Aim: Why are CIVIL LIBERTIES
contentious issues in American
government and politics?
DO NOW:
1. Why did the anti-federalists insist
upon the inclusion of a bill of rights in
exchange for ratification of the new
Constitution?
2. Explain the significance of the
following: “Majority rule will only
work if you’re considering individual
rights. You can’t have five wolves and
one sheep vote on what they want to
have for supper” -Flynt
CIVIL LIBERTIES
THREE THEMES
1.
2.
3.
Why liberties mentioned in Bill of Rights
were thought to be important?
How the Bill of Rights came to apply to the
states?
Why civil liberties have grown in scope and
meaning?
THIS CHAPTER FOCUSES ON THE 1ST AMENDMENT
(SPEECH, RELIGION)
AND CRIME AND DUE PROCESS
CIVIL LIBERTIES
POLITICS, CULTURE, AND CIVIL
LIBERTIES
• Bill of Rights – important limitation on popular
rule
• There are things a government cannot do even
if a majority wants them done
• Why do “liberties” claimed become an issue?
-rights in conflict (interest group politics)
-Passions may be inflamed by a skilled policy
entrepreneur
-Political culture of U.S. contains principles that
are in conflict
CIVIL LIBERTIES
RIGHTS IN CONFLICT
• Bill of Rights/Constitution
• Contain competing rights and duties
• One person asserts one right and
another person asserts another right
• Examples
-right to fair trial v. right to broadcast
-right to “provide for common defense” (right to keep
secrets) v. right to publish secrets
-free-speech v. preservation of public order
CIVIL LIBERTIES
POLICY ENTREPRENEURS
•
•
•
1.
Policy entrepreneurs can sometimes arouse
people to take action against the rights and
liberties claimed by political or religious
dissidents
Crisis often helps in success
Examples:
Sedition Act (1798) – crisis/tension between
U.S./France –Federalist didn’t want any
“false, scandalous, or malicious” writing
against the gov’t – NO PRIOR RESTRAINT –
punish editors after the fact
EXAMPLES CONTINUE ON NEXT SLIDE
CIVIL LIBERTIES
2.
•
•
Espionage and Sedition Acts (19171918) – crime to utter false
statements that would interfere with
the American military, to send through
the mail materials “advocating or
urging treason, insurrection, or
forcible resistance to any law of the
U.S.”
Occasion WWI
More than 2000 people prosecuted; ½
convicted (Red Scare)
CIVIL LIBERTIES
3.
•
•
•
The Smith Act (1940), Internal Security Act
(1950), Communist Control Act (1954)
Made it illegal to advocate overthrow of U.S.
government by force, required members of
Communist party to register with
government, declared the communist party
to be part of conspiracy to overthrow
government
Occasion WWII, Korean War
Policy entrepreneur – Senator Joseph
McCarthy
CIVIL LIBERTIES
WHAT DID THE PREVIOUS LAWS HAVE IN
COMMON?
• An effort to protect the nation from threats (real
/imagined) posed by people who claimed to be
exercising their freedom to speak, publish, organize,
and assemble
• In each case a real threat led the government to narrow
the limits of permissible speech and activity
• ***TODAY, to be found guilty of sedition it is usually
necessary to do something more serious than just talk
CIVIL LIBERTIES
CULTURAL CONFLICTS
• Rooted in our cultural diversity (becoming
increasingly more so)
• Originally WASP dominated
• Pattern of immigration created more diversity
• Some escaping religious persecution, economic
hardship, or political conflict
CIVIL LIBERTIES
EXAMPLES OF CULTURAL CONFLICTS:
• Does a religious display on public property
violate the 1st Amendment’s requirement that
the government pass no law “respecting an
establishment of religion”?
• Is bilingual education constitutionally
required?
• Can pornographic bookstores or movie
theaters be located in community mall?
•
•
•
SUMMARY
Why are CIVIL LIBERTIES
issues contentious ones in
American government and
politics?
AIM: Are there constitutional
restrictions to free speech?
Do Now:
1.
2.
Why was a Bill of Rights introduced into the
first session of Congress following the
ratification of our Constitution?
Why are civil liberties issues in the United
States so contentious?
3. INTERPRETING AND APPLYING THE
1ST AMENDMENT
•
•
Freedom of expression
Freedom of religion
CIVIL LIBERTIES
SPEECH AND NATIONAL SECURITY
• Press enjoys freedom from prior restraint or
____________.
• Sedition Act (1798)
• Sedition and Espionage Act (1917-1918)
-placed restrictions not on publications that were critical of
government but also on those that advocated “treason,
insurrection, or forcible resistance” to federal laws or
attempted to foment disloyalty or mutiny in the armed
services
• Schenck v. U.S.
• Justice Oliver Wendell Holmes
• “clear-and-present-danger”
• A way of balancing the competing demands of free-expression
and national security
• Gitlow v. New York (selective incorporation case)
CIVIL LIBERTIES
OTHER TEST OF FREE-SPEECH
• See text p. 507
• When a crisis appears, the Court has tended to defer, up
to a point, to legislative judgments about the need to
protect national security
• Crisis wanes – tips balance back towards free speech
• “calculate to incite”
• “imminent danger”
• 1977 – Skokie, Illinois case
• 1992 – Supreme Court overturned a Minnesota statute
that made it a crime to display symbols or objects, such
as Nazi Swastika or a burning cross, that are likely to
cause alarm or resentment
CIVIL LIBERTIES
WHAT IS SPEECH?
• What is NOT protected as free speech? (Libel,
Slander, Obscenity)
• LIBEL – written statement that defames the
character of another
• SLANDER – oral statement that defames the
character of another
***you must show that the libelous statement
was false and damaging; “actual malice”;
reckless disregard for their truth or falsity or
with knowledge that they were false
CIVIL LIBERTIES
OBSCENITY
•
•
•
•
•
•
•
•
•
Not protected by 1st amendment
But….what is “obscene”
Justices widely vary in opinions
1957-1968
13 major cases
55 separate opinions
Justice Potter Stewart
Objected to “hard-core pornography”
But admitted that the best definition he could offer was
“I KNOW IT WHEN I SEE IT.”
• 1973 – latest definition of obscenity (see text)
CIVIL LIBERTIES
SORRY, MORE “OBSCENITY”
• Competing claims – liberty v. decency
• Concerns?: for example, is there a link between
pornography and unacceptable social behavior?….does
it perpetuate the “rape myth”?
• Current view of the Court….leave it to localities
• Is nude dancing protected as free speech?
• Feminists and pornography?
• How can a locality constitutionally limit the spread of
pornographic material?
• Effect of Internet on pornography
• Computer generated images
CIVIL LIBERTIES
SYMBOLIC SPEECH
• Is it protected as free-speech?
• It depends.
• You cannot ordinarily claim that an illegal act should be
protected because that action is meant to convey a
political message
• Example – burning a draft card
• Why?
•
Court reasoned that giving such symbolic speech the same
protection as real speech would open the door to permitting
all manner of illegal actions – murder, arson, rape – if the
perpetrator meant to send a message
• BUT you can burn an American flag? Why?
CIVIL LIBERTIES
WHO IS A PERSON?
• Persons enjoy the protection of free
speech
• But, who is a person
• Corporations, interest groups, children
• Do they have the same 1st Amendment
rights?
• Mostly, but not entirely
• Examples??
• Citizens United case
CIVIL LIBERTIES: Why are civil
liberties issues so contentious?
FREE-SPEECH DISCUSSION QUESTIONS
1.
2.
3.
4.
5.
6.
7.
8.
Are there constitutional restrictions to free-speech?
If so, what are they?
What is the significance of the Schenck and Gitlow
cases?
How has the supreme Court dealt with the issue of
obscenity?
What is SELECTIVE INCORPORATION?
What case selectively incorporated the 1st Amendment
to apply to the states?
Why can one burn the American flag but not a draft
card and have it protected as free-speech?
SEE TEXT FOR FIRST AMENDMENT CASES – “HOW
WOULD YOU DECIDE?”
Aim: How have the clauses
pertaining to religion in the 1st
amendment been interpreted?
Do Now:
1. Identify 4 clauses in the 1st amendment that
pertain to free-expression.
2. What Supreme Court case established the
“clear and present danger” test?
3. Is “symbolic speech” protected as free
speech?
4. Why is the 14th amendment’s “due process”
clause considered one of the most important
clauses in the Constitution?
5. Identify 2 clauses in the 1st amendment
pertaining to religion.
Aim: How have the clauses
pertaining to religion in the 1st
amendment been interpreted?
CHURCH AND STATE (1ST AMENDMENT)
“FREE- EXERCISE” CLAUSE – Congress shall
make no law prohibiting the “free-exercise” of
religion
• What does this mean?
• Are there any limits?
• Oregon v. Smith
• Reynolds v. U.S.
• What if you believe that on religious grounds
war is immoral? Can you be drafted?
CIVIL LIBERTIES
ESTABLISHMENT CLAUSE
•
•
•
•
•
1.
2.
3.
Congress shall make no law “respecting an establishment of
religion”
Supreme Court has determined this vague phrase to mean
that the Constitution erects a “WALL OF SEPARATION” of
Church and State.
Used to keep prayer out of schools even if it is nonsectarian, voluntary or limited to reading a passage of the
Bible (Engel v. Vitale – 1962)
3 part test established to decide under what circumstances
government involvement in religious activities is improper
Constitutional if… (Lemon v. Kurtzman – 1971)
It has a secular purpose
Its primary effect neither advances nor inhibits religion
It does not foster an excessive government entanglement with
religion
CIVIL LIBERTIES
CHURCH AND STATE
• Confusing rulings
• Bible club in public schools, nativity scene on
public property, requirement to teach
“creationism” in public schools, and more…
• No prayer in schools but Congress starts each
session with a prayer
• Public school cannot have a chaplain, but
armed services can
• Court has said that government cannot
advance religion yet “In God we Trust” on
money
• See reading box p.558
Aim: How have the clauses
pertaining to religion in the 1st
amendment been interpreted?
SUMMARY:
1. What two clauses in the 1st amendment
pertain to religion?
2. Which clause has been interpreted to mean
there shall be a “wall of separation” between
church and state?
3. What is the significance of the Reynolds
case?...Oregon case?
4. What is the significance of Engel v. Vitale?
5. What is the significance of Lemon v.
Kurtzman?
Aim: Why are CIVIL LIBERTIES
contentious issues in American
government and politics?
DO NOW:
1. Identify four clauses in the 1st amendment
that pertain to free-expression?
2. Identify two clauses in the 1st amendment
that pertain to religion?
3. Identify one landmark case that we reviewed
pertaining to “free speech”.
4. Identify one landmark case that we reviewed
pertaining to the “establishment clause”?...
“free exercise” clause?
CIVIL LIBERTIES
CRIME AND DUE PROCESS
THE EXCLUSIONARY RULE
•
Rule holds that evidence gathered in violation of the
Constitution cannot be used in a trial
•
Used to implement provisions of the Bill of Rights
1.
The right to be free from unreasonable searches/seizures
(4th Amendment)
2.
Right not to be compelled to give evidence against oneself
(5th Amendment)
1961 – MAPP V. OHIO
- exclusionary rule
- warrant – look for what’s on warrant
- selective incorporation of 4th Amendment and exclusionary
rule
CIVIL LIBERTIES
SEARCH AND SEIZURE
•
•
WHEN CAN THE POLICE SEARCH YOU
WITHOUT IT BEING UNREASONABLE?
2 circumstances
1.
2.
Search warrant (probable cause)
When they have lawfully arrested you
•
WHEN CAN YOU BE ARRESTED?
1.
2.
3.
Judge issues warrant for your arrest
Commit a crime in the presence of a police officer
Or if officer has probable cause to believe that you
have committed a serious crime
CIVIL LIBERTIES
CRIME AND DUE PROCESS
•
In general, the police, after arresting you can
search…
1.
2.
3.
•
You
Things in plain view
Things or places under your immediate control
Usually means the “room” you’re in (not the whole
house or the car in your driveway
Court has tried to protect those places in which a
person has a “reasonable expectation of privacy”
Your body is one such place (bullet in body)
Yet the police can require a Breathalyzer test
•
•
•
CIVIL LIBERTIES
TESTING FOR DRUGS/AIDS
• AIDS tests – 1987 – new immigrants, federal prisoners,
and certain other categories of people
• Drug Abuse – Reagan – 1986 – federal government
employees tested
• Numerous private firms and major league sports already
required such testing
• Is drug-testing by a government agency an improper
search?
• Yes and no
• No, in certain types of employment (law
enforcement/railroad employees involved in accident)
• In short, a concern for public safety or national security
can justify government ordered drug test
• Same rules justify “road blocks”, “randomly checking
drivers”
• Also allowed random drug-testing of high school
athletes
CIVIL LIBERTIES
CONFESSIONS AND SELF-INCRIMINATION
•
•
•
•
•
•
•
ESCOBEDO AND MIRANDA CASES
Miranda v. Arizona (see text p. 566)
Rape/kidnapped
Rights weren’t read
Confession was excluded
Conviction was overturned
Selective incorporation case – 5th Amendment applied to
states through due process clause of 14th Amendment
Aim: Why are CIVIL LIBERTIES
contentious issues in American
government and politics?
DO NOW:
1. What is the significance of the
ruling in Mapp v. Ohio?
2. What is the significance of the
ruling in Escobedo v. Illinois?
3. What is the significance of the
ruling in Miranda v. Arizona?
CIVIL LIBERTIES
RELAXING THE EXCLUSIONARY RULE
• Should criminals get off on “technicality”?
• Why not just sue police if they violate evidence
rule?
• Are these rules too “technical”?
• How can these rules be effective if the police
don’t understand them?
• Good-faith exception (p.567)
Gideon v. Wainwright
• See Packet
• 6th amendment
• Right to an attorney
• Selective incorporation of public
defender
Aim: Why are CIVIL LIBERTIES
contentious issues in American
government and politics?
SUMMARY:
See homework essay packet