American Government and Politics Today

American Government and Politics Today
Chapter Four: Civil Liberties

Copyright © 2015 Cengage Learning
Learning Outcomes LO 1 Describe the Bill of Rights and how it came to be applied to state governments as well as the national government. LO 2 Explain how the First Amendment’s establishment clause and free exercise clause guarantee our freedom of religion. LO 3 Specify the limited circumstances, including obscenity and slander, in which the national and state governments may override the principles of free speech and freedom of the press. LO 4 Provide the constitutional basis of the right to privacy, and explain how the principle has been applied to the abortion and right-to-die controversies. LO 5 Identify the constitutional rights of those who are accused of a crime, describe the Miranda and exclusionary rules, and cite examples of how recent security concerns have affected our civil liberties. Copyright © 2015 Cengage Learning

The Bill of Rights Extending the Bill of Rights to State Governments States weren’t limited at first Incorporation of the Fourteenth Amendment At the time the Bill of Rights was ratified, there was little concern that state governments would curb civil liberties – states had their own bills of rights Only feared tyranny of national government Incorporation theory is the view that most of the protections of the Bill of Rights apply to state governments through the Fourteenth Amendment’s due process clause Copyright © 2015 Cengage Learning

Freedom of Religion The Separation of Church and State—The Establishment Clause Aid to Church-Related Schools Lemon v. Kurtzman School Vouchers Do not violate establishment clause The establishment clause is the part of the First Amendment prohibiting the establishment of a church officially supported by the national government Lemon v. Kurtzman: the Court ruled that direct state aid could not be used to subsidize religious instruction 3-part Lemon test is now applied to all laws that raise issues under the establishment clause 1)the aid has to be secular (nonreligious) in aim 2) cannot have the primary effect of advancing or inhibiting religion 3) the government must avoid “an excessive government entanglement with religion” 3-party test has been interpreted differently over the years Copyright © 2015 Cengage Learning

Freedom of Religion The Separation of Church and StateThe Establishment Clause The issue of school prayer—Engel v. Vitale The debate over school prayer continues Forbidding the teaching of evolution Religious displays on public property Engel v. Vitale (1962) – The State Board of Regents of New York suggested that a prayer be spoken aloud in public schools each morning. Parents challenged the action and lost at trial. But on appeal, the Supreme Court ruled the regents’ action as unconstitutional Laws requiring the teaching of intelligent design theory as an alternative explanation of the origin of life were also struck down by the Court for lack of depth In general, the Court has allowed religious displays, such as nativity scenes, if it is party of a broader display that contains secular objects such as lights, Christmas trees, Santa Claus figures, and reindeer Copyright © 2015 Cengage Learning

These high school students pray around the school flagpole before classes in Lufkin, Texas. Do their actions violate the separation of church and state? (AP Photo/Joel Andrews/The Lufkin Daily News) Copyright © 2015 Cengage Learning

Freedom of Religion The Free Exercise Clause Government acts when religious practice works against public policy or welfare Churches are tax-exempt Free exercise clause: the provision of the First Amendment guaranteeing the free exercise of religion Does this mean that no type of religious practice can be prohibited or restricted by government? Only restricted when they work against public policy and the public welfare Example: government can require vaccinations Churches and other religious tax-exempt organizations cannot endorse candidates for office or contribute to their campaigns But, they are allowed to take positions and make contributions to ballot proposals and referendum campaigns Copyright © 2015 Cengage Learning

Freedom of Expression No Prior Restraint Censorship New York Times v. United States (1971) Pentagon Papers Public right to information; press right to inform Prior restraint: restraining an activity before that activity has occurred When dealing with expression, prior restraint=censorship Copyright © 2015 Cengage Learning

Freedom of Expression The Protection of Symbolic Speech Tinker v. Des Moines School District (1969) Flag Burning Cross Burning Symbolic speech: expression made through articles of clothing, gestures, movements, and other forms of nonverbal communication State laws prohibiting flag burning and Flag Protection Act of 1989 = Court says unconstitutional by freedom of expression Cross burning used to be a sign of impending violence, so Supreme Court gives states right to ban threats of violence. But there must be proven intimidation other than the cross burning themselves Copyright © 2015 Cengage Learning

The national Christmas tree and the national Hanukkah menorah share space on the Ellipse in Washington, D.C. Why is this joint display constitutional? (Tim Sloan/AFP/Getty Images) Copyright © 2015 Cengage Learning

Freedom of Expression Protection of Commercial Speech Not protected until 1970s Photo: (Apic/Getty Images) Commercial speech: advertising statements This ad for cigarettes appeared in Despite protection of commercial speech, it would be impossible for such an ad to appear today. Why? Copyright © 2015 Cengage Learning

Freedom of Expression Attempts to Ban Subversive or Advocacy Speech Clear and Present Danger Test The Bad Tendency Rule Gitlow v. New York (1925) The Imminent Lawless Action Test Brandenburg v. Ohio (1969) 1919 clear and present danger test – when a person’s remarks present a clear and present danger to the peace or public order, they can be curtailed constitutionally. Bad tendency rule – placed greater restrictions on speech than clear and present danger test – speech may be curtailed if there is a possibility that such expression might lead to some “evil” Gitlow v. New York – Court justified that expression can be punished legally if it would bring about evils that the state had a right to prevent Imminent Lawless Action Test – CURRENT standard for evaluating advocacy speech. Advocacy speech can be forbidden only when it is “directed to inciting imminent lawless actions.” Broadened protection Copyright © 2015 Cengage Learning

Freedom of Expression Unprotected Speech: Obscenity Definitional Problems Material is obscene if violates four-part test Miller v. California (1973) Protecting Children States can outlaw possession of child pornography in the home Pornography on the Internet People have different definitions of what is a prurient interest Miller case has been applied inconsistently Communications Decency Act (1996) – illegal to make available to minors online any “obscene or indecent” message that “depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Found unconstitutional in 1997 Children’s Internet Protection Act (2000) – requires public schools and libraries to install filtering software to prevent children from viewing Web sites with “adult” content. Impossible to restrict due to free wi-fi and smartphones Copyright © 2015 Cengage Learning

Freedom of Expression Unprotected Speech: Slander Individuals are protected from defamation of character Slander: public uttering of false statement that harms the reputation of another Should the Federal Communications Copyright © 2015 Cengage Learning

Freedom of Expression Student Speech Rights of public school students College student activity fees University of Wisconsin case Campus speech and behavior codes In 2000, University of Wisconsin students argued before the Supreme Court that their mandatory student activity fees helped fund liberal causes they disagreed with, and thus violated their First Amendment rights of free speech, free association, and free exercise of religion. Supreme Court ruled in favor of the university, mission is well served if students have the means to engage in dynamic discussions in their extracurricular life. Open dialogue Generally, courts have held that campus speech codes are unconstitutional, but such codes continue to exist Copyright © 2015 Cengage Learning

A librarian at a middle school in Durham, North Carolina, holds up The Lorax by Dr. Suess. Some people demanded that the book be removed from school libraries because it allegedly portrays the foresting industry in a negative way. Why do some believe that it is appropriate to limit what public school students can read? (AP Photo/The Herald-Sun, Bernard Thomas) Copyright © 2015 Cengage Learning

Freedom of Expression Freedom of the Press Defamation in writing – libel New York Times Co. v. Sullivan (1964) A free press versus a fair trial: Gag orders Libel: defamation in writing or in pictures, signs, films, or any other communication Actual malice: either knowledge of its falsity or a reckless disregard for the truth Gag orders: orders that restrict the publication of news about a trial in progress or even a pretrial hearing to protect the accused’s right to a fair trial Copyright © 2015 Cengage Learning

Freedom of Expression Freedom of the Press Films, Radio, and TV 1952 – films covered by first amendment Immediate protection of Internet FCC regulates TV and radio because of pervasiveness in homes Rush Limbaugh is perhaps one of the most listened to talk radio hosts in America. At times, he has been considered the spokesperson for American conservatives. Should the Federal Communications Commission be able to regulate what he says? (George Gojkovich/Getty Images) The Federal Communications Commission (FCC) has the authority to restrict broadcasters more than the Internet Should the Federal Communications Commission be able to regulate what Rush Limbaugh and others say? (George Gojkovich/Getty Images) Rush Limbaugh Copyright © 2015 Cengage Learning

Civil Liberties and Political Protest
Taking a closer look: Why is political protest considered a guaranteed liberty in the United States? What did the protestors here hope to accomplish? Were they successful? When does protest become unlawful? Copyright © 2015 Cengage Learning

The Right to Privacy Griswold v. Connecticut (1965) Overthrew law banning use of contraceptives Privacy Rights and Abortion Roe v. Wade (1973) Outlawing abortion violates right to privacy The Controversy Continues “Partial-Birth” Abortion Justice William O. Douglas argued that the fact that the Constitution does not specifically talk about the right to privacy does not mean that this right is denied to the people The Court held that during the first trimester of pregnancy, abortion is between a woman and her physician and could not be limited except that they be performed by licensed physicians. During the second trimester, the state was allowed to specify the conditions under which an abortion could be performed. During the final trimester, the state could regulate or outlaw abortions except when they were necessary to preserve the health of the mother. A law signed by George Bush in 2003 and later upheld by the Supreme Court in 2007 was similar to the original Nebraska law. Thus, the Supreme Court effectively reversed its position on partial-birth abortions Copyright © 2015 Cengage Learning

The Right to Privacy Privacy Rights and the “Right to Die” Karen Ann Quinlan (1976) Cruzan v. Director, Missouri Department of Health (1990) What if there is no living will? Physician-assisted suicide Quinlan was a young woman in a coma for nearly a year and kept alive on a respirator. Her parents requested that the respirator be removed. The New Jersey Supreme Court ruled that the right to privacy included the right to refuse treatment, and that right can be exercised by a guardian or family member if the patient is unable to speak In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court stated that life-sustaining treatment can be removed at the request of a family member if there is “clear and convincing evidence” that the patient didn’t want such treatment. What if there is no living will? - Terri Shiavo was in a vegetative state for over a decade and her husband sought to have her feeding tube removed, based on oral statements that she would want that done. Her parents intervened but lost in court on the grounds that a husband is an appropriate guardian in marriage. Federal court agreed. Physician-assisted suicide: not a liberty protected by U.S. Constitution – decision on whether to permit it is left to the states. Only 3 states allow it. Copyright © 2015 Cengage Learning

The Great Balancing Act: The Rights of the Accused Versus The Rights of Society Rights of the Accused Limits on conduct of prosecutors Defendant’s pretrial rights Trial rights Why give criminal suspects rights? Due process of law and fair treatment benefit everyone who comes into contact with law enforcement or the courts Defendant’s pretrial rights: writ of habeas corpus: jailer needs to explain why prisoner is being held in jail Copyright © 2015 Cengage Learning

The Great Balancing Act: The Rights of the Accused Versus The Rights of Society Extending the Rights of the Accused Gideon v. Wainwright (1963) Miranda v. Arizona (1966) Exceptions to the Miranda rule The Exclusionary Rule Gideon v. Wainwright: if a person is accused of a felony and can’t afford an attorney, an attorney must be made available at the government’s expense Miranda v. Arizona: Miranda rights – “you have the right to remain silent, etc.” Supreme Court has made a number of exceptions to the Miranda rule Exclusionary rule: judicial policy prohibiting the admission at trial of illegally seized evidence During past several decades, the Court has diminished the scope by creating exceptions Copyright © 2015 Cengage Learning

The Great Balancing Act: The Rights of the Accused Versus The Rights of Society Civil Liberties versus Security Issues The USA Patriot Act “Roving” wiretaps National Security Agency surveillance Recent revelations of NSA activity The government is allowed to conduct “roving” wiretaps – a person under suspicion can be monitored electronically no matter what form of electronic communication he/she uses Patriot Act: goals were to lift interagency barriers to cooperation, ease restrictions on government’s authority to investigate and arrest suspected terrorists NSA was authorized an executive order by President George W. Bush to conduct secret surveillance without court warrants Congress passed a law authorizing the warantless wiretaps in 2007 and reauthorized in 2008 when it finally passed Copyright © 2015 Cengage Learning

The Great Balancing Act: The Rights of the Accused Versus The Rights of Society National Security and the Civil Liberties of Immigrants Limits to the Rights of Deportees Due Process Freedom of Speech Ex Post Facto Laws Due Process: government can deport citizens for alleged terrorism without any hearing, and noncitizens can be deported based on secret evidence the deportee is not allowed to see Freedom of Speech: aliens have no First Amendment rights, even if their deportation is based on political associations. Also covers noncitizens with green cards Ex post facto laws don’t always apply to noncitizens. Permanent residents have been deported to countries they don’t even speak the language of Copyright © 2015 Cengage Learning

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