Ch. 5 Civil Liberties

Background of Civil Liberties  Framers of the Constitution had 3 objectives in regard to civil liberties. Limit federal powers and assure the rights and liberties found in the various state constitutions. Constitution is meant to be a document proclaiming what the federal government could do, not want it could not do. Any mention of what the government could not do was meant to apply only to the federal government, not the state government

Background of Civil Liberties  Civil liberties have created major issues in our nation’s history for three reasons. The Bill of Rights contains competing rights. The rights of one group or individuals directly conflict with the rights of another. Ex.— Government officials have often been successful at taking action against the rights of political or religious dissidents. In times of crisis, politicians can convince the public that liberty needs to be restricted. Ex. (WWI) (Com. reg.) Immigrants who are not white and Western European have created cultural conflict. Conflicts exist about the meaning of constitutionally protected freedoms. EX--X-Mass decorations on government property, protested by Jews. Speaking of Spanish as a 2 nd type language.

First Amendment Rights  Battleground for Civil Liberties is the 1 st Amendment. 1. Freedom of Expression and national security. - Early thought, the press should be free of prior restrain even if Gov. if national security is threatened. WWI supreme court enforce “clear and present danger.” By 1940, the court was upholding convictions of communist preaching revolution (times of crisis). In 1969 speech calling for illegal acts is protected if those rights are not imminent. In 1977 an American Nazi march in Skokie, IL (area heavily populated by Jews) was held to be lawful, because hate speech is ok, but hate crimes that result from direct physical harm.

First Amendment Rights 2. Selective Incorporation- The 14 th Amendment (1868) created the possibility that some or all of the Bill of Rights might restrict state government actions based on the amendment’s “due-process clause.” The Supreme Court initially denied making the Bill of Rights applicable to the states. However in Gitlow v. New York (1925), the Court argued for the first time that fundamental personal rights are protected from infringement by the states because of the due-process clause. Most, though not all, of the Bill of Rights has been incorporated into states since 1925.

First Amendment Rights 3. Defining Speech- Some kinds of speech are not fully protected by the 1 st Amendment.  Libel- (a written statement defaming another with false information) and Slander (a defamatory oral statement) have drawn valuable jury rewards. The burden of proof for public figures tends to be higher because they must also show that the words were written with actual malice, with reckless disregard for the truth, and with knowledge that the words were false.

First Amendment Rights  Defining speech (cont.)  The FCC has not created an enduring and comprehensive definition of obscenity. A 1973 definition allowed contemporary community standards to determine what is obscene. unless the material in question had serious literacy, artistic, political, or scientific value.” The Supreme Court has typically upheld zoning ordinances for adult theaters and bookstores. Porno on TV, videos and Internet strains community standard rulings and regulation of these has been ruled unconstitutional.

First Amendment Rights  Symbolic speech, or expression through acts rather than words, is not protected when it involves an illegal act (burning a draft card) Symbolic speech is generally protected when no illegal act is involved. For instance, flag burning has been ruled protected speech.  Defining a person – Corporations and organizations have the same 1 st amendment rights as individuals. More restrictions can be placed on commercial speech than individual speech. Young people have fewer rights than an adult. The supreme Court has ruled that school administers have the right to censor a school newspaper.

First Amendment Rights  Church and State- Religious rights are protected by two different clauses: The free-exercise clause- The government cannot interfere with an individual’s practice of religion. The law cannot impose special burdens on religion. Some confict between religious freedom and public policy continues to be problematic, such as conscientious objectors to military service and refusal to work on Saturdays. The Establishment Clause- The Supreme Court has traditionally interpreted the establishment clause to mean no government involvement in religion, even if the involvement is not preferential. Yet government aid to parochial schools have been allowed. Aid is allowed if it neither inhibits or advances a religion.

Rights of the Accused  The Bill of Rights offers several things to protect the rights of the accused. Evidence that is improperly obtained is excluded from a trail (exclusionary rule 4 th amendment & (5 th Amendment), the right to proper searches and seizures (need warrant and probable cause), and the right to avoid self-incrimination (5 th Amend). The constitutional ban on confessions originally is intended to prevent torture or coercion. These rights were originally extended with the Miranda v. Arizona (1966) Miranda Rights must be stated by police

Terrorism and Civil Liberties  9/11 has raised important questions about how far the government can go in investigating and prosecuting individuals. After the Patriot Act was passed, the federal government obtained new powers to investigate terrorist. The government may tap any telephone used by a suspect after receiving a court order. The government may tap Internet connections with a court order. The government may seize voic with a court order. Investigators can share information learned in grand jury proceedings. Any non-citizen may be held as a security risk for seven days, or longer if certified if certified to be a security risk. The federal government may track money across U.S. borders and among banks. The statute of limitations on terrorist crimes is eliminated, with increasing penalties.

Terrorism and Civil Liberties Any terrorist or harbored terrorist can be tried by a military court. The military court will operate under the following provisions.  Accused are tried before a commission of military officers.  A 2/3s vote is needed to find the person guilty.  An appeal my be made only to the president or the secretary of defense.

Overview  The Patriot Act continues to raise questions regarding terrorism and civil liberties. The expansion of federal powers, some say is very dangerous, and is the invasion of non-terrorist’s property.  But government will argue it is to protect the nation.  The wiretaps, Internet taps, and voice mail taps, can all be conducted with out the person even knowing it is occurring. Is this a violation of our Civil Liberties and the due-process clause?