Transcript Civil Liberties

Civil Liberties
CH 4
The Politics of Civil Liberties
 Civil liberties: protections the Constitution
provides against the abuse of government power
(freedom of speech, for ex)
 Are listed in the Bill of Rights: States ratifying
the US Constitution demanded the addition of the
Bill of Rights; liberties are listed here
 These limit what the national government can do to
citizens (but not state govts)
The Fourteenth Amendment (1868)
 Due Process Clause: “no state shall deprive any
person of life, liberty or property without due process
of law” (civil liberties)
 Equal Protection Clause: “no state shall deny to
any person within its jurisdiction the equal
protection of the laws” (civil rights)
Incorporation
 Most important protections in the Bill of Rights
(freedom of speech, religion, etc.) have been
incorporated or applied to state laws over time
 But they didn’t originally apply to state laws
 They have been incorporated or applied to state
laws over time via the 14th Amendment
Incorporation—the Process
 Barron v. Baltimore, 1833,
 Supreme Court rules that states could NOT be forced to
uphold Bill of Rights if it conflicted with their constitution.
 Gitlow v. New York, 1925:
 SC reversed Barron ruling citing 14th Amendment’s due
process clause;
 Says 1st amendment protections apply to state laws
 Gitlow begins the process of selective incorporation—the
gradual application of most BOR protections to state laws
The First Amendment
 The First Amendment protects FIVE freedoms
 Freedom of Speech,
 Freedom of the Press
 The right to Assemble (gather to protest or celebrate)
 Freedom of Religion and
 The right to Petition the government (make a formal
grievance)
Freedom of Religion
 Freedom of religion has TWO different protections in
two different clauses.
 The Establishment Clause

“Congress shall make no law respecting the establishment of
religion.”
 The Free Exercise Clause
 Prohibits government from interfering with the practice of
religion
 Some religious practices may conflict with other rights, and
then be denied or punished
The Establishment Clause
 Prohibits Congress from making laws that establish
any religion by government means
 There is disagreement over what it means
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Some say it means: Government can’t favor one religion over
another
Others say it means: There must be a wall of separation
between church and state which forbids any government
support of religion
The Establishment Clause
 Government involvement in religious activities is
constitutional if it meets the following test (as
established in the case Lemon v. Kurtzman, 1971):
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The challenged law or government action must have a
secular (non-religious) purpose
The primary effect of the law or action must be to neither
advance nor inhibit (hold back) religion
The operation of the law or action must not foster
excessive entanglement of government with religion.
Lemon v. Kurtzman
 Can the government fund religious schools? With
what limits?
 Can a Jewish community center receive public
funds?
 Can a teacher lead a prayer in a public school
classroom?
Establishment Clause
 Engel v. Vitale, 1962 and School District of Abington
v. Schempp, 1963
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Forbids the practice of prayer in school
Is a violation of the establishment clause and a breach of
separation of church and state
Excessive entanglement if government and religion
Free Exercise
 Supreme Court has said it means: Government can’t
infringe on beliefs but can regulate conduct to some
degree.
 Laws that single out a religious practice and have no
general benefit or weren’t pre-existing are
unconstitutional

Is a law forbidding bigamy (marriage to more than one person
at the same time) unconstitutional?
The Free Exercise Clause
 Insures that no law may impose particular penalties
on religious institutions
 Prohibits limiting the freedom to worship (or not to
worship)
 Some conflicts between religious freedom and public
policy continue to be difficult to settle.

For example, parents who choose to pray rather than to seek
medical attention for sick children.
Free Exercise Clause
 Case Study: A state requires those applying for
unemployment benefits to accept appropriate jobs
that are available. A woman is denied benefits
because she refuses to accept a job that requires her
to work on the day she celebrates the Sabbath.
 Does this law interfere with her free exercise rights?
Freedom of Press
 A free and independent press is essential to
democracy as a check on government abuse of power
 As a general rule, the Court does not permit prior
restraint / censorship of material to publication
(Near v. Minnesota, 1921)
 Unless national security is a risk—but burden in on
government to prove this (Pentagon Papers case,
1971).
 It is OK to sue after publication, however.
Freedom of Speech
 Also known as freedom of expression
 Speech is not easily limited but can be if it is
needlessly harmful
 Some expression is NOT protected, including:
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Speech that presents “a clear and present danger,” (yelling
“Fire!” in a crowded theater, for example)
Defamation (lies that damage reputations)
Obscenity (which is hard to define)
Freedom of Expression: Defamation
 Libel: a written false statement defaming (damaging
the reputation of) another
 Slander: a defamatory spoken statement
 Public figures must also show the words were written
with “actual malice”—reckless disregard for the truth
or with knowledge that the words were false.
Freedom of Expression
 Obscenity
 No clear definition on what constitutes obscenity.
 Miller v. California, 1973 stated that materials were
obscene if the work:
appeals “to a prurient interest in sex”
 showed “patently offensive” sexual conduct
 lacks “serious literary, artistic, political or scientific value”


Local areas make their own decisions on obscenity
Symbolic Speech
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Definition: Nonverbal communication or actions that express an
opinion; such as burning a flag or wearing an armband.
 Generally is protected, but depends on
circumstances (“time, place and manner.”)
 Can sometimes be made illegal, even if it conveys a
political message (example: burning a draft card)
depending on time, place and manner

Court said this was too inflammatory in time of war
 US Supreme Court has said flag burning is
protected speech (Texas v. Johnson)
Commercial Speech
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Definition: Communication in the form of advertising.
 Can be restricted; the FTC prohibits false claims.
 In FCC v. Pacifica (1978) the Court upheld
restrictions on foul language over the public airways.
Right to Assemble
 First Amendment guarantees the
 Right to Assemble
Generally permissible to gather publicly, but must be reasonable
and follow local standards.
 Court seeks a balance between freedom to assemble and order in
society.
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Includes the Right to Associate

Freedom to join groups / associations without government
interference.
Quick Write
 Is hate speech (deliberately racist, sexist, or
otherwise denigrating speech) protected under the
First Amendment? Why or why not?

Support your answer with legal reasoning!!
Defendant’s Rights
Rights of Defendants
 The Fourth Amendment protects against
unreasonable searches and seizures and requires
search warrants.
 The Fifth Amendment protects against selfincrimination.
 The Sixth Amendment says the accused has a right
to counsel.
 The Eighth Amendment prohibits excessive bail
and cruel and unusual punishment.
4th Amendment
 Protects citizens from unreasonable searches and
seizures by government
 Police cannot search without a search warrant
issued by court unless they believe evidence will
disappear
 No arrests without probable cause (a belief of
guilt)
Search and Seizure
 Need a search warrant:
 An order from a judge authorizing the search of a place and
describing what is to be searched and seized;
 Judge can issue only if there is probable cause (some
evidence leading to suspicion of guilt)
 What can the police search without a warrant?
 The individual being lawfully arrested
 Things in plain view
 Things or places under the immediate control of the
individual (traffic stop)
 When consent is given
Exclusionary Rule
 Exclusionary rule (Mapp v. Ohio, 1961):
 Was established / first applied to states in the case Mapp v.
Ohio, 1961
 Evidence gathered in violation of the Constitution cannot be
used in a trial
 Examples: A confession that was coerced; a search that yields
evidence but that was done without a warrant
 Stems from the Fourth Amendment (freedom from
unreasonable searches and seizures) and the Fifth
Amendment (protection against self incrimination)
Confessions and Self Incrimination
(5th Amendment)
 Person is innocent until proven guilty;
 Burden is on the government to prove its case
beyond reasonable doubt
 Protects people from being forced to supply evidence
against themselves
 Miranda v. Arizona, 1966
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S Court: confessions are presumed to be involuntary unless the
suspect is fully informed of his or her rights
Miranda rights apply once a suspect is in custody.
Right to remain silent; to have an attorney
The Right to Counsel
 The Sixth Amendment provides the accused with a
right to have the assistance of counsel for his
defense.
 Gideon v. Wainright (1963)
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Court Ruling: The state must provide an attorney in felony
cases if the accused cannot afford one.
Used selective incorporation via 14th Amendment
This was an unfunded mandate.
The Death Penalty
 8th Amendment forbids:
 Excessive bail and
 Cruel and unusual punishment
 Is the Death Penalty for murder “cruel and unusual
punishment?”
 Furman v. Georgia (1972): the death penalty if
applied in a random fashion is unconstitutional.
The Death Penalty / 8th A.
 After Furman case, states rewrote their death
penalty statutes to include aggravating (more
serious) and mitigating (less serious) factors
 In Gregg v. Georgia (1976):
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Court upholds the death penalty;
Says it is NOT cruel and unusual punishment if used for
extreme crimes
Other death penalty challenges: Is it racist? Can
mentally disabled be given it? Can those under 18
who murder face it?
The Right to Privacy
 Is There a Right to Privacy?
 Definition: The right to a private personal life free from the
intrusion of government.
 NOT explicitly stated in the Constitution
 Implied by all BOR protections and especially the Fourth and
Fifth Amendment
 Very debatable if originally intended
Right to Privacy
 Griswold v.
 Roe v. Wade, 1973:
Connecticut,1965:
Can state laws forbid
the use of
contraceptives?
 Is there a right to
privacy?
 Court: Yes. This law
is unconstitutional
Is seeking an abortion
a protected right to
privacy?
 Court: Laws that ban
abortion are illegal
(in first trimester) but
abortion can be
limited.
The Right to Privacy
 Controversy over
Abortion
Roe v. Wade (1973)
 Planned Parenthood
v. Casey (1992)
 Some limits on
abortion are OKwaiting period and
parental notification

When should abortions be legal?
Figure 4.1