Civil Liberties vs. Civil Rights Civil Liberties: protection of citizens from improper government action Civil Rights: obligations imposed on government to take positive action to protect citizens from illegal actions of other private citizens and other government agencies.

Bill of Rights Was it necessary? Hamilton thought no: how could the national government abuse powers not given to it in the first place?? (Art. I, Section 9, listed the right of habeas corpus-prohibits government from depriving a person of their liberty w/o an open trial before a judge). Added after ratification, but rights only slowly incorporated into national law.

Suspend Writ of Habeas Corpus President Abraham Lincoln suspends writ of habeas corpus eight times "all persons…guilty of any disloyal practice.. shall be subject to court martial" 38,000 civilians imprisoned

Later 1866: Supreme Court says Lincoln exceeded his authority Habeas Corpus cannot be suspended, even in war.

Alien and Sedition Acts (1798) Alien Act: deport any non-citizen judged dangerous to US peace and safety –no right to a hearing or to present evidence Sedition Act: prohibit false, scandalous, or malicious writing against the government –aggressive criticism of Adams deemed unlawful

Later President Jefferson pardons all of those convicted Congress repays the fines Federalist party declines in power

Espionage/Sedition Act (1917) US enters World War I Made it a crime for a person to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.

Later Government releases every person who had been convicted President Franklin D. Roosevelt grants amnesty, restoring civil rights Eventually, Supreme Court overrules every WWI decision supporting actions against dissent

Fear of Communism Smith Act: advocating the overthrow of the US government is illegal Internal Security Act: communists had to register with government Communist Control: commies are a part of a conspiracy to overthrow government

Patriot Act (2001) Expands wiretaps, search warrants, pen/trap orders, and subpoenas Allows spying by foreign intelligence agencies FBI and CIA can now access phones and computers w/o demonstrating use by a suspect or target of an order

Patriot Act, II ISPs, libraries forced to hand over user information New definitions of terrorism expand scope of surveillance Collection of DNA for "any crime of violence." Information sharing between domestic law enforcement and intelligence

Patriot Act, III Removes Freedom of Information Act protections for detainees Nullifies consent decrees against state law enforcement agencies that prevent spying on individuals and organizations Strips citizenship from anyone who gives "material support" to any group that the Atty. Gen. designates as a terrorist organization

1 st Amendment Gitlow vs. New York (1925): freedom of speech and press are fundamental personal rights. State laws limiting speech, press or peaceful assemble: unconstitutional. Example of selective incorporation!

1 st Amendment Protections Preferred Position: free expression is more important than other rights. Prior Restraint: No prior restraint on expression. Least restrictive: Impose the least amount of restrictions on expression Symbolic speech: communicating beliefs. Draft card and flag burning: Why different?

1 st Amendment Restrictions Libel: written false statement (National Inquirer) Slander: spoken false statement Imminent danger: incite unlawful act Clear and present danger: shouting fire in a movie theater.

1 st Amendment: Obscenity Very difficult issue: what is obscene? Have used community standards as a measure Zoning laws have restricted where offensive materials can be sold

1 st Amendment: Religion Religion divided into establishment clause and free exercise clause Establishment: there is a wall of separation between the church/state. Fed government cannot establish a national religion. Free exercise: restricting anyones practice of a religion: Wicca, snake handlers, peyote, Mormons?

What do you think? Does the government have the right to infringe on civil liberties? When? How far is too far? What about racial profiling? Is racial profiling an acceptable deviation from the equal protection clause? Is the government protecting US citizens from future terrorist attacks or invading their privacy? Is the Patriot Act a necessary part of life after September 11 or does it overstep the boundaries of privacy invasion?