Chapter 11: Civil Liberties and Civil Rights

Civil Liberties

Civil liberties refer to the freedoms and rights that individuals have as citizens of a country. In the United States, civil liberties are protected by both the Constitution and the Bill of Rights. Here are the key points related to civil liberties in the U.S:

• Constitution: The original Constitution provides specific rights that are considered to be fundamental freedoms. These include:
• Writ of habeas corpus: This means that an individual must be brought before the court and informed of charges against them.
• No bills of attainder: Individuals cannot be punished without a trial.
• No ex post facto laws: Laws cannot be applied to acts committed before the laws’ passage as it would be unconstitutional.
• Trial by jury: This is the right to a trial by a jury of peers.
• Bill of Rights: The Bill of Rights was added to the Constitution in 1791 to provide specific guarantees by the national government. These include:
• Freedom of religion, speech, press, petition, and assembly
• No unreasonable searches and seizure
• Protections against self-incrimination and double jeopardy
• Protections in criminal procedures
• The Fourteenth Amendment: This amendment provided for the expansion of individual rights.The Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to apply the guarantees of the Bill of Rights to state and local governments. Today, most guarantees of the Bill of Rights have been incorporated to apply to the state and local governments.
• Legislative actions: Legislative actions are laws that set limits or boundaries on one person’s rights over another’s or bring balance between the rights of individuals and the interests of society.
• For example, false advertising is not protected under the First Amendment guarantee of freedom of speech.
• Court decisions: Court decisions protect rights through the use of judicial review.
• For example, flag burning is protected as symbolic speech (Texas v. Johnson, 1989), but burning a draft card is not protected (United States v. O’Brien, 1968).

Freedom of Religion

• Two protections for freedom of religion exist: the Establishment Clause and the Free Exercise Clause.
• The Establishment Clause: prohibits the government from establishing an official religion or showing preference for any one religion over another.
• The Supreme Court has interpreted the Establishment Clause in a number of cases, including:
• Everson v. Board of Education (1947): upheld a New Jersey policy of reimbursing parents of Catholic school students for busing costs.
• Engel v. Vitale (1962): ruled school-sanctioned prayer in public schools unconstitutional.
• Abington School District v. Schempp (1963): struck down a Pennsylvania law requiring the reading of a Bible passage at the beginning of each day.
• Lemon v. Kurtzman (1971): struck down a Pennsylvania law reimbursing parochial schools for textbooks and teacher salaries and established the Lemon Test.
• Lynch v. Donnelly (1984): upheld the right of governmental entities to celebrate Christmas with Christmas displays that might include nativity scenes, if secular displays are also sufficiently included.
• Wallace v. Jaffree (1985): overturned a state law setting aside time for "voluntary prayer" in public schools.
• Edwards v. Aguillard (1987): ruled that Louisiana could not force public schools that taught evolution to also teach creationism.
• Board of Education of Westside Community Schools v. Mergens (1990): upheld the Equal Access Act of 1984, which required public secondary schools to provide religious groups the same access to facilities that other extracurricular groups had.
• Lee v. Weisman (1992): ruled against clergy-led prayer at high school graduation ceremonies.
• Santa Fe Independent School District v. Doe (2002): overturned a Texas law allowing high school students to read a prayer at athletic events such as football games.
• The Free Exercise Clause: guarantees the right to practice any religion or no religion at all.
• The Supreme Court has made distinctions between belief and practice, ruling that religious belief is absolute but the practice of those beliefs may be restricted if they conflict with criminal laws.
• The Court has ruled on a number of cases involving the Free Exercise Clause, including:
• Reynolds v. United States (1879): upheld the federal law that prohibited polygamy.
• Wisconsin v. Yoder (1972): ruled that Wisconsin could not require Amish parents to send their children to public school beyond the eighth grade.
• Employment Division of Oregon v. Smith (1990): ruled that Oregon could deny unemployment benefits to workers fired for using drugs (peyote) as part of a religious ceremony.
• Church of the Lukumi Babalu Aye v. City of Hialeah (1993): ruled that laws banning animal sacrifice were unconstitutional because they targeted the Santeria religion.
• In 1993, Congress passed the Religious Freedom Restoration Act, giving people the right to practice religious activities unless prohibited by laws that are narrowly tailored and the government can show a "compelling interest."
• In 1997, the Supreme Court ruled the Religious Freedom Restoration Act unconstitutional in City of Boerne, Texas v. Flores.

Freedom of Speech

Types of Speech:

• Pure speech: The most common form of speech which is verbal and is given the most protection by the courts.
• Speech plus: It is a combination of verbal and symbolic speech used together, such as a rally and then picketing. It may also be limited.
• Symbolic speech: It refers to using actions and symbols to convey an idea rather than words.
• For example, burning a draft card or flag, wearing an armband in protest. It may be subject to government restrictions if it endangers public safety.

Regulating Speech:

• Limitations on free speech have existed in the area of national security.
• In 1798, Congress passed the Alien and Sedition Acts that made it illegal to say anything "false, scandalous and malicious against the government or its officials."
• Sedition laws were passed again after the assassination of President McKinley by an anarchist in 1901 and the US entry into World War I.
• The Schenck v. United States (1919) case established that speech during wartime that creates a clear and present danger is not protected.
• The Gitlow v. New York (1925) case applied free speech protections to states under the Due Process Clause of the Fourteenth Amendment.
• The Cox v. New Hampshire (1941) case ruled that while the government cannot regulate speech content, it can impose reasonable time, place, and manner restrictions for public safety.
• The Chaplinsky v. New Hampshire (1942) case ruled that "fighting words" are not protected by the First Amendment.
• The Tinker v. Des Moines (1969) case ruled that wearing black armbands in protest of the Vietnam War is protected symbolic speech.
• The Brandenburg v. Ohio (1969) case made the "clear and present danger" test less restrictive by ruling that inflammatory speech is only punishable if there is an imminent danger of inciting an illegal act.
• The Miller v. California (1973) case established the Miller test for measuring obscenity.
• The Texas v. Johnson (1989) case ruled that flag burning is a protected form of symbolic speech.
• The Reno v. ACLU (1997) case ruled that the Communications Decency Act is unconstitutional for being overly broad and vague in regulating internet speech.
• Since the 1940s, the Court has supported the preferred position doctrine, where First Amendment freedoms hold a preferred position and laws regulating them must be shown to be absolutely necessary to be declared constitutional.

Freedom of the Press

Freedom of the press is closely related to freedom of speech and is protected under the Due Process Clause of the Fourteenth Amendment. It includes various forms of media such as newspapers, magazines, radio, television, and the internet. The Supreme Court has made several rulings that protect freedom of the press:

• Near v. Minnesota (1931) prohibited prior restraint and applied the protections of free press to the states.
• New York Times v. Sullivan (1964) protected statements made about public officials.
• New York Times v. United States (1971) strengthened freedom of the press by refusing to stop the publication of the Pentagon Papers.
• Hazelwood School District v. Kuhlmeier (1988) ruled in favor of school district censorship of student newspapers as long as censorship is related to legitimate concerns.

Freedom of Assembly and Petition

• First Amendment guarantees right to assemble and petition government.
• Applies to private and public places, allows citizens to make views known to officials.
• Government can set limits to protect rights and safety of others.
• Dejonge v. Oregon (1937) established right of association and applied freedom of assembly to states under Due Process Clause of Fourteenth Amendment.
• Government may require permits for parades or demonstrations to protect public order.
• Certain public facilities may be restricted from demonstrations.
• Restrictions on assembly must be precise and apply to all groups equally.
• Right to assemble doesn't allow groups to use private property for its own uses.
• Police may disperse demonstrations if they become violent or dangerous to public safety.

Second Amendment:

• Until recently, challenges to Second Amendment have been rare.
• District of Columbia v. Heller (2008) struck down federal law forbidding civilians from possessing handguns, protected individual right to bear arms for self-defense.
• McDonald v. City of Chicago (2010) struck down similar handgun ban at state level.
• Rulings strengthened citizens' rights to keep and bear arms for self-defense in their own homes.

Property Rights

• The Due Process Clauses of the Fifth and Fourteenth Amendments protect private property by ensuring that the government cannot deprive a person of their property without due process of law.
• Due process involves the government acting fairly according to established rules. It has two components: substantive due process (which examines the policies of government or subject matter of laws to determine whether they are fair or violate constitutional protections) and procedural due process (which ensures that government actions follow established rules and procedures).
• Due process has been used to protect property rights, in addition to those accused of crimes.
• The Fifth Amendment guarantees that the government cannot take private property for public use without providing just compensation for it. This right of eminent domain allows the government to take property for public use, but the owner must be compensated fairly

Right to Privacy

• The Constitution does not mention a "right to privacy".
• The Supreme Court has interpreted several rights that may fall under privacy.
• Due Process Clause of the Fourteenth Amendment protects the right of privacy from state infringement.
• Griswold v. Connecticut (1965) - Court ruled that First, Third, Fourth, Ninth, and Fourteenth Amendments created "zones of privacy" and enhanced enumerated rights.
• Roe v. Wade (1973) - continuation of constitutional right of privacy for a woman to determine whether to terminate a pregnancy, recognizing state's compelling interest in maternal life and health.

Rights of the Accused

• Fourth Amendment: Search and Seizure
• Wolf v. Colorado (1949): Applied protections against unreasonable search and seizure to the states under the Due Process Clause of the Fourteenth Amendment.
• Mapp v. Ohio (1961): Ruled that evidence obtained without a search warrant was excluded from trial in state courts. Established the exclusionary rule to deter illegal police conduct.
• Terry v. Ohio (1968): Ruled that searches of criminal suspects are constitutional and police may search suspects for safety purposes.
• Nix v. Williams (1984): Established the inevitable discovery rule, allowing evidence discovered as the result of an illegal search to be introduced if it can be shown that the evidence would have been found anyway.
• United States v. Leon (1984): Established the good faith exception to the exclusionary rule.
• Fifth Amendment: Self-Incrimination
• Miranda v. Arizona (1966): Ruled that suspects in police custody have certain rights and that they must be informed of those rights, including the right to remain silent and the right to an attorney.
• Sixth Amendment: Right to an Attorney
• Powell v. Alabama (1932): Established that the Due Process Clause of the Fourteenth Amendment guarantees defendants in death penalty cases the right to an attorney.
• Betts v. Brady (1942): Ruled that poor defendants in noncapital cases are not entitled to an attorney at government expense.
• Gideon v. Wainwright (1963): Ruled that in state trials, those who cannot afford an attorney will have one provided by the state, overturning Betts v. Brady.
• Gideon v. Wainwright (1963): Ruled that in state trials, those who cannot afford an attorney will have one provided by the state, overturning Betts v. Brady. Defined the "Escobedo rule," stating that persons have the right to an attorney when an investigation begins "to focus on a particular suspect."
• Eighth Amendment: Cruel and Unusual Punishment
• Furman v. Georgia (1972): Ruled the death penalty unconstitutional under existing state law because it was imposed arbitrarily.
• Gregg v. Georgia (1976): Ruled the death penalty constitutional because it was imposed based on the circumstances of the case.

Civil Rights

• Civil rights are guaranteed by the Equal Protection Clause of the Fourteenth Amendment, added after the Civil War to protect the rights of former slaves and prevent discrimination by states.
• The courts use the rational basis test to determine if discrimination has a valid purpose and the strict scrutiny test to examine discrimination that reflects prejudice.
• The Thirteenth Amendment abolished slavery, the Fourteenth Amendment defined citizenship and equal protection, and the Fifteenth Amendment prohibited denying the right to vote based on race.
• States continued to use discriminatory practices to prevent African Americans from participating in politics, including black codes, literacy tests, poll taxes, registration laws, and white primaries.
• Executive Orders 8802 and 9981 banned racial discrimination in the defense industry, government offices, and the armed forces.
• Brown v. Board of Education overturned Plessy v. Ferguson and ruled that separate but equal is unconstitutional.
• The Civil Rights Act of 1957 created the Civil Rights Division and prohibited preventing a person from voting in federal elections.
• The Civil Rights Act of 1964 prohibited discrimination in employment, public accommodation, and federally funded programs and created the EEOC.
• The Twenty-Fourth Amendment outlawed poll taxes in federal elections, and the Voting Rights Act of 1965 allowed federal registrars to register voters and outlawed discriminatory voter registration tests.
• Title IX prohibits sex-based discrimination in federally funded education programs, and the Civil Rights Act of 1991 made it easier for individuals to bring suit against employers with discriminatory hiring practices

Letter from a Birmingham Jail:

• Dr. Martin Luther King, Jr. was arrested in 1963 for leading public demonstrations in Birmingham, Alabama.
• "Letter from a Birmingham Jail" is King's response to a letter published in a newspaper criticizing the demonstrations.
• King argues that he and his fellow demonstrators have a duty to fight for justice and explains the four steps of nonviolent protest: fact-finding, negotiation, self-purification, and direct action.
• After speaking with Birmingham officials, King concluded that he needed to take action by leading the public demonstration and does not regret his decision.

Other Minorities

• Successes of the African American Civil Rights Movement encouraged other minorities to seek an end to discrimination.
• Hispanics, American Indians, Asian Americans, women, and people with disabilities have all joined the quest for protections against discriminatory actions.

Hispanic Americans:

• Refers to people in the United States who have a Spanish-speaking heritage, including Mexican Americans, Cuban Americans, Puerto Ricans, and Central and South Americans.
• The Hispanic population is the fastest-growing minority in America.
• Progress for Hispanics has been hampered by unequal educational opportunities and language barriers.
• Civil rights action on behalf of Hispanics has focused on health care for undocumented immigrants, affirmative action, admission of more Hispanic students to state colleges and universities, and redistricting plans that do not discriminate against Hispanic Americans.

Native Americans:

• More than two million Native Americans live on reservations in the United States.
• Discrimination, poverty, unemployment, alcoholism, and drug abuse are common problems.
• Lack of organization has hampered Native American attempts to gain political power
• Militant organizations (National Indian Youth Council and American Indian Movement) and protests (siege at Wounded Knee) have brought attention to their concerns.
• A 1985 Supreme Court ruling upheld treaty rights of Native American tribes.
• The Indian Gaming Regulatory Act (1988) allowed Native Americans to have gaming operations (casinos) on their reservations, creating an economic boom in many tribes.
• In 1990 Congress passed the Native American Languages Act, encouraging the continuation of native languages and culture.

Asian Americans:

• Discrimination against Asians arriving in the United States began almost immediately.
• Beginning in 1882, the Chinese Exclusion Act (and other similar acts) limited the number of Asians permitted to enter the United States.
• After the bombing of Pearl Harbor, people of Japanese descent were forced into relocation camps.
• In 1988 Congress appropriated funds to compensate former camp detainees or their survivors.

The Women’s Movement:

• Women have historically not been given the same rights as men in America.
• The Nineteenth Amendment (1920) gave women the right to vote.
• The Equal Pay Act (1963) made it illegal to base an employee’s pay on race, gender, religion, or national origin.
• The Civil Rights Act of 1964 banned job discrimination on the basis of gender.
• In Reed v. Reed (1971) the Supreme Court ruled against a law that discriminated against women.
• The Equal Employment Opportunity Act (1972) prohibited gender discrimination in hiring, firing, promotions, pay, and working conditions.
• The Omnibus Education Act (1972) required schools to give all boys and girls an equal opportunity to participate in sports programs.
• The Equal Credit Opportunity Act (1974) prohibited discrimination against women seeking credit from banks, finance agencies, or the government and made it illegal to ask about a person’s gender or marital status on a credit application.
• The Women’s Equity in Employment Act (1991) required employers to justify gender discrimination in hiring and job performance.

People with Disabilities:

• The Rehabilitation Act (1973) made it illegal to discriminate against individuals with disabilities in federal programs.
• The Education for All Handicapped Children Act (1975) ensured that children with disabilities would receive an "appropriate" education.
• The Americans with Disabilities Act (1990) prohibits employers and public accommodations from discriminating against people with disabilities. The Act also requires facilities to be made wheelchair accessible and created the Telecommunications Relay Service, allowing hearing- and speech-impaired individuals access to telephone communications.

The Gay Rights Movement:

• Prior to the 1960s and 1970s, few people were willing to openly discuss their same-sex relationships.
• Following a riot in 1969 at a gay and lesbian bar, the gay power movement gained momentum.
• Organizations like the Gay Activist Alliance and the Gay Liberation Front lobbied state legislatures to repeal laws prohibiting homosexual conduct.
• Due to the growth of the gay rights movement, the Democratic Party included protection of gay rights in their platform, and several states passed laws prohibiting discrimination against homosexuals in employment, housing, education, and public accommodations.
• The Supreme Court ruled in Romer v. Evans (1996) that a Colorado constitutional amendment invalidating state and local laws protecting gays and lesbians from discrimination was unconstitutional.
• The Supreme Court also ruled in Obergefell v. Hodges (2015) that same-sex couples have the same legal right to marry as different-sex couples.

The Elderly:

• Discrimination against the elderly has been an issue, particularly in job discrimination.
• In response, Congress passed the Age Discrimination in Employment Act (ADEA) in 1967, making it illegal for employers to discriminate against individuals over 40 on the basis of age.

Affirmative Action:

• Policy to correct the effects of past discrimination.
• Usually race or gender-based.
• Regents of the University of California v. Bakke (1978) Supreme Court case: Affirmative action quotas used by the university in admissions policies were unconstitutional.
• Hopwood v. Texas (1996) Supreme Court case: University of Texas Law School's admissions program was struck down. Race could not be used as a factor in admissions to achieve student body diversity, prevent a hostile environment, counteract the law school's reputation, or end the effects of past discrimination by institutions other than the law school.
• Grutter v. Bollinger (2003) Supreme Court case: Universities within the jurisdiction of the Fifth Circuit can use race as a factor in admissions as long as quotas are not used.
• Recent Court decisions have taken a more conservative view of affirmative action programs, causing concerns that affirmative action may be on the decline.

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