1. Chapter 4: Civil Liberties
American Democracy Now, 4/e

2. Civil Liberties in the American Legal System
Civil liberties are constitutionally established guarantees that protect citizens, opinions, and property against arbitrary government interference.
In contrast, civil rights reflect positive acts of government (in the form of constitutional provisions or statutes) for the purpose of protecting individuals against arbitrary or discriminatory actions.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

3. The Freedoms Protected in the American System
The Bill of Rights established the freedoms that are essential to individuals’ and groups’ free and effective participation in the larger community.
The meanings of these precious freedoms have shifted over the course of U.S. history, as presidents, legislators, judges, and ordinary citizens have changed their minds about how much freedom the people should have.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

4. The Historical Basis for American Civil Liberties: The Bill of Rights
The framers vividly remembered the censorship and suppression of speech that they had suffered under British rule.
The framers viewed liberty as a central principle guiding the creation of a new democratic republic.
The freedoms embodied in the Bill of Rights are broad principles rather than specific prohibitions against governmental action.
From the nation’s beginnings, the vagueness of the Bill of Rights led to serious disagreement about how to interpret its amendments.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

5. Copyright © 2015 McGraw-Hill Education. All rights reserved
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

6. Copyright © 2015 McGraw-Hill Education. All rights reserved
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

7. Civil Liberties Where Do You Stand?
Would the Constitution’s framers approve of regulations we face today in everyday life, such as laws requiring motorcyclists to wear helmets, requiring car riders to use seatbelts, restricting the consumption of alcohol and cigarettes, and banning cell phone use while driving?
a. Yes, they would approve.
b. No, they would not approve.
Source: “Zogby Poll: U.S. Constitution Wearing Well in Modern America,”
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

8. Incorporation of the Bill of Rights to Apply to the States
The framers intended the Bill of Rights to restrict the powers of only the national government.
Barron v. Baltimore (1833)
The Fourteenth Amendment (1868)
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

9. Incorporation of the Bill of Rights to Apply to the States
The Supreme Court rejected the doctrine of total incorporation.
Instead, the justices formulated a narrower approach, known as selective incorporation. This approach considered each protection individually, one case at a time, for possible incorporation into the Fourteenth Amendment and application to the states.
Palko v Connecticut (1937)
The justices found that fundamental rights were rooted in the traditions and conscience of the American people.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

10. Copyright © 2015 McGraw-Hill Education. All rights reserved
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

11. Freedoms in Practice: Controversy over the Second Amendment and the Right to Bear Arms
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In District of Columbia v. Heller (2008), the Supreme Court rules that there is a right to possess a firearm for lawful purposes, such as self-defense.
In McDonald v. Chicago (2010), the Supreme Court incorporates the Second Amendment and applies it to the states.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

12. When can a firearm legally be used? Stand Your Ground Castle Doctrine
Freedoms in Practice: Controversy over the Second Amendment and the Right to Bear Arms
When can a firearm legally be used?
Stand Your Ground
Castle Doctrine
Duty to Retreat
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

13. Copyright © 2015 McGraw-Hill Education. All rights reserved
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

14. Civil Liberties Where Do You Stand?
Does the Second Amendment guarantee to all U.S. citizens the right to own a gun? Or does it protect that right only in the case of state militias such as the National Guard?
a. Guarantees the right to all Americans
b. Guarantees the right exclusively to state militias
c. Do not know/no opinion
Source: “Public Believes Americans Have Right to Own Guns,”
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

15. Freedoms of Speech, Assembly, and the Press: First Amendment Freedoms Supporting Civil Discourse
Freedom of speech, assembly, petition, and the press is essential to an open society and to democratic rule.
Scholars have referred to this sharing of contrasting opinions as the marketplace of ideas.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

16. The First Amendment and Political Instability
The Tension Between Freedom and Order
Tension between the Bill of Rights, with its goal of protecting individual freedoms, and the government’s central goal of ensuring order.
Alien and Sedition Acts (1798)
Lincoln also suspended the writ of habeas corpus.
Bush Administration post 9/11
Obama Administration and Guantanamo
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

17. The First Amendment and Political Instability
The Historical Context for Free Speech Laws
The clear and present danger test: Schenck v. US (1919)
The bad tendency test: Gitlow v. New York (1925)
The clear and probable danger test: Dennis v US (1951)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

18. The First Amendment and Political Instability
The Standard Today: The Imminent Lawless Action Test
Under the imminent lawless action test speech is restricted only if it goes beyond mere advocacy, or words, to create a high likelihood of imminent disorder or lawlessness.
Brandenburg v. Ohio (1969)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

19. Freedom of Speech Pure Speech versus Symbolic Speech
Symbolic speech is nonverbal “speech” in the form of an action such as picketing, flag burning, or wearing an armband to signify a protest.
Unless words threaten imminent lawless action, the First Amendment will likely protect the speaker.
US v. O’Brien (1968)
Tinker v. Des Moines (1969)
Texas v. Johnson (1964)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

20. Freedom of Speech Not all Speech is Created Equal: Unprotected Speech
The courts give commercial speech, that is, advertising statements, limited protection under the First Amendment.
But note Citizens United v. Federal Elections Commission (2010)
Other forms of speech, including libel and slander, receive no protection under the First Amendment.
Libel (written statements) and slander (verbal statements) are false statements that harm the reputation of another person.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

21. Freedom of Speech
Obscenity, indecent or offensive speech or expression, is not protected under the First Amendment.
Miller v. California (1973) three-part test:
the average person applying contemporary standards finds that the work taken as a whole appeals to the prurient interest;
the work depicts or describes, in a patently offensive way, a form of sexual conduct specifically prohibited by an antiobscenity law;
the work taken as a whole lacks serious literary, artistic, political, or scientific value.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

22. Freedom of Speech Not all Speech is Created Equal: Unprotected Speech
The Court may also ban speech known as fighting words —speech that inflicts injury or results in public disorder.
Chaplinsky v. New Hampshire (1942)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

23. Freedom of Assembly and Redress of Grievances
The First Amendment says that people have the freedom to assemble peaceably and to seek redress of (compensation for) grievances against the government; yet, there are limits placed on assembly.
The Supreme Court has also allowed content-neutral time, place, and manner restrictions —regulations regarding when, where, or how expression may occur.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

24. Freedom of the Press
Prior restraint means censorship—the attempt to block the publication of material that is considered to be harmful.
Near v. Minnesota (1931)
New York Times v. U.S. (1971)
The Supreme Court allows more restrictions on broadcast media than on print media and the Internet.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

25. Freedoms of Religion, Privacy, and Criminal Due Process
The founders’ commitment to community building and citizens’ engagement lies at the heart of several constitutional amendments in the Bill of Rights.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

26. The First Amendment and the Freedom of Religion
The religion clauses of the First Amendment—the establishment clause and the free exercise clause—essentially do two things:
First, they bar the government from establishing or supporting any one religious sect over another.
Second, they ensure that individuals are not hindered in the exercise of their religion.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

27. The Establishment Clause
“Congress shall make no law respecting an establishment of religion…”
Separationism
Neutrality or the preferential treatment standard
Accommodationism
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

28. The Establishment Clause
Three-part Lemon Test:
Does the state program have a secular, as opposed to a religious, purpose?
Does it have as its principal effect the advancement of religion?
Does the program create an excessive entanglement between church and state?
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

29. Copyright © 2015 McGraw-Hill Education. All rights reserved
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

30. The Free Exercise Clause
The free exercise clause makes it illegal for the government to enact laws prohibiting the free practice of religion by individuals.
Free exercise claims require that courts balance the individual’s right to free practice of religion against the government’s need to adopt some policy or program.
The Court has distinguishes between religious beliefs, which government may not interfere with, and religious actions, which government is permitted to regulate.
Employment Division, Department of Human Resources v. Smith (1990)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

31. The Right to Privacy
The right to privacy, the right of an individual to be left alone and to make decisions freely, without the interference of others.
The Emergent Right to Privacy
Griswold v. Connecticut (1965)
The Right to Privacy Applied to Other Activities
Roe v. Wade (1973) for abortion
Lawrence v. Texas (2003) intimate sexual activity for adults
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

32. The Fourth, Fifth, Sixth, and Eighth Amendments: Ensuring Criminal Due Process
These four amendments together are known as the criminal due process rights because they establish the guidelines that the government must follow in investigating, bringing to trial, and punishing individuals who violate criminal law.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

33. The Fourth Amendment and the Protection Against Unreasonable Searches and Seizures
The Fourth Amendment bars police from conducting any unreasonable searches and seizures.
It requires they show probable cause that a crime has been committed before they can obtain a search warrant.
The exclusionary rule requires that evidence obtained illegally cannot be used in a trial.
“Reasonable” and “unreasonable” searches
Is there a reasonable expectation of privacy?
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

34. The Fifth and Sixth Amendments: The Right to a Fair Trial and the Right to Counsel
The Fifth Amendment bars double jeopardy and compelled self-incrimination.
The Sixth Amendment establishes the rights to a speedy and public trial, to a trial by a jury of one’s peers, to information about the charges against oneself, to the confrontation of witnesses testifying against oneself, and to legal counsel.
Miranda v. Arizona (1966)
Gideon v. Wainwright (1963)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

35. Copyright © 2015 McGraw-Hill Education. All rights reserved
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

36. The Eighth Amendment: Protection Against Cruel and Unusual Punishment
Americans have always disagreed about the death penalty.
Central to the public debate have been the questions of which crimes should be punished by death and how capital punishment should be carried out.
Furman v. Georgia (1972)
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

37. Civil Liberties Where Do You Stand?
Do you favor or oppose the death penalty for persons convicted of murder?
a. Favor the death penalty
b. Oppose the death penalty
c. Unsure/Don’t know
Source: “Capital Punishment’s Constant Constituency: An American Majority,”
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

38. Civil Liberties in Post-9/11 America
In the wake of September 11, the tension between liberty and security has become more acute as the federal, state, and local governments have taken certain actions that directly intrude on individual freedoms.
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

39. Perceived Intrusions on Free Speech and Assembly
Foreign Intelligence Surveillance Act (FISA) of 1978
Warrantless wiretapping post Sept 11, 2001
2008 FISA Amendment Act
American Civil Liberties Union (ACLU) criticisms
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

40. Perceived Intrusions on Criminal Due Process
USA PATRIOT Act
Protect America Act (2007)
Rights of detainees accused of conducting or supporting terrorist activities
The Detainee Treatment Act of 2005
Rendition, which involves the transfer of custody of suspected terrorists to other nations for imprisonment and interrogation
Drone use
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

41. Civil Liberties Where Do You Stand?
Which is more important in the United States today—national security or personal privacy?
a. Security is more important
b. Privacy is more important
c. Not sure
Source: “Capital Punishment’s Constant Constituency: An American Majority,”
Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.