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Chapter 4

Chapter 4. Civil Liberties. Civil Liberties. Civil Liberties: constitutionally established guarantees that protect citizens, opinions, and property against arbitrary government interference. For example: Freedom of Speech, protection against censorship.

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Chapter 4

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  1. Chapter 4 Civil Liberties

  2. Civil Liberties • Civil Liberties: constitutionally established guarantees that protect citizens, opinions, and property against arbitrary government interference. • For example: Freedom of Speech, protection against censorship. • The first ten amendments strictly limit the power of the legislative, executive, judicial branches of national government.

  3. Due Process • Due Process: legal safeguards that prevent government from arbitrarily depriving citizens life, liberty, or property; 5th and 14th amendment.

  4. Basis for American Civil Liberties • The framers understandably viewed liberty as a central principal guiding the creation of a new democratic republic. • Hamilton viewed the Constitution itself as a bill of rights because it delegated specific powers to the national government and specific provisions designed to protect citizens against an abusive government.

  5. Citizens Protection • Article I sec 9: Habeas Corpus, court order requiring that an individual in custody be brought into court and told the cause for detention. • Article I sec 9: Prohibition of bills of attainder- laws that declare a person guilty of a crime without a trail. • Article I sec 9: Prohibition of ex post facto laws – retroactive laws that punish people for committing an act that was legal when the act was committed. • Article III: Guarantee of a trial by jury in the state where the crime was committed.

  6. Bill of Rights • The freedoms mentioned in the Bill of Rights are broad principals rather than specific propitiations. • Ex: Congress shall make no law respecting an establishment of a religion. • Jefferson argued the clause mandated a wall of separation between church and state. • Others narrowly interpreted the clause as barring only the establishment of a national religion or the requirement that all public officials swear an oath to some particular religion.

  7. Rights that have changed • Security issues: PATRIOT ACT. It permits agents to sidestep well established rules that govern how searches and seizures may be conducted and to restrict criminal due process protections severely, particularly for persons suspected of involvement in organization thought to have ties with suspected terrorists.

  8. Incorporation of Bill of Rights to Apply to the States • Bill of Rights was made only to restrict national government. • It was also thought that because the state governments were closer to the people, the national gov. would less likely encroach on individual rights. • Barron v. Baltimore: Case centered around the 5th amendment protects individuals against national and state govs. Court ruled that only protects against the national gov.

  9. Incorporation of Bill of Rights to Apply to the States • The Supreme court rejected the idea of total incorporation. • The idea that the 14th Amendment’s due process clause requires the states to uphold all freedoms in the Bill of Rights. • They instead chose selective incorporation. • This is the process by which, over time the SC applied those freedoms that served some fundamental principal of liberty or justice to the states

  10. Famous Court Cases • It wasn’t until 1925 that the court started the incorporation process with the states. • Gitlow v. New York – Speech • Near v. Minnesota- Press and Assembly • Palko v. Connecticut- landmark case. Laid out formula for defining fundamental rights. • If a fundamental right is tradition, then its rooted in the American people. Also if this right were eliminated then liberty nor justice could exist.

  11. Amendments not incorporated yet • 3rd- Quartering solders. • 5th – Provision for Grand Jury indictments must be present, this goes counter to the state cases. • 6th protection against arrests. • 7th provision of a jury in a civil trial.

  12. Marketplace of Ideas • Scholars argue that it is through discussing ideas that solutions are accomplished. • The marketplace of ideas is a concept at the core of the freedoms of expression and press.

  13. 1st Amendment and Political Instability • The Bill of Rights protects our speech but there have been times when the government has tried to limit that speech. • Alien and Sedition Act (1798) criminalized all speech and writings judged to be critical of the government, Congress, or President. • Lincoln suspended Habeas Corpus: which meant they could hold a person w/o a trial. This was done during the Civil War.

  14. 1st Amendment and Political Instability • Another ex: would be the Alien Enemies Act: It allows the gov. to deport aliens suspected of threatening national security or impression them indefinitely. • When has this occur?

  15. Historical Context for Free Speech Laws • Over time the court has changed its suppression or punishment of political speech. • The court has created a test to rule on speech: Clear and Present Danger- the gov. may silence speech or expression when there is a clear and present danger that a speech will bring about harm the gov. can not prevent. This came out of Schenck v. U.S.

  16. Historical Context for Free Speech Laws • The Gitlow v. New York brought about another test to measure the 1st Amendment. • Bad tendency test- any speech that will incite a crime or disturb the peace can be silenced. • What are some examples?

  17. Historical Context for Free Speech Laws • Most of these tests were tweaked or eliminated during the Cold War. • In the case Dennis v. U.S- the government created the Clear and Probable Danger Test. • Under this the gov. could suppress speech to avoid grave danger even if was remotely probability. It was later replaced by incitement test in 1969.

  18. Pure Speech v. Symbolic Speech • The Supreme court has ruled that when speech moves beyond words into realm of action then its considered symbolic speech. • US v. O’Brien: Burning draft cards • Tinker v. Des Monies: Black arm bands • Texas v. Johnson: Flag burning

  19. Not All Speech Is Created Equal • Commercial Speech: advertising statements that describe products. Ex Tobacco. • Libel: false written statements that may harm reputation. • Slander: false verbal statements that may harm reputation. • Obscenity: indecent or offensive speech or expression.

  20. Obscenity Test • Miller v. California: Ruled that book, film, or another form of expression is legally obscene if: • Tends to excite unwholesome sexual desire, • work depicts or describes a form of sexual conduct specifically prohibited by an anti obscenity law • The work taken as a whole lacks serious literary, artistic, political, or scientific value.

  21. Fighting Words • Fighting Words: speech that is likely to bring about public disorder or chaos; the SC has held that this speech may be banned in public to preserve order. • Chaplinsky v. New Hampshire

  22. Freedom of Assembly • First amendment says people have the freedom to assembly peaceably to seek grievances against the government. • Restrictions: time, place, and manner

  23. Freedom of the Press • Before the Revolution, the crown clamped down on the press. • Freedom of speech is freedom of the press because this is how ideas are spread. • Prior Restraint: a form of censorship by the government whereby it blocks publication of news stories viewed as libelous or harmful.

  24. Restrictions • Near v. Minnesota: court ruled that censorship was allowed in specific cases. • New York Times v. US: Court wanted to limit Vietnam documents but SC ruled not allowed to limit them.

  25. Restrictions • The SC is much more likely to impose restrictions on broadcasting. • Why? • Court also rules internet as print media, so print media restrictions apply to the internet.

  26. Freedom of Religion and 1st Amendment • Establishment clause and free exercise clause bar gov. from making a national religion and allow individuals to exercise what they want. • Establishment clause: “restricting an establishment of religion”

  27. Establishment Clause • This clause has been interpreted 3 ways: • 1. Separationism: separation of church and state. • 2. Neutrality: gov. supports all religions unbiased. • 3. Baring only a formation of a state religion.

  28. Lemon Test • Lemon v. Kurtzman: gov. aid to parochial schools. • 1. secular purpose • 2. principal advancement on religion • 3. entanglement between church and state. • Intelligent design or creationalism have become real issues.

  29. School Prayer Cases • Everson V. Board of Education • Government cannot aid one or more religions and can’t spend tax money on religious activities. • Engle V. Vitale • Banned the use of a prayer written by the New York State Board of Regents. • Abington School District V. Schempp • Ruled that requiring the saying of the Lord’s prayer was unconstitutional. • Wallace V. Jaffree • Momentary silence law for “ meditation or voluntary prayer” was unconstitutional.

  30. Free Exercise clause • Makes it illegal for the government to enact laws prohibiting the free practice of religion by individuals. • Some practices that have been disallowed • Polygamy in the Mormon Church • Reynolds V. United States • Using poison snakes in religious ceremony • Bunn v. North Carolina • Use of hallucinogenic drugs in religious ceremony • Oregon v. Smith • Prohibiting medical treatment to a sick child • Human Sacrifice

  31. The Right to Privacy • The right of an individual to be left alone and to make decisions freely w/o interference of others. • Griswold v. Connecticut: landmark case in 1965. State stopping couples from using birth control. Also the 1st 3rd, 4th, 5th, and 9th fall under privacy. • 1984 court ruled intimate associations and expressive associations are private. • Roe v. Wade

  32. 4th 5th 6th and 8th Amendments • Stems from British gov. repeating trials, charges of treason, imprisonment w/o bail • Founders wanted to change this. • Criminal due process rights: safeguards for those accused of crime, gov conduct in investigating crimes, trying cases, punishing offenders.

  33. 4th Amendment • This requires the police to get a search warrant conducting a criminal search and search an individual or property. • Officers must have probable cause to search. • Exclusionary rule: criminal procedural rule stating that evidence obtained illegally can not be used in trail. • Mapp v. Ohio • Reasonable vs. Unreasonable • “Good faith”

  34. 5th and 6th Amendments • Established rules for conducting trails. • Self incrimination • Double jeopardy: to be tried again for the same crime that someone has been cleared of in court. • Speedy trial: • Miranda rights: police to inform criminal suspects of their rights in an arrest.

  35. Court Cases • Moran v. Burbine • Arizona v. Fulminante • Davis v. U.S. • Gideon v. Wainwright

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