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Civil Liberties and Public Policy

The Bill of RightsThen and Now.99

Civil Liberties: The legal constitutional protections against government.
Formally set down in Bill of Rights.
Courts, police, legislature defines meaning.
Bill of Rights: First 10 amendments which define basic liberties.
All state constitutions had Bills of Rights in 1787.
Bill of Rights:
o 1Freedom of religion, speech, press, assembly, and petition.
o 2Right to have guns
o 3Government cannot, without consent, put soldiers in civilian homes (called
o 4Governments must have warrant with probable cause backed by evidence before
they search or seize someones property.
o 5Everyone is entitled to due process of law, property cant be taken without
compensation, doesnt have to claim guilty, and grand juries.
o 6Right to a trial soon after arrest, unbiased jury of the state that the crime was
committed in, and the convicted has to know what he/she is being charged with.
o 7In cases involving over $20, a jury has to be there.
o 8Bail has to be posted and cannot be too expensive and cruel and unusual
punishment cannot be used.
o 9There are some fundamental rights (granted by the constitution) to the people that
cannot be taken away.
o 10Whatever laws arent under control by the federal government, and are allowed to
go to the states, go to the states.

The Bill of Rights and the States..99

Bill of Rights was written to restrict the powers of the new national government.
In 1791, Americans were comfortable with their state governments.
A literal reading of the 1st amendment suggests that it doesnt prohibit a state government from
restricting religion, press, petition, etc.
Barron v. Baltimore: 1833 Supreme court decision that said that the Bill of Rights restrained only
the national government, not the states and cities.
In short, Barron v. Baltimore restrained only the national government, not states and cities.

Almost 100 years later, court decided that states must respect at least some 1st amendment
Gitlow v. New York: The 1925 ruling holding that freedoms of press are Fundamental personal
rights protected by the due process clause of 14th amendment.
Gave former slaves legal protection and ensured voting rights.
Ratified in 1868.
14th amendment: No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the US nor shall any sate deprive of nay person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Incorporation Doctrine: The legal concept under which the Supreme Court nationalized the Bill
of Rights by making most provisions available to states through 14th amendment.
Not everyone agreed that the 14th amendment incorporated parts of the Bill of Rights.
At first, only parts of the 1st amendment were binding on the states as a result of Gitlow.
During 1960s, in Warrens court, the Court applied most of the Bill of Rights to the states.
Only the 2nd, 3rd, and 7th amendment as well as the part of the 8th amendment about excessive
bail had not been specified directly to the states.

Freedom of Religion..100
1st amendment contains 2 parts about religion and government.
The first thing is that the government cant set up a national church or synagogue or mosque or
any establishment of religion.
The second thing is that government cant stop people from praying to whomever and however
they want so as long as its not sacrificial.
It isnt very clear as to what else the first Congress intended to be included in the establishment
Thomas Jefferson said that the wall between church and state forbade support of religion
Lemon v. Kurtzman: 1971 Court Decision that established the Lemon test for whether or not the
government should aid religious schools.
It contains the 3 following rulesSchools must:
o Have a secular legislative purpose.
o Have a primary effect that neither advocates nor inhibits religion.
o Not foster an excessive government entanglement with religion.
Supreme court decided in 1997 in Agostini v. Felton that public school systems could send
teachers into parochial schools to teach remedial and supplemental classes to needy children.
Zelman v. Simmons-Harris: The 2002 case that upheld a state providing families with vouchers
that could be used to pay for tuition at religious schools.

In 1984 Equal Access Act, Congress made it unlawful for any public high school receiving federal
funds to keep students from using school facilities for religious worship if the school opens its
elementary schools.
In 1980, the Court prohibited the posting of the Ten Commandments on the walls of public
In 1962-1963, Supreme Court ruled that voluntary recitations of prayer of Bible passages, when
done as part of classroom exercise in public schools violated the establishment clause.
In Engel v. Vitale, the justices observed that the place of religion in our society is an exalted one,
but in the relationship between man and religion, the State is firmly committed to a position of
Also declared requirement of Bible reading unconstitutional.
The last few years have been marked b y great ferment in the relationship between religion and
American political life.
Fundamentalist Christian groups have pressed some state legislature to mandate the teaching of
creation sciencetheir alternative to Darwinian theories of evolution.

The Free Exercise Clause104

The 1st amendment allows people to practice any religion they choose, as well as no religion at
Problems arise when religious institutions disagree with things that other religious institutions
call moral necessities. And or vice versa; religions may require its participants to perform actions
deemed unlawful by the government.
The courts have been more cautious about the right to practice a belief (in order to avoid
human sacrifices).
Employment Division v. Smith in 1988, the Court got rid of a requirement for a compelling
interest before a government could indirectly limit or prohibit religious practices.
In the Religious Freedom Restoration Act of 1993, Congress attempted to over-turn the principle
created in Smith.

Freedom of Expression.105
First amendment forbids the restriction of expression.
The courts have been called upon to decide where to draw the line between speech thats ok
and speech thats not so much.
In 1992, Courts decided that legislatures and universities cannot single out a racial, sexual,
religious, or ethnic group and protects them from hate speech and hate crimes.
Obscenity and libel do not qualify as speech and arent protected by the first amendment.
Prior Restraint: A government preventing material from being published.
Common method of limiting press.

Usually unconstitutional according to 1st amendment and confirmed in the 1931 case of Near v.
Near v. Minnesota: The 1931 Supreme Court decision holding that the First Amendment
protects newspaper from prior restraint.
Prior restraint was used, however for books written by ex-CIA operatives in the interest of
national security.

Free Speech and Public Order107

Schenk v. United States: a 1919 decision upholding the conviction of a socialist who had urged
young men to resist the draft during WW1.
Justice Holmes declared that government can limit speech if the speech provokes a clear and
present danger of substantive evils.
Only when danger exists can government restrict speech.
Courts confronted issue of free speech in 1940s and 50s when anti-communist speech was a
big thing.
Dennis v. United States: Supreme Court upheld the prison sentences for several Communist
Party leaders for conspiring to advocate the violent overthrow of the governmenteven in the
absence of evidence that they actually urged to commit specific unlawful actions.
Later, the court made it harder to prosecute dissenters.
1960s brought waves of protests which strained the concept of free speech.

Free Press and Fair Trials112

Inexhaustible source of potential conflicts.
Argument has arisen that the media has begun to interfere with court cases.
The public, however, has a right to know.
Sometimes reporters want access to courts, but dont want the courts to have access to their
Some states have passed shield laws, protecting reporters from being forced to disclose
anonymous identities.
Supreme Court ruled in Branzburg v. Hayes in 1972 that in the absence of shield laws, the right
to a fair trial preempts the reporters right to protect sources.
Zurcher v. Stanford Daily: A 1978 decision holding that a proper search warrant could be applied
to a newspaper as well as to anyone else without violating the 1st amendment to the freedom of
the press.

Movie day=annual event where movies brought before the court on obscenity charge were
played in a basement storeroom.
Several justices boycotted these showings.
Roth v. United States: 1957 Case ruling that obscenity is not within the area of constitutionality
protected by speech or press.
Miller v. California: A 1973 Court decisions that avoided defining obscenity by holding that
community standards be used to determine whether material is obscene in terms of appealing
to a prurient interest and being Patently offensive and lacking in value.
There were 3 conditions:
o The work appealed to a prurient interest in sex
o The work showed patently offensive sexual conduct that was specifically defined by an
obscenity law.
o The work, taken as a whole, lacked serious literary, artistic, political, or scientific value.
A reason why obscenity convictions can be difficult to obtain is that no nationwide consensus
exists that offensive material should be banned.
In 1996, Congress passed the Communications Decency Act, banning obscene material and
criminalizing the transmission of indecent speech or images to anyone under 18.

Libel and Slander.115

Libel: The publication of false or malicious statements that damage someones reputation.
Slander: Spoken defamation rather than written.
New York Times v. Sullivan: Decided in 1964, this case established guidelines for determining
whether public officials and public figures could win damage suits for libel.
To do so, they must prove that the statements were made with actual malice and reckless
disregard for the truth.
In one widely publicized case, General William Westmoreland, once the commander of the
troops in South Vietnam sued CBS about them lying to Washington about making it seem like we
were winning the war.
CBS won.

Symbolic Speech..117
Freedom of speech=freedom of expression.
Texas v. Johnson: A 1989 case in which the Supreme Court struck down a law banning the
burning of the American flag on the grounds that symbolic speech was protected by the 1st
Symbolic Speech: Nonverbal communication, such as burning a flag or wearing an armband.

Protected by 1st amendment.

Commercial Speech
Commercial Speech: Communication in the form of advertising. It can be restricted more than
many other types of speech but has been receiving increased protection from the Supreme
Federal Trade Commission decides what kinds of goods may be advertised on radio and

Regulation of the Public Airwaves118

FCC in charge of regulating broadcast.
Miami Herald Publishing Company v. Tornillo: A 1974 case in which the Supreme Court held that
a state could not force a newspaper to print replies from candidates it criticized, illustrating the
limited power of government to restrict the print media.
Red Lion Broadcasting Company v. Federal Communications Commission: A 1969 case where the
Court held restrictions on radio and television broadcasting.
These restrictions are much tighter than those on the print media.
FCC held rules restricting what words can be said over the radio where kids might hear.
In 2000, the USA v. Playboy Entertainment Group, the Court agreed that it was unconstitutional
to ban the broadcast of sexually oriented networks because it restricted broadcasting to
households without children as well as those with.

Freedom of Assembly
1st amendment grants right to peacefully assemble.
Gathering together in order to make a statement.
Within reasonable limits, it includes right to demonstrate.
No spontaneous demonstrations.
Permits required as well as prior approval.
Balance of freedom and order is tested when people get harmed in the process.
1st amendment right to assembly also includes right to associate.
Right to associate= freedom to associate with people who share a common interest, including
an interest in political action.
NAACP v. Alabama: The Supreme Court protected the right to assemble peaceably in this 1958
case when it decided that the NAACP didnt have to reveal its membership list.

Defendants Rights.120
Today, the protections in the 4th, 5th, 6th, 7th, and 8th amendments apply for justice and the
system of the law.
Bill of rights sets out civil liberties that American citizens have if they are arrested or brought to

Searches and Seizures

Police cannot arrest a citizen without a reason (4th Amendment).
They must have a warrant that is backed by probable cause.
Probable cause: The situation occurring when the police have reason to believe that a person
should be arrested.
When they obtain a warrant, they can legally search or seize objects that can legally be used in
Unreasonable searches or seizures: Obtaining evidence in a haphazard or random manner, a
practice prohibited by the 4th Amendment. Probable cause and/or a search warrant are required
for a legal and proper search for and seizure of incriminating evidence.
Search warrant: A written authorization to search an area for specific objects.
Warrants= Constitutional requirements.
Ever since 1914, Courts have used an exclusionary rule.
Exclusionary rule: The rule that evidence, no matter how incriminating, cannot be used in a trial
if it was not constitutionally obtained.
Mapp v. Ohio: The 1961 case that ruled that the 4th amendments protection against
unreasonable searches or seizures must be extended to the states as well as the federal
Conservative court made some exceptions to exclusionary rule.
Court allowed the use of illegally obtained objects that would have come up eventually in a
search if given more time.
USA Patriot Act, passed in response to 9/11, gave police more ability to wiretap, conduct
surveillance, and investigation of terror suspects.

5th Amendment: The constitutional amendment designed to protect the rights of persons
accused of crimes, including protection against double jeopardy, self incrimination, and
punishment without due process.
Self Incrimination: The situation occurring when an individual accused of a crime is compelled to
be a witness against himself in court.

Miranda v. Arizona: The 1996 Supreme Court decision that sets guidelines for police questioning
of accused persons to protect them against self incrimination and to protect their right to
Court established that suspects must be told:
o They have a right to remain silent and may stop answering questions at any time.
o What they say can and will be used against them in a court of law.
o They have a right to have a lawyer present during questioning and that the court will
provide an attorney if they cannot afford one.
Court decided that a coerced confession introduced in a trial doesnt automatically taint a

Right to Council
6th amendment: The constitutional amendment designed to protect individuals accused of
crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy
Applied to federal courts. But most litigation was held in federal courts.
Gideon v. Wainwright: The 1963 Supreme Court Case holding that anyone accused of a felony
where imprisonment may be imposed, however poor he or she might be, has the right to a
6th amendment applied to everyone.

Plea bargaining: A bargain struck between the defendants lawyer and the prosecutor to the
effect that the defendant will plead guilty to a lesser crime in exchange for the states promise
not to prosecute the defendant for a more serious crime.
Critics believe that it permits many criminals to avoid full punishment for crimes.
Constitution doesnt specify jury size.
In Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the court held that other
than a previous conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory max or even the ordinary range must be submitted to a jury and proved beyond a
reasonable doubt.
Habeas Corpus = people who are arrested have the right to be brought before a judge.

Cruel and Unusual Punishment

8th amendment: The constitutional amendment that forbids cruel and unusual punishment,
although it doesnt define this phrase.

Cruel and Unusual Punishment: Court sentences prohibited by the 8th amendment. Although the
Court has ruled that mandatory death sentences for certain offenses are unconstitutional, it has
not held that the death penalty itself constitutes cruel and unusual punishment.
Death penalty debated about whether it constitutes cruel and unusual.
Gregg v. Georgia: 1976 Case that decided that the death penalty was constitutional.
It is an extreme sanction, only used for the most suitable of extreme crimes.
McCleskey v. Kemp: The 1987 decision that upheld the constitutionality of the death penalty
against charges that it violated the 14th amendment because minority defendants were more
likely to receive the death penalty than white defendants.

The Right to Privacy129

Right to privacy: The right to a private personal life free from the intrusion of government.
Idea was first discussed in 1965 case of Griswold v. Connecticut.
Roe v. Wade: The 1973 Supreme Court decision holding that a state ban on all abortions was
Decision forbade state control over abortions during 1st trimester of pregnancy.
Permitted states to limit abortions to protect the mothers health in 2nd trimester.
Protected the fetuses in 3rd trimester.
Congress has passed several statutes forbidding the use of federal funds on abortions.
Planned Parenthood v. Casey: A 1992 Case in which the Court loosened its standard for
evaluating restrictions on abortion from one of strict scrutiny of any restraints on a
fundamental right to one of undue burden that permits considerably more regulation.

Understanding Civil Liberties132

Rights ensured by 1st amendment are crucial to democracy.
Individual participation and the expression of ideas are components of democracy.

Civil Rights and Public Policy

Racial Equality: Two Centuries of Struggle.140
Disputes over civil rights have raised constitutional questions over slavery, segregation, equal
pay, and a bunch of other stuffyeah.
Civil Rights: Policies designed to protect people against arbitrary or discriminatory treatment by
government officials or individuals.
3 types of discrimination:
o Racial Discrimination: Two centuries of discrimination against racial minorities have
produced historic court and congressional policies.
o Gender discrimination: The role of women in American society has changed
substantially since the 1700s. However, equal rights for women have yet to be
constitutionally guaranteed. Equal Rights Amendment wasnt ratified.
o Discrimination based on age, disability, and sexual orientation: As America is getting
older, older Americans are demanding a place under the civil rights umbrella. Also
seeking constitutional protections against discrimination are groups such as gays,
lesbians, people with AIDS, and the homeless.
Jeffersons statement in the Dec. of Independence that all men are created equal didnt mean
that he believed everyone was exactly alike or that there werent any differences among
American society isnt necessarily geared towards equal results or equal rewards.
More than 200 years ago, there was much less equality than there is today.
Bill of rights isnt discriminate.
14th Amendment: Constitutional amendment put in after the Civil War.
No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection
of the laws.
Equal Protections of the laws: Part of the 14th amendment emphasizing that the laws must
provide equivalent protection to all people.
In Strauder v. West Virginia (1880), The Supreme Court invalidated a law barring African
Americas from jury service.
Over last 100 years, equal protection clause has become the vehicle for more expansive
constitutional interpretations.

Race, the Constitution, and Public Policy143

Blacks are the most visible minority group in the United States.
3 periods of struggle for blacks:
1. Era of slavery-From beginnings of colonization to the Civil War in 1865.
Most slave owners were wealthy and had a good political position.
Scott v. Sandford: The 1857 Supreme Court decision ruling that a slave who had escaped to a
free state enjoyed no rights as a citizen and that Congress had no authority to ban slavery in the
End of Civil War and ratification of 13th amendment ended slavery.
13th amendment: The constitutional amendment after the Civil War that forbade slavery and
involuntary servitude.
2. Era of Reconstruction and Resegregation-From end of civil war until 1953.
Many black men held state and federal offices during the ten years following the war.
Rutherford Hayes promised to remove troops from southern states if he was elected.
Southerners imposed Jim Crow laws which segregated blacks from whites.
Plessy v. Ferguson: 1896 court decision that provided a constitutional justification for
segregation by ruling that a Louisiana law requiring equal but separate accommodations for the
White and colored races was constitutional.
3. Era of Civil rights- From 1953 to current.
Brown v. Board of Education: The 1954 Supreme Court decision holding that school segregation
in Topeka, Kans, Was inherently unconstitutional because it violated the 14th amendments
guarantee of equal protection under the laws. This marked the end of segregation in the U.S.
Civil Rights Act of 1964: The law that made racial discrimination against any group in hotels,
motels, and restaurants illegal and forbade any forms of job discrimination.
Created EEOC to monitor and enforce protections against job discrimination.
Authorized the U.S. Justice Department to initiate lawsuits to desegregate public schools and

Getting and Using the Right to Vote..149

Suffrage: The legal right to vote extended to blacks by the 15th amendment and to women in the
19th amendment and to people over 18 by the 20th amendment.
15th Amendment: adopted in 1870, constitutional amendment to extend suffrage to blacks.
Many states required literacy tests before being eligible to vote.
Poll taxes: Small taxes levied on the right to vote that often fell due at a time of year when poor
black sharecroppers had the last cash on hand.
Used by Southern states to exclude blacks.
Declared void by 24th amendment.

24th amendment: The constitutional amendment passed in 1964 that declared poll taxes void in
federal elections.
White Primary: One of the means used to discourage blacks from voting that permitted political
parties in the heavily Democratic South to exclude blacks from primary elections, thus taking
away their ability to have a voice in political matters.
Voting Rights Act of 1965: A law designed to help end formal barriers to black suffrage.
Effects of efforts swift and clean.

Other Minority Groups

Native Americans:
In 1924, American Indians were made citizens of the United States.
Supreme Court strengthened tribal power of individual tribe members and furthered the selfgovernment of tribes in Santa Clara Pueblo v. Martinez (1978).
NARF (Native American Rights Fund)
Hispanic Americans:
Latino political power started to grow in the mid 1960s with the blacks.
MALDEF (Mexican-American Legal Defense and Education Fund) created to help Latinos (their
version of the NAACP)
Asian Americans:
Suffered discrimination until civil rights acts.
Korematsu v. United States upheld that internment camp of Japanese Americans during WWII
was constitutional.
Other Groups:
Muslim groups face discrimination since 9/11 attacks.

Women, the Constitution, and Public Policy.155

19th Amendment: The constitutional amendment that was adopted in 1920 that gave women
the right to vote.
Not much happened between 1920-1960
Equal Rights Amendment: A constitutional amendment originally introduced in Congress in 1923
and passed by Congress in 1972 stating that equality of rights under the law shall not be denied
or abridged by the U.S. or by any state on account of sex. Despite public support, the
amendment failed to acquire the necessary support from 3/4ths of the state legislatures.
Civil Rights movement attracted many feminist activists.
National Organization for Women was established.
Reed v. Reed: The landmark case in 1971 in which the Court for the first time upheld a claim of
gender discrimination.
Ruled that arbitrary gender-based discrimination violated the equal protection amendment.

Craig v. Boren: (1976) Court established the medium scrutiny standard for determining gender
As far as women in the workplace, the number of female workers is steadily increasing.
Only men have to register during a military draft.
Statutes and regulations also prohibit women from serving in combat.
Court gave a broad principle: Sexual harassment that is so pervasive as to create a hostile or
abusive work environment is a form of gender discrimination, which is forbidden by the 1964 act.
Harris v. Forklift Systems, court reinforced above decision.
Faragher v. City of Boca Raton: Court made it clear that employers are responsible for
eliminating harassment at work.
Pennsylvania State Police v. Suders- Court decided that if harassment continues in a tangible
action, an employer is liable if there is no legal defense such as one showing that the employer
had set up a system or reporting and correcting sexual harassment.

Newly Active Groups under the Civil Rights Umbrella

People in their 80s make up fastest growing group in country.
Social Security began in 1930s.
In 1975, civil rights law denied federal funds to any institution discriminating against people over
age of 40 because of their age.
Supreme Court made it easier to win job bias cases in 2000 when it held in Reeves v. Sanderson
that a plaintiffs evidence of an employers bias, combined with sufficient evidence to find that
the employers asserted justification is false, may permit juries and judges to conclude that an
employer unlawfully discriminated.

Civil Rights and People with Disabilities..163

First rehab laws passed in 1920s mostly to help WWI vets.
Americans with Disabilities Act of 1990: A law passed in 1990 that requires employers and public
facilities to make reasonable accommodations for people with disabilities and prohibits
discrimination against these individuals in employment.

Gay and Lesbian Rights

Gay and lesbian activists have the toughest battle for equality.
1986 Bowers v. Hardwick allowed states to ban homosexual relation.
In 1993, instituted the dont ask, dont tell policy.
In 2003, Lawrence v. Texas overruled Bowers v. Hardwick.

Affirmative Action166
Affirmative Action: A policy designed to give special attention to or compensatory treatment for
members of some previously disadvantaged group.
Affirmative action = Moving from Equal opportunity, to equal results.
Regents of the University of California v. Bakke: A 1978 ruling that a state university could not
admit less qualified individuals solely based on race.
Until 1995, the Court was more deferential to Congress than to local govt. in upholding
affirmative action programs.
Adaran Constructions v. Pena: A 1995 Court decision holding that federal programs that classify
people by race, even for an ostensibly benign purpose such as expanding opportunities for
minorities, should be resumed to be unconstitutional.