Civil liberties Chapter 5
Like most issues, civil liberties problems often involve competing interests in this case, conflicting rights or conflicting rights and duties and groups may mobilize to argue for their interests. Like some other issues, civil liberties concerns can also arise from the successful appeals of a policy entrepreneur. These appeals have sometimes reduced liberty, as when popular fears are aroused during or just after a war or attack.
Civil liberties are foundational to political beliefs and political culture in the United States. Among the most important protections are those in the First Amendment: What is speech? How much of it should be free? How far can the state go in aiding religion? How do we strike a balance between national security and personal expression? The zigzag course following by the courts in judging these matters has, on balance, tended to enlarge freedom of expression
Also important has been the struggle to strike a balance between the right of society to protect itself from criminals and the right of all people to be free from unreasonable searches and coerced confessions. As with free speech cases, the courts have generally broadened the rights, this time at some expense to the police. In more recent years, though, the Supreme Court has qualified some of its exclusionary rule protections.
The resolution of these issues by the courts is political in the sense that there are competing opinions about what is right or desirable. In this competition of ideas and values, federal judges, though not elected, are often sensitive to strong currents of popular opinion. When no strong national mood is discernible, the opinions of elites influence judicial thinking.
At the same time, courts resolve political conflicts in a manner that differs in three important respects from the resolution of conflicts by legislators and executives. First, the relative ease with which one can enter a court facilitates challenges to accepted standards. An unpopular political or religious group may have little or no access to a legislature, but it will have substantial access to the courts.
Third, judges interpret the Constitution, whereas legislatures often consult popular preferences or personal convictions. Still, though their own beliefs influence how judges read the Constitution, its language constrains almost all of their decisions.
Taken together, the desire to find and announce rules, the language of the Constitution, and the personal beliefs of judges have led to a general expansion of civil liberties. As a result, even allowing for temporary reversals and frequent redefinitions, any value that is thought to hinder freedom of expression and the rights of the accused has generally lost ground to the claims of the First, Fourth, Fifth, and Sixth Amendments.
Second, judges often settle controversies about rights not simply by deciding the case at hand but by formulating a general rule to cover similar cases elsewhere. This means that the law tends to become more consistent and better known, but the rules may also be inappropriately applied. A definition of obscenity or fighting words may suit one situation, but be inadequate to another.
This chapter examines the ways in which the courts have interpreted the Bill of Rights. It focuses on the First Amendment and on criminal due process concerns. After reading and reviewing the material in this chapter, you should be able to do each of the following:
1. Discuss the relationship of the Bill of Rights to the concept of majority rule, and give examples of tension between majority rule and minority rights.
2. Explain how the civil liberties may at times be a matter of majoritarian politics and offer several examples.
3. Explain how the structure of the federal system affects the application of the Bill of Rights.
4. Describe how the Supreme Court has used the Fourteenth Amendment to expand coverage in the federal system. Discuss changing conceptions of the due process clause of the Fourteenth Amendment.
5. List the categories under which the Supreme Court may classify speech. Explain the distinction between protected and unprotected speech and name the various forms of expression that are not protected under the First Amendment. Describe the test used by the Court to decide the circumstances under which freedom of expression may be qualified.
6. State what the Supreme Court decided in Miranda v. Arizona, and explain why that case illustrates how the Court operates in most such due process cases.
*clear and present danger test- A legal interpretation that reconciled two views of the First Amendment right of free speech, the first that Congress could not pass any law to restrict speech and the second that it could punish harms caused by speech. Congress could only punish speech that created a clear and present danger of bringing about the actions that Congress is authorized to prevent.
A federal law enacted in 1954 which declared the Communist party to be part of a conspiracy to overthrow the government.
A part of the constitutional amendment ratified in 1868 that has been used by the Supreme Court to prevent state governments from infringing fundamental personal rights, such as freedom of speech.
Federal laws enacted in 1917 and 1918 which made it a crime to utter false statements that would interfere with the military, to use the mails to advocate treason or resistance to laws, or to express any disloyalty intending to incite resistance to the war effort.
One of two First Amendment clauses dealing with religion. It forbids government involvement in religion, even on a nonpreferential basis. It has been interpreted as erecting a wall of separation between church and state.
A rule of criminal procedure which holds that evidence gathered in violation of the Constitution cannot be used in trial.
One of two parts of the First Amendment protecting freedom of speech, of the press, and of assembly, and the right to petition the government.
One of two parts of the First Amendment protecting the free exercise of religion and prohibiting the establishment of religion
One of two first Amendment clauses dealing with religion. It forbids Congress from prohibiting individuals practice of religion, although there are rarely religious exemptions from laws that are binding on all individuals.
A modification of the exclusionary rule allowing evidence in a trial even though it was obtained without following proper legal procedures if the police believed the procedures were properly executed. For example, this allows evidence to be submitted when the police believed that the search warrant had been properly issued.
A crime motivated by bigotry.
A federal law enacted in 1950 which required members of the Communist party to register with the government.
A form of speech not given automatic constitutional protection, consisting of any written statement defaming the character of another person with a falsehood. Public figures must also prove actual malice.
An allegation that a person is unfairly impugning the motives, attacking the patriotism, or violating the rights of individuals. The term originated from the unsubstantiated charges advanced by Senator Joseph McCarthy in the 1950s.
Informing a person taken into custody of the right to remain silent, the right to have a lawyer present during questioning, and the right to consult a lawyer without charge if unable to afford one. The requirement that the Miranda warning be delivered to detainees is a protection derived from the Fifth Amendment s right not to incriminate oneself. Police failure to give the warning makes any confession presumed to be involuntary.
A form of speech not given automatic constitutional protection, defined as a work that, taken as a whole, appeals to the prurient interest as judged by contemporary community standards or that depicts sexual activity in a patently offensive manner, and that lacks literary, artistic, political, or scientific value.
Government censorship of the press in advance of publication.
A condition that must be satisfied before a judge can issue a search warrant. It requires that a judge be persuaded by the police that good reason exists to believe that a crime has been committed and that the evidence bearing on that crime will be found at a certain location.
A person of public stature, such as a celebrity or elected official. Public figures must prove actual malice to win a libel suit.
An order from a judge authorizing the search of a place. The warrant must describe what is to be searched and seized and is issued only after a judge is convinced by police that probable cause exists to believe that a crime has been committed and that evidence bearing on the crime will be found at a certain location.
A federal law enacted in 1798 which made it a crime to express anything false, scandalous, and malicious about officers of the federal government or to excite hatred against the government itself.
A federal law enacted in 1940 which made it illegal to advocate the overthrow of the government by force or violence.
A form of speech not given automatic constitutional protection, involving an illegal act meant to convey a political message.
An interpretation of the establishment clause embraced by the Supreme Court that allows no government involvement with religion, even on a nonpreferential basis.
I. The politics of civil liberties A. The objectives of the Framers 1. Limited federal powers 2. Constitution: a list of do s, not a list of do nots 3. Bill of Rights: specific do nots that applied only to the federal government, and not to the state governments
A. Liberties become a major issue for three reasons. B. Rights in conflict: Bill of Rights contains competing rights (interest group politics) 1.Sheppard case (free press versus fair trial) 2.New York Times and the Pentagon Papers (common defense versus free press) 3.Kunz anti-jewish speeches (free speech versus public order) 4.Struggles over rights follow a pattern similar to interest group politics in economic issues.
1. Sedition Act of 1798, following the French Revolution 2. Espionage and Sedition Acts, directed against German-Americans in World War I 3. 1917 1918, Anti-Nazi, Anti-Soviet, Anti- Communist legislation 4. Smith Act (1940) 5. Korean War and Senator Joseph McCarthy 6. Internal Security Act of 1950 7. Communist Control Act of 1954 8. Supreme Court usually upheld this legislation 9. Some use is still made of the Sedition Act, although the Supreme Court has become more protective of political speech.
1. Original settlement by white European Protestants meant that Americanism was equated with their values. 2. Conflicts about the meaning of some constitutionally protected freedoms are ethnic, cultural, and/or religious a) Jews offended by crèches at Christmas. b) English-speakers often prefer monolingual schools. c) Is prohibiting gay men from serving as Boy Scout troop leaders discriminatory? 3. Differences even within a single cultural tradition (example: pornography)
A. Speech and national security 1. Blackstone: press should be free of prior restraint, but then must accept the consequences if a publication is improper or illegal 2. Sedition Act of 1798 followed Blackstone s view, with improvements a) Jury trial, not a judge s decision b) Defendant would be acquitted if it could be proved that the publication was accurate 3. 1917 1918, Congress defines limits of expression a) Treason, insurrection, forcible resistance to federal laws, encouraging disloyalty in the armed services not protected by the First Amendment b) Upheld in Schenck (1919) via clear and present danger test c) Holmes dissented in cases that subsequently applied this test, believing that its conditions had not been met.
4. Fourteenth Amendment due process clause a) Supreme Court initially denied that this clause made the Bill of Rights applicable to the states. b) Gitlow (1925): fundamental personal rights are protected from infringement by the states, because of the Fourteenth Amendment due process clause 5. Supreme Court moves toward more free expression after WWI but with some deference to Congress during times of crisis. a) Supreme Court upheld the convictions of Communists under the Smith Act. b) By 1957, to be punished, the speaker must use words calculated to incite the overthrow of the government c) By 1969 (Brandenburg), speech calling for illegal acts is protected, if the acts are not imminent d) 1977, American Nazi march in Skokie, Illinois is held to be lawful e) Hate speech is permissible, but not a hate crime that results in direct physical harm.
1. Libel: written statement defaming another by false statement a)defamatory oral statement: slander b)variable jury awards c) Public figures must also show the words were written with actual malice with reckless disregard for the truth or with knowledge that the words were false.
a) No enduring and comprehensive definition b) 1973 definition: judged by the average person, applying contemporary community standards to depict in a patently offensive way, sexual conduct specifically defined by state law and lacking serious literary, artistic, political, or scientific value c) Balancing competing claims remains a problem. d) Localities decide whether to tolerate pornography but must comply with strict constitutional tests if they decide to regulate it. e) Protection is extended to almost all forms of communication; ex., nude dancing is somewhat protected. f) Indianapolis statute, Court ruled the legislature cannot show preference for one form of expression. g) Zoning ordinances for adult theaters and bookstores have been upheld. h) Internet regulation ruled unconstitutional by the Supreme Court.
a) Cannot claim protection for an illegal act on the grounds that it conveys a political message (example: burning a draft card) b) Flag burning is protected speech; see the Who Governs? To What Ends? box, Flag Burning
A. Corporations and organizations usually have same rights as individuals. 1.Examples: Boston bank, anti-abortion group, liquor dealers, casinos, California utility 2.More restrictions can be placed on commercial speech; however, the regulation must be narrowly tailored and serve the public interest. 3.Young people may have fewer rights. a) Hazelwood (1988), school newspaper can be restricted
A. The free exercise clause 1. Relatively clear meaning: no state interference, similar to speech a) Law may not impose special burdens on religion. b) But there are no religious exemptions from laws binding all other citizens, even if that law oppresses your religious beliefs. c) Some conflicts between religious freedom and public policy continue to be difficult to settle. (1) Conscientious objection to war, military service (2) Refusal to work Saturdays (Seventh-Day Adventists) (3) Refusal to send children to public school beyond eighth grade (Amish)
1. Jefferson s view: there is a wall of separation between church and state. 2. Ambiguous phrasing of First Amendment requires Court interpretation. 3. Supreme Court interpretation: no governmental involvement, even if the involvement would be nonpreferential a) 1947 New Jersey case regarding school busing b) Later struck: school prayer, creationism, in-school release time for religious instruction c) But allowed some kinds of aid to parochial schools and denominational colleges d) Government involvement in religious activities is constitutional if it meets the following tests: (1) Secular purpose (2) Primary effect neither advances nor inhibits religion (3) No excessive government entanglement with religion e) Supreme Court rulings, however, remain complex and shifting in regard to the establishment clause.
A. The exclusionary rule (THEME B: SEARCHES AND SEIZURES) 1. Most nations let all evidence into trial, later punishing any police misconduct. 2. United States excludes improperly obtained evidence from trial. a) Exclusionary rule: evidence gathered in violation of the Constitution cannot be used in a trial b) Implements the Fourth (freedom from unreasonable searches and seizures) and Fifth Amendments (protection against self incrimination) 3. Supreme Court rulings a) 1949: declined to use exclusionary rule but noted unreasonable searches were prohibited by the Fourth Amendment b) 1961: changed, adopted the exclusionary rule in Mapp v. Ohio in order to enforce constitutional guarantees 4. See the What Would You Do? box, Debating the Exclusionary Rule.
1. When can reasonable searches of individuals be made? a) With a properly obtained search warrant (probable cause) b) Incident to an arrest 2. What can the police search, incident to a lawful arrest? a) The individual being arrested b) Things in plain view c) Things under the immediate control of the individual 3. What about an arrest of someone in a car? a) Answer changes almost yearly and recent cases have allowed the police to do more searching 4. Court attempts to protect a reasonable expectation of privacy. 5. Supreme Court has refrained from developing a general right to privacy. a) Ruled that the right to privacy does not protect homosexual sexual acts 6. Testing for AIDS and drugs a) Concern for public safety can justify mandatory drug testing, even without a search warrant or individualized suspicion. b) Lacking a threat to public safety, the Supreme Court has been skeptical about drug testing.
1. Constitutional ban originally was intended to prevent torture or coercion. 2. Extension of rights in 1960s a) Escobedo b) Miranda case; see the How Things Work box, The Miranda Rule
1. Positions taken on the rule: a) Any evidence should be admissible. b) Exclusionary rule has become too technical to effectively deter police misconduct. c) Rule is a vital safeguard for liberties. 2. Courts began to adopt the second position, allowing some exceptions to the rule. a) Limited coverage police with greater freedom to question juveniles b) Good-faith exception c) Overriding considerations of public safety d) Evidence that would inevitably have been found is admissible.
1. U.S. Patriot Act meant to increase federal government s powers to combat terrorism; principal provisions: a) Government may tap any telephone used by a suspect, after receiving a court order. Previously, a separate court order was required for each telephone. b) Government may tap, with a court order, internet connections. c) Government may seize, with a court order, voicemail. d) Investigators can share information learned in grand jury proceedings. e) Any non-citizen may be held as a security risk for seven days, longer if certified to be a security risk. f) Federal government can track money across U.S. borders and among banks. g) Statute of limitations on terrorist crimes eliminated; penalties increased.
2. Executive order then proclaimed a national emergency, noncitizen believed to be a terrorist, or to have harbored a terrorist, will be tried by a military court. a) Tried before a commission of military officers. b) Two-thirds vote of the commission to find the accused guilty. c) Appeal to the secretary or defense or the president, only
A. Should it be alright for religious symbols to be displayed on government property? 1. Supreme Court does not allow mixing of religion and government, with some exceptions. 2. Public deeply divided over this issue. B. If a person confesses to a crime, is there any reason why the confession should not be used in court? 1. Lawfully obtained confessions are admissible. 2. Unlawful confessions cannot be used but there is debate about whether this endangers society. C. How much can the government do to fight terrorism? 1. Tougher laws have not yet been tested in court, but 2. courts have generally granted greater power during wartime.
The small, intensely motivated groups protected by the Bill of Rights are the sort we would normally expect to be protected by a. client politics. b. majoritarian politics. c. interest group politics. d. entrepreneurial politics. e. reciprocal politics.
When someone arouses large numbers of ordinarily indifferent people to demand restrictions on the freedom of minorities, this is an example of a. majoritarian politics. b. client politics. c. interest group politics. d. entrepreneurial politics. e. neo-institutional politics.
The First Amendment does NOT address a. freedom of religion. b. the right to bear arms. c. freedom of the press. d. freedom of speech. e. freedom of assembly.
An example of how entrepreneurial politics can enter the realm of civil liberties is that of a. the passage of the Smith Act of 1940. b. Dr. Samuel Sheppard's assertion of his right to a fair trial. c. Jewish opposition to Christmas creches. d. the efforts to bring bilingual education into Hispanic districts. e. All of these.
After defining the clear-and-present-danger test, Supreme Court Justice Oliver Wendell Holmes did which of the following? a. found that he was the only one who accepted it b. found himself leader of a large court majority c. shifted his position and wrote dissenting opinions d. went on to apply the test even more broadly e. retired from the Court