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, What government can’t do…  Civil rights Rights individuals share as provided for in the 14 th 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 14 th Amendment’s (ratified in 1868) due process clause; see page 68

Table 4-1: Incorporating the Bill of Rights into the Fourteenth Amendment, 68 YearIssue Amendment Involved Court Case Freedom of speech Freedom of the press Right to a lawyer in capital punishment cases Freedom of assembly and right to petition Freedom of religion Separation of church and state Right to a public trial No unreasonable searches and seizures Exclusionary rule No cruel and unusual punishment Right to a lawyer in all criminal felony cases No compulsory self-incrimination Right to privacy Right to an impartial jury Right to a speedy trial No double jeopardy I VI I VI IV VIII VI V I, III, IV, V, IX VI V Gitlow v. New York, 268 U.S Near v. Minnesota, 283 U.S Powell v. Alabama, 287 U.S. 45. De Jonge v. Oregon, 299 U.S Cantwell v. Connecticut, 310 U.S Everson v. Board of Education, 330 U.S. 1. In re Oliver, 333 U.S Wolf v. Colorado, 338 U.S. 25. Mapp v. Ohio, 367 U.S Robinson v. California, 370 U.S Gideon v. Wainwright, 372 U.S Malloy v. Hogan, 378 U.S. 1. Griswold v. Connecticut, 381 U.S Parker v. Gladden, 385 U.S Klopfer v. North Carolina, 386 U.S 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, 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 1 st 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 1 st, 3 rd, 4 th, 5 th and 9 th 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 4 th 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 4 th, 5 th, 6 th, and 8 th amendments

Rights of the Accused  Limits on Conduct of Police Officers and Prosecutors No unreasonable or unwarranted searches or seizures (4 th )  exclusionary rule = cannot use illegally seized evidence without warrant based on probable, just cause (mitigated by “ good faith ” clause) Probable cause for arrest (4 th ) No coerced confessions or illegal interrogation (5 th ) 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 (6 th ) Legal counsel (6 th ) Reasonable bail (8 th ) Informed of charges (6 th ) Remain silent (5 th )

Rights of the Accused  Trial rights Speedy, public trial before a jury (6 th ) Impartial jury representative of community (6 th ) Trial atmosphere free of prejudice, fear, and outside interference No compulsory self-incrimination (5 th ) Adequate counsel (6 th ) No cruel or unusual punishment (8 th )  What about the Death Penalty? Right to appeal convictions (5 th ) No double jeopardy (5 th )

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: midtbrief midtbrief2004  Wadsworth’s Political Science Site:  American Civil Liberties Union:  Project Vote Smart:  EPIC Archive – Privacy: