Rights, Liberties, and Privacy

by Kayla Blackburn

Protections in the Constitution

Core Vocabulary

writ of habeas corpus-"produce the body;" court order directing the official holding the prisoner to bring him to a court official and explain why they are being held

ex post facto law-retroactive criminal law, increasing punishment after crime committed, lessing the proof necessary to convict for a crime after, prosecution of crime after the statute of limitation expired; does not prevent the retroactive application of laws that work to the benefit of an accused person

bill of attainder-legislative acts inflicting punishment, deprivation of property without trial

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Explanation of Clauses

  • due process-no person shall "be deprived of life, liberty, or property, without due process of law
  • establishment-prohibits the government from "establishing" a religion
  • free exercise-protects right to freely exercise one's religion

Free Speech: How Far Does it Stretch?

Free Speech Tests

  • three part test-a law must have a secular legislative purpose, mustn't advance or prohibit religion, and must avoid excessive government entanglement with religion; referred to as the Lemon Test
  • endorsement test-put forth by Justice Sandra Day O'Connor, who believes the establishment clause forbids governmental practice that a reasonable observer would view as endorsement, even if there is no coercion
  • preferentialist test-Constitution prohibits favoritism but not not prohibit aid to all religions, as supported by conservative justices while liberals support a strict separation
  • bad tendency test-speech that corrupts society leads to crime
  • clear and present danger test-government can only interfere if words uttered create a clear and present danger, like speech leading to riots, destruction of property, or corruption of elections
  • preferred position doctrine-use of words and pictures should rarely if ever be curtailed because free speech is essential to democracy
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Protected Free Speech

  • free to believe whatever we wish
  • can not be punished for beliefs or interfere with freedom of conscience
  • speech can not be exposed to government restraint as action

Judges are most suspicious of prior restraint, and censorship imposed before a speech is made, published in a newspaper, or shown in a motion picture, as they only approved prior restraint in relation to military and national security matters. Laws that are so vague that people don't know if speech would violate them, hence stifling speech, are void. The legislatures can't pass laws that impinge on the first amendment freedoms if there are other means available, as least drastic means. Laws need to be content-neurtal or viewpoint-nuetral, so they apply to all kinds of speech and to all views, more likely to be found constitutional.

Limits on Obscenity

If the average person, based on contemporary time, would find that a work appeals to an excessive interest in sex, the work depicts a patently offensive way of sexual conduct defined by applicable law, or the work, taken as a whole, lacks literary, artistic, political, or scientific value, it is not protected and considered obscene.

Fighting Words

This is unprotected because their very utterance may inflict injury or tend to incite an immediate breech of peach, like cross burnings if used as a form of intimidation.
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Hate Speech

This is unprotected because it intentionally attacks someone based on their religion, race, gender, or sexual orientation.
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Free press: Do They Have the Right to Know?

Free Press vs. Fair Trials and Due Process

Courts have protected the right to publish information no matter how it was gathered. Reporters have declared they have the right to keep information from grand juries and legislative and investigating committees, claiming that without this right they wouldn't be able to get the information they need to keep the public informed. However, the Supreme Court has refused to acknowledge that reporters and public officials have the right to press shield laws and know by the Constitution.

Reporters describe crime in vivid details, possibly influencing public opinion and making it hard to find a panel of impartial jurors.

Protections of Other media

  • In 1965, the Court struck down an act requiring postmasters to detain foreign mailings with communist propaganda, and government censorship of mail is unconstitutional.
  • Religious and political pamphlets, leaflets, and handbills have been historic weapons in defense of liberty, found to be constitutionally protected.
  • Plays, concerts, and revues are also entitled to constitutional protection.
  • Broadcasting receives the least first amendment protection, since federal funds are distributed to commercial broadcasts and the FCC regulates them and can levy taxes.
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The Internet

The Child Online Protection Act of 1998 makes it criminal for websties to make available to anyone under the age of 17 sexually explicit materials considered harmful to minors based on community standards.

Freedom of Assembly

Public Forums

The right to speak at public forums, or places where free exercise is accepted, is protected, but the right to communicate views to everyone in every place in every time they wish is not, as governments can't censor what can be said or make reasonable time, place, and manner regulations for protests and parades.
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Local Rules on Assembly

Even if the goal of the protest is not socially acceptable to the society at large, it will usually be allowed if the proper permits are granted, as it is not always the bad guys whose right to assemble has had to be protected by the courts.

Right to Privacy

The right to privacy is not stated specifically in the Constitution, but it is the Supreme Court's responsibility to decide the constitutionality of a law or government action, as the Supreme Court doesn't establish laws on privacy but uses a case-by-case approach, since it is a living document that often reflects public opinion.

The majority of justices on the Supreme Court believe the right to privacy is a basic human right, as supported by the 1st Amendment, 4th Amendment, 5th Amendment, 9th Amendment, and 14th Amendment.

Supreme Court Rulings

Griswold v. Connecticut (1965) involved a Connecticut statute forbidding any person to obtain any drug or article to prevent conception. Planned Parenthood League of Connecticut and their Medical Director, a licensed physician, were found guilty for supplying materials and advice concerning the prevention of contraception to a married couple. The state considered this topic of birth control a legitimate state concern. The Supreme Court ruled that appellants have standing to assert the constitutional rights of the married people, and the Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Justice Black and Justice Stewart dissented for if the married couple had merely been informed about contraceptives and their uses, Planned Parenthood would be protected by the First and Fourteenth Amendments; since the Executive Director examined the wife and provided contraceptive devices, they were clearly violating the Connecticut law.

Stanley v. Georgia (1969) involved state laws prohibiting possession of obscene material. Federal and state agents obtained a warrant to search Stanley's home for evidence of bookmaking activity, but instead of finding evidence of bookmaking, the agents found films of obscene footage. Stanley was arrested for having them in his possession. Stanley argued that he has the right to read what he pleases, and Georgia argued using the court decision regarding Roth v. US verdict that Stanley was not protected and could be prosecuted. The Supreme Court ruled that the Constitution does protect a person's right to receive information without regard to its social worth.

Roe v. Wade (1973) involved a Texas law enforcement that attempting to or procuring an abortion is illegal. A pregnant single woman, Roe, brought a class action challenging the constitutionality of the law, and a separate lawsuit was brought by an unpregnant married couple, Does, also challenging. A physician, Hallford, with two state abortion prosecutions pending also brought a suit. The Supreme Court ruled that Roe could sue, but Does and Hallford could not, as the Texas law violates the Due Process Clause of the Fourteenth Amendment, which protects state action against the right of privacy, including a woman's qualified right to terminate her pregnancy. The Supreme Court ruled that for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman's attending physician. For the stages subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. The Texas criminal abortion statutes as is are unconstitutional.

Bowers v. Hardwick (1986) involves a Georgia statute that criminalized sodomy, because a bartender for a gay bar, Michael Hardwick was arrested for having oral sex with his partner in his home. The charges were dropped but Hardwick attempted to have the sodomy law declared unconstitutional. The Supreme Court ruled that the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Against a background ins which many states have criminalized sodomy and still do, to claim that a right to engage in such conduct is deeply rooted in US history and tradition or implicit int he concept of ordered liberty is, at best, facetious. There should be great resistance to expand the reach of the due process clauses to cover new fundamental rights. Otherwise, the judiciary necessarily would take upon itself further authority to govern the country without constitutional authority, claimed right in this case falls far short of overcoming this resistance. The fact that homosexual conduct occurs in the privacy of the home does not affect the result, and sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws.

Lawrence v. Texas (2003) involved a Texas law forbidding a man from engaging in deviant sexual intercourse with another individual of the same sex. The defendants were caught when police entered the home in response to a reported weapons disturbance. The Supreme Court considered whether petitioners' criminal convictions under the Texas homosexual conduct law, which criminalizes sexual intimacy by same-sex couples but not identical behavior by different-sex couples, violate the 14th Amendment guarantee of equal protection of laws, and whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the 14th Amendment, resulting in consideration of the overruling of Bowes v. Hardwick (1986). The Supreme Court ruled that the Texas homosexual conduct law violates the privacy of homosexuals under the 14th Amendment. Convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the 14th Amendment.

Right to Privacy

4 States of Privacy

Solitude allows for being as alone as one can get, free from the observation of others. Intimacy allows for one to choose their friend or partner without concern of what others will think. Anonymity allows for one to be free from identification and supervision. Reserve allows freedom to hold back information we wish to keep to ourselves and not be forced to disclose information unless one chooses to.


United States Citizenship

The basic right of citizenship was not given constitutional protection until 1868, with the passage of the 14th Amendment. All people born in the United States, including Puerto Rico, Guam, Northern Marianas, and Virgin Islands, are United States citizens regardless of the citizenship of their parents. Also, if children are born to American citizens living abroad, or with a grandparent with citizenship who has lived in the USA for over five years, two of which were after age fourteen, they are American citizens. Congress made Native Americans citizens in 1924. Others who would like to become American citizens must go through the naturalization process. To lose citizenship in the USA, one must enact their right of expatriation, often influenced by dual citizenship policies or dual alliances involving taxation. Some felonies may result in citizenship loss.
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Private Property

The Constitution protects private property by giving people the right to own, use, rent, invest in, buy, and sell it, and, because framers were concerned with potential that state legislatures could protect debtors from their creditors by issuing paper currency and setting aside private contracts, the Constitution forbids states from making anything except gold or legal tender to pay debts and forms passing laws impairing the obligation of contracts. The contract clause is designed to prevent states from extending the period for debtors to meet their payments or evade contractual obligations, initially restricted to police powers, or powers of states to protect the public health, safety, and welfare of their residents but no longer is able to significantly limit government power.

The government may take property through eminent domain, as established by the 5th Amendment, which occurs when private property is taken for public use with fair compensation, the first provision of the Bill of Rights to be enforced as a limitation on state government and national government. Regulatory takings are when the government taking of property is so extensive that government is deemed to have taken it through eminent domain.

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Due Process

Due process rights forbid national and state governments from denying anyone of life, liberty, or property without due process of law, or rules and regulations that restrain those in government who exercise power. Procedural due process applies to how a law is applied and requires governments to proceed by proper methods, limiting how they exercise power. Property rights associated with this type of due process include licenses, protection from being fired from some jobs, protection from deprivation of certain rights, and pension rights. Substantive due process limits what a government may do and means that an unreasonable law is unconstitutional, resulting in the government not being allowed to do certain things. Since the 1970s, the Supreme Court has largely refused to apply the doctrine so substantive due process in reviewing laws regulating business enterprise has expanded, and the Court now believes that deciding what constitutes reasonable regulation is a legislative, not judicial, responsibility.
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Equal Rights Under Law

Timeline for Quest of Equality

Changes Throughout History of the USA

Voting Rights/Suffrage

States, not national governments, regulate elections and voting qualifications. In the 1940s, white only primaries essentially disenfranchised black voters until Smith v. Allwright in 1944, where the Supreme Court declared white primaries unconstitutional. The 1960 Court declared racial gerrymandering was contrary to the 15th Amendment. The 1966 Harper v. Virginia Board of Elections found that poll taxes violated the 14th Amendment. The 24th Amendment of 1964 prohibited poll taxes for national elections. Literacy tests were also controversial. The Voting Rights Act of 1965 prohibits voting qualifications or standards the result in a denial of the right of any citizen to vote on account of race and color. It also states denying citizens the right to vote must get clearance from the Department of Justice when changing in voting practices. Shaw v. Reno of 1993 resulted in the ruling that states could not make race the sole or predominant reason for drawing electoral districts.

Equality Among Minorities

Most Hispanics are bilingual, and many of their ancestors have been here for generations. They suffered discrimination in employment, education, housing, and access to public accommodations. In 1994, California adopted the Proposition 187, denying medical, education, and social services to illegal immigrants. Congress amended the federal welfare laws, curtailing benefits to non-citizens. Many immigrants rushed to become naturalized.

Asian Americans live chiefly in western states as a model minority facing widespread prejudice, discrimination, and equal opportunity barriers. Chinese Americans were the 1st Asians to live in the United States, beginning in 1847 to work on mines, railroads, and farms. They seldom tried to assimilate, resulting int Chinatowns and ethnic enclaves. Japanese Americans first migrated to Hawaii in the 1860s and California in the 1880s, later organizing Japanese and Korean Exclusion League. Their children are often excluded from neighborhood schools, and laws against land ownership and eligibility to become citizens exist. Internment occurred in WWII, and property was confiscated and sold while businesses, jobs, and incomes were lost. Koreans also lack housing and jobs with a growing middle class.

More than half of the Native Americans live on or near reservation, and more than 550 federally recognized tribes exist with 226 in Alaska, speaking a total of 200 different languages. The "nations" were not fully sovereign, as they are ruled by separate people with power to regulate their own internal affairs subject to congressional authorization. The Natives are citizens with the right to vote, and they have the same rights as any other American off reservation. The Bureau of Indian Affairs of the Department of Interior administers benefits that they are entitled to by law. The assimilation policy from 1887-1932 had tribal government weaknesses, resulting in some dissolving and the federal government ruling. Many Natives live in poverty and have worse health than the rest of the population. They die earlier and suffer disproportionately from alcoholism, accidents, diabetes, and pneumonia. Many reservations continue to experience lots of unemployment, and they lack health care facilities, schools, decent housing, and jobs.

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Jim Crow laws were laws whose intent were to deprive minorities from participation. Plessy v. Ferguson of 1896 resulted in the Supreme Court saying that segregation was not illegal on railways so long as there were separate but equal accommodations. Brown v. Board of Education of Topeka in 1954 reversed Plessy v. Ferguson, saying separate but equal didn't apply to public schools, and segregation in and of itself is discrimination. One year later the court ordered all school boards to desegregate with all deliberate speed at the earliest practical date. The Civil Rights Act of 1964 resulted in federal money being withdrawn from districts and higher education if discrimination was on the grounds of race, gender, age, or disability. De jure segregation was segregation imposed by law, and de facto segregation resulted from economic or social conditions or personal choice, influenced by white flight on segregation.
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Affirmative Action Controversy

Policies enacted by the government to aid disadvantaged groups of people in finding jobs and gaining access to higher education defines affirmative action to supporters and reverse discrimination to opponents. The University of California Regents v. Bakke in 1978 involved Bakke, a Vietnam veteran and top college student being denied access to medical school twice. He filed a suit based on his denial on account of his white race. The Supreme Court ruled that the university's quota plan was unconstitutional, declaring that determining factors were not necessarily unconstitutional, as race can be taken as a plus when considering factors for admission. Richmond v. Croson of 1989 struck down regulation that 30% of city contractors be minority owned. California's Proposition 209 involved regents at the University of California voting to eliminate race or gender as factors in employment, purchasing, contracting, and admissions. It was voted on by state residents the following year of 1996. It amended the state constitution, forbidding state agencies from discriminating against or granting preferential treatment to any individual or group in employment, education, or contracting. California, Texas, Louisiana, Mississippi, Georgia, Florida, and Washington have all abandoned affirmative action programs. Gatz v. Ballinger of 2003 involved a white high school student being denied admission to Michigan based on a selection index. Grutter v. Ballinger of 2003 was about a law school applicant who was denied acceptance. The Court upheld affirmative action in this case due to the fax that the school was making special efforts to achieve racial and ethnic diversity, using race as a part of individualized holistic approach to admissions instead of a factor in a mechanical ways.