CIVIL LIBERTIES AND PUBLIC
POLICY
I. Bill of rights-then and now
A. Civil liberties- are legal protections against
the government and are essential to
democracy
1) Set down in our bill of rights
2) Were a condition of ratification
3)
Passed at a period of bitterness
B. Bill of rights passed to restrict the powers of
the new central government.
But questions arose as to whom they restricted
Questions arose?
 In Barron versus Baltimore (1833) the Court ruled Bill of
rights only restrained national government and not states
and cities
 But the incorporation doctrine provided the rationale to use
the 14th amendment to apply fundamental freedoms to state
actions
 Gitlow versus New York (1925)- first use of the 14th
amendment saying 1st amendment rights could not be
impaired by the states
Freedom of Religion
 First Amendment Makes two statements about religion and
government:
 1) Establishment clause:
 A) “Congress shall make no law respecting the
establishment of religion” –
 Translation- NO NATIONAL CHURCH and SEPARATE
CHURCH AND STATE
 Cases: Lemon v Kurtzman (1971) ; Engel v Vitale
(1962); Westside community Schools v Mergens
(1990); School District of Abington Township,
Pennsylvania v Schempp (1963)
Freedom of Religion
 2) Free Exercise Clause
 Sometimes clashes with society ideas. Can you think of
some?
 Supreme Court has consistently maintained that people
have the abs0lute right to believe whatever they want
 Case: Wisconsin v Yoder (1972); Boerne v Flores (1997)
Freedom of Expression?
 Does “no law” in the 1st amendment really mean “no law”?
 Is freedom of expression absolute?
 A) SCJ Hugo Black said yes- no laws to permit it
 B)Courts have ruled that sometimes speech needs to be
controlled- (Yelling FIRE in a crowded room)
 C) Balance created between free expression and competing values
like order, national security and fair trials
 D) Also decided what constituted speech and
 therefore protected by the 1st:

1(
Nonverbal like pickets are symbolic speech
Prior Restraint?
Is the ability of a government to prevent material from being
published.
Supreme Court has generally struck this down (Near v
Minnesota (1931))
Hazelwood School District v Kuhlmeier (1988) – court said
school officials could regulate a school newspaper since it
was not a public forum
For national security?- Court reluctant to issue injunctions
(New York Times v United States (1971) prohibiting
Vietnam documents from being printed)
Free Speech and Public Order
 War often brings government efforts to enforce censorship
 A) Schenck v United States (1919) – Clear and present danger
can limit speech
 B) Smith Act of 1940 – forbade the advocacy of violent overthrow
of the government
 C) McCarthyism –caused restrictions on freedom of speech
 TODAY, COURTS ARE VERY SUPPORTIVE OF THE RIGHT TO
PROTEST, PASS OUT LEAFLETS OR GATHER SIGNATURES
Free Press and Free Trial
Bill of rights tries to guarantee both
Media can make this very difficult because
journalists:
1) Argue the public has the right to know
2) At same time they want to protect “sources”
3) Have “shield laws” in some states
Supreme Court has held that the right to free
trial preempts reporters’ rights to protect
sources. (Zurcher v Stanford Daily 1976)
Obscenity and its Definition






Has perplexed the courts because:
1) Standards vary
2) Obscenity or “art”
3) No nationwide concensus
4) Porn degrading women?
5) States may protect kids form the same materials
adults have legal access to
 6) Supreme Court has said obscenity not protected
expression (Roth v US 1957)
Miller v California 1973
 Court ruled and CJ Warren Berger wrote:
 “Items are obscene if taken as a whole
appealed to purest interest in sex, had
offensive sexual content or lacked in artistic,
literary, political or scientific merit”
 THAT HELPS!!
 NOT!!!
Libel and Slander
 Libel- published falsehoods about a person
 Slander- spoken falsehoods
 Both causing damage (defamation)
 Two types and how court has ruled:
 1)Public individuals- libelous if statements are made with
mailce and disregard for truth (New York Times v Sullivan
1964)
 2) You and me- only need to prove defamatory
statements were made and author was negligent
“Symbolic Speech”
 Actions that do not consist of speaking or writing but
express an opinion
 Broadly interpreted, freedom of speech is a guarantee of
freedom of expression
 Doctrine of symbolic speech is not precise: burning a flag is
protected speech but burning a draft card is not (Texas v
Johnson 1989; US v O’Brien 1968)
Commercial Speech
Such as advertising is more restricted than are expressions
of religion, politics or other matters
FTC (Federal Trade Commission)- decides what kinds of materials
may be advertised on radio and TV
Although more restricted, the times are changing to provide more
protection for this expression. (ie. Condom ads?)
Radio and TV is more restricted than the print media
FCC- (Federal Communications Commission) regulates what content
is on radio and TV- HOWARD STERN? TITANIC?
Licensed stations must comply to operate
Freedom of Assembly
 Two facets:
 1) Right to assemble if:
 A) within reasonable limits (time, place and manner)
 B) on public property (stay off my lawn)
 C) Does not border on harassment
 2) Right to associate:
 A) gather with people with a common interest to create
political change
 B) 1958 SC found that requiring the NAACP to turn over its
membership list to the state of Alabama was a violation of this
provision. (NAACP v Alabama)
Rights of the Accused
 The 1st amendment guarantees the freedoms of religion,
speech, press and assembly
 Most of the other rights in the Bill of Rights deal with the
rights of people accused of crimes
 These rights originally intended to protect the accused in
political arrests and trials
 Today the 4th, 5th, 6th and 8th are primarily applied to
criminal cases
 Generally vague Bill of Rights have been applied to the
states as well through the incorporation doctrine
4th Amendment
 Forbids unreasonable searches and seizures
 1) No court may issue a search warrant without probable cause
 2) Warrants must say where is to be searched and what they are
looking to find
Since 1914 courts have used the exclusionary rule to prevent
illegally seized evidence from being admitted in court
 1) In Mapp v Ohio (1961) the SC used incorporation to apply the
exclusionary rule to states as well
 2) Critics say criminals getting off on “technicalities”
 3) Supporters say rules and protections of the Constitution are
the rules
 Warren court made exceptions ot the Exclusionary Rule by
allowing warrantless searches if probable cause existed
5th Amendment
 Prohibits forced self-incrimination
 Suspects can’t be forced to give evidence that can
 be used against them because:

a) Burden of proof on prosecution


b) Right applies in all places not just court rooms
c) But defendants must testify if granted immunity
 Miranda v Arizona (1966) – Rights to remain silent, things said
can be used against them, right to an attorney
 Again, Justice Berger made exceptions in saying Miranda right
violations not always set in stone if other evidence does exist
6th Amendment- Part I
 Right to Counsel
 Meant in federal courts and not
 incorporated until recently
 Progress:
 1) 1932 SC ordered states to provide an attorney for
indigent accused of a capital crime ( Powell v Alabama)
 2) 1963 the court extended the same right to everyone
accused of a felony (Gideon v Wainwright only after a
paupers’ petition was written by Gideon)
 3) Later ruled a lawyer must be appointed whenever
imprisonment could be imposed (Argersinger v Hamlin,
1972)
6th Amendment- Part II
 Right to Speedy Trial and Impartial Jury
 Most cases settled through plea bargains which are
fast and cheap
 Opponents say deserving criminals don’t get the
punishment they should
 Size of jury not set by document but by custom is
usually 12
8th Amendment
 Protection against cruel and unusual punishment but
does not define it.
 Death penalty at the center:
 Witherspoon v Illinois (1968)- overturned death
sentence due to leaving out opponents of death penalty
from jury
 Furman v Georgia (1972) – overturned GA death penalty
because of the way it was applied
 Gregg v Georgia (1976)- only for extreme crimes
 McClesky v Kemp (1987) – upheld against charges of 14th
amendment equal protection for minorities
 Court recently held it is okay to execute 16 and 17 year
old as well as individuals with developmental
disabilities