Civil Liberties:Protecting Individual Liberties

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A constitutional guarantee of free speech is worth no more than the paper on

which it is written if authorities are able to stop people from speaking freely.

Rights have full meaning only if they are protected by law.

Judicial action is important in defining what people’s rights mean in practice.

1984

Supreme Court concluded: “The freedom to speak one’s mind is not

only an aspect of individual liberty but is also essential to the common quest for truth and the vitality of society as

a whole.”

What is the most basic of democratic rights?

Freedom of Expression

Freedom Of ExpressionFreedom Of Expression

The right of The right of individual individual

Americans to Americans to hold and hold and

communicate communicate views of their views of their

choosing.choosing.

Freedom of Freedom of ExpressionExpression

The Early PeriodThe Early Period::The Uncertain Status of the Right The Uncertain Status of the Right

of Free Expressionof Free ExpressionThe Sedition Act of 1798 – The first major The Sedition Act of 1798 – The first major

attempt by attempt by the U.S. Government to the U.S. Government to restrict free expression.restrict free expression.

Sedition Acts made it a crime to print false or Sedition Acts made it a crime to print false or malicious stories about the President or malicious stories about the President or

other other national officials.national officials.

1801 – John Adams pardoned those convicted 1801 – John Adams pardoned those convicted under under the Sedition Act.the Sedition Act.

Schenck v. United States – Court unanimously Schenck v. United States – Court unanimously ruled ruled the Espionage Act constitutional.the Espionage Act constitutional.

Clear and Present Danger TestClear and Present Danger Test

A test devised by the Supreme Court in A test devised by the Supreme Court in order to define the limits of free order to define the limits of free speech in the context of national speech in the context of national security. According to the test, security. According to the test, government cannot abridge political government cannot abridge political expression unless it presents a clear expression unless it presents a clear and present danger to the nation’s and present danger to the nation’s security.security.

The Modern PeriodThe Modern Period::Protecting Free ExpressionProtecting Free Expression

1951 – The Supreme Court upheld the convictions of 1951 – The Supreme Court upheld the convictions of eleven members of the U.S. Communist party who had eleven members of the U.S. Communist party who had been prosecuted under a law that made it illegal to been prosecuted under a law that made it illegal to express support for the forceful overthrow of the U.S. express support for the forceful overthrow of the U.S. Government.Government.

The Vietnam Era - Despite the largest sustained protest The Vietnam Era - Despite the largest sustained protest movement in our nation’s history, not a single movement in our nation’s history, not a single individual was convicted solely for speaking out individual was convicted solely for speaking out against the government’s war policy.against the government’s war policy.

1989 – The Supreme Court ruled that the burning of the 1989 – The Supreme Court ruled that the burning of the American flag is a protected form of free expression.American flag is a protected form of free expression.

Press Freedom and Prior Press Freedom and Prior RestraintRestraint

Prior RestraintPrior Restraint – Government – Government prohibition of speech or publication prohibition of speech or publication before the fact.before the fact.

““Pentagon Papers”Pentagon Papers” - The U.S. - The U.S. Supreme Court ruled that stopping Supreme Court ruled that stopping publication amounted to “prior publication amounted to “prior restraint” and violated First restraint” and violated First Amendment protections.Amendment protections.

Gitlow v. New York Gitlow v. New York

Due process applies to the states in Due process applies to the states in the area of freedom of expression.the area of freedom of expression.

The Supreme Court begins to protect The Supreme Court begins to protect individual rights from infringement individual rights from infringement

by state and local governments.by state and local governments.Near v. Minnesota – Near v. Minnesota – The Supreme Court The Supreme Court

overturned a overturned a state ruling to close a state ruling to close a newspaper down because of newspaper down because of “malicious, “malicious, scandalous, or defamatory publications”scandalous, or defamatory publications”

Selective IncorporationSelective IncorporationThe absorption of The absorption of certain provisions certain provisions

of the Bill of of the Bill of Rights into the Rights into the

14th Amendment 14th Amendment so that these so that these

rights are rights are protected from protected from infringement by infringement by

the states.the states.

Selective IncorporationSelective Incorporation

Powell v. Alabama

The Supreme Court declares that states must provide a fair trial in

criminal cases.

Limiting the Authority of Limiting the Authority of States to Restrict States to Restrict

ExpressionExpression

Brandenburg v. OhioBrandenburg v. Ohio

The Court ruled that the government The Court ruled that the government cannot forbid people from advocating cannot forbid people from advocating the use of violence or illegal conduct the use of violence or illegal conduct unless they are advocating others to unless they are advocating others to take “imminent lawless action” and take “imminent lawless action” and unless their advocacy “is likely to unless their advocacy “is likely to incite or produce such action.”incite or produce such action.”

In effect, Americans are free to say In effect, Americans are free to say almost anything they want on political almost anything they want on political

issues.issues.

1992 – The Supreme Court said, “The First 1992 – The Supreme Court said, “The First Amendment prohibits government from ‘silencing Amendment prohibits government from ‘silencing speech on the basis of its content’.speech on the basis of its content’.

How does this apply to freedom of assembly?How does this apply to freedom of assembly?

1977 - Skokie Illinois – Despite a large Jewish population 1977 - Skokie Illinois – Despite a large Jewish population (including concentration camp survivors), the (including concentration camp survivors), the American Nazi party was allowed to demonstrate American Nazi party was allowed to demonstrate (assemble).(assemble).

The Supreme Court held that the right of free expression The Supreme Court held that the right of free expression takes precedent over the mere possibility that takes precedent over the mere possibility that exercising the right may have undesirable exercising the right may have undesirable consequences.consequences.

Libel and SlanderLibel and Slander Libel Libel

Publication of Publication of material that falsely material that falsely damages a person’s damages a person’s

reputation.reputation.

(Requires Malice)(Requires Malice)

Slander Slander

Spoken words that Spoken words that falsely damage a falsely damage a

person’s person’s reputation.reputation.

New York Times Co. v. Sullivan – Alabama state court had found the Times guilty of libel for printing that Alabama officials physically assaulted black civil rights demonstrators.Supreme Court overruled.

ObscenityObscenity A form of expression not protected by A form of expression not protected by

the first amendment.the first amendment.

The problem is that the supreme court cannot decide The problem is that the supreme court cannot decide what constitutes obscene material.what constitutes obscene material.

Roth v. The United StatesRoth v. The United States

1957 1957 – 1st Test of Obscene Material– 1st Test of Obscene Material

The Court defined obscenity as material The Court defined obscenity as material that “taken as a whole appealed to that “taken as a whole appealed to

prurient (marked by impure or prurient (marked by impure or unwholesome sexual desire) interest unwholesome sexual desire) interest and had no redeeming social value.”and had no redeeming social value.”

1969 – A unanimous Supreme Court ruling 1969 – A unanimous Supreme Court ruling held that held that what adults read and watch in the what adults read and watch in the privacy of privacy of their homes cannot be made their homes cannot be made a crime.a crime.1990 – The Court created an exception to the 1990 – The Court created an exception to the prior prior rule – pornographic photographs rule – pornographic photographs of children.of children.1996 – Cable operators not responsible to 1996 – Cable operators not responsible to scramble scramble adult programming / are upon adult programming / are upon request.request.1996 – Communications Decency Act – Made it 1996 – Communications Decency Act – Made it a a Federal Crime to transmit obscene Federal Crime to transmit obscene material material to someone under 18 years old. to someone under 18 years old. 1997 – Decency Act was declared 1997 – Decency Act was declared unconstitutional unconstitutional on the basis that it on the basis that it suppressed material suppressed material intended for adults. intended for adults.1998 – The Child Online Protection Act - 1998 – The Child Online Protection Act - Those who Those who receive federal funds (public receive federal funds (public schools) must schools) must filter web access for filter web access for students.students.

1969 – A unanimous Supreme Court ruling 1969 – A unanimous Supreme Court ruling held that held that what adults read and watch in the what adults read and watch in the privacy of privacy of their homes cannot be made their homes cannot be made a crime.a crime.1990 – The Court created an exception to the 1990 – The Court created an exception to the prior prior rule – pornographic photographs rule – pornographic photographs of children.of children.1996 – Cable operators not responsible to 1996 – Cable operators not responsible to scramble scramble adult programming / are upon adult programming / are upon request.request.1996 – Communications Decency Act – Made it 1996 – Communications Decency Act – Made it a a Federal Crime to transmit obscene Federal Crime to transmit obscene material material to someone under 18 years old. to someone under 18 years old. 1997 – Decency Act was declared 1997 – Decency Act was declared unconstitutional unconstitutional on the basis that it on the basis that it suppressed material suppressed material intended for adults. intended for adults.1998 – The Child Online Protection Act - 1998 – The Child Online Protection Act - Those who Those who receive federal funds (public receive federal funds (public schools) must schools) must filter web access for filter web access for students.students.

Freedom of ReligionFreedom of Religion

““Congress shall make no law respecting an Congress shall make no law respecting an establishment on religion, or prohibiting establishment on religion, or prohibiting

the free exercise thereof.”the free exercise thereof.”

Establishment ClauseEstablishment Clause – Government may not – Government may not favor one religion over another or support favor one religion over another or support religion over no religion.religion over no religion.

““Separation of Church and Separation of Church and State”State”

The Court has permitted states to provide secular textbooks The Court has permitted states to provide secular textbooks for use by church-affiliated schools, but has forbidden states for use by church-affiliated schools, but has forbidden states

to pay part of the salaries of teachers in church-affiliated to pay part of the salaries of teachers in church-affiliated schools.schools.

1962 – 1962 – Engel v. VitaleEngel v. Vitale – – Supreme Court Supreme Court prohibits prohibits the reciting of prayers in the reciting of prayers in public school.public school.

1985 – 1985 – The Supreme Court declared an Alabama The Supreme Court declared an Alabama law law that set aside one minute each day that set aside one minute each day for for silent prayer unconstitutional.silent prayer unconstitutional.

2000 – 2000 – The Supreme Court reaffirmed its position The Supreme Court reaffirmed its position by by banning student led prayer at banning student led prayer at football football games.games.

Freedom of ReligionFreedom of Religion

The Free Exercise Clause The Free Exercise Clause - Prohibits - Prohibits the government from interfering with the government from interfering with the practice of religion or prohibiting the practice of religion or prohibiting the free exercise of religion.the free exercise of religion.

Americans are free to hold any religious Americans are free to hold any religious belief they choose.belief they choose.

Free Exercise Free Exercise RestrictionsRestrictions

The courts have allowed government The courts have allowed government interference in the exercise of religious interference in the exercise of religious beliefs when such interference is the beliefs when such interference is the secondary result of an overriding social secondary result of an overriding social goal.goal.

1987 – The Supreme Court overturned a 1987 – The Supreme Court overturned a Louisiana law that required creationism be Louisiana law that required creationism be taught along with the theory of evolution taught along with the theory of evolution in public school science courses. in public school science courses.

Reasoning – Creationism is a religious Reasoning – Creationism is a religious doctrine, not a scientific theory.doctrine, not a scientific theory.

The Right of PrivacyThe Right of Privacy

99thth Amendment Amendment

““Individuals have a ‘zone of personal Individuals have a ‘zone of personal privacy’ that government cannot lawfully privacy’ that government cannot lawfully

infringe upon.”infringe upon.”

Griswold v. Connecticut Griswold v. Connecticut (1965)(1965)

Supreme Court decision in which the Court Supreme Court decision in which the Court struck down a Connecticut ban on the use struck down a Connecticut ban on the use

of contraceptives by married couples.of contraceptives by married couples.

The Right of PrivacyThe Right of Privacy

Roe v. Wade

The Supreme Court of the United States ruled that a woman has a constitutional right to an abortion during the first six

months of pregnancy. Before the Court’sruling, a majority of states prohibited abortion, although most allowed an

exception when pregnancy threatened the woman’s life.

AbortionAbortion Abortion foes did succeed in a campaign to Abortion foes did succeed in a campaign to

prohibit the use of government funds to pay prohibit the use of government funds to pay for abortions for poor women. In 1989, the for abortions for poor women. In 1989, the Supreme Court upheld a Missouri law that Supreme Court upheld a Missouri law that prohibited abortions from being performed in prohibited abortions from being performed in public hospitals by public employees.public hospitals by public employees.

The Court has also upheld a Pennsylvania law The Court has also upheld a Pennsylvania law that requires a minor to have parental or that requires a minor to have parental or judicial consent before obtaining an abortion.judicial consent before obtaining an abortion.

2003 – Congress passed a ban on partial birth 2003 – Congress passed a ban on partial birth abortions and made the doctors criminally abortions and made the doctors criminally liable if they perform the procedure, even if liable if they perform the procedure, even if the women’s health was at risk. the women’s health was at risk. (** Yet to be reviewed by the Supreme Court.)(** Yet to be reviewed by the Supreme Court.)

The Griswold decision (1965) was a way to get the government out of people’s bedrooms. One clear exception remained – all states at the time prohibited sexual relations between consenting

adults of the same sex.

1986 – Bowers v. Georgia – The Supreme Court decided states could ban homosexual acts

(crimes) among consenting adults.

2003 – Lawrence and Garner v. Hardwick – The Supreme Court reversed its decision in the

Bowers case and invalidated sodomy laws in thirteen states.

Rights of Persons Accused Rights of Persons Accused of Crimesof Crimes

Procedural Due ProcessProcedural Due Process

Government must follow proper Government must follow proper legal procedures before a person legal procedures before a person can be legitimately punished for can be legitimately punished for

an illegal offense.an illegal offense.

4th Amendment4th Amendment – Search – Search and Seizure and Seizure protection, protection, probable causeprobable cause5th Amendment5th Amendment – Double – Double jeopardy, jeopardy, self self incrimination, grand juryincrimination, grand jury6th Amendment6th Amendment – Right to – Right to counsel, counsel, confront witnesses, confront witnesses, speedy and speedy and jury trialjury trial8th Amendment8th Amendment – Excessive – Excessive bail, bail, cruel and unusual cruel and unusual punishmentpunishment

Mapp v. Ohio –Mapp v. Ohio – (1961) Evidence (1961) Evidence illegally seized by local police illegally seized by local police may not be introduced in state may not be introduced in state criminal trials.criminal trials.

Gideon v. WainwrightGideon v. Wainwright (1963)The (1963)The Court said that a person who is Court said that a person who is charged with a felony cannot charged with a felony cannot afford a lawyer the state must afford a lawyer the state must provide one free of charge.provide one free of charge.

Miranda v. ArizonaMiranda v. Arizona (1966) (1966)

The Supreme Court held that the police The Supreme Court held that the police must advise arrested suspects of their must advise arrested suspects of their

basic constitutional rightsbasic constitutional rights.. (1) That they have a right to remain silent, (1) That they have a right to remain silent, (2) that any statements they do make can (2) that any statements they do make can

be used as evidence against them, be used as evidence against them, (3) that they have the right to have an (3) that they have the right to have an

attorney present, and attorney present, and (4) if they cannot afford an attorney, one (4) if they cannot afford an attorney, one

will be appointed (without charge).will be appointed (without charge).

The Exclusionary Rule

Legal principle that government is prohibited from using in trials evidence that was obtained by unconstitutional means.

However, illegally obtained evidence can sometimes be admitted in trials if the procedural errors are inadvertent or if the prosecution can show that it would have discovered the evidence anyway.

Crime, Punishment, and Police Practices

Racial Profiling – The assumption that certain groups are more likely to commit particular crimes.

(Drug Courier Profile)

2003 The Supreme Court upheld

California’s “Three Strikes” law that resulted in life imprisonment

for a thrice-convicted felon.

You’reOut!

Capital Punishment

During and after World War II (1939-1945), the number of executions in the United States began to decline. In 1972 the U.S. Supreme Court ruled the death penalty

unconstitutional and halted all executions. Executions resumed in 1977 and have been increasing since that

time.

• Alabama Lethal injection, electrocution• Oklahoma Lethal injection, firing squad• Oregon Lethal injection • Pennsylvania Lethal injection • South Carolina Lethal injection, electrocution • South Dakota Lethal injection • Tennessee Lethal injection, electrocution • Texas Lethal injection • Utah Lethal injection, firing squad • Virginia Lethal injection, electrocution • Washington Lethal injection, hanging • Wyoming Lethal injection, lethal gas• Idaho Lethal injection, firing squad

Methods of Execution

Is it cruel and unusual punishment?

2003 – George Ryan – (outgoing Illinois governor)

Ryan pardoned four Illinois death-row inmates who had been convicted on false evidence, and he commuted to life in prison the sentences of the other 167 death-row inmates.

How do the relatives of the victims feel about his decision?

Terrorism and Civil Liberties

Sept. 11, 2001

The Bush Administration

declared that customary

legal protections must

must be altered if the war

on terrorism is to be

waged successfully.

John Walker Lindh – American Taliban fighter captured in Afghanistan in 2001. Pled guilty to two minor charges and is currently serving time in prison.

Detention of Enemy Combatants

Individuals judged to beengaged in terrorism directed

at the US.

Surveillance of Suspected Terrorist

USA Patriot Act – Lower wiretapping restrictions, lower burdens of proof for

warrants, information sharing for criminal investigations, enhanced investigative power, jailing without clear evidence of wrongdoing.