Civil Liberties and Public Policy—Unit 7--Chap 4

The Bill of Rights–Then and Now Civil Liberties Definition: Are those rights that belong to everyone: they are protections against government and guaranteed by the Constitution. The Bill of Rights and the States The Bill of Rights is the first 10 amendments. Written to restrict the national government. Now many are “incorporated” into state and local laws.

Civil Liberties have been expanded and regulated by Supreme Court cases Legislation

Barron v Baltimore (1833) Gitlow v New York (1925) Based on 14th – provided for the expansion of individual rights Led to incorporation doctrine: Shift in S.C. rulings to apply enumerated rights to states. Today most guarantees of the B of R apply to state and local governments.

Freedom of Religion---two protections The Establishment Clause No official U.S. religion No religion can be prevented “Wall of separation doctrine vs. accommodation doctrine Engel v. Vitale (1962) Lemon v. Kurtzman (1971) “Lemon Test

The Free Exercise Clause Can believe any religious belief Some religious practices may conflict with other rights, and then be denied or punished (Oregon v. Smith) (1990) Limits on the Free Exercise Clause Reynolds v United States (1879) ? Teaching Creationism???

The Defense of Free Speech Framers “fundamental natural right” First and Fourteenth Amendment protect incursions from federal and state government Protections of unpopular views

Regulating Speech Alien and Sedition Acts (1798) making it illegal to say anything “false” against govt. After assassination of President McKinley 1901 passed sedition laws. Espionage Act of 1917 Schenck Brandenburg v Ohio (1969) Imminent lawless action test: a refinement of clear and present danger test Snyder v. Phelps (2011) Westboro Baptist Church

Limits on Free Speech Libel and slander New York Times v. Sullivan (1964) Obscenity Roth v United States (1957) Miller v California (1973) Symbolic speech Tinker v Des Moines (1969) Arm bands Texas v. Johnson (1989) Flag burning

Freedom of Expression Prior Restraint Attempt to limit freedom of press by preventing material from being published. Censorship. Permissible during wartime. May be punished after something is published. Near v Minnesota (1931) New York Times Company v United States (1971) Hazelwood School District v Kuhlmeier (1988)

Freedom of Expression Free Speech and Public Order Limited if it presents a “clear and present danger” Limited if obscene, libelous or slanderous Limited if on private property, like a shopping center

Freedom of Expression Free Press and Fair Trials The trials are public business of the government. The public has a right to know what happens. The press’ own information may not be protected.

Freedom of Expression Obscenity Definition: There really isn’t one. But, Miller v. California stated: The whole work appeals “to a prurient interest in sex” “Patently offensive” sexual conduct Lacks “serious literary, artistic, political or scientific value” Local areas make their own decisions

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 Difficult to prove

Freedom of Expression Symbolic Speech Definition: Nonverbal communication, such as burning a flag or wearing an armband. Generally protected along with verbal speech.

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

Freedom of Expression Courts have generally ruled that Freedom of Assembly and Petition: applies to private and public places Dejonge v Oregon (1937) Courts have generally ruled that To protect public order, government may require groups to obtain a permit Certain public facilities may be restricted from demonstrations. Restrictions must be precisely worded and equally applied Does not allw groups to use Private property for its own uses.(buffer zones) Police may disperse demos to keep order or protect public

Property Rights S.C. has not defined the term due process, has generally accepted the concept of government acting in a fair manner according to established rules. Substantive due process: determining fairness or violation of constitutional protections. Procedural due process: How the law is carried out according to established rules and procedures Eminent domain: 5th Amend.

The Right to Privacy Is There a Right to Privacy? Definition: The right to a private personal live free from the intrusion of government. “ the right to be left alone” Justice Louis Brandieis Not explicitly stated in the Constitution Implied by the Fourth Amendment Very debatable…

The Right to Privacy A Time To Live and a Time To Die Who decides when it is time to die? Who should make the ultimate decision for people who can’t think for themselves? Infants / Children Elderly Mentally retarded What right does a person have to terminate their own life? Or seek help to do it?

The Right to Privacy Roe v. Wade (1973) Griswold v Connecticut (1965) 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

Rights of the Accused Rights in the Original Constitution The Privilege of Writ of Habeas Corpus No Bills of attainder No Ex post facto laws

Defendants’ Rights Searches and Seizures Exclusionary Rule: The rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained. Weeks v United States (1914) applied only to federal cases. Mapp v Ohio (1961) Incorporation of 4th Amendment

Defendants’ Rights The Right to Counsel 6th Amendment The state must provide lawyers in most criminal cases. Gideon v Wainwright (1963) Incorporation Trial by Jury Plea bargaining: An actual bargain between the prosecution and defense. Generally 12 people, but has to be unanimous to convict.

Defendants’ Rights Self-Incrimination 5th Amendment No person “ shall be compelled to be a witness against himself or herself in court. Miranda v Arizona (1966) Entrapments may be overturned

Defendants’ Rights Cruel and Unusual Punishment The Death Penalty Varies from state to state Cannot be mandatory Punishment fitting the crime Strong punishments are acceptable Punishments vary from state to state, even for the same crime, but are reasonable

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