Chapter 4 Civil Liberties
Dec 16, 2015
Civil Liberties/Civil Rights Civil liberties
Restraining government’s action against individuals Limits on government power outlined in the Bill of
Rights, the first 10 amendments to the Constitution, 384-385
What government can’t do… Civil rights
Rights individuals share as provided for in the 14th amendment, which guarantees due process and equal protection under the law, 386
What government must do…(e.g., protect individuals from discrimination; unequal treatment, etc.)
Liberties/Rights and the Courts Judicial interpretations shape
nature of civil liberties and civil rights Change over time depending on
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 the national government Grew out of fear of tyranny Part of constitutional compromise aimed at
limiting federal government’s power Incorporation theory
View that protections of Bill of Rights apply to state governments through 14th Amendment’s (ratified in 1868) due process clause; see page 68
Table 4-1: Incorporating the Bill of Rights into the Fourteenth Amendment, 68
Year IssueAmendment Involved
Court Case
1925193119321937194019471948194919611962196319641965196619671969
Freedom of speechFreedom of the pressRight to a lawyer in capital punishment casesFreedom of assembly and right to petitionFreedom of religionSeparation of church and stateRight to a public trialNo unreasonable searches and seizuresExclusionary ruleNo cruel and unusual punishmentRight to a lawyer in all criminal felony casesNo compulsory self-incriminationRight to privacyRight to an impartial juryRight to a speedy trialNo double jeopardy
IIVIIIIVIIVIVVIIIVIVI, III, IV, V, IXVIVIV
Gitlow v. New York, 268 U.S. 652.Near v. Minnesota, 283 U.S. 697.Powell v. Alabama, 287 U.S. 45.De Jonge v. Oregon, 299 U.S. 353.Cantwell v. Connecticut, 310 U.S. 296.Everson v. Board of Education, 330 U.S. 1.In re Oliver, 333 U.S. 257.Wolf v. Colorado, 338 U.S. 25.Mapp v. Ohio, 367 U.S. 643.Robinson v. California, 370 U.S. 660.Gideon v. Wainwright, 372 U.S. 335.Malloy v. Hogan, 378 U.S. 1.Griswold v. Connecticut, 381 U.S. 479.Parker v. Gladden, 385 U.S. 363.Klopfer v. North Carolina, 386 U.S. 213.Benton v. Maryland, 395 U.S. 784.
Freedom of Religion
Separation of Church and State First amendment, 384; two parts
Establishment clause; Jefferson’s “wall of separation” State churches were the rule (9 colonies had
official churches) See text, 68-69 for the meaning of the
establishment clause Free exercise Clause
no type of religious practice can be prohibited and restricted by the 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 the Ten Commandments (“Hanging Ten”) Pledge of Allegiance (“…under God…”) Teaching evolution Religious speech Free exercise
Discussion Questions Is it possible for the state to be truly neutral
when it comes to religion? Should the state give funding to church
schools? Should prayer be allowed in public schools? Should public institutions be allowed to “Hang
Ten”? Is the pledge of allegiance a violation of church
and state? Should creationism 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 an action/speech/expression before it has occurred
Protected speech Symbolic speech (e.g., burning a U.S. flag) Commercial speech (e.g., advertising)
Permitted restrictions Speech that presents a “clear and present
danger” to public order Speech that might lead to some “evil” (the bad-
tendency rule)
Freedom of Speech/Expression Unprotected speech
Obscenity (based on community standards of indecency) Child pornography Obscenity and child pornography on the Internet
Slander Public uttering of false statement that harms the
good reputation of another; false, defamatory statements
Campus speech codes Hate speech = abusive speech attacking
persons on the basis of their ethnicity, race, or other criteria Often considered unconstitutional restriction on free
speech
Freedom of the Press Special instance of free speech Press has 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 is 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 much more limited 1st amendment protections Regulated by FCC
Right to Assemble and Petition the Government
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 that privacy rights exist comes from the 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 that 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
The 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 the 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 the Accused Defendant’s Pre-trial rights
Writ of habeus corpus (Article 1, Section 9, clause 2, 377) requires jailers to bring a person before a
court or judge and explain why the person is being held
Prompt arraignment (6th) Legal counsel (6th) Reasonable bail (8th) Informed of charges (6th) Remain silent (5th)
Rights of the Accused Trial rights
Speedy, public trial before a 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 the Death Penalty? Right to appeal convictions (5th) No double jeopardy (5th)
States that Don’t Allow Death Penalty Maine Vermont Massachusetts Rhode Island W. Virginia Michigan
Wisconsin Minnesota Iowa North Dakota Alaska Hawaii
Discussion Questions
Have the courts done too much to protect the rights of the accused?
Are protections necessary to ensure that no innocent person is convicted of a crime?
Do criminal suspects deserve fair treatment?
Is capital punishment cruel and unusual?
Hot Links to Selected Internet Resources: Book’s Companion Site:
http://politicalscience.wadsworth.com/schmidtbrief2004
Wadsworth’s Political Science Site: http://politicalscience.wadsworth.com
American Civil Liberties Union: http://www.aclu.org
Project Vote Smart: http://www.vote-smart.org/issues
EPIC Archive – Privacy: http://www.epic.org/privacy