Chapter 4 Civil Liberties
Civil Liberties/Civil Rights • Civil liberties • Restrain government’s action against individuals • Limits on government power outlined in Bill of Rights, first 10 amendments to Constitution, 371-2 • What government can’t do… • Civil rights • Rights individuals share as provided for in 14th amendment, guarantees due process and equal protection under law, 373 • What government must do…(e.g., protect individuals from discrimination; unequal treatment, etc.)
Liberties/Rights and Courts • Judicial interpretations shape nature of civil liberties and civil rights • Change over time depending on changing interpretations • Not “set in stone” • Hence, importance of judicial appointments and numerous references to court cases
Incorporation Theory • Bill of Rights • Initially aimed at protecting citizens against encroachments by national government • Grew out of fear of tyranny • Part of constitutional compromise aimed at limiting federal government’s power • Incorporation theory • View protections of Bill of Rights apply to state governments through 14th Amendment’s (ratified in 1868) due process clause; see page 373
Table 4-1: Incorporating Bill of Rights into 14th Amendment, 67
Discussion Question • Why is the Fourteenth Amendment so important to civil liberties?
Freedom of Religion • Separation of Church and State • First amendment, 371; two parts • Establishment clause; Jefferson’s “wall of separation” • State churches were rule (9 colonies had official churches) • See text, 68 for meaning of Establishment clause • Free exercise Clause • no type of religious practice can be prohibited and restricted by government unless there is a compelling reason
Freedom of Religion • Contemporary conflicts • State aid to church-related schools • School voucher programs • Officially organized prayer in schools • Posting Ten Commandments (“Hanging Ten”) • Pledge of Allegiance (“…under God…”) • Teaching evolution • Religious speech • Free exercise
Discussion Questions • Is it possible for state to be truly neutral when it comes to religion? • Should state give funding to church schools? • Should prayer be allowed in public schools? • Should public institutions be allowed to “Hang Ten”? • Is pledge of allegiance a violation of church and state? • Should creationism/”intelligent design” be given equal time with evolution? • Should any and all religious practice be OK?
Freedom of Speech/Expression • No prior restraint • Courts generally disfavor restraining, censoring action/speech/expression before it has occurred • Protected speech • Symbolic speech (e.g., burning U.S. flag) • Commercial speech (e.g., advertising) • Permitted restrictions • Speech that presents “clear and present danger”to public order • Speech that might lead to some “evil” (the bad- tendency rule)
Unprotected Speech • Obscenity (based on community standards of indecency) • Child pornography • Obscenity and child pornography on Internet • Slander • Public uttering of false statement that harms good reputation of another; false, defamatory statements • Campus speech codes • Hate speech = abusive speech attacking persons on basis of ethnicity, race, or other criteria • Often considered unconstitutional restriction
Freedom of Press • Special instance of free speech • Some protection from libel charges • Libel (defamation in writing) must be accompanied by actual malice (knowledge of falsity or reckless disregard for the truth) • Press now protected from gag orders during trials, except in unusual circumstances • Films subject to local obscenity laws; regulated through rating system • Radio and TV have more limited 1st amendment protections • Regulated by FCC
Right to Assemble and Petition Government • Ability to come together with others of like interest, to form voluntary associations • Ability to communicate ideas on public issues • Can be limited by municipalities’ right to offer permits for marches, parades, sound trucks, demonstrations (to control traffic or prevent riots) • Can be denied when groups are likely to engage in fighting words • Tested by anti-loitering ordinances aimed at reducing congregation of gangs
Privacy Rights and Abortion • No explicit right to privacy in Constitution • Unlike California State Constitution • Griswold v. Connecticut (1965) • Supreme Court rules privacy rights exist • from 1st, 3rd, 4th, 5th and 9th Amendments • “right to be left alone”; “zone of privacy” • Unique challenges posed by information age • Roe v. Wade (1973) court rules privacy rights include abortion rights • More recently Court taken a more restrictive view of rights outlined in Roe
Other Privacy Rights • Right to die • “living wills” • Physician-assisted suicide (only legal in Oregon) • Security issues after 9/11/01 • How much are we willing to sacrifice privacy rights for security? • Erosion of 4th amendment rights against unreasonable searches and seizures given roving wiretaps of suspected persons
Rights of Accused vs. Rights of Society • Great Balancing Act • Why give criminal suspects rights? • Avoid convicting innocent people • All suspects have right to due process and fair treatment • Found primarily in 4th, 5th, 6th, and 8th amendments
Rights of Accused • Limits on Conduct of Police Officers and Prosecutors • No unreasonable or unwarranted searches or seizures (4th) • exclusionary rule = cannot use illegally seized evidence without warrant based on probable, just cause (mitigated by “good faith” clause) • Probable cause for arrest (4th) • No coerced confessions or illegal interrogation (5th) • No entrapment • Informed of rights, including silence • Miranda warnings = “You have the right to remain silent; anything you say can and will be used against you. You have the right to an attorney; if you cannot afford one, one will be provided for you.”
Rights of Accused • Defendant’s Pre-trial rights • Writ of habeus corpus(Article 1, Section 9, clause 2, 365) • requires jailers to bring person before court or judge and explain why person is being held • Prompt arraignment (6th) • Legal counsel (6th) • Reasonable bail (8th) • Informed of charges (6th) • Remain silent (5th)
Rights of Accused • Trial rights • Speedy, public trial before jury (6th) • Impartial jury representative of community (6th) • Trial atmosphere free of prejudice, fear, and outside interference • No compulsory self-incrimination (5th) • Adequate counsel (6th) • No cruel or unusual punishment (8th) • What about Death Penalty? • Right to appeal convictions (5th) • No double jeopardy (5th)
Discussion Questions • Have courts done too much to protect rights of accused? • Are protections necessary to ensure no innocent person is convicted of a crime? • Do criminal suspects deserve fair treatment? • Is capital punishment cruel and unusual?