I.

Definitions: Civil Liberties,

Civil Rights, & Human Rights
civil rights and liberties come from the Bill
of Rights, later amendments, and
Congressional laws

I. Definitions: Civil Liberties,

Civil Rights, & Human Rights
civil rights government guarantees of political
equality and equal treatment

civil liberties individual rights protected

by the Constitution against the powers of
the government
they are limits on what government can do

civil liberties: guarantee of freedom from

government interference (govt. doesnt act)
civil rights: guarantee of governments protection
of an individuals freedom against both other
individuals and the government (govt. acts to
help you)

I. Definitions: Civil Liberties,

Civil Rights, & Human Rights

II. Constitutional Basis for Civil

Liberties

human rights commonly held belief that

people deserve such basic rights as:
freedom from government prosecution
the right to an education
the right to a livelihood (paying job)
the right to legal equality

1. writ of habeas corpus order that

requires an official to bring a prisoner into
court and explain to the judge why the
person is being held in prison
simply, a person who is arrested must
have a timely hearing before a judge
this can only be suspended under times of
rebellion or national invasion

II. Constitutional Basis for Civil

Liberties

III. Nationalization of the Bill of

Rights

2. bills of attainder a person cannot be

found guilty of a crime without the benefit
of a trial
3. ex post facto law it is illegal to create
a law which retroactively makes some
action illegal
Article I of the Constitution forbids
Congress from revoking these three

until the 20th Century, the protections of

the Bill of Rights did not apply to the states
but only to the national government
1833 Barron v. Baltimore
Supreme Court ruled that the protections
of the Bill of Rights didnt apply to state
laws

III. Nationalization of the Bill of

Rights
the Court argued that state constitutions
provided civil liberties to citizens
however, this allowed states to
discriminate without the federal
government getting involved

III. Nationalization of the Bill of

Rights
a. 14th Amendment and Incorporation
this is known as incorporation, making the
federal Bill of Rights apply in the states
as part of incorporation, people are guaranteed
the due process of law
due process of law government must use fair,
reasonable, and standard procedures
whenever it takes legal action against an
individual (required by 5th and 14th
Amendments)

III. Nationalization of the Bill of

Rights
a. 14th Amendment and Incorporation
starting in the 1920s, the Supreme Court
also started applying the privileges and
immunities clause, which is part of the
14th Amendment and says that citizens
from out of state have the same legal
rights as local citizens in any state

III. Nationalization of the Bill of

Rights
a. 14th Amendment and Incorporation
14th Amendment said that all U.S.
citizens are citizens of both the U.S. and
the states in which they reside
it also said that all citizens deserve equal
protection under the law (this was used
to prevent the return of slavery)
so the protections of the federal Bill of
Rights also apply to the states

III. Nationalization of the Bill of

Rights
a. 14th Amendment and Incorporation
due process clause set out in the 5th and 14th
Amendments, it guarantees that the
government will not illegally deprive people of
life, liberty, or property
government has to provide:
1. fair procedures (procedural due process)
AND
2. cant violate your fundamental rights (rights
listed in Constitution) (substantive due
process)

IV. Freedom of Religion

1. free exercise clause portion of First
Amendment that prohibits Congress from
impeding religious observance or interfering with
religious beliefs
the government cannot do ANYTHING to
negatively affect peoples religious beliefs
however, the government can regulate religious
actions if these actions violate existing laws (ex.
drug use, human/animal sacrifice)

IV. Freedom of Religion

the First Amendment also bars the

government from establishing an official
national religion in the:
2. establishment clause (this is the basis
for the doctrine of separation of church
and state)
government cant pass laws establishing
or promoting a religion

IV. Freedom of Religion

IV. Freedom of Religion

Key Court Cases

1947 Everson v. Board of Education
established precedent (it was the first case
dealing with this issue & influenced future
rulings) on separation of church and state
Court said that money can go to benefit
students in general but not specifically for
religious purposes

Key Court Cases

1971 - Lemon v. Kurtzman
case in which Court specified the three
conditions that every law must meet to
avoid establishing religion (known as The
Lemon Test)

IV. Freedom of Religion

IV. Freedom of Religion

The Lemon Test

1. The law must have a secular (nonreligious) purpose. It is unconstitutional
if it has no secular purpose and only
promotes religion.
ex. A law which only benefits Protestants

The Lemon Test

2. The primary effect of the law must be
neither to advance nor to hurt religion
laws should be religiously neutral
3. Government must not create excessive
entanglements (too many connections)
between the state and religion

IV. Freedom of Religion

school vouchers certificates given by the
government to parents which allows them to
send their children to other public or private
schools
opponents have argued that money is given to
people for attendance at religious schools, thus
violating the separation of church and state
vouchers have stood because the courts have
ruled that the parents choose how to spend the
money, not the government

V. Freedom of Speech
the Constitutional protection of free
speech deals with:
1. spoken words
2. the press
3. symbolic speech expression of ideas,
beliefs, or opinions through forms other
than speech or print

V. Freedom of Speech

V. Freedom of Speech

Legal Principle: there is a difference

between
a) expression of ideas and statement of
thoughts &
b) fighting words, incitement, and
presenting a clear and present danger of
lawbreaking

fighting words words that can provoke the

average person to violence
the government is only allowed to intervene with
speech if there is a clear and present danger
clear and present danger standard based on
the 1919 court case Schenck vs. United
States, the Court said that Congress may limit
speech if it causes a clear and present danger to
the interests of the country

V. Freedom of Speech

V. Freedom of Speech

a. Restrictions on Expression
especially in times of war, the government has
tried to create restrictions on freedom of
speech:
espionage spying for a foreign power
sabotage destructive act intended to damage
the nations defensive efforts
treason carrying out war against the U.S.
seditious speech urges resistance to authority
or advocates overthrowing the government
(Schenck case)

a. Restrictions on Expression
commercial speech - advertising
statements that describe products,
receive less 1st Amendment protection
(i.e. liquor, cigarette, condom
advertising)

V. Freedom of Speech
b. Unprotected Speech
libel published report of something false
that injures a persons reputation or
character
slander spoken form of libel

VI. Freedom of the Press

the core requirement of freedom of the
press is a prohibition of prior restraint
prior restraint governments power to
prevent publication, as opposed to
punishment afterward
the accepted principle is that people
should be free to publish almost anything,
but they can face lawsuits or punishment
after it comes out

VI. Freedom of the Press

VI. Freedom of the Press

New York Times v. U.S. (1971) allowed

N.Y. Times, despite government
opposition, to publish the Pentagon
Papers
the Pentagon Papers explained U.S. entry
into the Vietnam War
the government claimed that they
possessed sensitive material Supreme
Court denied this

a. offensive mass media

when pornographic material is dealt with, the
legal issue is obscenity
obscenity indecency or offensiveness in speech
or expression, behavior, or appearance
it is the representation of sexually explicit
matter which violates community standards
and is without redeeming social importance or
value

VI. Freedom of the Press

VI. Freedom of the Press

a. offensive mass media

the most utilized test of whether something is
obscene or not comes from the Miller Test
(from Miller v. California 1973)

setting up a test makes it easier to judge future

cases dealing with the same topic
an allegedly obscene work is protected by
freedom of press if it can pass at least one part
of the Miller Test

Miller Test: something is judged obscene if:

1. average person, applying community
standards, must find that the work as a
whole appeals to prurient interests (lust)
2. state law must specifically define what
sexual conduct is obscene
3. the work as a whole must lack serious
literary, artistic, political, or scientific value

VII. Other Constitutional

Guarantees and Issues of Debate

VII. Other Constitutional

Guarantees and Issues of Debate

a. privacy
supporters of the right to privacy use the
9th Amendment to constitutionally justify
their argument
Griswold v. Connecticut (1965) Court
agreed with the right to privacy when it
struck down laws making birth control
illegal

a. privacy
Roe v. Wade (1973) Griswold v. Connecticut
was an important precedent in the decision
which said that women had the right to an
abortion
both Griswold and Roe were important in the
2003 decision which ended anti-sodomy laws
prohibiting consensual gay and lesbian sexual
relations (Lawrence v. Texas)

VII. Other Constitutional

Guarantees and Issues of Debate

VII. Other Constitutional

Guarantees and Issues of Debate

b. Rights of the Accused

the Warren Court (1953-1969) increased the
rights of the accused and held states to a strict
standard for due process
4th Amendment prohibits unreasonable
search and seizure
police can only conduct a search if they can
legally prove that there is evidence sufficient
enough to produce a search warrant
police can conduct a search if they ask your
permission and you agree

b. Rights of the Accused

Mapp v. Ohio (1961) Court stressed the
exclusionary rule
1. exclusionary rule prevents police and
prosecutors from using evidence against
a defendant that was obtained in an
illegal search

VII. Other Constitutional

Guarantees and Issues of Debate

VII. Other Constitutional

Guarantees and Issues of Debate

b. Rights of the Accused

2. self-incrimination 5th amendment says that
people are free to not give information to
authorities if it is self-incriminating
this is part of the reasoning behind the 1966
Miranda v. Arizona decision, in which the
Court ruled that law enforcement is required to
read a suspect his/her rights

b. Rights of the Accused

3. right to counsel 6th Amendment said
that people have the right to an attorney
Powell v. Alabama (1932) Court ruled
that legal counsel (attorneys) must be
supplied to all defendants unable to
afford attorneys in cases involving
capital crimes (any crime for which
death is a possible penalty)

VII. Other Constitutional

Guarantees and Issues of Debate

VII. Other Constitutional

Guarantees and Issues of Debate

b. Rights of the Accused

before this ruling, many poor people,
especially African-Americans in the
South, had been sentenced to death
without any legal representation
Gideon v. Wainwright (1963) extended this right to counsel for anyone
accused of a felony

b. Rights of the Accused

4. capital punishment 8th Amendment
prohibits cruel and unusual punishment by
the authorities
1972 - the Court ruled that the death penalty
constituted cruel and unusual punishment
and abolished it
this was overturned in 1976 but the Court
created higher standards that states had to
meet in order for a case to qualify for the death
penalty