Civil Liberties And Public Policy Civil Liberties l

Civil Liberties And Public Policy

Civil Liberties l l Individual legal & constitutional protections against the government Set down in the Bill of Rights What rights do Americans have? What rights do Americans deserve?

Fourteenth Amendment l l l “…nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws. ” Makes all states have to uphold the First Amendment according to the incorporation doctrine first established by Gitlow v. New York (1925) Aka selective incorporation

First Amendment l Establishes the “five great liberties” • Press • Speech • Religion • Assembly • Petition the government

Freedom of Religion: Establishment clause l l l Debate over interpretation What does the establishment clause mean? Should there be separation of church and state? • Engel v. Vitale (1962) • Should prayer be allowed in schools? • no school prayer • Lemon v. Kurtzman (1971) • Should governments fund church related schools? • regulates aid to church-related schools: “Lemon test”

Freedom of Religion: Free exercise clause l Prohibits government from interfering with practice of religion • l Reynolds v. U. S. (1879) • • • l Much less controversial Should polygamy be allowed as part of a Mormon man’s religious duty? Polygamy is not protected “religious duty” Difference between religious belief and action that flows from religious belief Oregon v. Smith (1990) • • Should you be allowed to take illegal drugs (peyote) in a religious ceremony? Can’t do illegal things because of your religion

Freedom of Religion l l Sebelius v. Hobby Lobby (2014) Should a for-profit company be allowed to deny its employees health coverage of contraception based on religious objections of the company’s owners?

Free Expression l l l l Free speech and press Should you be able to say anything? Tinker v. Des Moines (1969) • • Should students have free speech in school? Yes, if it doesn’t interfere with school Should the press be allowed to publish anything? First Amendment Rights Are Not Absolute Should student publications be treated differently than privately held media outlets? Do school administrators have special responsibilities to censor student produced publications?

Freedom of Expression: Free Speech & Public Order l l Biggest conflict between press and government Schenck v. U. S. (1919) • Should you be allowed to tell people to resist • • the draft? upheld conviction of socialist urging draft resistance Limits speech that promotes “clear and present danger” of substantive evils

Freedom of Expression: Obscenity (*&^%$!) l l l Obscenity is not constitutionally protected speech or press What is obscenity? Justice Potter Stewart, “I know it when I see it” [Jacobellis v. Ohio (1964)] l Miller v. California (1973) • Should a porn store be able to send out a brochure with • graphic images from its products? Three-prong standard for obscenity = Miller test 1. 2. 3. Appeal to a “prurient interest in sex” “Patently offensive” sexual content Lacks “serious literary, artistic, political or scientific value”

Freedom of Expression: Libel & Slander l l What’s the difference? Are they allowed? Slander = spoken defamation Libel = written defamation = not protected NY Times v. Sullivan (1964) • Should the press be allowed to publish false • • statements about the conduct of public officials? Public figures need to prove that statements were intentionally malicious Private individuals only need to show that statements were defamatory lies and the author was negligent

Freedom of Expression: Symbolic Speech l Texas v. Johnson (1989) • Should you be able to burn the American flag • • as a protest statement? Supreme Court struck down law banning flag burning Symbolic speech is protected by the First Amendment

Commercial Speech l l l Advertising = much more restricted than other types of speech Regulated by the Federal Trade Commission (FTC) Radio & TV regulated by the Federal Communications Commission (FCC) • More government regulation than print media • Limited number of broadcasting frequencies

Freedom of Assembly l l What is it? Right to gather together to make a statement within reasonable limits • Time, place, and manner restrictions l l Right to associate with people who share a common interest NAACP v. Alabama (1958) • Should the NAACP be forced to reveal the names • • and addresses of all its members? NAACP did not have to reveal its membership Protected right to assemble

The Right to Bear Arms l l Is it an individual right? Can there be limits on it?

Defendants’ Rights l Most of the Bill of Rights is about protecting people accused of crimes • Fourth, Fifth, Sixth, Seventh, and Eighth Amendments l Stages of criminal justice system: • Crime arrest prosecution trial verdict / punishment

Defendants’ Rights: Searches & Seizures l l Fourth Amendment prohibits unreasonable s & s Need probable cause for search warrant • Reasonable grounds to believe someone • guilty of crime Written authorization from court specifying area to be searched and what’s being searched for

Searches & Seizures: Exclusionary rule l l Prevents illegally seized evidence from being used in court Mapp v. Ohio (1961) • Should evidence obtained in an illegal search • • • and seizure be admissible in court? Extended exclusionary rule to the states Critics believe this allows guilty people to go free because of police incompetence or human error Court has increasingly made some exceptions to exclusionary rule since 1980 s

Defendants’ Rights: Self-Incrimination l l l “Pleading the Fifth”: suspects need not provide evidence that can later be used against them Immunity = exempt from prosecution in exchange for testimony Miranda v. Arizona (1966) • Should police be allowed to interrogate you without telling you of your right to counsel and protection against selfincrimination? • Court established guidelines for police questioning • Remain silent • What they say can be used against them • Right to an attorney

Defendants’ Rights: Right to Counsel l l Guaranteed by the Sixth Amendment (for federal courts) Gideon v. Wainwright (1963) • Should right to counsel extend to felony • defendants in state courts? Yes

Defendants’ Rights: Post-9/11 l Sixth Amendment guarantees that accused have the right • to be informed of accusations and • to have a speedy and public trial l After 9/11 FBI held more than 1200 people as possible dangers to national security • 762 illegal aliens • Many languished in jail for months until cleared by FBI

Defendants’ Rights: Post-9/11 l l l First time in U. S. history federal government withheld names of detainees Argued that this info would help terrorists Hamdi v. Rumsfeld & Rasul v. Bush (2004) • Should “enemy combatants” get Due • Process? Yes

Defendants’ Rights: Cruel & Unusual Punishment Forbidden by Eighth Amendment l Most of constitutional debate is centered on: Is the death penalty cruel and unusual punishment? l Furman v. Georgia (1972) l • • l Death penalty is not cruel and unusual The way it’s being carried out is (arbitrary, racially biased) Gregg v. Georgia (1976) • Does not violate Eighth or Fourteenth Amendments

l l l Right to Privacy Should we have this right? Not explicitly in the Bill of Rights -- Implied? Griswold v. Connecticut (1965) • Does a law banning birth control violate a couple’s • right to marital privacy? Bill of Rights grants unstated liberties implied by explicitly stated rights • First, Third, Fourth, and Ninth Amendment right to privacy in marital relations

Right to Privacy: Abortion l l l Should abortions be legal under any circumstances? Should abortions be legal in certain circumstances? Should abortions be legal in all circumstances?

Right to Privacy: Abortion l l Roe v. Wade (1973) Divided pregnancy into three trimesters • 1 st: Forbade any government control of • • l abortions 2 nd: Permitted states to allow regulated abortions only to protect mothers’ health 3 rd: Allowed states to ban except when life or health of mother is in danger Not overturned, but restricted

Abortion rights: Restrictions l l Congress has passed several laws forbidding use of federal funds Webster v. Reproductive Health Services (1989) • Do any of these laws infringe on right to privacy or equal protection? • Public employees and facilities can’t be used in performing or • • assisting abortions Counseling to have abortions prohibited Viability testing after 20 weeks • Upheld Missouri laws

Abortion rights: More restrictions l Planned Parenthood v. Casey (1992) • Do any of these laws violate Roe? • 24 hour waiting period • Parental/judicial consent for minors • Husband notification requirement • Only the third fails “undue burden” test • Gave government more power to regulate abortions