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Civil Liberties And Public Policy 4

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Video: The Big Picture 4

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4What are civil liberties and where do they come from?

America’s Population

What is the process by which the Bill of Rights has been applied to the states?

Bill of Rights – Then and Now

Bill of Rights and the States

4.1

At first, most freedoms in the Bill of Rights applied only to the citizen’s relationship with the federal government. Now, however, through the process of incorporation, most of the Bill of Rights applies to the citizen’s relationship with state and local governments.


Popular support• The Bill of Rights was added to the Constitution by popular

demand. The abuses of the British government were still fresh in the minds of the colonists, and they did not want their new government to be able to arrest people without cause or jail newspaper editors because of what they published.

4.1

TABLE 4.1: The Bill of Rights 4.1


Popular support Rights supported more in theory than practice

People believe in freedom of speech in general, but oppose letting

specific groups, such as the Ku Klux Klan, speak in their neighborhood.

Civil liberties are not absolute Limitations Balanced against other societal values

4.1

The Ten Commandments 4.1


4.1Video: In Context

The Bill of Rights and the States

First Amendment Applied to federal government only

“Congress shall make no law…

States had own bills of rights Barron v. Baltimore (1833)-the Bill of Rights applied only to

the federal government, not to cities and states.

4.1

Fourteenth Amendment Gitlow v. New York (1925)-the Court took a fresh look at the

due process clause of the Fourteenth Amendment and ruled that

states could not violate the freedom of speech protected by the

First Amendment.- began the process of incorporation. Due process clause Incorporation doctrine Not all rights incorporated-Third, the Seventh, and parts of the

Fifth and Eighth Amendments have not.

TABLE 4.2: The Incorporation of the Bill of Rights

4.1

a. Freedom of religion

b. Freedom of speech

c. Freedom of Assembly

d. Freedom from excessive bail

4.14.1 Which right was the first to be incorporated?

4.1 Which right was the first to be incorporated?

a. Freedom of religion

b. Freedom of speech

c. Freedom of Assembly

d. Freedom from excessive bail

4.1

Freedom of speech was the first right to be incorporated, in 1925, in the case of Gitlow v. New York.

Freedom of Religion

Distinguish the two types of religious rights protected by the First Amendment and determine the boundaries of those rights.

Establishment Clause

Free Exercise Clause

Education

Religious Activities in Public Schools

School Prayer

Evolution

Public Displays

4.1

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


• The establishment clause states that “Congress shall make no law respecting an establishment of religion.”

• That is, the government could not make the Christian religion the official national religion or favor the practice of one religion over another.

4.2


Education Lemon v. Kurtzman (1971) Federal Aid to parochial schools? Lemon Test

must have a secular legislative purpose must have a primary effect that neither advances

nor inhibits religion must not foster excessive government

“entanglement” with religion

Zelman v. Simmons-Harris (2002) Vouchers are constitutional

4.2

Establishment Clause Religious Activities in Public Schools

Equal access for religious groups Scholarships for theology – prohibited Instruction- not during school, but students can leave to attend

School Prayer Most controversial issue Since the 1960s, the Court has consistently ruled that the recitation of prayers or Bible passages in

public schools violates the establishment clause. Individuals, of course, may pray on their own, but the

school can’t encourage prayer in any way, such as by reserving time for it or having students lead

prayers at games and ceremonies.

4.2


Evolution Creationism Trying again with “intelligent design”

Public Displays Advancing religion v. legitimate historical purpose Holiday decorations

4.2


Belief versus practice Not all practices protected

The free exercise clause prohibits the abridgment of citizens’

freedom to worship, or, just as important, not to worship, as

they please. Sometimes these two clauses conflict with one

another and the Court must choose one over the other in

deciding a case.

4.2

Muhammad Ali 4.2


Belief versus practice Cannot violate rights of others Example case of the Amish Discrimination in employment

Strict scrutiny Compelling state interest Narrowly tailored

4.2

4.2 Which of the following is not part of the Lemon test?

a. A law must neither advance nor inhibit religion.

b. A law must not foster government entanglement with religion.

c. A law must not impose costs on religious organizations.

d. A law must have a secular legislative purpose.

4.2

a. A law must neither advance nor inhibit religion.

b. A law must not foster government entanglement with religion.

c. A law must not impose costs on religious organizations.

d. A law must have a secular legislative purpose.

4.24.2 Which of the following is not part of the Lemon test?

Freedom of Expression

Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights

Prior Restraint

Free Speech and Public Order

Obscenity

Libel and Slander

Symbolic Speech

Free Press and Fair Trials

Commercial Speech

Regulation of the Public Airwaves

Campaigning

4.3

Prior Restraint

Near v. Minnesota (1931) Prior Restraint- Unconstitutional censorship- when a government forbids the publication of

material in advance, rather than ruling on its legality afterward Prior Restraint Does not apply to students- school newspaper isn’t a public forum Exception for national security (wartime)-In the infamous Pentagon Papers case, the

government tried, and failed, to stop the publication of embarrassing documents about the Vietnam

War. The Court (New York Times Co. v. United States) ruled that the documents were historical and did

not pose a threat to national security.

4.3


Schenck v. United States (1919) Wartime trade-offs Court upheld the conviction of Charles

Schenck for distributing leaflets urging men to resist the draft.

Chief Justice Holmes stated that speech that poses a “clear

and present danger” wasn’t protected by the First

Amendment.

The court struggles to define: Dangerous or merely inconvenient?

4.3

Anticommunism Smith Act (1940) prosecutions

During the Cold War, anticommunist sentiment was

especially fervent, and the federal government sought

to prosecute anyone connected with the Communist

Party. They used the Smith Act, which forbade advocating

the violent overthrow of the government, to

prosecute party leaders even in the absence of

evidence that they were urging people to commit

violence.

Senator Joseph McCarthy 4.3

During the early 1950s, Senator Joseph McCarthy’s accusations that many public officials were communists created an atmosphere in which the courts placed restrictions on freedom of expression that would be unacceptable today


“Imminent lawless violence” standard Brandenburg v. Ohio (1969) -the Court narrowed its

interpretation, finding that it’s permissible to advocate the

violent overthrow of the government in the abstract as long as

doing so does not incite anyone to “imminent lawless

violence.”

4.3

Obscenity

Roth v. United States (1957) Obscenity not constitutionally protected But what is obscene?

Miller v. California (1973) Appeals to prurient (unhealthy/indecent) interest Patently offensive- sexual conduct Lacking serious literary or artistic or scientific value Average people/local standards

Regulating adult content

4.3

Violent video game 4.3

In 2011, the Court ruled that a California law banning the sale or rental of violent video games to minors violated the First Amendment because the games communicate ideas. Depictions of violence have never been subject to regulation the same way obscene materials have. Should they be?

Libel and Slander

Defamation Libel = written Slander = spoken

Public figures New York Times v. Sullivan (1964)- public figures

should basically expect and accept libel/slander Must prove Intentionally malicious to win

Private individuals The victim need only prove that the defamation was false and that

the author was negligent in making it.

4.3

Symbolic Speech

Examples of symbolic speech Wearing an armband (Tinker v. Des Moines) Burning the U.S. flag (Texas v. Johnson) Marching in a parade

Limitations Burning draft cards-because it interfered with the exercise

of the draft Threats are not protected

4.3

http://youtu.be/Zeeq0qaEaLw

Free Press and Fair Trials

Can press coverage compromise the right to a fair trial? Courts have not upheld restrictions Trials are public

• Sequestering juries-stay under guard in hotels, and are kept away from newspapers, television, the Internet, and other forms of mass communication.

Zurcher v. Stanford Daily (1978) Journalists cannot withhold evidence Subject to search warrants Shield Laws – some states protect reporters from having to

reveal informants

4.3

Commercial Speech and Regulation of the Public Airwaves

Advertising Federal Trade Commission (FTC) No false claims-sort of!

Federal Communications Commission (FCC) Licensing and regulations on public air waves Not applicable to cable and satellite

4.3

Howard Stern 4.3

Radio personality Howard Stern tested the limits of obscenity rules when he worked for radio stations using the public airwaves, and incurred several large fines. Ultimately, he moved to satellite radio, where the rules are much less restrictive.

Campaigning Election Campaign Act of 1971-limited

campaign contributions to candidates Buckley v. Valeo (1976) – invalidated parts of this law-

Spending money to influence elections is protected speech

McCain-Feingold Act (2002) Banned soft money- designed to end the use of non-federal

funds.

Citizens United v. Federal Election Commission (2010)-prohibited restrictions on political broadcasts funded

by third parties such as corporations.

4.3

https://www.youtube.com/watch?v=Vtpd0EbaFoQ

Freedom of Assembly

Describe the rights to assemble and associate protected by the First Amendment and their limitations

Right to Assemble

Right to Associate

4.4

Right to Assemble

Gathering to make a statement- parade, picket, protest Time, place, manner restrictions Conflict with public order No viewpoint discrimination Public property

Fine line with harassment the Court has upheld the constitutionality of laws that limit how

close anti-abortion protestors can be to clinic entrances, and prohibited them from protesting in residential neighborhoods.

4.4

Ku Klux Klan 4.4In this photo, a white supremacist and a black man have a confrontation. The Supreme Court has generally upheld the right of any group, no matter how controversial or offensive, to peaceably assemble, as long as the group’s demonstrations remain on public property.

Right to Associate

NAACP v. Alabama (1958) Membership lists protected

Military recruiters Public schools cannot prohibit them

4.4

4.4 What sort of restrictions can be placed on freedom of assembly?

4.4

a. Time

b. Place

c. Manner

d. All of the above

a. Time

b. Place

c. Manner

d. All of the above

4.44.4 What sort of restrictions can be placed on freedom of assembly?

Right to Bear Arms

Describe the right to bear arms protected by the Second Amendment and its limitations.

4.5

Most Controversial rightSubject to national, state, and local restrictionsNational Rifle Association (NRA)-argue that

virtually every national, state, or local gun law is

unconstitutionalState militias or individuals-Proponents argue that

the Second Amendment is meant to apply to the right of

states to create militias, not the right of individual citizens to

arm themselves to the teeth.

the Court ruled that the right to bear arms isn’t connected to service in a militia and that laws that limit an individual’s ability to use a firearm for self-defense are unconstitutional.

District of Columbia v. Heller (2008)McDonald v. Chicago (2010)

http://www.txdps.state.tx.us/RSD/CHL/Legal/newlegislation.htm

New Texas Laws on Concealed, open, and Campus carry

4.5 When was the Second Amendment incorporated?

a. 2010

b. 1791

c. 1868

d. 2008

4.5

a. 2010

b. 1791

c. 1868

d. 2008

4.54.5 When was the Second Amendment incorporated?

District of Columbia v. Heller

Defendants’ Rights

Characterize defendants’ rights and identify issues that arise in their implementation

Searches and Seizures

Self-Incrimination

Right to Counsel

Trials

Cruel and Unusual Punishment

4.6

FIGURE 4.1: The constitution and the Stages of the Criminal Justice System

4.6

Searches and Seizures

Fourth Amendment Probable cause-good reason Search warrants Various cases, lots of exceptions to needing a warrant

Exclusionary rule Mapp v. Ohio (1961)-prevents the use of illegally obtained

evidence

4.6

War on terrorism USA Patriot Act (2001)-a law that gives the government new

powers of surveillance to root out terrorists and prevent the planning

and execution of terrorist attacks. Provisions of this law—such as

wiretapping without a warrant—have been challenged as

unconstitutional, but the Court has upheld them in the interest of

national security so far.

Self-Incrimination

Fifth Amendment Burden of proof on prosecution-If you are accused of a crime,

you cannot be compelled to testify against yourself, nor are you

required to proclaim your innocence. You are innocent until the state

proves that you’re guilty, without your assistance in that endeavor.

Miranda v. Arizona (1966) Right to remain silent Knowledge that what you say can be used against you Right to an attorney present during questioning Right to have an attorney provided if you cannot afford one

4.6

4.6Criminal rights

One of the most important principles of constitutional law is that defendants in criminal cases have rights. Police must have probable cause or a search warrant in order to conduct a legal search or seize incriminating evidence. Here police officers read the suspect his rights based on the Supreme Court’s decision in Miranda v. Arizona

Right to Counsel and Trials

Sixth Amendment right to attorney Gideon v. Wainwright (1963)-State must provide

attorney for indigent

Habeas corpus Not held without charge

Speedy and public trial by impartial jury of your peers

War on terrorism- Gitmo

4.6

Guantánamo Bay prisoners 4.6

The detainments at the naval base in Guantánamo Bay have raised issues concerning prisoners’ rights. They have been denied access to the courts and to counsel.

Right to Counsel and Trials

Plea bargaining- fewer than 10% of cases go to trial

Defendants also have the right to confront

witnesses and to be informed of evidence that

may exonerate them.

Jury size of 12 traditional Conviction must be unanimous

4.6

Cruel and Unusual Punishment

Eighth Amendment Incorporated in 1962 Prison overcrowding – cruel and unusual? Gregg v. Georgia (1976) Death penalty not cruel and unusual

McCleskey v. Kemp (1987)-the Court rejected the argument

that the death penalty violates the equal protection clause of

the Fourteenth Amendment just because minority offenders

and crimes involving white victims are more likely to result in a

death sentence.

4.6

4.6

https://www.youtube.com/watch?v=NPVzWAcCyl8

FIGURE 4.2: Decline of executions 4.6

a. Fourth

b. Sixth

c. Fifth

d. Eighth

4.64.6 What amendment protects against self-incrimination?

4.64.6 What amendment protects against self-incrimination?

a. Fourth

b. Sixth

c. Fifth

d. Eighth

Right to Privacy

Outline the evolution of a right to privacy and its application to the issue of abortion

Is There a Right to Privacy

Controversy over Abortion

4.7

Is There a Right to Privacy?

How privacy is implied in Constitution Religion: Right to exercise private beliefs Search and seizure: Right to privacy in your home Right to be left alone

Griswold v. Connecticut (1965) Court states right to privacy implied

4.7

Controversy over Abortion

Roe v. Wade (1973) Prohibits state bans on abortion Balancing test State interest in protecting women’s health State interest in protecting prenatal life

Planned Parenthood v. Casey (1992) From “strict scrutiny” to “undue burden”- which has allowed more

regulations of abortions.

Planned Parenthood in the news.

4.7

22% of all pregnancies (excluding miscarriage) end in abortion

4.7FIGURE 4.3: The Abortion Debate

4.7 What famous Supreme Court case prevented states from outlawing abortion?

4.7

a. Planned Parenthood v. Casey

b. Roe v. Wade

c. Griswold v. Connecticut

d. None of the above

a. Planned Parenthood v. Casey

b. Roe v. Wade

c. Griswold v. Connecticut

d. None of the above

4.74.7 What famous Supreme Court case prevented states from outlawing abortion?

Understanding Civil Liberties

Assess how civil liberties affect democratic government and how they both limit and expand the scope of government

Civil Liberties and Democracy

Civil Liberties and the Scope of Government

4.8


Video: Thinking Like a Political Scientist

4.8

Civil Liberties and Democracy

Democracy depends upon freedom of expression Need information to make decisions Majority rule versus minority rights Elites have protected minorities

4.8

Civil Liberties and the Scope of Government

Liberty and individualism prevail

Can’t hide from vast government Technology enables more intrusion Irony that more government is needed to provide more

protection

4.8

4.8 How does the Constitution limit democratic rule?

a. By preventing a minority from passing unpopular laws

b. By preventing the majority from restricting minority rights

c. By preventing a minority from overruling the majority

d. All of the above

4.8

a. By preventing a minority from passing unpopular laws

b. By preventing the majority from restricting minority rights

c. By preventing a minority from overruling the majority

d. All of the above

4.84.8 How does the Constitution limit democratic rule?

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