Module 5: Civil Liberties

EXAM: Theory vs Reality of American and Civil Realities

Theory: very supportive of civil liberties and democratic values

Reality: only support these values for the individuals, groups, and ideas that they support and are hesitant to extend them to people and ideas that they do not support

EXAM: Where are Civil Liberties most found in?

Bill of Rights (first 10 amendments of Constitution)

EXAM: Why was the Bill of Rights added to the Constitution?

Bill of Rights were promised and later added to gain support for the Constitution

EXAM: What was the original purpose of the Bill of Rights?

prevent abuses by the national government only

• ex) Barron v. Baltimore

EXAM: Incorporation Doctrine

a principle in which the Supreme Court has held that most guarantees in the Bill of Rights limit state and local government by making these guarantees applicable to the states through the Due Process Clause

EXAM: The Incorporation Doctrine occurred ___ from ___ to ___

C)

gradually

1925 to 1972

EXAM: What is the first Amendment Freedoms?

D) Speech, Press, Religion, Assembly

Sedition Speech

speech that encourages rebellion against the government

Sedition Act

resulted in the conviction of 10 newspaper editors that were critical of President John Adams especially his foreign policy positions

EXAM: Scheneck v. United States

Background: Schenck distributed 15,000 leaflets comparing military conscription to slavery and urged readers to assert their rights. Schenck was arrested for violating the espionage and sedition acts of 1917 and 1918.

During normal times speech against government would be protected, however during a war time emergency, they are a Clear and Present Danger  that government and society have a right to suppress.

• key provision: Supreme Court established the Clear and Present Danger test for speech in this case

EXAM: Gitlow v New York

Background: Gitlow published a revolutionary tract urging workers to revolutionary mass action and to achieve a dictatorship of the proletariat. He was arrested under the New York criminal anarchy act of 1902.

Supreme Court incorporated freedom of speech in this case

• New York must respect speech rights to the same degree as the national government

• Even though Gitlow lost, the idea that the Bill of Rights might now begin to apply to sub national government

EXAM: Brandenburg v Ohio

affirmed speech that was not accompanied by conduct, and demonstrates a wide latitude for free speech

• Supreme Court (5-4 decision) overturned the conviction of a KKK leader advocating revenge on public officials

  • due to the KKK leader only doing speech, not actions

Symbolic Speech

nonverbal speech → freedom of expression

EXAM: Tinker v. Des Moines

Background: Mary Tinker was suspended from school for wearing a black arm band which her math teacher claimed was disruptive to the learning environment.

The significance of this case is that the Supreme Court expanded the definition of speech to freedom of expression.

EXAM: Cohen v. California

Background: Cohen wears a Levi’s type jacket with the words F**k the Draft” sewn on the back. Cohen is sentenced to 30 days in county jail for disturbing the peace.

The Supreme Court overturned his conviction and ruled the jacket was an instrument of “Symbolic Speech”

EXAM: US v O’ Brien

Background: O’ Brien burned a draft card

The court upheld the conviction ruling that it was draft obstruction and the destruction of government property.

• The law was narrowly tailored and only covered conduct not speech.

• The court also reasoned that draft cards were critical to raising a military giving the government a compelling interest in preventing their destruction.

EXAM: Texas v. Johnson

Background: Johnson who had burned a flag in Dallas Texas

• Supreme Court overturned Johnson’s conviction

  • This narrow 5-4 vote by the court was unpopular and as a result the Congress unsuccessfully attempted to add a Constitutional amendment protecting the flag from being burned.

EXAM: Pornography vs Obscenity

The Supreme Court has ruled that pornography is protected by the first amendment but obscenity is not. Obscenity is criminal behavior.

• When does pornography pass the line and become obscene?

EXAM: Roth v. US

• first case in which the U.S. Supreme Court ruled that obscenity is not protected by the first amendment

• ruled that to be obscene material must be utterly without redeeming social value or importance

Stanley v Georgia

Supreme Court ruled that the private possession of pornography is protected in this case

EXAM: Miller v. California

• ruled that “Community Standards” can define obscenity

  • international, national, community, individual

• acknowledgement by the court that they could not come up with a national standard for obscene material

• communities could ban or censor materials unless they had “serious value” attached

  • literary, artistic, political, scientific

Jenkins v Georgia

Background: Local authorities arrested a local theatre manager that showed an “R-rated” movie called Carnal Knowledge. The local jury found the movie obscene.

• unanimous Supreme Court disagreed claiming that the movie had been nominated for an academy award and had both serious literary and artistic value

• ruled that local juries do not have unlimited discretion in deciding what is obscene

Ferber v New York

• Supreme Court ruled that child pornography is obscene and not protected by the First Amendment

  • state has a compelling state interest in preventing the exploitation of children

Ashcroft v Free Speech Coalition

ruled that virtual child pornography is protected by the first amendment because it doesn’t involve real children

Censorship During Colonial Period vs After

During: heavy censorship of the press; newsmen had to turn in their papers for approval before publication

After: has given the adult press considerable protection from Censorship/Prior Restraint; however government can more easily censor what they call the children’s press or the press of those below college age

EXAM: Near v Minnesota

Supreme Court “incorporated” freedom of the press in this case and protected a racist newspaper called “The Saturday Press” from censorship

EXAM: New York Times v United States

allowed the New York Times to publish a classified Top Secret government study of the Vietnam War over the objections of President Nixon who had sought a court injunction to prevent the publication of the document (Pentagon Papers)

EXAM: Hazelwood v Kuhlmeier

ruled that the Children’s Press has fewer rights than the adult press

• t gave the principal wide censorship powers over high school papers

Libel

Published material that damages a person's reputation in an untruthful and malicious way

• not protected by the First Amendment

Standard:

• Was it false?

• Was it knowingly published as false?

• Was it malicious?

• Is it trying to convince that false is true?

EXAM: The landmark case New York Times v Sullivan deals with what concept?

Libel

Falwell v Hustler Magazine

• a parody of the Rev Falwell having sex with his mother was not libel

• There was not an attempt the reader into believing the falsehood and therefore no libel

No Establishment Clause

• No “Wall of Separation“ between church and state in Constitution

• Is government promoting or inhibiting religion?

EXAM: Everson v Board of Education

• Supreme Court “incorporated” the establishment clause in this case

• Court upheld a New Jersey transportation reimbursement program for both private and public school students claiming that the primary purpose of the law was secular

EXAM: Engel v Vitale

ruled that a New York nondenominational school prayer is an unconstitutional establishment of religion

EXAM: Lemon v Kurtzman

Established “Lemon Test“:

1) The law must have a secular purpose

2) The law must not advance or inhibit religion

3) The law must not entangle government “excessively” with religion.

Free Exercise Clause

Court distinguishes here between “Belief and Practice”

• Individuals can believe whatever they want but are not always free to act on those beliefs.

Due Process:

When the government prosecutes an individual, it must give him/her a set of procedures (process) that is fair and civil (Due)

4th Amendment

Protection from unreasonable searches and seizures

EXAM: Mapp v Ohio

Warren incorporated the 4th amendment and extended the exclusionary rule to state and local authorities

• exclusionary rule: prosecutors cannot introduce evidence that is illegally obtained

EXAM: US v Leon

Court ruled that there are “Good Faith” exceptions to the exclusionary rule

• the court would allow a search as long as there is a reasonable expectation that the officers were acting in good faith.

Florida v JL

rules that the police in Miami cannot stop and frisk a suspect based only on an anonymous tip

• demonstrates that there are limits to police powers

• Court ruled that if they allowed this search it would expose American society to widespread and persistent police badgering

5th Amendment

Protection from self-incrimination and double jeopardy

Escobedo v Illinois

Background: Escobedo when arrested told the police that he wanted his attorney present during questioning and wanted to remain silent until his attorney was present. The police denied both requests and after several hours of interrogation confessed to a murder.

• Warren Court overturned the conviction declaring that the confession had been coerced when they denied Escobedo his 5th and 6th amendment rights

Miranda v Arizona

established the Miranda Rule: “You have the right to remain silent, anything you say can and will be used against you in a court of law”

EXAM: 6th Amendment

Right to Counsel/Lawyer/Public Defender

Gideon v Wainwright

established the right to counsel for the indigent or poor

Ramos v Louisiana

for serious offenses a unanimous verdict is also required in state cases

8th Amendment

Protection from “Cruel and Unusual Punishment”

EXAM: Most executions occur in the ___

South

How many states have the Death Penalty?

About ½

27 has death penalty, 23 doesn’t

McCleskey v. Kemp

• defense claimed that the death penalty was Cruel and Unusual

• used statistical data to claim that the state of Georgia was using the death penalty in a racially discriminatory way

Virginia v Atkins

Supreme Court rules that states cannot execute “mentally retarded” defendants

Roper v Simmons

• The state of Missouri was not allowed to execute a 17 year old murderer.

• The court ruled that states could only execute murderers who were at least 18 years of age when they committed the crime.

Kennedy v Louisiana

Supreme Court ruled that Louisiana could not execute a child rapist