Unit 3a

Civil Liberties vs Civil Rights

• Civil liberties are things the governments can’t do to you 

• Civil rights are things the government must do for you

• Your civil liberties are found in the bill of Rights

• Where do our “rights” come from?

  • God 

  • John Locke called them your natural rights 

    • “Life, Liberty, and Property”
      
      

• Why does the government exist 

  • To protect your national rights

  • If the government stops protecting your rights, they have broken the social contract and you have the right to overthrow them 

The Bill of Rights

• The Constitution would not have been approved had theFederalists not promised to add the bill of rights.

• Bill of limits 

  • “Congress shall make no law . . .”

  • Hamilton said the Bill of Rights was stupid, because giving them a list of things they cant do means they are probably going to do them(teenager)** 

• Madison started with over 200 recommendations 

  • Father of the constitution 

• Presented 17 amendments to congress

• 12 were presented to the states

• 10* were ratified

  • There was no deadline on when the amendments can be ratified

• Did not put a limit on states’ power

  • As originally written, the Bill of Rights only applied to the federal government

• Page 41

• ******The 27th amendment was one of the original 12 but took over 200 years to be ratified

Balancing Liberty with Public Safety (OMG)

• What rights were TAKEN during Covid-19 pandemic?

  • Freedom of Religion (1st), Freedom of Assembly (1st)

  • Bill of Rights can be suspended in the name of public safety

• Should the government be able to restrict our rights in the name of public safety

• What about in the case of emergencies? 

Incorporation***** (THIS WILL BE ON THE AP EXAM) 

• Incorporation of the Fourteenth Amendment

  • Incorporation Theory: The view that most of the protections of the Bill of Rights apply to state governments through the Fourteenth Amendment’s due process clause

  • Basically: The Bill of rights apply to the states because of the fourteenth amendment. 

  • See chart on page 313

FREEDOM OF RELIGION

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof””

• Establishment Clause

  • The Separation of Church and State

  • Jeffersons quotes, “wall of separation of church and state” 

  • Religious intolerance in early years of colonies

  • Aid to Church-Related Schools

    • Aid must be secular: lunches, textbooks, diagnostic services for speech and hearing problems, standardized tests, transportation, computers, and internet access 

      • Secular - IT MUST NOT HAVE ANYTHING TO DO WITH RELIGION 

  • The Lemon Test

    • From the 1971 case of Lemon v. Kurtzman

    • All laws under the establishment clause are not subject to a three-part test 

      • Aid has to be secular in aim 

      • Cannot have the primary effect of advancing or inhibiting religion

      • The government must avoid “an excessive entanglement with religion” 

• Free Exercise Clause

  • Guarantees the free exercise clause of religion; restrained when religious practices interfere with public policy.

    • EX: the ability of school districts to select texts for students and the requirement of vaccinations for school enrollment 

  • Does this mean no type of religious practice can be prohibited or restricted by the government?

    • No.

    • Religion cannot make legal what would otherwise be illegal

  • Wisconsin v. Yoder

    • Forcing Amish students to attend school past the eighth grade violates the free exercise clause 

School Prayer

Engel v. Vitale, 1962

Supreme Court ruled prayer, scripture reading, and Lord’s Prayer not be done in public school

Moment of silence is OK as long as it is secular

Unconstitutional to have religious leaders lead prayer at graduation

Students cannot use PA system for prayer before game

Ten Commandments

Some say they go beyond religion and represent foundations of American law

The Supreme Court said Ten Commandments could not be posted in classrooms. 

Chick fil a 

Those calories don’t count cuz it's god’s chicken

You’re just in time to talk about human sacrifice

Freedom of Religion in Schools

• Evolutions

  • Some states have refused to teach evolution

  • Courts ruled it must be taught

  • Disclaimers and stickers

  • FYI: Scopes Monkey Trial

• Religion Speech and Meetings

  • If you let one group meet, you got to let them all

Engel V. Vitale

• New York required* all students to pray before School (They could opt out)

• Constitutional Issue

  •  Establishment clause 

• Court's ruling 

  • No prayer in public schools

Wisconsin V. Yoder

• Amish Kids were required to go to highschool, which went against their beliefs.

• Constitutional Issues

  • Free exercise clause 

• Court’s ruling

  • Amish children could stop going to school after 8th grade

Freedom of Speech

• Symbolic speech

  • Time, Place, and Manner Test

  • Tinker v. Des Moines School District

• Balance of social order and individual freedom

  • Slander/defamation

    • How much can you say about a person before they can sue you? 

  • Obscenity (the miller test)

    • What is art? What is the naughty corn 

  • Schenck v. US 

Defamation in writing

• Libel

  • Libel is written, Slander is spoken

• One-on-one vs the presence of a 3rd party or the public

• Actual malice

  • Public figures must meet higher standards than ordinary people to win a libel suit

• Celebrities and the National Enquirer

A Free Press versus a Fair Trial

• Gag Orders

  • The right of a defendant to a fair trial supersedes the right of the public to “attend” the trial

• Trump gag orders

Films, Radio, & TV

• Freedom of the press is no longer limited to just the print media, though broadcast media do not receive the same protection as print media

• Rating System

  • TV

  • Movies

  • Streaming 

• Federal Communication Commision (FCC) regulations

  • Janet’s “wardrobe malfunction”

  • Bono’s “Bleeping brilliant award

• Difference between broadcast and cable/satellite 

  • TV & Radio 

Prior Restraint

• AKA censorship

• New York times v US, 1971 (the pentagon papers)

• Wikileaks. You’re welcome

• Edward Snowden

Quiz

• Engel v. Vitale

  • Background: Prayer in school

  • Constitutional issue: 1st Amendment establishment clause

  • Ruling: No prayer in public school

• Wisconsin v. Yoder

  • Background: Amish kids going to school past 8th grade

  • Constitutional issue: Free exercise clause

  • Ruling: Amish kids don't need to go to school past 8th grade

• Tinker v. Des Moines

  • Background: Students wore clothes to protest the vietnam war

  • Constitutional issue: 1st amendment freedom of speech

  • Ruling: symbolic speech is protected by the 1st amendment

• Schenck v. US

  • Background: Schenck was handing flyers against the draft out and was arrested under the Espionage Act 

  • Constitutional Issue: 1st amendment freedom of speech

  • Ruling: the government can restrict your speech if there is a clear and present danger

• New York TImes v. United States “Pentagon Papers” Case

  • Background: Daniel Ellysburg, a military analyst, leaked information about the vietnam war to the press 

  • Constitutional Issue: Freedom of the Press

  • Ruling: The government does not have the power of prior restraint 

• McDonald v. Chicago

  • Background: OLD MCDONALD HAD A GUN, BANGI BANG BANG BANG BANG

  • Constitutional Issue: 2nd amendment

  • Ruling: 2nd amendment now applies to the states 

• Gideon v. Wainwright

  • Background: Gideon was arrested for stealing from a bar, he wanted a lawyer but wasn't given one 

  • Constitutional Issue: 6th Amendment, right to an attorney

  • Court’s ruling: Everyone has the right to an attorney, if they can’t afford one, the state gives them one. 

• Barron v. Baltimore (1833) (No longer upheld) (1833) 

  • Background: 

  • Constitutional Issue: The Bill of Rights (5th amendment, eminent domain)

  • Ruling: The Bill of rights  did not apply to the states 

• Gitlow v. New York

  • Background: Gitlow was arrested for distributing a “Left Wing Manifesto" that called for the establishment of socialism

  • Constitutional Issue: 1st amendment freedom of speech

  • Ruling: The court incorporated 1st amendment to the states 

• Lemon v. Kurtzman (The Lemon Test)

  • Background: Someone was eating too many lemons because life gave it to them and they forgot to make lemonade 

  • Constitutional Issue: 1st amendment, establishment clause

  • Ruling: taxpayer funds can only be given to religious if it is for secular reasons (lemons are sour and are not to be eaten)

• Mapp v. Ohio

  • Background:

  • Constitutional Issue: 4th amendment, no illegal search and seizure

  • Ruling: Courts applied the exclusionary rule to the states (Any illegally obtained evidence cannot be used in court) 

• Miranda v. Arizona 

  • Background:

  • Constitutional Issue: 5th amendment, right to remain silent 

  • Ruling: Cops have to tell suspects their right to remain silent

Second Amendment, Rights to Bear Arms and Balancing Individual Freedoms With Public Order & Safety

Federalism & Gun Policy

• Gun laws fall under the police powers of the states

• The National Firearms Act (1934)

  • Banned sawed-off shotguns and fully automatic guns

• Gun Control Act of 1968

  • Ended mail order of guns, banned gun ownership by felons

• National Rifle Association

• District of Columbia v. Heller (2008) – The Supreme Court ruled the 2nd Amendment protects an individual’s right to own a gun outside of militia service

• McDonald v. Chicago (2010) – The Supreme Court ruled the Second Amendment’s right to keep and bear arms for self-defense in one’s home is applicable to the states through the 14th Amendment. 

Gun Rights vs. Public Safety

• After the Newtown, Connecticut shooting, President Obama allowed the Social Security Administration to flag mentally disabled Social Security recipients on the national background check registry.

• President Trump reversed the order

THE DEATH PENALTY 

• Is the death penalty a useful method for dealing with the worst criminals?

• Is the death penalty constitutional 

  • Furman v. Georgia, 1972

  • Gregg v. Georgia, 1976

• Does the death penalty violate the 8th Amendment’s protection against cruel and unusual punishment

• The 5th & 14th Amendments say the government cannot take your life, liberty, or property without due process of law.

  • Does that mean they (the government) can take your life if due process has been followed.

Death Penalty Today

• 31 states & the federal government allow the death penalty.

• The Court has outlawed the death penalty for the mentally handicapped and for those under 18 years of age (at the time of the murder)

• Recently, DNA testing has led to the freeing of about a hundred death row inmates who were wrongly convicted, throwing doubt on the death penalty.

Due Process

• Procedural

  • Addresses the manner in which the law is carried out

• Substantive

  • Addresses the essence of the law (whether the point of the law violates a basic right to life, liberty, or property)

Search & Seizure

• Fourth Amendment prevents law enforcement from conducting unreasonable searches and seizures

  • Probable Cause

• The exclusionary rule**

  • Weeks V. US (1914) 

  • The prohibits the admission of illegally seized evidence

  • Mapp v. Ohio (1961)

  • “Inevitable discovery” and “good faith” exceptions. 

• Special Situations

  • No warrant if police sees person breaking the law

  • No warrant for trash placed outside house

• K9 Units

  • If a dog “hits” on a car or person the officer has probable cause to search

  • Police cannot walk the dogs on to people’s porches in hopes of a hit. 

• Cars and Schools

  • School officials don’t need probable cause to search (New Jersey v. TLO, 1985)

  • Police can search cars where they have probable cause that contraband is inside

• Sporting Events and airlines

  • Security can check bags without a warrant. 

• Cell Phones

  • Law enforcement must have a warrant to search for data on cell phones

• GPS Trackers

  • Law enforcement must have a warrant to place a GPS tracker on a suspect’s car

Bulk Collection of Telecommunication Metadata

• After 9/11, the government and cell phones companies cooperated to gather citizens’ cell phone data

• The NSA created PRISM which forced ISP to hand over information related to Internet activity and communication

• Metadata

• 2015 USA FREEDOM Act now requires the government to have a warrant to get the data

Rights of the Accused

• Fifth Amendment

  • No coerced confessions

  • No compulsory self-incrimination

  • Right to remain silent

  • No double jeopardy

• Video Recording of Interrogations 

  • Such a procedure satisfies Fifth Amendment requirements

• Miranda v. Arizona: requires the police to inform suspects of their rights (1966).

• Exceptions to the Miranda Rule. 

• These include a “public safety” exception, a rule that illegal confessions need not bar a conviction if other evidence is strong, and that suspects must claim their rights unequivocally.

• Sixth Amendment

  • Legal Counsel (Gideon V. Wainwright 1963)

  • Informed of charges

  • Speedy and Public Jury Trial

  • Impartial Jury by one's peers. 

• Eighth Amendment

  • Reasonable Bail

  • No cruel or Unusual Punishment 

Miranda v. Arizona, 1966

• You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you. Do you understand these rights as I have read them to you?

Due Process and the Right to Privacy

Privacy Rights

• There is no explicit Constitutional right to privacy, but rather the right to [privacy is an interpretation by the Supreme Court. 

• From the First, Third, Fourth, Fifth, and Ninth Amendments

• The right was established in 1965 in Griswold v. Connecticut

  • About Birth Control.

  • Patient confidentiality

• Roe v. Wade

  • In Roe v. Wade, the court held that governments could not totally prohibit abortions because this violates a woman’s right to privacy

  • Government action was limited depending on the stage of pregnancy

• The controversy continues

  • The Hyde Amendment

    • Supposed to ban federal money being used on abortions

  • Required ultrasound

    • Court struck it down for putting too much emotional stress on the woman

  • 300 day waiting period

    • Already would have had a baby.

  • Mississippi, Arkansas, Texas

    • Southern states started purposefully passing laws that conflicted with Roe v. Wade

    • Did this so it would get challenged, get to the supreme court, and get Roe v. Wade overturned. June 2022

• Dobbs v. Jackson Women’s Health Organization

  • Overturned Roe

• Returned power over abortion to the states

• Trigger laws

Privacy Rights in an Information Age

• Shoppers (rewards) card

• Facebook, Instagram, Twitter, Sapchat, Tiktok, etc

  • Algorithms are always watching you. 

  • Tiktok knows everything. 

  • Everything is listening

    • Always. 

• Netflix

• Amazon

• Gmail

• Cookies

  • Tracking software on web browsers 

  • Through cookies, websites know previous websites you’ve been to. Used for ad targeting. 

  • Trail of cookie crumbs of places you’ve been. 

• History

  • You are not actually clearing your history 

  • You are never incognito

  • Your internet service provider KNOWS EVERYTHING YOU’VE LOOKED UP.

• IP Address (VPN)

  • Can be used to get around things, used for safety and privacy. 

  • Be careful with free wifi