Chapter 4

1. Chapter 4 Civil Liberties

2. Civil Liberties/Civil Rights • Civil liberties • Restraining government’s action against individuals • Limits on government power outlined in the Bill of Rights, the first 10 amendments to the Constitution, 384-385 • What government can’t do… • Civil rights • Rights individuals share as provided for in the 14th amendment, which guarantees due process and equal protection under the law, 386 • What government must do…(e.g., protect individuals from discrimination; unequal treatment, etc.)

3. Liberties/Rights and the Courts • Judicial interpretations shape nature of civil liberties and civil rights • Change over time depending on interpretations • Not “set in stone” • Hence, importance of judicial appointments and numerous references to court cases

4. Incorporation Theory • Bill of Rights • Initially aimed at protecting citizens against encroachments by the national government • Grew out of fear of tyranny • Part of constitutional compromise aimed at limiting federal government’s power • Incorporation theory • View that protections of Bill of Rights apply to state governments through 14th Amendment’s (ratified in 1868) due process clause; see page 68

5. Table 4-1: Incorporating the Bill of Rights into the Fourteenth Amendment, 68

6. Discussion Question • Why is the Fourteenth Amendment so important to civil liberties?

7. Freedom of Religion • Separation of Church and State • First amendment, 384; two parts • Establishment clause; Jefferson’s “wall of separation” • State churches were the rule (9 colonies had official churches) • See text, 68-69 for the meaning of the establishment clause • Free exercise Clause • no type of religious practice can be prohibited and restricted by the government unless there is a compelling reason

8. Freedom of Religion • Contemporary conflicts • State aid to church-related schools • School voucher programs • Officially organized prayer in schools • Posting the Ten Commandments (“Hanging Ten”) • Pledge of Allegiance (“…under God…”) • Teaching evolution • Religious speech • Free exercise

9. Discussion Questions • Is it possible for the state to be truly neutral when it comes to religion? • Should the state give funding to church schools? • Should prayer be allowed in public schools? • Should public institutions be allowed to “Hang Ten”? • Is the pledge of allegiance a violation of church and state? • Should creationism be given equal time with evolution? • Should any and all religious practice be OK?

10. Freedom of Speech/Expression • No prior restraint • Courts generally disfavor restraining, censoring an action/speech/expression before it has occurred • Protected speech • Symbolic speech (e.g., burning a U.S. flag) • Commercial speech (e.g., advertising) • Permitted restrictions • Speech that presents a “clear and present danger”to public order • Speech that might lead to some “evil” (the bad- tendency rule)

11. Freedom of Speech/Expression • Unprotected speech • Obscenity (based on community standards of indecency) • Child pornography • Obscenity and child pornography on the Internet • Slander • Public uttering of false statement that harms the good reputation of another; false, defamatory statements • Campus speech codes • Hate speech = abusive speech attacking persons on the basis of their ethnicity, race, or other criteria • Often considered unconstitutional restriction on free speech

12. Freedom of the Press • Special instance of free speech • Press has some protection from libel charges • Libel (defamation in writing) must be accompanied by actual malice (knowledge of falsity or reckless disregard for the truth) • Press is now protected from gag orders during trials, except in unusual circumstances • Films subject to local obscenity laws; regulated through rating system • Radio and TV have much more limited 1st amendment protections • Regulated by FCC

13. Right to Assemble and Petition the Government • Ability to communicate ideas on public issues • Can be limited by municipalities’ right to offer permits for marches, parades, sound trucks, demonstrations (to control traffic or prevent riots) • Can be denied when groups are likely to engage in fighting words • Tested by anti-loitering ordinances aimed at reducing congregation of gangs

14. Privacy Rights and Abortion • No explicit right to privacy in Constitution • unlike California State Constitution • Griswold v. Connecticut (1965) • Supreme Court rules that privacy rights exist • comes from the 1st, 3rd, 4th, 5th and 9th Amendments • “right to be left alone”; “zone of privacy” • Unique challenges posed by information age • Roe v. Wade (1973) court rules that privacy rights include abortion rights • More recently Court taken a more restrictive view of rights outlined in Roe

15. Other Privacy Rights • Right to die • “living wills” • Physician-assisted suicide (only legal in Oregon) • Security issues after 9/11/01 • How much are we willing to sacrifice privacy rights for security? • Erosion of 4th amendment rights against unreasonable searches and seizures given roving wiretaps of suspected persons

16. Rights of Accused vs. Rights of Society • The Great Balancing Act • Why give criminal suspects rights? • Avoid convicting innocent people • All suspects have right to due process and fair treatment • Found primarily in 4th, 5th, 6th, and 8th amendments

17. Rights of the Accused • Limits on Conduct of Police Officers and Prosecutors • No unreasonable or unwarranted searches or seizures (4th) • exclusionary rule = cannot use illegally seized evidence without warrant based on probable, just cause (mitigated by “good faith” clause) • Probable cause for arrest (4th) • No coerced confessions or illegal interrogation (5th) • No entrapment • Informed of rights, including silence • Miranda warnings = “You have the right to remain silent; anything you say can and will be used against you. You have the right to an attorney; if you cannot afford one, one will be provided for you.”

18. Rights of the Accused • Defendant’s Pre-trial rights • Writ of habeus corpus(Article 1, Section 9, clause 2, 377) • requires jailers to bring a person before a court or judge and explain why the person is being held • Prompt arraignment (6th) • Legal counsel (6th) • Reasonable bail (8th) • Informed of charges (6th) • Remain silent (5th)

19. Rights of the Accused • Trial rights • Speedy, public trial before a jury (6th) • Impartial jury representative of community (6th) • Trial atmosphere free of prejudice, fear, and outside interference • No compulsory self-incrimination (5th) • Adequate counsel (6th) • No cruel or unusual punishment (8th) • What about the Death Penalty? • Right to appeal convictions (5th) • No double jeopardy (5th)

20. © 2004 Wadsworth Publishing / Thomson Learning™ States that Allow the Death Penalty

21. Maine Vermont Massachusetts Rhode Island W. Virginia Michigan Wisconsin Minnesota Iowa North Dakota Alaska Hawaii States that Don’t Allow Death Penalty

22. Discussion Questions • Have the courts done too much to protect the rights of the accused? • Are protections necessary to ensure that no innocent person is convicted of a crime? • Do criminal suspects deserve fair treatment? • Is capital punishment cruel and unusual?

23. Hot Links to Selected Internet Resources: • Book’s Companion Site: http://politicalscience.wadsworth.com/schmidtbrief2004 • Wadsworth’s Political Science Site: http://politicalscience.wadsworth.com • American Civil Liberties Union: http://www.aclu.org • Project Vote Smart: http://www.vote-smart.org/issues • EPIC Archive – Privacy: http://www.epic.org/privacy