1. 1 Civil Liberties and Public Policy Chapter 4

2. What is the difference between a civil liberty and a civil right? (chapter 4 vs chapter 5) 2

3. 3 The Bill of Rights– Then and Now Civil Liberties – Definition: The legal constitutional protections against the government. The Bill of Rights and the States – BoR: First 10 amendments in the Constitution – Written to restrict the national government. – Today most are “incorporated” into state and local laws.

4. Barron v. Baltimore 4

5. John Barron, who co-owned a profitable wharf in the Baltimore harbor, sued the mayor of Baltimore for damages, claiming that when the city had diverted the flow of streams while engaging in street construction, it had created mounds of sand and earth near his wharf making the water too shallow for most vessels. The trial court awarded Barron damages of $4,500, but the appellate court reversed the ruling.Baltimore 5

6. The Supreme Court decided that the Bill of Rights, specifically the Fifth Amendment's guarantee that government takings of private property for public use require just compensation, are restrictions on the federal government alone. Writing for a unanimous court, Chief Justice John Marshall held that the first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Barron v. Baltimore, 32 U.S. 243, 250.Fifth Amendment'sJohn Marshall 6

7. Initially states could pass laws violating the Bill of Rights This was upheld by Barron v. Baltimore- the Bill of Rights restrained only the national government, not states and cities. 7

8. Gitlow v. New York In the years following the Red Scare of 1919-20, a variety of leftists, were convicted for violating the Espionage Act of 1917 and Sedition Act of 1918 on the basis of their writings or statements. Benjamin Gitlow, a member of the Socialist Party of America who had served in the New York State Assembly, was charged with criminal anarchy under New York's Criminal Anarchy Law of 1902 for publishing in July 1919 a document called "Left Wing Manifesto" in The Revolutionary Age, a newspaper for which he served as business manager. His trial lasted from January 22 to February 5, 1920. His defense contended that the Manifesto represented historical analysis rather than advocacy. He was convicted on February 11 and sentenced to 5 to 10 years in prison. He served more than two years at Sing Sing prison before his motion to appeal was granted and he was released on bail.Red ScareEspionage Act of 1917Sedition Act of 1918Benjamin GitlowSocialist Party of AmericaNew York State Assemblycriminal anarchyLeft Wing ManifestoSing 8

9. State courts of appeal upheld his conviction. [1] New York's Criminal Anarchy Law was passed in 1902 following the assassination of President William McKinley by an anarchist in Buffalo, New York, in September 1901. [2] [1]William McKinley [2] Gitlow was the first major First Amendment case that the American Civil Liberties Union argued before the Supreme Court. [3]First Amendment caseAmerican Civil Liberties Union [3] The Court had to consider whether it could review a challenge to a state law on the basis that it violated the federal constitution. If it determined that such a challenge lay within the scope of its authority, then it had to review to application of the law to the case at hand, the specific violation of the statue. It upheld Gitlow's conviction 7-2, with Brandeis and Holmes dissenting. [4] [4] 9

10. Importance of Ruling The Supreme Court previously held, in Barron v. Baltimore, 32 U.S. 243 (1833), that the Constitution's Bill of Rights applied only to the federal government, that states were free to enforce statutes that restricted the rights enumerated in the Bill of Rights, and that the federal courts could not interfere with the enforcement of such statutes. Gitlow v. New York partly reversed that precedent and began a trend toward its nearly complete reversal. The Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states.Barron v. BaltimoreBill of Rightsfederal governmentprecedent 10

11. Most are incorporated….what does that mean? The legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment Now known as the incorporation doctrine 11

12. Which ones are not incorporated? 2 nd, 3 rd, 7 th, part of 5 th (grand jury requirement), part of 8 th (prohibition of excessive fines and bail) have not been applied to states 12

13. 13 The Bill of Rights—Then and Now Nationalizing the BoR

14. 1 st amendment Freedom of Speech, Religion, Press, Petition, Assembly 14

15. 15 Freedom of Religion The Establishment Clause – “Congress shall make no law respecting the establishment of religion.” (some countries have – State sponsored religion) – Can’t endorse any one religion The Free Exercise Clause – A 1st Amendment provision – Prohibits government from interfering with the practice of religion – Some religious practices may conflict with other rights, and then be denied or punished

16. Freedom of speech Written speech, verbal speech symbolic speech Is not unlimited! Can’t yell FIRE 16

17. 17 Freedom of Expression Symbolic Speech – Definition: Nonverbal communication, such as burning a flag or wearing an armband. – Generally protected along with verbal speech. – Texas v. Johnson (1989): Struck dow a law banning burning of the American flag on the grounds that such action was symbolic speech protected by the 1st Amendment. Symbolic Speech – Definition: Nonverbal communication, such as burning a flag or wearing an armband. – Generally protected along with verbal speech. – Texas v. Johnson (1989): Struck dow a law banning burning of the American flag on the grounds that such action was symbolic speech protected by the 1st Amendment.

18. 18 Freedom of Expression Commercial Speech – Definition: Communication in the form of advertising. – Generally the most restricted and regulated form of speech (FTC). Regulation of the Public Airwaves – Broadcast stations must follow FCC rules. – Cable / satellite has blurred the lines.

19. 19 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

20. 20 Freedom of Expression Free Speech and Public Order – Limited if it presents a “clear and present danger” (Schenck v. US) – Permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to imminent lawless action – Limited if on private property, like a shopping center

21. 21 Freedom of Expression Prior Restraint – Definition: A government preventing material from being published. Censorship. – May be permissible during wartime. – May be punished after something is published.

22. 22 Freedom of Expression Free Press and Fair Trials – The public has a right to know what happens. – The press’ own information may not be protected. – Shield laws

23. 23 Freedom of Expression Obscenity – No clear definition on what constitutes obscenity. – Local areas make their own decisions on obscenity

24. 24 Freedom of Expression Freedom of Assembly – Right to Assemble Generally permissible, but must meet reasonable local standards. Balance between freedom to assemble and order in society. – Right to Associate Freedom to join groups / associations without government interference.

25. 2 nd Amendment- Right to Bear Arms 3 rd Amendment- no quartering of soldiers 25

26. 26 Defendants’ Rights Interpreting Defendants’ Rights – Criminal Justice personnel are limited by the Bill of Rights. – Failure to follow the rules usually invalidates a conviction. – Courts continually rule on what is constitutional and what is not.

27. 27 Defendant’s Rights

28. 4 th amendment No unreasonable search and seizures No warrants without probable cause 28

29. 29 Defendants’ Rights Searches and Seizures – Probable Cause: The situation occurring when the police have reason to believe that a person should be arrested. – Unreasonable searches and seizures: Evidence is obtained in a haphazard or random manner. – Exclusionary Rule: The rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained.

30. 5 th amendment Can’t be held for a capital crime unless indicted by a grand jury (except in times of war) No double jeopardy Don’t have to testify against self Can’t be deprived of life, liberty, property without due process of law Eminent domain 30

31. 31 Defendants’ Rights Self-Incrimination – Definition: The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. – Fifth Amendment – Miranda warnings – Entrapments may be overturned

32. 6 th amendment Speedy and public trial in criminal prosecutions by impartial jury Informed of accusation Right to confront accuser right to laywer 32

33. 33 Defendants’ Rights The Right to Counsel – The state must provide lawyers in most criminal cases (Gideon v. Wainwright - 1963) – Sixth Amendment Trials – Plea bargaining: An actual bargain between the prosecution and defense. – Juries generally consist of 12 people, but unanimity is not always needed to convict.

34. 7 th amendment Suits involving over $20.00 right to trial by jury 34

35. 8 th amendment No excessive bail No cruel and unusual punishments 35

36. 36 Defendants’ Rights Cruel and Unusual Punishment – The Eighth Amendment forbids cruel and unusual punishment. – The Death Penalty Varies from state to state Cannot be mandatory Gregg v. Georgia (1976) & McCleskey v. Kemp (1987): Upheld constitutionality of death penalty

37. 9 th amendment- people have certain rights not listed in Constitution 10 th - powers reserved to States 37

38. 38 The Right to Privacy Is There a Right to Privacy? – Definition: The right to a private personal live free from the intrusion of government. – Not explicitly stated in the Constitution – Implied by the Fourth Amendment – Very debatable

39. 39 The Right to Privacy 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?

40. 40 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 – Civil liberties limit the scope of government