Chapter 5 Civil Liberties Introduction Civil Liberties Individual

Chapter 5 Civil Liberties

Introduction • Civil Liberties – Individual rights and freedoms that government is obliged to protect, normally by not interfering in the exercise of these rights and freedoms. • Due Process – Procedural safeguards that government officials are obligated to follow prior to restricting the rights of life, liberty and property.

Civil Liberties and the States • Incorporation Process – – The application, through the 14 th Amendment, of the civil liberties protections in the Bill of Rights to state Governments

Incorporation

Civil Liberties • Freedom of Expression - Americans’ freedom to communicate their views, the foundation of which is the First Amendment rights of freedom of religion, speech, press, assembly and petition.

Free Expression • Symbolic Speech - Action for the purpose of expressing a political opinion. - “Nonverbal communication” such as gestures and articles of clothing. - Protected the same as “verbal communication”

Free Expression • Prior Restraint – Government intervention to prevent the publications of material it finds objectionable. – Happens “before the fact” – AKA Censorship

Limits on Free Expression • Clear and Present Danger Standard – Standard permits government restrictions on speech if public officials believe that allowing the speech creates a risk – Speech may be restricted if such speech presents a danger to the public order.

Freedom of Expression • Imminent lawless action - Legal test that says government cannot lawfully suppress advocacy that promotes lawless action unless such advocacy is aimed at producing, and is likely to produce, imminent lawless action. - Before the government can lawfully prevent a speech or rally, it must demonstrate that the event will cause harm and demonstrate a lack of alternative ways to prevent that harm.

Freedom of Expression • Obscenity – Most states make it a crime to participate in the trade of obscene materials. – What makes something obscene?

Freedom of Expression • Jacobellis v. Ohio (1964) – Potter Stewart: “I know it when I see it. ”

Freedom of Expression • Miller v. California (1973) – Definition of Obscenity: • If the average person finds that it violates contemporary community standards • The work taken as a whole appeals to a prurient interest in sex • The work shows patently offensive sexual conduct • The work lacks serious redeeming literary, artistic, political or scientific merit

Freedom of Expression • Wearing a black armband in protest of a war? • Burning the American Flag? • Burning a cross on the lawn of an African American family?

Freedom of Expression • Libel - Publication of material that falsely damages a person’s reputation. • Slander - Spoken words that falsely damage a person’s reputation.

Freedom of Expression • Public Figure – Public officials, movie stars, and other persons known to the public because of their positions or activities. • Actual Malice – Either knowledge of a defamatory statement’s falsity or a reckless disregard for the truth.

Freedom of Expression • Hustler Magazine v. Falwell (1988) – Although false statements were made, those statements were not implied to be true. Thus, there was no actual malice. – Further, the course of history would be poorer had political cartoonists not been allowed a degree of parody. As such, to claim this parody was more outrageous than others is too subjective a claim.

Freedom of Expression • Freedom of the press is no longer limited to just the print media, though broadcast media do not receive the same protection as print media. • Film and TV have ratings which they use to regulate themselves. • An FCC license must be obtained to operate over airwaves, thus the FCC can regulate what is said over those waves.

Petition and Assembly • Congress may not abridge “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” • Permits may be permitted to control traffic and public order, but permits may not be denied on the basis of simply disagreeing with the group.

Freedom of Religion • Establishment Clause – A clause in the First Amendment that prevents government from establishing an official religion, treating one religion preferably to another, proselytizing, or promoting religion over no religion

Freedom of Religion • Free Exercise Clause – A clause in the First Amendment that prohibits government from interfering with an individuals’ practice of their religion.

Freedom of Religion • Lemon v. Kurtzman (1971) – Gave us the “Lemon Test” to determine whether federal actions in the realm of religion is constitutional or not. – Dealt with the issue of Federal Aid to Church-Related Schools

Freedom of Religion • A Three part test: – Action must be secular (non-religious in aim) – Action must not have the primary effect of advancing or inhibiting religion – Government must avoid “an excessive government entanglement with religion

Freedom of Religion • School vouchers – “Coupons” which are essentially government money which can be used to purchase education. – Allow students to transfer from failing public schools – Zelman v. Simmons-Harris (2002) found a system of school vouchers to be constitutional

Freedom of Religion • The question of prayer in schools is really a question of whether the States can promote religion in general without promoting any specific religion.

Freedom of Religion • Example prayer from the New York school system, said to promote no particular religion: – Almighty God, we acknowledge our dependence upon Thee, And we beg Thy blessings upon us, our parents, our teachers, and our Country

Freedom of Religion • Engel v. Vitale (1962) – Prayer in school worshipping no particular God – Supreme Court found that “…it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by any government. ”

The Right to Privacy • There is no explicit Constitutional right to privacy, but rather the right to privacy is an interpretation by the Supreme Court. • From the First, Third, Fourth, Fifth, Ninth and Amendments.

The Right to Privacy • Griswold v. Connecticut (1965) – “Right to Privacy” stems from this decision.

The Right to Privacy • Right of privacy - Right implied by the freedoms in the Bill of Rights that grants individuals a degree of personal privacy upon which government cannot lawfully intrude. The right givers individuals a level of free choice in areas such as reproduction and intimate relations.

The Right to Privacy • Roe v. Wade (1973) – During the first trimester, the issue of abortion is a private matter between a woman and her doctor. – Still, states differ on how easy or hard it is for a woman to get an abortion – Freedom of Access to Clinical Entrances Act (1994)

The Right to Die • Cruzan v. Director, Missouri Department of Health (1997) – A patient’s life support could be withdrawn at the request of a family member if there was “clear and convincing evidence” that the patient did not want the treatment. This has led to the popularity of “living wills. ” • Physician–Assisted Suicide – There is no Constitutional right to suicide, either assisted or unassisted, thus the issue is left to the states. (Only Oregon currently has it)

Rights of the Accused • Procedural Due Process - The constitutional requirement that government must follow proper legal procedures before a person can be legitimately punished for an alleged offense.

Rights of the Accused • Fourth Amendment – No unreasonable or unwarranted search or seizure – No arrest except on probable cause • Fifth Amendment – No coerced confessions – No compulsory self-incrimination

Rights of the Accused • Sixth Amendment – – Legal counsel Informed of charges Speedy and public jury trial Impartial jury by one’s peers • Eighth Amendment – Reasonable bail – No cruel or unusual punishment

Rights of the Accused • Miranda v. Arizona (1966) • Miranda Warning – Ruling that requires police, when arresting subjects, to inform them of their rights, including the right to remain silent and have an attorney present during questioning.

Rights of the Accused • Exclusionary Rule – Principle established by the Supreme Court, according to which evidence gathered illegally cannot be introduced into trial, and convictions cannot be based on this evidence. – Illegal evidence is not grounds to completely dismiss charges.