Civil Liberties & Public Policy Chapter 4

Free Exercise Clause & Freedom of Expression Civil liberties are essential to a democracy. Civil liberties are based on the Bill of Rights…some disputes may end up in court. Barrone v Baltimore: The court restrained only national government, not states/cities. Gitlow v New York (1925)- Freedom of speech/press “were fundamental personal rights/liberties protected by the Due Process Clause. What is a conscientious objector? Religious Freedom Restoration Act of Permissible v impermissible speech? How do we know what is obscene? Hate speech? How has the Supreme Court viewed this/ruled?

Prior Restraint, Free speech and public order When does the U.S. government have the Constitutional right to censor something? Identify what the Pentagon Papers were and how this ties into freedom of expression. Identify who Senator Joseph McCarthy was (HUAC)How did he and others use the Smith Act of 1940 (violent overthrow of U.S. Govt.), Schenk v U.S (1917) (clear and present danger and who determines this). Dennis v U.S. (1951). How did the Supreme Ct. change its views on these issues during the 1960s-1970s?

Obscenity Roth v U.S. (1957): Obscenity is not protected free speech. Standards change over time (1950’s v MTV generation). Miller v California (1971): Warren Burger (CJ) view of what’s obscene…applying contemporary standards. How are young people protected from obscenities? Communication Decency Act (1996)

Libel and Slander Libel- The publication of false statements that are malicious and damage a person’s reputation (written defamation). Slander- spoken defamation N.Y.T. v Sullivan (1964)- Statements are libelous only if made with malice and reckless disregard for the truth. Difficult for public figures to win. Easier for private individuals to win. Tinker v Des Moines Texas v Johnson Symbolic Speech.

Commercial Speech and Regulation of the Public Airwaves Commercial speech is regulated far more than expressions of opinion. Federal Trade Commission (FTC)- Regulates content on Radio & Television…”truth in advertising”. Federal Communications Commission (FCC)regulates the airwaves. Doesn’t apply to print media. George Carlin: “Filthy words” routine. Technological changes have blurred the line between broadcasting and private communications between individuals.

Freedom of Assembly Basis for forming political parties, interest groups, professional associations, picketing and protesting. Literal version…this is sometimes limited or forbidden is it conflicts with traffic or business interest. No limitations on content: Nazis marching in Skokie. Operation Rescue and abortion clinics. Right to Associate…NAACP v Alabama (1958)

Right to Bear Arms/Defendants’ Rights What does the 2 nd Amendment actually say? Gun control groups and those who oppose the killing of civilians tend to demand safer gun laws. Supreme Court rarely deals with gun control…Columbia v Heller (2008): 2 nd Amendment protects an individual right to possess a firearm and use it in their home for self defense. McDonald v Chicago (2010) – Neither states nor city’s can ban handguns. 2 nd amendment rights are not unlimited: Limits on the possession of firearms by felons, the mentally ill and not allowed to bring firearms into a school or government situation. Bill of Rights contain only 45 words guaranteeing the freedoms of speech, religion, press and assembly. Today the courts apply the protections in the 4 th, 5 th, 6 th, 7, and 8 th Amendments mostly in criminal justice cases. Think of the stages of the criminal justice system as a series of funnels decreasing in size. Defendants rights are not clearly defined in the Bill of Rights.

Searches and Seizures Police cannot arrest without a reason. Need probable cause. 4 th Amendment: Forbids unreasonable searches and seizures. Search warrants are not to be given unless probable cause exists that a crime occurred or is about to occur. But most searches occur in the U.S. without a search warrant. Searches of K-12 students require only that there be a reasonable chance of finding evidence of wrongdoing. Since 1914, Supreme Court has used an exclusionary rule to weigh evidence in criminal cases. Illegally seized evidence cannot be introduced in court…but only applied to federal level until Mapp v Ohio (1961): Evidence seized (obscene materials) was done so illegally, and court reversed Mapp’s conviction. Defendants rights protect the accused, not the guilty. USA Patriot Act: passed after 9-11, gave govt. broad powers to wiretap, conduct surveillance and investigate terror suspects. Congress re-authorized in 2006 with few changes (Ed Yohnka mentioned this)

Self Incrimination, Right to Counsel, Trials 5 th Amendment forbids forced self-incrimination…suspects need not provide evidence that can later be used against them. Miranda v Arizona (1966): Case established guidelines for police questioning a suspect (Police now use a Miranda card to read people their rights.) 6 th Amendment: Ensured right to lawyer at Federal Level…but not until 1932 (Powell v Alabama) was it required in state courts for capital offences. Gideon v Wainwright (1963): Everyone accused of a felony in state court must receive legal representation. Most (90%) of all cases are settled thru Plea Bargaining, without a trial. Who benefits? Who loses with this system? Hamdan v Rumsfeld (2006).

Cruel and Unusual Punishment 8 th Amendment forbids Cruel and Unusual Treatment…but this is NOT defined. More than 3,300 people currently on death row…nearly half in California, Texas, and Florida. Furman v Georgia (1972)…Freakish and Random. Gregg v Georgia (1976)…SC upheld DP. Justice Harry Blackmun, 1994: DP “fails to deliver the fair, consistent and reliable sentences of death required by the Constitution”. McClesky v Kemp (1987): DP did not violate equal protection of the law guaranteed by 14 th Amend. Use of DNA evidence: Gov. Ryan in Illinois (See College students help prevent wrongful deaths p. 123).