1. Chapter Five
Civil Liberties

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3. Chapter Objectives
Discuss the relationship of the Bill of Rights to the concept of majority rule, and give examples of tension between majority rule and minority rights.
Explain how the civil liberties may at times be a matter of majoritarian politics and offer several examples.
Explain how the structure of the federal system affects the application of the Bill of Rights.
Describe how the Supreme Court has used the Fourteenth Amendment to expand coverage in the federal system. Discuss changing conceptions of the due process clause of the Fourteenth Amendment.
List the categories under which the Supreme Court may classify “speech.” Explain the distinction between “protected” and “unprotected” speech and name the various forms of expression that are not protected under the First Amendment. Describe the test used by the Court to decide the circumstances under which freedom of expression may be qualified.
State what the Supreme Court decided in Miranda v. Arizona, and explain why that case illustrates how the Court operates in most such due process cases.
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4. The Politics of Civil Liberties
Civil liberties: protections the Constitution provides against the abuse of government power
The Framers believed that the Constitution limited government
State ratifying constitutions demanded the addition of the Bill of Rights
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5. Culture and Civil Liberties
The Constitution and Bill of Rights contain a list of competing rights and duties
War has been the crisis that has most often restricted the liberty of some minority group
Conflicts about the meaning of some constitutionally protected freedoms surround the immigration of “new” ethnic, cultural, and/or religious groups
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6. Figure 5.1: Annual immigration, 1840-1996
Insert figure 5.1 (formerly 18.1 in 9e)
Statistical Abstract of the United States, 1998, 10.
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7. Libel Libel: a written false statement defaming another
Slander: a defamatory oral statement
Public figures must also show the words were written with “actual malice”—with reckless disregard for the truth or with knowledge that the words were false
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8. Obscenity
1973 definition: judged by “the average person, applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value”
Balancing competing claims remains a problem: freedom v. decency
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9. Symbolic Speech
Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message (example: burning a draft card)
However, statutes cannot make certain types of symbolic speech illegal: e.g., flag burning is protected speech
"Bong Hits For Jesus”
Citizens United and Stephen Colbert
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10. The Free Exercise Clause
Insures that no law may impose particular burdens on religious institutions
But there are no religious exemptions from laws binding all other citizens, even if that law oppresses your religious beliefs
Some conflicts between religious freedom and public policy continue to be difficult to settle.
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11. The Establishment Clause
Government involvement in religious activities is constitutional if it meets the following tests:
Secular purpose
Primary effect neither advances nor inhibits religion
No excessive government entanglement with religion
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12. The Fourteenth Amendment (1868)
Due Process Clause: “no state shall deprive any person of life, liberty or property without due process of law”
Mapp v. Ohio (1961). Gideon v. Wainwright (1963), Miranda v. Arizona (1966)
Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws”
Brown v. Board of Education (1954), Baker v. Carr (1962), Regents of the University of California v. Bakke (1978)
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13. Theme A: First Amendment Rights
Supreme Court Cases
1897: no state can take private property without just compensation
1925 (Gitlow): federal guarantees of free speech and free press also apply to states
1937 (Palko v. Connecticut): certain rights must apply to the states because they are essential to “ordered liberty” and they are “principles of justice”
These cases begin the process of “selective incorporation”
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14. Discussion Questions for Theme A
Another area of speech not given automatic constitutional protection is “fighting words”: words that would provoke a reasonable person to fight. Should fighting words be protected as a form of speech? What if the words are true? Should the First Amendment permit the punishment of truth?
What is the Supreme Court’s current definition of obscenity? Is this definition clear? Could it guide a publisher who wished to publish a certain book but who wondered whether it was obscene?
Should the definition of obscenity be broadened? Several studies have found that those who commit sexual violence are likely to be consumers of pornography and this has caused a number of lawyers to argue that the protection of pornography is a violation of women’s civil rights. What is your thinking on the connections between obscenity, pornography, and sexual violence? Is this issue properly understood as a matter of the viewer’s civil liberties or the victim’s civil rights? What is the reasoning that supports your conclusion?
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15. 4. What regulations should be imposed on the Internet. In Reno v
4. What regulations should be imposed on the Internet? In Reno v. American Civil Liberties Union (117 S.Ct [1997]), the Supreme Court ruled that the Communications Decency Act of 1996 (CDA) was insufficiently precise in its restrictions. The CDA had prohibited the “knowing transmission of obscene or indecent messages to any recipient under 18 years of age” and the “knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age.” The Court ruled that the CDA thereby “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” In reaching this conclusion, the Court commented on the technological resources available to regulate Internet communications and the extent of the Internet audience. For example, the Court noted, a chat room might have hundreds of individuals who were participants of which two were minors, with the result that all communications would be subject to the CDA prohibitions. As another example, the Court observed that parents transmitting birth control information by to their own child could violate someone’s standard of decency, even though their family and community would consider the communication entirely appropriate. Given these considerations of audience and technology, is any regulation of Internet communication constitutional?
5. The free exercise clause protects religious behavior. But what is a valid religion? How can courts distinguish fraudulent religious claims from legitimate ones?
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16. Second Amendment Cases
District of Columbia v. Heller (2008)
Second Amendment allows guns for personal use
5-4 decision: this law too restrictive
Gun shows are loophole
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17. Right to Privacy “Privacy” doesn’t appear in Constitution
Griswold v. Connecticut (1965)
“Penumbras”: unstated liberties implied by stated rights
Roe v. Wade (1973)
Webster v. Reproductive Health Services (1989)
Planned Parenthood v. Casey (1992)
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18. Due Process & Property Rights
5th and 14th Amendments
“Procedural Due Process:” right to a fair hearing or trial
“Substantive Due Process:” Must be a fundamentally fair process
Gov’t has right to take property but give compensation (Kelo v. New London, CT, 2005)
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19. Fourth Amendment Freedom from unreasonable search and seizure
Exclusionary rule: evidence gathered in violation of the Constitution cannot be used in a trial
Stems from the Fourth Amendment (freedom from unreasonable searches and seizures) and the Fifth Amendment (protection against self incrimination)
Mapp v. Ohio (1961): Supreme Court began to use the exclusionary rule to enforce a variety of constitutional guarantees
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20. Search and Seizure
With a properly obtained search warrant: an order from a judge authorizing the search of a place and describing what is to be searched and seized; judge can issue only if there is probable cause
What can the police search, incident to a lawful arrest?
The individual being arrested
Things in plain view
Things or places under the immediate control of the individual
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21. 5th Amendment: Confessions and Self Incrimination
Miranda v. Arizona (1966): confessions are presumed to be involuntary unless the suspect is fully informed of his or her rights
Courts began allowing some exceptions to the rule
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22. 8th Amendment Forbids “cruel and unusual punishment”
Death penalty: Furman v. Georgia (1972)
Penalty must be carried out in a fair and consistent way
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23. Terrorism and Civil Liberties
U.S. Patriot Act meant to increase federal government’s powers to combat terrorism
An executive order then proclaimed a national emergency; non-citizens believed to be terrorists, or to have harbored a terrorist, will be tried by a military court
Many controversial provisions of the Patriot Act would automatically expire in 2005, but Congress has upheld them
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