Civil Liberties & Public Policy

1. Civil Liberties & Public Policy Chapter 4

2. Free Exercise Clause & Freedom of Expression • Civil liberties are essential to a democracy. Civil liberties are based on the Bill of Rights…some disputes may end up in court. • Barrone v Baltimore: The court restrained only national government, not states/cities. • Gitlow v New York (1925)- Freedom of speech/press “were fundamental personal rights/liberties protected by the Due Process Clause. • What is a conscientious objector? • Religious Freedom Restoration Act of 1993. • Permissible v impermissible speech? • How do we know what is obscene? Hate speech? How has the Supreme Court viewed this/ruled?

3. Prior Restraint, Free speech and public order • When does the U.S. government have the Constitutional right to censor something? • Identify what the Pentagon Papers were and how this ties into freedom of expression. • Identify who Senator Joseph McCarthy was (HUAC)How did he and others use the Smith Act of 1940 (violent overthrow of U.S. Govt.), Schenk v U.S (1917) (clear and present danger and who determines this). Dennis v U.S. (1951). • How did the Supreme Ct. change its views on these issues during the 1960s-1970s?

4. Obscenity • Roth v U.S. (1957): Obscenity is not protected free speech. • Standards change over time (1950’s v MTV generation). • Miller v California (1971): Warren Burger (CJ) view of what’s obscene…applying contemporary standards. • How are young people protected from obscenities? • Communication Decency Act (1996)

5. Libel and Slander • Libel- The publication of false statements that are malicious and damage a person’s reputation (written defamation). • Slander- spoken defamation • N.Y.T. v Sullivan (1964)- Statements are libelous only if made with malice and reckless disregard for the truth. Difficult for public figures to win. Easier for private individuals to win. • Tinker v Des Moines • Texas v Johnson • Symbolic Speech.

6. Commercial Speech and Regulation of the Public Airwaves • Commercial speech is regulated far more than expressions of opinion. • Federal Trade Commission (FTC)- Regulates content on Radio & Television…”truth in advertising”. • Federal Communications Commission (FCC)regulates the airwaves. Doesn’t apply to print media. • George Carlin: “Filthy words” routine. • Technological changes have blurred the line between broadcasting and private communications between individuals.

7. Freedom of Assembly • Basis for forming political parties, interest groups, professional associations, picketing and protesting. • Literal version…this is sometimes limited or forbidden is it conflicts with traffic or business interest. • No limitations on content: Nazis marching in Skokie. Operation Rescue and abortion clinics. • Right to Associate…NAACP v Alabama (1958)

8. Right to Bear Arms/Defendants’ Rights • What does the 2ndAmendment actually say? • Gun control groups and those who oppose the killing of civilians tend to demand safer gun laws. • Supreme Court rarely deals with gun control…Columbia v Heller (2008): 2nd Amendment protects an individual right to possess a firearm and use it in their home for self defense. • McDonald v Chicago (2010) – Neither states nor city’s can ban handguns. • 2nd amendment rights are not unlimited: Limits on the possession of firearms by felons, the mentally ill and not allowed to bring firearms into a school or government situation. • Bill of Rights contain only 45 words guaranteeing the freedoms of speech, religion, press and assembly. • Today the courts apply the protections in the 4th, 5th, 6th, 7, and 8th Amendments mostly in criminal justice cases. Think of the stages of the criminal justice system as a series of funnels decreasing in size. • Defendants rights are not clearly defined in the Bill of Rights.

9. Searches and Seizures • Police cannot arrest without a reason. Need probable cause. • 4th Amendment: Forbids unreasonable searches and seizures. Search warrants are not to be given unless probable cause exists that a crime occurred or is about to occur. But most searches occur in the U.S. without a search warrant. • Searches of K-12 students require only that there be a reasonable chance of finding evidence of wrongdoing. • Since 1914, Supreme Court has used an exclusionary rule to weigh evidence in criminal cases. Illegally seized evidence cannot be introduced in court…but only applied to federal level until 1961. • Mapp v Ohio (1961): Evidence seized (obscene materials) was done so illegally, and court reversed Mapp’s conviction. • Defendants rights protect the accused, not the guilty. • USA Patriot Act: passed after 9-11, gave govt. broad powers to wiretap, conduct surveillance and investigate terror suspects. Congress re-authorized in 2006 with few changes (Ed Yohnka mentioned this)

10. Self Incrimination, Right to Counsel, Trials • 5th Amendment forbids forced self-incrimination…suspects need not provide evidence that can later be used against them. • Miranda v Arizona (1966): Case established guidelines for police questioning a suspect (Police now use a Miranda card to read people their rights.) • 6th Amendment: Ensured right to lawyer at Federal Level…but not until 1932 (Powell v Alabama) was it required in state courts for capital offences. • Gideon v Wainwright (1963): Everyone accused of a felony in state court must receive legal representation. • Most (90%) of all cases are settled thru Plea Bargaining, without a trial. Who benefits? Who loses with this system? • Hamdan v Rumsfeld (2006).

11. Cruel and Unusual Punishment • 8th Amendment forbids Cruel and Unusual Treatment…but this is NOT defined. • More than 3,300 people currently on death row…nearly half in California, Texas, and Florida. • Furman v Georgia (1972)…Freakish and Random. • Gregg v Georgia (1976)…SC upheld DP. • Justice Harry Blackmun, 1994: DP “fails to deliver the fair, consistent and reliable sentences of death required by the Constitution”. • McClesky v Kemp (1987): DP did not violate equal protection of the law guaranteed by 14th Amend. • Use of DNA evidence: Gov. Ryan in Illinois (See College students help prevent wrongful deaths p. 123).