Civil Liberties Wilson Ch. 5

The Politics of Civil Liberties Civil liberties: protections the Constitution (FOR ALL AMERICANS) 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

The Fourteenth Amendment (1868) Due Process Clause: “no state shall deprive any person of life, liberty or property without due process of law” Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws” SELECTIVE INCORPORATION

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”

Selective Incorporation It is the act of making the Bill of Rights applicable to the states (started since 1925) This restricts the state’s actions on citizens

First Amendment Rights Civil liberties cases almost always relates to the 1 st Amendment Freedom of expression and national security Press should be free of prior restraint – government censorship of press in advance of publication Press needed to accept consequences Treason, insurrection, forcible resistance to fed. laws, and encouraging disloyalty in armed services = illegal “Clear and Present Danger” test – danger to public Hate speech vs. Hate crimes

What kinds of speech is not protected by the 1 st Amendment?

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

Obscenity (Federal Comm. Commission) 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

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

Who/What is protected under the 1 st Amendment?

Defining a person… Corporations and organizations have similar rights to individuals Commercial speeches are restricted to serve public Younger people have fewer rights

How are religious rights protected under the 1 st Amendment?

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.

The Establishment Clause Government involvement in religious activities is constitutional if it meets the following tests (Lemon v. Kurtzman): Secular purpose Primary effect neither advances nor inhibits religion No excessive government entanglement with religion

What are the rights of the accused (people suspected of a crime)?

Rights of Defendants The Fourth Amendment protects against unreasonable searches and seizures and requires search warrants. The Fifth Amendment protects against self-incrimination. The Sixth Amendment says the accused has a right to counsel. The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.

Exclusionary Rule 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

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

Confessions and Self Incrimination Miranda case: confessions are presumed to be involuntary unless the suspect is fully informed of his or her rights Miranda rights apply once a suspect is in custody. Courts began allowing some exceptions to the rule

Right to Counsel The Sixth Amendment provides the accused with a right to have the assistance of counsel for his defense. Gideon v. Wainright (1963) says that the state must provide an attorney in felony cases if the accused cannot afford one. This was an unfunded mandate.

Death Penalty Furman v. Georgia (1972): the death penalty, was applied in a freakish and random fashion and was, in this particular case, unconstitutional. States rewrote their death penalty statutes to include aggravating and mitigating factors Gregg v. Georgia (1976): the death penalty is an expression of society’s outrage.

Terrorism and Civil Liberties 9/11 Attacks 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 automatically expire in 2005 (renewed in 2006 with changes)

Patriot Act Government may tap any telephone used by a suspect after court order Government may tap Internet connections with a court order Government may seize voic with court order Investigators can share information learned in grand jury proceedings Non-citizens may be held as security risk Federal government to track money across US borders Statute of limitations on terrorist crimes eliminated

Military court Noncitizens who harbor terrorists or is a terrorist will be tried in military courts: Tried before military officers 2/3s vote needed to find the person guilty Appeal for case is made to secretary of defense or president