Chapter 18 Civil Liberties WHO GOVERNS? WHO GOVERNS? 1. Why do the courts play so large a role in deciding what our civil liberties should be? TO WHAT.

Chapter 18Chapter 18Civil LibertiesCivil Liberties

WHO GOVERNS?WHO GOVERNS?1. Why do the courts play so large a role 1. Why do the courts play so large a role

in deciding what our civil liberties in deciding what our civil liberties should be?should be?

TO WHAT ENDS?TO WHAT ENDS?1.1. Why not display religious symbols on Why not display religious symbols on

government property?government property?

2.2. If a person confesses to committing a If a person confesses to committing a crime, why is that confession crime, why is that confession sometimes not used in court?sometimes not used in court?

3.3. Does the Patriot Act reduce our Does the Patriot Act reduce our liberties?liberties?

The Bill of RightsThe Bill of Rights

States feared that what the federal States feared that what the federal government had offered in the government had offered in the Constitution was not enough.Constitution was not enough.

States wanted the Bill of Rights to be States wanted the Bill of Rights to be added to the document.added to the document.• The Bill of Rights being added made it The Bill of Rights being added made it

so it applied both to states and the so it applied both to states and the national government.national government.


It was an important limitation on It was an important limitation on popular rule.popular rule.• It says that there are certain things that It says that there are certain things that

the government can not do even if the the government can not do even if the majority wants it done.majority wants it done.


Bill of Rights Rap 1) While the rights spelled out in the Bill of Rights 1) While the rights spelled out in the Bill of Rights

are all important, which is the least important to are all important, which is the least important to you? Why? you? Why?

2) Which of the rights in the Bill of Rights is most 2) Which of the rights in the Bill of Rights is most important to you? Why?important to you? Why?

3) Do you think a video like this, if made more 3) Do you think a video like this, if made more generally available, would help people generally available, would help people understand their rights better? Why or why notunderstand their rights better? Why or why not

Culture and Civil LibertiesCulture and Civil Liberties Rights in ConflictRights in Conflict

• We think that the BoR is a document that We think that the BoR is a document that protects all of our rights all of the time.protects all of our rights all of the time.

Is this the case???????Is this the case??????? Often our competing rights conflictOften our competing rights conflict

• Dr. Sheppard vs. RadioDr. Sheppard vs. Radio• Pentagon PapersPentagon Papers• Kunz vs. JewsKunz vs. Jews

• Liberty EntrepreneursLiberty Entrepreneurs Sedition Acts of 1798Sedition Acts of 1798 Espionage acts of 1917Espionage acts of 1917 Smith Act of 1940Smith Act of 1940

Culture and Civil LibertiesCulture and Civil Liberties

Cultural ConflictsCultural Conflicts• The United State use to give rights to The United State use to give rights to

only one group, white protestants.only one group, white protestants.• Immigration changed that.Immigration changed that.

Annual Legal Immigration, 1850-Annual Legal Immigration, 1850-20052005

Note: Figures for 1989 and 1990 include persons granted permanent residence under the legalization program of the Immigration and Reform and Control Act of 1986. Source: Office of Immigration Statistics, 2005 Yearbook of Immigration Statistics. (Washington, D.C.: Department of Homeland Security, 2006), p. 5.

Cultural Conflicts Cultural Conflicts Continued….Continued….

Ethnic, Religious, and Cultural Ethnic, Religious, and Cultural Differences:Differences:• Give rise to how freedoms are meant.Give rise to how freedoms are meant.

Jews and the Nativity SceneJews and the Nativity Scene English speaking people believe that schools English speaking people believe that schools

should make all students learn English.should make all students learn English.

Civil Rights and LibertiesCivil Rights and Liberties

Applying the Bill of Rights to the Applying the Bill of Rights to the StatesStates• Due process of lawDue process of law• Equal protection of the lawEqual protection of the law• Selective incorporationSelective incorporation

Interpreting and Applying the Interpreting and Applying the First AmendmentFirst Amendment

Freedom of Freedom of expressionexpression

Freedom of religionFreedom of religion Prior restraintPrior restraint Clear-and-present Clear-and-present

danger testdanger test

Freedom Of ExpressionFreedom Of Expression

First AmendmentFirst Amendment• ““Congress shall make no Congress shall make no

law…….abridging the freedom of speech law…….abridging the freedom of speech or the press, or the right of people or the press, or the right of people peaceably to assemble, and to petition peaceably to assemble, and to petition the government for a redress of the government for a redress of grievances”.grievances”.

Speech and National SecuritySpeech and National Security

William Blackstone said….William Blackstone said….• ““A free press is essential to a free state, A free press is essential to a free state,

but the freedom of that the press should but the freedom of that the press should enjoy is the freedom of prior restraint.”enjoy is the freedom of prior restraint.”

That is a press should be free from That is a press should be free from censorship, or rules.censorship, or rules.

• Attempts to limit pressAttempts to limit press The Sedition Act 1798.The Sedition Act 1798. Schneck and the Espionage Act of 1919Schneck and the Espionage Act of 1919

Schneck vs United StatesSchneck vs United States

Schneck mailed circulars to men Schneck mailed circulars to men eligible for the draft, urging them to eligible for the draft, urging them to resist in 1919.resist in 1919.

Can the government stop him????Can the government stop him????

The KKKThe KKK

Clarence Brandenburg, a leader of Clarence Brandenburg, a leader of the KKK in Ohio, staged a cross the KKK in Ohio, staged a cross burning rally during which he reviled burning rally during which he reviled Blacks and Jews.Blacks and Jews.

Protected or not?Protected or not?

Clear and Present Danger Clear and Present Danger TestTest

Justice HolmesJustice Holmes• Clear and Present Danger TestClear and Present Danger Test

““The question in every case is whether the The question in every case is whether the words used are used in such circumstances words used are used in such circumstances and are of such a nature as to create a clear and are of such a nature as to create a clear and present danger that they will bring and present danger that they will bring about the substantive evils that congress about the substantive evils that congress has the right to prevent.”has the right to prevent.”

Schneck leaflets did create a clear and Schneck leaflets did create a clear and present danger.present danger.

Women picketed in front of Women picketed in front of the White House, urging the White House, urging President Warren Harding President Warren Harding to release political radicals to release political radicals arrested during his arrested during his administration. p. 104administration. p. 104

Bettmann/CORBIS

Regulating SpeechRegulating Speech

Seditious SpeechSeditious Speech• Any speech urging resistance to lawful Any speech urging resistance to lawful

authority.authority. Can be regulatedCan be regulated

Opposite ArgumentOpposite Argument

While some argue for the clear and While some argue for the clear and present danger test others feel that present danger test others feel that the Prefered Doctrine has supreme the Prefered Doctrine has supreme power.power.• Prefered DoctrinePrefered Doctrine

Holds that the first amendment freedoms Holds that the first amendment freedoms are more fundamental than any other are more fundamental than any other freedoms and thus should at all costs be freedoms and thus should at all costs be protected.protected.

What is Speech?What is Speech?

LibelLibel• A written statementA written statement

Slander:Slander:• Spoken statementSpoken statement

ObscenityObscenity• Not protectedNot protected• What is abscene?What is abscene?

Symbolic SpeechSymbolic Speech

A Ku Klux Klan member uses his constitutional right to free speech to utter “white power” chants in Skokie, Illinois, p. 105 .

Tim Boyle/Newsmakers/Getty Images

““Symbolic speech”: when Symbolic speech”: when young men burned their young men burned their draft cards during the draft cards during the 1960s to protest the 1960s to protest the Vietnam War, the Vietnam War, the Supreme Court ruled that Supreme Court ruled that it was an illegal act for it was an illegal act for which they could be which they could be punished. p. 108punished. p. 108

Bettmann/CORBIS

Tinker vs Des Moinse Tinker vs Des Moinse

Tinker vs Des MoinseTinker vs Des Moinse• Arm BandsArm Bands

Bethal SD v FrasureBethal SD v Frasure• Suspended for lewd behaviorSuspended for lewd behavior

Hazelwood SD v KuhlmeierHazelwood SD v Kuhlmeier• Control school sponsored news papersControl school sponsored news papers

Copyright © 2011 CengageCopyright © 2011 Cengage

Commercial and Commercial and Youthful SpeechYouthful Speech

CorporationsCorporations Interest GroupsInterest Groups YouthYouth

p. 109

Flag BurningFlag Burning

Watch VideoWatch Video

PressPress

In many nations prior restraint exists.In many nations prior restraint exists.• Near vs. MinnisotaNear vs. Minnisota• NY Times vs. United StatesNY Times vs. United States

Times they are limitedTimes they are limited Fair Trials and free press.Fair Trials and free press.

• Sometimes the first amendment interferes with Sometimes the first amendment interferes with the sixth amendment, the right to a fair trial.the sixth amendment, the right to a fair trial.

• Sheppard vs. MaxwellSheppard vs. Maxwell• Ways to controlWays to control

Move trialMove trial Limit reporters in courtroomLimit reporters in courtroom Place controls on reporters conduct.Place controls on reporters conduct. Isolate witnesses and jurors.Isolate witnesses and jurors. Have jury sequestered.Have jury sequestered. Gag ordersGag orders

News SourcesNews Sources

The government does protect news The government does protect news sources.sources.

Free Press IssuesFree Press Issues

FCCFCC• Regulates tv and radio.Regulates tv and radio.• Motion picturesMotion pictures

Requires ratings.Requires ratings.

Freedom of SpeechFreedom of Speech

Freedom of Speech and Campus 1) Does your campus have a campus speech 1) Does your campus have a campus speech

code?code? 2) Do you think Ohio State’s sexual harassment 2) Do you think Ohio State’s sexual harassment

speech code, as reported by the students, is speech code, as reported by the students, is needed on a campus to protect students who needed on a campus to protect students who may be harassed sexually? Why or why not?may be harassed sexually? Why or why not?

3) Where would you draw the line between 3) Where would you draw the line between sexually harassing speech and sexually offensive sexually harassing speech and sexually offensive speech that is not harassing?speech that is not harassing?

Nazis and SkockiNazis and Skocki

Nazis and Skocki 1) Do you agree or disagree that the First Amendment 1) Do you agree or disagree that the First Amendment

should protect offensive or hate speech? Why or why not? should protect offensive or hate speech? Why or why not? 2) Would you position on question #1 change if that speech 2) Would you position on question #1 change if that speech

then led to violence? then led to violence? 3) What was the American Civil Liberties Union’s position on 3) What was the American Civil Liberties Union’s position on

the Nazi group’s right to demonstrate?the Nazi group’s right to demonstrate?

The Supreme Court in 1962 ruled 6 to 1 against allowing prayers in public schools. The specific case dealing with this issue was Engle v. Vitale, for which Justice Hugo Black wrote the Court’s opinion, finding that school prayers violated the establishment clause of the First Amendment.

Did you know Did you know

Religion

Has been and will continue to be a major part of American culture.

Amendment One protects freedom of religion.

First Clause of the Amendment:• Establishment Clause: “Congress shall make no

law respecting an establishment of religion.” Second Clause of the Amendment:

• Free Exercise Clause: “prohibits government from unduly interfering with the free exercise of religion.”

JFK Church and State?JFK Church and State?

JFK 1) Why do you think Kennedy’s first point was 1) Why do you think Kennedy’s first point was

that the Pope should not tell politicians what to that the Pope should not tell politicians what to do? do?

2) Do you agree or disagree with the idea that 2) Do you agree or disagree with the idea that America should not officially be religious? Why? America should not officially be religious? Why?

3) Do you think Kennedy’s statements on the role 3) Do you think Kennedy’s statements on the role of religion in the lives of elected officials would be of religion in the lives of elected officials would be supported by most politicians today? Why or why supported by most politicians today? Why or why not?not?

Founding Fathers

Jefferson and others believed that:• The first amendment builds, “a wall of

separation between Church and State.”• What does this mean?• This has and will always be a

controversy.

Religion in Public Life

Religion has been a long part of American life.

Article VI of the Constitution bans religious qualifications for holding office.

However we……….• Money:

In God We Trust.

• Pledge: One nation under God.

• Religions: Tax Exempt

Everson vs. Board of Education1942

School district transports all children to school, including religious schools. Taxpayers are paying for the school bus and driver, however, the the church is not being charged for their kids to ride the bus.

Parochial Schools:• Schools operated by a church or religious group.

Supreme Court ruling: ruled that religious students could ride the buses. It benefited the students not the church.

State Aid to Parochial Schools

Some of the biggest arguments come from whether or not a state can give aid to church schools.

Since Everson:• States have given money to church schools for:

Drivers education and lunch. Some cases have been taken to court.

• Courts have decided both ways.• Example:

Board of Education vs. Allen (1968): upheld that the states could provide non religious textbooks to church schools.

Meek vs. Pittenger (1975): rejected the notion that a state could purchase instructional materials for religious schools.

• Why are some forms of aid constitutional and others are not?

Lemon vs. Kurtzman

Created a three part test called the Lemon Test:

The Lemon Test• Three questions must be answered:

Does the aid have a clear non religious purpose?

Does it neither advance nor inhibit religion?

Does it avoid excessive government entanglement with religion?

Levitt vs Committee for Public Education (1973)

The state of New York wanted to spend money to help religious schools develop testing programs.

Decision: Unconstitutional Reason: the school was preparing the

tests and the courts feared they may be about religious matters.

Committee for Public Education vs. Regan (1980)

New York pays religious schools to administer and grade state tests.

Decision: Constitutional Reason: State prepared tests and the

tests were administered by the school.

McCollum vs. Board of Education (1948)

The public schools in Champaign, Illinois, had a program in which religion teachers came into the schools once a week and gave religious instruction in a school classroom.

Decision:• Unconstitutional • Why?

Classrooms are tax supported public facilities.

Zorach v. Clauson

New York City allowed students to leave school during school hours to go across the street to receive religious instruction.

Decision: Constitutional Why?

• Legal if it is carried on at a private location.

Engel v. Vitale The New York school district handed down a

school prayer that it urged schools to use:”Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”

Decision: Unconstitutional Why?

• Justice Hugo Black Stated:”In this country it is no part for the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.”

• Other Argument: Potter Stewart wrote:”I cannot see how an official religion is established by

letting people pray.

Other School Prayer

Abington School District v. Schempp• Banned school sponsored Bible reading and

recitation of the Lords Prayer in public schools. Tax paid teachers conducted the activities in public

buildings. In 1995, the courts struck down an

Alabama law requiring teachers to observe a moment of silence for meditation or prayer.• Some states have passed moment of silence

laws that are used instead of prayers.

Westside Community School v. Mergens A student wished to start a club where students

could pray and read the bible together at school. Participation would be voluntary. Participants would use a classroom in the school. Decision:

• Constitutional• “Although a school may not itself lead or direct a

religious club, a school that permits a student initiated and student led religious club to meet after school, just as it permits any other student group to do, does not convey the message of state approval endorsement of the religion.” Justice Sandra Day O’Conner

Equal Access Act

Equal Access Act:• Allows public high schools receiving

federal funds to permit student religious groups to hold meetings in the school.

Teaching Evolution

Epperson v. Arkansas• Should a school teach evolution?

Yes they can. The courts banned a law that banned the teaching of evolution.

Edwards v. Aguillard:• Should schools also be allowed to teach

the Bible story of creation? No they can not. This endorses a particular

religious doctrine.

Religion and SchoolReligion and School

The Creation Story and School 1) Do you agree or disagree with Dr. Forrest’s statement 1) Do you agree or disagree with Dr. Forrest’s statement

that teaching intelligent design in the public schools is a that teaching intelligent design in the public schools is a violation of religious freedom? Why? violation of religious freedom? Why?

2) What does Dr. Forrest mean when she says that 2) What does Dr. Forrest mean when she says that Creationists believe that the theory of evolution has Creationists believe that the theory of evolution has atheistic implications? atheistic implications?

3) Would teaching intelligent design in public schools be a 3) Would teaching intelligent design in public schools be a violation of government neutrality with regard to religion? violation of government neutrality with regard to religion? Why or why not? Why or why not?

How about Christmas

Lunch v. Donnelly• Public Christmas display in town.• Allowed the town to have a nativity

scene. Allegheny County v. ACLU

• A publicly funded nativity scene violated that establishment clause.

Religious Practices

Religious Practice:• May be limited if it conflicts with laws.• Reynolds v. United States:

Reynolds, a Mormon who lived in Utah, had two wife's and was conflicted of polygamy.

Reynolds appealed the state law. Courts said: people are not allowed to do

what they want based off of religion if it is in conflict with the health, safety, and morals of the community.

Oregon v. Smith

Denied unemployment benefits to a guy who was fired for using drugs as a religious ceremony.

Wisconsin vs Yoder1972

Amish refuse to send kids to school. State law required mandatory education until the age of 16. Amish argument-state law is a threat to religious way of life.

Supreme Court decision: State law overruled and Amish allowed to home school.

Flag Saluting Cases

Minersville School District v. Gobitis• William and Lillian Gobitis, ages 10 and

12 were expelled for not saluting the flag.

• Saluting the flag violated the Christian believe of not bowing down to any graven image.

• The Court upheld the school regulation to stand and say the pledge.

West Virginia vs. State Board of Education vs. Burnette

1943

School district compelled students to salute United States flag. Jehovah Witness objected because of the belief of not bowing to any graven images.

Does mandatory regulations which go against religious grounds violate our 1st amendment?

Supreme Court ruling: IllegalSo what are our guidelines on pledge to

the United States flag?

Sherbet vs.Verner1963

7th Day Adventist fined for refusal to work on Saturday. He was denied his unemployment compensation.

Supreme Court ruling: Ruling stands, can’t change the system.

US vs Ballard1944

Ballard arrested for using the US mailing system to obtain money under false pretense.

Ballard had his own church and felt he was a divine messenger. He felt that he was told to solicit money to carry out God’ work.

Supreme Court Ruling: legal

Native American Church vs Oregon (1989)

Native American arrested for the use of peyote. Also arrested for snake handling. Both of which were done in conjunction of religious ceremonies.

People have died from both of these. If we legalize it why not legalize pot or crack in the name of religion.

Oregon State Law: Illegal to possess peyote and or use it.

The Free Exercise Clause’s Landmark

Rulings The Supreme Court makes an important

distinction between religious belief and practice.

Religious freedom cannot justify behavior or practices that violate laws protecting the health, safety, or morals of the community.

Amish parents could not be forced to send children to public school beyond 8th grade; children of Jehovah’s Witnesses could not be required to salute flag in the classroom.

What is Precedent?

School Board vs. Gobitis (1940)

School expelled a 10 and 12 Jehovah Witness for not saluting the flag.

Courted ruled: Did not infringe of

religious freedom.

W. Virginia Board of Edu. Vs. Barnette 1943

Jehovah Witnesses appealed prior case.

Unconstitutional. Ruled in favor of religious protection.

Why didn’t they follow prior precedent?

As one justice put it,”When convinced of former error, this Court has never felt constrained to follow precedent.

Crime and Due ProcessCrime and Due Process

The Exclusionary RuleThe Exclusionary Rule Search and SeizureSearch and Seizure


The Threat Operations Center at the National Security Agency in The Threat Operations Center at the National Security Agency in Fort Meade, Virginia. p. 114Fort Meade, Virginia. p. 114


JASON REED/Reuters/Landov

MEMORANDUMMEMORANDUM

To: To: Rebecca Saikia, Supreme Court justiceRebecca Saikia, Supreme Court justice

From: From: David Wilson, law clerkDavid Wilson, law clerk

Subject: Subject: Patriot Act and librariesPatriot Act and libraries

The Patriot Act allows the FBI to seek the records of possible The Patriot Act allows the FBI to seek the records of possible terrorists from banks, businesses, and libraries. Many terrorists from banks, businesses, and libraries. Many libraries claim this will harm the constitutional rights of libraries claim this will harm the constitutional rights of Americans. You support these rights, but are also aware of Americans. You support these rights, but are also aware of the need to protect national security.the need to protect national security.


WHAT WOULD YOU DO?WHAT WOULD YOU DO?

Arguments supporting the Patriot Act:Arguments supporting the Patriot Act:

1. The Patriot Act does not target individuals who have not 1. The Patriot Act does not target individuals who have not violated a criminal law and who do not threaten human life.violated a criminal law and who do not threaten human life.

2. For the FBI to collect information about borrowers, it must 2. For the FBI to collect information about borrowers, it must first obtain permission from a federal judge.first obtain permission from a federal judge.

3. Terrorists may use libraries to study and plan activities that 3. Terrorists may use libraries to study and plan activities that threaten national security.threaten national security.



Arguments against the Patriot Act:Arguments against the Patriot Act:

1. Freedom of speech and expression are fundamental 1. Freedom of speech and expression are fundamental constitutional guarantees that should not be infringed.constitutional guarantees that should not be infringed.

2. The law might harm groups engaged in peaceful protests.2. The law might harm groups engaged in peaceful protests.

3. The law allows the government to delay notifying people 3. The law allows the government to delay notifying people that their borrowing habits are being investigated.that their borrowing habits are being investigated.



Your decision:Your decision:

Uphold this provision?Uphold this provision?

Overturn this provision?Overturn this provision?



Confessions and Self-IncriminationConfessions and Self-Incrimination Relaxing the Exclusionary RuleRelaxing the Exclusionary Rule Terrorism and Civil LibertiesTerrorism and Civil Liberties Searches without WarrantsSearches without Warrants


Crime and Due ProcessCrime and Due Process


p. 119


Inside a cell at the terrorist prison in Guantanamo, Inside a cell at the terrorist prison in Guantanamo, where Muslim inmates receive a copy of the Koran,where Muslim inmates receive a copy of the Koran,a chess set, and an arrow pointing toward Mecca. a chess set, and an arrow pointing toward Mecca. p. 119p. 119

JOE SKIPPER/ Reuters/ Corbis


Chapter 18 Civil Liberties WHO GOVERNS? WHO GOVERNS? 1. Why do the courts play so large a role in deciding what our civil liberties should be? TO WHAT.

Documents

civil rights

rights rap1

competing rights conflictdr

bill of rightsit

bill of rightsstates

bill of rightsbill

national government

free press