Chapter 5:
Civil Liberties

“The whole history of the
progress of human liberty
shows that all concessions
yet made to her noble claims
have been born of earnest
struggle. If there is no
struggle, there is no
progress. Those who profess
to favor freedom, and yet
deprecate agitation, are men
who want crops without
plowing up the ground, they
want rain without thunder
and lightning. They want the
ocean without the awful roar
of its many waters.”
Frederick Douglass;
1857; quote from a
speech foretelling of
the coming Civil War

© 2003 AP/ Wide World Photos

© Bob Kusel /SIPA

© 2004 AP/Wide World Photos

© A. Ramey/Woodfin Camp & Associates

The Bill of Rights
Feared tyrannical federal government
Resulted in adoption of Bill of
Rights
Limited federal government by
recognizing liberties in writing

Democracy requires freedom of citizens
to influence government through:
 religion, speech, press
 assembly (in political context)
 petition (government with
grievances)
 association (parties and culture)

Bill of Rights and State
Governments
 While Bill of Rights
protected people from
national government…
What about state governments?

“Congress shall make
no law…”

1868: Fourteenth Amendment
Reconstruction Amendment
Overruled Dred Scott vs. Sandford
Imposed Constitutional protections
of civil liberties on state
governments

Incorporation Theory
Most protections in Bill of
Rights apply to states through
14th Amendment‟s due process
clause.

Freedom of Religion
“Congress shall make no law
respecting an establishment
of religion, nor prohibiting
free exercise thereof”

Establishment of Religion
vs. Free Exercise of Religion

Free Exercise Clause
Guarantees Free Exercise
of Religion
 Good News Club vs. Milford
Central School
Using Public Facilities
 Reynolds vs. U.S.
Mormons and Polygamy
 Employment Division vs. Smith
Illegal Drug Use

Establishment Clause
Separation of Church and
State
1. Aid to church-related schools
2. School vouchers
3. School prayer—Engel v. Vitale
4. Prayer outside classroom
5. The Ten Commandments
6. Teaching evolution
7. Religious speech

Your opinion on
meaning of SOCS?

Origins of
Establishment Clause
Founders detested English system making King
head of state and church
Crown persecuted other religions
Church of England known as
“Established Church” or E.C.
Founders prevented U.S. from having an „E.C.‟
Hence the name “Establishment Clause”

What Did Founders think about
SOCS?
○
Congress authorized U.S. Military
Chaplaincy, 1775
○
Congress voted on First
Amendment, 1789…
○ …that same week hired
Congressional Chaplains
○ Jefferson letter written in 1802

What did Jefferson
think about SOCS?
 Provided Federal funding for
missionary work among Indians
 Declared religious schools to
receive “patronage of government”
 Initiated Sunday services led by
clergy on floor of Congress

Christian roots, but not everything &
everyone Christian
Non-Christians informed by Biblical
worldview
Biblical worldview evident in public
documents & laws
America began as a Christian nation?
Christian nation
s a

Have things
changed today?

4 Tests to Determine an
Establishment
First: Lemon Test
Law must have secular
purpose
Must not advance or
prohibit religion

Second: Endorsement Test
Law is unconstitutional if
reasonable observer of a
law is persuaded that
government is endorsing
religion
Hypocrisy?

Third: Non-preferentiality Test
Constitution prohibits favoritism
toward any one religion… but not
toward all religions
Fourth: Strict Separation Test
No aid to religion whatsoever
Refer back to Ten Commandments

School Vouchers:
An Establishment of Religion?
Vouchers and State Aide for Religious
Schools
How does this issue relate to First
Amendment?
Zelman vs. Simmons Harris
2003 (Cleveland, Ohio)

Religion in China

Time Permitting
In groups of three or four, rank
amendments contained in Bill of
Rights by importance
If some Amendments were going to be
disposed, which would you keep and
why?

End of Lesson 1:
Civil Liberties

The Teaching of American Government is
Your First Line of Defense!

“Freedom is
fragile. It
never, ever, ever
lasts unless we
protect
it, preserve
it, defend it,”
Pastor Rick Warren, Saddleback
Church and Author of The
Purpose Driven Life

Conflict between civil liberties and
social order
Swinging pendulum throughout history

Ben Franklin (1706-1790)
“Those who give up Liberty to purchase Temporary
Safety deserve neither Liberty nor Safety.”
Ramsey Clark (AG, Johnson Administration)
“No conflict between liberty and safety. We will
have both or neither”
Voltaire (1694-1778)
“True character of liberty is independence,
maintained by force”
Jean-Jacques Rousseau (1712-1788)
“I prefer liberty with danger than peace with
slavery”

When to limit people„s liberty??
Screaming fire in movie theaters?
Protesting at abortion clinics?
Media and private sources?
Imprisoning “suspected” terrorists?

Should Eminem be free to produce
profane lyrics marketed to
children and teens?

Young men illegally burning draft cards
to protest Vietnam War. SCOTUS refused
to protect action as speech.

RIGHTS COVERED IN THIS LESSON
First Amendment:
Speech, Press, Right to Assemble and
Petition Government
Privacy Rights
Eighth Amendment: protection
against cruel and unusual punishment

FREEDOM OF SPEECH

Three Types
Belief
Freedom of conscience (Mormon, Islam)
Has most protections
Anyone can believe almost anything
Action
Subject to government restraint
 Right to punch person ends at nose‟ tip
Has most regulations
Speech
Somewhere in-between belief and action
Not absolute right
Libel, obscenity, fighting words, commercial
speech not always protected

Two SCOTUS tests to determine
when to curtail speech
Bad Tendency Rule
Presume speech corrupting society is
reasonable to curtail.
Speech causing people to commit illegal
acts
Not a widely held viewpoint by today‟s
judges

“Kill You“ by Eminem
When I was just a little baby boy,
my momma used to tell me these crazy things
She used to tell me my daddy was an evil man,
she used to tell me he hated me
But then I got a little bit older
and I realized, she was the crazy one
But there was nothing I could do or say to try to change
it cause that's just the way she was
They said I can't rap about being broke no more
They ain't say I can't rap about coke no more
(AH!) Slut, you think I won't choke no whore
'til the vocal cords don't work in her throat no more?!
(AH!) These motherfuckers are thinking I'm playing
Thinking I'm saying the shit cause I'm thinking it just to
be saying it (AH!) Put your hands down bitch, I ain't
gonna shoot you I'm a pull +YOU+ to this bullet, and put
it through you (AH!)
Shut up slut, you're causing too much chaos

Just bend over and take it like a slut, OK Ma?
"Oh, now he's raping his own mother, abusing a whore,
snorting coke, and we gave him the Rolling Stone cover?"
You god damn right BITCH, and now it's too late
I'm triple platinum and tragedies happen in two states
I invented violence, you vile venomous volatile bitches
Texas Chainsaw, left his brains all
dangling from his neck, while his head barely hangs on
Blood, guts, guns, cuts
Knives, lives, wives, nuns, sluts
Bitch I'm a kill you! You don't wanna fuck with me
Girls neither - you ain't nothing but a slut to me
Bitch I'm a kill you! You ain't got the balls to beef
We ain't gonna never stop beefing I don't squash the beef
You better kill me! I'm a be another rapper dead
for popping off at the mouth with shit I shouldn't said
But when they kill me - I'm bringing the world with me
Bitches too! You ain't nothing but a girl to me

Clear and Present Danger Test
More popular viewpoint today
Speech curtailed if presents immediate
danger leading to riots, destruction of
property, or corruption of election
Cannot shout, “Fire!” in a full movie
theater

Four Non Protected Speech
Libel and Slander:
writing false statements, verbal false
statements
Obscenity (Pornography):
No protections; promotes sexual abuse of
women and children; Problem: When is the
line crossed? What is really obscene?
Commercial speech:
May not issue false-misleading
advertising or advertise anything illegal

Example of Libel Case
Rev. Jerry Falwell vs. Hustler Magazine (1988)
 Case against Hustler for publishing untrue
story:
Falwell‟s 1st sexual encounter with mother, drunk
in outhouse
 VA jury: Awarded $150,000 to Falwell
 SCOTUS reversal: Cannot distinguish article
from political other speech worthy of
protection

Christopher Hitchens
and Free Speech

Freedom of the Press

Can press withhold information in criminal
investigations?
 SCOTUS: No
Yet certain state press shield laws
provide some protections
Does press have right to know?
 SCOTUS: No.
Yet state Sunshine Laws require agencies
to open meetings to press

In 1934, the Federal
Communications
Commission (FCC) was
established to
regulate airwaves.
FCC grants licenses
and imposes
regulations on
broadcasting.

Films, Radio, and TV
FCC watches certain media
personalities to make
sure certain lines are
not crossed

The Right to Assemble and
Petition the Government
SCOTUS: government
cannot bar
individuals
from assembling

Privacy Rights

Griswold v. Connecticut
(1965)
Landmark case
SCOTUS: Constitution
protected right to
privacy
Case involved CT law
prohibiting
contraceptives
SCOTUS invalidated law
(7-2): violated "right
to marital privacy”
Estelle
Griswold, director of
Planned Parenthood of
CT

Two Justices filed
dissents
Justice Black: right
to privacy not in
Constitution
Justice Stewart:
CT‟s statute "an
uncommonly silly
law," but it was
nevertheless
constitutional.
Justices Potter Stewart

No explicit constitutional right to
privacy
Not mentioned in Bill of Rights
Interpretation by SCOTUS: From
First, Third, Fourth, Fifth, and
Ninth Amendments

Led to privacy rights
involving abortion…
Roe v. Wade
The controversy continues

Santorum and Bella who has trisomy 18
Palin‟s baby
Trig, born with downs
syndrome

Sandra Fluke, a third-year law
student at Georgetown
University, testifies before House
Democratic Steering and Policy
Committee (2012) in Washington on
Obama's Health Care Mandate to
cover contraception.

Privacy Rights and
The Right to Die

Cruzan v. Director, Missouri
Department of Health (1997)
Affirmed Missouri Supreme Court ruling
upholding Missouri‟s requirement of
"clear and convincing evidence" for
removal of life support
Made living wills popular
People without a living will? Spouse
makes decision (Terry Schiavo)

Privacy Rights vs. Security
Issues
Privacy rights taken on importance since
9-11.
USA Patriotic Act
72

Questions
Do you think FBI has too much
power?
Is giving up some privacy a
small price to pay to defend
our country from terrorism?

Rights of the Accused
Fourth Amendment
– No unreasonable or unwarranted
search or seizure
– No arrest except on probable cause
Fifth Amendment
– No coerced confessions
– No compulsory self-incrimination

Rights of the Accused
(cont.)
Sixth Amendment
– Legal counsel
– Informed of charges
– Speedy and public jury trial
– Impartial jury by one‟s peers
Eighth Amendment
– Reasonable bail
– No cruel or unusual punishment

The Death Penalty
CT News 12 Interview:
Debate between Professor
DeSanctis and State
Representative Gary
Holder

Is death penalty cruel and
unusual punishment or is it
a useful method for dealing
with society‟s worst
criminals?
“No Cruel and Unusual
Punishment”

Unusual
"unusual" provision easy to
interpret
No arbitrary punishment outside
normal course of law
To make punishment “usual” is to
use it more often (consistently fairly)

Cruel
"cruel“ is flexible according to
circumstances
All punishments inherently
“cruel” to some degree
What punishment is too cruel to
violate Eighth Amendment?

Background:
Before and during writing of
Eighth Amendment (1787)…
Capital punishment common in
America, Great Britain, Western
Europe

For most of recorded history CP was often
cruel and inhuman:
breaking wheel, boiling to death,
flaying
disembowelment
crucifixion, impalement, crushing,
stoning, burning, dismemberment… etc

Not cruel and unusual to put someone to
death
But is method cruel and unusual?
And was there due process before court
of law?
Yet today minority in U.S.
consider it cruel and
unusual

The Death Penalty Today
34 states allow CP
Time Limits for CP
Appeals
1996 AntiTerrorism and
Effective DP Act
limits appeals
from death row

"If we execute murderers and there is in
fact no deterrent effect, we have killed
a bunch of murderers. If we fail to
execute murderers, and doing so would in
fact have deterred other murders, we have
allowed the killing of a bunch of
innocent victims. I would much rather
risk the former. This, to me, is not a
tough call."
John McAdams - Marquette University/Department
of Political Science, on deterrence

“The 688 killers who were executed
between 1998 and 2006 had murdered at
least 1442 people. That is an average
of 2.1 victims per executed killer”

"There is barely a country in
Europe where the death penalty
was abolished in response to
public opinion rather than in
spite of it. In other words, if
these countries' political
cultures are morally superior to
America's, it's because they're
less democratic."
Joshua Marshall, writing in the New Republic