1. Civil Liberties Chapter 5
The American System
Civil Liberties
Chapter 5

2. Civil Liberties The protections the Constitution provides
against the abuse of
government power
The protection against
excessive laws which
infringe on your actions

3. Constitutional Foundations
Framers’ believed:
Constitution stated what
the national government
COULD do
Constitution did NOT say
what state governments
could NOT do

4. Conflict of Rights Freedoms vs. Freedoms Freedoms vs. Order
Sheppard v. Maxwell
Right to a Fair Trial
Freedom of Press
New York Times Co. v US
“Provide for the Common Defense”
Freedoms vs. Order
Kunz v New York
Freedom of Speech
Preservation of Public Order

5. Wartime Restrictions of Liberty
Sedition Act of 1798
Can’t defame the president
Fear of Anarchy (specifically – Jefferson)
Espionage and Sedition Acts of 1917 – 1919
Must protect the military
WWI fears of German immigrants

6. Wartime Restrictions of Liberty
Smith Act
Protect the government from revolutionary urgings
Communist Party members had to register with the government
Internal Security Act
Fear of communist propaganda
Communist Control Act
Declared communists to be part of an anti- American conspiracy

7. Wartime Restrictions of Liberty
Legacy
Most restrictions are found to be
CONSTITUTIONAL!
As the crisis abates, the laws become “unimportant”
Yet, they remain on the books!

8. Cultural Conflicts and Liberty
Early America
Very “Anglo”
Very Christian (PROTESTANT)
Immigration brings in “New Cultures”
Religion
Jews
Catholics
Heritage Groups
Respect culture
Bilingual education
Emerging thoughts
Boy Scouts and gay scout masters

9. Cultural Conflicts and Liberty

10. Applying the Bill or Rights to the States
Original thought: Constitution only applied to the NATIONAL GOVERNMENT
Changed to include the idea that it applied to the STATE GOVERNMENTS as well
Post-Civil War Era
14th Amendment
Equal Protection
Due Process

11. Applying the Bill or Rights to the States
Principle of SELECTIVE INCORPORATION
Supreme Court
Almost all of the Bill of Rights has been incorporated

12. Liberty and the First Amendment
Freedom of Expression
Press should be free of PRIOR RESTRAINT
Laws cannot censor content ahead of time
Papers/media are liable if their expression is deemed
Improper
Mischievous
Illegal
Schenk vs. US
“CLEAR AND
PRESENT DANGER”

13. Liberty and the First Amendment
Expression NOT automatically
granted Constitutional protection
1. Libel – PUBLISHED statements which defame
TESTS
Truly false
Caused actual damage
Made with malice
Public Figures
Is it satire?
Will people really believe
it?

14. Liberty and the First Amendment
Expression NOT automatically
granted Constitutional protection
2. Obscenity
Has no redeeming social value
Calculated to appeal to one’s sexual nature
Not for political or literary interests
TESTS
The AVERAGE person using CONTEMPORTY
COMMUNITY standards would consider it obscene
Appeals to “prurient” interests
Depicts sexual conduct in a patently offensive way
(as defined in law)
Lacks serious literary, artistic, political or scientific value
Can be zoned
Not limiting the expression
Limiting the land use

15. Liberty and the First Amendment
Expression NOT automatically
granted Constitutional protection
3. Symbolic Speech
An ACT that conveys a
POLITICAL MESSAGE
Some is protected, some isn’t
– good luck!
You cannot
Do an act which threatens another person’s life
Do an act which threatens another person’s property
Directly disrupts needed social institutions
You can use symbols of the US government (flag)

16. Liberty and the First Amendment
Expression NOT automatically
granted Constitutional protection
4. False
Advertising

17. Liberty and the First Amendment
Who has protected rights?
Who is a person?
Citizens
Children
Interest Groups
Labor Unions
Corporations
More limits allowed on commercial entities
Regulations
Narrowly directed at a specific product
Serve a substantial public interest

18. Liberty and the First Amendment
The Church and State
The Free Exercise Clause
The National Government cannot pass any law which restricts the exercise of religious practice
Selectively Incorporated
“Do or say whatever, just don’t cause serious harm to others”
Parameters
Laws cannot be tailored to a religious practice that is allowed in other parts of the culture
Religions can’t break laws that applies to other parts of culture.

19. Liberty and the First Amendment
The Church and State
The Establishment Clause
The “Wall of Separation”
NO government connections to religion at all –
NONE, ZERO, NADDA, ZIP, ZILCH
Does not appear in the Constitution!
Involvement MAY occur if
The action has a secular purpose
Not allied with or against any particular religion
Is religiously “neutral”
The PRIMARY effect neither advances nor inhibits a religion
Does not foster excessive government entanglements

20. Crime and Due Process Difficult to Unreasonable Search
Define in theory
Define how to put into practice
Unreasonable Search
Inclusionary Rule
Allow all evidence for guilt even if gathered improperly
Punish officers after the case
Used in most other democratic nations

21. Liberty and Crime Exclusionary Rule – 4th Amendment
Unreasonable Search and Seizure
Improperly gathered evidence cannot be used to prosecute
Selectively Incorporated in Mapp v. Ohio
TESTS for Legal Searches
A detailed warrant is produced
Place
What is being sought
What is probably cause
Post-arrest
Your person
Things in plain view
Things under your immediate control

22. Liberty and Crime Exclusionary Rule
Protection from self-incrimination – 5th Amendment
Protected from giving statements because of
Torture
Lack of awareness
Selectively Incorporated in Malloy vs. Hogan
Other SCOTUS cases
Miranda v. Arizona – officials must make SURE the suspect knows his or her rights
Gideon v. Wainwright – right to an attorney

23. Liberty and Crime Exclusionary Rule
Protection from self-incrimination – 5th Amendment
GOOD-FAITH EXCEPTION
Evidence is good if
The police believed that the warrant was valid
There are overriding public safety considerations
The evidence would have been “inevitably found”

24. Liberty and Terrorism The Patriot Act
Telephone tapping of multiple phones
Internet tapping with court order
Voice mail seizure with court order
Grand jury information sharing
Non-citizens held if thought to be a security risk
Money Tracking
Statute of limitations extended for terrorist acts

25. Patriot Sunsets Extension Act
Liberty and Terrorism
Patriot Sunsets Extension Act
President Obama extends parts of the PATRIOT Act
Renews three central federal powers
Roving Wiretaps
Library Provisions Powers
Lone Wolf Provisions
Requires the government
get an order from a
federal court –
May be a SECRET court order