CHAPTER 4 Civil Liberties and Public Policy

1. CHAPTER 4 Civil Liberties and Public Policy Civil liberties are the individual freedoms guaranteed in the Bill of Rights. They are primarily concerned with protecting citizens from too much government control. While these freedoms are specifically addressed in the first ten amendments, they are not always clearly defined, especially in light of to day's social, political, and technological circumstances. Because civil liberties are rarely absolute and often conflict with each other and with other societal values, the courts must continually define and interpret the meaning and practice of these freedoms.

3. The Billof Rights-Then and Now The Bill of Rights protects freedoms at a national level, but these freedoms were not necessarily guaranteed in some state constitutions. In the case of Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights did not protect individuals against state governments. In Gitlow v. New York (1925), the Court reversed its earlier decision, citing the due process clause of the Fourteenth Amendment as reason to protect individuals' free speech and free press rights, found in the First Amendment, against state government incursions. Gitlow v. New York began a tradition called the incorporation doctrine, by which the Supreme Court has gradually, on a case-by-case basis, ensured the protection of most freedoms listed in the Bill of Rights from state infringement by means of the due process clause of the 14th Amendment. The Supreme Court has not incorporated every freedom in the Bill of Rights. Instead of "total incorporation," the Supreme Court has engaged in "selective incorporation."

4. Barron v. Mayor and City Council of Baltimore Categories: bill-of-rights, federalism, fifth amendment, incorporation Facts of the Case John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses. Question Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner? Conclusion No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

5. Gitlow v. New York Categories: criminal, federalism, first amendment, freedom of speech, freedom of the press, incorporation, national security, police power Facts of the Case Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Question Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? Conclusion Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

7. Done For Today! Failing to prepare is preparing to fail John Wooden

8. Freedom of Religion Establishment Clause: In the First Amendment, prohibiting Congress from making laws establishing any religion in conjunction with the government Some critics interpret the clause loosely: The government should not favor one religion over another in its policies. Others, including Thomas Jefferson, argue that the establishment clause endorses the separation of church and state. The Establishment Clause is at the center of the debate over prayer in school and over federal funding to private religious schools.

9. Freedom of Religion Lemon v. Kurtzman (1971): The Supreme Court allowed federal funding of parochial schools, provided that the money neither advances nor inhibits religious teaching, but instead is used for administrative purposes. In 2002, the Supreme Court also permitted state vouchers to be used for parochial schools in Zelman v. Simmons-Harris. Engel v. Vitale (1962) and School District of Abington Township, Pennsylvania v. Schempp (1963): Forbade the practice of prayer in school as a violation of the Establishment Clause and a breaching of the separation of church and state. Federal funds may be used to construct school buildings and to provide administrative and academic supplies, but not to endorse religious teaching. Student religious groups cannot be denied access to school buildings for the purpose of meeting or worship if other groups are also allowed access.

10. Freedom of Religion Free Exercise Clause: A First Amendment right that guarantees the freedom to practice or not practice any religion. The Court has upheld that the government cannot infringe on people's beliefs, but it can regulate religious behavior to some degree. State laws can ban religious practices that conflict with other laws, but they cannot forbid religious worship itself.

11. Engel v. Vitale Issues: First Amendment, Establishment of Religion Categories: education, first amendment, freedom of religion, states Facts of the Case The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Question Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Conclusion Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans.

12. Lemon v. Kurtzman Issues: First Amendment, Parochiaid Categories: education, establishment of religion, first amendment, freedom of religion Facts of the Case This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Question Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"? Conclusion Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools.

14. Done For Today! Alrighty Then

15. Freedom of Expression Speech Courts grapple with the definition of "speech." Political protests and picketing are protected by the First Amendment, but libel, slander, and obscenity are not. Fraud and incitement to violence are considered action, not speech, and are not protected. The Constitution forbids prior restraint, or government censorship of the press. This policy was strengthened by the case of Near v. Minnesota (1931), in which the Court ruled in favor of the press. Prior restraint is granted in situations where national security might be compromised. As decided in Schenck v. United States (1919), freedom of speech may be curtailed when it threatens public order.

16. Freedom of Expression The Press Freedom of the press can conflict with the right to a fair trial, but the press does have a right to report on any criminal proceeding, and all trials must be open to the public. However, in Branzburg v. Hayes (1972), the Supreme Court ruled in favor of fair trial over a reporter's right to protect sources, and in Zucher v. Stanford (1978) the Court sided with the police over the press. Roth v. United States (1957): The Court asserted that obscenity is not protected under the First Amendment. However, the definition of "obscenity" continues to be a point of controversy. Miller v. California (1973): Allowed community standards, varying in different parts of the country, to be used in determining if material is obscene.

17. Zurcher v. The Stanford Daily Decision: Wednesday, May 31, 1978 Issues: Criminal Procedure, Search and Seizure Categories: freedom of the press, searches and seizures Facts of the Case In 1971, officers of the Palo Alto, California, Police Department obtained a warrant to search the main office of The Stanford Daily, the student newspaper at the university. It was believed that The Stanford Daily had pictures of a violent clash between a group of protesters and the police; the pictures were needed to identify the assailants. The officers searched The Daily's photographic laboratories, filing cabinets, desks, and waste paper baskets, but no materials were removed from the office. This case was decided together with Bergna v. Stanford Daily, involving the district attorney and a deputy district attorney who participated in the obtaining of the search warrant. Question Did the search of The Daily's newsroom violate the First and Fourth Amendments? Conclusion In a 5-to-3 decision, the Court held that the "third party" search of the newsroom did not violate the Fourth Amendment. The Court held that such searches, accompanied by warrants, were legitimate when it had been "satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises." The Court also found that the Framers of the Constitution "did not forbid warrants where the press was involved."

18. Roth v. United States Decision: Monday, June 24, 1957 Issues: First Amendment, Obscenity, Federal Categories: commercial speech, criminal, first amendment, freedom of speech, obscenity Facts of the Case Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Question Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? Conclusion In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).

19. Miller v. California Issues: First Amendment, Obscenity, State Categories: criminal, first amendment, freedom of speech, obscenity Facts of the Case Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Conclusion In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.

20. Cases of libel are usually difficult to win because public figures must prove that the insults were intentionally malicious, as mandated in New York Times v. Sullivan (1964). • Acts of symbolic speech, such as protesting and flag burning (Texas v. Johnson, 1989), are protected under the First Amendment. • Commercial speech, such as advertising, is more closely regulated by the Federal Trade Commission. • Commercial speech on radio and television is regulated by the Federal Communications Commission. The broadcast media have significantly less freedom than do print media (Red Lion Broadcasting Company v. Federal Communications Commission, 1969), though they are not required to print replies from candidates they have criticized (Miami Herald Publishing Company v. Tornillo, 1974).

21. Texas v. Johnson Decision: Wednesday, June 21, 1989 Issues: First Amendment, Protest Demonstrations Categories: criminal, first amendment, flag desecration, freedom of speech Tags: Rehnquist: Freedom of Speech, Rehnquist on iTunes U Facts of the Case In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Conclusion In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

22. Freedom of Expression Assembly Freedom of assembly includes the right to protest, picket, or hold a demonstration. The right to establish groups of people with similar political interests, from political parties to the Ku Klux Klan, is protected under the First Amendment (NAACP v. Alabama, 1958).

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25. Right to Bear Arms The right to keep and bear arms is protected by the Second Amendment, but it has rarely been the subject of Supreme Court review. States have generally had wide latitude in restricting firearms as the Second Amendment has not been incorporated. In District of Columbia v. Heller (2008), however, the Supreme Court ruled that the Second Amendment did protect an individual's right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. This case does not directly incorporate the Second Amendment (Washington, D.C. is governed by Congress and is not a state), but it suggests that such incorporation is likely in the future.

27. The End For Today! If you ask me anything I don't know, I'm not going to answer. Yogi Berra

28. Defendants' Rights As with free speech, the courts must continually interpret the vague language of the Constitution to apply it to today's issues and events. Searches and seizures: The Fourth Amendment protects citizens from unreasonable searches and seizures. Police investigators cannot search private property without a search warrant issued by a court unless there is reason to believe that the evidence will disappear or be destroyed or removed in the meantime. The police cannot arrest someone unless there is probable cause to believe that he or she is guilty.

29. The exclusionary rule prevents prosecutors from using evidence acquired through unreasonable search and seizure. Mapp v. Ohio (1961) extended the exclusionary rule to state as well as federal cases. • In recent years, the Supreme Court has made exceptions to the exclusionary rule. For example, when police are thought to have acted in "good faith," even if their actions technically violate the rule, the Court has allowed use of the evidence seized. • The USA Patriot Act (2001) and the 2008 revisions to the Foreign Intelligence Surveillance Act following revelations about warrantless eavesdropping by federal agencies expanded the government's right to investigate terrorism suspects without warrants.

30. The Constitution and the Stages of the Criminal Justice System

31. Defendants' Rights Self-incrimination: The Fifth Amendment protects people from being forced to supply evidence against themselves. Because a person is innocent until proven guilty, the prosecution is responsible for proving a defendant's guilt. Miranda v. Arizona (1966): Established that suspects must be informed of their constitutional rights before they are questioned by the police. Right to counsel: The Sixth Amendment guarantees that all accused persons tried in a federal court have the right to be represented by an attorney. Gideon v. Wainwright (1963): Extends this privilege to cases tried in state courts as well.

32. Defendants' Rights Most cases are settled by plea bargaining between lawyers instead of by a trial. The Sixth Amendment requires a trial by a jury of 12 people in federal cases; in state cases this number may be fewer, and a conviction does not require a unanimous vote. Cruel and unusual punishment is prohibited by the Eighth Amendment, though the term is not clearly defined in the Bill of Rights. In Gregg v. Georgia (1976) and McCleskey v. Kemp (1987), the Supreme Court confirmed that the death penalty does not violate the Bill of Rights -that is, it is not considered "cruel and unusual." Debate over the death penalty continues as DNA tests sometimes prove the innocence of inmates on death row and the Supreme Court places an increasing number of restrictions on who can be executed.

34. The End Wooooop There it Is! For Today I just want to thank everyone who made this day necessary. Yogi Berra

35. Gideon v. Wainwright Issues: Criminal Procedure, Right to Counsel Categories: criminal, right to counsel, sixth amendment Facts of the Case Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison. Question Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments? Conclusion In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries."

36. Right to Privacy The right to privacy is not specifically guaranteed by the Bill of Rights, but the Supreme Court has interpreted the first ten amendments to imply this right. Griswold v. Connecticut (1965) asserted the right to privacy, which became more controversial when the principle was applied, in Roe v. Wade (1973), to forbid states from controlling abortions during the first trimester of pregnancy. Webster v. Reproductive Health Services (1989): The Supreme Court upheld a Missouri law that prevented the use of state funds for abortion clinics and that prohibited state employees from performing abortions. The Supreme Court, while allowing abortions, has increasingly permitted regulation of them (Planned Parenthood v. Casey, 1992). Medical technology also causes debate over the right to privacy in cases of surrogate parenthood and physician-assisted suicide.

38. The End Thanks For Coming When you come upon a fork in the road…take it