Chapter 4 Civil Liberties Civil Liberties Warm Up

Chapter 4 Civil Liberties

Civil Liberties

Warm Up • • • Substantive civil liberties Procedural civil liberties Civil liberties NOT in the Bill of Rights 14 th Amendment and the nationalization of the BOR Selective incorporation

Civil Liberties • Civil liberties: protections from improper government action – Substantive: limits on what the government can or cannot do – Procedural: rules regarding how the government must act

Civil Liberties • Civil liberties: a check on the majority in order to allow unpopular minorities to speak and act as they desire • They are the national means to protecting the marketplace of ideas for a healthy democracy. • Civil liberties allow people to live according to their preferences, of their own choosing.

A Brief History of the Bill of Rights

Dual Citizenship Barron v. Baltimore (1833) Barron sued Baltimore for rendering his wharf useless on the grounds that the city had violated his 5 th Amendment rights by taking his property without just compensation.

Establishing the concept of dual citizenship, the Supreme Court ruled, in Barron v. Baltimore, that the 5 th Amendment and the Bill of Rights only protected citizens from the national government. “The fifth amendment must be understood as restraining the power of the general government, not as applicable to the States. ” --Chief Justice John Marshall, Barron v. Baltimore

When the 14 th Amendment was added to the Constitution in 1868, the question of the Bill of Rights’s applicability to the states arose again.

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. ”

Selective Incorporation On a case-by-case basis, the Supreme Court began recognizing a role for the national government to protect citizens from state governments. First to be incorporated: Eminent Domain – Chicago RR v City of Chi “takings clause” Selective incorporation: the process by which different protections in the Bill of Rights were incorporated into the 14 th Amendment, thus guaranteeing citizens’ protection from state as well as national governments

Incorporation Interlude In Palko v. Connecticut (1937), the Supreme Court refused to incorporate double jeopardy (5 th Amendment) on the basis that it is not a right that is “implicit in the concept of ordered liberty. ”

A Brief History of the Bill of Rights • Bill of Rights: The first 10 amendments to the U. S. Constitution • Bill of Rights is an Antifederalist contribution. • Nationalizing the Bill of Rights (Incorporation) – Originally understood as applying only to the federal government – Fourteenth Amendment incorporates the Bill of Rights to the states

The Bill of Rights

A Brief History of the Bill of Rights

The First Amendment and Freedom of Religion • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . – Establishment clause • Freedom from the state imposing any particular religion – Free exercise clause • Freedom to practice religion of choice without state interference

The First Amendment and Freedom of Religion Establishment Clause • Prevents an official church – Government can aid religious institutions as long as it does not favor some over others. – Wall of Separation • Lemon test: 1. government involvement must have a secular purpose; 2. its effect is neither to advance nor to inhibit religion, and; 3. it does not entangle government and religious institutions in each other’s affairs.

The First Amendment and Freedom of Religion Free Exercise Clause – Can believe and practice religion of one’s choice – Can hold no religious beliefs without consequence – As long as it does not harm others in the name of religion (or lack thereof), it is protected.

Separation between Church and State

Freedom of Speech and the Press • Congress shall make no law. . . abridging the freedom of speech, or of the press. . . – Democracy requires a marketplace of ideas. • But are there limits? – In short, the Court has said “yes, ” but there is a lot of latitude. – The next slide provides an example.

The First Amendment and Freedom of Speech and the Press

Freedom of Speech • Political Speech – Highly protected by strict scrutiny, legal standards • Must establish “compelling reasons” and narrowly defined to limit – Includes actions expressing political ideas • Ex: financial contributions to political causes, protests – Protected unless leads to immediate harm (clear and present danger) – There a few time and place limitations. • Ex: fire in theatre; yelling at night in a neighborhood

Freedom of the Press

Freedom of the Press • The government cannot prevent the print media from publishing what it desires. – Press can be sued for: • negligently publishing a lie that harms a public figure. • libelous writing about issues that are not of public concern. – The rise of individuals gathering and reporting news complicates these issues. • Wiki. Leaks, anonymous, and online bloggers are more difficult to contain, reprimand, or otherwise penalize.

Pornography • Pornography and obscenity are difficult to define, thus hard to regulate. • Must be kept out of reach or sight of children – Obviously, Internet is not especially compliant • Child pornography is banned; harmful to children involved. – Involves several crimes unrelated to speech

Fighting Words and Hate Speech

Fighting Words and Hate Speech • Fighting words are hard to ban because the target of them always has the option of ignoring them. • Likewise, hate speech is difficult to ban because it is the expression of a political idea. • When words leave the realm of thought and move into direct and immediate action, their speakers can be held accountable.

Commercial Speech • Commercial speech is not nearly as protected as political speech. – Typically, a government need only have a rational reason to ban an advertisement. • People can face consequences for perfectly legal speech if employers deem it problematic. – Civil liberties protect the right to express views. – There is NO right to be employed or supported by employer, public, or others who disagree.

The Second Amendment and the Right to Bear Arms

The Right to Bear Arms • The Second Amendment applies to states and localities. • Banning the possession of a firearm in the home is not possible. • States and local governments can place different boundaries around waiting periods, registration, types of arms allowed, and other aspects related to access.

Rights of the Criminally Accused

Rights of the Criminally Accused • Due process: the right of every citizen against arbitrary action by national or state government – Procedural safeguards intended to protect the innocent by guaranteeing a fair and just process • Fourth Amendment and search and seizure – Exclusionary rule: the ability of courts to exclude illegally obtained evidence

The Fifth Amendment

Rights of the Criminally Accused Fifth Amendment • Grand juries • Double jeopardy • Self-incrimination • Eminent domain

Rights of the Criminally Accused • Sixth Amendment – Right to counsel • Anyone facing imprisonment has the right to an attorney if they cannot afford one (public defender). • Public defender policies vary by state. – Some full-time employees of the state – Some by contract/case – Some require pro bono hours from all attorneys in the state.

Rights of the Criminally Accused • Eighth Amendment – Prohibits: • excessive bail • excessive fines • cruel and unusual punishment – The death penalty is allowed, but it must follow due process carefully. • States decide whether to allow the death penalty. • If allowed, states determine execution method(s).

The Eighth Amendment and Cruel and Unusual Punishment

WHO ARE AMERICANS? Who Is in Prison? CHAPTER 4

WHO ARE AMERICANS? Who Is in Prison? OTHER 8% FOREIGN CITIZENS UNDER 18 6% 0. 2% PUBLIC-ORDER OFFENDERS 9% PROPERTY OFFENDERS HISPANI C 19% 22% FEMALE DRUG OFFENDERS 7% 19% WHITE 32% BLACK 38% VIOLENT OFFENDERS 52% SOURCES: Bureau of Justice Statistics, "Prisoners in 2010" (2011); Roy Walmsley, "World Prison Population List, ” Ninth Edition (2011), International Centre for Prison Studies, School of Law, King's College, London.

WHO ARE AMERICANS? Incarceration Rates Around the World Per 100, 000 of the national population RWANDA UNITED STATES RUSSIAN FEDERATION 595 743 568 SOUTH AFRICA ISRAEL IRAN 316 BRAZIL 319 291 253 MEXICO JAPAN 200 58 CHINA 122 120 NIGERIA FRANCE MYANMAR SWITZERLAND 79 SOURCES: Bureau of Justice Statistics, "Prisoners in 2010" (2011); Roy Walmsley, "World Prison Population List, ” Ninth Edition (2011), International Centre for Prison Studies, School of Law, King's College, London. 96 INDIA 32 31

A Right to Privacy Online?

Right to Privacy • Right to privacy is not explicitly written in the Constitution, but has been interpreted in the Fourth Amendment, facilitated by the Ninth – – Birth control Abortion Homosexuality The right to die

Thinking Critically about the Future of Civil Liberties

Public Opinion Poll Do you support limitations on some civil liberties (such as freedom of speech and search and seizures), if limits on these liberties may decrease the potential of terrorist threat or increase security? a) b) c) d) Strongly support Support Oppose Strongly oppose

Public Opinion Poll Should the U. S. Congress pass legislation that makes it a crime to burn the American flag? a) Yes b) No

Public Opinion Poll Should it be legal to post personal information (address, phone numbers, where children attend school, etc. ) about individuals, without their permission, on Facebook, Twitter, You. Tube and other highly popular websites? a) Yes b) No

Public Opinion Poll Should law enforcement agencies (anything from the FBI to campus police) collect user ID and information about people posting threatening statements or openly discussing any kind of illegal activity online (Facebook, Twitter or other)? a) Yes b) No

Public Opinion Poll Should a teacher in a public school be allowed to begin his or her class with a prayer? a) Yes b) No

Public Opinion Poll Should there be a ban on speaking languages other than English in public places? a) Yes b) No

Public Opinion Poll There is quite a bit of discussion in American politics about the legality of abortion. Which one of the opinions below best agrees with your view on this issue? a) Abortions should never be permitted. b) Abortions should be permitted in cases of rape or incest, or if the woman's life is in danger. c) Abortions should always be permitted. d) Abortions should be allowed when a doctor and patient decide it is appropriate.