Aim: Why are CIVIL LIBERTIES contentious issues in American government and politics?

1. Aim: Why are CIVIL LIBERTIES contentious issues in American government and politics? DO NOW: • Why did the anti-federalists insist upon the inclusion of a bill of rights in exchange for ratification of the new Constitution? • Explain the significance of the following: “Majority rule will only work if you’re considering individual rights. You can’t have five wolves and one sheep vote on what they want to have for supper” -Flynt

2. CIVIL LIBERTIES THREE THEMES • Why liberties mentioned in Bill of Rights were thought to be important? • How the Bill of Rights came to apply to the states? • Why civil liberties have grown in scope and meaning? THIS CHAPTER FOCUSES ON THE 1ST AMENDMENT (SPEECH, RELIGION) AND CRIME AND DUE PROCESS

3. CIVIL LIBERTIES POLITICS, CULTURE, AND CIVIL LIBERTIES • Bill of Rights – important limitation on popular rule • There are things a government cannot do even if a majority wants them done • Why do “liberties” claimed become an issue? -rights in conflict (interest group politics) -Passions may be inflamed by a skilled policy entrepreneur -Political culture of U.S. contains principles that are in conflict

4. CIVIL LIBERTIES RIGHTS IN CONFLICT • Bill of Rights/Constitution • Contain competing rights and duties • One person asserts one right and another person asserts another right • Examples -right to fair trial v. right to broadcast -right to “provide for common defense” (right to keep secrets) v. right to publish secrets -free-speech v. preservation of public order

5. CIVIL LIBERTIES POLICY ENTREPRENEURS • Policy entrepreneurs can sometimes arouse people to take action against the rights and liberties claimed by political or religious dissidents • Crisis often helps in success • Examples: • Sedition Act (1798) – crisis/tension between U.S./France –Federalist didn’t want any “false, scandalous, or malicious” writing against the gov’t – NO PRIOR RESTRAINT – punish editors after the fact EXAMPLES CONTINUE ON NEXT SLIDE

6. CIVIL LIBERTIES 2.Espionage and Sedition Acts (1917-1918) – crime to utter false statements that would interfere with the American military, to send through the mail materials “advocating or urging treason, insurrection, or forcible resistance to any law of the U.S.” • Occasion WWI • More than 2000 people prosecuted; ½ convicted (Red Scare)

7. CIVIL LIBERTIES • The Smith Act (1940), Internal Security Act (1950), Communist Control Act (1954) • Made it illegal to advocate overthrow of U.S. government by force, required members of Communist party to register with government, declared the communist party to be part of conspiracy to overthrow government • Occasion WWII, Korean War • Policy entrepreneur – Senator Joseph McCarthy

8. CIVIL LIBERTIES WHAT DID THE PREVIOUS LAWS HAVE IN COMMON? • An effort to protect the nation from threats (real /imagined) posed by people who claimed to be exercising their freedom to speak, publish, organize, and assemble • In each case a real threat led the government to narrow the limits of permissible speech and activity • ***TODAY, to be found guilty of sedition it is usually necessary to do something more serious than just talk

9. CIVIL LIBERTIES CULTURAL CONFLICTS • Rooted in our cultural diversity (becoming increasingly more so) • Originally WASP dominated • Pattern of immigration created more diversity • Some escaping religious persecution, economic hardship, or political conflict

10. CIVIL LIBERTIES EXAMPLES OF CULTURAL CONFLICTS: • Does a religious display on public property violate the 1st Amendment’s requirement that the government pass no law “respecting an establishment of religion”? • Is bilingual education constitutionally required? • Can pornographic establishments be located in community mall?

11. SUMMARY Why are CIVIL LIBERTIES issues contentious ones in American government and politics?

12. AIM: Are there constitutional restrictions to free speech? Do Now: • Why was a Bill of Rights introduced into the first session of Congress following the ratification of our Constitution? • Why are civil liberties issues in the United States so contentious? • INTERPRETING AND APPLYING THE 1ST AMENDMENT • Freedom of expression • Freedom of religion

13. CIVIL LIBERTIES SPEECH AND NATIONAL SECURITY • Press enjoys freedom from prior restraint or ____________. • Sedition Act (1798) • Sedition and Espionage Act (1917-1918) -placed restrictions not on publications that were critical of government but also on those that advocated “treason, insurrection, or forcible resistance” to federal laws or attempted to foment disloyalty or mutiny in the armed services • Schenck v. U.S. • Justice Oliver Wendell Holmes • “clear-and-present-danger” • A way of balancing the competing demands of free-expression and national security • Gitlow v. New York (selective incorporation case)

14. CIVIL LIBERTIES OTHER TEST OF FREE-SPEECH • See text p. 507 • When a crisis appears, the Court has tended to defer, up to a point, to legislative judgments about the need to protect national security • Crisis wanes – tips balance back towards free speech • “calculate to incite” • “imminent danger” • 1977 – Skokie, Illinois case • 1992 – Supreme Court overturned a Minnesota statute that made it a crime to display symbols or objects, such as Nazi Swastika or a burning cross, that are likely to cause alarm or resentment

15. CIVIL LIBERTIES WHAT IS SPEECH? • What is NOT protected as free speech? (Libel, Slander, Obscenity) • LIBEL – written statement that defames the character of another • SLANDER – oral statement that defames the character of another ***you must show that the libelous statement was false and damaging; “actual malice”; reckless disregard for their truth or falsity or with knowledge that they were false

16. CIVIL LIBERTIES OBSCENITY • Not protected by 1st amendment • But….what is “obscene” • Justices widely vary in opinions • 1957-1968 • 13 major cases • 55 separate opinions • Justice Potter Stewart • Objected to “hard-core pornography” • But admitted that the best definition he could offer was “I KNOW IT WHEN I SEE IT.” • 1973 – latest definition of obscenity (see text)

17. CIVIL LIBERTIES SORRY, MORE “OBSCENITY” • Competing claims – liberty v. decency • Concerns?: for example, is there a link between pornography and unacceptable social behavior?….does it perpetuate the “rape myth”? • Current view of the Court….leave it to localities • Is nude dancing protected as free speech? • Feminists and pornography? • How can a locality constitutionally limit the spread of pornographic material? • Effect of Internet on pornography • Computer generated images

18. CIVIL LIBERTIES SYMBOLIC SPEECH • Is it protected as free-speech? • It depends. • You cannot ordinarily claim that an illegal act should be protected because that action is meant to convey a political message • Example – burning a draft card • Why? • Court reasoned that giving such symbolic speech the same protection as real speech would open the door to permitting all manner of illegal actions – murder, arson, rape – if the perpetrator meant to send a message • BUT you can burn an American flag? Why?

19. CIVIL LIBERTIES WHO IS A PERSON? • Persons enjoy the protection of free speech • But, who is a person • Corporations, interest groups, children • Do they have the same 1st Amendment rights? • Mostly, but not entirely • Examples?? • Citizens United case

20. CIVIL LIBERTIES: Why are civil liberties issues so contentious? FREE-SPEECH DISCUSSION QUESTIONS • Are there constitutional restrictions to free-speech? • If so, what are they? • What is the significance of the Schenck and Gitlow cases? • How has the Supreme Court dealt with the issue of obscenity? • What is SELECTIVE INCORPORATION? • What case selectively incorporated the 1st Amendment to apply to the states? • Why can one burn the American flag but not a draft card and have it protected as free-speech? • SEE TEXT FOR FIRST AMENDMENT CASES – “HOW WOULD YOU DECIDE?”

21. Aim: How have the clauses pertaining to religion in the 1st amendment been interpreted? Do Now: • Identify 4 clauses in the 1st amendment that pertain to free-expression. • What Supreme Court case established the “clear and present danger” test? • Is “symbolic speech” protected as free speech? • Why is the 14th amendment’s “due process” clause considered one of the most important clauses in the Constitution? • Identify 2 clauses in the 1st amendment pertaining to religion.

22. Aim: How have the clauses pertaining to religion in the 1st amendment been interpreted? CHURCH AND STATE (1ST AMENDMENT) “FREE- EXERCISE” CLAUSE – Congress shall make no law prohibiting the “free-exercise” of religion • What does this mean? • Are there any limits? • Oregon v. Smith • Reynolds v. U.S. • What if you believe that on religious grounds war is immoral? Can you be drafted?

23. CIVIL LIBERTIES ESTABLISHMENT CLAUSE • Congress shall make no law “respecting an establishment of religion” • Supreme Court has determined this vague phrase to mean that the Constitution erects a “WALL OF SEPARATION” of Church and State. • Used to keep prayer out of schools even if it is non-sectarian, voluntary or limited to reading a passage of the Bible (Engel v. Vitale – 1962) • 3 part test established to decide under what circumstances government involvement in religious activities is improper • Constitutional if… (Lemon v. Kurtzman – 1971) • It has a secular purpose • Its primary effect neither advances nor inhibits religion • It does not foster an excessive government entanglement with religion

24. CIVIL LIBERTIES CHURCH AND STATE • Confusing rulings • Bible club in public schools, nativity scene on public property, requirement to teach “creationism” in public schools, and more… • No prayer in schools but Congress starts each session with a prayer • Public school cannot have a chaplain, but armed services can • Court has said that government cannot advance religion yet “In God we Trust” on money • See reading box p.558

25. Aim: How have the clauses pertaining to religion in the 1st amendment been interpreted? SUMMARY: • What two clauses in the 1st amendment pertain to religion? • Which clause has been interpreted to mean there shall be a “wall of separation” between church and state? • What is the significance of the Reynolds case?...Oregon case? • What is the significance of Engel v. Vitale? • What is the significance of Lemon v. Kurtzman?

26. Aim: Why are CIVIL LIBERTIES contentious issues in American government and politics? DO NOW: • Identify four clauses in the 1st amendment that pertain to free-expression? • Identify two clauses in the 1st amendment that pertain to religion? • Identify one landmark case that we reviewed pertaining to “free speech”. • Identify one landmark case that we reviewed pertaining to the “establishment clause”?... “free exercise” clause?

27. CIVIL LIBERTIES CRIME AND DUE PROCESS THE EXCLUSIONARY RULE • Rule holds that evidence gathered in violation of the Constitution cannot be used in a trial • Used to implement provisions of the Bill of Rights • The right to be free from unreasonable searches/seizures (4th Amendment) • Right not to be compelled to give evidence against oneself (5th Amendment) 1961 – MAPP V. OHIO - exclusionary rule - warrant – look for what’s on warrant - selective incorporation of 4th Amendment and exclusionary rule

28. Civil Liberties: Crime and Due Process DO NOW: What is the significance of Mapp v. Ohio (1961)?

29. CIVIL LIBERTIES SEARCH AND SEIZURE • WHEN CAN THE POLICE SEARCH YOU WITHOUT IT BEING UNREASONABLE? • 2 circumstances • Search warrant (probable cause) • When they have lawfully arrested you • WHEN CAN YOU BE ARRESTED? • Judge issues warrant for your arrest • Commit a crime in the presence of a police officer • Or if officer has probable cause to believe that you have committed a serious crime

30. CIVIL LIBERTIES CRIME AND DUE PROCESS • In general, the police, after arresting you can search… • You • Things in plain view • Things or places under your immediate control • Usually means the “room” you’re in (not the whole house or the car in your driveway • Court has tried to protect those places in which a person has a “reasonable expectation of privacy” • Your body is one such place (bullet in body) • Yet the police can require a Breathalyzer test

31. CIVIL LIBERTIES TESTING FOR DRUGS/AIDS • AIDS tests – 1987 – new immigrants, federal prisoners, and certain other categories of people • Drug Abuse – Reagan – 1986 – federal government employees tested • Numerous private firms and major league sports already required such testing • Is drug-testing by a government agency an improper search? • Yes and no • No, in certain types of employment (law enforcement/railroad employees involved in accident) • In short, a concern for public safety or national security can justify government ordered drug test • Same rules justify “road blocks”, “randomly checking drivers” • Also allowed random drug-testing of high school athletes

32. CIVIL LIBERTIES CONFESSIONS AND SELF-INCRIMINATION • ESCOBEDO AND MIRANDA CASES • Miranda v. Arizona • Rape/kidnapped • Rights weren’t read • Confession was excluded • Conviction was overturned • Selective incorporation case – 5th Amendment applied to states through due process clause of 14th Amendment

33. Aim: Why are CIVIL LIBERTIES contentious issues in American government and politics? DO NOW: • What is the significance of the ruling in Mapp v. Ohio? • What is the significance of the ruling in Escobedo v. Illinois? • What is the significance of the ruling in Miranda v. Arizona?

34. CIVIL LIBERTIES RELAXING THE EXCLUSIONARY RULE • Should criminals get off on “technicality”? • Why not just sue police if they violate evidence rule? • Are these rules too “technical”? • How can these rules be effective if the police don’t understand them? • Good-faith exception

35. Gideon v. Wainwright • See Packet • 6th amendment • Right to an attorney • Selective incorporation of public defender

36. Aim: Why are CIVIL LIBERTIES contentious issues in American government and politics? SUMMARY: See homework essay packet