CIVIL LIBERTIES

1. CIVIL LIBERTIES We often believe that our civil liberties as a set of principles that protect the freedoms of all of us all of the time. That is only true up to a point.

2. The Politics of Civil Liberties • The Framers believed that the Constitution limited government • What was not specifically allowed was obviously not allowed. • States ratifying constitutions demanded the addition of the Bill of Rights • Bill of Rights seen as specific restrictions on federal government actions • Bill of Rights not originally understood as applying to state government actions • Civil liberties • Protections the Constitution provides against the abuse of government power • Civil rights • Protecting certain groups against discrimination

3. RIGHTS IN CONFLICT • The Constitution and the Bill of Rights contain a list of competing rights and duties. That competition becomes obvious when one person asserts one constitutional right or duty and other person asserts a different one • Samuel Sheppard case • New York Times v United States • Kunz v New York • Struggles over rights follow a pattern similar as interest groups politics involving economic issues • Claims are made by individuals • Organized interest groups concerned with civil liberties • ACLU • Fraternal Order of the Police

4. War has been a crisis that has most often restricted liberty • 1. The Sedition Act (French Revolution) • Made it a crime to write, utter, or publish any false scandalous and malicious writings with the intention of defaming the president, congress. • 2. Espionage and Sedition Act (WWI) • Aimed at German Americans • Crime to utter false statements that would interfere with the American military, to send through the mail materials advocating or urging treason. • 3. Smith Act • Made it illegal to advocate the overthrow of the U.S. government by force • 4. Internal Security Act • Forced members of the communist party to register with the government. • 5. Communist Control Act • Declared the communist party of a conspiracy to overthrow the government

5. These laws all were done to protect the nation • Threats real or imagined posed by people who claimed to be exercising their freedom to speak, assemble. • Government under a real threat narrowed the limits of permissible speech and activities • What is the Supreme Courts role?

6. Cultural Conflicts • Conflicts about the meaning of some constitutionally protected freedoms surround the immigration of new ethnic, cultural, and or religious groups. • Jews offended by creches at Christmas • English-speakers/ Spanish in schools • Gay men serving as boys scout troop leaders. • Differences even within a single cultural tradition on the balance between community sensitivities and personal self expression • pornography

7. Applying the Bill of Rights to the states • Before the Civil War, Constitution and the Bill of Rights were understood to apply only to the federal government not to state governments • With the passage of the 14th amendment that started to change • Due process clause • no state shall deprive to 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.

8. Supreme Court used both clauses to apply certain rights to state governments • 1897 the court said no state could take private property without just compensation. • 1925 Gitlowv New York • Declared federal guarantees of free speech and free press also applied to the states • 1937 Palko v Connecticut double jeopardy 5th Amendment • Certain rights must apply to the states because they are essential to ordered liberty and are fundamental to our system of justice • In these cases the Court began a process of selective incorporation by which some, but not all federal rights also applied to the states • Which rights are so fundamental that they ought to govern the states? The answer is not clear

9. Bill of Rights in now generally applied to the states except for • 3rd amendment quartering troops • 5th amendment indicted by grand jury • 7th amendment right to jury trial in civil case • 8th amendment ban on excessive bail and fines • The second amendment may or may not apply to the states • 2008 a case in Washington D.C., the Supreme Court ruled the federal government did not have a right to ban the private possession of firearms. DC v Heller • 1. will the ban be incorporated, via the 14th amendment to the states? • 2. will the government still be able to regulate the purchase and use of guns? • Court precedents would suggest yes.

10. INTERPRETING AND APPLYING THE FIRST AMENDMENT • The first Amendment has two parts • 1. protecting freedom of expression • Freedom of press, speech, right to petition, assemble • 2. protecting freedom of religion • SPEECH AND NATIONAL SECURITY • William Blackstone believed that the press should be free of prior restraint (censorship) but then must accept the consequences if a publication is improper or illegal • Sedition Act 1789 followed Blackstone’s view • Jury trial, not a judge’s decision • Defendant would be acquitted if it could be proved that information was truthful.

11. Congress defines limits of expression 1917-18 • Restrictions not on publications that were critical of the government. Instead treason, insurrection, forcible resistance to federal law, encouraging disloyalty in the armed services not protected by the first amendment. • Schenck v United States 1919 (espionage act) • Supreme Court upheld the conviction via the clear-and –present-danger test. • Change in national-state relationship • Supreme Court initially denied that due process clause made the bill of rights applicable to the states • Gitlow v New York when due process clause was applied to protect fundamental personal rights from infringement by the states.

12. The clear-and-present-danger test was a way of balancing the competing demands of free expression and national security • As the memory of WWI and the Red Scare went away the court started to shift the balance more toward free expression. • But when crisis reappeared (WWII Korean War) the court has tended to defer, up to a point, to legislative judgment about what was needed to protect national security.

13. What is Speech • If most political speaking or writing is permissible, except that which actually incites someone to take illegal actions. • What kinds of speech are not fully protected? • Libel • Written statement defaming another by false statement • Defamatory oral statement slander • Author or publisher engaging in libel may be sued for civil damages • Public figures must show the words were written with actual malice with reckless disregard for the truth or with knowledge that the words were false.

14. Obscenity • IT is not protected by the first amendment and can be regulated by the states • No enduring and comprehensive definition of obscenity • 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 versus decency • Localities decide whether to tolerate pornography but must comply with strict constitutional test if they decide to regulate it.

15. Symbolic Speech • Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message (burn draft card) • However, statues cannot make certain types of symbolic speech illegal: flag burning • Why is it unconstitutional to have a law on flag burning but not draft cards.

16. Commercial and Youthful Speech • Do interest groups, corporations, and children have the same right of free speech as others? • For the most part the answer is yes some exceptions • Minors may have less freedom of expression than adults • Hazelwood 1988 Supreme Court held that the principal could censor articles appearing in the student-edited newspaper • Court ruled that students do not shed their constitutional rights to freedom of speech, expression at the school house door and they can not be punished for expressing on campus their views, But students do not have the exact rights as adults if the exercise of those rights impedes the educational mission of school. • Students may lawfully say things on campus, as individuals, that they cannot say if they are part of a school-sponsored activity. • Tinker v Des Moines

17. Commercial speech • First National Bank of Boston wanted to spend money to influence a local election and the attorney general of Massachusetts tried to stop it. • Court blocked the attorney general saying that a corporation, like a person, has first amendment rights • Federal government tried to limit the spending of a group Massachusetts Citizens for Life. • Court ruled that such organizations have first amendment rights. • Courts have also told states that they cannot forbid liquor stores to advertise their prices and informed federal authorities that they cannot prohibit casinos from plugging gambling. • California Public Utility Commission tried to compel one of the utilities it regulated to enclose in its monthly bills statements written by groups attacking the utility. • Supreme Court block the agency saying that forcing it to disseminate political statements violated the firms free speech rights.

18. Even though corporations have some first amendment rights, the government can place more limits on commercial than on noncommercial speech. • Restrictions on advertisements • Cigarette • Liquor • Gambling • Also regulate advertising products provided that the regulations are narrowly tailored and serve a substantial public interest.

19. Big exception to the free-speech rights for corporations and labor unions • McCain-Feingold campaign finance reform law (2002) • Organizations could not pay for electioneering communications on radio TV that refer to candidates for federal office within 60 days before the election. • Groups believed that this law banned legit speech • ACLU, NRA, AFL-CIO • McConnell v Federal Election Commission • Court upheld the law saying ads that only mentioned but did not expressly advocate a candidate were ways of influencing the election. • 2007 the court held that McCain-Feingold law could not be used to prevent an organization from running an ad urging people to write to Senator Feingold right before a primary election in which he was a candidate, urging him to vote for certain judicial nominees. • said noting about supporting or opposing him so the ad was a issue advocacy and was protected by free speech.

20. Church and State • People believe wrongly, that the language of the first amendment clearly requires the separation of church and state. It does not. • What the amendment actually says is different and unclear. It has two parts • 1. free-exercise clause • Congress shall make no law prohibiting the free exercise of religion. • 2. establishment clause • Congress shall make no law respecting an establishment of religion.

21. Free-Exercise Clause • Since the first amendment has been applied to the states via the due-process clause of the 14th amendment, it means that state governments cannot pass such laws • Laws that do not appear on their face to apply to churches may be unconstitutional if their enforcement imposes particular burdens on churches or greater burden on some churches than others • Hialeah Florida / Santeria • Jehovah’s witness / license fee on door to door solicitors

22. Having the right to exercise your religion freely does not mean that one is exempt from law, even if the law goes against your religion • Polygamy • Vaccination/blood transfusion • Peyote Oregon v Smith • Hare Krishnas begging in airports. • Some conflicts between religious belief and public policy are hard to settle • Religion you believe war is immoral v draft laws • Supreme court has said that people cannot be drafted if they do not believe in a God or belong to a religion so long as their objection is based deeply held moral, ethical or religious beliefs, would give the person no peace if they were forced to fight. • How is this a problem for the courts?

23. Establishment Clause • Supreme Court has interpreted this clause to mean that the constitution built a wall of separation between church and state. • This is not in the Bill of Rights ( Jefferson) • The ambiguous phrasing of the first amendment requires Supreme Court interpretation • It has declared that these words do not simply mean no national religion but mean as well no government with religion at all even on a nonpreferentialbasis • Wall of separation principle • 1947 a case in New Jersey allowing parents both public and Catholic schoolchildren to be reimbursed for the cost of busing their kids to school. (Everson v Board of education) • Court ruled the reimbursement was constitutional but made it clear that the establishment clause applied to the states via the 14th amendment • Why is it constitutional busing is religiously neutral

24. Since 1947, the court has applied the wall of separation theory to strike down as unconstitutional most efforts to have any form of prayer in public schools (Lee v Weisman) • Since 2000. it has been unconstitutional for a students to lead prayer at a public high school football game because the student was using public-address equipment provided by the school and under the supervision of the faculty. • Santa Fe Independent School District v Doe • Court has been clear that public school students could pray voluntarily during the school day provided that school or government did not sponsor it • Court has held that laws prohibiting teaching evolution or requiring giving equal time to creationism are religiously inspired and thus unconstitutional. • A public school is not allowed to have in-school released time for religious instruction. (Zorauch v Clauson)

25. Court- imposed restrictions on public aid to parochial schools. • But the wall-of-separation principle has not been used to forbid any and all forms of aid • Allowed the federal government to provide aid for constructing buildings on denominational college campuses • State governments to loan free textbooks to parochial-school kids • Allowed parents of parochial-school kids to deduct their tuition payments on state income taxes • But the government can not • Pay a salary supplement to teachers who teach secular subjects in parochial-schools • Reimburse parents for the cost of tuition • Can not give them money to buy instructional materials.

26. Lemon v Kurtzman • One of the most important establishment clause decision was the courts ruling that vouchers can be used to pay for kids being educated at religious and other private schools. • Aid is going to the families not to a specific school and the families were free to make the choice on school • Case is from Cleveland Ohio vouchers to poor kids or any kid who attended public schools that were so bad the state had to take them over (Florida F schools)

27. Lemon Test • The wall of separation principle is so full of twists that it has been hard to apply so the court has tried to fix that with a 3 part test to decide under what circumstance government involvement is religious activities is improper. • It is constitutional if it meets these test • 1. It has a secular purpose • 2. its primary effect neither advances nor inhibits religion • 3. It does not foster an excessive government entanglement with religion. • There is still confusion

28. Engel v Vitale • There may not be a prayer, even nondenominational one, in public schools. • Zelman v Simmons-Harris • Voucher plan to pay school bill is ok • Pierce v. Society of Sisters • Though states may require public education, they may not require that students attend only public schools.

29. Crime and Due Process • The problem with the parts of the Bill of Rights that affect people accused of a crime have been to decide not only what they mean but also how to put them into effect. • What constitutes an unreasonable search? • How best to protect people against such searches that do not unduly hinder criminal investigations. • 1. let the police introduce all evidence in a case no mater how it was obtained. (punish cops after) • 2. If evidence was gathered improperly it should be excluded.

30. CRIME AND DUE PROCESS • Exclusionary Rule • Holds that evidence gathered in violation of the constitution cannot be used in a trial. • It has been used to implement two provisions of the bill of rights • 1. right to be free from unreasonable searches and seizures (4th amendment) • 2. right not to be compelled to give evidence against oneself (5th amendment)

31. Not until 1949 did the Supreme Court consider whether to apply the exclusionary rule to the states • Court made it clear that the 4th amendment prohibited the police from carrying out unreasonable searches and obtaining improper confessions but held that it was not necessary to use the exclusionary rule. • Local police should not improperly gather and use evidence, but if they did, the remedy was to sue the police. • That changed in 1961 with the Supreme Courts ruling in • Mapp v. Ohio

32. SEARCH and SEIZURE • When can reasonable searches of individuals be made • 1. 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. • 2. Incident to an arrest (lawful arrest) • Judge issues an arrest warrant • If you commit a crime in the presence of a police officer • Officer has probable cause to believe you have committed a serious crime • If you arrested and no search warrant has been issued, the police and not the judge, decide what they can search. • What rules should they follow? • They can search • You • Things in plain view • Things or places under your immediate control

33. CONFESSIONS AND SELF INCRIMINATION • The constitution ban on being forced to give evidence against oneself was originally intended to prevent the use of torture or third degree police tactics • Has been extended to cover many kinds of statements uttered not out fear of torture but from lack of awareness of one’s rights , especially the right to remain silent • Supreme Court has held that involuntary confessions could not be used in federal trails but has not ruled that they were banned from state trails. • Court changed its mind in the 1960 • Miranda v Arizona.

34. Relaxing the Exclusionary Rule • Positions taken on the rule: • A any evidence should be admissible • B exclusionary rule has become too technical to deter police misconduct effectively • C rule is a vital safeguard for liberties • Courts began to adopt the second position, allowing some exceptions to the rule • Limited coverage (police have greater freedom to question juveniles) • Incorporation of the “good-faith exception” • If the police obtain a search warrant they believe is valid, the evidence they gather will not be excluded if it later turns out that the warrant was defective . • Overriding consideration of public safety may justify questioning people without first reading them their rights • Inevitable discovery.

35. Terrorism and Civil Liberties • Patriot Act meant to increase federal government’s powers to combat terrorism • Government may tap any telephone used by a suspect, rather than obtaining a separate court order for each phone. • Government may tap, with a court order, internet communications • Voice mail, the government, with a court order, may seize voice mail. • Grand jury investigators can now share with other government officials things learned in secret grand jury hearings. • Any noncitizen may be held as a security risk for seven days, longer if certified to be a security risk • Federal government can track money across U.S. borders and among banks • The provision eliminates the statute of limitation on terrorist crimes and increases the penalties.

36. Executive order then proclaimed a national emergency; noncitizens believed to be a terrorist, or to have harbored a terrorist will be tried by a military court. • Tried before a commission of military officers • 2/3 vote of the commission to find the accused guilty • Suspect may appeal only to the secretary of defense or the president • Can the people the U.S. captures be held without giving them access to the courts? • WWII spies sent to the U.S. were viewed as unlawful combatants

37. American citizens detained while working with the enemy were entitled to hearing before neutral decision maker to challenge the basis for their detention. • 2006 law authorized military commission to try alien enemy combatants • Commission will be made up of at least 5 military officers • Defendants will be given certain fundamental fights, see evidence, testify • Appeals presented to the court of military review, federal appeals court for the District of Columbia, than the Supreme Court.