Topic 6 civil liberties and civil rights

Free Speech in a Democracy The First Amendment protects people’s freedom of religion, speech, press, assembly, and petition. The First Amendment’s protection of speech and expression lies at the heart of a democratic society. Pure speech refers to verbal expression. Symbolic speech is behavior that expresses an idea.

Content Restrictions on Speech Free speech is limited in cases where public safety is concerned. The government cannot restrict speech based on content but specific categories of content can be punished. Obscenity, defamation, and “fighting words” can be punished. Some forms of commercial or seditious speech are not protected by the First Amendment.

Time, Place, and Manner Regulations The government may make reasonable regulations governing the time, place, and manner of speech. Regulations over when, where, and how expression is allowed must be viewpoint neutral and evenly enforced. Places in which the rules about free speech are different include prisons, schools, and the military.

Freedom of the Press Freedom of the press means that government censorship is prohibited by the First Amendment. Prior restraint is generally presumed unconstitutional by U.S. courts. Conflicts can occur between freedom of the press and the right to a fair trial. The growth of technology and mass communication have created new freedom of the press issues.

Freedoms of Petition and Assembly Freedoms of petition and assembly are essential rights in a democracy. The freedom of assembly must be balanced with maintaining order and safe communities. The government may regulate the time, place, and manner of assemblies if it does so fairly.

Religious Freedom “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The First Amendment prohibits the government from endorsing or punishing religious belief or practice. Supreme Court cases dealing with church and state relations have increased significantly in number since 1940.

The Free Exercise Clause If the right to free exercise of religion conflicts with other key interests, the First Amendment may not win. Actions based on religious beliefs may be restricted if they violate a key secular government interest.

The Context of the Fourteenth Amendment In Dred Scott, the Supreme Court ruled that African Americans were not U.S. citizens. The Fourteenth Amendment clearly established what constitutes citizenship. In 1924, the Indian Citizenship Act granted citizenship to Native Americans. In response to the Fourteenth Amendment, many states passed Jim Crow laws.

The Second Amendment Militias were crucial in winning the American Revolution. Efforts by the government to regulate firearms are very controversial. The Gun Control Act of 1968 prohibits certain people from buying or possessing guns. Many states have enacted their own legislation about guns. The Supreme Court has ruled that people have a constitutional right to keep guns in their homes.

Equal Protection Equal protection guarantees that laws apply equally to all people in similar situations. Courts use the rational basis test in most discrimination cases. Courts use strict scrutiny in laws that discriminate based on race, national origin, or citizenship status. The substantial relationship test is used in gender discrimination cases.

Right to Privacy The concept of “right to privacy” comes from the First, Third, Fourth, Fifth and Ninth Amendments. The right to privacy was basic to Supreme Court rulings on contraception and abortion. Advances in technology have created information gathering and privacy issues. War and terrorism create tension between citizens’ privacy rights and national security needs.

Protection from Unfair Discrimination The promise of equality is set out in the Declaration of Independence. Discrimination occurs when people are treated differently because of particular characteristics. Some laws discriminate in a way that is necessary and legal. Some laws discriminate in a way that is unconstitutional.

Combating Other Forms of Discrimination Federal discrimination laws now include discrimination based on age or disabilities. Many states and local governments have laws against discrimination based on sexual orientation. The federal Age Discrimination in Employment Act of 1967 protects people over age 40. A number of laws have been passed to prohibit discrimination based on disability.

Discrimination Based on Race The Thirteenth and Fifteenth Amendments did not end discrimination based on race. Jim Crow laws limited the opportunities and legal protections for African Americans. In Brown v. Board of Education the Supreme Court overturned the “separate but equal” doctrine. The Brown decision encouraged the civil rights movement. This led to the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Affirmative Action Affirmative action takes steps to remedy past and current discrimination. Affirmative action is controversial, and several states have banned or limited these programs. In 1978, the Supreme Court ruled that racial quotas were illegal. Court decisions on affirmative action have been mixed.

Rights of the Accused in a Democracy Even people charged with or convicted of a crime have constitutionally protected rights. Procedural due process protects the rights of the accused in criminal cases. Procedural due process requires notifying a person of a criminal accusation and allowing a response. Several safeguards protect the rights of a person throughout the criminal justice process.

Searches and Seizures The Fourth Amendment protects Americans from unreasonable government searches and seizures. Police may obtain a search warrant if they can demonstrate probable cause to suspect a crime. There are situations in which a warrant is not required to search a person or their belongings. Arrest is considered a seizure and requires a warrant or probable cause, but police may stop and question people. The exclusionary rule is not in the Fourth Amendment and is highly controversial.

Presumption of Innocence The judge or jury must regard the defendant as innocent until the government proves guilt. To prove guilt in a criminal trial, each element must be proven beyond a reasonable doubt. Guilt must be proven, not innocence. A defendant’s rights are protected by the Fifth and Sixth Amendments.

Purposes and Types of Punishment When a defendant is found guilty, a judge usually decides the sentence, or punishment. Purposes of sentences include retribution, deterrence, rehabilitation, restitution, and incapacitation. The ex post facto clause prevents punishment for actions that were not a crime when they occurred. Disproportionate incarceration challenges the basic assumption of the fairness of the law.

Other Rights at Trial The Sixth Amendment provides the right to a speedy and public trial in all criminal cases. Defendants often waive their right to a speedy trial. Defendants have the right to confront and cross- examine the witnesses against them. Defendants cannot be forced to testify against themselves in a criminal trial.

Interrogations The Fifth Amendment protects people from self- incrimination. The Sixth Amendment ensures people the right to an attorney. A confession cannot be used in court if it is not voluntary and trustworthy. The Miranda rights require police to inform suspects in custody of their rights before questioning.