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CIVIL LIBERTIES Chapter 5 O’Connor and Sabato American Government:

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1 CIVIL LIBERTIES Chapter 5 O’Connor and Sabato American Government:
Continuity and Change

2 CIVIL LIBERTIES In this chapter we will cover…
The First Constitutional Amendments: The Bill of Rights First Amendment Guarantees: Freedom of Religion First Amendment Guarantees: Freedom of Speech and Press The Second Amendment: The Right to Keep and Bear Arms The Rights of Criminal Defendants The Right to Privacy

3 CIVIL LIBERTIES Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation. These are limitations on the power of government to restrain or dictate how individuals act.

4 The First Constitutional Amendments: The Bill of Rights
The Bill of Rights consists of the first ten amendments to the Constitution and includes specific guarantees such as free speech, free press, and religion. The proposed Bill of Rights was sent to the states for ratification and was approved in 1791.

5 The Incorporation Doctrine
The Bill of Rights was designed to limit the powers of the national government. In 1868, the Fourteenth Amendment was added to the Constitution and its language suggested that the protections of the Bill of Rights might also be extended to prevent state infringement of those rights. The amendment begins: “No state shall....deprive any person, of life, liberty, or property without due process of law.“” The Supreme Court did not interpret the Fourteenth Amendment that way until 1925 in Gitlow v. New York. What was the outcome of Gitlow?

6 The Incorporation Doctrine
In 1925, the Court ruled in Gitlow v. New York that states could not abridge free speech due to the Fourteenth Amendment's Due Process Clause. This was the first step in the development of the incorporation doctrine whereby the Court extended Bill of Rights protections to restrict state actions. Not all of the Bill of Rights has been incorporated. For example, the Second and Third Amendments have not been incorporated.

7 Selective Incorporation
Substantive Due Process Expressed in the 5th and 14th Amendments Standard for state law in criminal proceedings Apply to the 4th, 5th, 6th, and 8th Amendments


9 First Amendment Guarantees: Freedom of Religion
The First Amendment states that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” In this section we will look at each of these clauses of the First Amendment, the controversy and power struggles surrounding them, and the way the Courts have interpreted and applied them.

10 An Established Religion
means that the government will create and support an official state church…often tax dollars support that chosen church. that church’s laws become the law of the land. the nation’s leader usually appoint the leading clerics. often other religions are excluded.

11 Drafting the First Amendment
They asked, “Should we establish a religion or not?” Thomas Jefferson wrote that there should be “a wall of separation between church and state.”

12 Arguments for Religious Freedom
From the Holy Roman Empire to the Church of England history indicates that when church and state are linked, all individual freedoms are in jeopardy. If government is merely an arm of God what power of government is not justified? What could happen to religious minorities if government and religion were linked?

13 Arguments for Religious Freedom
Many of the founding fathers believed that the spiritual purity and sanctity of religion would be ruined if it mixed with the worldly realm of politics. “If religion becomes part of the government, in Madison’s words, it results in “pride and indolence in the clergy; ignorance and servility in the laity; in both superstition, bigotry and persecution.”

14 The Establishment Clause
The Establishment Clause of the First Amendment guarantees that the government will not create and/or support an official state religion.

15 Separationists vs. Accomodationists
How high should the wall between church and state be? Accomodationists contend that the state should not be separate from religion but rather should accommodate it, without showing preference. Separationists argue that a high “wall” should exist between the church and state.

16 The Supreme Court and the Establishment Clause
The Supreme Court has held fast to the rule of strict separation between church and state when issues of prayer in public school are involved. In the early 1960s, the Court ruled that official lead prayer and bible reading is unconstitutional. In Engel v. Vitale, the Court ruled that even nondenominational prayer could not be required of public school children.

17 Engel v. Vitale State mandated non-denominational prayer found unconstitutional in the public schools “Power, prestige and financial support of government placed behind a particular religious belief causes indirect coercive pressure upon religious minorities to comply” Religion is too personal, too sacred, too holy to permit its “unhallowed perversion” by a civil magistrate Established religions and religious persecutions go hand in hand

18 Prayer in School In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a middle school graduation unconstitutional.

19 Lemon v. Kurtzman In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries. To be Constitutional the challenged law must have a secular purpose. neither advance nor inhibit religion. not foster excessive government entanglement with religion. In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

20 The Free Exercise Clause
“Congress shall make no law.....prohibiting the free exercise thereof (religion)” is designed to prevent the government from interfering with the practice of religion. Several religious practices have been ruled unconstitutional including: snake handling use of illegal drugs polygamy This freedom is not absolute. Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.

21 “See You at the Pole” Student participation in before - or after - school events, such as “see you at the pole,” is permissible. School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event.

22 First Amendment Guarantees: Freedom of Speech and Press
In the United States we each have the right to speak our mind (within some broad limits). In this section we will discuss The history of speech in the United States Prior Restraint Politically Correct and Hate Speech Symbolic Speech Libel and Slander The Internet

23 “make no law” The Courts have frequently wrestled with the question of whether freedom of expression is an absolute. Does no mean no? Supreme Court Justice Hugo Black believed that the words no law literally meant that Congress shall make no laws abridging the fundamental rights of the First Amendment.

24 A Balance In their attempt to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order national security the right to a fair trial (gag order)

25 Attempts to Limit Speech: The Alien and Sedition Acts (1798)
These acts were designed to silence criticism of the government. They made it a criminal offense to publish “any false, scandalous writing against the government of the United States.” A new Congress allowed the acts to expire before the Supreme Court had a chance to rule on the constitutionality of the laws.

26 Speech During the Civil War
During the Civil War, President Lincoln suspended the free press provision of the First Amendment. President Lincoln also ordered the arrest of editors of two New York newspapers. Congress supported him.

27 Anti-Governmental Speech: Espionage Act (1917)
During World War I anti-German feelings ran high. Anything German was renamed – sauerkraut became “liberty cabbage.” This law curtailed speech and press during World War I. The law made it illegal to urge resistance to the draft, and even prohibited the distribution of antiwar leaflets. Nearly 2,000 Americans were convicted under the Espionage Act.

28 Espionage Act (continued)
Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft. Created a clear and present danger The bad tendency test was used by the Court. Engaging in speech that had a tendency to induce illegal behavior was not protected by the First Amendment.

29 Espionage Act (continued)
Justice Holmes sought to allow limits on the First Amendment. Justice Holmes defined the “Clear and Present Danger” test in the Schenck case. Also known as “bad tendency test”. “Even the most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre.” Justice Holmes. Modified in 1969 to be “direct incitement test.” (produces imminent lawless action)

30 Debs v. United States (1919) In Debs the Court upheld the conviction of Eugene V. Debs (a Socialist candidate for the U.S. Presidency) because his anti-war speeches had the “tendency” to obstruct recruitment efforts. While serving his 20 year prison sentence he received nearly one million votes in the 1920 presidential election! Debs was later pardoned by President Harding.

31 N.Y. Times v. Sullivan (Police Commissioner sued for comments made about him surrounding Martin Luther King’s arrest in Montgomery, Alabama) Greater burden of proof in libel or slander cases against public officials Must show ‘actual malice’ in suit and a ‘wreckless regard for the truth’ According to James Madison open debate is: A prized American privilege not always perfectly executed. There is some degree of abuse This is no more true than in the press So crucial to American democracy ‘Breathing space’ should be permitted to allow for inaccuracies Truth will always emerge

32 What other forms of Speech are Protected?
Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including: An example of protected symbolic speech would be the right of high school students to wear armbands to protest the Vietnam War (Tinker v. De Moines Independent Community School District, 1969). flying a communist red flag (Stromberg v. California) burning the American flag (Texas v. Johnson)

33 Flag Burning Burning the American flag is a form of protected symbolic speech. The Supreme Court upheld that right in a 5-4 decision in Texas v. Johnson (1989).

34 PRIOR RESTRAINT– a government action that prevents material from being published
The Supreme Court has generally struck down prior restraint of speech and press Near v. Minnesota, 1931 – accused local officials of participating in illegal activities resulting in injunction. Court struck down state law prohibiting certain forms of speech before the fact. In NYT v. United States (1971) the Court ruled that the publication of the top-secret Pentagon Papers could not be blocked.

35 What Types of Speech are Protected?
Hate Speech –Unpopular Speech. (Ordinances against cross-burning are lawful if intent is racial intimidation) Campus speech zones, city ordinances. Communications Decency Act – attempt by Congress to limit “indecent and obscene material on the internet. Reno v. ACLU – Opposed blanket censorship and removed the word “indecent” from language of CDA. “Indecent” speech is constitutionally protected.

36 Politically Correct Speech
This controversy grew out of the movement within colleges to ban offensive speech. Incidents in which reprimanded students have challenged the colleges’ code of speech have been challenged successfully by the American Civil Liberties Union.

37 What Types of Speech are not Protected?
Chaplinsky v. New Hampshire(1942)“Fighting words” that inflict pain or incite violence Includes profanity, obscenity and threats

38 Miller v. California (1973) Concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature. Concluded - obscene material is not protected by the First Amendment. Justice Douglas argued in dissent that constitution does not mention the word obscenity and the issue needs to be dealt with through constitution amendment.

39 "Three-Pronged Test" for Obscenity
In order to meet the definition of obscene material articulated in Miller, three conditions must be met: whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome) interest. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

40 Obscenity The courts have consistently ruled that states may protect children from obscenity (Osborne v. Ohio, 1991), while adults often have legal access to the same material. Although the Supreme Court has ruled that “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States, 1957) it has proven difficult to determine just what is obscene, said it must be “utterly without redeeming social importance.”

41 Obscenity and Pornography
Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place, and person to person. Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it." The ambiguity of definition still exists and is becoming even more problematic with the Internet. No nationwide consensus exists that offensive material should be banned.

42 Libel and Slander Libel is a written statement that defames the character of a person. Slander is spoken words that defame the character of a person. In the United States, it is often difficult to prove libel or slander, particularly if “public persons” or “public officials” are involved.

43 The Second Amendment: The Right to Keep and Bear Arms
The Second Amendment states that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” This amendment has been hotly contested in recent years particularly since the 1999 shootings at Columbine High School. The Court has not incorporated this right, nor have they heard many cases about it. Congressional regulation more frequent.

44 (1934) National Firearms Act – tax on sawed off shotguns and machine guns
U.S. v Miller (1939) – bank robbers with sawed off shotgun in vehicle – 1st to be prosecuted under NFA(1934) Brady Bill – 5 day waiting period Violent Crime Control and Law Enforcement Act (1994) – President Clinton signs into law-banned manufacture, sale and transport of 19 semi-automatic assault weaponsCitizens’ right reaffirmed in D.C. v. Heller (2008).

45 Rights of Criminal Defendants
Are the due process rights and the procedural guarantees provided by the Fourth, Fifth, Sixth, and Eighth Amendments “Respecting the dignity even of the least worthy citizen… raises the stature of all of us.” Justice William O. Douglas

46 Fourth Amendment The Fourth Amendment’s general purpose
is to deny the government the authority to make general searches. The Supreme Court has interpreted the Fourth Amendment to allow the police to search the person arrested, things in plain view of the accused, and places or things that the person could touch or reach, or which are otherwise in the arrestee’s “immediate control.”

47 4th Amendment (cont’d) Police must knock and announce presence before entering premises to search. Individual on probation must submit to warrantless searches. Provides protection against “unreasonable” searches and seizures Requires search warrants w/probable cause Allows “Stop and Frisk” search only for weapons. Only needs reasonable cause. Answers to questions may shift reasonable suspicion to probable cause

48 Bodily privacy outweighs need for evidence
Drunk driving situations don’t require warrant Thermal imaging (technology) is a violation of 14th Amendment

49 Weeks v. U.S. – established the ‘exclusionary rule’ regarding inadmissable evidence - illegally obtained lottery tickets in illegal search of premises – led to gambling conviction-overturned. (federal offense) Mapp v. Ohio(incorporation case) – Obscenity case – literature confiscated in illegal search of premises - Inadmissible in state court. Growing number of “good faith exceptions” (police operating under assumption that the search warrant is legal) “Inevitable discovery”

50 Fifth Amendment Self-incrimination
The Fifth Amendment states that “No person shall be …compelled in any criminal case to be a witness against himself. So criminals cannot be required to take the stand in a trial. Double Jeopardy Just Compensation

51 5th Amendment Palko v Connecticut – Tried twice for murder
Unsuccessfully appealed death sentence. Attempted to apply 5th Amendment Double Jeopardy law to state Significance – doctrine of selective incorporation established in this trial (not all protections applicable to the states Conviction overturned by Benton v. Maryland Miranda v. Arizona – Miranda Rights – right not to incriminate oneself Defendant’s statements and confession obtained during interrogation were not admissible evidence Exclusionary rule applied

52 Sixth Amendment Right to confront accuser
The Sixth Amendment guarantees a right to adequate counsel. Criminals are usually too poor to afford counsel. In Gideon v. Wainwright (1963), Gideon, a poor man, was accused of a crime and denied a lawyer. The Court ruled unanimously that a lawyer was a necessity in criminal court, not a luxury. The state must provide a lawyer to poor defendants in all criminal cases. Right to confront accuser Maryland v. Craig

53 Eighth Amendment The Eighth Amendment prohibits cruel and unusual punishment. It is most often used in arguing death-penalty cases. Some of the major death-penalty cases are: Furman v. Georgia (1972) The Court ruled that the death penalty constituted unconstitutional cruel and unusual punishment when it was imposed in an arbitrary manner. Death sentence overturned. Received life sentence Gregg v. Georgia – after legislation changed to separate trial and sentencing proceedings – sentence was upheld

54 8th Amendment McKleskey v. Kemp (1987) The Court ruled that the death penalty – even when it appeared to discriminate against African Americans – did not violate the constitution. Social scientists testify that Georgia 11 times more likely to seek death penalty in cases where defendant is black and victim is white. Courts upheld sentence, but turned to Congress to address the issue of the death penalty. McKleskey v. Zant (1991) The Court made it more difficult for death row inmates to file repeated appeals. NAACP in the 60’s challenged seeking death penalty Jury selection has been subject of much debate. In past, African Americans and women were excluded.

55 Briefly unconstitutional for a period in 1970s.
Used at varying rates and forms in different states. Minors and mentally retarded are excluded. Growth of innocence projects and DNA evidence. 2008 case upholds constitutionality of lethal injection.

56 The Right to Privacy Rights not specifically enumerated.
Clear that Framers expected some areas to be off-limits to government interference. In 1890 future Justice Louis Brandeis extolled 'a right to be left alone.‘ limits to access of personal information (medical, financial, employment)

57 The Right to Privacy - Abortion
In Roe v. Wade (1973) the Supreme Court ruled that a Texas law prohibiting abortion violated a woman's constitutional right to privacy. Since Roe, a number of other cases on abortion have been decided. In general they have limited abortion rights in some way. Webster v. Reproductive Health Services (1989) upheld fetal viability tests. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) Pennsylvania was allowed to limit abortions as long as they did not pose 'an undue burden' on pregnant women.

58 The Right to Privacy: Homosexuality
The Court has declined to extend privacy rights to protect homosexual relationships. In 1986, the Court upheld a Georgia law against sodomy in a 5-4 decision in the case of Bowers v. Hardwick. However, in 1996, the Court ruled that a state could not deny rights to homosexuals simply on the basis of sexual preference.

59 The Right to Privacy The Right to Die
In 1990, the Court heard the case Cruzan by Cruzan v. Director, Missouri Department of Health (1990). In a 5-4 ruling, the Court rejected a right to privacy in cases of assisted suicides or euthanasia, but argued that living wills, written when competent, were constitutional. In 1997, the Court ruled that there was no constitutional right to assisted suicide.

60 Civil Liberties and Terrorism
Virtually all civil liberties have been affected. USA Patriot Act and Military Commissions Act. Place limitations on free speech rights. Increase law enforcement’s search capabilities. Attempt to deny habeas corpus rights to defendants. Allow for use of techniques such as water-boarding.

61 Figure 5.1- Methods of Execution

62 Rehnquist Warren Rehnquist
Public interest outweighs individual’s rights

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