AP Civics Chapter 4 Notes Civil Liberties: Protecting Individual Rights

AP Civics Chapter 4 Notes Civil Liberties: Protecting Individual Rights I. Introduction Issues of individual rights are complex and political. Because of this, no right is absolute. Civil Liberties: specific individual rights which are constitutionally protected against infringement by government The Bill of Rights operates in an untidy world where people s highest aspirations collide with their worst passions, and it is at this juncture that issues of civil liberties arise. II. Freedom of Expression Freedom of political expression is the most basic of democratic rights The freedom to speak one s mind is not only an aspect of individual liberty and this a good unto itself but also is essential to the common quest for truth and the vitality of society as a whole. Supreme Court, 1984 Freedom of expression the right of individual Americans to hold and communicate their views, the foundation of which is the First Amendment rights of freedom of conscience, speech, press, assembly, and petition. Free expression is vigorously protected by the courts A. Early Period: the Uncertain Status of the Right of Free Expression 1. The Sedition Act of 1798 was the first attempt by the United States government to restrict free expression a. The act made it a crime to print harsh, critical newspaper stories about the president or other national officials b. Thomas Jefferson pardoned those convicted by this act 2. Supreme Court did not rule on free speech during the Civil War era, so the judiciary s position on free expression was an open question, which was answered much later 3. Schenck v. United States (1919) a. Defendant was convicted under the Espionage Act of 1917, which prohibited forms of dissent that could harm the nation s effort in World War I b. Supreme Court unanimously upheld the constitutionality of the Espionage Act 1) Congress can limit free expression that was dangerous to nation s security 2) Established the Clear and Present Danger a) A test devised by the Supreme Court in 1919 in order to define the limits of free speech in the context of national security. According to the test, government cannot abridge political expression unless it presents a clear and present danger to the nation s security B. The Modern Period: Protecting Free Expression 1. Free Speech a. Many Americans believed that the Soviet Union was bent on destroying the United States, and the Supreme Court allowed government to limit certain types of expression b. If government can control what people know and say, it can manipulate their opinions and thereby deprive them of the right to govern themselves a core value of democracy. Therefore, government should be broadly prohibited from restricting free expression 1) This philosophy has led the Supreme Court to rule that government officials must show that national security is directly and substantially imperiled before they can lawfully prohibit citizens from speaking out 2) Symbolic Speech: action for the purpose of expressing political opinion (i.e. the waving or burning of a flag) a) The Supreme Court s protection of symbolic speech has been less substantial than its protection of verbal speech (1968 the S.C. upheld the conviction of a Vietnam protester who had burned his draft card intended primarily to protect the military s need for soldiers, not to prevent people from criticizing government policy) 1

2. Press Freedom and Prior Restraint a. New York Times Co. v. United States (1971) 1) The court ruled that the Time s publication of the Pentagon Papers could not be blocked by the government 2) Court ruled that any system of prior restraints on the press is unconstitutional unless the government can clearly justify the restriction 3) Prior restraint: government prohibition of speech or publication before the fact b. News organizations are legally responsible for what they report or say 1) Government cannot stop the media in advance from reporting their views 2) Exception: reporting U.S. military operations during wartime a) Government can censor reports filed by journalists b) Government can ban uncensored publications by certain past and present government employees who have knowledge of classified information and programs C. Free Expression and State Government Due Process clause (of the Fourteenth Amendment): the clause of the Constitution that has been used by the judiciary to apply the Bill of Rights to the actions of the state governments. 1. The Fourteenth Amendment and Selective Incorporation a. The Fourteenth Amendment includes a clause that forbids states from depriving any person of life, liberty, or property without due process of law b. Gitlow v. New York (1925) decided that the Fourteenth Amendment applied to state action in the area of free expression c. Selective Incorporation: incorporation into 14 th A. of certain provisions of Bill of Rights so right can be protected by federal courts from infringement by states d. Due process clause would be meaningless if states had power to stop residents from speaking openly e. Near v. Minnesota (1931): state cannot close down newspaper for attacking blacks, Jews, Catholics, and labor union leaders. essence of censorship 2. Limiting the authority of the states to restrict expression a. The Court has held that the states cannot restrict free expression except when almost certain to provoke immediate lawless action b. Brandenburg v. Ohio (1969) 1) A Ku Klux Klan member, who, in a speech delivered at a Klan rally, said that revenge might have to be taken if national government continues to suppress the white Caucasian race 2) He was convicted under Ohio law, but the Supreme Court reversed the conviction a) First Amendment prohibits a state from suppressing speech that advocates the unlawful use of force except where such advocacy is directed to inciting or producing imminent lawless action, and is likely to produce such action c. Imminent Lawless Action: a legal test that says government cannot lawfully suppress advocacy that promotes lawless action unless advocacy is aimed at producing, and is likely to produce, imminent lawless action. 1) Severe limit on government power to restrict expression 2) In effect, Americans are free to say almost anything they want on political issues 3) This protection includes hate speech, but does not however extend to hate crimes. D. Libel and Slander 1. The constitutional right of free expression is not a legal license to avoid responsibility for the consequences of what is said or written a. Libel: publication of material falsely damages a person s reputation b. Slander: spoken words that falsely damage a person s reputation 1) If false information is published, the injured party can sue for damages 2. Factual, accurate statements (damaging or not) are a protected form of expression 2

3. New York Times v. Sullivan (1964) a. Court overruled an Alabama state court that found the New York Times guilty of libel for advertisement that criticized Alabama officials for mistreating student civil rights activists b. Even though some of what was alleged was false, the Supreme Court was in favor of the Times because libel of public officials requires proof of actual malice, which was defined as a knowing or reckless disregard for the truth E. Obscenity 1. Obscenity is a form of expression that is not protected by the First Amendment and thus can be prohibited by law 2. The Court has found it difficult to define with precision the criteria by which material is to be judged obscene a. Roth v. United States (1957) was the first explicit test for obscenity 1) Court ruled that material is obscene if taken as a whole it appeals to prurient interest and has no redeeming social value b. In Miller v. California (1973) was another test to define obscenity 1) Court tried to narrow contemporary community standards to the local level. The Court said that what might offend residents of Mississippi might be found tolerable in Las Vegas a) The Court ruled that material cannot be judged obscene merely because the average local resident might object to it b) It also ruled that obscene material is to be judged in the context of a reasonable person whose perspective is broad enough to evaluate the material on its merit c) The Supreme Court later modified its content standard, saying that the material must be of a particularly offensive type c. In 1969, Supreme Court ruled that is not a crime what adults watch and read at home d. 1990, Court ruled that it was a crime to possess pornographic photographs of children e. Ashcroft v. Free Speech Coalition (2002) held that pictures of adults digitally altered to look like children cannot be banned because children are not used in the production of this type of material f. Reno v. ACLU (1997), Supreme Court struck down Communications Decency Act 1996 (made it a crime to transmit obscene material to anyone under 18 g. 1998 Child Online Protection Act: legislation passed by Congress that restricted the transmission of sexually explicit material that children can assess (cable operators must scramble the signal of channels that convey sexually explicit material if a subscriber requests it II. Freedom of Religion A. The Establishment Clause 1. Establishment Clause is the First Amendment provision stating that government may not favor one religion over another or favor religion over no religion, and prohibiting Congress from passing laws respecting the establishment of religion a. The Supreme Court s interpretation of the Establishment Clause has been described as maintaining a wall of separation between church and state b. The Court held in Engel v. Vitale (1952) that the establishment clause prohibits the reciting of prayers in public schools c. Court in 2000 reaffirmed the ban by extending it to include organized student-led prayer at public school football games d. The Supreme Court generally has taken a pragmatic approach to religious controversies, permitting some establishment activities while disallowing others 1) State can provide secular textbooks used by church affiliated schools 2) State cannot pay part of teachers salaries in church affiliated schools e. Lemon Test (Lemon v. Kurtzman 1971) details the requirement for legislation concerning religion 1) The government's action must have a secular legislative purpose; 3

2) The government's action must not have the primary effect of either advancing or inhibiting religion; 3) The government's action must not result in an "excessive government entanglement" with religion. B. The Free-Exercise Clause 1. Free Exercise Clause: A First Amendment provision that prohibits the government from interfering with practice of religion or prohibiting the free exercise of religion 2. Although Americans can believe what they want, they are not free to act on their beliefs. The courts have allowed the government interference in the exercise of religious beliefs when such interference is the secondary result of an overriding social goal a. Legal protection of children with life-threatening illnesses whose parents refuse to permit medical treatment on religious grounds- courts can order medical assistance for such children III. The Right of Privacy In 1965 the Supreme Court added to the list of individual rights, declaring that Americans have the right of privacy Griswold v. Connecticut (1965): Supreme Court struck down a state law prohibiting the use of birth control devices, even for married couples (a state had no business interfering with a married couple s decision regarding contraception A. Abortion 1. Roe v. Wade (1973): gave women freedom to choose abortion during the first three months of pregnancy 2. Webster v. Reproductive Health Services (1989): Supreme Court upheld a law that prohibits abortions in Missouri s public hospitals and by its public employees. 3. Planned Parenthood v. Casey (1992): Court upheld a Pennsylvania law requiring a minor to have parental or judicial consent before obtaining an abortion B. Sexual Relations Among Consenting Adults 1. 1986 Georgia case, Bowers v. Hardwick, the Supreme Court held that the Right of Privacy did not extend to homosexual acts among consenting adults 2. 2003 Lawrence v. Texas, the Supreme Court reversed itself and struck down sodomy laws (violation of the due process clause of the 14 th A.) the state cannot demean their existence or control their destiny by making their private sexual conduct a crime IV. Rights of Persons Accused of Crimes The most significant form of due process is procedural due process: the procedures that authorities must follow before a person can legitimately be punished for an offense Fourth Amendment Fifth Amendment Sixth Amendment Eight Amendment Forbids the police to conduct searches and seizures unless they have probable cause to believe that a crime had been committed Protects against double jeopardy (being prosecuted twice for the same offense), self-incrimination (being compelled to testify against oneself), indictment for a crime except through grand jury proceedings, and the loss of life, liberty, and property without due process of law Provides the right to have legal counsel, to confront witnesses, to receive a speedy trial, and to have a trial by jury in criminal proceedings Protects against excessive bail or fines and prohibits the infliction of cruel and unusual punishment on those convicted of crimes 4

A. Selective Incorporation of Procedural Rights 1. For most of nation s history, procedural protections in the Bill of Rights applied only to the actions of the national government 2. This changed in the 1960s: Supreme Court incorporated Bill of Rights protections for the accused by ruling that these rights are protected against state action by the Fourteenth Amendment s guarantee of due process of law. a. Selective Incorporation: The absorption of certain provisions of the Bill of Rights (for example, freedom of speech) into the Fourteenth Amendment so that these rights are protected from infringement by the states. Mapp v. Ohio (1961) Court ruled that illegally obtained evidence could not be used in state courts (est. Exclusionary Rule) Gideon v. Wainwright (1963) State is required to furnish attorneys for poor defendants in all felony cases Miranda v. Arizona (1966) Led to the Miranda warning : Police required reading to suspects: you have the right to remain silent. Dickerson v. United States (2000) Reaffirmed the Miranda decision B. Limits on Defendants Rights 1. Search and Seizure Protection a. The Fourth Amendment does not provide blanket protection against searches. The Supreme Court held that police roadblocks to check drivers for signs of intoxication are legal b. Indianapolis v. Edmund (2001): the Court does not allow the same types of roadblock to check for drugs (serve general law enforcement rather than specific highway safety) c. Police must have suspicion of wrongdoing (and, sometimes, a judge s permission) before they can search your person, your car, or your residence d. The Fourth Amendment protects individuals in their persons as well as in their homes and vehicles 1) Ferguson v. Charleston (2001): patients in public hospitals cannot be forced to take a test for illegal drugs if the purpose is to turn over to the police those patients who test positive e. Authorities have more latitude when it comes to students in public schools 1) Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002): random drug testing of high school students involved in extracurricular activities does not violate the ban on unreasonable searches 2. The Exclusionary Rule: the legal principle that government is prohibited from using in trials evidence that was obtained by unconstitutional means a. Illegally obtained evidence can sometimes be admitted in trials if the procedural errors are inadvertent or if the prosecution can show that it would have discovered the evidence anyway b. In general, the Court s goal has been to weaken the exclusionary rule w/o giving police unduly broad discretion (Whren v. United States 1996: upheld conviction of an individual who had been found with drugs in the front seat of his car after a routine traffic stop) c. Probable Cause: police must have a solid basis for believing an individual is involved in a specific crime 3. Habeas Corpus Appeals a. Legal protection for the accused has been reduced by a restriction on habeas corpus appeals to federal courts by individuals who have been convicted of crimes in state courts b. Habeas corpus gives defendants access to federal courts in order to argue that their rights under the Constitution of the United States were violated when they were convicted in a state court C. Crime, Punishment, and Police Practices 1. Minorities and the poor are more likely victims of infringements a. Racial profiling: assumption that certain groups are more likely to commit particular crimes 1) Common police practice that results in the unequal treatment of minorities 5

2. The Eighth Amendment prohibits cruel and unusual punishment of those convicted of crime, but judgments in this area are subjective a. The Court has allowed Congress and the state legislature to decide the appropriate penalties for crime, believing that it lacks the capacity to devise consistent rules that would differentiate between acceptable and unacceptable levels of punishment b. The Eight Amendment narrows the use of the death penalty 1) Atkins v. Virginia (2002): the Court outlawed the death penalty for the mentally challenged 2) Roper v. Simmons (2005): it is unconstitutional to put juveniles to death 3. The Sixth Amendment s guarantee of trial by jury a. Ring v. Arizona (2002): only a jury could determine whether the death penalty would be imposed in a capital case b. Blakley v. Washington (2004): expanded the principle to include sentences that are longer than the law prescribes. A jury decides whether aggravating factors justify a harsh sentence V. Rights and the War on Terrorism In time of war, the courts have allowed government to exercise authority that would not be permitted in peacetime Ex: After the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt ordered the forced relocation of tens of thousands of Japanese Americans (Executive Order 9066) A. Detention of Enemy Combatants 1. The Bush administration: policy for handling enemy combatants a. Individuals judged to be engaged in terrorism directed at the United States 1) They are detained without access to lawyers or family members until the President chooses to release them b. In 2004 Hamdi v. Rumsfeld and 2006 Hamdan v. Rumsfeld Supreme Court ruled many of Bush s actions unlawful and gave detainees more rights B. Surveillance of Suspected Terrorists 1. After 9/11, Congress passed the USA Patriot Act a. Lowered the standard for judicial approval of wiretapping when terrorist activity was an issue b. Allowed information from intelligence surveillance to be shared with criminal investigators when evidence unrelated to terrorism was found c. Also gave government increased authority to examine medical, financial, and student records and allowed the government, in specified situations, to secretly search homes and offices 2. In 2005 the New York Times revealed that Bush, without judicial approval, had secretly authorized the National Security Agency (NSA) to wiretap international phone calls and e-mails originating in the United States. a. Such wiretaps are expressly prohibited by the Foreign Intelligence Surveillance Act (FISA) b. Case could eventually be decided by the Supreme Court VI. The Courts and a Free Society The United States was founded on the idea that individuals have an innate right to liberty to speak their minds, to worship freely, to be secure in their homes and persons, to be assured of a fair trial The judiciary is not isolated from the public mood. Judges inevitably are required to balance society s need for security and public order against the rights of the individual Most judges and justices regard the protection of individual rights as a constitutional imperative, which is the way the Framers saw it The Bill of Rights was created in order to transform the abstract idea that individuals have inalienable rights to life, liberty, and happiness into a set of specified constitutional rights, thereby bringing them under the protection of courts of law 6