Govt. 101
Prof. John Kincaid
Civil Liberties
1. What’s the difference?
A. Civil liberties are freedoms from government (e.g., freedom of speech)
B. Civil rights are guarantees by government (e.g., right to vote)
2. U.S. Bill of Rights (1791) originally applied only to the federal government.
A. Barron v. Baltimore (1833): U.S. Supreme Court refused to rule on Mr.
Barron’s Fifth Amendment “takings” claim because U.S. government was
not responsible for his wharf’s problem.
1) Government’s power of eminent domain
B. But Fourteenth Amendment (1868) may have changed things: No state shall
1) abridge privileges and immunities of any citizen of the United States
2) deprive any person of life, liberty, or property without due process of law
3) deny any person the equal protection of the laws
C. Selective incorporation or nationalization of U.S. Bill of Rights: Application
of U.S. Bill of Rights to actions of state and local governments
1) Gitlow v. New York (1925)
a. U.S. Supreme Court ruled that speech and press are among the
b. “the fundamental personal rights and ‘liberties’
c. protected by the due process clause of the Fourteenth Amendment
from
d. impairment by the states.”
2) Near v. Minnesota (1931)
a. The state shut down Mr. Near’s newspaper as a public nuisance
because it published "malicious, scandalous and defamatory" material.
b. U.S. Supreme Court ruled that state action constituted prior restraint,
which violates First Amendment right of freedom of the press.
3) The Court has not incorporated the entire U.S. Bill of Rights
4) Most recent incorporation was Second Amendment in McDonald v. City
of Chicago (2010)
3. First Amendment Rights
A.
B.
C.
D.
E.
no government establishment of religion
free exercise of religion
freedom of speech
freedom of the press
right to peaceably assemble and petition government for redress of
grievances
4. Establishment of religion
A. U.S. government cannot establish a national religion or church
1) “In God We Trust” is OK on U.S. currency as are chaplains for Congress
B. Should there be a wall of separation between church and state?
1) Roger Williams (1603-1683) called for a “wall of Separation between the
Garden of the Church and the Wilderness of the world.”
2) Thomas Jefferson (1802) said establishment clause created wall of
separation between church and state
C. No required prayer (1962) or Bible reading (1963) in public schools, no
prayer at graduation (1992), no student-initiated prayer at football games
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D. Lemon v. Kurtzman (1971): Law dealing with religion does not violate First
Amendment if
1) it has a legitimate secular purpose
2) neither advances or inhibits religion
3) does not foster excessive government entanglement with religion
E. More recently, Supreme Court has used an equal protection standard
1) Widmar v. Vincent (1981): Court struck down a Missouri law prohibiting
use of state university buildings or grounds for religious worship or
teaching
2) Public schools can teach about the Bible and religion as academic
subjects
3) Students can organize a Bible club on same basis as any other club in a
public school
F. Lynch v. Donnelly (1983): Plastic reindeer rule for Christian nativity
displays on public property (e.g., city hall grounds)
G. Government aid to religious/parochial schools
1) Child benefit theory plus equal protection
a. Busing children to a religious or parochial school
b. Providing books to children in religious or parochial school
c. Providing individual maps but not wall maps
d. Providing vouchers for children to attend private schools, including
religious schools
5. Free exercise of religion
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A. Government must have a compelling reason to limit the free exercise of
religion and must use least restrictive means possible.
B. Should a school district be allowed to fire a school-bus driver who believes
in the ritual sacrifice of young children to his God?
C. Murder, human sacrifice, rape, robbery, polygamy, etc. not protected by the
free-exercise clause.
D. Cities cannot require permits to hand out religious literature (1938) or use
anti-littering laws to prevent distribution of religious pamphlets (1939)
E. Jehovah Witness child cannot be required to recite Pledge of Allegiance in a
public school (1943)
F. State cannot deny unemployment benefits to a Seventh Day Adventist who
was fired by a business for refusing to work on Saturdays (1963)
G. State law cannot compel Amish children to attend school after eighth grade
(1972)
H. City cannot prohibit Santeria believers from sacrificing animals at their
religious services (1993)
I. State and local prisons must provide meals in accordance with religious
beliefs (e.g., no pork) and allow prayer
J. Religious Freedom Restoration Act (RFRA, 1993)
1) 1990—Court ruled Oregon could refuse unemployment benefits to an
Indian fired for testing positive for peyote
a. A generally applicable law that does not discriminate against a
particular religion is OK
b. Virtually all religious groups in the United States opposed this ruling
2) RFRA restored “compelling interest” standard and legalized peyote for
religious use.
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3) City of Boerne v. Flores (1997), Court struck down RFRA as applied to
state and local governments by ruling that a historic preservation
ordinance that prohibited historic church from expanding its sanctuary
does not violate the free exercise of religion.
4) Congress passed Religious Land Use and Institutionalized Persons Act
(RLUIPA, 2000) to counter the Court’s Boerne decision by reasserting
compelling interest in these areas.
5) In 2006, Court upheld use of ayahoasca tea in religious services
6. Freedom of speech
A. Speech not protected by the Supreme Court under the First Amendment
1) Libel and slander
2) Fighting words: Chaplinsky, a Jehovah’s Witness called a town marshal
"a God-damned racketeer" and "a damned fascist"
a. But in 1992, the Court struck down a city ordinance that prohibited
speech that "arouses anger, alarm or resentment in others on the basis
of race, color, creed, religion or gender"
b. The 1992 case also is related to hate speech
3) Terroristic threats
4) Direct incitement of “imminent lawless action” (1969), which replaced
clear and present danger test
5) Obscenity/Pornography
a. It is not illegal to possess pornography, except to child pornography
b. Roth v. United States (1957)
1) work as a whole must be “utterly without redeeming social
importance” and appeal to the prurient interest
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c. Miller v. California (1973)
1) work as a whole must lack “serious literary, artistic, political or
scientific value”
2) work must depict or describe “in a patently offensive way, sexual
conduct specifically defined by state law”
3) as interpreted according to local community standards
d. Seven (7) dirty words on non-pay radio and TV, 6:00 am to 10:00 pm
e. Lewd and lascivious public behavior
f. Public nuisance or disturbing the peace such as loud music or
shouting at 3:00 a.m.
g. Animal cruelty films are legal, but crush videos and "other depictions
of extreme animal cruelty" might not be protected under First
Amendment
1. The Animal Crush Video Prohibition Act (2010) outlaws creation,
sale, and marketing of such films.
h. Cities can zone for “erotic zones”
i. Child pornography: It is a crime merely to possess it.
B. Speech protected by the Supreme Court under the First Amendment
1) Prior restraint is almost always unconstitutional
2) Symbolic speech
a. Texas v. Johnson (1989): flag burning is protected speech
3) Artistic expression
a. “Piss Christ” photograph (1987) by Andres Serrano
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b. But no right to government grant (NEA) to produce obscene art
4) Emotive speech
a. Cohen v. California (1971)
5) Protest marches and demonstrations (dovetails with right of assembly)
a. National Socialist Party of America v. Village of Skokie (1977)
b. Abortion clinic protests and buffer zones
c. Snyder v. Phelps (2011)—Westboro Baptist Church case
6) Commercial speech, such as advertising
7) Hate speech
a. Except burning a cross for racial intimidation
8) Lying about oneself
a. United States v. Alvarez (2012) struck down Stolen Valor Act
9) Vanity license plates
C. A person cannot be forced to say what he/she does not want to say.
1) Wooley v. Maynard (1977): New Hampshire cannot prosecute motorists
who hide all or part of the state’s license-plate motto: Live Free or Die
7. Freedom of the Press
A. Courts cannot gag the media or bar media coverage (also because trials must
be public)
B. In the face of prejudicial and sensational media coverage, a judge can
1) Order a change of venue
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2) Sequester the jury
C. Reporter confidentiality
1) There is no federal shield law, but 40 states have a shield law
8. Second Amendment
A. McDonald v. City of Chicago (2010): amendment guarantees individual
right to possess guns.
9. Third Amendment—No quartering of soldiers in private homes
A. Not incorporated
10. Fourth Amendment—Search and seizure of your person or personal property
by government.
A. Warrant not usually needed to search under “reasonable suspicion” or
probable cause and totality of circumstances justifies warrantless search
B. Also did person have reasonable expectation of personal privacy, namely, an
expectation generally recognized by society?
1) a suspicious or arrested person
2) things and places in plain view or under the immediate control of a
suspicious or arrested person
3) things and places for which one gives consent for search or everyone in a
place consents
4) states can require a suspected drunk driver to take a breathalyzer test
5) states may require public school students who participate in athletics or
any other extracurricular activity to take drug tests
6) police have leeway to search an automobile pulled over by police for
reasonable suspicion of some crime
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7) exigent circumstances or hot pursuit allow police, firefighters, EMS
persons to enter private property, but likely need a warrant to search later
for criminal activity
8) open fields (except for a home’s curtilage if it "harbors the intimate
activity associated with the sanctity of a person's home and the privacies
of life)
9) trash or garbage put outside for public collection (police need no
reasonable suspicion either)
C. Otherwise, a warrant is needed
1) Use of thermal imaging device on home of suspected marijuana grower
requires a search warrant
D. Exclusionary rule
1) Evidence obtained illegally or “fruit of the poisonous tree” cannot be
admitted in court
11. Fifth Amendment
A. Grand-jury indictment
B. No double jeopardy
C. No compulsion to testify against oneself
1) Miranda rights (1966)
D. No deprivation of life, liberty, or property without due process of law
E. No private property taken for “public use” (i.e., eminent domain) without
“just compensation”
1) What is “public use?”
a. In Kelo v. City of New London (2005), Supreme Court defined “public
use” to include “public purpose,” namely, city transfer of private
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property from one owner to another private owner for economic
development
2) “Just compensation” is usually fair market value, but get a lawyer
3) Regulatory taking: occurs when a regulation deprives owner of all
economically beneficial use of her/his property
4) Physical occupation: landowner owed just compensation due to lowflying military aircraft
12. Sixth Amendment—criminal rights
A. Right to “speedy and public trial”
B. “Impartial jury” in state and district where alleged crime was committed
1) African Americans, Hispanics, and women cannot be peremptorily
excluded from a jury
C. “Informed of nature and cause of the accusation”
D. “Be confronted with the witnesses against” you
E. “To have compulsory process [i.e., subpoena] for obtaining witnesses in”
your “favor”
F. “To have the assistance of counsel for” your “defense”
1) Right to a court-appointed and paid attorney
2) Right to a competent attorney
13. Seventh Amendment—civil suits
A. Right to jury trial for amounts over $20.00
14. Eighth Amendment
A. No “excessive bail”
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1) Bail is some type of security, usually an amount of money, paid for the
release of an arrested person as a guarantee that the person show up for
trial.
B. No “excessive fines”
1) Is a $290,000 speeding fine excessive? Hiw about $1 million for driving
180 mph? Check out Switzerland and other European countries.
C. No “cruel and unusual punishments”
1) Furman v. Georgia (1972): Supreme Court essentially stopped capital
punishment on ground that its arbitrary imposition by states was cruel
and unusual punishment
2) Gregg v. Georgia (1976): Supreme Court allowed re-start of death
penalty, holding that capital punishment is not inherently cruel and
unusual punishment but that states must afford better due process, such as
a. Split trial into guilt phase and penalty phase
b. Inform jurors of specific aggravating and mitigating factors when they
decide on whether to sentence defendant to death
c. Require appellate review with specific factors for court to consider
d. No death penalty for crimes other than murder
e. No death penalty for mentally retarded persons or persons under age
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3) Death-row inmates can seek exculpatory DNA testing but they have no
constitutional right to DNA testing
15. Ninth Amendment—Unenumerated rights
“The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.”
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16. Tenth Amendment—Reserved powers
“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the
people.”
17. The New Judicial Federalism
A. State courts and legislatures can provide a higher level of rights protection
than provided by U.S. Supreme Court interpretations of U.S. Bill of
Rights
B. Decisions of state courts provided higher level of rights protection will
not be reviewed by U.S. Supreme Court if decisions are based on
“independent and adequate state constitutional grounds.”
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