Civil Liberties

1. Civil Liberties Wilson Ch. 5

2. The Politics of Civil Liberties • Civil liberties: protections the Constitution (FOR ALL AMERICANS) provides against the abuse of government power • The Framers believed that the Constitution limited government • State ratifying constitutions demanded the addition of the Bill of Rights

3. The Fourteenth Amendment (1868) • Due Process Clause: “no state shall deprive any person of life, liberty or property without due process of law” • Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws” SELECTIVE INCORPORATION

4. Supreme Court Cases • 1897: no state can take private property without just compensation • 1925 (Gitlow): federal guarantees of free speech and free press also apply to states • 1937 (Palkov. Connecticut): certain rights must apply to the states because they are essential to “ordered liberty” and they are “principles of justice” • These cases begin the process of “selective incorporation”

5. Selective Incorporation • It is the act of making the Bill of Rights applicable to the states (started since 1925) • This restricts the state’s actions on citizens

6. First Amendment Rights • Civil liberties cases almost always relates to the 1st Amendment • Freedom of expression and national security • Press should be free of prior restraint – government censorship of press in advance of publication • Press needed to accept consequences • Treason, insurrection, forcible resistance to fed. laws, and encouraging disloyalty in armed services = illegal • “Clear and Present Danger” test – danger to public • Hate speech vs. Hate crimes

7. What kinds of speech is not protected by the 1st Amendment?

8. Libel • Libel: a written false statement defaming another • Slander: a defamatory oral statement • Public figures must also show the words were written with “actual malice”—with reckless disregard for the truth or with knowledge that the words were false

9. Obscenity (Federal Comm. Commission) • 1973 definition: judged by “the average person, applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value” • Balancing competing claims remains a problem: freedom v. decency

10. Symbolic Speech • Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message (example: burning a draft card) • However, statutes cannot make certain types of symbolic speech illegal: e.g., flag burning is protected speech

11. Who/What is protected under the 1st Amendment?

12. Defining a person… • Corporations and organizations have similar rights to individuals • Commercial speeches are restricted to serve public • Younger people have fewer rights

13. How are religious rights protected under the 1st Amendment?

14. The Free Exercise Clause • Insures that no law may impose particular burdens on religious institutions • But there are no religious exemptions from laws binding all other citizens, even if that law oppresses your religious beliefs • Some conflicts between religious freedom and public policy continue to be difficult to settle.

15. The Establishment Clause • Government involvement in religious activities is constitutional if it meets the following tests (Lemon v. Kurtzman): • Secular purpose • Primary effect neither advances nor inhibits religion • No excessive government entanglement with religion

16. What are the rights of the accused (people suspected of a crime)?

17. Rights of Defendants • The Fourth Amendment protects against unreasonable searches and seizures and requires search warrants. • The Fifth Amendment protects against self-incrimination. • The Sixth Amendment says the accused has a right to counsel. • The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.

18. Exclusionary Rule • Exclusionary rule: evidence gathered in violation of the Constitution cannot be used in a trial • Stems from the Fourth Amendment (freedom from unreasonable searches and seizures) and the Fifth Amendment (protection against self incrimination) • Mapp v. Ohio (1961): Supreme Court began to use the exclusionary rule to enforce a variety of constitutional guarantees

19. Search and Seizure • With a properly obtained search warrant: an order from a judge authorizing the search of a place and describing what is to be searched and seized; judge can issue only if there is probable cause • What can the police search, incident to a lawful arrest? • The individual being arrested • Things in plain view • Things or places under the immediate control of the individual

20. Confessions and Self Incrimination • Miranda case: confessions are presumed to be involuntary unless the suspect is fully informed of his or her rights • Miranda rights apply once a suspect is in custody. • Courts began allowing some exceptions to the rule

21. Right to Counsel • The Sixth Amendment provides the accused with a right to have the assistance of counsel for his defense. • Gideon v. Wainright (1963) says that the state must provide an attorney in felony cases if the accused cannot afford one. This was an unfunded mandate.

22. Death Penalty • Furman v. Georgia (1972): the death penalty, was applied in a freakish and random fashion and was, in this particular case, unconstitutional. • States rewrote their death penalty statutes to include aggravating and mitigating factors • Gregg v. Georgia (1976): the death penalty is an expression of society’s outrage.

23. Terrorism and Civil Liberties • 9/11 Attacks • U.S. Patriot Act meant to increase federal government’s powers to combat terrorism • An executive order then proclaimed a national emergency; non-citizens believed to be terrorists, or to have harbored a terrorist, will be tried by a military court • Many controversial provisions of the Patriot Act automatically expire in 2005 (renewed in 2006 with changes)

24. Patriot Act • Government may tap any telephone used by a suspect after court order • Government may tap Internet connections with a court order • Government may seize voicemail with court order • Investigators can share information learned in grand jury proceedings • Non-citizens may be held as security risk • Federal government to track money across US borders • Statute of limitations on terrorist crimes eliminated

25. Military court • Noncitizens who harbor terrorists or is a terrorist will be tried in military courts: • Tried before military officers • 2/3s vote needed to find the person guilty • Appeal for case is made to secretary of defense or president