Civil Liberties Chapter 5 The American System Civil Liberties Chapter 5

Civil Liberties The protections the Constitution provides against the abuse of government power The protection against excessive laws which infringe on your actions

Constitutional Foundations Framers’ believed: Constitution stated what the national government COULD do Constitution did NOT say what state governments could NOT do

Conflict of Rights Freedoms vs. Freedoms Freedoms vs. Order Sheppard v. Maxwell Right to a Fair Trial Freedom of Press New York Times Co. v US “Provide for the Common Defense” Freedoms vs. Order Kunz v New York Freedom of Speech Preservation of Public Order

Wartime Restrictions of Liberty Sedition Act of 1798 Can’t defame the president Fear of Anarchy (specifically – Jefferson) Espionage and Sedition Acts of 1917 – 1919 Must protect the military WWI fears of German immigrants

Wartime Restrictions of Liberty Smith Act Protect the government from revolutionary urgings Communist Party members had to register with the government Internal Security Act Fear of communist propaganda Communist Control Act Declared communists to be part of an anti- American conspiracy

Wartime Restrictions of Liberty Legacy Most restrictions are found to be CONSTITUTIONAL! As the crisis abates, the laws become “unimportant” Yet, they remain on the books!

Cultural Conflicts and Liberty Early America Very “Anglo” Very Christian (PROTESTANT) Immigration brings in “New Cultures” Religion Jews Catholics Heritage Groups Respect culture Bilingual education Emerging thoughts Boy Scouts and gay scout masters

Cultural Conflicts and Liberty

Applying the Bill or Rights to the States Original thought: Constitution only applied to the NATIONAL GOVERNMENT Changed to include the idea that it applied to the STATE GOVERNMENTS as well Post-Civil War Era 14th Amendment Equal Protection Due Process

Applying the Bill or Rights to the States Principle of SELECTIVE INCORPORATION Supreme Court Almost all of the Bill of Rights has been incorporated

Liberty and the First Amendment Freedom of Expression Press should be free of PRIOR RESTRAINT Laws cannot censor content ahead of time Papers/media are liable if their expression is deemed Improper Mischievous Illegal Schenk vs. US “CLEAR AND PRESENT DANGER”

Liberty and the First Amendment Expression NOT automatically granted Constitutional protection 1. Libel – PUBLISHED statements which defame TESTS Truly false Caused actual damage Made with malice Public Figures Is it satire? Will people really believe it?

Liberty and the First Amendment Expression NOT automatically granted Constitutional protection 2. Obscenity Has no redeeming social value Calculated to appeal to one’s sexual nature Not for political or literary interests TESTS The AVERAGE person using CONTEMPORTY COMMUNITY standards would consider it obscene Appeals to “prurient” interests Depicts sexual conduct in a patently offensive way (as defined in law) Lacks serious literary, artistic, political or scientific value Can be zoned Not limiting the expression Limiting the land use

Liberty and the First Amendment Expression NOT automatically granted Constitutional protection 3. Symbolic Speech An ACT that conveys a POLITICAL MESSAGE Some is protected, some isn’t – good luck! You cannot Do an act which threatens another person’s life Do an act which threatens another person’s property Directly disrupts needed social institutions You can use symbols of the US government (flag)

Liberty and the First Amendment Expression NOT automatically granted Constitutional protection 4. False Advertising

Liberty and the First Amendment Who has protected rights? Who is a person? Citizens Children Interest Groups Labor Unions Corporations More limits allowed on commercial entities Regulations Narrowly directed at a specific product Serve a substantial public interest

Liberty and the First Amendment The Church and State The Free Exercise Clause The National Government cannot pass any law which restricts the exercise of religious practice Selectively Incorporated “Do or say whatever, just don’t cause serious harm to others” Parameters Laws cannot be tailored to a religious practice that is allowed in other parts of the culture Religions can’t break laws that applies to other parts of culture.

Liberty and the First Amendment The Church and State The Establishment Clause The “Wall of Separation” NO government connections to religion at all – NONE, ZERO, NADDA, ZIP, ZILCH Does not appear in the Constitution! Involvement MAY occur if The action has a secular purpose Not allied with or against any particular religion Is religiously “neutral” The PRIMARY effect neither advances nor inhibits a religion Does not foster excessive government entanglements

Crime and Due Process Difficult to Unreasonable Search Define in theory Define how to put into practice Unreasonable Search Inclusionary Rule Allow all evidence for guilt even if gathered improperly Punish officers after the case Used in most other democratic nations

Liberty and Crime Exclusionary Rule – 4th Amendment Unreasonable Search and Seizure Improperly gathered evidence cannot be used to prosecute Selectively Incorporated in Mapp v. Ohio TESTS for Legal Searches A detailed warrant is produced Place What is being sought What is probably cause Post-arrest Your person Things in plain view Things under your immediate control

Liberty and Crime Exclusionary Rule Protection from self-incrimination – 5th Amendment Protected from giving statements because of Torture Lack of awareness Selectively Incorporated in Malloy vs. Hogan Other SCOTUS cases Miranda v. Arizona – officials must make SURE the suspect knows his or her rights Gideon v. Wainwright – right to an attorney

Liberty and Crime Exclusionary Rule Protection from self-incrimination – 5th Amendment GOOD-FAITH EXCEPTION Evidence is good if The police believed that the warrant was valid There are overriding public safety considerations The evidence would have been “inevitably found”

Liberty and Terrorism The Patriot Act Telephone tapping of multiple phones Internet tapping with court order Voice mail seizure with court order Grand jury information sharing Non-citizens held if thought to be a security risk Money Tracking Statute of limitations extended for terrorist acts

Patriot Sunsets Extension Act Liberty and Terrorism Patriot Sunsets Extension Act President Obama extends parts of the PATRIOT Act Renews three central federal powers Roving Wiretaps Library Provisions Powers Lone Wolf Provisions Requires the government get an order from a federal court – May be a SECRET court order