Chapter 5

1. Chapter 5 Civil Liberties

2. 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.

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

4. Incorporation

5. 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.

6. 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”

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

8. 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.

9. 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.

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

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

12. 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

13. 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?

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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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

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

21. 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

22. 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

23. 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

24. 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.

25. 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

26. 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.”

27. 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.

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

29. 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.

30. 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)

31. 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)

32. 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.

33. 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

34. 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

35. 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.

36. 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.