1. Civil Liberties and Public Policy—Unit 7--Chap 4

2. The Bill of Rights–Then and Now
Civil Liberties
Definition: Are those rights that belong to everyone: they are protections against government and guaranteed by the Constitution.
The Bill of Rights and the States
The Bill of Rights is the first 10 amendments.
Written to restrict the national government.
Now many are “incorporated” into state and local laws.

3. Civil Liberties have been expanded and regulated by
Supreme Court cases
Legislation

4. Barron v Baltimore (1833)
Gitlow v New York (1925)
Based on 14th – provided for the expansion of individual rights
Led to incorporation doctrine:
Shift in S.C. rulings to apply enumerated rights to states.
Today most guarantees of the B of R apply to state and local governments.

5. Freedom of Religion---two protections
The Establishment Clause
No official U.S. religion
No religion can be prevented
“Wall of separation doctrine vs. accommodation doctrine
Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)
“Lemon Test

6. The Free Exercise Clause Can believe any religious belief
Some religious practices may conflict with other rights, and then be denied or punished (Oregon v. Smith) (1990)
Limits on the Free Exercise Clause
Reynolds v United States (1879)
? Teaching Creationism???

7. The Defense of Free Speech
Framers “fundamental natural right”
First and Fourteenth Amendment protect incursions from federal and state government
Protections of unpopular views

8. Regulating Speech
Alien and Sedition Acts (1798) making it illegal to say anything “false” against govt.
After assassination of President McKinley 1901 passed sedition laws.
Espionage Act of 1917
Schenck
Brandenburg v Ohio (1969)
Imminent lawless action test: a refinement of clear and present danger test
Snyder v. Phelps (2011) Westboro Baptist Church

9. Limits on Free Speech Libel and slander
New York Times v. Sullivan (1964)
Obscenity
Roth v United States (1957)
Miller v California (1973)
Symbolic speech
Tinker v Des Moines (1969) Arm bands
Texas v. Johnson (1989) Flag burning

10. Freedom of Expression Prior Restraint
Attempt to limit freedom of press by preventing material from being published. Censorship.
Permissible during wartime.
May be punished after something is published.
Near v Minnesota (1931)
New York Times Company v United States (1971)
Hazelwood School District v Kuhlmeier (1988)

11. Freedom of Expression Free Speech and Public Order
Limited if it presents a “clear and present danger”
Limited if obscene, libelous or slanderous
Limited if on private property, like a shopping center

12. Freedom of Expression Free Press and Fair Trials
The trials are public business of the government.
The public has a right to know what happens.
The press’ own information may not be protected.

13. Freedom of Expression Obscenity Definition: There really isn’t one.
But, Miller v. California stated:
The whole work appeals “to a prurient interest in sex”
“Patently offensive” sexual conduct
Lacks “serious literary, artistic, political or scientific value”
Local areas make their own decisions

14. 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

15. Freedom of Expression Symbolic Speech
Definition: Nonverbal communication, such as burning a flag or wearing an armband.
Generally protected along with verbal speech.

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

17. Freedom of Expression Courts have generally ruled that
Freedom of Assembly and Petition: applies to private and public places
Dejonge v Oregon (1937)
Courts have generally ruled that
To protect public order, government may require groups to obtain a permit
Certain public facilities may be restricted from demonstrations.
Restrictions must be precisely worded and equally applied
Does not allw groups to use Private property for its own uses.(buffer zones)
Police may disperse demos to keep order or protect public

18. Property Rights
S.C. has not defined the term due process, has generally accepted the concept of government acting in a fair manner according to established rules.
Substantive due process: determining fairness or violation of constitutional protections.
Procedural due process: How the law is carried out according to established rules and procedures
Eminent domain: 5th Amend.

19. The Right to Privacy Is There a Right to Privacy?
Definition: The right to a private personal live free from the intrusion of government. “ the right to be left alone” Justice Louis Brandieis
Not explicitly stated in the Constitution
Implied by the Fourth Amendment
Very debatable…

20. The Right to Privacy A Time To Live and a Time To Die
Who decides when it is time to die?
Who should make the ultimate decision for people who can’t think for themselves?
Infants / Children
Elderly
Mentally retarded
What right does a person have to terminate their own life? Or seek help to do it?

21. The Right to Privacy Roe v. Wade (1973)
Griswold v Connecticut (1965)
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?
Figure 4.1

22. Rights of the Accused Rights in the Original Constitution
The Privilege of Writ of Habeas Corpus
No Bills of attainder
No Ex post facto laws

23. Defendants’ Rights Searches and Seizures
Exclusionary Rule: The rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained.
Weeks v United States (1914) applied only to federal cases.
Mapp v Ohio (1961) Incorporation of 4th Amendment

24. Defendants’ Rights
The Right to Counsel 6th Amendment
The state must provide lawyers in most criminal cases.
Gideon v Wainwright (1963) Incorporation
Trial by Jury
Plea bargaining: An actual bargain between the prosecution and defense.
Generally 12 people, but has to be unanimous to convict.

25. Defendants’ Rights
Self-Incrimination 5th Amendment
No person “ shall be compelled to be a witness against himself or herself in court.
Miranda v Arizona (1966)
Entrapments may be overturned

26. Defendants’ Rights Cruel and Unusual Punishment The Death Penalty
Varies from state to state
Cannot be mandatory
Punishment fitting the crime
Strong punishments are acceptable
Punishments vary from state to state, even for the same crime, but are reasonable

27. 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
Limits the scope of government