1. Civil Liberties and Public Policy
Edwards and Wattenberg - Chapter 4

2. Civil Liberties
Civil liberties – The constitutional and other legal protections against government actions.
In the U.S., these are protected by the Bill of Rights.
The Bill of Rights was created due to the Constitution’s failure to protect individual freedoms.
The Bill of Rights refers to the first ten amendments to the Constitution, which define basic liberties as freedom of speech, religion, the press, and they guarantee defendant’s rights.
Barron v. Baltimore (1833) – stated that freedoms protected in first ten amendments do not apply to state governments.

4. In 1868, the Fourteenth Amendment was ratified.
Today, most rights contained in the Bill of Rights are protected from action by state governments.
After the Civil War, southern states enacted laws denying newly freed slaves.
Congress proposed a Constitutional Amendment to protect the rights of freed slaves, but most southern states refused to ratify it.
Congress responded with the Reconstruction Act, which placed states under military rule until they ratified the amendment and adopted state constitutions that conformed with the U.S. Constitution.
In 1868, the Fourteenth Amendment was ratified.
It includes a due process clause, that says “no state shall… deprive any person of life, liberty, or property, without the due process of law.”
Many Southern states ignored this clause.
In Gitlow v. New York (1925), the Supreme Court interpreted the Fourteenth Amendment’s due process clause to protect a First Amendment right.
Within the next ten years, the court invalidated state laws restricting speech, press, religion, and assembly and petition.

5. In each of these cases, the Supreme Court used the incorporation doctrine, the process by which rights contained in the Bill of Rights become applicable through the 14th Amendment to actions by state governments.
While the Supreme Court was moving to protect free-expression rights from state action in the 1920s and 1930s, it held back on rights of the accused.
In Powell v. Alabama (1932) the court ruled that in capital punishment cases, states had to provide legal counsel for those who couldn’t afford it.
Mapp v. Ohio (1961) began the selective incorporation process for the accused.
The case incorporated a portion of the Fourth Amendment by establishing that illegally obtained evidence couldn’t be used in a trial.

6. Assuming the school in this picture is public, are the actions in this picture legal?

7. Freedom of Religion
The First Amendment contains two clauses pertaining to religion – the establishment clause and the free-exercise clause.
The establishment clause means that government can’t favor or support one religion over another.
Engel v. Vitale (1962) – prohibits the reciting of prayer in public schools.
School District of Abington Township v. Schempp (1963) – Bible reading in schools violated First Amendment’s establishment clause.
The Supreme Court has also banned religious displays in public places.
The Court is said to have applied the “wall of separation doctrine” establishing a clear separation of church and state.
In Lemon v. Kurtzman (1971) the Court developed a three-part test known as the Lemon Test.
The Lemon test is used to determine whether a law relating to religion is valid under the religious establishment clause.

8. The 1st and 14th Amendments also prevent government interference with the free exercise of religion.
Americans are free to hold any religious belief of their choosing, but they are not necessarily free to act on it.
Example: Mormons can’t legally practice polygamy.
Employment Division v. Smith (1990) – Supreme Court upheld Oregon’s refusal to grant unemployment benefits to someone who was fired from his job for using peyote, even though its use was part of the person’s religion.
In some cases, the free exercise of religion clashes with the prohibition of the establishment of religion, and the Supreme Court is forced to choose between the two.
1987 – overturned a Louisiana law that required creationism be taught in schools.
2005 – federal judge blocked a Pennsylvania public school from requiring intelligent design to be taught in science classes.

10. Freedom of Expression
The First Amendment provides freedom of expression – the right of individual Americans to hold and communicate thoughts of their choosing.
Today, free expression is protected more vigorously by the courts than in the past.
Early in U.S. history, there were government attempts to restrict free expression.
Sedition Act of 1798 – made it a crime to print harshly critical newspaper stories about the government.
Civil War Era – government substantially restricted free expression.
Prior restraint, government actions that prevent material from being published are usually protected by First Amendment.
Near v. Minnesota (1931)
Schenk v. United States (1919) – upheld the Espionage Act limiting free expression, but it also established a constitutional standard – the clear-and-present-danger test.

11. The clear-and-present-danger test is used to define the limits of free speech.
The government cannot abridge political expression unless it presents a clear-and-present danger to the nation’s security.
In the 20th century, the tension between national security interests and freedom of expression became a pressing issue.
Throughout the last century, the Supreme Court has moved to protect free speech from actions from the states.
Brandenburg v. Ohio (1969) – Supreme Court ruled that states cannot suppress use of speech that advocates lawless use of force unless it “is directed at inciting imminent lawless action” and it is “likely to produce such an action.”
This test, the imminent lawless action test, is a refinement of the clear-and-present danger test, and a more restrictive one.

12. Obscenity is not protected by the First Amendment, but it is difficult to develop a test to distinguish obscene material from sexually explicit material, which adults have the right to see and possess.
Roth v. United States (1957) – obscenity is not protected by freedom of speech or the press.
Miller v. California (1973) created a three-part test to determine if material is obscene.
It must depict sexual content in a “patently offensive” way, it must be precisely described in the law as obscene, and it must appeal to “prurient interest” and have “no redeeming social value.”
The courts have difficulty in creating a legal standard that can be applied consistently to determine obscene material.
Adults have the right to read and watch obscene materials in their homes.

14. Freedom of the Press receives strong judicial protection.
New York Times Co. v. United States (1971) – the court ruled that the Times’ publication of the Pentagon Papers could not be blocked by government.
The court ruled on the unacceptability of prior restraint, meaning that the government can’t prohibit speech or publication before the fact.
If false information that harms a person’s reputation is published (libel) or spoken (slander), the injured party can sue for damages.
New York Times Co. v. Sullivan (1964) – the Supreme Court overruled an Alabama state court that found the Times guilty of libel because only some of the allegations were true and that libel of a public official requires proof of actual malice.

15. The Supreme Court’s protection of symbolic speech has been less substantial than its protection of verbal speech.
Tinker v. Des Moines (1969)
Texas v. Johnson (1989) the Supreme Court ruled that burning the American flag was protected under the First Amendment.
In terms of Freedom of Assembly, the Supreme Court has ruled that the right of free expression takes precedence over the possibility that the exercise of that right will cause harm.
The Supreme Court also ruled that before the government can prevent a speech or assembly, it must demonstrate that it lacks an alternative way (such as assigning police to control crowds) to prevent the harm from happening.
The Supreme Court has recognized that freedoms of speech and assembly may conflict with the routines of daily life.

16. Morse v. Frederick (2007)

17. Freedom of Assembly
Freedom of assembly can conflict with other social values when it disrupts the public order.
Whatever a group’s cause, it has the right to demonstrate.
Groups usually need to apply for a permit with a local government to assemble.
There are virtually no limits on the content of a groups message.
Freedom of assembly also includes the right to associate with others who share the same interests.
NAACP v. Alabama (1958) – Supreme Court ruled that Alabama could not require the state chapter of NAACP to reveal its membership list.
This was an unconstitutional restriction on freedom of association according to the Supreme Court.

18. The Right to Bear Arms
The Second Amendment was created to prevent the national government from abolishing state militias.
Disagreement today exists over individuals’ right to possess weapons.
The Supreme Court didn’t interpret the Second Amendment until District of Columbia v. Heller (2008).
The Supreme Court ruled that the “Second Amendment protects an individual right to possess a firearm… and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The right to bear arms is not unlimited.
Felons, mentally ill
Laws prevent carrying of firearms on school property and in government buildings.

20. Defendant's Rights
Due process refers to legal protections that have been established to protect the rights of individuals.
The most important of these protections is procedural due process, which refers to the procedures that authorities must follow before a person can be lawfully punished for an offense.
The Constitution protects people from wrongful arrest, conviction, and punishment in several ways.
Article I, Section 9 allows people accused of a crime to seek a writ of habeas corpus, which requires law enforcement to specify the reason the suspect is being detained.
The 5th and 14th Amendments provide that no person may be deprived of life, liberty, or property without due process of law.
Specific procedural protections are listed in the 4th, 5th, 6th, and 8th Amendments.

21. Suspicion Phase – Unreasonable Search and Seizure
The Fourth Amendment was included in the Bill of Rights to prohibit unreasonable search and seizure by the U.S. government.
In order to make an arrest, police need probable cause that someone is guilty of a crime.
A person caught in the act of a crime can be arrested and searched immediately for weapons or evidence.
The 4th Amendment does protect against speculative police action.
If a person is suspected of a crime, the police need to obtain a search warrant before they can act.
Mapp v. Ohio (1961) – established the “exclusionary rule” of evidence - all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state court.

22. Police may use evidence that is found in plain sight (the plain view doctrine) even if the evidence relates to an infraction other than the one for which the individual was stopped.
The Supreme Court allows warrantless searches on occasion.
Example – DUI Checkpoints
The Court has held that police can’t use thermal imaging devices to scan homes for heat sources that may show the production of illegal drugs.
The 4th Amendment protects individuals in their persons, homes, and vehicles.

23. Arrest Phase – Protection against Self-Incrimination
The Fifth Amendment says a person cannot “be compelled in any criminal case to be a witness against himself.”
“Plead the Fifth”
Police can’t begin their interrogation until the suspect has been warned that their words can be used as evidence. This warning emerged from Miranda v. Arizona (1966) where Ernesto Miranda was convicted of kidnapping and rape, but the Supreme Court overturned the decision because the police failed to inform him of his right to remain silent and to have legal assistance.

24. Trial Phase – Right to a Fair Trial
Defendants have fair trail guarantees that are designed to protect them from wrongful conviction.
Under the Fifth Amendment, suspects charged with a federal crime can’t be tried unless indicted by a grand jury.
States are not required to use grand juries, although about half of them do.
The Sixth Amendment protects individuals accused of crimes.
Right to counsel, right to confront witnesses, and the right to speedy and public trial.
Gideon v. Wainwright (1963) ruled that counsel must be provided for those who can’t afford it in felony cases.

26. In many cases, defendants have the right to a jury trial.
Most cases in American courts are settled through plea bargaining.
An issue in some trials is evidence obtained in violation of the defendant’s rights.
The exclusionary rule bars use of evidence that is obtained in an unconstitutional manner.
The good faith exception allows for admission of evidence if police believe they were following proper procedure.
The inevitable discovery principle also allows tainted evidence to be admitted if the evidence would have inevitably been discovered and adds nothing to the fairness or integrity of the criminal trial.

27. Sentencing Phase – Cruel and Unusual Punishment
The Eighth Amendment prohibits “cruel and unusual punishment.”
The Supreme Court has used the Eighth Amendment to narrow the use of the death penalty, but has ruled the death penalty itself to be constitutional in Gregg v. Georgia (1976).
The Constitution doesn’t guarantee appeals after a conviction, but the federal government and all states permit at least one appeal.
The government must provide convicts with the legal resources to file a first appeal.
If a prisoner believed his Constitutional rights were violated, he could appeal to a federal court.

28. Rights and the War on Terrorism
In times of war, courts have upheld government policies that would not be permitted in peacetime.
Korematsu v. United States (1944) ordered the relocation of Japanese Americans living on the west coast during WWII.
After 9/11, the Bush Administration invoked precedents that declared customary legal protections would not be afforded to those who are thought to have engaged in terrorist activity.
Many detainees suspected of terrorism were denied rights, such as the right to see their lawyer.
In Hamdi v. Rumsfeld (2004) ruled that enemy combatants held in the U.S. have due process rights.

29. In response to 9/11, the government passed the USA Patriot Act.
It lowered the standard for judicial approval for the use of surveillance against individuals suspected of terrorist activity.
It also gave government increased authority to examine medical, financial, and student records and in some cases to secretly search homes.
The courts have a significant impact as they are responsible for balancing society’s need for security and public order with the rights of individuals.

30. The Right of Privacy
Until the 1960s, Americans’ constitutional rights were confined mainly to those in the Bill of Rights.
In Griswold v. Connecticut (1965) the Supreme Court established the Constitution’s implied right to privacy.
Although the right to privacy hasn’t been broadly applied by the Supreme Court, it has been invoked in two major areas – a woman’s rights to choose an abortion and consensual relations among same sex adults.

31. The right to privacy was the basis for the Supreme Court’s ruling in Roe v. Wade (1973), which gave women freedom to choose an abortion within the first three months of pregnancy.
Americans remain sharply divided over the issue of abortion.
The Supreme Court upheld Roe v. Wade in Planned Parenthood v. Casey (1992) but determined that a minor needs parental consent to get an abortion.
The right to privacy is also the basis for the ruling in Lawrence v. Texas (2003).
It overturned state laws that made same-sex relations among consenting adults illegal, claiming that the state can’t make people's private sexual conduct a crime.