Chapter 4
Civil Liberties
Copyright Atomic Dog Publishing, 2006
Civil Liberties vs. Civil Rights
• Civil liberties included in the Constitution and Bill of
Rights:
Freedom of speech
Freedom of religion
Freedom to assemble peaceably
• Civil rights refers to equality of rights for all under 14th
Amendment
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The Problem of
The Individual vs. Society:
do bans on “hate speech”
hurt free speech?
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Original Intent
The theory that judges should
interpret the Constitution by
determining what the founders
intended when they wrote it.
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Problems with Interpreting via
Original Intent
• Whose intent do we use?
 The framers of the constitution?
 The state conventions?
 The state legislatures?
 What if different intents conflict?
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Oliver Wendell Holmes argued…
…that the Constitution must be
interpreted “in light of our whole
experience and not merely in the
light of what was said a hundred
years ago.”
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Bill of Rights
1. Freedom of religion, press, and
assembly
6. Rights when on trial
2. Right to bear arms
7. Common law suits
3. No quartering of troops in private
homes
8. Bail; no cruel and unusual
punishment
4. Unreasonable searches and
seizures prohibited
9. Unremunerated rights protected:
includes right to privacy
5. Rights when accused; due
process clause
10. Powers reserved for states
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4-3a Freedom of Speech
Political Speech
The freedom to criticize the
government’s actions and
policies
Symbolic Speech
Speech that takes the form of
actions or symbols instead of
words: money, American
flag, burning cross
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Highlights in the History of Free
Speech
1798: The Alien and Sedition Acts made it illegal for
anyone to write, speak, or publish defamatory words
about the Federal Government.
1917: The Espionage Act made it illegal to interfere in
any way with military activities, including recruitment or
induction.
1918: The Sedition Act made it illegal to say, print, write,
or publish anything that would cause contempt or scorn
for the government, Constitution, flag, or the uniform of
the armed forces.
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Schenk v. U.S.
Clear and Present Danger
The doctrine that Congress
may limit speech if it causes a
clear and present danger to the
interests of the country.
Justice Holmes
established the “clear
and present danger
standard.”
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Bad Tendency Doctrine
The Bad Tendency Doctrine
The doctrine that speech
need only be likely to lead to
negative consequences, in
Congress's judgment, for it
to be illegal.
In Abrams v. United
States the Supreme Court
upheld the conviction of
five Russian immigrants
and established the bad
tendency doctrine.
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More Highlights in the History of the
Freedom of Speech
1940: Alien
Registration Act
made it illegal to
espouse the
overthrow of the
government by
violent means or to
associate with such
groups.
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1950: The McCarran
Act stated that
communist groups
must register with
the government and
must disclose
names of leaders.
Dennis v. United States
The Supreme Court upheld the conviction of top
members of the Communist Party for violations of
the Alien Registration Act.
The Communist
Control Act of 1954
barred all communist
party organizations
from participating in
elections.
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In Brandenburg v. Ohio (1969) the
Supreme Court loosened up earlier
restrictions on free speech. It
established the incitement standard.
The Incitement Standard
The doctrine that speech
must cause listeners to be
likely to commit immediate
illegal acts for the speech
itself to be illegal.
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Texas v. Johnson, 1989
The Supreme Court ruled 5 to 4 that burning
the U.S. flag was an acceptable form of
protest. A pending amendment would
overturn this ruling.
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Pentagon Papers, 1971
• Secret government documents about the Viet Nam
war; evidence the government had misled Congress
• Nixon Administration opposed their publication on
national security grounds: prior restraint
• The Court permitted publication but did NOT decide
prior restraint was unconstitutional
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4-4 The Second Amendment:
The Right to Bear Arms
Does the Constitution
really provide for private
citizens to own individual
weapons?
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The Supreme Court Rulings on the
Second Amendment
• 1876: U.S. v. Cruikshank—gun ownership is not
a guaranteed right
• 1886: Presser v. Illinois—states can ban private
armies
• 1939: U.S. v. Miller—2nd Amendment meant for
controlling militia
• 1983: Quilici v. Village of Morton Grove—a
lower court ruled “We conclude that the right to
keep and bear handguns is not guaranteed by
the Second Amendment.”
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Regulating Paramilitary Groups
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The Fourth, Fifth, Sixth, and Eighth
Amendments set forth the rules
that govern the relationship
between the federal government
and criminal suspects.
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4-5a The Fourth Amendment:
Search and Seizure
• Plain View
• Reasonable Expectation of Privacy
• Exclusionary Rule
• Mapp v. Ohio, 1961: illegally obtained
evidence cannot be used in court.
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Miranda Rights
• Right to remain silent during questioning
• Right to know that statements the suspect
makes might be used against him or her
• Right to speak to an attorney before
questioning
• Miranda v. Arizona, 1963: can overturn
convictions if these rights are violated.
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Sixth Amendment Protections
Right to an
Attorney
Right to Confront
Witnesses
Right to a
Jury Trial
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Worse justice for African-Americans?
• More likely than whites to be arrested
• Less likely to have adequate legal counsel
• Fewer African-American lawyers, judges, jurors
• More likely to be convicted
• More likely to go to prison
• Longer sentences
• More likely to be sentenced to death
• More subject to felon disenfranchisement laws
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Eighth Amendment: No “Cruel and
Unusual” Punishment?
• The US was the first country in the world to ban
torture (“cruel and unusual punishment”) in 1791
• Supreme Court has NOT considered the death
penalty to be “cruel and unusual punishment” but
HAS challenged state execution procedures
• Geneva Convention and US Military Code of Justice
prohibit torture of prisoners
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Roe v. Wade continues to cause an uproar
and contention as the courts and the
citizenry try to determine where the right to
privacy begins and ends: 9th Amendment
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Who Has Rights?
• Under US Constitution, equal protection of the laws for
US citizens. Excludes fetuses, non-citizens, illegal
immigrants, refugees, foreign nationals, felons.
• Under Declaration of Independence, “inalienable”
natural rights; “all men are created equal.”
• United Nations Declaration of Universal Human Rights:
“All human beings are born free and equal.” Signed by
US, 1948.
• Under the Geneva Convention, protections for prisoners
of war: food, health care, no torture, contact with Red
Cross.
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Hudson: Repression under the National
Security State
• Cold War suppression of Communist Party and
“sympathizers”
• Surveillance and infiltration of “subversive” domestic
groups by FBI, including groups such as the NAACP,
ACLU, Quakers, peace groups, Martin Luther King.
• Use of IRS tax audits to intimidate groups
• Suppression of legitimate political dissent
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USA Patriot Act after 9/11/2001
• Broad definition of “terrorist”
• Expand FBI authority and surveillance power
• Secret detention of “terrorist” suspects without
charges or access to an attorney
• CIA and National Security agency can now spy on
American citizens
• Surveillance of phone calls and bank accounts
without a court order
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Status of Enemy Combatants
New category of “enemy combatants” not covered by
Geneva Convention for prisoners of war
President has sole authority to define enemy
combatants and hold them indefinitely without filing
charges
Physical confinement in prison at base at Guantanamo
Bay, Cuba, or on naval vessels offshore
Trial by secret military tribunals with limited access to
counsel or evidence against them
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Permitting and Justifying
Torture after 9/11
•
Define torture narrowly so as to permit most
interrogation techniques short of “extreme” pain and
suffering
•
No legal liability for anyone who violates torture limits
•
No limits on the power of the President to conduct a
military campaign or defend national security
•
“Extreme rendition:” transport to secret CIA prisons
or to countries with no limits on torture
•
Federal courts have dismissed lawsuits protesting
rendition; unwilling to challenge executive authority
Copyright Atomic Dog Publishing, 2006