Module 10 Civil LibertiesSession 1
.pdf
School
University of North Texas**We aren't endorsed by this school
Course
PSCI 2316
Subject
Political Science
Date
Jan 3, 2025
Pages
113
Uploaded by AgentRiverVulture43
Civil Liberties Session 1: Securing Basic FreedomsPSCI 2316Professor Leslie Finger
Announcements•Policy Paper 2 due tomorrow at 10pm.
Announcements•Policy Paper 2 due tomorrow at 10pm.•Looking ahead:•Policymaker letter due Sunday, Dec 8 at 10pm.
Announcements•Policy Paper 2 due tomorrow at 10pm.•Looking ahead:•Policymaker letter due Sunday, Dec 8 at 10pm.•The last week of classes, you will present in small groups on your policy letter. Take a look at that assignment online when you get a chance.
Announcements•Policy Paper 2 due tomorrow at 10pm.•Looking ahead:•Policymaker letter due Sunday, Dec 8 at 10pm•The last week of classes, you will present in small groups on your policy letter. Take a look at that assignment online when you get a chance.•Final exam will be Thursday, Dec 12 from 10:30am to 12:30pm in Sage Hall Testing Center
Learning Objectives•By the end of this class, you will be able to:•Define civil liberties and civil rights.•Describe the process of selective incorporation.•Distinguish between the establishment clause and the free exercise clauses of the First Amendment and determine whether various scenarios violate constitutional rights.•Use the strict scrutiny test in a freedom of speech case.
A note before we startToday we move on from how institutions workto… our rights and how they are defined by the Constitution and the Courts
Part I: What are civil liberties?Define civil liberties and civil rights.
Warm-up/review•In what situations does the Supreme Court usually grant a writ of certiorari? Partner up with somebody NOTin your group last time and discuss, using the cases you were assigned last class to illustrate.
What are civil liberties?•Constitution lays out what government can do
What are civil liberties?•Constitution lays out what government can do•Bill of Rights: What the government can’t do
What are civil liberties?•Constitution lays out what government can do•Bill of Rights: What the government can’t do•First 10 Amendments to the Constitution
What are civil liberties?•Constitution lays out what government can do•Bill of Rights: What the government can’t do•First 10 Amendments to the Constitution•Anti-Federalists would only sign on to the Constitution if there was a promise to create a bill of rights that would limit government power.
What are civil liberties?•Constitution lays out what government can do•Bill of Rights: What the government can’t do•First 10 Amendments to the Constitution•Anti-Federalists would only sign on to the Constitution if there was a promise to create a bill of rights that would limit government power.•Civil liberties are also found in the 13thand 14thAmendments
What are civil liberties?•Constitution lays out what government can do•Bill of Rights: What the government can’t do•First 10 Amendments to the Constitution•Anti-Federalists would only sign on to the Constitution if there was a promise to create a bill of rights that would limit government power.•Civil liberties are also found in the 13thand 14thAmendments•See Appendix A of your handout for the Bill of Rights
Civil liberties•Rights we are going to talk about:•First Amendment rights•Second Amendment rights
Civil liberties•Rights we are going to talk about:•First Amendment rights•Second Amendment rights•Rights we aren’t going to talk about right now:•Rights of the Accused (4th-8th) and the Right to Privacy•Next class!
Civil liberties•Rights we are going to talk about:•First Amendment rights•Second Amendment rights•Rights we aren’t going to talk about right now:•Rights of the Accused (4th-8th) and the Right to Privacy•Next class!•Right to Marry•Right to travel from one state to another•Probably others
Civil liberties v. civil rights•Civil liberties
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.•Prevent violations of individualrights.
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.•Prevent violations of individualrights.•Negative rights. We have freedom fromgovernment overreach.
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.•Prevent violations of individualrights.•Negative rights. We have freedom fromgovernment overreach.•Civil Rights
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.•Prevent violations of individualrights.•Negative rights. We have freedom fromgovernment overreach.•Civil Rights•Legal provisions arising from the concept of equality, government protection of groups, equal treatment under the law
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.•Prevent violations of individualrights.•Negative rights. We have freedom fromgovernment overreach.•Civil Rights•Legal provisions arising from the concept of equality, government protection of groups, equal treatment under the law•Prevent discrimination against a group.
Civil liberties v. civil rights•Civil liberties•Constitutional and legal protections from government interference into private affairs.•Prevent violations of individualrights.•Negative rights. We have freedom fromgovernment overreach.•Civil Rights•Legal provisions arising from the concept of equality, government protection of groups, equal treatment under the law•Prevent discrimination against a group.•Positive rights. We have a right to protections.
PollEverywhere: Which is a civil liberty and which is a civil right?1)The right to be free from discrimination based on race, sex, religion, or national origin in employment.2)Freedom from cruel and unusual punishment.A)1 is a civil right and 2 is a civil libertyB)1 is a civil liberty and 2 is a civil righthttps://www.polleverywhere.com/multiple_choice_polls/8uBCIvUruPWC1ZeuK39hm
Learning Objectives•By the end of this class, you will be able to:•Define civil liberties and civil rights.•Describe the process of selective incorporation.•Distinguish between the establishment clause and the free exercise clauses of the First Amendment and determine whether various scenarios violate constitutional rights.•Use the strict scrutiny test in a freedom of speech case.
Part II: Selective IncorporationDescribe the process of selective incorporation.
Civil liberties originally only applied to federal government•States also have their own constitutions! (federalism)
Civil liberties originally only applied to federal government•States also have their own constitutions! (federalism) •1st Amendment opens, “Congress shall make no law…”
Civil liberties originally only applied to federal government•States also have their own constitutions! (federalism) •1st Amendment opens, “Congress shall make no law…” •Barron v. Baltimore (1833)
Fourteenth AmendmentCatalyst For Nationalization of Bill of RightsAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any statedeprive 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
Fourteenth AmendmentCatalyst For Nationalization of Bill of RightsAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any statedeprive 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
Fourteenth AmendmentAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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
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Selective Incorporation•Process by which the courts conclude that Bill of Rights applies to the states and state action
Selective Incorporation•Process by which the courts conclude that Bill of Rights applies to the states and state action•States cannot deny those incorporated rights
Selective Incorporation•Process by which the courts conclude that Bill of Rights applies to the states and state action•States cannot deny those incorporated rights•States can offer protections in addition to those afforded by the US Constitution
Selective Incorporation•Process by which the courts conclude that Bill of Rights applies to the states and state action•States cannot deny those incorporated rights•States can offer protections in addition to those afforded by the US Constitution•Gradual approach: the case-by-case incorporation
Phases of IncorporationProvisionProperty (Fifth Amendment)Speech, Religion and Assembly (FirstAmendment)Procedural Liberties (Fourth-Eighth Amendments)Privacy (Ninth Amendment and implied by others)Incorporated18971920’s and 30’s1950’s and 60’s1960’s and 70’s
Second Amendment: The Right to Bear Arms
Second Amendment: The Right to Bear ArmsA well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.Why is this confusing?
The Right to Bear Arms•District of Columbia v. Heller (2008)
The Right to Bear Arms•District of Columbia v. Heller (2008)•Second Amendment confers an individual right to keep and bear arms
The Right to Bear Arms•District of Columbia v. Heller (2008)•Second Amendment confers an individual right to keep and bear arms•Not an absolute right, like some other rights
Activity #1: The Right to Bear Arms in the StatesA Chicago law prohibited new registrations of handguns. A retired engineer wanted to buy a gun to protect his home from robberies but could not do so legally due to this policy.In a previous case, District of Columbia v. Heller(2008), the Supreme Court ruled that the Second Amendment confers an individual right to keep and bear arms. Because D.C. is a federal entity (not its own state), this decision didn’t address whether the Second Amendment is incorporated by the 14thAmendment.
The Supreme Court ruled in favor of the plaintiffThe Court ruled that the Second Amendment is incorporated to the states under the Fourteenth Amendment. Handgun bans are unconstitutional.McDonald v. Chicago (2010)
The Supreme Court ruled in favor of the plaintiffThe Court ruled that the Second Amendment is incorporated to the states under the Fourteenth Amendment. Handgun bans are unconstitutional.McDonald v. Chicago (2010)How do you think the Court ruled in New York State Rifle & Pistol Association Inc. v. Bruen?•Asks whether New York State’s law allowing concealed carry only for people with a special need for self-protection is constitutional.
Learning Objectives•By the end of this class, you will be able to:•Define civil liberties and civil rights.•Describe the process of selective incorporation.•Distinguish between the establishment clause and the free exercise clauses of the first amendment and determine whether various scenarios violate constitutional rights.•Use the strict scrutiny test in a freedom of speech case.
Part III: Civil Liberties and ReligionDistinguish between the establishment clause and the free exercise clauses of the First Amendment and determine whether various scenarios violate constitutional rights.
First Amendment: The Establishment ClauseCongress 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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.This is the establishment clause.
First Amendment: The Establishment ClauseEstablishment Clause: Denies the government the power to establish any single religious practice as superior.
First Amendment: The Establishment ClauseEstablishment Clause: Denies the government the power to establish any single religious practice as superior.•No prayer before football games in Texas•Santa Fe Independent School District v. Doe (2000)
First Amendment: The Establishment ClauseEstablishment Clause: Denies the government the power to establish any single religious practice as superior.•No prayer before football games in Texas•Santa Fe Independent School District v. Doe (2000)•But in 2022, the Court ruled in Kennedy v. Bremerton School Districtthat a football coach praying did not violate the establishment clause.
First Amendment: The Establishment ClauseEstablishment Clause: Denies the government the power to establish any single religious practice as superior.•No prayer before football games in Texas•Santa Fe Independent School District v. Doe (2000)•But in 2022, the Court ruled in Kennedy v. Bremerton School Districtthat a football coach praying did not violate the establishment clause.•Religious groups can have access to public buildings and public funds•E.g., Espinoza v. Montana Dept of Revenue (2020)
First Amendment: The Free Exercise ClauseCongress 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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.This is the free exercise clause.
First Amendment: The Free Exercise ClauseFree Exercise: Protects the rights of individuals to practice their religion without government interference.
First Amendment: The Free Exercise ClauseFree Exercise: Protects the rights of individuals to practice their religion without government interference.•Trend of the courts is to allow exemptions: •e.g., Burwell v. Hobby Lobby (2014)
First Amendment: The Free Exercise ClauseFree Exercise: Protects the rights of individuals to practice their religion without government interference.•Trend of the courts is to allow exemptions: •e.g., Burwell v. Hobby Lobby (2014)•e.g., Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)
First Amendment: The Free Exercise ClauseFree Exercise: Protects the rights of individuals to practice their religion without government interference.•Trend of the courts is to allow exemptions: •e.g., Burwell v. Hobby Lobby (2014)•e.g., Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)•e.g., Kennedy v. Bremerton (2022)
PollEverywhere: Is it an establishment or free exercise issue?A state law prohibits polygamy. An individual challenges the law arguing that he should be able to have multiple wives because his religion encourages plural marriage.This case presents a(n)A.Free Exercise issueB.Establishment issue
PollEverywhere: Is it an establishment or free exercise issue?An Amish family challenged a state law that required all children to attend public schools until the age of 16. The parents argued that high school attendance was contrary to their religious beliefs. This case presents a(n)A.Free Exercise issueB.Establishment issue
PollEverywhere: Is it an establishment or free exercise issue?The Ten Commandments were displayed on the grounds of the Oklahoma State Capitol from 2012 to 2015. Three Oklahoma citizens brought a suit asserting it was inappropriate for the monument to be displayed on government grounds.This case presents a(n)A.Free Exercise issueB.Establishment issue
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.Does the law
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.Does the law1.Cause an undue burden on the person’s exercise of religion?
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.Does the law1.Cause an undue burden on the person’s exercise of religion?2.Serve a compelling government interest?
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.Does the law1.Cause an undue burden on the person’s exercise of religion?2.Serve a compelling government interest?3.Narrowly tailored to achieve that goal or interest?
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.Does the law1.Cause an undue burden on the person’s exercise of religion?2.Serve a compelling government interest?3.Narrowly tailored to achieve that goal or interest?If yes to all three, law is ok.
Sherbert TestSherbertTest is a standard for deciding whether a law violates the free exercise clause.Does the law1.Cause an undue burden on the person’s exercise of religion?2.Serve a compelling government interest?3.Narrowly tailored to achieve that goal or interest?If yes to all three, law is ok.Activity #2: Does the Arkansas DOC policy substantially burden the inmate’s ability to exercise his religion, according to the Sherbert Test?
The Supreme Court ruled in favor of the inmateThe Court ruled that the DOC policy was not the least restrictive means of ensuring prison security because other steps could be taken to ensure quick identification and an inability to hide contraband.Holt v. Hobbs(2015)(The decision was unanimous! 9-0)
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose2.Laws cannot advance or inhibit religion
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose2.Laws cannot advance or inhibit religion3.Laws cannot foster excessive government entanglement between government and religion.
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose2.Laws cannot advance or inhibit religion3.Laws cannot foster excessive government entanglement between government and religion.No endorsement.
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose2.Laws cannot advance or inhibit religion3.Laws cannot foster excessive government entanglement between government and religion.No endorsement.No coercion.
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose2.Laws cannot advance or inhibit religion3.Laws cannot foster excessive government entanglement between government and religion.No endorsement.No coercion.Kennedy v. Bremertongot rid of the Lemon test.
Instead…“In place ofLemon’s ‘ambitious, abstract, and ahistorical approach,’ the Court returned to ‘original meaning and history,’ concluding that ‘the Establishment Clause must be interpreted by reference to historical practices and understandings’” (Chen 2022).
The Lemon TestThe Lemon Testis used (USED TO BE)to determine if a law or government action that promotes religion is constitutional.1.Laws must have secular purpose2.Laws cannot advance or inhibit religion3.Laws cannot foster excessive government entanglement between government and religion.No endorsement.No coercion.Activity #3: Does the school prayer policy violate the establishment clause? Consider the Lemon Test and the new approach.
The Supreme Court ruled in favor of the plaintiffThis case (Engel v. Vitale)took place in New York in 1962. Supreme Court ruled this violated the establishment clause.Justice Hugo Black wrote that “government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people.”How would the court have ruled today?
Learning Objectives•By the end of this class, you will be able to:•Define civil liberties and civil rights.•Describe the process of selective incorporation.•Distinguish between the establishment clause and the free exercise clauses of the First Amendment and determine whether various scenarios violate constitutional rights.•Use the strict scrutiny test in a freedom of speech case.
Part IV: Civil Liberties and SpeechUse the strict scrutiny test in a freedom of speech case.
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)•They use it in the case of discrimination (this relates to civil rights and is for next week)
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)•They use it in the case of discrimination (this relates to civil rights and is for next week)•They use it when laws interfere with constitutional rights
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)•They use it in the case of discrimination (this relates to civil rights and is for next week)•They use it when laws interfere with constitutional rightsGovernment policy that infringes on the exercise of a fundamental right will be sustained if the government demonstrates:
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)•They use it in the case of discrimination (this relates to civil rights and is for next week)•They use it when laws interfere with constitutional rightsGovernment policy that infringes on the exercise of a fundamental right will be sustained if the government demonstrates:1.The policy serves a compelling government interest;
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)•They use it in the case of discrimination (this relates to civil rights and is for next week)•They use it when laws interfere with constitutional rightsGovernment policy that infringes on the exercise of a fundamental right will be sustained if the government demonstrates:1.The policy serves a compelling government interest;2.The law is narrowly tailored to achieve that goal or interest;
Strict ScrutinyStrict scrutiny is a test judges apply to determine if a law is constitutional. (Similar to the the Sherbert Test, but applied more broadly.)•They use it in the case of discrimination (this relates to civil rights and is for next week)•They use it when laws interfere with constitutional rightsGovernment policy that infringes on the exercise of a fundamental right will be sustained if the government demonstrates:1.The policy serves a compelling government interest;2.The law is narrowly tailored to achieve that goal or interest;3.The law is the least restrictive means for achieving that interest.
First Amendment: Freedom of Speech•Does not mean that Congress can't pass any law restricting free speech
First Amendment: Freedom of Speech•Does not mean that Congress can't pass any law restricting free speech•It means that when Congress passes a law that limits free speech or other First Amendment rights, the Court will use strict scrutiny.
First Amendment: Freedom of Speech•Does not mean that Congress can't pass any law restricting free speech•It means that when Congress passes a law that limits free speech or other First Amendment rights, the Court will use strict scrutiny. 1.“compelling state interest”2.“narrowly tailored”3.“least restrictive means”
Freedom of speech that is protected: symbolic speech
Freedom of speech that is protected: symbolic speechForms of Symbolic ExpressionCross burning and flag burning are protected as form of expression
Freedom of speech that is protected: symbolic speechForms of Symbolic ExpressionCross burning and flag burning are protected as form of expressionSpeech PLUSassembly, pickets lines are lawful, but not on private property
Freedom of speech that is protected: hate speechHate Speech
Freedom of speech that is protected: hate speechHate Speech•Defined as hostile or prejudicial statements concerning characteristics such as race, ethnicity, sex, sexual orientation or religion.
Freedom of speech that is protected: hate speechHate Speech•Defined as hostile or prejudicial statements concerning characteristics such as race, ethnicity, sex, sexual orientation or religion.•Supreme Court is reluctant to ban “hate” speech. Court has allowed states (and the federal government) to impose sentence enhancements for bias motivation in a crime.
Freedom of speech that is not protected•Defamation (libel and slander)
Freedom of speech that is not protected•Defamation (libel and slander)•Fighting Words•Chaplinsky v. New Hampshire (1942)
Freedom of speech that is not protected•Defamation (libel and slander)•Fighting Words•Chaplinsky v. New Hampshire (1942)•Advocacy of imminent lawless action•Brandenburg v. Ohio (1969)
Freedom of speech that is not protected•Defamation (libel and slander)•Fighting Words•Chaplinsky v. New Hampshire (1942)•Advocacy of imminent lawless action•Brandenburg v. Ohio (1969)•True Threats•Watts v. United States (1969)
Freedom of speech that is not protected•Defamation (libel and slander)•Fighting Words•Chaplinsky v. New Hampshire (1942)•Advocacy of imminent lawless action•Brandenburg v. Ohio (1969)•True Threats•Watts v. United States (1969)•Take home point: Need to protect order more important than speech not meant to advance a conversation or ideas
More generally, the Court wrote in Chaplinsky:It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words —those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”
First Amendment: Freedom of SpeechStrict Scrutiny:Government policy that infringes on the exercise of a fundamental right will be sustained if the government demonstrates:1.The policy serves a compelling government interest;2.The law is narrowly tailored to achieve that goal or interest;3.The law is the least restrictive means for achieving that interest.Activity #4: Does the city ordinance preventing cross burning violate the teenagers’ freedom of speech?
The Supreme Court ruled in favor of the defendantsThe Court held that the city ordinance was unconstitutional because it prohibits only some kinds of speech meant to arouse anger or outrage. Other speech meant to arouse anger or outrage on other bases were not banned. Also, the city could achieve its interest in punishing cross burning without the rule (this wasn’t the “least restrictive means”).R.A.V. v. City of St. Paul (1992)Unanimous decision!
Freedom of the PressUnless it is a very extreme situation, prior restraintis prohibited.
Freedom of the PressUnless it is a very extreme situation, prior restraintis prohibited. Prior restraint= Censorship imposed by the government
Freedom of the PressUnless it is a very extreme situation, prior restraintis prohibited. Prior restraint= Censorship imposed by the governmentNew York Times v. United States (1971)Even illegally obtained documents are protected.
Learning Objectives•By the end of this class, you will be able to:•Define civil liberties and civil rights.•Describe the process of selective incorporation.•Distinguish between the establishment clause and the free exercise clauses of the First Amendment and determine whether various scenarios violate constitutional rights.•Use the strict scrutiny test in a freedom of speech case.