Civil Liberties and Civil Rights

Civil Liberties- First Amendment Freedoms

Civil Liberties and Civil Rights

A. Civil liberties

1. Protections against government

  • Ex: freedom of speech
  • Ex: guarantee of a fair trial

B. Civil rights

1. Positive acts of government that seek to make constitutional guarantees a reality for all people

  • Ex: prohibiting discrimination based on race, sex, religious belief, or national origin

Federalism and Individual Rights

A. The Bill of Rights apply only to the National Government

B. The Fourteenth Amendment’s Due Process Clause

1. Applies to the States

2. “No State shall…deprive any person of life, liberty, or property, without due process.”

C. Process of incorporation

1. The including of most of the guarantees of the Bill of Rights into the Fourteenth Amendment’s Due Process Clause

2. Gitlow v. New York (1925)

  • Benjamin Gitlow had advocated overthrowing the government
  • The Court ruled freedom of speech and press are “among the fundamental personal rights and liberties protected by the Due Process Clause of the Fourteenth Amendment from impairment by the States”
  • Other cases also found State laws unconstitutional because they violated the Fourteenth Amendment’s Due Process Clause
Selective Incorporation

You will need to review your notes from class for extensive knowledge of Civil Liberties

Freedom Of Religion

Establishment Clause

A. The First Amendment guarantees the freedom of religion

B. The Establishment Clause

  • Established the precedent of separation of church and state
  • The government cannot interfere with “the free exercise of religion”

C. Separation of church and state

  • How high is this “wall” of separation of church and state?

D. Religion and education

1. Parochial schools

2. Many cases involving the Establishment Clause have dealt with religion and education

3. The Court has struck down “released time” programs

  • Allow students to attend religious classes during public school hours
  • McCollum v. Board of Education (1948)

4. Prayer and the Bible

a. Engel v. Vitale (1962)

  • Outlawed a prayer created by the New York State Board of Regents to be read at public schools

b. Stone v. Graham (1980): ruled it to be unconstitutional to post a copy of the Ten Commandments in all public school classrooms

c. Santa Fe Independent School District v. Doe (2000): struck down student-led prayers at high school football games

5. Should States have the power to aid parochial schools?- the Lemon Test

Lemon v. Kurtzman (1971)

  • The purpose of aid must be secular (not religious)
  • Must not advance or inhibit any religion
  • Must avoid an “excessive entanglement of government with religion”

The Free Exercise Clause

1. Guarantees to each person the right to believe whatever he/she chooses in matters of religion

2. But does not allow anyone to practice that religion however they want

  • Ex: Mormons cannot practice polygamy because of Reynolds v. United States (1879)

Freedom of Speech

A. Two fundamental purposes

  • For the people to have a say
  • The right to hear what others have to say

B. No one has complete freedom of speech or press

  • Libel: the false and malicious use of printed words
  • Slander: false and malicious use of spoken words
  • Cannot print and mail obscene materials
  • Cannot use words to prompt others to commit a crime

C. Free speech and sedition

1. Undermining one’s nation

  • Sedition: crime of attempting to overthrow the government or disrupt its lawful activities
  • Espionage: spying for a foreign power
  • Sabotage: act of destruction intended to hinder a nation’s war effort
  • Treason: betraying one’s country by aiding and offering comfort to its enemies

Schenck v. United States (1919)

i. Charles Schenck had urged men to resist the draft and was convicted for violating the Espionage Act

ii. The Court upheld the conviction based on the clear and danger rule- “words can be weapons…the question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger”

2. Obscenity

Miller v. California (1973): defines obscenity

i. If community standards find it to be obscene

ii. Over-the-top sexuality

iii. The work lacks serious artistic, literary, political, or scientific value

3. The media

a. Shield laws: a law which gives reporters some protection against having to disclose their sources or reveal other confidential information in legal proceedings

b. The Federal Communications Commission (FCC)

i. Regulates television and radio broadcasting

ii. The Court basically sees broadcasting as interstate commerce

iii. Prohibits indecent language and there are punishments for violations

4. Symbolic speech

a. Expression by conduct; communicating ideas by facial expression, body language, or by carrying a sign or wearing an armband

b. United States v. O’Brien (1968)

i. Young men were burning draft cards during the Vietnam War

ii. The Supreme Court ruled against this form of symbolic speech

c. Tinker v. Des Moines (1969)

i. Junior high students were wearing black armbands to protest the Vietnam War and were suspended

ii. The Court upheld their right to wear armbands as a form of symbolic speech

d. Flag burning

i. Extremely controversial because the American flag is so symbolic

ii. The Court upheld the right to burn the flag as symbolic speech in Texas v. Johnson (1989)

5. Commercial speech

a. Speech for business purposes

Ex: advertising

c. The Court often protects commercial speech except false and misleading advertisements because of the First and Fourteenth Amendments

Freedom of Assembly and Petition

To gather with one another

The people can assemble peacefully according to the First Amendment

A. Restrictions of assembly

Cannot if streets are blocked, it incites violence, or property is endangered

Government can limit and regulate assemblies

    Ex: a city ordinance the prohibits assemblies if they disrupt school

    Cox v. New Hampshire (1941): upheld laws that require advance notice and permits for demonstrations in public places

    B. Content neutral: the government cannot regulate assemblies on the basis of what might be said

C. Gregory v. Chicago (1969): as long as demonstrators acted peacefully, they could not be punished if violence did break out

D. Right of association

Other Civil Liberties

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The Right to Keep and Bear Arms

A. Second Amendment: right to bear arms

B. United States v. Miller (1939)

  • The Court ruled the Second Amendment is not covered by the Fourteenth Amendment’s Due Process Clause and each State can limit the right to keep or bear arms

Security of Home and Person

Third Amendment

1. Prohibits the quartering (housing) of troops

Fourth Amendment

1. Writs of assistance: blanket search warrants

2. Prohibits unreasonable search and seizures

Probable Cause

1. Reasonable suspicion of a crime

2. Minnesota v. Carter (1999): police can conduct a search if evidence is in plain view

3. But most times police need a warrant


1. Police do not need a warrant- often have probable cause

  • Ex: a man who ran away from the cops for no reason- there was enough probable cause to search him


1. Unlawful search and seizures do not often apply to cars or other vehicles because they are basically moving crime scenes

2. In California v. Acevedo (1991) the Court ruled the police do not need a search warrant to search your glove compartment or anything else in your car

The Exclusionary Rule

1. Evidence gained as a result of an illegal act of the police cannot be used at trial

2. Mapp v. Ohio (1961)

  • The Court ruled the Fourteenth Amendment forbids unlawful search and seizure applies to State and local officials
  • Dolloree Mapp’s conviction was overturned because the evidence was obtained without a warrant

Drug testing

1. The Court has found drug-testing for jobs can occur without warrants

2. Skinner v. Federal Railway Labor Executives Association (1989)


1. “Bugging”

2. Cannot be installed without a proper search warrant- Katz v. United States (1967)

Rights of the Accused

“It is better that ten guilty persons go free than one innocent man be punished.”

Writ of habeas corpus

1. Court order which prevents unjust arrests and imprisonments

2. Can only be suspended in times of war

Bill of attainder

1. Legislative act that inflicts punishment without a court trial

2. Banned by the Constitution because the Founding Fathers had a bad experienced under British rule

Ex post facto laws

1. A law passed after the act was committed

2. Cannot punish a person for a crime that was not in the books yet

Grand jury

1. The formal device by which a person can be accused of a serious crime

2. Meets in private

3. It does not determine the guilt or innocence of the defendant

4. Required by the Fifth Amendment

5. Indictment: formal complaint before a grand jury when a prosecutor charges the accused of one or more crimes

6. If the grand jury finds there is enough evidence there will be a trial, if not- charges will be dropped

7. Mainly done in federal courts

Double jeopardy

1. Once a person is tried for a crime, he cannot be tried again for the same crime

2. Fifth Amendment

3. Exceptions

  • But a person can be charged with both federal and State charges
  • A single act can actually commit more than one crime
  • No verdict- no double jeopardy because it is as if there as no trial in the first place

Speedy and public trial

1. Sixth Amendment

2. Speedy Trial Act of 1974

Ex: a judge may bar media coverage of a trial if it is disruptive and discourages a fair trial

Trial by jury

1. The Sixth Amendment requires a trial by jury in federal criminal cases

2. A defendant may choose to waive his right to a trial by jury

  • A judge may override this right
  • Bench trial: a judge alone hears the case

3. For federal crimes and several State crimes a conviction can only occur if the jury is unanimous

Right to an adequate defense

1. Sixth Amendment

  • Right to be informed of the charges against you
  • Right to confront your accuser
  • Witnesses can be subpoenaed to testify
  • The right “to have Assistance of Counsel for his defense”
  • If any of these rights are denied, a conviction can be appealed because of the Due Process Clause

2. Gideon v. Wainwright (1963)

a. Clarence Gideon had robbed a pool hall and was too poor to afford an attorney to defend him

b. Gideon was convicted

c. The Court ruled one has the right to an attorney


1. The burden of proof is on the prosecutor to find the defense guilty- not for the defense to prove his innocence

2. You cannot be forced to testify against yourself

  • Prohibited by the Fifth Amendment
  • Defendants plead the Fifth if they do not want to testify

3. Not unlimited

a. Ex: suspects can be required to submit samples or appear in a police lineup

4. Miranda v. Arizona (1966)

a. Ernesto Miranda was arrested and not informed of his rights

b. The Miranda Rule was established to inform criminal suspects of their rights

  • i. Right to remain silent
  • ii. Anything you say may be used in Court against you
  • iii. Right to an attorney
  • iv. Right to end police questioning at any time


1. The Eighth Amendment: prohibits cruel and unusual punishment and excessive bail

2. Bail

  • a. Sum of money that the accused may be required to deposit with the Court (to post) as a guarantee that he or she will appear in court at the proper time
  • b. Can be denied if it is feared the defendant will “jump bail”

3. Preventative detention

  • a. Federal judge orders that an accused felon be held without bail when there is good reason to believe he will commit a serious crime before the trial
  • b. Upheld in United States v. Salerno (1987)

4. Cruel and unusual punishment

a. The Court has typically found most claims before it to not be cruel and unusual punishment

  • i. The death penalty
  • ii. Death by electrocution or firing squad
  • iii. Putting two inmates in a cell built for one

b. But in Estelle v. Gamble (1976) the Court ruled a prison inmate could not be denied medical care

5. Capital punishment

a. Punishment by death


1. The Founding Fathers were afraid charges of treason would be used for political purposes

2. The only crime defined in the Constitution

3. Can only occur in wartime

4. Requires the testimony of two witnesses to the same overt act

5. Punishable by death

Civil Rights Amendments

Race-Based Discrimination


1. History of slavery à freedom à Jim Crow laws

2. Civil rights movement of the 1950s-1960s

  • Ex: Martin Luther King Jr.
  • Civil Rights Act of 1964 and Voting Rights Act of 1965

Native Americans

1. History of disease, war, and being removed from their land

2. Reservations

  • a. Public land set aside for Native Americans to live
  • b. Poverty, high unemployment, alcoholism, etc.

Hispanic Americans

1. Largest minority group and one of the fastest growing

2. Includes those with Spanish-speaking background:


1. Assimilation: process where people of one culture merge into and become part of another culture

2. Chinese Exclusion Act (1882): banned Chinese immigration to the United States

3. Includes Indians and Pakistanis as well as Orientals

Discrimination Against Women

A. In early American history women were denied property rights, educational opportunities, suffrage, etc.

B. Seneca Falls Convention (1848)

  • 1. Elizabeth Cady Stanton and Susan B. Anthony
  • 2. Declaration of Sentiments called for woman suffrage

C. Nineteenth Amendment (1920): women were granted suffrage

D. Discrimination today

1. Women are underrepresented in higher levels of government and in many professions

2. Many women earn less money than men

a. “Glass ceiling”: invisible barriers that prevent workers from reaching the higher echelon of companies


Equal Protection Clause

Found in the Fourteenth Amendment

A “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”

B. The government does make distinctions between people but it cannot discriminate unreasonably

C. Methods used to decide Equal Protection cases

  • 1. Rational basis test: does the classification in question place a reasonable relationship to the achievement of some proper governmental purpose?
  • 2. The strict security test: the State must show some “compelling government interest” justifies the distinctions it has drawn
11. AP60X - Equal Protection Clause

Segregation in America

The separation of one group from another

A. Types of segregation

- De jure segregation

  • i. Segregation by law
  • ii. Ex: Jim Crow Laws

- De facto segregation

  • i. Segregation that exists even if there are no segregation laws
  • ii. Ex: housing patterns
  • iii. Swann v. Charlotte-Mecklenburg Board of Education (1971) ruled busing could be used to increase diversity of school districts

B. Jim Crow Laws

1. Laws that separated people by race mainly in the American South between the 1880s and 1960s

- Ex: separate schools, restrooms, parks, hotels, seating arrangements, etc. for whites and African-Americans

3. The Supreme Court upheld this system of “separate but equal” in Plessy v. Ferguson (1896)

C. Chipping away at segregation and Jim Crow

1. Gaines v. Canada (1938)

  • a. Lloyd Gaines could not attend law school at the University of Missouri because there was none for blacks
  • b. The Court ruled Missouri must either admit Gaines or create a separate law school for African-Americans

2. Sweatt v. Painter (1950): struck down segregation at the University of Texas Law School

3. Brown v. Board of Education (1954)

  • a. The Court ruled Plessy v. Ferguson (1896) and separate but equal to be unconstitutional
  • b. Brown II (1955): ruled integration must take place “with all deliberate speed”
  • c. The South vigorously resisted this ruling and integration proceeded very slowly

D. The end of de jure segregation

1. Civil Rights Act of 1964: forbids the use of federal funds to aid any State or local activity where segregation is practiced

2. Alexander v. Holmes County Board of Education (1969): demanded immediate integration

Classification by Sex

A. Not until 1971 did the Supreme Court really find sex-based discrimination to be unconstitutional in Reed v. Reed (1971)

Civil Rights Act of 1964

A. The most groundbreaking of the civil rights acts

B. Outlaws discrimination in a number of areas

C. Provisions

  • 1. No person regardless of race, color, religion, or national origin may be refused access to public accommodations
  • 2. Federal funds can be cut off from programs that discriminate
  • 3. Employers cannot discriminate based on race, color, religion, sex, physical disability, or age in job-related matters

D. Civil Rights Act of 1968

  • 1. Also known as the Open Housing Act
  • 2. Forbids anyone to refuse to sell or rent a dwelling to any person regardless of race, color, religion, national origin, sex, or disability

Affirmative Action

A. Policy that requires most employers to take positive steps to remedy past discrimination

Applies to:

1. Agencies of the Federal Government

2. States and their local governments

3. Private employers who do business with the Federal Government

- Thus, a certain number of minorities and women must be hired and promoted (quotas)

- Reverse discrimination?

1. Discrimination against the majority group (whites)

2. This is what critics of affirmative action say the Constitution and public policies should be “color-blind”

Regents of the University of California v. Bakke (1978)

1. The State medical school reserved a certain number of seats for nonwhite students

2. Alan Bakke, a white applicant, was not admitted even though he was extremely qualified

3. Bakke sued charging the university with reverse discrimination

4. The Court ruled race cannot be the only factor in affirmative action programs but it is allowed to be used as one among several factors

Adarand Constructors v. Pena (1995)

1. Until this point the Court was much more favorable toward affirmative action

2. This case severely weakened affirmative action

3. Justice Sandra Day O’Connor: “The Constitution protects persons, not groups.”


Defined in the Fourteenth Amendment

1. By birth:

a. Jus soli

  • i. “Law of the soil”
  • ii. One’s citizenship is determined by wherever one is born

b. Jus sanguinus

  • i. “Law of the blood”
  • ii. If a child is born to American citizens he can fairly easily become a citizen even if he is born abroad

2. By naturalization

  • a. The legal process by which a person becomes a citizen of another country
  • b. Only the Federal Government can provide naturalization
  • c. Alien: citizen of a foreign state living in this country
  • d. The Immigration and Naturalization Service (INS)

3. Loss of citizenship

1. Expatriation

  • a. The legal process by which a loss of citizenship occurs
  • b. Congress cannot take away one’s citizenship for something he has done

2. Denaturalization

  • a. Process by which a naturalized citizen may involuntarily lose their citizenship
  • b. Only happens if it is proven naturalization occurred by fraud or deception

4. A history of immigration

1. From the very beginning the United States has been a nation of immigrants

2. Chinese Exclusion Act of 1882

  • 1917: federal law required a literacy test

3. Shift from mainly European to non-European groups (Asians, Latinos, Africans, etc.)

4. . Immigration Act of 1990: further increased the number of immigrants allowed into the country

5. Deportation

1. Legal process by which aliens are legally required to leave the country

2. The Federal Government has broad powers to do this

3. Requires no criminal trial

4. Most people who are deported today are illegal immigrants who get caught

6. The problem of illegal aliens

1. About 12 million illegal aliens reside in our nation today

2. Employers like to hire illegal aliens because they can pay them less than citizens and they do the dirty work of society

3. But illegal aliens place a great stress on public services

  • a. Schools b. Welfare c. Hospital