CIVIL LIBERTIES: AN INTRODUCTION TO THE BILL OF RIGHTS
Dr. Peter V. Rajsingh
715 Bdway, 4th Fl
Text: Civil Liberties Primis Customtext
Website URLs: law.cornell.edu;
findlaw.com; fedworld.gov/supcourt/index.htm;
law.upenn.edu/conlaw; einet.net/galaxy/law/constitutional.html
This course examines the civil liberties tradition in the United States. We will discuss civil liberties in the broader framework of social and political philosophy and read Supreme Court cases concerning the Bill of Rights. This important legal instrument seeks formally to enumerate and codify certain individual liberties considered "fundamental" and thereby immune from potential incursion by democratic majorities or governmental action. We will focus on four major civil liberties principles--freedom of expression (speech, press, religion), privacy, due process and equal protection.
Preparing cases in advance along with regular attendance and active class participation are essential. There will be a midterm and final examination, several short in-class quizzes and a legal opinion writing assignment ( approximately 10 pages) based on a hypothetical fact pattern. All of the foregoing will count towards the final grade.
Annotated Course Outline:
Introduction: Thinking about civil liberties.
Deontology; Utilitarianism; Natural Rights; Legal Positivism
Theories of Jurisprudence:
1. Traditional/Analytical Jurisprudence
2. Sociological Jurisprudence
3. Legal Realism & Critical Legal Studies (CLS)
Judicial Review: Marbury v. Madison (1803) & Van Alstyne essay pgs 7-11
Incorporation: Nationalization of the Bill of Rights
(The 14th Amendment); The Black/Frankfurter Debate
Barron v. Baltimore (1833)* Slaughterhouse Cases (1873)* Hurtado v. California (1884)* Adamson v. California (1947)* Gitlow v. New York (1925)
Freedom of Religion: (Free Exercise and [Anti-]Establishment)
House Debate on Religion Clauses (1789) pgs 12-13
Reynolds v. U.S. (1878)* Gov'tal regulation of religion
Pierce v. Society of Sisters (1925)* Oregon law compelling public school attendance unreasonably conflicts with parents’ F.E. interest; privacy in rearing of offspring
Cantwell v. Connecticut (1940)* State permit for charitable solicitations violating F.E.; Incorp. of F.E. Clause
Minersville School District v. Gobitis (1940) /PA Flag Salute
West Virginia Bd. of Ed. v. Barnette (1943) /reversal
Prince v. Massachusetts (1944)* Jehovah's Witness minors selling periodicals: state's overriding interest in protecting children prevails over F.E.
Everson v. [Ewinq] Bd. of Ed. (1947) Incorp. [Anti-]Est./Wall of Separtn. or Neutrality? NJ bus fare reimbursement not Estab.
McGowan v. Maryland (1961)* Sunday closing law as serving purpose of "uniform day of rest" thus not Estab.
Braunfeld v. Brown (1961)* Sunday closing challenged by Philadelphia Orthodox Jews on F.E. grounds (religious practice effecting an eco. burden); indirect not direct conseq. so no F.E. burden
Torcaso v. Watkins (1961)* MD public employment theistic oath --> F.E. as protecting non-religion
Engel v. Vitale (1962) Non-denom. NY Regent's prayer = Estab.
Sherbert v. Verner (1963)* SC Seventh Day Adv. denied benefits; seemingly indirect burden but still F.E.
Abington School District v. Schempp & Murray v. Curlett (1963)* PA bible reading and MD Lord's Prayer = Estab; Two-test for Estab.
U.S. v. Seeger (1965)* /Conscients. objtrs. protected by F.E.
Gillette v. U.S. (1971)* /but not for objection to a particular war
Tilton v. Richardson (1971)* Federal funding of academic bldg. construction in sectarian and secular colleges not such entanglement as to violate Estab.
Epperson v. Arkansas (1968)* State "monkey law" excluding teaching of evolution = non-secular legislative purpose
Lemon v. Kurtzman (1971) PA/RI public funding parochial schools --> three-pronged test for [Anti-]Estab.
Stone v. Graham (1980)* Kentucky Ten Commandments posted in classrooms as non-secular/not "legal heritage."
Widmar v. Vincent (1981)* Ct. overturned Missouri State Uni. denial of facilities for student group religious activities: promotes free ideas in public forum
Wisconsin v. Yoder (1972)* Compulsory Amish school attendance; indrt. burden and generally applicable law but religious interest of Amish held to override state; way of life as a religious exemption
U.S. v. Lee (1981)* Congress Soc. Sec. exemption for Amish not F.E. claim: Amish not forced to become employers: gov'tal interest as compelling
Heffron v. ISKCON (1981)* Reasonable time, place and manner regulation for fixed booths at Minnesota Fairs not violation of F.E.
Bob Jones University v. U.S. (1983)* F.E. discrimination allowed but no I.R.S. Sec 501 c(3) tax exemption
Wallace v. Jaffree (1985) Alabama moment of silence; state cannot prefer religion over non-religion
Lynch v. Donnelly (1984) /RI public display as secular; accommodation as not Establishment
Allegheny County v. Greater Pittsburgh ACLU (1989)* /cultural diversity and secular objects in display so not Estab.
[Mormon] Church v. Amos (1987)* Title VII s 702 exemption as accommodation not excessive entanglement
Goldman v. Weinberger (1986) Deference to military over F.E. --> Congressional statutory reversal pgs 29-33
Edwards v. Aguillard (1987) Louisiana Balanced Treatment Act for teaching of creationism = advancing religion
Lyng v. Northwest Indian Cemetery Protective Assoc. (1988)* Forest road etc. through cemetery as incidental burden on Free Exercise
Texas Monthly Inc. v. Bullock (1989)* Texas tax exemption to religious periodicals = Estab.
Jimmy Swaggart Ministries V. Board of Equalization (1990)* Generally applicable CA sales tax on religious items not F.E.
Employmt. Div. v. Smith II (1990) Ceremonial peyote ingestion; where generally applicable law and one civil liberty, statute does not warrant strict scrutiny; but no denial of umemplyt. when petitioners were fired as drug rehab. counsellors
Lee v. Weisman (1992)* RI public school prayer = Estab.
Church of Lukumi Babalu Aye v. City of Hialeah (1993)* Animal sacrifice proscription not narrowly tailored nor religiously neutral
Freedom of Speech:
House Debate 1789
Schenck v. U.S. (1919) Holmes' clear and present danger test
Abrams v. U.S. (1919) Bad tendency test
Gitlow v. New York (1925) Deferential standard and presumption of reasonableness for sedition statutes; incorporation
Whitney v. California (1927) Brandeis' imminent danger
Hague v. CIO (1937) speech plus; public forum
Chaplinsky v. New Hampshire (1942)* Fighting words
Valentine v. Chrestensen (1942)* Purely commercial advrts. here not protected; NY anti-litter ordinance upheld
Dennis v. U.S. (1951) return to "semblance" of imminent danger test but really balancing test for statutory (not evidentiary) review;
Yates v. U.S. (1957) Advocacy of action vs ideas
NAACP v. Alabama (1958)* Freedom of association
U.S. v. O'Brien (1968)* Symbolic speech (burning draft card); overriding substantial gov'tal interest --> O'Brien test, middle tier review
Brandenburg v. Ohio (1969) Advocacy irrespective of imminent danger vs actual unlawful action
Cohen v. California (1971) Offensive conduct protected
Buckley v. Valeo (1976) Limiting campaign contribtns. vs 1st Amendment
Village of Skokie v. Nazi Party (1978)* Fighting words vs symbolic speech; directed, content-based prohibition not a narrowly-tailored reasonable time, place and manner regulation
Prune Yard Shopping Center v. Robins (1980) Private property and non-association vs free speech cf. Taking/Eminent Domain
Texas v. Johnson (1989) /Flag burning = symbolic speech not fighting words; gov'tal interest not overriding
U.S. v. Eichman (1990) /Overturning statutory reversal
Robert A. Viktora (R.A.V.) v. City of St. Paul (1992)* MN hate crime law as selective, non-content neutral and directed so violates F.S.
Madsen v. Women's Health Center (1995)* Content neutrality required in regulating abortion protesters' speech plus
Freedom of Press:
Milton's Areopagitica 1644
Near v. Minnesota (1931) No prior restraint
New York Times v. Sullivan (1964) Actual malice standard for public figures
Time Inc. v. Hill (1967)* privacy vs free press
New York Times v. U.S. (1971)* Pentagon papers; heavy burden on govt. to prove national security threat
Gertz v. Robert Welch Inc. (1974)* Private person; no need to prove actual malice
Bigelow v. Virginia (1975)* Advertising protected (legal abortions in NY) ; served legitimate public interest
Cox Broadcasting v. Cohn (1975)* GA privacy statute protecting rape victim's names overturned
Nebraska Press Assoc. v. Stuart (1976) Free press vs fair trial
Richmond Newspapers Inc. v. Stuart (1980) Press trial access
Hustler Magazine v. Fallwell (1988) Parody article of public figure; no emotional stress damages for "outrageousness"
CNN v. Noriega (1990)* Rehnquist Ct. upheld restraining order against broadcasting tapes of Noriega conversations; lawyer client privilege
Pornography/Obscenity:
Roth v. U.S. (1957) Three part test for obscenity
Miller v. California (1973) Test reasserted, community standard
Paris Adult Theater I v. Slaton (1973) Deference to states; New York v. Ferber (1982)* Child pornography
City of Renton v. Playtime Theaters Inc. (1986)* Zoning regulation as not content-based
Procedural Due Process:
Powell v. Alabama (1932) 5th A. rt. to counsel in capital cases
Duncan v. Louisiana (1968) 14th A. D.P. rt. to jury trial
Palko v. Connecticut (1937) 5th A. double jeopardy
Benton v. Maryland (1969)* Overrules Palko to incorporate double jeopardy
Mallory v. U.S. (1957) 5th A. rt. against self-incrim.
Gideon v. Wainwright (1963) overturns Betts v. Brady (1942) to grant indigents 6th A. rt. to counsel for non-capital cases
Escobedo v. Illinois (1964) 5th A rt. to counsel; coerced confession inadmissible
Malloy v. Hogan (1964)* Incps. 5th A. rt against self-incrimination
Miranda v. Arizona (1966) Miranda rights; affirmative obligation on government
Furman V. Georgia (1972) Death penalty as cruel and unusual
Gregg v. Georgia (1976) Death penalty allowed with proced. due process guarantees
McCleskey v. Kemp (1987) Death penalty as not racially discriminatory
Olmstead v. U.S. (1928) 4th A. searches and seizures; wire tap not a search
Katz v. U.S. (1967) Overrules Olmstead; 4th A. protects people not places so need search warrant for wiretap
Weeks v. U.S. (1914) Exclusionary Rule re. admissible evidence
Mapp v. Ohio (1961) Incorporates Weeks re. 4th A. tainted evidence
Stone v. Powell (1976) Habeas corpus denied
U.S. v. Leon (1984) Good faith exception to 4th A. Exclry. Rule
Equal Protection:
Race--
Dred Scott v. Sandford (1857) Blacks not citizens by original intent; judicial review --> the "self-inflicted wound"
Plessy v. Ferguson (1896) Separate but equal
Korematsu v. U.S. (1944)* Race as suspect classification
Smith v. Allwright (1944) All-white prmry. violates 14/15th Amendments
Sweatt v. Painter (1950)* Separate "and" equal
Brown v. Bd. of Ed. I (1954) & II (1955) overrules Plessy, public school desegregation with all deliberate speed
Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) Judicial remedies; bussing
Milliken v. Bradley (1974) Specific not generalized remedies
Heart of Atlanta Motel v. U.S. (1964)/ Title VII Civil Rights Act 1964; Commerce Clause with Katzenbach v. McClung (1964)
Moose Lodge No. 107 v. Irvis (1972) Private clubs' freedom of association vs 14th A. invidious discrimination
De Funis v. Odegaard (1974) Affirmative action; mootness Regents of the Uni. of Calif. v. Bakke (1978) Affirmative action goals but not quotas
Local 28 of Sheet Metal Workers v. EEOC (1986) Historic pattern of discrim. so remedy appropriate
Metro Broadcasting Co. v. FCC (1990) Diversity as legitimate governmental objective
Gender--
Reed v. Reed (1971)* Gender and E.P.
Phillips v. Martin Marietta Corp. (1971)* Title VII discrim. against mothers with preschool children
Taylor v. Louisiana (1973)* 6th A rt re. women on juries
Frontiero v. Richardson (1973) Women and the military
Orr v. Orr (1979)* Women too liable for divorce alimony payments
Craig v. Boren (1976)* Oklahoma unequal alcohol statute
Califano v. Goldfarb (1977)* Equality of soc. sec. benefits
Rostker v. Goldberg (1981) Women and selective service
Michael M. V. Superior Ct. of Sonoma County (1981)* Gender-specific CA statutory rape law
Mississippi Uni. for Women v. Hogan (1982)* Women-only nursing school as discriminatory
Johnson v. Transportation Agency (1987) Women and affrm. action
Juveniles--
In Re. Gault (1967) Procedural D.P. rts. for minors
Tinker v. Des Moines School Dist. (1969) Symbolic speech rts for school children
Privacy:
Griswold v. Connecticut (1965) Penumbra of privacy
Loving v. Virginia (1967)* Miscegenation statute as unconst.
Stanley v. Georgia (1969) Private possession of pornographic materials as protected
Roe v. Wade (1973) Reproductive privacy
Akron v. Akron Center for Reproductive Health (1983) Undue burden standard
Webster v. Reproductive Health Services (1989) States permitted to regulate conditions for abortion
Rust v. Sullivan (1991)* Federal gag rule on abortion
Planned Parenthood v. Casey (1992)* PA state restrictions
Bowers v. Hardwick (1986) Rational basis test for private sexual activity
Romer v. Evans (1996) Colorado's Amdt 2 struck down on E.P. grounds
Cruzan v. Director, Missouri Dept. of Health (1990) Right to die