Chapter 5

Civil Liberties and citizenship

Civil Liberties

The personal rights and freedoms that the federal government cannot abridge by law, constitution,

or judicial interpretation

What is Freedom of Speech?

Historically – Zenger Case

-Framers of the Constitution

Alien and Sedition Acts

Prior restraint

Constitutional doctrine that prevents the government from prohibiting speech or publication before the fact

NY Times v US (1971)  Pentagon Papers

The government couldn’t block the publishing of info on Vietnam War

Landmark Speech Interpretations

*Schneck v United States (1917)

(clear and present danger)

 *Gitlow v NY (1925)

(bad tendency test)

 *US v O'Brien (1968)

(negative action)

symbolic speech exercise rejected

Texas v Johnson(1989)

struck down state law prohibiting flag burning

Time, Place, Manner

allowances and restrictions

High Schools - a Speech Forum

Tinker v Des Moines  (1969)

Hazelwood District v Kuhlmeier (1988)

Edwards v Aguillard (1987)

struck down Louisiana law forcing a teacher to devote equal time to     "creation science"

College Campus - a Speech Forum

*R.A.V v St. Paul(1992)

 hate crimes law was struck down

(preventing cross burnings)

but….Court revisited it in 2003 and allowed states to keep law banning cross burnings

Libel – false written statements tending to call someone’s reputation into disrepute

Slander – Untrue spoken statements that defame the character of a person

NY Times v Sullivan (1964)

Public officials can be scrutinized openly unless libel can be proven

Obscenity

"What is pornography to one man is the laughter and genius to another"

The Supreme Court on

Lady Chatterly's Lover 1947

Miller v California (1973)

attempted to define obscenity and  confirmed state control of the scope of definition.

(NY, Alabama, Nevada)

                               but

Jenkins v Georgia (1974)

"Carnal Knowledge Case"

                               and

Barnes v Glen Theater (1991)

The Indiana "G - String Law" is instituted when the SC upheld Indiana’s right to ban “all nude all the time”

Court upheld Penn. Law banning

Nude dancing again in 2000

Today

Internet – Cyber porn

Court has struck down regulatory laws

The Communications Decency Act 1995

                                **

Assembly

National Socialist Party

v Skokie (1977)

ACLU defended the American Nazi Party

**"I may not agree with what you say, but I'll defend your right to say it"

Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)

St. Patrick’s Day Parade

Freedom of Religion

"Free Exercise Clause"

"Congress shall make no law...prohibiting the free exercise     thereof..."

*   Reynolds v US (1890) banned        polygamy

*   W.Virginia Board of Ed

v Barnette(1943)

Jehovah Witnesses and the Pledge

*   Wisconsin v Yoder (1972)

Amish Case and School

The Establishment Clause

" Congress shall make no law   respecting an establishment of     religion..... "

*   Everson v Board of Ed (1947)

allowed funding for busing to religious schools, kids are helped

*   Engel v Vitale (1962)

“ Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers, and our country.”

SC ruled 6-3 in 2000

Against a football team prayer

*   The problem of drugs and religious rituals.  (peyote)

The banning was upheld in

Oregon v Smith (1990)

                             however

many states have repealed their laws

Church of the Lukumi Babalu Aye Inc v

City of Hialeah (1993)

The religious rituals of the Santeria

Lemon v Kurtzman (1971)

"excessive government entanglement"

sometimes allowing religious activity

Lynch v Donnelly (1984)

SC allows nativity scenes during Christmas time in a holiday display

Loyalty and Security

Smith Act (1940)

unlawful for any person to advocate the overthrow of US by violence

* Dennis v US (1951) confirmation

McCarran Act (1950) - registration of members of the Communist Party

Communist Party  v Subversive      Activities Control Board (1961)

Albertson v Subversive Activities Control Board (1965)

Brandenburg v Ohio (1969)

Government could punish under

                    The direct incitement test

*speech leading to lawlessness action

                               ***

Due Process of Law

Equal Protection under the Law

( The 14th Amendment guarantees

the Bill of Rights)

(Also the due process clause of the 5^th Amendment)

substantive due process

laws must be reasonable

*   incorporation doctrine 

    the interpretation of the Constitution that holds that the due process clause requires that state and local governments also guarantee those rights         Gitlow v NY (1925)

*   selective incorporation

    A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made applicable to the states via the

14^th Amendment Near v Minnesota (1931)

procedural due process

laws must be enforced fairly

The 4th Amendment

protection against unreasonable searches and seizures

                         "probable cause"

exceptions

@

New Jersey v TLO (1985)

"only reasonable grounds to search"

Vernonia School District v             Acton(1995)

"drug testing was reasonable"

Government authorized wire-tapping and surveillance -------> illegal

(The Pentagon Papers, Watergate)

In 1978, the loosely enforced Foreign Intelligence Surveillance Act requires Federal Investigators to obtain a court order

Wolf v Colorado (1949)

Unreasonable searches and seizures

Mapp v Ohio (1961)

the states were subject to the exclusionary rule preventing police from using illegally seized evidence at a trial

Law enforcement (prosecutors) must issue subpoenas for review of vital material

                               ***

Barron v Baltimore (1833)

-              the Bill of Rights did not apply to the state governments and the SC

-              cannot apply them.

Gitlow v NY State (1925)

*   can't preach or write about the violent overthrow of US

*   Court confirmed the fundamental personal rights of the 14th Amendment from being restricted by the states

Palko v Connecticut(1937)

allowed double jeopardy (5th Amendment protection)in murder trial

Benton v Maryland (1969) overruled it 

Upholding the 5^th Amendment protection

                                **

The Warren Court looked to protect the democratic system by protecting the accused.

(acquittals in criminal cases were linked to economic class)

Rights of the Accused

Mallory v US (1957)

-   federal court case be arraigned without any delay (6th Amendment)

                           Mallory Rule

Gideon V Wainwright(1963)

Right to a Court appointed attorney