Civil Liberties

Guaranteed freedoms for individuals and protections from government action

BILL OF RIGHTS

Anti - federalists demanded this!
Protects individual liberties and limits the power of the federal government
- Does not give us rights
- Limits governmental power
Continually be interpreted!
- Barron vs. Baltimore - 1830s - federal government is limited to the federal government only

SELECTIVE INCORPORATION

Incorporation - Application of the Bill of Rights to the States
14th Amendment (1868)
- Established citizenship for every person born in the US
- No state shall abridge the privileges and immunities of citizens
- No state shall deprive any person of life, liberty, and property without due process of law
- Nor deny equal protection of the laws
States can't deny a person of due process
1924 Gitlow vs. United States
- Looked at the word LIBERTY in the 14th Amendment
- States cannot deny people their fundamental liberties
- Guarantees the Bill of Rights to the states on a case by case basis
- Restricted STATE power, protected INDIVIDUAL rights
2019 - Timbs vs. Indiana - incorporated excessive fines clause
FRQ WILL BE SCOTUS COMPARISON BETWEEN TWO CASES
- Student free speech vs Tinker vs. Demoy

FIRST AMENDMENT: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacably to assemble, and to petition the Government for redress of grievances

RELIGION
- Establishment Clause
  - Prevents government from establishing an official religion
  - Governments can't give preferential treatment FOR or AGAINST religion
  - Must be religiously neutral
  - Engel v. Vitale (1962) - state sponsored school prayer violates the establishment clause
- Free Exercise Clause:
  - Prevents the government from prohibiting the free exercise of religion
  - Prevents excessive entablement of gov't and religion
  - Wisconsin v. Yoder (1972) - compelling Amish students to attend public school beyond 8th grade violates free exercise clause
SPEECH
- Abridging the Freedom of Speech
  - No law reducing, diminishing or curtailing your speech
  - No rights are absolute
    - Can't shout "BOMB" in an airport
  - Debate = where's the line?
- Exceptions
  - Time, Place, Manner
  - Obscenity
  - Libel (written) and slander (spoken) - must demonstrate MLICE and HARM
- Schenck v. US (1919)
  - Speech that creates a clear and present danger is NOT protected
  - There can be TIME, PLACE, and MANNER restrictions on speech
  - Can be limited if its intended to or likely to incite lawless action
    - Incite immediate dangerous action
- Protected:
  - Hate Speech is protected?? (yes we hate it)
    - Westboro Baptist church protest
  - Preferred position doctrine - court's preference is to rule in favor of MORE speech, not less speech
  - Symbolic Speech (burning the flag)
SPEECH IN SCHOOLS
- Tinker v. Des Moines (1969)
  - Protesting Vietnam War by wearing armbands to school
  - Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"
  - Must not "materially disrupt" the functioning of their school
PRESS
- New York Times vs. US (1971)
  - Strengthened press protections
  - Ruled against Nixon's administration attempt to block the Pentagon Papers
  - Heavy presumption against prior restraint - censorship AHEAD of the publication
  - Even in cases involving national security - the court is HESITANT to rule against the newspaper
ASSEMBLY AND PETITION
- Assembly:
  - Involves non-verbal communication (including the message conveyed by the very existence of the group)
  - Demonstrations, picket-lines, or parades convey more than the words on a placecard or the chants of the crowd. Need permits!
  - De Jonge v. Oregon (1937) - "the right of peaceable assembly is a right to cognate to those of free speech and free press and is equally fundamental
- Petition:
  - Dates back to Magna Carta!
  - Often seen as obsolete by an expanding Free Speech Clause
  - Reduced to a formality, with petitions routinely entered on the public record absent any obligation to debate the matters raised, or to respond to the petitioners

SECOND AMENDMENT: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

RIGHTS TO BEAR ARMS
- Prefatory Clause:
  - A well regulated militia being necessary for a free state
  - Is it merely emphasizing the right to bear arms OR does the person need a connection to militia service?
- The Case Law:
  - DC vs. Heller (2008) - supreme court decided that there is a right for an individual to bear arms for self-defense
  - McDonald vs. Chicago (2010) - incorporated the right to bear arms to the states. State and local governments are restricted by the 2nd amendment
  - Expanding civil liberties and limiting government power

FOURTH AMENDMENT: the right of the people to be secure in their persons, 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 the persons or things to be seized.

SEARCHES AND SEIZURES
- The Text:
  - Protects people from unreasonable searches and seizures
  - What is reasonable and unreasonable?
- Legal Searches:
  - Must have probable cause (good reason that crime has been committed), search warrant (from a judge) or consent
- The Case Law:
  - Mapp vs. Ohio (1961) - Established the Exclusionary Rule - any evidence illegally obtained cannot be used in trial
    - Good Faith Objections - officer believed search was legal
    - Inevitable discovery rule - can be used if it would have been discovered eventually
- Exceptions to the Search Warrant Requirement
  - Hot Pursuit of a fleeing felon
  - Directly related to a lawful arrest
  - Traffic stops for reasonable suspicion
  - Exigent circumstances
  - Schools - New Jersey vs. TLO - must meet the reasonableness standard (lower than probable cause)

FIFTH AMENDMENT:

More than just "I plead the 5th"
- Self-incrimination: protects criminal defendants from having to testify if they may incriminate themselves through the testimony
- Double Jeopardy: prohibits anyone from being prosecuted twice for substantially the same crime
- Just Compensation (Eminent Domain):
  - Property owners are paid fair market value for their property but often determining what fair market value is can be difficult
  - Kelo vs. New London (1995) - the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause

SIXTH AMENDMENT:

Procedural Due Process
- Speedy Trial: The accused must be brought to trial or released within a reasonable amount of time
- Public Trial: public trials ensure that there's an extra layer of accountability as the public can determine whether government officials properly carry out their functions in a way that is not shrouded in secrecy
- Impartial Jury: the role of the jury is to provide unbiased views or resolution to evidence presented in a case in a court of law
  - Must be a cross section of the community where the crime occurred
- How do you get on the jury list?
  - Driver's License
  - Voter Registration
  - State Income Tax
  - Unemployment Checks
- Informed of the Crime: right to be informed of the nature and cause of the accusation allows the defendant the chance to prepare for his/her defense
- Confront Witnesses: ensures that any testimony presented to a jury be tested through cross-examination: ensures the reliability of testimony/evidence at trial
- Assistance of Counsel:
  - Counsel must be present from the moment the accused is taken into custody until punishments and sentencing
  - Miranda Rule
- Gideon vs. Wainwright (1963): requires states to provide attorneys to criminal defendants who are unable to afford their own

EIGHTH AMENDMENT:

Cruel and Unusual
- History: during the founding era, you could receive the death penalty for stealing a horse (not cruel and unusual back then but now it is)
- The Case Law: none are required
  - Furman vs. Georgia (1972) - temporarily halted death penalty because it was being arbitrarily applied with a racial bias. States had to ensure it was not administered in discriminatory ways
  - Gregg vs. Georgia (1976) - reinstituted the death penalty, but said that states cannot have mandatory death policies
  - Atkins vs. Virginia (2002) - death penalty cannot be given to intellectually disabled persons
  - Roper vs. Simmons (2005) - death penalty cannot be given to a minor
  - Kennedy vs. Louisiana (2007) - can't be given for any crime besides murder
Excessive Fines Clause
- The Text:
  - Nor excessive fines imposed
- The Case Law:
  - Timbs vs. Indiana (2019)
  - After Tyson Timbs pleaded guilty to a drug offense in Indiana, he was sentenced to home detention followed by probation
  - The confiscated his Land Rover since it was used in the operation
  - Court said NO - Excessive Fines - and incorporated it to the state level

RIGHT TO PRIVACY

Right to Privacy
- 9th Amendment:
  - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
  - This was the key to Hamilton's argument against the Bill of Rights - what if we forgot any?
- Other Amendments - Penumbras
  - Substantive Due Process: establish and protect certain fundamental rights from government interference (using due process clause)
  - Griswold vs. Connecticut (1965) - law against Birth Control - established and incorporated a right to privacy - you can find it implied by the 1st, 3rd, 4th, 5th, and 9th amendments
The Abortion Debate
- Roe vs. Wade (1973):
  - Privacy was used as the Constitutional right with Griswold as the precedent
  - States cannot bas abortions until viability - 25 weeks
- Dobbs vs. Jackson Women's health (2022)
  - Held that the Constitution does not confer a right to an abortion
  - Returned the abortion issue to the state governments who could legislate or ban abortions