The Dynamic Nature of Civil Liberties

1. The Dynamic Nature of Civil Liberties

2. The Bill of Rights–Then and Now • Civil Liberties: the legal constitutional protections against the government • The Bill of Rights: first 10 amendments, which protect basic liberties, such as religion and speech

3. The Bill of Rights—Then and Now

4. Criminal Due Process • The Fourth Amendment • The Fifth Amendment • The Sixth Amendment • The Eighth Amendment

5. The Bill of Rights—Then and Now • The Bill of Rights and the States • Written to restrict the national government • “Congress shall make no law…” • Barron v. Baltimore (1833) • Most have been “incorporated” through the 14th Amendment, and now restrict state and local governments • First Amendment protection of speech first incorporated to states in Gitlow v. New York (1925)

6. Incorporation • Until 20th century, Bill of Rights did not apply to states. • 14th Amendment’s due process clause raises questions. • Begins to apply after Gitlow v. New York (1925). • Case is first step in incorporation doctrine. • Not all guarantees have been incorporated. • Selective incorporation of fundamental freedoms.

7. The Bill of Rights—Then and Now

8. Freedom of Religion • The Establishment Clause • “Congress shall make no law respecting the establishment of religion…” • Lemon v. Kurtzman (1971) • Secular legislative purpose • Neither advance nor inhibit religion • No excessive government “entanglement”

9. First Amendment: Free Exercise • Government cannot interfere with religious practice. • Is not absolute; necessity can outweigh freedom. • Still, laws must be neutral toward religion.

10. Freedom of Expression • Free Speech and Public Order • Speech is limited if it presents a “clear and present danger.” • Schenck v. US (1919) • Permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to imminent lawless action • Brandenburg v. Ohio (1969) • Speech is generally protected in public places, but usually not on another’s private property.

11. Protected Speech • Court will rarely tolerate prior restraint. • Court also protects symbolic speech. • Hate speech also receives growing protection.

12. Symbolic Speech • Symbolic Speech • Definition: nonverbal communication, such as burning a flag or wearing an armband • Generally protected along with verbal speech • Texas v. Johnson (1989): Burning the American flag is symbolic speech protected by the First Amendment.

13. Free Speech May Interfere with other Civil Liberties • Free Press and Fair Trials • Is extensive press coverage of high profile trials (OJ Simpson; Martha Stewart) permissible? • The public has a right to know what happens; trial must be open to the public. • The press’ own information about a trial may not be protected. • Yet, some states have passed shield laws to protect reporters.

14. Commercial Speech • Definition: communication in the form of advertising • Generally the most restricted and regulated form of speech (Federal Trade Commission) • Regulation of the Public Airwaves • Broadcast stations must follow Federal Communication Commission rules. • Regulation must be narrowly tailored to promote a compelling governmental interest. • United States v. Playboy Entertainment Group (2000)

15. Unprotected Speech • These types of speech are without social value. • Libel,or false written statements. • Slander, or untrue spoken statements. • Fighting words, or words that breach the peace. • Obscenity, which varies by jurisdiction.

16. Freedom of Assembly • Right to Assemble • Generally permissible to gather in a public place, but must meet reasonable local standards, such as fire codes and apply for permits • Balance between freedom and order • Right to Associate • Freedom to join groups or associations without government interference • NAACP v. Alabama (1958)

17. First Amendment: Assembly • Assembly and petition have been controversial. • Tied closely to speech and press. • If speech crosses line, protection may not exist.

18. Right to Bear Arms • Common National, State, and Local Gun Laws • Restrictions on owning and carrying handguns. • Background checks • Limited the sale of certain types of weapons. • Requirements that guns be stored in a fashion to prevent their theft or children from accessing and firing them. • Courts have usually upheld these.

19. Individual or Collective Right? • Militia Clause: • Many advocates of gun control argued that the Second Amendment applied only to the right of states to create militias. • District of Columbia v. Heller (2008) • Individual right to possess a firearm unconnected with service in a militia. • Use that arm for traditionally lawful purposes, such as self-defense within the home.

20. Defendants’ Rights

21. 4th Amendment • Searches and Seizures • Probable Cause: when the police have reason to believe that a person should be arrested • Unreasonable searches and seizures: evidence is obtained in a haphazard or random manner, prohibited by the Fourth Amendment • Exclusionary Rule: the rule that evidence, no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained • Mapp v. Ohio (1961)

22. 5th Amendment • Self-Incrimination • Definition: when an individual accused of a crime is compelled to be a witness against himself or herself in court • Police must inform suspects of these and other Fifth Amendment protections upon arrest. • Miranda v. Arizona (1966) • Protection from coerced confessions and entrapments

23. Fifth Amendment • Prevents self-incrimination and double jeopardy. • Miranda v. Arizona (1966) is landmark case. • Miranda rights inform suspects of right to silence.

24. 6th Amendment • The Right to Counsel • The state must provide lawyers in most criminal cases (Sixth Amendment). • Gideon v. Wainwright (1963) • Trials • Plea bargaining: a bargain between the prosecution and defense for a defendant to plead guilty to a lesser crime; 90 percent of cases end here and do not go to trial • Juries generally consist of 12 people, but unanimity is not always needed to convict. • The Sixth Amendment also guarantees a “speedy and public” trial.

25. 8th Amendment • Cruel and Unusual Punishment • The Eighth Amendment forbids cruel and unusual punishment. • The death penalty is not cruel and unusual. It is “an extreme sanction, suitable to the most extreme crimes.” • Gregg v. Georgia (1976) • The death penalty’s use and application varies by state.

26. 8th Amendment Continued • Protects against cruel and unusual punishment. • Most common application is the death penalty. • Briefly unconstitutional for a period in 1970s. • Used at varying rates and formsin different states. • Minors and mentally retarded are excluded. • Growth of innocence projects and DNA evidence. • 2008 case upholds constitutionality of lethal injection.

27. Right to Privacy • Created by the courts from penumbras of constitution. • Applied first to contraception. • Extended to abortion in Roe v. Wade (1973). • Also applied in some homosexual rights cases. • Right to die movement also uses right to privacy.

28. The Right of Privacy • Roe v. Wade • Undue Burden

29. Civil Liberties and Terrorism • Virtually all civil liberties have been affected. • USA Patriot Act and Military Commissions Act. • Place limitations on free speech rights. • Increase law enforcement’s search capabilities. • Attempt to deny habeas corpus rights to defendants. • Allow for use of techniques such as water-boarding.

30. Figure 5.1- Methods of Execution  Back

31. Gun Control

32. Summary • Civil liberties are expressed in the Bill of Rights. • These are the individual’s protections—for religion, expression, assembly, and the accused—against the government. • Legislatures and courts constantly define what the Bill of Rights protects in practice.