Civil Liberties and Public Policy Edwards Chapter 04 1
Introduction Civil liberties are individual legal and constitutional protections against the government. Issues about civil liberties are subtle and complex. Disputes about civil liberties often end up in court. 2
The Bill of Rights- then and now The first ten Amendments to the Constitution make up the Bill of Rights and ensure Americans basic liberties, such as freedom of speech and religion and protection against arbitrary searches and being held for long periods without trial. 3
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The Bill of Rights and the States Literally, the Bill of Rights only restricts the powers of the national government, not the states. In 1925, (Gitlow v. New York) the Supreme Court ruled that the 14 th Amendment made parts of the Bill of Rights applicable to the states. This began the development of the incorporation doctrine in which the Supreme Court applied the Bill of Rights, one by one, to the states. 5
Freedom of Religion 6
The Establishment Clause The establishment clause says, Congress shall make no law respecting an establishment of religion while the free exercise clause prohibits the abridgment of the citizens freedom to worship, or not to worship, as they please. Thomas Jefferson argued that the establishment clause forbid not just favoritism but any support for religion at all. 7
The Establishment Clause Today, most debates over the establishment clause centers on aid to church-related schools and prayer in schools. In 1971, the Supreme Court declared (Lemon v. Kurtzman) that aid to church-related schools must have a secular legislative purpose Have a primary effect that neither advances nor inhibits religion, and Not foster an excessive government entanglement with religion. 8
The Supreme Court has allowed federal aid to parochial schools as long as it has not been used to support sectarian education. The Court has also opened public schools to religious activities as long as public funds are not used to directly support religious education. 9
School Prayer: a very controversial issue! In 1963, the Court ruled that involuntary recitations of prayers or Bible passages, when done as part of classroom exercises in public schools, violated the establishment clause. Some groups have pushed for a constitutional amendment to allow school prayer. Some school districts have simply ignored the Court s ruling. 10
Other Establishment Clause Issues What information should be taught in the public education system, especially creation science versus Darwinism. Whether religious symbols should be allowed on public property. The Supreme Court has ruled that the Constitution does not require complete separation of church and state It mandates accommodation of all religions and forbids hostility toward any. 11
The Free Exercise Clause The free exercise clause is also controversial because some religions forbid actions that society thinks are necessary or require actions that society finds disruptive. The Supreme Court has consistently maintained that people have the right to believe what they want but are more cautious about the right to practice a belief. The Court has never permitted religious freedom to be an excuse for any behavior. The Court has held that religious freedom takes precedence over compulsory education laws. 12
Freedom of Expression The First Amendment plainly forbids the national government from limiting freedom of expression. Controversy exists whether freedom of expression is absolute. 13
American Principles of Free Speech The Founding Fathers believed that free speech was a cornerstone of democracy. The 1 st Amendment promises that no law passed by Congress would abridge (deprive) the freedom of speech. The Supreme Court has protected certain kinds of speech in certain circumstances but not all kinds of speech. 14
Speech can involve different forms of expression The Supreme Court has distinguished three types of speech: pure speech speech-plus symbolic speech 15
Pure Speech Pure speech is communication by the spoken word alone. Examples of pure speech include face-to-face discussions, speeches at public meetings, telephone conversations, classroom debates 16
Two elements set pure speech apart from other types of speech. Pure speech relies solely on WORDS to convey ideas or emotions. In pure speech, the listener, or audience, usually participates voluntarily. Consequently, pure speech does not usually interfere with other people s rights. 17
Speech-Plus Action Speech combined with some other kind of action is called speech-plus. the plus (additional action) may be marching, chanting, picketing, or singing. these actions bring the speech to the attention of other people. usually, the speech component of speech-plus is constitutionally protected. the plus component may be subject to reasonable regulations if it threatens public safety. 18
Speech-Plus Action: Picketing Picketing is a controversial speech-plus activity. People protesting policies of other organizations may form picket lines, carry signs, and march. In Thornhill v. Alabama (1940) the Supreme Court gave peaceful picketing the full protection of the First Amendment. 19
In a second decision, Milk Wagon Drivers Union v. Meadowmoor Dairies (1941) the Court said picketing can be restricted when there is a threat of violence. since then, the Court has ruled that picketing may be limited if it conflicts with valid state laws. 20
Symbolic Speech In symbolic speech, actions and objects replace words in conveying ideas or emotional appeals, usually as part of a political protest. while the Supreme Court has declared some forms of symbolic speech constitutional, it has restricted other forms. 21
Symbolic Speech In United States v. O Brien (1968) the Court upheld the arrest of four young men who burned their draft cards in protest against the Vietnam War. the Court ruled that protesters burning draft cards were disrupting a legitimate function of government, that is, raising an army for national defense. 22
In Tinker v. Des Moines School District (1969), the Court ruled that school officials could not suspend students for wearing black armbands as an anti- Vietnam war protest. the protesters wearing armbands were merely expressing an opinion, which is protected speech under the First Amendment. 23
In Texas v. Johnson (1989), the Court ruled that the burning of the American flag was protected under freedom of speech. In response, Congress then passed the Flag Protection Act of 1989, which prohibited flag burning. the Court declared the law unconstitutional, ruling that flag burning, while objectionable to some, was an acceptable form of free speech because it was the expression of personal political ideas. 24
Prior Restraint Definition: A government preventing material from being published: censorship. People may be punished after something is published. The Supreme Court has consistently struck down prior restraint (censorship) on speech and the press. The landmark case was Near v Minnesota (1931) Prior restrain is permissible during wartime. Some prior restraint, such as for high school newspapers has been tolerated. 25
Freedom of Speech and Public Order Speech may be limited if it presents a clear and present danger of substantive evils (Schenck v. United States 1919) 26
The clear and present danger test has been used by judges to decide whether the danger to public welfare outweighs the right to freedom of speech. Through the early years of the Cold War, the clear and present danger test was used to limit the free speech of socialists and communists. 27
The Smith Act (1940) forbade the advocacy of violent overthrow of the US government. The Supreme Court upheld the constitutionality of the Smith Act (1940) that made it a crime to advocate the overthrow the government by force or to join any organization advocating rebellion. 28
In the 1960 s the Supreme Court under Chief Justice Earl Warren took the position that political speech was protected under the First Amendment unless it incited imminent lawless action (Brandenburg v. Ohio 1969) a speaker who talks about rioting is constitutionally protected up to the point where the riot seems likely to start. Today, you can call for the overthrow of the government in the abstract with no repercussions. 29
Freedom of Speech and Public Order Free speech may be limited if it is obscene, libelous, or slanderous. An individual s free speech may be limited if he is on private property, like a shopping center. 30
Free Press and Free Trials Pretrial publicity can jeopardize a fair trial. Trials are public business of the government. The public has a right to know what happens. The Press own information may not be protected. Reporters often feel they should not have to open their files to the courts. In the absence of shield laws that protect reporter s rights to keep sources anonymous, reporters do not have a right to withhold information from the courts. 31
Obscenity There is no standard legal definition of obscenity. In Miller v. California (1973) stated Materials were obscene if they appealed to a prurient interest in sex Showed patently offensive sexual conduct that was specifically defined by an obscenity law, and lacked serious artistic, literary, political, or scientific value. 32
Obscenity Decisions regarding whether material was obscene should be based on local not national standards. The courts have been more consistent in protecting children from obscenity. A new issue in regard to pornography has arisen due to advances in technology and whether obscene material on the World Wide Web should be regulated. 33
Libel and Slander Libel: the publication of false or malicious statements that damage someone s reputation. Slander: the same thing, only spoken instead of printed. There are different standards for private individuals and public individuals New York Times v. Sullivan (1964) ruled that statements about public officials are libelous only if they are defamatory falsehoods made with malice and reckless disregard for the truth. Libel and slander are difficult to prove. 34
Symbolic Speech Definition: Nonverbal communication, such as burning a flag or wearing an armband. Actions that do not consist of speaking or writing but which express an opinion. Symbolic speech is generally protected along with verbal speech. 35
Commercial Speech Definition: Communication in the form of advertising. Commercial speech is generally the most restricted (regulated) form of speech. The Federal Trade Commission regulates commercial speech. Regulation of the Public Airwaves Broadcast stations must follow FCC rules Cable & satellite television have blurred the rules. 36
Freedom of Assembly Freedom of assembly consists of the right to assemble and associate. People can gather together in order to make a statement. The right to parade, picket, and protest is subject to reasonable limits (time, place, manner) The right to associate with people who share common interest provides a basis for people to form interest groups and political parties. 37
Defendants Rights 38
Interpreting Defendants Rights The courts continually must rule on the constitutionality of actions by police, prosecutors, judges, and legislatures. Criminal Justice personnel are limited by the Bill of Rights. Failure to follow the rules usually invalidates a conviction. Courts continually rule on what is constitutional and what is not. 39
Searches and Seizures The Fourth Amendment forbids unreasonable searches and seizures. No court may issue a search warrant unless probable cause exists. Probable Cause: The situation occurring when the police have reason to believe that a person should be arrested. Most searches take place without a warrant if the search is necessary to protect an officer s safety and limited to material relevant to the suspected crime, or within the suspect s control. 40
Searches and Seizures (4 th Amendment) Exclusionary Rule: The rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained. The exclusionary rule prevents illegally seized evidence from being introduced in court. In Mapp v. Ohio (1961) the exclusionary rule was incorporated with the rights that restrict the states. 41
Self-incrimination (5th Amendment) Definition: The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. Miranda v. Arizona (1966) set guidelines for police questioning. Suspects must be told they have the right to remain silent, what they say can be used against them in court, they have a right to counsel, and the court will provide one if they can not afford one. 42
Other Defendant s Rights (6 th Amendment) The Right to Counsel Sixth Amendment guarantees a right to a lawyer in a federal court. Gideon v. Wainright (1963) extended this right to defendants accused of felonies in state courts. Trial by Jury Most cases are settled through plea bargaining: An actual bargain between the prosecution and defense. The Constitution does not specify the size of a jury. Generally 12 people, but doesn t always have to be unanimous to convict. 43
Cruel and Unusual Punishment: (8 th Amend.) The Death Penalty The Supreme Court has vacillated on this issue Varies from state to state Most victims of the death penalty have been members of minority groups. Punishment fitting the crime Strong punishments are acceptable Punishments vary from state to state, even for the same crime, but are reasonable. 44
The Right to Privacy 45
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 the Fourth Amendment Very debatable The Bill of Rights contains penumbras unstated liberties on the fringes of the more explicitly stated rights- protecting a right to privacy. 46
Controversy over abortion The most controversial aspect of the right to privacy concerns abortion. In Roe v. Wade (1973) the Court forbade any state control of abortions during the first trimester; States were permitted to regulate abortions to protect the mother s health in the second trimester Allowed states to ban abortion during the third trimester, except when the mother s life or health was in danger. 47
Planned Parenthood v. Casey (1992) Protections of those seeking an abortion Rights of protesters 48
Controversy over abortion: pro-life, pro-choice When should abortions be legal? Planned Parenthood v. Casey (1992) permits more regulation Federal law protects those seeking an abortion and makes it a federal crime to intimidate abortion providers. Rights of protesters 49
A Time to Live, and a Time to Die With the advances in medical science, state laws have had to struggle to define death. The Supreme Court has affirmed parent s rights to make medical decisions for their children. Issues of surrogate births, in vitro fertilization, and the medical right to die are all privacy concerns. 50
Understanding Civil Liberties 51
Civil Liberties and Democracy The rights ensured by the First Amendment are essential to democracy Individual participation and the expression of ideas are crucial components of democracy, but so is majority rule, which can conflict with individual rights. People need the right to express themselves. Courts continue to define the limits of civil liberties. 52
Civil Liberties and the Scope of Government Today s government is huge and commands vast, powerful technologies. Since Americans can no longer avoid the attention of government, strict limitations on governmental power are essential These limitations are provided by the Bill of Rights Civil liberties limit the scope of government. In some instances, such as protecting the right to abortion, an expansion of freedom may require simultaneous expansion of government to protect these freedoms. 53