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Please refer to your Civil Liberties PowerPoint for the following critical thinking discussion. In your initial post, answer the following questions:Should citizens trust our government to protect our civil liberties? Why or Why Not?Do you think the United States has succeeded in adequately preserving citizens’ rights and freedoms or have we failed? Explain your answer.Are the current rights comprehensive enough or should we consider revision or development of a new set of Amendments/civil rights? (If so, name two new Amendments or rights you would like to see added)?What are your thoughts on fake news in politics? Should there be additional regulations for the media?
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Chapter 4:
Civil Liberties
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Inference – Inference skills enable people to draw conclusions from reasons and
evidence (known as premises). Inference skills indicate the necessary or the very
probable consequences of a given set of facts and conditions. Conclusions,
hypotheses, recommendations or decisions that are based on faulty analysis,
misinformation, bad data or biased evaluations can turn out to be mistaken, even if
they were reached through excellent inference skills.
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Deduction – Deductive reasoning or deduction is the type of logical reasoning
that goes from general to particular. Deductive reasoning moves with exacting
precision from an assumed truth of a set of premises (evidence) to a conclusion
which cannot be false if the premises are true. Deductive validity is rigorously
logical and clear-cut. Deductive validity leaves no room for uncertainty.
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Induction – Inductive reasoning or induction is the type of logical reasoning that
goes from particular to general. This is based on observations which can (in
general) be verified/replicated (and therefore are almost universally true) but the
process has an inherent degree of uncertainty. We use inductive reasoning skills
when we draw inferences about what we think is probably true based on analogies,
case studies, prior experience, statistical analysis, simulations, hypotheticals, and
patterns recognized in familiar objects, events, experiences and behaviors. As long
as there is the possibility, however remote, that a highly probable conclusion might
be false even though the evidence supporting the conclusion is true, the reasoning
is inductive.
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Upon completion of this lesson, students should be able to:
Trace the constitutional roots of civil liberties
Describe the First Amendment guarantee of freedom of religion
Outline the First Amendment guarantees of and limitations on freedom of
speech, press, assembly, and petition
Summarize changes in the interpretation of the Second Amendment right
to keep and bear arms
Analyze the rights of criminal defendants found in the Bill of Rights
Explain the origin and significance of the right to privacy
Evaluate how reforms to combat terrorism have affected civil liberties
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Roots of Civil Liberties: The Bill of
Rights
Civil Liberties
The personal guarantees and freedoms that the government cannot abridge, either
by law, constitution, or judicial interpretation.
Our “Freedom to” Rights
Limitations on the power of government to restrain or dictate an
individual’s actions
IN CONTRAST TO:
Civil Rights
The government protected rights of individuals against arbitrary or discriminatory
treatment by governments or individuals. “Freedom from”….
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Roots of Civil Liberties: The Bill of
Rights
The difficulties that accompany Civil Liberties:
How do we determine boundaries of speech and assembly?
How much infringement on our personal liberties do we want to give the
police or government actors?
What liberties should be accorded to those who oppose war or are
suspected of anti-government activities?
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Roots of Civil Liberties: The Bill of
Rights
The Federalists opposed the Bill of Rights because they believed the need for
these rights was unnecessary.
Federalists Believed:
1) A Bill of Rights was unnecessary in a constitutional republic founded on the idea
of popular sovereignty and inalienable, natural rights.
2) A Bill of Rights was dangerous.
Government has only enumerated (expressed) powers
The framers however did not see government expansion to the
level that it is today.
3) A national Bill of Rights would be impractical to enforce. Validity of the rights
would depend of public opinion and the spirit of the people and the government.
QUESTION: Are any of these points made by the Federalists true? Does a Bill of Rights create ambiguity
or pollute the effectiveness of the Constitution?
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Roots of Civil Liberties: The Bill of
Rights
Bill of Rights
What do these rights consist of?
Contains specific guarantees against encroachment of the new government.
Speech
Press
Religion
Assembly
Self Incrimination
Search and Seizure
Ninth Amendment – Makes it clear that enumerating (expressing) particular rights
through the Constitution or Bill of Rights does not mean that others do not exist.
Tenth Amendment – Defines the basic principles of American federalism in stating
that the powers not delegated to the national government are reserved to the
states or people.
NOTE: These rights only applied to the federal government and not the states.
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
No incorporation of the Bill of Rights to the States until the:
Fourteenth Amendment (Not in the Bill of Rights)
“No State Shall … deprive any person of life, liberty, or property, without due
process of law”
Due Process Clause (origin: The Fifth and Fourteenth Amendments)
Construed to guarantee to individuals a variety of rights ranging from
economic liberty to criminal procedural rights to protections from arbitrary or
unjust state and federal laws.
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How has selective incorporation made
the Bill of Rights applicable
to the states?
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The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
Gitlow v. New York (1925)
States passed sedition laws
It was illegal to speak or write any political criticism that threatened to
diminish respect for the government. The policy of Prior Restraint (restraining of
action before it actually occurs)
Gitlow printed 16,000 manifestos that urged workers to overthrow the
government and was arrested.
Supreme Court ruled that the states were not completely free to limit
forms of political expression BECAUSE there are certain “fundamental
personal rights and liberties” that are protected from impairment by the
Fourteenth Amendment’s due process clause.
Gitlow used the Incorporation Clause to the States:
The due process clause of the Fourteenth Amendment requires that state and
local governments to also guarantee the liberties stated in the Bill of Rights.
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Selective Incorporation and
Fundamental Freedoms
Selective Incorporation
A judicial doctrine where most of the protections found in the Bill of Rights are made applicable to
the states through the Fourteenth Amendment.
A policy that was applied to protect fundamental freedoms
Fundamental Freedoms
The rights defined by the Court to be essential to order, liberty, and justice and
THEREFORE entitled to the highest standard of review.
Palko v. Connecticut
Charged with first-degree murder of two police officers. But found guilty of a lesser charge of
second-degree murder.
Palko was retried and found guilty of first-degree murder. Palko argued double jeopardy.
Supreme Court disagreed with Palko, states are bound only to rights that were related to liberty.
Selective Incorporation applies to: Press, Speech, Assembly and some other liberties.
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First Amendment Guarantees: Freedom
of Religion
The First Amendment
Imposes a number of restrictions on the federal government relating to civil liberties, including
religion, speech, press and assembly.
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof”
The Breakdown of the First Amendment:
The Establishment Clause
Directs the national government not to sanction (create) an official religion.
The Free Exercise Clause
Prohibits the United States government from interfering with a citizens right to
practice his or her religion.
Not an absolute right
QUESTION: What is protected? Is the smoking herbal plants during a religious ceremony allowable? What
about the sacrificing of a human being in a religious ceremony?
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First Amendment Guarantees: Freedom
of Religion
The Court has held fast to the rule of strict separation between church and state
when issues of mandatory prayer in school are involved.
Engel v. Vitale (1962)
Recitation in public school classroom of a brief non-denominational prayer or prayer drafted
by the local school board was unconstitutional.
Abington School District v. Schempp (1963)
State mandated Bible reading or recitation of the Lord’s Prayer in public school was
unconstitutional.
Lemon v. Kurtzmann (1971)
Created a three part test over behavior.
1) Must have a legitimate secular purpose
2) Must neither advanced nor inhibited religion
3) Does not foster an excessive government entanglement with religion
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First Amendment Guarantees: Freedom
of Religion
Christian Legal Society v. Martinez (2010)
A state school could deny recognition and funding to the Christian Legal Society
because the group limited its membership to those who shared a common faith orientation.
However, this standard is less stringent today.
Vouchers (government money) are given to students to pay for
private religious school.
Prayer is still not allowed whether originated by a school or a student.
The Free Exercise Clause
Congress shall make no law…prohibiting the free exercise [of religion].
PROMISES (not a guarantee) individuals the right to be free from
governmental interference in the exercise of their religion.
NOT ABSOLUTE: Rituals and services that are traditionally religious may be still regarded as illegal even
though they have religious origin (using drugs or human sacrifice).
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First Amendment Guarantees: Freedom
of Speech, Press, Assembly, and Petition
Our freedoms have been modified in times of government turmoil by the Legislative,
Executive, and Judicial branches.
Freedoms of Speech and the Press
Democracy depends on the free exercise of ideas.
“Congress shall make no law…abridging the freedom of speech or of the
press”
AGAIN: not interpreted as an absolute ban
Hierarchy of protections:
MOST – thoughts
INTERMEDIATE – words (content and purpose closely looked at)
LEAST – actions
The Alien and Sedition Acts
Prior restraint – Constitutional doctrine that prevents the governments from prohibiting speech or
publication before the fact; generally held to be violations of the First Amendment.
The acts were clearly unconstitutional but used throughout the Civil War.
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
First Amendment Guarantees: Freedom
of Speech, Press, Assembly, and Petition
World War I and Anti-Governmental Speech
The Espionage Act
Created to prevent the interference of military operations, military enlistment but mainly forbade
people from promoting insurrection and desertion.
Shenck v. U.S. (1919)
Create the Clear and Present Danger doctrine:
Congress had a right to restrict speech “of such a nature as to create a
clear and present danger that will bring about the substantive evils that
Congress has a right to prevent”.
Brandenberg v. Ohio (1969)
The direct incitement test:
Advocacy of illegal action is protected by the First Amendment unless imminent
lawless action is intended and likely to occur.
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Protected Speech and Press
The expression of ideas through speech and the press are cornerstones of a free
society.
Protection of Speech and the Press
In Reference to the limiting the prior restraint (the limiting of speech before it happens)
New York Times v. United States (1971)
Could not prevent the New York Times (press) from publishing secret
Department of Defense documents, even though they were illegally furnished
to the New York Times.
Nebraska Press Association v. Stuart
In regards to preventing speech, such actions by government carry “a heavy presumption
against constitutionality”
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Protected Speech and Press
Symbolic Speech
Symbols, signs, and other methods of expression generally considered to be
protected by the First Amendment.
Symbolic speech – “free trade of ideas”
Stromberg v. California (1931)
Flying an opposing countries flag in opposition to governmental action is
constitutional.
Tinker v. Des Moines Independent Community School District (1969)
Clothing (black arm bands) that opposes the Vietnam War is
constitutional.
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Protected Speech and Press
Hate Speech
RAV v. City of St. Paul (1992)
Ordinance that made it a crime to engage in speech or action likely to
“arouse”, “alarm” or create “resentment” in the basis of race, color,
creed, religion, or gender.
FACTS: Teenager burns cross in black family’s yard. The teenager could
not be charged because the ordinance was deemed unconstitutional.
used
TODAY: This type of act would be considered illegal because it was
as intimidation based on race, which is illegal and not protected by the
First Amendment.
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Unprotected Speech and Press
Some forms of expression are not protected.
Speech NOT protected by the 1st Amendment (no social value)
1) Libel and Slander
2) Fight Words
3) Obscenity
4) Lewdness
Libel and Slander
Libel – WRITTEN statement that defames the character of a person.
Slander – SPOKEN statement that defames the character of a person.
In the United States the victim has to show that the statement is untrue.
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Unprotected Speech and Press
Lower protections for a public person or official
New York Times v. Sullivan
First major libel case by the Supreme Court.
Alabama state court found New York Times guilty of libel for saying
Alabama officials physically abused African Americans during civil rights
protests.
Supreme Court overturned convictions:
Libel against public figures or officials could stand
only if there was a showing of “actual malice”, or
knowing disregard for the truth.
Fighting Words
Words that “by their very utterance inflict or tend to incite an immediate breach of the peace”
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Unprotected Speech and Press
Obscenity
What is obscenity?
Lower courts must ask:
“whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by state law”
“whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value”.
Location does matter when making this decision. What is acceptable in New York City might not
be acceptable in Maine or Mississippi.
Many laws are based on context. The ban of pornography is not constitutional but
child pornography is banned because the government has a right to protect children.
QUESTION: Is pornography obscene or does it have some artistic, scientific, or educational
value?
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Freedoms of Assembly and Petition
“Peaceful assembly for lawful discussion cannot be made a crime”
DeJonge v. Oregon
Applied first Amendment freedoms of assembly to states.
The freedom of PEACEFUL assembly is directly related to the freedoms of
speech and of the press.
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The Second Amendment: The Right to
Keep and Bear Arms
Expansion of Gun Rights
Historically:
Most colonies required all white men to keep and bear arms, and all white men of the colonies were
deputized to defend their settlements against Indians and European powers (Militia).
The right to “keep and bear arms” is closely held to the idea of the ability to revolt against
government tyranny.
Barron v. Baltimore (1833)
Besides stating that the Bill of Rights was not incorporated to the states, but ALSO
restricted the possession of weapons to slaves.
Dred Scott v. Sandford (1854)
Right to own and carry arms are a basic right of citizenship
But not for slaves
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The Second Amendment: The Right to
Keep and Bear Arms
Creation of the National Firearms Act (designed to fight organized crime)
Created a tax on automatic weapons and sawed off shotguns.
U.S. v. Miller
Citizens had a constitutional right to ordinary militia weapons but not
automatic weapons or sawed off shotguns.
The city of Washington D.C. at one time had a ban on personal firearms.
D.C. v. Heller (2008)
Protects the rights of individuals to own a firearm for personal use in
Washington D.C.
HOWEVER, the ban of automatic weapons and large capacity
magazines was still legal.
The Court believed these limitations were within the scope of the states to limit.
Second Amendment was incorporated to the states.
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The Fourth Amendment and Searches
and Seizures
Writs of Habeas Corpus
“bring the body forth”: Court order in which a judge requires authorities to prove that a prisoner
is being held lawfully and allows for a prisoner to be freed if the judge is not persuaded by the
governments case. Also provides for defendants to know what charges are being brought
against them.
The Fourth Amendment
“The right of the people to be secure in their person, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and persons or things to be seized”.
Protects from unreasonable searches and seizures
Was supposed to prevent federal government searches but changed to
allow police searches when:
People are being arrested
Things in plain view of arrested person
Place where arrested person can touch and reach.
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The Fourth Amendment and Searches
and Seizures
Reasonable Suspicion
This is a much lower standard than probable cause.
Used in warrantless searches often where police suspect that someone is
committing or is about to commit a crimes.
Searches can be obtained without a warrant if consent is obtained.
QUESTION: Is the consent of all the occupants necessary to search a home?
Warrants:
Must be obtained by a “neutral and detached magistrate” prior to conducting
more extensive searches of houses, cars, offices, or any other place of privacy.
Applies to all state actors
Vehicles:
Mobility creates a problem.
Searches have less amount of scrutiny because of this mobility factor.
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The Fifth Amendment: SelfIncrimination and Double Jeopardy
The Fifth Amendment
Imposes a number of restrictions on the federal government with respect to the rights of persons
suspected of committing a crime.
Self-Incrimination
“No person shall be … compelled in any criminal case to be a witness against
himself”
“Taking the Fifth or Pleading the Fifth”
Miranda v. Arizona (1966)
Supreme Courts response to coercive efforts to contain a confession.
Arrested for kidnapping and rape
Identified by victim
Questioned but was never given his rights.
“Prior to any questioning, the person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed”. Your Miranda Rights
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The Fifth Amendment: SelfIncrimination and Double Jeopardy
Double Jeopardy
“Nor shall any person be subject for the same offense to be twice put in jeopardy of
life or limb”.
HOWEVER, State and Federal governments can charge you with the
same crime and you would have to serve the penalty for each conviction
independently.
FOURTH AND FIFTH AMENDMENT:
Exclusionary Rule
Prohibits police from using illegally seized evidence in trial.
Weeks v. U.S. (1914)
Prevents police and prosecutors to use “fruit of the poisonous tree”.
Illegally seized or acquired evidence.
Mapp v. Ohio (1961)
Extends the protections of the Fourth and Fifth Amendments to the states.
Problematic: “deflects the truth-finding process and often frees the guilty”.
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The Sixth Amendment and the Right to
Counsel and Jury Trials
Sixth Amendment
Sets out the basic requirements of procedural due process for federal courts to follow in criminal
trials.
Includes:
Speedy and public trial
Impartial Juries
Trials in state where crime was committed
Right to favorable witnesses
Right to Counsel
The Sixth Amendment provides for jury trials.
Gideon v. Wainwright
Having “Lawyers in criminal cases are necessities, not luxuries”. This case also applied the Sixth
Amendment to the states.
8
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The Eighth Amendment and Cruel and
Unusual Punishment
The Eighth Amendment
“Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishment
inflicted”
The United States is the only western nation with a death penalty.
Furman v. Georgia (1972)
Death penalty was used in an arbitrary way which is unconstitutional.
Gregg v. Georgia (1976)
The removal of the arbitrary use of the death penalty created a
constitutional use of the death penalty.
Protecting the Wrongfully Convicted
Some states have abolished the death penalty.
The Innocence project: uses DNA to check convictions and has caused the
release of hundreds of convicted people.
QUESTION: Does the death penalty work?
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The Right to Privacy
The right to be left alone; judicially created principles encompassing a variety of
individual actions protected by the penumbras or shadows cast by several
constitutional amendments, including the First, Third, Fourth, Ninth, and
Fourteenth Amendment.
Birth Control
Griswald v. Connecticut
The challenge to the constitutionally of an 1879 Connecticut law prohibiting the
dissemination of information about and/or the sale of contraception.
Several unstated liberties to aid in this protection.
The court create a zone of privacy.
The Supreme Court said that this law violated marital privacy.
Later, expanded to unmarried couples.
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The Right to Privacy
Abortion
Roe v. Wade
The state of Texas did not allow legal abortions.
This case divided pregnancy in three sections
1st Trimester – absolute right to terminate
2nd Trimester – state interest to regulate abortion on
the basis of health of mother.
3rd Trimester – When fetus becomes viable, life is
paramount.
Some Limits:
Limits have been placed on minor women, who may have to wait 24 hours or consent from a parent.
QUESTION: Viability has changed due to technology. Babies are able to survive much earlier. Should
the steps of Roe v. Wade be revaluated?
QUESTION: Who is Norma McCorvey? And what happened to her?
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The Right to Privacy
Homosexuality
The use of sodomy laws use to criminalize the act of being homosexual.
The Court in Lawrence v. Texas found sodomy laws used in this manner
against homosexuals was unconstitutional.
Equal Protection under the Fourteenth Amendment
QUESTION: What is sodomy described as? It is probably not what most people think.
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
In your group choose a Supreme Court case from the lesson and examine it
further
Answer the following questions about your case:
1. Which amendment from the Bill of Rights does this case relate to and why?
(It might be more than one amendment)
2. What factors led up to the case?
3. The result of the case? What did the Supreme Court decide in this case?
4. What effect does this case have on society?
5. Do you agree with this decision? Why or why not?
6. What could have been some alternatives to this decision?
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