POL S 202: Intro to American Politics

1. POL S 202: Intro to American Politics “Civil Liberties” Week 3: April 13, 2010

2. American Politics in the News… Interesting News Stories: 1. 47 heads of state meet at WH to discuss nuclear non-prolif 2. Justice Stevens to retire 3. WA State leg passes budget deal

3. Civil Liberties Civil Liberties: Personal freedoms that are protected for all individuals; Restraints on the government’s actions against individuals • Bill of Rights contains most civil liberties, but is very broad in nature • Courts must interpret and decide how B of R apply • Founders wanted B of R to check the federal government, not necessarily state governments • Barron v. Baltimore (1833), Sup. Ct. ruled that B of R did not apply to the states • Gitlow v. New York (1925), Sup. Ct. ruled that B of R does apply to states via the 14th Amendment

4. Civil Liberties in the States 14th Amendment: No State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (pg 378) • In general 14th Amendment exists to protect civil rights, but courts have used it to incorporate the protection of individual liberties (B of R) as well • Following Gitlow decision in 1925, Sup. Ct. expanded the 14th Amd. to include most of the other provisions in the B of R at the state level

5. Freedom of Religion 1st Amendment: Congress shall make no law respecting an establish of religion, or prohibiting the free exercise thereof; (pg 376) • Two main components to freedom of religion: • Establishment clause • Free exercise clause • Constitution writers were very religious, but also very worried that religious intolerance would create divisions in the 13 original states

6. Freedom of Religion • Separation of Church and State (establ. clause) • Aid to Church-Related Schools • Lemon v. Kurtzman 1971 – direct state aid could not subsidize religious instruction • School Vouchers: Court supports in 2002 Cleveland • School Prayer • Engel v. Vitale 1962 – official prayer not allowed • Wallace v. Jaffree 1985 – moment of silence not allowed • Teaching Evolution v. Creationism • Epperson v. Arkansas 1968 – evolution violated establ. • Edwards v. Aguillard 1987 – teaching both also unconst.

7. Freedom of Religion • The Free Exercise Clause • Allows people to hold any religious belief they want, or no religious belief at all • However, religious practices can not work contrary to public policy and public welfare • Oregon v. Smith 1990, peyote use in religion • Sup. Ct. allows Oregon to deny peyote use • 1993 Congress passed Religious Freedom Restoration Act to support free exercise • Sup. Ct. says congress went too far and strikes down law

8. Freedom of Expression • No prior restraint – the Supreme Court has been critical of government efforts to censor expression (prior restraint) • The Supreme Court has protected some forms of speech: • symbolic speech • commercial speech (though in Nike v. Kasky (2003), the court did not protect commerical speech

9. Freedom of Expression Permitted restrictions: • speech that presents a “clear and present danger” • speech speech that might lead to some “evil “(the bad tendency rule)

10. Freedom of Expression Unprotected speech • obscenity • hate speech • slander

11. Freedom of the Press • press has some protection from libel charges • libel must be accompanied by actual malice • the press is now protected from gag orders during trials, except in unusual circumstances • radio and t.v. have much more limited 1st amendment protections • they are subject to the equal time rule

12. The Right to Assemble and Petition the Government • can be limited by municipalities right to offer permits for marches • protected by the 1st amendment

13. Privacy Rights and Abortion • no explicit right to privacy in Constitution, but in Roe v. Wade (1973) court rules that privacy rights include abortion rights • since then, the Court has taken on a more restrictive view of the rights outlined in Roe

14. Rights of the Accused versus the Rights of Society • Limits on Conduct of Police Officers and Prosecutors • Defendant’s Pre-Trial Rights • Trial Rights • Miranda Rights • Videotaped Interrogations • Exclusionary Rule

15. The Patriot Act Overview: updated surveillance laws and expanded powers of surveillance and law enforcement to track, monitor, search and detain suspects • In order to expand surveillance power to track terrorists, all residents of America are affected • Which is more important? National Security or Civil Liberties • Should we curtail our rights to free speech and privacy to track and monitor potential suspects

16. The Patriot Act • Many groups and individuals that support civil liberties and oppose government intervention want changes in the Patriot Act • Section 215 authorizes investigators to obtain records deemed necessary to investigate terrorism such as library, bookstore, medical, education, travel records • In September 2007, U.S. District Judge in Oregon ruled that secret searches and wiretaps violate the 4th Amendment ban on unreasonable searches

17. The Patriot Act • Dec 2009, 9th Circuit Court of Appeals finds that there is no standing for 4th Amd claims • Feb 2010, House and Senate extended key provisions of the USA Patriot Act for one year • Court approved roving wiretaps • Court approved seizure of records and property • Surveillance of noncitizen suspects • Some groups such as ACLU continue to push for repeal and revision of large portions of the Patriot Act

18. Discussion Questions • Should the Congress make the Patriot Act permanent or pass something else to address surveillance of terrorist suspects? When should civil liberties be curtailed and by how much?