1. CHAPTER 4: CIVIL LIBERTIES

2. The Bill of Rights The Bill of Rights comes from the colonists’ fear of a tyrannical government. Recognizing this fear, the Federalists agreed to amend the Constitution to include a Bill of Rights after the Constitution was ratified. The Bill of Rights lists some of our civil liberties, or natural rights, the rights that cannot be taken away. Importantly, the Bill of Rights places limitations on the government, thus protecting citizens’ civil liberties.

3. Extending the Bill of Rights to State Governments As we have seen, federalism divides power between the national government and the state governments. This division of power confuses many people today concerning their civil liberties. While the Bill of Rights protected the people from the national government it did not protect the people from state governments. In 1868 the Fourteenth Amendment became a part of the Constitution. This amendment states in part “No State shall… deprive any person of life, liberty, or property without due process of law.” While this amendment did not mention the Bill of Rights, it would be interpreted to include some of the Bill of Rights in the twentieth century.

4. Extending the Bill of Rights to State Governments Beginning in 1925 the United States Supreme Court began to apply specific rights stated in the Bill of Rights to state governments. This application is now referred to as the Nationalization of the Bill of Rights. Table 4-1 in the text lists the incorporation of the specific rights. However, not all of the rights have been held applicable to state governments. The second amendment, which focuses on the right to bear arms, has not been incorporated within the Fourteenth Amendment. Could a state pass legislation that banned the ownership of any type of gun? Such a law would not be a violation of the Second Amendment, although the state constitution may prevent such a law.

6. Freedom of Religion The First Amendment addresses the issue of religion from two different venues: (1) “Congress shall make no law respecting an establishment of religion,” and (2) “... or prohibiting the free exercise thereof...” If taken separately these provisions appear to be very clear. Congress is prohibited from passing laws that establish a governmental involvement in religion, and Congress is prohibited from passing laws that deny people the right to practice their religious beliefs.

7. Freedom of Religion The establishment clause typically is applied by the Supreme Court to questions regarding governmental aid to religious organizations, questions regarding prayer in schools and questions regarding curriculum (teaching the Bible as history, teaching evolutionism versus creationism.) In the early 1990s the subject of prayers over public address systems prior to sporting events at public schools became a major issue. Many individuals contend it is their right to pray in public at such events. Their claim is based on the free exercise clause of the First Amendment. Others indicate the state is sponsoring the event on public grounds and therefore cannot allow such action without violating the establishment clause of the First Amendment. The decision of the Supreme Court was not to allow such prayer. Much like the decisions in the 1960s concerning prayer in the classroom, the Court held that people could still pray as long as it was on an individual basis (thus protecting the free exercise of religion) but that prayer spoken aloud is officially sanctioned by the state and therefore violates the establishment clause.

8. Freedom of Religion Regarding school prayer, the Supreme Court has ruled that prayer in schools violates the establishment clause. However, the court has allowed school districts to have a moment of silence when such an event was conducted as a secular rather than religious occasion. The Supreme Court also has ruled that student in public schools cannot use a school’s public address system to pray at sporting events. In spite of the court’s ruling, students in some districts (especially in the south) violate the ruling, or use radio broadcasts to circumvent the court’s decision.

9. Freedom of Religion The free exercise clause guarantees the free exercise of religion. Yet the Supreme Court has allowed for some restraint on the free exercise clause when religious practices interfere with public policy. Examples of this include the ability of school districts to select texts and require their usage by students, and the requirement of vaccinations for school enrollment. Current Supreme Court rulings regarding the separation of church and state demonstrate that the line between the two is becoming increasingly blurred. In Rosenberger v. University of Virginia, the Court held that the university violated the establishment clause when it refused to fund a Christian group’s newsletter, saying that the school unconstitutionally discriminated against religious speech.

10. Freedom of Expression As we saw in the issue of religion, the First Amendment is not an absolute bar against legislation by Congress concerning issues of religion. The same is true concerning the expression of ideas. Some ideas are protected by the First Amendment while other ideas either fall outside the protection of the First Amendment or have only a limited protection. Speech is protected by the First Amendment includes expression that falls under the clear and present danger rule, symbolic speech, some commercial speech and speech protected by the “no prior restraint” rule.

11. Freedom of Expression Ideas which fall outside the protection of the First Amendment include: –obscenity –slander - ideas which are false and are intended to defame the character of someone –fighting words - slurs that provoke violence –hate speech - abusive speech attacking an individual’s race, religion, or other characteristic.

12. Freedom of Expression Ideas that are not of a commercial nature, or ideas that do not fall within the unprotected area (obscenity, slander, and fighting words), are protected by the First Amendment. Even these protected ideas may be somewhat limited. During the twentieth century, the Supreme Court has allowed laws that restrict protected speech that would cause harm to the public. These types of laws are very narrow in scope and the government must clearly establish that such speech will do actual damage to the public (clear and present danger).

13. Freedom of the Press Freedom of the press, another type of expression, is similar to freedom of speech. Like speech there are different types of ideas in the area of press. Obscene or pornographic press is not protected, nor is libel (false statements intended to defame). Commercial press enjoys only a limited protection. All other press related ideas are protected and the Supreme Court has been very careful concerning government regulation of the press. Only on rare occasions has the government been allowed to stop protected ideas from being printed (prior restraint). But increasingly the courts have ruled that gag orders may be used to ensure fair trials. To this end, the courts have said that the right of a defendant to a fair trial supersedes the right of the public to “attend” the trial.

14. Freedom of the Press A difficult area concerning freedom of the press is where and how information is obtained. Should the press be allowed to publish information if the information has initially been stolen but is then given to the press? Should the press be required to relinquish information if the information could lead to the prosecution of individuals? These are very complex questions with no simple solutions. Many individuals would prefer the press to assist the police in apprehending and convicting known violators of the law. Others indicate that if the press had to assist the police, the press would not have access to information that the public has a right to know.

15. Freedom of the Press Although the press was limited to printed material in 1789 when the First Amendment was proposed, the press is no longer limited to just the print media. Freedom of the Press now includes other informed channels: –films –radio –television These newer additions to the press are not afforded the same protection as the print media. Some prior restraint is allowed and some language is not protected (filthy words) even though the language is not obscene or of a fighting words nature. In addition certain “rules,” such as the equal time rule, the personal attack rule and the fairness doctrine apply to these newer forms of media.

16. The Right to Assemble and to Petition the Government The right to assemble and to petition the government is very important to those who want to communicate their ideas to others. The Supreme Court has held that state and local governments cannot bar individuals from assembling. State and local governments can require permits for such assembly so that order can be maintained. However the government cannot be selective as to who receives the permit.

17. More Liberties Under Scrutiny: Matters of Privacy There is no explicit Constitutional right to privacy, but rather the right to privacy is an interpretation by the Supreme Court. The basis for this right comes from the First, Third, Fourth, Fifth, and Ninth Amendments. The right was established in 1965 in Griswold v. Connecticut.

18. More Liberties Under Scrutiny: Matters of Privacy One example of laws regarding he right to privacy is in the area of abortion rights. In Roe v. Wade. the court held that states could not totally prohibit abortions because the state action violated the females’ right to privacy. This right was not an unlimited right, though, according to the Court, and states were allowed to take action that would safeguard the female and protect the fetus once it was viable. State action was limited depending on the stage of the pregnancy. –first trimester - states may require physician to perform the abortion –second trimester - states may specify conditions concerning where the abortion can be performed –third trimester - states may prohibit abortions

19. More Liberties Under Scrutiny: Matters of Privacy –Since the Roe decision in 1973 the Court has eroded the right to privacy by allowing states to increase regulations regarding abortion. Two of these cases include Webster v. Reproductive Health Services (1989) and Planned Parenthood v. Casey (1992). Both rulings enabled states to regulate matters not included in the Roe v. Wade decision. –Another area in which the right to privacy is debated is the right to die. In Cruzan v. Director, Missouri Department of Health (1997) the Supreme Court decided that a patient’s life support could be withdrawn at the request of a family member if there was “clear and convincing evidence” that the patient did not want the treatment.

20. More Liberties Under Scrutiny: Matters of Privacy Privacy rights also are important regarding the issue of physician-assisted suicide. Regarding this issue, the Supreme Court has said that the Constitution does not include a right to commit suicide. This decision left states much leeway to legislate on this issue. Since that decision in 1997, only the state of Oregon has legalized physician-assisted suicide. Privacy rights have taken on particular events since September 11, 2001. For example, legislation has been proposed that would allow for “roving” wiretaps, which would allow a person (and his or her communications) to be searched, rather than merely a place. Such rules violate the Fourth Amendment.

21. The Great Balancing Act: The Rights of the Accused Versus the Rights of Society In the United States when the government accuses an individual of committing a crime, the individual is presumed to be innocent until the government is able to prove the individual is guilty. The Bill of Rights sets forth specific rights of the accused: Fourth Amendment –no unreasonable or unwarranted search or seizure –no arrest except on probable cause Fifth Amendment –no coerced confessions –no compulsory self-incrimination –no double jeopardy Sixth Amendment –legal counsel –informed of charges –speedy and public jury trial –impartial jury by one’s peers Eight Amendment –reasonable bail –no cruel or unusual punishment

22. The Great Balancing Act: The Rights of the Accused Versus the Rights of Society When the Bill of Rights was enacted, these restrictions were only applicable to the national government. The Supreme Court interpretations of Fourteenth Amendment eventually made these rights applicable to state governments. Most of these interpretations have occurred in the last half of this century and are still an ongoing process. The rights of the accused today are vastly different than the rights of the accused prior to 1950.

23. The Great Balancing Act: The Rights of the Accused Versus the Rights of Society Today the conduct of police and prosecutors is limited by the following: –the Miranda ruling which requires the police to inform suspects of their rights (Miranda v. Arizona 1966) –the right to an attorney if the accused is incapable of affording an attorney (Gideon v. Wainwright 1963) –the exclusionary rule which prohibits the admission of illegally seized evidence (Mapp v. Ohio 1961)

24. The Great Balancing Act: The Rights of the Accused Versus the Rights of Society These decisions have made it more difficult for the government to prosecute suspected criminals. More recent decisions by the Supreme Court have relaxed these rulings in order to ease the difficult task of the police and the prosecutors. In the attempt to balance the needs of the government in the prosecution process with the rights of the accused, the Court must decide where to place the fulcrum. If the fulcrum is placed toward the rights of the accused, the ability to prosecute suspects becomes much more difficult. If the fulcrum is placed toward the government’s ability to prosecute the rights of the accused will be decreased.

25. The Death Penalty The Eighth Amendment prohibits “cruel and unusual punishment.” Does capital punishment by the state violate the cruel and unusual punishment clause? In the 1970s most state death penalty statutes were found to be unconstitutional because of the way states were applying the death penalty. Many states were very inconsistent as to what type of suspect would be charged with a capital offense. As states began to revise capital punishment statutes the Court held that the new laws were not a violation of the Eight Amendment.

27. Civil Liberties: Why Are They Important Today? The struggle over civil liberties took a new turn with the events of September 11, 2001. With the terrorist attack, there was great desire to see future similar attacks prevented and the perpetrators arrested. Such action, however, could come at the cost of civil liberties. The Supreme Court will have an important role in determining whether civil liberties will be eroded. The Court also will have to continue to grapple with new issues concerning religious freedom in society. The issue of privacy will remain prominent for the Supreme Court, as technology expands its role, and the Court is left to determine what privacy rights are protected. Finally, as society becomes increasingly frustrated with the crime problem, the rights of the accused will remain at a prominent place on the Supreme Court’s docket.