Abernathy2e full ppt04 Civil Liberties Fall 2019 Professor Seymour
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This document provides an overview of civil liberties in the United States, including key Supreme Court cases. It discusses the Standing Rock protests against the Dakota Access Pipeline and the Westboro Baptist Church's controversial protests. It also summarizes the Snyder v. Phelps Supreme Court case regarding the Westboro Baptist Church's funeral protests. Additionally, it outlines several rights protected by the Bill of Rights and the Constitution, such as freedom of speech, religion, press, and due process, highlighting related Supreme Court cases for each.
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Abernathy2e full ppt04 Civil Liberties Fall 2019 Professor Seymour
- 2. Chapter 4 Civil Liberties: Building and Defending Fences
- 3. Introduction: Civil Liberties vs. Civil Rights • Civil liberties – Fundamental rights and freedoms of citizens whose protection involves restricting the power of government • Negative freedoms – Prohibit specific government actions against citizens • Civil rights – Referred to as positive freedoms and implies positive action, either on the part of citizens or the government Abernathy, American Government, 2e SAGE Publishing, 2020 3
- 5. Standing Rock and DAPL • Protests against a oil pipeline project – Concerns over environmental impact and fears of oil leak – Impact on Standing Rock Reservation’s tribal sovereignty • Increased tension and injured protesters – Civil liberty violations Abernathy, American Government, 2e SAGE Publishing, 2020 5
- 7. Westboro Baptist Church • Family-based church founded by patriarch Fred Phelps • Typified by its slogan “God Hates Fags • Harsh anti-gay beliefs and crude signs carried by members at frequent protests • Says soldiers and their families are being punished for America’s sins (primarily homosexuality) • “picketing ministry” – Practice of holding controversial protests, especially at the funerals of American soldiers. – “Thank God for Dead Soldiers” • Often use small children to hold protest signs denouncing homosexuality. 7
- 8. Snyder v. Phelps • Lance Corporal Matthew Snyder killed in line of duty in Iraq in 2006. • Westboro members protested Snyder’s funeral – "God Hates the USA/Thank God for 9/11," – "Thank God for Dead Soldiers," – "Don't Pray for the USA.“ • Issues: – Whether Westboro's signs and comments while picketing Matthew Snyder's funeral related to matters of public concern and were, thus, entitled to greater protection under the Free Speech Clause of the First Amendment? • Outcome: – YES – Phelps and his followers were “speaking” on matters of public concern on public property and were entitled to protection under First amendment 8
- 9. The Complexities of Civil Rights • What fundamental rights and freedoms do individuals possess? • Under what circumstances can a government legitimately restrict the expression of civil liberties? • Questions about “fences and boundaries” – Rights and freedoms of individuals and government authority – Need to have a safe and orderly society vs. need to protect Americans’ civil liberties Abernathy, American Government, 2e SAGE Publishing, 2020 9
- 10. The Constitution and the Bill of Rights (1 of 3) • In 1787, individual bills of rights for each colony – Inconsistent and varied protections • Bill of Rights and the ratification debates – Not originally included in Constitution – Motives of Antifederalists – Federalist Papers Abernathy, American Government, 2e SAGE Publishing, 2020 10
- 11. The Constitution and the Bill of Rights (2 of 3) • James Madison and the draft of the Bill of Rights – 10 amendments formally ratified • Acts to restrain the powers of the federal government Abernathy, American Government, 2e SAGE Publishing, 2020 11
- 12. The Constitution and the Bill of Rights (3 of 3) Abernathy, American Government, 2e SAGE Publishing, 2020 12
- 13. The Bill of Rights • Extension of Bill of Rights’ protections to state laws and actions – Due process clause and selective incorporation – Gitlow v. New York o “Clear and Present Danger Doctrine” o “Fire in a crowded theater” o Incorporates First Amendment Rights (Applies them to the states • Bill of Rights and members of Indigenous Nations Abernathy, American Government, 2e SAGE Publishing, 2020 13
- 14. Selective Incorporation Over Time (1 of 2) Abernathy, American Government, 2e SAGE Publishing, 2020 14
- 15. Selective Incorporation Over Time (2 of 2) Abernathy, American Government, 2e SAGE Publishing, 2020 15
- 16. First Amendment: Religion: Establishment and Free Exercise (1 of 3) • Establishment Clause – First amendment clause protecting individuals from governmental establishment of, or support for, religion • Establishment Clause and Supreme Court – Everson v. Board of Education – Board of Education v. Allen – Engle v. Vitale – Lemon Test (Lemon v. Kurtzman) Abernathy, American Government, 2e SAGE Publishing, 2020 16
- 17. Everson v. Board of Education (1947) • New Jersey taxpayer claimed that pubic payment of transportation costs by local school boards for private schools, including Catholic ones was impermissible support of religion. • Court was divided but ruled that the program, though “on the verge of offering impermissible aid was acceptable as it was a “general program to help parents get their children, regardless of religion, to and from private schools including Catholic ones. Justice Black affirmed principle of separation between Church and State”. 17
- 18. Jefferson’s “Wall of Separation” 18
- 19. Board of Education v. Allen (1968) • Affirmed the principle that there could be permissible forms of taxpayer support for private religious schools including free secular (non-religious) textbooks such as Math and English texts not related to religious education. 19
- 20. Engle v. Vitale (1962) • placed limits on organized prayer in public schools • Current guidelines by U.S. Dept. of Education say students in public schools and districts may not pray during instructional time but may do so (on their own volition) during non-instructional time. May also pray (on their own volition) during daily organized “moments of silence) • Teachers and administrators may not encourage or discourage prayer in their official capacity but may participate in religious activities when not in their official capacity (i.e. Bible study groups with other teachers outside instructional time). 20
- 21. Lemon Test • Lemon Test (Lemon v. Kurtzam (1971) establishes practical three-rule test to determine excessive interference or establishment on the part of government. 1.Must have secular (non-religious purpose) 2.Must not “advance or inhibit religion” 3.Must not foster “excessive entanglement between government and religion 21
- 22. Weakening Lemon Standard Lemon test has critics that argue the test is too subjective, requiring Justices to ascertain motives of legislators who passed laws in the first place. Since Lemon test, the Supreme Court has been more willing to relax standards regarding religious entanglement. 22
- 23. First Amendment: Religion: Establishment and Free Exercise (2 of 3) • Free exercise and the Supreme Court – Ongoing struggle to determine boundaries of free exercise – Incorporated through the due process clause of 14th Amendment in Cantwell v. Connecticut o Supreme Court distinguished between “freedom to believe and freedom to act” • E.g., freedom to believe abortion is a sin but not free to bomb an abortion clinic! Abernathy, American Government, 2e SAGE Publishing, 2020 23
- 24. Other First Amendment Protections: Speech and Expression (1 of 2) • Freedom of expression – A fundamental right to speak, publish and act in the political space affirmed in the 1st amendment • Alien and Sedition Acts • Schenck v. United States – “Fire in a crowded theater” Abernathy, American Government, 2e SAGE Publishing, 2020 24
- 25. Schenck v. United States (1917) • Charles Schenck and Elizabeth Baer printed anti-war leaflets and were convicted under the Espionage Act of 1917. • Unanimous Court ruling against the defendants arguing restrictions on the expression under the Espionage Act were permissible for public safety purposes. • Oliver William Holmes famously said “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic…” • This became the basis for the “Clear and Present Danger” Test – A Supreme Court tool to evaluate whether or not forms of political expression constituted such a threat to national security as to warrant restriction.” • Upheld and expanded in Supreme Court Case Abrams v. United States (1919) 25
- 26. Other First Amendment Protections: Speech and Expression (2 of 2) • Clear and present danger test – Supreme court tool to evaluate whether or not forms of political expression constituted such a threat to national security as to warrant restriction • Brandenburg v. Ohio – Set much higher standard on permissible restrictions to political speech Abernathy, American Government, 2e SAGE Publishing, 2020 26
- 27. Brandenberg v. Ohio (1969) • Modern standard for restrictions on political speech • Leader of the American White Supremacist group, the Ku Klux Klan was convicted under an Ohio law for advocating “crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform”. • Supreme Court overturned conviction and established a two-pronged test of acceptable restrictions on political speech. 1.It must be directed or inciting or producing imminent lawless action 2.it must be likely to incite or produce such lawless action. 27
- 28. • Example: It’s ok to protest the ROTC building of a college campus but it is unlawful to say “let’s burn down the ROTC building” 28
- 29. Other First Amendment Protections: Press and Symbolic Speech (1 of 2) • Prior restraint – Suppression of material prior to publication on the grounds that it might endanger national security – New York Times v. United States (1971) – “Pentagon Papers Case” • Symbolic Speech – includes images, signs and other symbols. – Most famous cases to date include Tinker v. Des Moines and its famous “black armbands” where the Supreme Court said "...students do not abandon their civil rights at the school house door....“ Abernathy, American Government, 2e SAGE Publishing, 2020 29
- 30. Tinker v. Des Moines 30 https://youtu.be/Ao5k3KNURE8
- 31. Other First Amendment Protections: Press and Symbolic Speech (2 of 2) • Symbolic speech – images, signs and other symbols – Morse v. Frederick (2007) – “Bong Hits 4 Jesus” – Court agreed that promoting drug use is not a constitutional exercise of symbolic speech – Texas v. Johnson (1989) – Closely divided court overturned conviction of man who burned flag in protest affirming flag burning as constitutional symbolic speech Abernathy, American Government, 2e SAGE Publishing, 2020 31
- 32. “Bong Hits 4 Jesus” 32 https://youtu.be/6x5hLOd-vUU
- 33. First Amendment: Less Protected Forms of Expression (1 of 2) • Expression that defames a person’s character not protected in the same way as political expression – Libel and slander • Hate speech – Has no other purpose but to express hatred, particularly toward members of a group identified by racial or ethnic identity gender, or sexual orientation Abernathy, American Government, 2e SAGE Publishing, 2020 33
- 34. First Amendment: Less Protected Forms of Expression (2 of 2) • Fighting words – Expression likely to incite violence or disrupt the peace • Obscenity and pornography – Text, image or video that depicts sexual activity in ways offensive to the broader community and lacks artistic merit Abernathy, American Government, 2e SAGE Publishing, 2020 34
- 35. First Amendment: Freedom of Assembly • Final two rights within 1st Amendment – The right to peaceably assemble – The right to petition government for “redress of grievances” • Received relatively little Supreme Court attention • Supreme Court has treated similar to that of political expression (cornerstone of American Freedoms) • Right to Peacefully assemble was incorporated in 1937 – De Jonge v. Oregon Abernathy, American Government, 2e SAGE Publishing, 2020 35
- 36. DeJong v. Oregon • Meeting held by Communist party 1937 • Dirk De Jonge addressed the attendees regarding jail conditions in the county and a maritime strike in Portland. • Arrested for spreading dangerous syndicalism. • This law defined criminal syndicalism as the doctrine which advocates illegal activities, including physical violence, sabotage or any illegal acts as a means of effecting or accomplishing political or industrial change or revolution • Court ruled that the state’s criminal syndicalism statute did indeed violate the due process Clause of the Fourteenth Amendment to the Constitution 36
- 37. Rights of the Accused of, Investigated For, and Convicted of Crimes (1 of 2) • Ex post facto laws – Prohibition on making illegal, and, therefore, punishable, conduct that had been legal prior to the passage of the new law • Bill of attainder – Prohibition against punishing individuals including the death sentence, without trial Abernathy, American Government, 2e SAGE Publishing, 2020 37
- 38. Rights of the Accused of, Investigated For, and Convicted of Crimes (2 of 2) • Writ of habeas corpus – Statement demanding that authorities in charge of a person’s detention establish the reasons for it • Procedural justice – A judicial standard requiring that fairness be applied to all participants equally Abernathy, American Government, 2e SAGE Publishing, 2020 38
- 39. Fourth Amendment: Search, Seizure, Warrants and Evidence (1 of 2) • Katz v. United States – established a standard for procedures in obtaining evidence of a crime – Effect of changing technologies – Can the government force a technology company (Apple) to assist it in breaking the security of a cell phone if it is in natural security interests? – In order to obtain or search for evidence, there must be probable cause and a search warrant issued by a judge. – In some cases, warrantless searches are allowed at the state and federal levels. This has also become a very gray area of the law but the courts tend to err on the side of the 4th Amendment and its protections. Abernathy, American Government, 2e SAGE Publishing, 2020 39
- 40. Fourth Amendment: Search, Seizure, Warrants and Evidence (2 of 2) • Warrant – Writ issued by a judge authorizing some activity • Probable cause – Reasonable belief that a crime has been committed or that there was evidence indicating so • Exclusionary rule – Governs the inadmissibility of evidence obtained without a proper warrant (“fruit of the poisonous tree”) • Mapp v. Ohio – incorporated 4th Amendment to the states Abernathy, American Government, 2e SAGE Publishing, 2020 40
- 41. Fifth Amendment: Grand Jury, Double Jeopardy and Self-Incrimination (1 of 2) • Guarantees processes and procedures for defense of those accused of a crime – Indictment by grand jury o Group of citizens who, based on evidence presented to them, conclude whether or not the person is to be indicted and subsequently tried in a court of law Abernathy, American Government, 2e SAGE Publishing, 2020 41
- 42. Fifth Amendment: Grand Jury, Double Jeopardy and Self-Incrimination (2 of 2) – No double jeopardy o Individuals cannot be tried more than once for the same crime o Individuals CAN be acquitted in state court and prosecuted for the same crime in federal court because they are not in the same jurisdiction Abernathy, American Government, 2e SAGE Publishing, 2020 42
- 43. Fifth Amendment: Grand Jury, Double Jeopardy and Self-Incrimination (3 of 2) – Miranda rights o The requirement that police officers inform individuals suspected of criminal activity that they have the right not to speak and to have an attorney present during questioning Abernathy, American Government, 2e SAGE Publishing, 2020 43
- 44. Sixth Amendment: Trials, Juries and Attorneys • The right to a speedy trial and the right to be tried in front of an impartial jury (difficult in media and electronic age) • Extension of right to include provisions of attorneys in federal capital murder cases and eventually to all federal criminal cases • Gideon v. Wainwright • Recently strengthened protections to ensure “effective” legal representation Abernathy, American Government, 2e SAGE Publishing, 2020 44
- 45. Eighth Amendment: Bail and Punishment • Bail – An amount of money posted as a security to allow the charged individual to be freed while awaiting trial • “Excessive bail” and denial of bail • Controversy over “cruel and unusual punishment” – Capital punishment – Mandatory prison sentencing • Limits on punishments regarding those with cognitive deficiencies and juveniles Abernathy, American Government, 2e SAGE Publishing, 2020 45
- 46. Americans Claim Rights to Marriage Equality • Defense of Marriage Act (1996) – allowed states to prohibit recognition of same-sex marriages through their state constitutions • Full Faith and Credit Clause of U.S. Constitution – Requires states to honor licenses and judicial outcomes of other states • United States v. Windsor • Obergfell v. Hodges – Made same-sex marriage legal in all states Abernathy, American Government, 2e SAGE Publishing, 2020 46
- 47. Right to Privacy • Privacy: a right NOT enumerated in the Constitution but affirmed by Supreme Court decisions that cover individuals’ decisions in their private lives including reproductive rights and sexuality – Use of contraceptives – Griswold v. Connecticut – Sexual conduct between consenting adults – Lawrence v. Texas – Woman’s right to terminate pregnancy – Roe v. Wade o Increasingly restrictive conditions on abortions by the states Abernathy, American Government, 2e SAGE Publishing, 2020 47
- 48. The Tenth Amendment and State Powers • Reserved powers – Powers not specifically given to federal government or prohibited through Bill of Rights or Constitution are automatically given to the states o Basis of “states’ rights” o Increasingly used by states to retain or regain power from federal government Abernathy, American Government, 2e SAGE Publishing, 2020 48
Editor's Notes
- Chapter Objectives: After reading this chapter, the student will be able to … 1-1: List the civil liberties protected by the Constitution and amendments to it. 1-2: Outline the Controversies surrounding civil liberties and the need to protect national security 1-3: Trace the history of including a list of fundamental rights and freedoms in the Bill of Rights 1-4: Discuss the challenges to constitutional law posed by the establishment and Free Exercises clauses of the 1st Amendment 1-5: Assess the special protections of political speech and press affirmed in the 1st Amendment, as well as restrictions subsequently placed upon them 1-6: Summarize the protections placed within the Bill of Rights for those accused, investigated, tried, and convicted of crimes 1-7: Discuss the Supreme Court’s affirmation of the right of privacy
- Everson v. Board of Education (1947) New Jersey taxpayer claimed that pubic payment of transportation costs by local school boars for private schools, including Catholic ones was impermissible support of religion. Court was divided but ruled that the program, though “on the verge of offering impermissible aid was acceptable as it was a “general program to help parents get their children, regardless of religion, to and from private schools including Catholic ones. Justice Black affirmed principle of separation between Church and State”. Board of Education v. Allen (1968), affirmed the principle that there could be permissible forms of taxpayer support for private religious schools including free secular (non-religious) textbooks such as Math and English texts not related to religious education. Engle v. Vitale (1962) placed limits on organized prayer in public schools Current guidelines by U.S. Dept. of Education say students in public schools and districts may not pray during instructional time but may do so (on their own volition) during non-instructional time. May also pray (on their own volition) during daily organized “moments of silence) Teachers and administrators may not encourage or discourage prayer in their official capacity but may participate in religious activities when not in their official capacity (i.e. Bible study groups with other teachers outside instructional time). Everson v. Board of Education cite Jefferson’s “wall of separation” metaphor and the court continued to allow taxpayer funds to be used for transporting students to and from religious schools. Lemon Test (Lemon v. Kurtzam (1971) establishes practical three-rule test to determine excessive interference or establishment on the part of government. Must have secular (non-religious purpose) Must not “advance or inhibit religion” Must not foster “excessive entanglement between government and religion Lemon test has critics that argue the test is too subjective, requiring Justices to ascertain motives of legislators who passed laws in the first place. Since Lemon test, the Supreme Court has been more willing to relax standards regarding religious entanglement.
- Cantwell v. Connecticut (1940)involved distribution of religious materials and playing of religious messages on a photograph by two members of Jehovah’s Witnesses in a predominantly Catholic neighborhood Two protesters were arrested under town ordinance giving government officials the authority do decide if such solicitations were legal or not. Supreme court distinguished between “freedom to believe and freedom to act” and overturned the convictions of the two Jehovah’s witnesses because their actions posed no threat other than being offensive to some. Employment Division v. Smith (1990) Court adopted a “neutrality test” in deciding conflicts between religious expression and legitimate state action. Too individuals had been fired from their jobs as rehabilitation counselors for using sacramental religious peyote (a psychoactive drug) in violation of Oregon State Law. They were also denied unemployment benefits as a result of their termination. Court ruled that the state law banning the use and possession of peyote was not targeted at individuals as a result of their faith, represented a valid compelling state interest and was religiously neutral, upholding the ban on the use of religious peyote.
- Portions of 1st amendment dealing with freedom expression are often considered the most fundamental affirmations of American Rights and liberties because they deal with political beliefs and expressions. Right to express one’s thoughts, especially in being critical of those in power is one of the cornerstones of American civil liberties. Thomas Jefferson’s draft of the Declaration of Independence, Thomas Paine’s Common Sense and the Federalist Papers/Anti-Federalist papers, Benjamin Gitlow’s essays on need to overthrow U.S. Government and Edward Snowden’s release of classified documents all involve political speech and action. “Congress shall make no law…abridging the freedom of speech; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.” First consideration and application of 1st amendment speech and action rights dealt with the Alien and Sedition Acts, passed by the Federalist Party controlled by Congress and signed into law by Federalist President John Adams in 1798. Any behavior judged by a federal court to be a part of a conspiracy against the government of the United States or any publication of speech that was deemed “false, scandalous or malicious against the U.S.” was illegal. 1917 Charles Schenck and Elizabeth Baer printed anti-war leaflets and were convicted under the Espionage Act of 1917. Schenck v. United States – Unanimous Court ruling against the defendants arguing restrictions on the expression under the Espionage Act were permissible for public safety purposes. Oliver William Holmes famously said “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic…” This became the basis for the “Clear and Present Danger” Test – A Supreme Court tool to evaluate whether or not forms of political expression constituted such a threat to national security as to warrant restriction.” Upheld and expanded in Supreme Court Case Abrams v. United States (1919) Modern standard for restrictions on political speech was set in 1969 in Brandenberg v. Ohio in which a leader of the American White Supremacist group, the Ku Klux Klan was convicted under an Ohio law for advocating “crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform”. Supreme Court overturned conviction and established a two-pronged test of acceptable restrictions on political speech. It must be directed or inciting or producing imminent lawless action it must be likely to incite or produce such lawless action. Example: It’s ok to protest the ROTC building of a college campus but it is unlawful to say “let’s burn down the ROTC building”
- Portions of 1st amendment dealing with freedom expression are often considered the most fundamental affirmations of American Rights and liberties because they deal with political beliefs and expressions. Right to express one’s thoughts, especially in being critical of those in power is one of the cornerstones of American civil liberties. Thomas Jefferson’s draft of the Declaration of Independence, Thomas Paine’s Common Sense and the Federalist Papers/Anti-Federalist papers, Benjamin Gitlow’s essays on need to overthrow U.S. Government and Edward Snowden’s release of classified documents all involve political speech and action. “Congress shall make no law…abridging the freedom of speech; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.” First consideration and application of 1st amendment speech and action rights dealt with the Alien and Sedition Acts, passed by the Federalist Party controlled by Congress and signed into law by Federalist President John Adams in 1798. Any behavior judged by a federal court to be a part of a conspiracy against the government of the United States or any publication of speech that was deemed “false, scandalous or malicious against the U.S.” was illegal. 1917 Charles Schenck and Elizabeth Baer printed anti-war leaflets and were convicted under the Espionage Act of 1917. Schenck v. United States – Unanimous Court ruling against the defendants arguing restrictions on the expression under the Espionage Act were permissible for public safety purposes. Oliver William Holmes famously said “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic…” This became the basis for the “Clear and Present Danger” Test – A Supreme Court tool to evaluate whether or not forms of political expression constituted such a threat to national security as to warrant restriction.” Upheld and expanded in Supreme Court Case Abrams v. United States (1919) Modern standard for restrictions on political speech was set in 1969 in Brandenberg v. Ohio in which a leader of the American White Supremacist group, the Ku Klux Klan was convicted under an Ohio law for advocating “crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform”. Supreme Court overturned conviction and established a two-pronged test of acceptable restrictions on political speech. It must be directed or inciting or producing imminent lawless action it must be likely to incite or produce such lawless action. Example: It’s ok to protest the ROTC building of a college campus but it is unlawful to say “let’s burn down the ROTC building”
- Press and Symbolic Speech Protections This slide shows important cases outlined in the textbook dealing with freedom of the press and freedom of symbolic speech Freedom of the press mainly deals with protections from prior restraint – government interference or suppression of material prior to publication on the grounds it might endanger national security. Most famous case is NY Times v. United States (1971) – Pentagon Papers. But can also be applied to whether or not government secrets such as WikiLeaks can be restrained from publication. As technology changes, this becomes a very blurred area of Constitutional law. Symbolic Speech – includes images, signs and other symbols. Most famous cases to date include Tinker v. Des Moines and its famous “black armbands” where the Supreme Court said "...students do not abandon their civil rights at the school house door....“ Morse v. Frederick – “Bong Hits 4 Jesus Case” said limitations on symbolic speech can be placed on students if it is for the safety of the students – drugs, gang material, etc. Effectively took some freedoms from students. Texas v. Johnson (1989) – Said flag burning is symbolic speech and cannot be punished. Every few years new attempts at creating a constitutional amendment banning flag burning and desecration will pop-up but, to date, have not gone anywhere close to being presented to the states for a vote.
- Press and Symbolic Speech Protections This slide shows important cases outlined in the textbook dealing with freedom of the press and freedom of symbolic speech Freedom of the press mainly deals with protections from prior restraint – government interference or suppression of material prior to publication on the grounds it might endanger national security. Most famous case is NY Times v. United States (1971) – Pentagon Papers. But can also be applied to whether or not government secrets such as WikiLeaks can be restrained from publication. As technology changes, this becomes a very blurred area of Constitutional law. Symbolic Speech – includes images, signs and other symbols. Most famous cases to date include Tinker v. Des Moines and its famous “black armbands” where the Supreme Court said "...students do not abandon their civil rights at the school house door....“ Morse v. Frederick – “Bong Hits 4 Jesus Case” said limitations on symbolic speech can be placed on students if it is for the safety of the students – drugs, gang material, etc. Effectively took some freedoms from students. Texas v. Johnson (1989) – Said flag burning is symbolic speech and cannot be punished. Every few years new attempts at creating a constitutional amendment banning flag burning and desecration will pop-up but, to date, have not gone anywhere close to being presented to the states for a vote.
- Libel and slander are not protected but there are specific requirements on what must be proved. Public officials or celebrities have higher standards for libel and slander (malus of forethought and reckless or malicious intent). than do ordinary citizens In other words it is harder for a public figure to prove libel or slander than it is for an ordinary citizen. Hate speech is not specifically protected. One standard is “fighting words” another is “clear and present danger test” Obscenity and pornography are also not specifically protected and defined by being offensive to the broader community and lacking artistic merit. One justice said I can’t define it but I know it when I see it. Community standards are also an important part in the definition of pornography.
- Libel and slander are not protected but there are specific requirements on what must be proved. Public officials or celebrities have higher standards for libel and slander (malus of forethought and reckless or malicious intent). than do ordinary citizens In other words it is harder for a public figure to prove libel or slander than it is for an ordinary citizen. Hate speech is not specifically protected. One standard is “fighting words” another is “clear and present danger test” Obscenity and pornography are also not specifically protected and defined by being offensive to the broader community and lacking artistic merit. One justice said I can’t define it but I know it when I see it. Community standards are also an important part in the definition of pornography.
- Rights to peaceably assembly and to “redress” grievances are protected as but time, place and manner restrictions may be placed on public assemblies.
- This slide shows specific protections in place for those accused of a crime. Can’t punish or convict for an ex post facto law, can’t issue bills of attainder (conviction without trial) and must allow writ of habeas corpus. Law enforcement officials must follow specific standards of procedural justice.
- Katz v. United States established standards for the procedures in obtaining and presenting evidence of a crime. The biggest problem is changing technologies. Example: Can the government force a technology company (Apple) to assist it in breaking the security of a cell phone if it is in natural security interests? In order to obtain or search for evidence, there must be probable cause and a search warrant issued by a judge. In some cases, warrantless searches are allowed at the state and federal levels. This has also become a very gray area of the law but the courts tend to err on the side of the 4th Amendment and its protections.
- Katz v. United States established standards for the procedures in obtaining and presenting evidence of a crime. The biggest problem is changing technologies. Example: Can the government force a technology company (Apple) to assist it in breaking the security of a cell phone if it is in natural security interests? In order to obtain or search for evidence, there must be probable cause and a search warrant issued by a judge. In some cases, warrantless searches are allowed at the state and federal levels. This has also become a very gray area of the law but the courts tend to err on the side of the 4th Amendment and its protections.
- This slide shows the specific protections guaranteed under the 5th Amendment. Another important protection (not dealing with criminal cases) is seizure of condemnation of property for public purposes. Citizens must be given due process and fair compensation in such cases.
- This slide shows the specific protections guaranteed under the 5th Amendment. Another important protection (not dealing with criminal cases) is seizure of condemnation of property for public purposes. Citizens must be given due process and fair compensation in such cases.
- This slide shows the specific protections guaranteed under the 5th Amendment. Another important protection (not dealing with criminal cases) is seizure of condemnation of property for public purposes. Citizens must be given due process and fair compensation in such cases.
- 6th Amendment guarantee of fair and speedy trial was incorporated in 1963 and the right to be tried by an impartial jury is also guaranteed under the Bill of Rights. But in today’s instant electronic media environment, how do you find a fair and impartial jury? The Supreme Court began extending the right to an attorney regardless of ability to pay beginning in 1932 and further in 1938 but it was the case of Gideon v. Wainwright in 1963 that incorporated this right to the states in all criminal matters. The Court has continued to strengthen protections to ensure that criminal defendants are given “effective” legal representation and not just any first year lawyer.
- In most cases, defendants must be allowed bail, which is an amount of money posted as a security to allow the charged individual to be freed while awaiting trial. There are protections against “excessive bail” but not every defendant is entitled to bail if they pose a flight risk or they pose an ongoing risk to the public at large. Cruel and unusual punishment his a particularly hot button issue as it deals with such issues as capital punishment and mandatory prison sentences. The Court has placed limits on punishments regarding those with cognitive deficiencies and those who committed a crime while still a juvenile.
- The issue of same-sex marriage has been particularly contentious lately. The Defense of Marriage Act allowed states to decide for themselves whether or not to grant or recognize same-sex marriages but was overturned because it violated the Full Faith and Credit clause of the Constitution. The Case of U.S. v. Windsor (2013) overturned DOMA and the case of Obergfell v. Hodges (2015) went a step further and required states to issue and recognize same-sex marriage licenses using the 14th Amendment and its equal protection clause as its basis.
- The right to privacy is not addressed in the Constitution or the Bill of Rights but several important cases have used the 9th and 14th Amendments to create an assumed right to privacy. These issues include the use of contraceptives (Griswold v. Connecticut), the right to sexual content between consenting adults (homosexual behavior) – Lawrence v. Texas and the right to terminate a pregnancy (Roe V. Wade). All of these issues are “hot button” topics today in one form or another but are protected under the Supreme Court’s incorporation and interpretation of the Bill of Rights.