Civil Liberties GoPo

Liberties in conflict? The Bill of Rights limits gov’t & “tyranny of the majority” popular rule The Bill of Rights limits gov’t & “tyranny of the majority” popular rule Majority Rule, minority rights Majority Rule, minority rights 1. Rights in conflict (interest group politics) 2. Passions inflamed entrepreneur politics 3. Americans’ differing culture attitudes (patriotism, personal freedom, diversity, social justice…)

Rights in Conflict: Civil Liberties: a set of principles that protect the freedoms of all, at all times Civil Liberties: a set of principles that protect the freedoms of all, at all times Constitution, Bill of Rights, 14 th Amendment Constitution, Bill of Rights, 14 th Amendment Rights & duties that sometimes conflict/compete Rights & duties that sometimes conflict/compete Free speech vs. hateful Free speech vs. hateful anti-______ speeches {Skokie, IL Nazi parade; 1977} Community sensitivity vs. Community sensitivity vs. personal self expression

Interpreting and Applying the First Amendment Freedom of Expression: Freedom of Expression: Congress cannot abridge the freedom of speech, press, assembly, and petition Freedom of Religion: Congress cannot establish a religion or abridge the freedom of practice * Establishment Clause * Free Exercise Clause

Speech and National Security U.S Sedition Act of 1798: imposed no prior restraints on publishers, however it made them liable to punishment after the fact U.S Sedition Act of 1798: imposed no prior restraints on publishers, however it made them liable to punishment after the fact Prior Restraint: Freedom from censorship, and rules telling a newspaper in advance what to publish - but must bear the consequences. {Near v. Minnesota} Prior Restraint: Freedom from censorship, and rules telling a newspaper in advance what to publish - but must bear the consequences. {Near v. Minnesota} : Congressional restrictions : Congressional restrictions on advocating “treason, insurrection, and forcible resistance” to federal law

How can Congress control Speech? Clear and present danger test: do words used present a “clear and present danger” that will cause certain events Congress has a right to prevent? {Schenck v. U.S.} Clear and present danger test: do words used present a “clear and present danger” that will cause certain events Congress has a right to prevent? {Schenck v. U.S.}

Speech NOT granted protection? Libel: written statement that Libel: written statement that defames the character of a person Slander – same for oral defamation Slander – same for oral defamation 1. Must show that statement is false 2. Must show that words were published with actual malice (intent to harm & reckless disregard for the truthfulness, or lack of it) 3. Public figures are open to ridicule (they sue for libel often; win rarely)

Obscenity: not protected by the Obscenity: not protected by the First Amendment (can be regulated by the state because it has no redeeming social value) {Miller v. CA} But what is obscene? S.C. says nudity & sex are not obscene * First Amendment protects anything that has political, literary, scientific, or artistic merit * Community standards can differ (includes visual or auditory communication) Zoning laws ok - rules governing business locations (not near church, school, park, residences…) Zoning laws ok - rules governing business locations (not near church, school, park, residences…) Internet Obscenity - hard to regulate; Internet Obscenity - hard to regulate; What “community” is being affected? What “community” is being affected? Who is in charge of the Internet? Who is in charge of the Internet?

False Advertising: Sending a message not the same as real speech False Advertising: Sending a message not the same as real speech Commercial vs. noncommercial speech: legislature CAN place restrictions on ads for cigarettes, liquor, and gambling… POM vs. Coco-Cola (Minute Maid) flavored juice (0.3% pom. juice, 0.2% blueberry juice)

Minors/Students - less freedom of expression than adults a. can NOT be punished for expressing personal views on campus, b. except when the expression impedes the educational mission of the school. 7-2 “Students do not shed their rights at the school- house gate” Morse v. Fredericks (2007) 5-4 (Dissent: “students do not shed their brains at the school-house gate”)

Church and State 1 st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Establishment Clause: “Wall of separation” between church and state “Wall of separation” between church and state No national religion & no promoting certain religion(s) No national religion & no promoting certain religion(s) “Lemon Test” decides when gov’t involvement is proper: “Lemon Test” decides when gov’t involvement is proper: 1. If it has a secular purpose, and 1. If it has a secular purpose, and 2. Its primary effect neither advances nor inhibits religion, and 2. Its primary effect neither advances nor inhibits religion, and 3. It does not foster a gov’t entanglement with religion 3. It does not foster a gov’t entanglement with religion

Freedom of Religion (cont’d) The Free Exercise Clause: People can exercise their religion freely, but still must follow laws. People can exercise their religion freely, but still must follow laws. (i.e. polygamy, vaccinations, smoking illegal plants, begging) (i.e. polygamy, vaccinations, smoking illegal plants, begging)

Privacy/Searches & Seizures (4 th ) Text of Amend. 4 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Search and Seizure: Search Warrant – a judge’s written authorization of a search, based on probable cause Exceptions: 1. In plain sight 2. If they lawfully arrest you, can search your things. 3. Good Faith Exception – May still use evidence from a well- intentioned search, even if warrant was wrongfully issued * Exclusionary Rule: evidence gathered unlawfully may NOT be used in a trial (Mapp v. Ohio)

Due Process - 5 th Amendment A) Right to jury trial for capital crimes… B) No double jeopardy… C) “nor shall be compelled in any criminal case to be a witness against himself”… D) “nor be deprived of life, liberty, or property, without due process of law;”… E) “nor shall private property be taken for public use, without just compensation.” * Due process = fair judicial process (accused, defense, fair trial…)