Chapter Five Civil Liberties Instructor Kevin Sexton Course

Chapter Five Civil Liberties Instructor: Kevin Sexton Course: U. S. Political Systems Southeast Missouri State University

Civil Liberties versus Civil Rights Civil Liberties deal with the Bill of Rights. & Civil Rights deal with laws passed by national and state legislatures. AND……. . CIVIL LIBERTIES are protections from government & CIVIL RIGHTS are protections by government

Protections from Government? Who Is or Who Was The Government? The WHO has changed. Prior to the Civil War the level of government to which the Bill of Rights applied was the federal government. The U. S. Constitution is the rules by which the federal government operate, the Bill of Rights is the first ten amendments to the U. S. Constitution. What did the Civil War change?

Civil Liberties After The Civil War Three CIVIL RIGHTS amendments ratified after the Civil War: 13 th Amendment – Abolished Slavery 14 th Amendment – Redefined Civil Rights & Liberties 15 th Amendment -- Provided The Vote To All Male Citizens 14 th Amendment changes the fact that the Bill of Rights only applied to the federal government. HOW?

Due Process Clause Both the 5 th and 14 th Amendment addresses “due process. ” 5 th Amendment – “. . . nor be deprived of life, liberty, or property without due process of law; …” 14 th Amendment – “… nor shall any State deprive any person of life, liberty, or property with the due process of law; …” WHAT IS THE DIFFERENCE? “… nor shall any “STATE” deprive…”

Selective Incorporation The 14 th Amendment now applies the Bill of Rights to both the federal and state governments. But the federal government was not in a position to do this. The federal government (Supreme Court) implemented a process known as SELECTIVE INCORPORATION The case by case application of each right found within the Bill of Rights. Most, but not all of the Bill of Rights is applied to the States. (i. e. 2 nd Amendment)

Liberties Addressed In The Bill of Rights 1 st – Speech, Press, Assembly and Religion ** 2 nd – Bear Arms 3 rd – Quartering of Troops 4 th-8 th – Rights of Criminally Accused ** 9 th – Necessary and Proper 10 th – Reserved Powers

Are We Always Free To…. . Several things to remember about our Civil Liberties or freedoms: 1. The right to BELIEVE anything we want, is the only right we have that is ABSOLUTE. 2. Your freedoms end where someone else’s freedom begins. (i. e. Listening to Music, keeping your yard cut. )

1 st Amendment (free speech, press, assembly & religion) Freedom of Speech Five Doctrines or Tests that have been used to measure the appropriateness of limits placed on speech. 1. 2. 3. 4. 5. Bad Tendency Test Clear & Present Danger Doctrine Fighting Words Doctrine Balancing Doctrine Fundamental Freedoms Doctrine

Bad Tendency and Clear & Present Danger Bad Tendency Test • English rule that stated that expression could be limited if it could ultimately lead to illegal behavior. • Gave very broad discretion to the English government. • often used to protect the monarchy from criticism. Clear & Present Danger • Established in Supreme Court Ruling in Schenck v. U. S. (1919) • 1 st Major Supreme Court ruling dealing with freedom of speech. • Freedom of expression should be complete unless, the speech “endangered the nation. ” • It left the interpretation of “endanger” open for review. • Did not differ a whole lot from the “Bad Tendency Test. ”

Fighting Words & Balancing Doctrines Fighting Words Doctrine • Established in 1942 Supreme Court ruling in Chaplinsky v. New Hampshire • Stated that some words constitute violent acts and therefore those words are not protected by the 1 st Amendment. • Greatly enhanced the governments ability to limit speech. Balancing Doctrine • Established in the 1951 Supreme Court ruling in Dennis v. U. S. • Stated that freedom of speech had to be balanced against other competing public interests. i. e. – Communist party’s right to free speech as balanced against the governments right to prevent their overthrow. • It reinterpreted and placed limits on the “clear and present danger” test.

Fundamental Freedoms Doctrine • In 1960’s the Courts began using the concept that certain rights, such as speech, press have a preferred position in the Constitution. • Therefore, they must be given extraordinary protections. • Even if the speech was offensive to good taste it should be protected. • Has been the basis of our current policies allowing for very limited instances of limiting free speech rights. i. e. – Papish v. Board of Curators for the University of Missouri

Limits On Free Expression There are some very specific instances when limits can be placed on our speech or expression. Several of those are listed below: 1. Commercial Speech 2. Obscenity 3. Libel/Slander

Commercial Speech or expression for business purposes can be regulated. According to the Supreme Court regulating commercial speech for two primary reasons: 1. To prevent companies from providing false or misleading information, therefore taking advantage of consumers. 2. To limit use of substances deemed harmful by the government. i. e. – Limited cigarette and alcohol advertising Truth in labeling Laws

Obscenity Many people are unsure if obscene material is or should be illegal. The Supreme Court is very clear about this…. Obscene Material is illegal and can be restricted. The question is not IS obscene material illegal. The questions is WHAT is obscene and & WHO determines what is obscene In Miller v California (1973) the Supreme Court stated that LOCAL COMMUNTIY STANDARDS will determine what is considered obscene. Are there any questions about what LOCAL COMMUNITY STANDARDS are? YES How Do We Deal With Internet Pornography and Local Community Standards?

Libel and Slander Libel deals with the written word. Slander deals with the spoken word. Libel and Slander involve false statements made by someone about another person. In order for an ordinary citizen to prove libel or slander they must prove that: 1. The statement was false. 2. The statement caused harm. 3. The statement was made without adequate research into the truthfulness of the statement. IT IS SOMEWHAT DIFFERENT FOR CELEBRITIES. In order for a public official or celebrity to prove libel or slander they must prove the above three things, PLUS 4. That the statement was made with intent to do harm.

Freedom of Religion Two clauses in the 1 st Amendment address religion. Establishment Clause: government will not create a “state religion” Free Exercise Clause: we can practice ANY religion we choose without government interference.

Establishment Clause Separation of church and state Where in the Constitution is this doctrine found? NO WHERE. IT IS NOT FOUND IN ANY HISTORICAL U. S. DOCUMENT. Where does it come from? Thomas Jefferson’s Letter to the Danbury Baptist Association (a copy of this letter is found on the course website) Does this doctrine mean that the government cannot be involved or supportive of any religious organization? NO Governments can provide support to religious schools and organizations as long as there is no excessive entanglements as a result of the involvement.

Establishment Clause (continued) Lemon v Kurtzman (1971) Any state law providing assistance to religious schools must meet the following standards: 1. The law “must have a secular legislative purpose. 2. The laws “primary effect must be one that neither advances not inhibits religion. ” 3. The law must not foster “an excessive government entanglement with religion. ” i. e. YES to textbooks, but NO to teacher salaries

Free Exercise Clause As with other liberties we are free to exercise our own religions however we choose --- within established limits. There is no one test or doctrine that the courts follow. They address each issue on a case by case basis. Here a few examples of religious exercise cases decided by the Supreme Court. Wisconsin v Yoder (1972) – Amish children do not have to attend school. Church of the Lukumi Babalu Aye. Inc. v City of Hialeah (1993) • City wrote law outlawing animal sacrifice in response to the churches practice of sacrificing chickens. Oregon v Smith (1990) – Native Americans denied unemployment after being fired for smoking peyote.

Rights of the Criminally Accused The vast majority of the Bill of Rights deals with the rights of the criminally accused. WHY? The anti-federalist feared that the central government would be able to squash opposition by imprisoning them, as the British did prior to America’s Independence. To prevent that from happening they created a number of guarantees To protect those that might be wrongly accused of a crime. Amendments 4 thru 8 deal with the rights of the criminally accused.

Rights of the Criminally Accused (continued) For the in-class portion of exam one you will need to be Familiar with the court cases presented in this power point As well as those listed in the table found on page 451 of your Textbook. IN ADDITION…… Be familiar with the basic rights of the criminally accused And in which amendment they are covered.