Chapter 4

Civil Liberties

Civil Liberties/Civil Rights Civil liberties

Restraining government’s action against individuals Limits on government power outlined in the Bill of

Rights, the first 10 amendments to the Constitution, 384-385

What government can’t do… Civil rights

Rights individuals share as provided for in the 14th amendment, which guarantees due process and equal protection under the law, 386

What government must do…(e.g., protect individuals from discrimination; unequal treatment, etc.)

Liberties/Rights and the Courts Judicial interpretations shape

nature of civil liberties and civil rights Change over time depending on

interpretations Not “set in stone”

Hence, importance of judicial appointments and numerous references to court cases

Incorporation Theory

Bill of Rights Initially aimed at protecting citizens against

encroachments by the national government Grew out of fear of tyranny Part of constitutional compromise aimed at

limiting federal government’s power Incorporation theory

View that protections of Bill of Rights apply to state governments through 14th Amendment’s (ratified in 1868) due process clause; see page 68

Table 4-1: Incorporating the Bill of Rights into the Fourteenth Amendment, 68

Year IssueAmendment Involved

Court Case

1925193119321937194019471948194919611962196319641965196619671969

Freedom of speechFreedom of the pressRight to a lawyer in capital punishment casesFreedom of assembly and right to petitionFreedom of religionSeparation of church and stateRight to a public trialNo unreasonable searches and seizuresExclusionary ruleNo cruel and unusual punishmentRight to a lawyer in all criminal felony casesNo compulsory self-incriminationRight to privacyRight to an impartial juryRight to a speedy trialNo double jeopardy

IIVIIIIVIIVIVVIIIVIVI, III, IV, V, IXVIVIV

Gitlow v. New York, 268 U.S. 652.Near v. Minnesota, 283 U.S. 697.Powell v. Alabama, 287 U.S. 45.De Jonge v. Oregon, 299 U.S. 353.Cantwell v. Connecticut, 310 U.S. 296.Everson v. Board of Education, 330 U.S. 1.In re Oliver, 333 U.S. 257.Wolf v. Colorado, 338 U.S. 25.Mapp v. Ohio, 367 U.S. 643.Robinson v. California, 370 U.S. 660.Gideon v. Wainwright, 372 U.S. 335.Malloy v. Hogan, 378 U.S. 1.Griswold v. Connecticut, 381 U.S. 479.Parker v. Gladden, 385 U.S. 363.Klopfer v. North Carolina, 386 U.S. 213.Benton v. Maryland, 395 U.S. 784.

Discussion Question

Why is the Fourteenth Amendment so important to civil liberties?

Freedom of Religion

Separation of Church and State First amendment, 384; two parts

Establishment clause; Jefferson’s “wall of separation” State churches were the rule (9 colonies had

official churches) See text, 68-69 for the meaning of the

establishment clause Free exercise Clause

no type of religious practice can be prohibited and restricted by the government unless there is a compelling reason

Freedom of Religion Contemporary conflicts

State aid to church-related schools School voucher programs Officially organized prayer in schools Posting the Ten Commandments (“Hanging Ten”) Pledge of Allegiance (“…under God…”) Teaching evolution Religious speech Free exercise

Discussion Questions Is it possible for the state to be truly neutral

when it comes to religion? Should the state give funding to church

schools? Should prayer be allowed in public schools? Should public institutions be allowed to “Hang

Ten”? Is the pledge of allegiance a violation of church

and state? Should creationism be given equal time with

evolution? Should any and all religious practice be OK?

Freedom of Speech/Expression No prior restraint

Courts generally disfavor restraining, censoring an action/speech/expression before it has occurred

Protected speech Symbolic speech (e.g., burning a U.S. flag) Commercial speech (e.g., advertising)

Permitted restrictions Speech that presents a “clear and present

danger” to public order Speech that might lead to some “evil” (the bad-

tendency rule)

Freedom of Speech/Expression Unprotected speech

Obscenity (based on community standards of indecency) Child pornography Obscenity and child pornography on the Internet

Slander Public uttering of false statement that harms the

good reputation of another; false, defamatory statements

Campus speech codes Hate speech = abusive speech attacking

persons on the basis of their ethnicity, race, or other criteria Often considered unconstitutional restriction on free

speech

Freedom of the Press Special instance of free speech Press has some protection from libel charges

Libel (defamation in writing) must be accompanied by actual malice (knowledge of falsity or reckless disregard for the truth)

Press is now protected from gag orders during trials, except in unusual circumstances

Films subject to local obscenity laws; regulated through rating system

Radio and TV have much more limited 1st amendment protections Regulated by FCC

Right to Assemble and Petition the Government

Ability to communicate ideas on public issues

Can be limited by municipalities’ right to offer permits for marches, parades, sound trucks, demonstrations (to control traffic or prevent riots)

Can be denied when groups are likely to engage in fighting words

Tested by anti-loitering ordinances aimed at reducing congregation of gangs

Privacy Rights and Abortion No explicit right to privacy in Constitution

unlike California State Constitution Griswold v. Connecticut (1965)

Supreme Court rules that privacy rights exist comes from the 1st, 3rd, 4th, 5th and 9th

Amendments “right to be left alone”; “zone of privacy”

Unique challenges posed by information age Roe v. Wade (1973) court rules that privacy rights

include abortion rights More recently Court taken a more restrictive

view of rights outlined in Roe

Other Privacy Rights Right to die “living wills” Physician-assisted suicide (only legal in

Oregon) Security issues after 9/11/01

How much are we willing to sacrifice privacy rights for security?

Erosion of 4th amendment rights against unreasonable searches and seizures given roving wiretaps of suspected persons

Rights of Accused vs. Rights of Society

The Great Balancing Act Why give criminal suspects

rights? Avoid convicting innocent people All suspects have right to due

process and fair treatment

Found primarily in 4th, 5th, 6th, and 8th amendments

Rights of the Accused Limits on Conduct of Police Officers and Prosecutors

No unreasonable or unwarranted searches or seizures (4th) exclusionary rule = cannot use illegally seized

evidence without warrant based on probable, just cause (mitigated by “good faith” clause)

Probable cause for arrest (4th) No coerced confessions or illegal interrogation (5th) No entrapment Informed of rights, including silence

Miranda warnings = “You have the right to remain silent; anything you say can and will be used against you. You have the right to an attorney; if you cannot afford one, one will be provided for you.”

Rights of the Accused Defendant’s Pre-trial rights

Writ of habeus corpus (Article 1, Section 9, clause 2, 377) requires jailers to bring a person before a

court or judge and explain why the person is being held

Prompt arraignment (6th) Legal counsel (6th) Reasonable bail (8th) Informed of charges (6th) Remain silent (5th)

Rights of the Accused Trial rights

Speedy, public trial before a jury (6th) Impartial jury representative of community

(6th) Trial atmosphere free of prejudice, fear, and

outside interference No compulsory self-incrimination (5th) Adequate counsel (6th) No cruel or unusual punishment (8th)

What about the Death Penalty? Right to appeal convictions (5th) No double jeopardy (5th)

States that Allow the Death Penalty

© 2004 Wadsworth Publishing / Thomson Learning™

States that Don’t Allow Death Penalty Maine Vermont Massachusetts Rhode Island W. Virginia Michigan

Wisconsin Minnesota Iowa North Dakota Alaska Hawaii

Discussion Questions

Have the courts done too much to protect the rights of the accused?

Are protections necessary to ensure that no innocent person is convicted of a crime?

Do criminal suspects deserve fair treatment?

Is capital punishment cruel and unusual?

Hot Links to Selected Internet Resources: Book’s Companion Site:

http://politicalscience.wadsworth.com/schmidtbrief2004

Wadsworth’s Political Science Site: http://politicalscience.wadsworth.com

American Civil Liberties Union: http://www.aclu.org

Project Vote Smart: http://www.vote-smart.org/issues

EPIC Archive – Privacy: http://www.epic.org/privacy