PSCI 1040-004 University of North Texas Civil liberties
Civil liberties and civil rights Civil liberties civil rights Civil liberties rights to be left alone (by the govt) Civil rights rights to be equal (with you) Gov t doesn t normally enforce civil liberties (just doesn t break them) Gov t does enforce civil rights helps me be equal to you
REMEMBER I AM NOT A LAWYER We re just talking about this for our own edification and interest Nothing we talk about here makes it smart to be rude to a cop, etc.
First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Freedom of religion establishment clause Two classic issues 1 Prayer in public schools 2 Aid to parochial schools
Prayer in public schools Engel v. Vitale 1962 NY public schools opened with the following prayer, written and approved by the Board of Regents: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country. Constitutional?
Prayer in public schools, cont. Does this mean it s illegal to pray at school? NO prayer at school is also protected as free speech Rule of thumb: if you can talk about whatever you want to whoever you want, you can pray Mergens 1990 if school allows non-curriculum-related clubs (ie chess club), can t forbid Bible study club Lamb s Chapel v. Center Moriches School District 1993 if school allows community groups to use auditorium, it must also allow a local church group to use it to show a religious film Then what does it mean? Rule of thumb: you can t use the power of the state to make others listen to you pray If people aren t free to get up and walk out of earshot, state can t require/sponsor prayer Rules get looser as people get older, less likely to mistake accommodation of religion for endorsement of religion
Aid to religious schools Est. clause does not forbid aid to religion that would make silly things happen. Generally it means that government must treat religious and secular organizations the same. Lemon v. Kurtzman 1971 sets up a 3-part test 1 Does the law have a rational secular purpose? 2 Does the law neither advance nor inhibit religion? (Is it neutral?) 3 Does the law create any excessive entanglements between church and state? In practice, the third one is the hard part
Free exercise of religion Also known as religious tolerance Principles go back to John Locke (remember him?) Facially neutral laws are okay Laws that single out religious conduct aren t Law that bans sacrifice of lambs would be illegitimate Law that bans killing of lambs can be legitimate (if rational purpose) What s the difference? Facially neutral laws of general application can still punish you for doing something that your religion tells you to do My religion commands it does not normally excuse disobedience to the law
Free exercise, examples Church of Lukumi Babalu Aye v. Hialeah 1993 Hialeah banned sacrifice of animals, important in the Santeria faith. Is the ban constitutional? Goldman v. Weinberger 1986 USAF regulations say no headwear while in uniform and indoors. Must the USAF allow an Orthodox Jew to wear his yarnulke inside? Bowen v. Roy 1986 American Indian family wants AFDC, but refuses to get the child an SSN on religious grounds. Does the gov t have to give them the aid anyway? WI v. Yoder 1972 Law says everyone must go to school until 16. Amish faith says adherents must leave school at grade 8. Who wins?
Freedom of speech Big question: what speech can be punished? Schenck v. US, 1919 Schenck is distibuting anarcho-socialist leaflets urging disobedience to the draft. This is illegal, and he s convicted. Ch.J. Holmes comes up with the famous test Does the speech present a clear and present danger? Is it like shouting FIRE! in a crowded theater?
Free speech, part II More cases happen, generally expanding speech Brandenburg v. OH 1969 Brandenburg, a Klansman, holds a rally and invites a TV crew to film it In addition to the usual jolly cross-burning, B says that if the government doesn t stop oppressing the white race, There might have to be some revengeance taken. This violates OH law Clear and present danger? Not now. Must clear imminent danger of actual harm to specific people. Real no-kidding incitement Other restrictions on speech Time, place, manner Fighting words
Free press prior restraint Prior restraint prohibiting someone from publishing something, instead of punishing them for doing it Actual censorship instead of punishment after the fact Courts do not like prior restraint Near v. MN 1931 Can state prevent publication of antisemitic newspaper? New York Times v. US 1971 (PENTAGON PAPERS) Can the US prevent publication of classified military documents?
Free press libel Libel: publishing something false and defamatory about someone. Not protected by First Am. Problem: investigative journalists will sometimes publish at-least-technically false things How do we balance a watchdog press against rights of private citizens? New York Times v. Sullivan 1964 Sullivan is one of 3 city officials of Montgomery AL who argue they were libelled in an ad appearing in the emphnyt Sullivan loses. Court applies two-tiered test: Private citizens must simply show information is false Public figures must show actual malice Who is a public figure?
Fourth amendment search and seizure Prohibits unreasonable searches and seizures What is reasonable and unreasonable? A search with a warrant is reasonable Warrants issue for probable cause Unreasonable searches are illegal; violate your liberty How to prevent? Exclusionary rule illegal evidence can t be used in court Big case: Mapp v. OH, 1961 Exceptions to the exclusionary rule Good faith Inevitable discovery Independent evidence
Permitted warrantless searches Consent Incident to arrest Hot pursuit Motor vehicles Plain sight / open fields / no reasonable expectation of privacy
Fifth and sixth amendments self-incrimination and counsel When do you have a positive right to have an attorney? Powell v. AL, 1932 in capital cases Gideon v. Wainright, 1963 in felony cases Escobedo v. IL, 1964 when you become a suspect (before formally accused) Linked to self-incrimination Miranda v. AZ, 1966 must be informed of rights, given opportunity to have legal counsel
Eighth amendment cruel and unusual punishment Big topic here: death penalty Never ruled to be per se cruel and unusual Furman v. GA, 1972: current system is unconstitutional Gregg v. GA, 1976: Revamped system is constitutional (separate sentencing phase) The strange case of Mitchell Rupe
Ninth am. (sort of) right to privacy Not privacy in the normal sense A generalized right to be let alone, to do your own thing Evolved into mostly sex-related issues Griswold v. CT, 1965 laws banning contraception unconstitutional Emanations and penumbras Roe v. Wade, 1973 laws banning abortion sometimes illegal Trimester approach Planned Parenthood v. Casey, 1992 Junks trimester approach No undue burden
Sodomy laws Many states had laws banning sodomy in various ways Mostly relic laws Rarely enforced except for plea bargains, additional crimes in real matters Bowers v. Hardwick, 1986 Adult, consensual, homosexual sodomy not protected Can be punishable by law DA for GA concedes cannot be applied to married couples TX v. Lawrence 2003 TX law bans only homosexual sodomy Lawrence (and partner) arrested after bogus call about burglary Law struck down, not on equal-protection grounds but on privacy