1. Chapter 5
Civil Liberties 1

2. Learning Objectives
Why do the courts play so large a role in deciding what our civil liberties should be?
Must the rights afforded to citizens by the Constitution be respected by not only the federal government but also by the states?
Are all forms of expression protected by the Constitution?
Is all political advertising constitutional?
Did America ever have state-supported churches, and do some modern democratic nations still have them?
How does the Constitution protect the liberties of persons accused of crimes or designated “enemy combatants”?
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3. Introduction WHO GOVERNS? TO WHAT ENDS?
1. Why do the courts play so large a role in deciding what our civil liberties should be?
TO WHAT ENDS?
Why not display religious symbols on government property?
If a person confesses to committing a crime, why is that confession sometimes not used in court?
Does the Patriot Act reduce our liberties?
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Civil rights refers to protecting certain groups from discrimination. But in practice, there is no clear line between civil liberties and civil rights. 3 3

4. Protecting Freedom of Speech?
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5. Culture and Civil Liberties
Rights in Conflict
Competing rights and duties
Congress has attempted to restrict rights
Sedition Act (1798)
Espionage and Sedition Acts ( )
Smith Act (1940)
Internal Security Act (1950)
Communist Control Act (1954)
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6. Culture and Civil Liberties
Cultural Conflicts
White Anglo-Saxon Protestants vs. other immigrant groups
Community standards vs. private self-expression
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What is considered pornography? Who decides? 6 6

7. Annual Legal Immigration 1850-2012
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Figure 5.1
Note: Figures for 1989 and 1990 include persons granted permanent residence under the legalization program of the Immigration and Reform and Control Act of 1986.
Source: Data from Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics (Washington, D.C.: Department of Homeland Security, 2011), 1. 7 7

8. Culture and Civil Liberties
Applying the Bill of Rights to the States
Due process and equal protection (Fourteenth Amendment)
Selective incorporation
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Protections under the Second Amendment (the right of the people to keep and bear arms) may or may not apply to the states. 8 8

9. Culture Conflicts
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A Hispanic girl studies both English and Spanish in a bilingual classroom. Is a bilingual education her right?
AP Images 9 9

10. Interpreting and Applying the First Amendment
Freedom of expression
Freedom of religion
Speech and National Security
Prior restraint
Clear-and-present-danger test
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During a crisis, the Court tends to defer to the need for national security. 10 10

11. Incorporation Landmark Cases
Gitlow v. New York (1925): Supreme Court says the First Amendment applies to states.
Palko v. Connecticut (1937): Supreme Court says that states must observe all “fundamental” liberties.
McDonald v. Chicago (2010): The Second Amendment that allows the people to keep and bear arms applies to state governments as well as the federal one.
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12. What is Speech?
Forms of speech not automatically given constitutional protection:
Libel
Obscenity
Symbolic Speech
False Advertising
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13. What is Speech? Supreme Court standards and tests on free expression:
Preferred position
Prior restraint
Imminent danger
Neutrality
Clarity
Least-restrictive means
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14. What is Speech? Symbolic speech
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When young men burned their draft cards during the 1960s to protest the Vietnam War, the Supreme Court ruled that it was an illegal act for which they could be punished.
Robert Pearce/The Sydney Morning Herald/Fairfax Media via Getty Images 14 14

15. Commercial and Youthful Speech
More limits on commercial speech
Advertising restrictions and regulations
McCain-Feingold Act
Challenged by Citizen United v. Federal Election Commission
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16. Free Speech and Free Press
Landmark Cases
Schenck v. United States (1919): Speech may be punished if it creates a clear-and-present-danger.
Chaplinksy v. New Hampshire (1942): “Fighting words” are not protected by the First Amendment.
New York Times v. Sullivan (1964): To libel a public figure, there must be “actual malice.”
Tinker v. Des Moines (1969): Public school students may wear armbands to class protesting against America’s war in Vietnam when such display does not disrupt classes.
Miller v. California (1973): Obscenity defined as appealing to prurient interests of average person with materials lacking literary, artistic, political, or scientific value.
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17. Free Speech and Free Press
Landmark Cases
Texas v. Johnson (1989): There may not be a law to ban flag-burning.
Reno v. ACLU (1997): A law that bans sending “indecent” material to minors over the internet is unconstitutional because “indecent” is too vague and broad a term.
FEC v. Wisconsin Right to Life (2007): Prohibits campaign finance reform law from banning political advocacy.
Citizens United v. FEC (2010): The part of McCain-Feingold campaign finance law that prevents corporations and labor unions from spending money on advertisements in political campaigns is unconstitutional.
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18. Free Speech and the Politics of Health Care Reform
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19. Free Speech and the Politics of Health Care Reform
Taking a closer look:
During political debate, must speech be absolutely truthful to be constitutionally protected?
Why does health care reform stir such a passionate response? Is healthcare a right?
In what forums is free speech disregarded?
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20. Church and State Free-Exercise Clause Establishment Clause
Wall of Separation
1. It has a strictly secular purpose.
2. Its primary effect neither advances nor inhibits
religion.
3. It does not foster an excessive government entanglement with religion.
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Having the right to exercise your religion freely does not mean, however, that you are exempt from
laws binding other citizens, even when the law goes against your religious beliefs. 20 20

21. Religious Freedom Landmark Cases
Pierce v. Society of Sisters (1925): Though states may require public education, they may not require that students attend only public schools.
Everson v. Board of Education (1947): The wall-of-separation principle is announced.
Zorauch v. Clauson (1952): States may allow students to be released from public schools to attend religious instruction.
Engel v. Vitale (1962): There may not be a prayer, even a nondenominational one, in public schools.
Lemon v. Kurtzman (1971): Three tests are described for deciding whether the government is improperly involved with religion.
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22. Religious Freedom Landmark Cases
Lee v. Weisman (1992): Public schools may not have clergy lead prayers at graduation ceremonies.
Santa Fe Independent School District v. Doe (2000): Students may not lead prayers before the start of a football game at a public school.
Zelman v. Simmons-Harris (2002): Voucher plan to pay school bills is upheld.
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23. Crime and Due Process The Exclusionary Rule Search and Seizure
Mapp v. Ohio
Search and Seizure
Confessions and Self-Incrimination
Miranda ruling
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24. Crime and Due Process Relaxing the Exclusionary Rule
Terrorism and Civil Liberties
USA Patriot Act
Searches without Warrants
Foreign Intelligence Surveillance Act
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25. Criminal Charges Landmark Cases
Mapp v. Ohio (1961): Evidence illegally gathered by the police may not be used in a criminal trial.
Gideon v. Wainwright (1964): Persons charged with a crime have a right to an attorney even if they cannot afford one.
Miranda v. Arizona (1966): Court describes warning that police must give to arrested persons.
United States v. Leon (1984): Illegally obtained evidence may be used in a trial if it was gathered in good faith without violating the principles of the Mapp decision.
Dickerson v. United States (2000): The Mapp decision is based on the Constitution and cannot be altered by Congress.
Rasul v. Bush and Hamdi v. Rumsfeld (2004): Terrorist detainees must have access to a neutral court to decide if they are legally held.
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