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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.

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Chapter Four

Civil Liberties


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  • 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…


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  • 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)

        • Strict Scrutiny Test, Lemon Test, Obscenity Rule, Good Faith


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  • 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?


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    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

    Free Exercise Clause


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    • 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


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  • 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


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  • 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)


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  • 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?


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  • 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 taxpayer-supported 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


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    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 Right to Die


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  • 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”.


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    • Hot Links to Selected Internet Resources: alive

    • http://www.wadsworth.com/cgi-wadsworth/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


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