4 Civil Liberties 4 1 Civil Liberties What

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Civil Liberties What are civil liberties? • Those rights, such as freedom of speech or religion, that are so fundamental that they are outside the authority of government to take away – Also known as “natural rights” or “inalienable rights” – Civil liberties are added to the Constitution through the addition of the Bill of Rights. • First ten Amendments to the Constitution Civil Liberties 4 -2

Civil Rights What are civil rights? • Set of rights, centered around the concept of equal treatment that government is obliged to protect • They are found in the amendments, such as the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments to the Constitution. Civil Liberties 4 -3

Balancing Liberty and Order In creating a government of men over men, the Framers had to struggle with how to provide as much freedom to citizens as possible without risking anarchy. This required giving the government the power to limit liberty at the risk of tyranny. • Anarchy is a society without governmental authority, in which everyone does as he/she pleases. • Tyranny is a government that severely limits liberty. Civil Liberties 4 -4

Sources of Civil Liberties The main sources of civil liberties are the Constitution and the Bill of Rights. • The Constitution protects: – Habeas corpus • The Constitution prohibits: – Ex post facto laws – Bills of Attainder Civil Liberties 4 -5

Civil Liberties and Constitutional Amendments Civil Liberties 4 -6

Civil Liberties in the Bill of Rights Expression-based liberties are contained within the First Amendment. • • • Freedom of speech Freedom of the press Freedom of assembly Freedom to petition the government Free exercise of religion Civil Liberties 4 -7

Criminal Justice Provisions in the Bill of Rights The criminal justice provisions of the Bill of Rights are found in the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution. • How the government may conduct investigations is found primarily in the Fourth and Fifth Amendments. • Fourth Amendment Provisions – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ” Civil Liberties 4 -8

Criminal Justice Provisions in the Bill of Rights (Cont’d) Civil Liberties 4 -9

Criminal Justice Provisions in the Bill of Rights (Cont’d) • Fifth Amendment Provisions – Not deprived of life, liberty, or property, without due process of law – Private property shall not be taken for public use without just compensation. Civil Liberties 4 -10

Criminal Justice Provisions in the Bill of Rights (Cont’d) How the government may conduct trials is found primarily in the Fifth and Sixth Amendments. • Fifth Amendment – No double jeopardy – No self-incrimination Civil Liberties 4 -11

Criminal Justice Provisions in the Bill of Rights (Cont’d) • Sixth Amendment – – – Speedy and public trial Impartial juries Informed of the nature and cause of the accusation Confront the witnesses against him/her Assistance of counsel Civil Liberties 4 -12

Criminal Justice Provisions in the Bill of Rights (Cont’d) • How the government may punish those convicted of crimes is found primarily in the Eighth Amendment. – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ” Civil Liberties 4 -13

Protection of Property rights are primarily found within the Third and Fifth Amendments. • Third Amendment Provisions – No quartering of soldiers without consent • Fifth Amendment Provisions – Due process required to deprive life, liberty, or property Civil Liberties 4 -14

The Right to Keep and Bear Arms The Second Amendment addresses the right of citizens to keep and bear arms. • “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. ” Civil Liberties 4 -15

Selective Incorporation When the Bill of Rights was first added to the Constitution, it only protected citizens from abuses by the national government. • • Selective Incorporation – Doctrine used by the Supreme Court to make those provisions of the Bill of Rights that are fundamental rights binding on the states Fourteenth Amendment – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” – Due Process Clause Civil Liberties 4 -16

Testing Violations of Civil Liberties How do the Courts make a determination that the Civil liberties of citizens have been violated by state or national governments? • Compelling Interest Test – Standard frequently used by the Supreme Court in civil liberties cases to determine: • If a state has a compelling interest in passing the law; is the law necessary for the functioning of government? • Is the law narrowly drawn to meet that interest? Civil Liberties 4 -17

Civil Liberties in Times of Crisis Does the government protect civil liberties in times of crisis? • Attempts to limit civil liberties are more frequent in wartime or during other threats, resulting from: – The government’s increased concern for order – Citizens’ increased concern about security • Popular support for civil liberties usually rebounds once the crisis ends. Civil Liberties 4 -18

Restrictions During World War I • The Espionage Act of 1917 – Made it a crime to obstruct military recruiting • The Sedition Act of 1918 – Banned “disloyal, profane, scurrilous or abusive language” about the Constitution or government of the United States, as well as speech that interfered with the war effort. • After the war, Congress repealed the Sedition Act. Civil Liberties 4 -19

The Sedition Act of 1918 Speaking in Canton, Ohio, on June 16, 1918, Eugene V. Debs, labor organizer and three-time Socialist candidate for president, criticized the government for restricting free speech during wartime and declared, “If war is right, let it be declared by the people. ” Charged with sedition, he was convicted and sentenced to prison. While in jail, he ran for president once again and received more than 900, 000 votes, about 3. 4 percent of votes that were cast. Civil Liberties 4 -20

The War on Terror • After the terrorist attacks of September 11, 2001, Congress passed the USA PATRIOT Act. – – – • Enhanced law enforcement’s ability to wiretap Regulated financial transactions with overseas entities Eased the deportation of immigrants suspected of terrorist activities George Bush extended the power of the act and claimed the right, as commander in chief, to indefinitely detain alleged “enemy combatants, ” whether U. S. citizens or foreign nationals. – In June 2004, the Supreme Court ruled that United States citizens could not be held indefinitely as “enemy combatants. " Civil Liberties 4 -21

Freedom of Speech Although the First Amendment declares that “Congress shall pass no law. . . abridging the freedom of speech, ” the Court has never taken the phrase “no law” to literally mean “no law. ” • Advocacy of Unlawful Activities – Clear and Present Danger Test • Requires the state to prove a high likelihood that the speech in question would lead to a danger that Congress has a right to prevent – Brandenburg v. Ohio (1969)—speech cannot be banned unless it leads to “imminent lawless action. ” Civil Liberties 4 -22

Fighting Words and Hate Speech • • Fighting words are phrases that might lead the individual to whom they are directed to respond with a punch. Hate speech is speech that attacks or demeans a group rather than a particular individual. – University speech codes – The courts have made it clear that although state universities may encourage the goal of equality, they cannot do so by limiting speech. Civil Liberties 4 -23

Symbolic Speech Symbolic speech is expressive communication that is not verbally communicated. Examples include nonverbal activities that convey a political message, such as wearing armbands, saluting the flag, burning the flag, or burning draft cards. • Texas v. Johnson—Supreme Court allowed flag burning. Civil Liberties 4 -24

Campaign Finance Campaign finance laws try to level the playing field in elections by limiting campaign contributions. • • Supporters of campaign finance reform claim that the wealthy have a disproportionate influence on elections. The Supreme Court has ruled that campaign contributions are a form of speech protected by the First Amendment and that laws restricting campaign contributions or campaign activities must pass the compelling interest test. Civil Liberties 4 -25

Time, Place, and Mannerism Regulations Freedom of Speech does not mean that a citizen can speak wherever one wants or whenever one wants. • Regulations of the time, place, and manner of speech, such as when or where protests may take place, are generally valid as long as they are neutral or equal; that is, they do not favor one side or another of a controversy. Civil Liberties 4 -26

Freedom of the Press Freedom of the press is not absolute. In extraordinarily extreme cases, the government can censor items before they are published. • Prior Restraint – Government restrictions on freedom of the press that prevent material from being published – An extraordinary burden of proof of imminent harm is needed before the courts will shut down a newspaper before a story is printed. Civil Liberties 4 -27

Subsequent Punishment In other situations, the government can punish people for what they publish after the act. • Libel – Publishing knowingly false and damaging statements about another Civil Liberties 4 -28

Pornographic or Obscene Speech Miller Test • Supreme Court test for determining whether material is obscene 1. To the average person, applying contemporary community standards as established by the relevant state, the work, taken as a whole (not just isolated passages), appeals to the prurient (sexual) interest. 2. The work depicts in an offensive way sexual conduct specifically defined by the state law. 3. The work lacks serious literary, artistic, political, or scientific value. Civil Liberties 4 -29

The Right of Association Civil liberties can conflict with civil rights. • – The Civil Rights Act and subsequent court challenges in the 1960 s concluded that businesses serving the public could not discriminate and choose to serve people of only a certain race. • – – Business Serving the Public Private Clubs and Groups Supreme Court rulings indicate that states can enforce antidiscrimination laws as long as those groups do not engage in speech-related or expressive activities. If the group, however, does engage in expressive activities and association with certain groups that violate the views thus expressed, the group has a First Amendment right of association that overrides state laws banning discrimination. Civil Liberties 4 -30

Religious Freedom Free Exercise Clause • “nor prohibit the free exercise thereof” – States are generally free to pass laws that restrict religious practices as long as such laws have a valid secular (nonreligious) purpose. – In the 1960 s, however, the Court ruled that states must have a compelling interest before they could abridge people’s religious practices, even if the law had a valid secular purpose. Civil Liberties 4 -31

Religious Freedom (Cont’d) Establishment Clause • “Congress shall make no law respecting an establishment of religion” – Lemon Test (Lemon v. Kurtzman, 1971) • Test for determining whether aid to religion violates the establishment clause – – – Does the law or practice have a secular purpose? Does it neither advance nor inhibit religion? Does it not foster an excessive government entanglement with religion? Civil Liberties 4 -32

Separationists vs. Accommodationists Separationists • Those who believe that the Establishment Clause requires a wall of separation between church and state Accommodationists • Those who believe that as long as the government does not favor one religion over another, it may generally support religious practices Civil Liberties 4 -33

The Second Amendment In 2008 and 2010, the Supreme Court decided that there is an individual right to possess a gun at least for self-defense in one’s home. • • District of Columbia v. Heller Mc. Donald v. Chicago Civil Liberties 4 -34

Criminal Procedure Investigations • The major limits on investigating crimes involve the authority to search for physical evidence and the warnings that must be given prior to questioning a suspect. • Searches and Seizures – Fourth Amendment prohibits unreasonable searches and seizure. – Expectation of privacy » Supreme Court test for whether Fourth Amendment protections apply Civil Liberties 4 -35

Criminal Procedure (Cont’d) If the police conduct a search later found to be in violation of the Fourth Amendment, the exclusionary rule holds that such evidence cannot be used in trial. • Police have less incentive to violate the Fourth Amendment if they know that the evidence from illegal searches cannot be used in court. • The good faith exception allows evidence to be used if the police obtain a warrant but the warrant is later found to lack probable cause. Civil Liberties 4 -36

Interrogations The Fifth Amendment protects the right against selfincrimination and being forced to give testimony against oneself during criminal investigations or at criminal trials. • Miranda v. Arizona (1966) - People have the right to remain silent. - Anything they say may be used against them. - They have the right to an attorney, free if they cannot afford one. Civil Liberties 4 -37

Trial Procedures The trial protections of the Bill of Rights include the right to indictment by a grand jury (Fifth Amendment), the right to counsel and an impartial jury (both Fifth and Sixth Amendments), and the right against self-incrimination (Fifth Amendment), which applies to trials as well as investigations. • • Powell v. Alabama (1932) Gideon v. Wainwright (1942) Civil Liberties 4 -38

Privacy The word “privacy” does not exist in the Constitution but is implied in several amendments. • • • First Amendment: freedom of association Third Amendment: freedom from quartering soldiers in peacetime Fourth Amendment: freedom from unreasonable search and seizure Fifth Amendment: freedom from self-incrimination Ninth Amendment: demands that the listing of certain rights, such as speech and religion, should not be understood as invalidating rights not listed Implied Right • Penumbra: The shadowy region of the Constitution where implied rights are found Civil Liberties 4 -39

The Right to Privacy Civil Liberties 4 -40

The Right to Privacy (Cont’d) Privacy cases • • Griswold v. Connecticut (1965) – The Supreme Court ruled that married couples could use birth control. The case established a right to privacy, and the Court soon expanded this decision to cover the right of unmarried people to use birth control. Roe v. Wade (1973) – Using the compelling interest test, the Supreme Court declared that states had a compelling interest in preventing abortion in the third trimester, when the fetus could live on its own, and a compelling interest in regulating abortion during the second trimester, to protect the health of the woman seeking the procedure. The state had no interest in regulating or preventing abortion in the first trimester. Civil Liberties 4 -41

The Right to Privacy (Cont’d) Privacy cases • Lawrence v. Texas (2003) – The Supreme Court decided that “the liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives”. Civil Liberties 4 -42

Focus Questions • • • What is government’s role with regard to civil liberties? How responsive can, or should, it be to the people’s will? What is the proper balance between liberty and order? Under what circumstances should civil liberties be restrained? What happens when rights clash? Are restrictions of civil liberties justified if they promote equality? In what ways does the guarantee of civil liberties promote democracy, or does it pose challenges for democratic government that can be considered gates? Civil Liberties 4 -43