Chapter Five
Civil Liberties
Instructor: Kevin Sexton
Course: U.S. Political Systems
Southeast Missouri State University
Civil Liberties versus Civil Rights
Civil Liberties deal with the Bill of Rights.
&
Civil Rights deal with laws passed by national and state legislatures.
AND……..
CIVIL LIBERTIES are protections from government
&
CIVIL RIGHTS are protections by government
Protections from Government?
Who Is or Who Was The Government?
The WHO has changed.
Prior to the Civil War the level of government to which
the Bill of Rights applied was the federal government.
The U.S. Constitution is the rules by which the federal
government operate, the Bill of Rights is the first
ten amendments to the U.S. Constitution.
What did the Civil War change?
Civil Liberties After The Civil War
Three CIVIL RIGHTS amendments
ratified after the Civil War:
13th Amendment – Abolished Slavery
14th Amendment – Redefined Civil Rights & Liberties
15th Amendment -- Provided The Vote To All Male Citizens
14th Amendment changes the fact that the Bill of Rights only
applied to the federal government.
HOW?
Due Process Clause
Both the 5th and 14th Amendment addresses “due process.”
5th Amendment – “... nor be deprived of life, liberty, or property
without due process of law; …”
14th Amendment – “… nor shall any State deprive any person
of life, liberty, or property with the due
process of law;…”
WHAT IS THE DIFFERENCE?
“… nor shall any “STATE” deprive…”
Selective Incorporation
The 14th Amendment now applies the Bill of Rights to both
the federal and state governments.
But the federal government was not in a position to do this.
The federal government (Supreme Court) implemented a
process known as
SELECTIVE INCORPORATION
The case by case application of each right found
within the Bill of Rights.
Most, but not all of the Bill of Rights is applied
to the States.
(i.e. 2nd Amendment)
Liberties Addressed In
The Bill of Rights
1st – Speech, Press, Assembly and Religion **
2nd – Bear Arms
3rd – Quartering of Troops
4th-8th – Rights of Criminally Accused **
9th – Necessary and Proper
10th – Reserved Powers
Are We Always Free To…..
Several things to remember about our Civil Liberties or freedoms:
1. The right to BELIEVE anything we want, is the only
right we have that is ABSOLUTE.
2. Your freedoms end where someone else’s freedom begins.
(i.e. Listening to Music, keeping your yard cut.)
1st Amendment
(free speech, press, assembly & religion)
Freedom of Speech
Five Doctrines or Tests that have been used to measure the
appropriateness of limits placed on speech.
1.
2.
3.
4.
5.
Bad Tendency Test
Clear & Present Danger Doctrine
Fighting Words Doctrine
Balancing Doctrine
Fundamental Freedoms Doctrine
Bad Tendency and Clear & Present Danger
Bad Tendency Test
• English rule that stated that expression could be limited if it could
ultimately lead to illegal behavior.
• Gave very broad discretion to the English government.
• often used to protect the monarchy from criticism.
Clear & Present Danger
• Established in Supreme Court Ruling in Schenck v. U.S. (1919)
• 1st Major Supreme Court ruling dealing with freedom of speech.
• Freedom of expression should be complete unless, the speech
“endangered the nation.”
• It left the interpretation of “endanger” open for review.
• Did not differ a whole lot from the “Bad Tendency Test.”
Fighting Words & Balancing Doctrines
Fighting Words Doctrine
• Established in 1942 Supreme Court ruling in Chaplinsky v. New Hampshire
• Stated that some words constitute violent acts and therefore those words
are not protected by the 1st Amendment.
• Greatly enhanced the governments ability to limit speech.
Balancing Doctrine
• Established in the 1951 Supreme Court ruling in Dennis v. U.S.
• Stated that freedom of speech had to be balanced against other competing
public interests.
i.e. – Communist party’s right to free speech as balanced against the governments right
to prevent their overthrow.
• It reinterpreted and placed limits on the “clear and present danger” test.
Fundamental Freedoms Doctrine
• In 1960’s the Courts began using the concept that certain rights,
such as speech, press have a preferred position in the Constitution.
• Therefore, they must be given extraordinary protections.
• Even if the speech was offensive to good taste it should be
protected.
• Has been the basis of our current policies allowing for very limited
instances of limiting free speech rights.
i.e. – Papish v. Board of Curators for the University of Missouri
Limits On Free Expression
There are some very specific instances when limits can be placed
on our speech or expression.
Several of those are listed below:
1.Commercial Speech
2.Obscenity
3.Libel/Slander
Commercial Speech
Speech or expression for business purposes can be regulated.
According to the Supreme Court regulating commercial speech for
two primary reasons:
1. To prevent companies from providing false or misleading
information, therefore taking advantage of consumers.
2. To limit use of substances deemed harmful by the government.
i.e. – Limited cigarette and alcohol advertising
Truth in labeling Laws
Obscenity
Many people are unsure if obscene material is or should be illegal.
The Supreme Court is very clear about this….
Obscene Material is illegal and can be restricted.
The question is not IS obscene material illegal.
The questions is WHAT is obscene and
&
WHO determines what is obscene
In Miller v California (1973) the Supreme Court stated that LOCAL
COMMUNTIY STANDARDS will determine what is considered
obscene.
Are there any questions about what
LOCAL COMMUNITY STANDARDS are?
YES
How Do We Deal With Internet Pornography and
Local Community Standards?
Libel and Slander
Libel deals with the written word.
Slander deals with the spoken word.
Libel and Slander involve false statements made by someone
about another person. In order for an ordinary citizen to prove libel or
slander they must prove that:
1. The statement was false.
2. The statement caused harm.
3. The statement was made without adequate research into the
truthfulness of the statement.
IT IS SOMEWHAT DIFFERENT FOR CELEBRITIES.
In order for a public official or celebrity to prove libel or slander they
must prove the above three things,
PLUS
4. That the statement was made with intent to do harm.
Freedom of Religion
Two clauses in the 1st Amendment address religion.
Establishment Clause: government will not create a “state religion”
Free Exercise Clause: we can practice ANY religion we choose
without government interference.
Establishment Clause
Separation of church and state
Where in the Constitution is this doctrine found?
NO WHERE. IT IS NOT FOUND IN ANY HISTORICAL U.S. DOCUMENT.
Where does it come from?
Thomas Jefferson’s Letter to the Danbury Baptist Association
(a copy of this letter is found on the course website)
Does this doctrine mean that the government cannot be
involved or supportive of any religious organization?
NO
Governments can provide support to religious schools and
organizations as long as there is no excessive entanglements
as a result of the involvement.
Establishment Clause
(continued)
Lemon v Kurtzman (1971)
Any state law providing assistance to religious schools must
meet the following standards:
1. The law “must have a secular legislative purpose.
2. The laws “primary effect must be one that neither
advances not inhibits religion.”
3. The law must not foster “an excessive government
entanglement with religion.”
i.e. YES to textbooks, but NO to teacher salaries
Free Exercise Clause
As with other liberties we are free to exercise our own religions
however we choose --- within established limits. There is no one
test or doctrine that the courts follow. They address each issue
on a case by case basis. Here are a few examples of religious
exercise cases decided by the Supreme Court.
Wisconsin v Yoder (1972) – Amish children do not have to attend
school.
Church of the Lukumi Babalu Aye. Inc. v City of Hialeah (1993)
• City wrote law outlawing animal sacrifice in response to
the churches practice of sacrificing chickens.
Oregon v Smith (1990) – Native Americans denied unemployment
after being fired for smoking peyote.
Rights of the Criminally Accused
The vast majority of the Bill of Rights deals with the rights of
the criminally accused.
WHY?
The anti-federalist feared that the central government would be able
to squash opposition by imprisoning them, as the British did prior to
America’s Independence.
To prevent that from happening they created a number of guarantees
To protect those that might be wrongly accused of a crime.
Amendments 4 thru 8 deal with the rights of the criminally accused.
Rights of the Criminally Accused
(continued)
For the in-class portion of exam one you will need to be
Familiar with the court cases presented in this power point
As well as those listed in the table found on page 451 of your
Textbook.
IN ADDITION……
Be familiar with the basic rights of the criminally accused
And in which amendment they are covered.