Chapter Four
Civil Liberties
Civil Liberties
• One of the first things our new government did under the new
Constitution was to pass a Bill of Rights
•Due to the fear of a strong national govt.
• Linked to the idea of natural rights was the idea that a right was a
“limitation” on any governmental power
• When we speak of Civil Liberties, then, we are referring to limitations
on government which are spelled out in the Constitution
• Limits on government are mentioned throughout the Constitution, but
mostly in the Bill of Rights, which is brief
• Judicial interpretation, then, has shaped our civil liberties and the
rights we possess. So we must study the courts…
Civil Liberties Cont.
• Originally, the BOR limited only the national govt.’s powers. States
had their own BOR.
• It wasn’t until the 14th Amendment was passed in 1868, that the CL
guaranteed by the national Constitution were applied to the states:
• “No state shall…deprive any person of life, liberty, or property, without due process of law”
• For decades the courts were reluctant to define the liberties
spelled out
in the BOR as constituting “due process of law”
which was
protected by the 14th Amendment...
• …Until 1925 in Gitlow v. New York where speech was applied
• The Supreme Court, over the years, and through the
Incorporation
Theory, has used “rules” and “tests” to
help it protect our civil
rights and liberties from the states.
(See Table 4.1, Page 69)
•Freedom of Religion
• Separation of Church and State
• The 1st Amendment and has two religious precepts:
• Establishment clause and Free Exercise clause
• “A wall of separation of church and state” – T. Jefferson
• 1971 Lemon v. Kurtzman no direct aid for religious instruction
• State aid to church-related schools, e.g. The 1971 Lemon Test:
• Aid has to be secular in aim, no primary effect of advancing or
prohibiting religion, no excessive government entanglement
• Aiding students or religion? A fine line.
•Do any state have a right to promote religion in general?
•1962 Engel v. Vitale
•Can any state have a moment of silence? 1985 Wallace v. Jaffree
•Only if it is secular in nature and not religious
•Prayer at graduation?
•Prohibiting teaching evolution?
Free Exercise Clause
• Means that no type of religious belief can be
prohibited and restricted by the government
• Except when “practices” go against public policy
– Vaccinations, school textbooks, illegal drugs
• 1990 Oregon v. Smith case
– Peyote use
• Congress responded with the Religious Freedom
Restoration Act of 1993 (RFRA) to “accommodate
religious conduct” unless there was a “compelling”
reason not to. And if the govt. did regulate it, it hasd to
use the least restrictive means possible.
• Overturned (checked) by Supreme Court in 1997
Freedom of Expression
• Permitted restrictions have occurred over time:
•Speech that presents a “clear and present danger” to cause a
condition, actual or imminent, that Congress has the power to
prevent
•There may be restrictions if the expression brings about some
“evil” (the bad tendency rule) e.g. violent overthrow of govt.
• Protected speech
•Symbolic speech – Gestures, movements, clothing, flag burning,
cross burning in another’s front yard, parades
•Commercial speech – Advertising statements. A restriction on
commercial speech is valid if it: has a substantial govt. interest,
directly advances that interest, goes no further than necessary to
accomplish its objective.
•No Prior Restraint – Pentagon Papers (1971), It involves
censorship
Freedom of Expression
• Unprotected speech 1973 Miller v. California
• Obscenity – If it violates contemporary community standards,
appeals to “prurient interests” in sex, it contains patently offensive
sexual content, and the work lacks serious, redeeming merit
•1990 Osborne v. Ohio States can outlaw possession of child
pornography in the home
• Slander – Orally defaming someone’s character to a third person
•Libel is the written form of defamation of character
• Fighting words – Public speakers may not use them
• Heckler’s veto – Listening to a speech? Watch out! You could be
arrested if it poses a threat of disruption or violence. You are blocking
the rights of the speaker to speak.
• Hate Speech – Abusive speech attacking a person on the basis of their
ethnicity, race, or other criteria
Freedom of the Press
• Press has some protection from libel charges
• Libel must be accompanied by actual malice…or,
• Intending to cause harm as your objective (hard to prove)
• The press is now protected from “gag orders” during trials, except in
unusual circumstances…like:
• If a “reasonable probability” exists to prevent a fair trial
• Radio and TV have much more limited 1st Amendment protections
• They are subject to the equal time rule for politicians
• They are subject to the personal attack rule for citizens
• The FCC can issue sanctions for “Filthy Words” (Howard Stern)
The Right to Assemble and Petition the
Government
• Protected by the 1st Amendment
•The right to assemble in order to petition…
• Can be limited by municipalities: Through permits for marches,
parades, sound trucks, and demonstrations
• Can gang members be prohibited from gathering on a street without
violating their rights to assembly?
Privacy Rights
There is no explicit right to privacy in Constitution, but in 1965 in Griswold v.
Connecticut, a state law banning contraceptives violated the right to privacy
in the 1st, 3rd, 4th, 5th, and 9th Amendments.
• “Penumbras, formed by emanations from those guarantees…” – Justice
Douglas
• 9th Amendment: “The enumeration in the Constitution of certain rights,
shall not be construed to deny or disparage others retained by the people.”
• Then in Roe v. Wade (1973) the court rules that privacy rights is broad
enough to include abortion rights in the first trimester
• Since then, the Court has taken on a more restrictive view of the rights
outlined in Roe v. Wade
• (1989) Webster v. Reproductive Health Services, No public or taxpayersupported facilities can be used.
• (1992) Planned Parenthood v. Casey, Pre-abortion counseling, waiting
period of 24 hours, under 18 parental or judicial permission
(2000) Court struck down a state law against “partial-birth” abortions
The Right to Die
• The right to privacy includes refusing treatment to
keep you alive
– “Living Wills” or durable health-care powers of attorney
• But not physician-assisted suicide
– The liberty interest protected by the Constitution does not
include a right to commit suicide, with or without
assistance
– Exception is Oregon, the only state
The Rights of The Accused v. The Rights of Society
All accused have the right to due process of law and fair treatment.
• Limits on Conduct of Police Officers and Prosecutors, and Defendant’s
Pre-Trial Rights on Page 86 of your text.
• Trial Rights – 1963 Gideon v. Wainright, Accused of a felony, can’t
afford an attorney, the govt. pays for one. (also on Page 86)
• Miranda Rights – 1966 Miranda v. Arizona, confessing without being
told of one’s rights, is impermissible.
• Exceptions exist in federal cases when there is a voluntary confession,
or at state level when “public safety” required action.
• Exclusionary Rule – 1961 Mapp v. Ohio, Cannot use illegally seized
evidence at trials in federal courts. (gather evidence properly)
•Exceptions: if evidence could have been obtained legally anyway and if
there was a technically incorrect search warrant mistake, but the
evidence was obtained in “good faith”.
Hot Links to Selected Internet Resources:
• http://www.wadsworth.com/cgiwadsworth/course_products_wp.pl?fid=M2&discipline_number=20&
product_isbn_issn=0534592651
• http://www.wadsworth.com/politicalscience
• http://www.aclu.org
• http://www.vote-smart.org/issues
• http://www.epic.org/privacy