1. Civil Liberties and Public Policy
Chapter 4

2. The Bill of Rights– Then and Now
Civil Liberties
Definition: The legal constitutional protections against the government.
The Bill of Rights and the States
The Bill of Rights is the first 10 amendments.
Written to restrict the national government.
People are devotees of rights in theory but often not in practice
Most are “selectively incorporated” into state and local laws.
Barron v. Baltimore the court applied the Bill of rights only to the National Government
Gitlow v. New York speech and press were fundamental personal rights and the 14th amend. Protects them from the state

3. The Bill of Rights—Then and Now

4. The Bill of Rights—Then and Now

5. Freedom of Religion The Establishment Clause The Free Exercise Clause
“Congress shall make no law respecting the establishment of religion.”
The Free Exercise Clause
Prohibits government from interfering with the practice of religion
Some religious practices may conflict with other rights, and then be denied or punished

6. The Establishment Clause
Jefferson argues that that the 1st amend. created a “wall of separation” between church and state.
Lemmon v. Kurtzman 1971 the court said Church related schools must
1. have a secular purpose.
2. Have a primary effect that neither advances nor inhibits religion.
3. Not foster an excessive government entanglement with religion.

7. Establishment Clause con.
Zelman v. Simmons-Harris
States can provide vouchers that can be used to pay for tuition in religious schools
Engle v. Vitale
the constitution prohibits the sponsorship or encouragement of prayer.
Fundamentalist Christians have a much greater impact today (Christian Coalition)
creation science, Nativity scenes
The court has ruled that government must accommodate all religions and forbids hostility toward any.

8. The Free Exercise Clause
Employment Division v. Smith
State laws interfering with religious practices but not specifically aimed at religion are constitutional.
The state of Oregon was allowed to prosecute persons who used the drug peyote as part of their religious rituals.
Reynolds v. United States 1879
Wisconsin v. Yoder 1972
Wisconsin attempted the enforce its law requiring school attendance until age 16 on Amish children whose parents refused to send them to the public schools beyond 8th grade.
Can a state enforce a school attendance law that clashes with Amish beliefs, or does the state’s action violate the free exercise clause?
Ruling 6-1 in favor of the Amish being forced to subject their children to cultural values that were in opposition to their own religious values and lifestyle interfered with the Amish community’s right to practice their beliefs

9. Freedom of Expression Prior Restraint Near v. Minnesota 1931
Definition: A government preventing material from being published. Censorship.
May be permissible during wartime.
May be punished after something is published.
Near v. Minnesota 1931
A newspaper editor called local officials grafters and “Jewish gangsters”
The state closed down his business
Supreme court reopens the business
The news paper editor or anyone can be punished for violating a law after it is published.
1988 Supreme court ruled that a high school news paper was not a public forum and could be regulated in any reasonable manner by school officials

10. Freedom of Expression Free Speech and Public Order
Schenck v. United States
Limited if it presents a “clear and present danger”
Permissible to advocate the violent overthrow of government in abstract,
Smith Act 1940 forbade advocating the violent overthrow of the American Government
Dennis v. United States 1951
Communist leaders were conspiring to overthrow the government.
valued national security over free speech.
Yates v. U.S.
Permissible to advocate the violent overthrow but not to incite anyone to imminent lawless action
Limited if on private property, like a shopping center

11. Freedom of Expression The public has a right to know what happens.
Free Press and Fair Trials
The public has a right to know what happens.
The press’ own information may not be protected.
Branzburg v. Hayes 1972 in the absents of shield laws the right of a fair trial overrides the reporters right to protect sources.
Zurcher v. Stanford Daily
Proper search warrant could be applied to a newspaper as well as to anyone else without violating Freedom of the Press.

12. Freedom of Expression appeals “to a prurient interest in sex”
Obscenity
No clear definition on what constitutes obscenity. Potter Stewart “I know it when I see it”
Miller v. California stated that materials were obscene if the work:
appeals “to a prurient interest in sex”
showed “patently offensive” sexual conduct
lacks “serious literary, artistic, political or scientific value”
Local areas make their own decisions on obscenity – based on average people applying contemporary standards

13. Freedom of Expression Libel and Slander
Libel: The publication of false or malicious statements that damage someone’s reputation.
Slander: The same thing, only spoken instead of printed.
Different standards for private individuals and public (politicians, celebrities) individuals
New York Times v. Sullivan 1964
statements towards public officials are libelous only if made with malice and reckless disregard for the truth.
Difficult to prove
If public debate is not free, there can be no democracy.

14. Freedom of Expression Symbolic Speech
Definition: Nonverbal communication, such as burning a flag or wearing an armband.
Generally protected along with verbal speech.
Tinker v. Des Moines 1965
Texas V. Johnson 1989

15. Freedom of Expression Commercial Speech
Definition: Communication in the form of advertising.
Generally the most restricted and regulated form of speech (FTC).
Regulation of the Public Airwaves
Broadcast stations must follow FCC rules.
Cable / satellite has blurred the lines.

16. Freedom of Assembly Right to Assemble Right to Associate
Generally permissible, but must meet reasonable local standards.
Balance between freedom to assemble and order in society.
Skokie Case (Collins v. Smith)
Right to Associate
Freedom to join groups / associations without government interference.

17. Defendants’ Rights Interpreting Defendants’ Rights
Criminal Justice personnel are limited by the Bill of Rights.
Failure to follow the rules usually invalidates a conviction. “Exclusionary Rule” (seems to favor criminal).
Courts continually rule on what is constitutional and what is not.

18. Defendant’s Rights

19. Defendants’ Rights Searches and Seizures
Probable Cause: The situation occurring when the police have reason to believe that a person should be arrested.
Unreasonable searches and seizures: Evidence is obtained in a haphazard or random manner.
Exclusionary Rule: The rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained.
Mapp v. Ohio

20. Defendants’ Rights Self-Incrimination
Definition: The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court.
Fifth Amendment
Miranda warnings
Entrapments may be overturned

21. Defendants’ Rights The Right to Counsel Gideon v. Wainwright
The state must provide lawyers in most criminal cases.
Gideon v. Wainwright
Sixth Amendment
Trial by Jury
Plea bargaining: An actual bargain between the prosecution and defense. Most cases settled this way. Some states are passing mandatory sentences .
Juries generally consist of 12 people, but unanimity is not always needed to convict.

22. Defendants’ Rights Cruel and Unusual Punishment
The Eighth Amendment forbids cruel and unusual punishment.
The Death Penalty
Varies from state to state
Cannot be mandatory
Gregg v. Georgia Death Penalty OK

23. The Right to Privacy Is There a Right to Privacy?
Definition: The right to a private personal live free from the intrusion of government.
Grizwold v. Connecticut (birth control)
Not explicitly stated in the Constitution
Implied by the Fourth Amendment
Very debatable…
Roe V. Wade

24. The Right to Privacy Controversy over Abortion
Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)
Protections of those seeking an abortion
Rights of protesters
When should abortions be legal?
Figure 4.1

25. Understanding Civil Liberties
Civil Liberties and Democracy
People need the right to express themselves.
Courts continue to define the limits of civil liberties.
Civil Liberties and the Scope of Government
Must decide the line between freedom & order
Limits the scope of government