1. Chapter 4 Civil Liberties

2. Civil Liberties/Civil Rights  Civil liberties Restrain government’s action against individuals Limits on government power outlined in Bill of Rights, first 10 amendments to Constitution, 371-2 What government can’t do…  Civil rights Rights individuals share as provided for in 14 th amendment, guarantees due process and equal protection under law, 373 What government must do…(e.g., protect individuals from discrimination; unequal treatment, etc.)

3. Liberties/Rights and Courts  Judicial interpretations shape nature of civil liberties and civil rights Change over time depending on changing interpretations Not “set in stone”  Hence, importance of judicial appointments and numerous references to court cases

4. Incorporation Theory  Bill of Rights Initially aimed at protecting citizens against encroachments by national government Grew out of fear of tyranny Part of constitutional compromise aimed at limiting federal government’s power  Incorporation theory View protections of Bill of Rights apply to state governments through 14 th Amendment’s (ratified in 1868) due process clause; see page 373

5. Table 4-1: Incorporating Bill of Rights into 14 th Amendment, 67 YearIssue Amendment Involved Court Case 1925 1931 1932 1937 1940 1947 1948 1949 1961 1962 1963 1964 1965 1966 1967 1969 Freedom of speech Freedom of the press Right to a lawyer in capital punishment cases Freedom of assembly and right to petition Freedom of religion Separation of church and state Right to a public trial No unreasonable searches and seizures Exclusionary rule No cruel and unusual punishment Right to a lawyer in all criminal felony cases No compulsory self-incrimination Right to privacy Right to an impartial jury Right to a speedy trial No double jeopardy I VI I VI IV VIII VI V I, III, IV, V, IX VI V Gitlow v. New York, 268 U.S. 652. Near v. Minnesota, 283 U.S. 697. Powell v. Alabama, 287 U.S. 45. De Jonge v. Oregon, 299 U.S. 353. Cantwell v. Connecticut, 310 U.S. 296. Everson v. Board of Education, 330 U.S. 1. In re Oliver, 333 U.S. 257. Wolf v. Colorado, 338 U.S. 25. Mapp v. Ohio, 367 U.S. 643. Robinson v. California, 370 U.S. 660. Gideon v. Wainwright, 372 U.S. 335. Malloy v. Hogan, 378 U.S. 1. Griswold v. Connecticut, 381 U.S. 479. Parker v. Gladden, 385 U.S. 363. Klopfer v. North Carolina, 386 U.S. 213. Benton v. Maryland, 395 U.S. 784.

6. Discussion Question  Why is the Fourteenth Amendment so important to civil liberties?

7. Freedom of Religion  Separation of Church and State  First amendment, 371; two parts Establishment clause; Jefferson’s “wall of separation”  State churches were rule (9 colonies had official churches)  See text, 68 for meaning of Establishment clause Free exercise Clause  no type of religious practice can be prohibited and restricted by government unless there is a compelling reason

8. Freedom of Religion  Contemporary conflicts State aid to church-related schools School voucher programs Officially organized prayer in schools Posting Ten Commandments ( “ Hanging Ten ” ) Pledge of Allegiance ( “… under God …” ) Teaching evolution Religious speech Free exerc ise

9. Discussion Questions  Is it possible for state to be truly neutral when it comes to religion?  Should state give funding to church schools?  Should prayer be allowed in public schools?  Should public institutions be allowed to “ Hang Ten ” ?  Is pledge of allegiance a violation of church and state?  Should creationism/”intelligent design” be given equal time with evolution?  Should any and all religious practice be OK?

10. Freedom of Speech/Expression  No prior restraint Courts generally disfavor restraining, censoring action/speech/expression before it has occurred  Protected speech Symbolic speech (e.g., burning U.S. flag) Commercial speech (e.g., advertising)  Permitted restrictions Speech that presents “ clear and present danger ” to public order Speech that might lead to some “ evil ” (the bad- tendency rule)

11. Unprotected Speech  Obscenity (based on community standards of indecency) Child pornography Obscenity and child pornography on Internet  Slander Public uttering of false statement that harms good reputation of another; false, defamatory statements  Campus speech codes Hate speech = abusive speech attacking persons on basis of ethnicity, race, or other criteria  Often considered unconstitutional restriction

12. Freedom of Press  Special instance of free speech  Some protection from libel charges Libel (defamation in writing) must be accompanied by actual malice (knowledge of falsity or reckless disregard for the truth)  Press now protected from gag orders during trials, except in unusual circumstances  Films subject to local obscenity laws; regulated through rating system  Radio and TV have more limited 1 st amendment protections Regulated by FCC

13. Right to Assemble and Petition Government  Ability to come together with others of like interest, to form voluntary associations  Ability to communicate ideas on public issues Can be limited by municipalities’ right to offer permits for marches, parades, sound trucks, demonstrations (to control traffic or prevent riots) Can be denied when groups are likely to engage in fighting words  Tested by anti-loitering ordinances aimed at reducing congregation of gangs

14. Privacy Rights and Abortion  No explicit right to privacy in Constitution Unlike California State Constitution  Griswold v. Connecticut (1965) Supreme Court rules privacy rights exist  from 1 st, 3 rd, 4 th, 5 th and 9 th Amendments  “ right to be left alone ” ; “ zone of privacy ”  Unique challenges posed by information age  Roe v. Wade (1973) court rules privacy rights include abortion rights More recently Court taken a more restrictive view of rights outlined in Roe

15. Other Privacy Rights  Right to die  “ living wills ”  Physician-assisted suicide (only legal in Oregon)  Security issues after 9/11/01 How much are we willing to sacrifice privacy rights for security? Erosion of 4 th amendment rights against unreasonable searches and seizures given roving wiretaps of suspected persons

16. Rights of Accused vs. Rights of Society  Great Balancing Act  Why give criminal suspects rights? Avoid convicting innocent people All suspects have right to due process and fair treatment  Found primarily in 4 th, 5 th, 6 th, and 8 th amendments

17. Rights of Accused  Limits on Conduct of Police Officers and Prosecutors No unreasonable or unwarranted searches or seizures (4 th )  exclusionary rule = cannot use illegally seized evidence without warrant based on probable, just cause (mitigated by “ good faith ” clause) Probable cause for arrest (4 th ) No coerced confessions or illegal interrogation (5 th ) No entrapment Informed of rights, including silence  Miranda warnings = “ You have the right to remain silent; anything you say can and will be used against you. You have the right to an attorney; if you cannot afford one, one will be provided for you. ”

18. Rights of Accused  Defendant ’ s Pre-trial rights Writ of habeus corpus (Article 1, Section 9, clause 2, 365)  requires jailers to bring person before court or judge and explain why person is being held Prompt arraignment (6 th ) Legal counsel (6 th ) Reasonable bail (8 th ) Informed of charges (6 th ) Remain silent (5 th )

19. Rights of Accused  Trial rights Speedy, public trial before jury (6 th ) Impartial jury representative of community (6 th ) Trial atmosphere free of prejudice, fear, and outside interference No compulsory self-incrimination (5 th ) Adequate counsel (6 th ) No cruel or unusual punishment (8 th )  What about Death Penalty? Right to appeal convictions (5 th ) No double jeopardy (5 th )

20. Discussion Questions  Have courts done too much to protect rights of accused?  Are protections necessary to ensure no innocent person is convicted of a crime?  Do criminal suspects deserve fair treatment?  Is capital punishment cruel and unusual?