gained by these so-called illegal searches. • Opponents of the exclusionary rule argue "the criminal is to go free because the constable has blundered," to which Justice Clark answered "The criminal goes free if he must, but it is the law that sets him free."

13. Search and Seizure Summary • 1. When can reasonable searches of individuals be made? a) With a properly obtained search warrant based on probable cause) b) Incident to an arrest • 2. What can the police search, incident to a lawful arrest? a) The individual being arrested b) Things in plain view c) Things under the immediate control of the individual • 3. What about an arrest of someone in a car? a) Answer changes almost yearly and recent cases have allowed the police to do more searching

14. Terrorism and Civil Liberties: Provisions in the USA Patriot Act • Government may tap any telephone used by a suspect, after receiving a court order. Previously, a separate court order was required for each telephone. • Government may tap, with a court order, internet connections. • Government may seize, with a court order, voicemail. • Investigators can share information learned in grand jury proceedings. • Any non-citizen may be held as a security risk for seven days, longer if certified to be a security risk. • Federal government can track money across U.S. borders and among banks. • Statute of limitations on terrorist crimes eliminated; penalties increased. • By Executive order: A non-citizen believed to be a terrorist, or to have harbored a terrorist, will be tried by a military court. * Tried before a commission of military officers. * Two-thirds vote of the commission to find the accused guilty. * Appeal to the Secretary or Defense or the President only

15. 1st Amendment Nationalizations • All 5 sections of the first amendment have been nationalized. • Freedom of Religion • Freedom of Assembly • Freedom of Petition • Freedom of Speech • Freedom of the Press

16. Zenger Trial (1735) • Peter Zenger printed some disparaging comments in a newspaper about the King’s appointee, Governor William Cosby. Comments were TRUE! • This was a prohibited act, however, and Zenger was arrested. • Andrew Hamilton represented Zenger in what seemed a hopeless case • Jury, however found him not guilty because of sympathy • We call that “Jury nullification.”

17. Gitlow v. New York (1925) • Benjamin Gitlow, a Communist, was convicted in NY state courts of criminal anarchy after he published a pamphlet encouraging violent overthrow of the government • Supreme Court upheld Gitlow’s conviction BUT stated that the due process clause of the 14th Amendment REQUIRES states to protect freedom of speech and the press.

18. Near v. Minnesota (1931) • A newspaper published malicious material about the members of a grand jury. Near, the publisher, was convicted under a state statute which authorized restraint of a newspaper publication. He challenged on First and Fourteenth Amendment grounds. • The Supreme Court found the statute unconstitutional. "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege."

19. NY Times v. Sullivan (1964) • Facts: This case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. • Issue/Key Q: Did Alabama’s libel law violate the 1st Amendment? • Decision: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

20. NY Times v. United States (1971)"Pentagon Papers" Case • Facts: The Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. • Issues: Is prior restraint permissible in a bona fide case of national security? • Majority Opinion (Brennan): The injunctions were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint. 6-3 decision

21. DeJonge v. Oregon (1937) • DeJonge was indicted under a state Criminal Syndicalism Law. He merely spoke at a Communist Party meeting. • The Supreme Court reversed the conviction because he was not indicted for participating in its organization, or for joining it, or for soliciting members, or for distributing its literature, but merely speaking at the meeting. • SC: "Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution.... The right of peaceable assembly is a right cognate to those of free speech and free press.”

22. Cantwell v. Connecticut (1940) • nFacts: Newton Cantwell and others, members of the Jehovah's Witnesses, went from house to house in New Haven, Ct., selling books. They were equipped with a record player that described the books. They asked each householder for permission to play the record before doing so. • They were convicted under a statute that said that no person could solicit money for alleged religious purposes from someone not of their sect unless they have first secured a permit from the Secretary of the Public Welfare Council. • Issue: Does this statute deprive the appellants of their liberty and freedom of religion in violation of the First Amendment as guaranteed by the Fourteenth Amendment? • Decision: YES

23. Other Nationalizations • 4th Amendment’s ban on illegal searches and seizures, exclusionary rule, Mapp v. Ohio • 5th Amendment’s ban on self-incrimination and double jeopardy, Malloy v. Hogan and Benton v. Maryland • 6th Amendment’s guarantee of right to counsel, Gideon v. Wainwright • 6th Amendment’s right of persons to confront witnesses, Pointer v. Texas • 6th Amendment guarantee of right to compel testimony, Washington v. Texas • 6th Amendment guarantee of right to a speedy trial, Klopfer v. North Carolina • 8th Amendment’s ban on cruel and unusual punishment, Robinson v. California

24. Gideon v. Wainwright (1963) • Court did not follow stare decisis • Betts v. Brady (1942) held that only defendants in capital cases must receive legal representation • Clarence Earl Gideon was arrested for attempting to break into and enter a poolroom with intent to commit a misdemeanor. Under Florida law, this was a felony. • Gideon, who was illiterate and had no money to hire a competent attorney, requested council be appointed. The trial judge ruled that Gideon was competent enough to handle his own defense. • Gideon was convicted and sent to prison, where he filed a habeas corpus petition in the Supreme Court. The Court agreed to hear his case and council was appointed. The Supreme Court found in favor of Gideon. • In doing so, it declared that all defendants in felony cases had the right to an attorney. Gideon was given a new trial with a lawyer and the jury acquitted him.

25. Malloy v. Hogan, 378 U.S. 1 (1964). • The petitioner, who had been arrested and pleaded guilty to a gambling charge, refused to testify before the state court conducting an inquiry into alleged gambling and other criminal activities. • The Court held that the states may not compel incriminating testimony.  • Thus the Fifth Amendment provision against self-incrimination applies to the states by way of the due process clause of the Fourteenth Amendment.  • This case overrules Adamson v. California (1947).

26. Benton v. Maryland (1969) • Benton tried twice for larceny, convicted second time-conviction overturned • Justice Marshall, writing for the Court, describes the protection against double jeopardy as "a fundamental ideal in our constitutional heritage" • Although it reverses the particular decision by Justice Cardozo in Palko, the Court still adheres to his concept of "ordered liberty" as an overall criterion for the incorporation doctrine • Justice Cardozo had proposed a standard for selective or partial incorporation of rights that are of the "very essence of a scheme of ordered liberty."

27. Robinson v. California(1962) • The defendant was charged under a statue which made addiction to the use of narcotics a crime. All the prosecution under this statue had to show was that the defendant had physical marks which suggested that he was a drug user. • Legal Reasoning: The court ruled that this statue made the "status" of drug addiction a criminal offense. The court stated that drug addiction can be considered a disease and that makes this statue similar to a statue punishing people for being mentally sick. The court ruled that this statue was unconstitutional due to its cruel and unusual nature under the Eighth and Fourteenth Amendments.

28. Duncan v. Louisiana (1968) • Prior to his trial for battery, Duncan was denied a request for a jury trial. • State law allowed a jury trial only for capital crimes or cases in which punishment could include hard labor. • Petitioner challenged on Fourteenth Amendment due process grounds.  • The Supreme Court reversed the conviction.

29. Pointer v. Texas (1965) • Pointer and 1 other person were arrested and brought before a state judge for preliminary hearing on a robbery charge. The complaining witness testified but petitioner, who had no counsel, did not cross-examine. Pointer was later indicted and tried. The witness had moved to another State, and the transcript of his testimony at the hearing was introduced over petitioner's objections that he was denied the right of confrontation. He was convicted and the highest state court affirmed. • SC:Evidence not introducible. The right granted to an accused by the Sixth Amendment to confront the witnesses against him, which includes the right of cross-examination, is a fundamental right.

30. Klopfer v. North Carolina (1967) • Klopfer was tried on a North Carolina criminal trespass indictment ended with a declaration of a mistrial when the jury failed to reach a verdict. After the case had been postponed for two terms, Klopfer filed a motion with the trial court to ascertain when the State intended to bring him to trial. • The State's prosecutor moved for permission to take a " nolle prosequi with leave," a procedural device whereby the accused is discharged from custody but remains subject to prosecution at any time in the future • Klopfer objected order would violate his federal right to a speedy trial, but the trial court granted the motion. • SC: The State denied Klopfer the right to a speedy trial guaranteed to him by the Sixth and Fourteenth Amendments of the Federal Constitution.

31. Washington v. Texas (1967) • Washington was charged with a fatal shooting. His alleged coparticipant was tried first and convicted of murder. Washington sought to secure his coparticipant's testimony for his defense. • Two Texas statutes prevented a participant accused of a crime from testifying for his coparticipant (but not for the prosecution), so the judge sustained the State's objection to the coparticipant's testimony. • Washington was found guilty and the conviction was upheld on appeal. • SC: The right under the Sixth Amendment of a defendant in a criminal case to have compulsory process for obtaining witnesses in his favor applies to the States through the 6th and 14th Amendments

32. Freedom of Religion • Establishment Clause—Government may not establish an “official” religion. • Government, however, has undertaken a number of practices that support religion—churches tax-free, oaths include God,nat’l anthem, coins have God in them • Free Exercise Clause—Government may not place restrictions on the practice of religion (although in may inhibit certain practices)

33. Pierce v. Society of Sisters (1925) • Oregon law required parents to send children to public schools • Law clearly intended to undermine parochial education • SC found the law to be an unreasonable restriction in conflict with the 14th Amendment’s Due Process Clause

34. Everson v. Board of Education (1947)(A.K.A. NJ School Bus Case) • A New Jersey statute authorized local school districts to contract for the transportation of children to schools. Ewing Township authorized a reimbursement to taxpayers using the public bus system in the township to transport their children. Reimbursement was also made to the parents of Catholic school children going to and from parochial schools. A taxpayer challenged the right of the board to reimburse parents of parochial school students. • Critics: Law was tacit support of religion • Issue: Does the statute violate the Fourteenth Amendment and the First Amendment? • Decision: No. (vote 5-4) Busing was “safety” decision.

35. McCollum v. Board of Education (1948) SC struck down released time program in Champaign, IL because it used public facilities Zorach v. Clauson (1948) Court upheld NYC program because it required that religion classes must be held in private places Released TimeAllows public schools to release students from school to attend religious classes

36. Prayers and the Bible in School • Engel v. Vitale (1962): SC outlawed even prayers that are voluntary in school. • Abington School District v. Schempp (1963): Outlawed PA law that required that each school day begin with readings from the Bible and reciting the Lord’s Prayer • Murray v. Curlett (1963): erased Baltimore law • Stone v. Graham (1980): no 10 commandments

37. Engel v. Vitale (1962) • Supreme Court struck down a law approved by the New York Board of Regents requiring students to recite daily a nonsectarian prayer: • "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." • Justice Black's opinion for the Court said that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. Nor was the prayer saved because individual students were allowed to remain silent or be excused from the room.

38. Stone v. Graham (1980) • Stone was one of a group of parents who challenged a Kentucky law requiring the posting of the Ten Commandments in each public school classroom. • At the bottom of the 16”x20” copies was a notation which read “secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western civilization and the Common Law of the United States.” • The copies of the Ten Commandments were purchased with money from private contributions. • SC voted 5-4 that KY law was unconstitutional • Dissent: Justice Rehnquist: laws based on 10 C.

39. Wallace v. Jaffree (1985) • An Alabama law required that each school day begin with a moment of “silent meditation or voluntary prayer”. • A student’s parent sued claiming that the law violated the Establishment Clause by compelling students to pray. It exposed students to indoctrination. • The District Court allowed the practice; Court of Appeals found the practice unconstitutional • This decision illustrates the scrutiny the Supreme Court is willing to use. The intentions of the legislature that passed it was enough to demonstrate its unconstitutionality.

40. Lee v. Weisman (1992) • A Jewish parent in Providence, Rhode Island challenged the local school district's policy of including a prayer in its graduation ceremonies. At the disputed graduation, a Rabbi thanked God for “keeping us alive, sustaining us and allowing us to reach this special, happy occasion." • The Bush administration agreed with the school board which argued that the prayer did not demonstrate a religious endorsement. • By a 5-4 vote, SC declared prayer unconstitutional at HS graduations

41. Student Religious Groups • Equal Access Act of 1984: Any public HS receiving funds must allow student religious groups to meet like any other group would be permitted to • Upheld in Westside Community Schools v. Mergens (1990): HS denied a “Christian Club” permission to form, SC said that was a violation of Establishment Clause • Same deal for public universities, Rosenberger v. Univ. of Virginia (1995)

42. Evolution • Scopes Trial (1925) upheld Tennessee’s law on teaching evolution • SC re-examined issue in 1968 with Epperson v. Arkansas • Also struck down a Louisiana law that required equal instruction in creation science if evolution is taught Edwards v. Aguillard (1987)

43. Seasonal Displays by Gov’t • Lynch v. Donnelly (1984): Pawtucket, RI could include religious displays in its secular-religious mix of a display • County of Allegheny v. ACLU (1989): County seasonal display of a religious symbol alone is unacceptable, since it endorsed Christian doctrine.

44. Chaplains in Congress/State Leg • Daily sessions of Congress and most state leg. Begin with PRAYER • In Marsh v. Chambers (1983), SC allowed these prayers since: • 1) Adults are not susceptible to indoctrination • 2) Prayers have always been there historically

45. Tax ExemptionsWalz v. NYC Tax Commission (1970) • Churches normally receive tax exemptions • Tacit support of religion, since it increases the property tax burden of all • SC decided that it was merely “benevolent neutrality” towards religion • Even so, church schools that practice racial discrimination can be denied tax-exempt status, Bob Jones v. United States (1983)

46. Lemon v. Kurtzman (1971) • Supreme Court struck down a PA law that provided for reimbursements to private schools to cover teacher salaries, textbooks, and materials, required close state supervision • Three part test: 1) Aid must be secular purposes 2) Action must not advance or inhibit religion 3) Must avoid “excessive entanglement” of government and religion

47. Lemon-Related Cases • States can use public funds to laon textbooks to parochial schools, Meek v. Pittinger (1975) BUT………….. • Tax monies cannot be used to pay any part of the salaries of teachers in parochial schools, even if those teachers teach all secular courses. Why? SC stated in Grand Rapids SD v. Ball (1985) that books can be checked for content, but the way a teacher handles a class cannot. • Several cases permit states to offer tax breaks to parents who take their children to religious schools

48. The Free-Exercise Clause Cases • Reynolds v. United States (1879): Morman practicing polygamy was convicted, appealed, SC stated that he had to abide by federal law. • Jacobson v. Massachusetts (1905): Schoolchildren may be required to have vaccinations • McGowan v. Maryland (1961): Blue laws declared legal; businesses may be closed/restricted on Sunday

49. More Free Exercise Clause…. • Oregon v. Smith (1990): Native American was fired from job because he used peyote, and was denied state of Oregon employment benefits; sued because he used it in religious ceremony. • SC: Not an acceptable reason for violating the law. • Several cases have prompted the Supreme Court to state that you cannot be fired or denied unemployment benefits because you quit a job based on your religious beliefs.

50. The Free Exercise of Religion • Following Oregon v. Smith, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) • RFRA required the restoration of the compelling government interest test to sustain legislative burdens on religious practices