Civil Liberties. What the Framers Intended… Framers thought they had written a document about what you could do, not what you could not do Bill of Rights.

Civil Liberties

What the Framers Intended…

• Framers thought they had written a document about what you could do, not what you could not do

• Bill of Rights was added by the states to protect individual liberties because they were still scared of the power of a national government (didn’t imagine it would affect what states could do)

• The “negative” statements (what the government cannot do) illustrate the rights the gov. cannot take away

• Rights become an issue when:• Rights in conflict (interest group politics)

• Passions inflamed by policy entrepeneur

• Political culture has policies in conflict with one another

Barron v Baltimore (1833)

Bill of Rights limited only national government and not the states

Civil Liberties vs. Civil Rights

• Civil Liberties protect individuals from the abuses of government

• Civil Rights are the result of equal protection under the law

Rights in Conflict

• This happens when one person asserts a right and another person asserts a competing one

• Examples• Freedom of speech vs. preservation of order

(Jacob Kunz delivered inflammatory anti-Jewish speeches)

• Duty vs. right (New York Times published Pentagon papers without censorship)

Policy Entrepreneurs

• People who can get legislators to act against another group

• War often facilitates entrepreneurial politics• 1798- Sedition Act making a crime to speak

against the president, Congress• 1917-1918 Espionage and Sedition acts making

it a crime to utter false statements that might interfere with the military

• 1954 Communist Control Act making it a crime to belong to the Communist party because they claimed the communists wanted to overthrow the government

Cultural Conflicts

• Diverse ethnicities that make up the U.S. have different views on the meaning and scope of constitutionally protected freedoms

• Examples:• Can a government building display a scene of

the birth of Christ?• Is bilingual education constitutionally

required?

The First Amendment: Freedom of Expression

• In its true meaning the press should have freedom from prior restraint- freedom from censorship

• Media had to only deal with the consequences of what they published

• Jefferson pardoned a bunch of people indicted under the Sedition acts and there was no issue until the 20th century

• 1917-1918- Congress passed restrictions on speech that was treasonous

Schenck v United States

• Schenck convicted of violating the Espionage Act because he mailed circulars to men urging them to avoid the draft

• Question: What was the scope of Congress’ power to control speech?

• Supreme Court Answer: Clear-and-present-danger test- if the words used will create a present danger, then Congress has the right to prevent it

• Schenck lost

Due-Process Clause• 14th amendment- “…No state shall…deprive any person

of life, liberty or property without due process of law.”

• For half a century Supreme Court denied that the clause was applicable to states, so states could pass laws that wouldn’t be overturned by the Supreme Court

• 1925 – change- Supreme Court (Gitlow v New York) stated that freedom of speech and the press were “fundamental personal rights” protected by the due process clause of the 14th amendment from infringements by state actions- so, states couldn’t make their own laws anymore

• Since then the court has sided more and more with freedom of speech. No matter how offensive or provocative speech is, unless it results in action and that action is dangerous

What is Speech?

• Four forms that are not automatically granted full constitutional protection: libel, obscenity, symbolic speech, and false advertising

Libel

• Written statement that defames the character of another person

• Hard to prove libel in the U.S., for you must show that the libelous statement was false

• Public figures have a hard time with libel

Obscenity

• Court has always upheld that states can regulate obscenity because obscene materials have no social value

• There is no consensus on what constitutes obscene material, which creates a problem

• The internet has only made the problem worse because the boundaries have been broken

Symbolic Speech

• Actions that communicate a message, i.e. burning a draft card to protest a war

• Court has ruled that if they give symbolic speech the same protections it would open the door to worse actions

• Burning the American flag has been protected under the First Amendment (Texas v Johnson and U.S. v Eichman) because in contrast to the first case the gov. does have a right to run a military draft whereas its only purpose in banning the burning of the American flag is to restrict speech

Who is a Person or Who is Protected Constitutionally?

• Corporations have been considered “people” and have been protected

• Government can place more limits on commercial rather than noncommercial speech

• Government can regulate commercial speech if it serves the public interest (i.e. cigarettes and liquor)

• Young people can have less freedom of expression if what they are doing impedes the educational mission of the school

Key Court Cases

Schenk v United States (1919)- “clear and present danger”

Chaplinsky v New Hampshire (1942)- established what words constitute “fighting words” to incite violence

New York Times v Sullivan (1964) – defined libel Tinker v Des Moines (1969)- student’s rights in school New York Times v United States (1971)- gov. can’t censor

info on war (Pentagon Papers case) Texas v Johnson (1988)- Flag burning a form of symbolic

speech protected by the first amendment McConnell v Federal Election Commission (2003)-

provisions of McCain-Feingold constutional and restrictions on advertising did not violate free speech

Church and State: The Free Exercise Clause

• Congress can make no law prohibiting free exercise of religion

• Because of 14th Amendment, states may also not make these laws

• Just because Congress can’t prohibit the free exercise of religion doesn’t mean you can do whatever you want in the name of religion

• Polygamy not allowed

• Children must be vaccinated to attend public school

• Exceptions:

• Draft law allows for conscientious objectors

• Amish don’t have to send kids to school past 8th grade

The Establishment Clause

• Congress can make no law “respecting an establishment of religion”

• This has come to mean the separation of church and state and has been very difficult for the Supreme Court to interpret

• It was originally drafted by Jefferson, who was wary of the Church of England establishing a state religion in Virginia

Establishment Clause Over Time

• 1947- New Jersey town – busing doesn’t breech wall of separation because it is religiously neutral

• Unconstitutional to have prayer in school

• 1992- (Lee v Weisman) unconstitutional for speaker at graduation ceremony to call for prayer

• Laws prohibiting evolution are unconstitutional

• No school time to engage in religious activities

• There are restrictions on public funding of parochial schools but not all aid (books, for example can be paid for)

• The court has changed its mind on these issues

• Now it uses a 3-part test to determine if involvement is constitutional (based on Lemon v Kurtzman- 1971):• It has a secular purpose• Its primary effect neither advances or

prohibits religion• It does not foster excessive government

entanglement with religion

Crime and Due Process

• Parts of the Bill of Rights that affect people accused of crime

• How do we protect people without hindering criminal investigations?• Police introduce whatever evidence

necessary even if it is gotten improperly OR• All evidence gotten improperly is excluded

• Most countries follow the first method; the U.S. follows the second

The Exclusionary Rule

• Any evidence gathered in violation of the constitution is inadmissable (usually the 4th and 5th amendments)

• 1961- Mapp v Ohio• Police break into Mapp’s home and arrest her

for having obscene pictures• Supreme Court ruled that without a search

warrant the illegally gathered evidence could not be used in court

• This case set a standard for the exclusionary rule to enforce constitutional guarantees

When Can Police Search?

1. Search Warrant- when a judge has been shown probable cause

(or if they have permission)

2. If you are being lawfully arrested

Police can then search

- you

- things in plain view

- things under your immediate control

Driving….

• If arrested when driving ….. Check the most recent ruling because the Supreme Court keeps changing its mind

• Police can do much more now• The court is trying to protect those places

where a person has a “reasonable expectation of privacy.” (i.e. your body)

Other Searches

• Private employers can search employees desks for example, because the Constitution only protects you from the government

• Right of privacy- what you do in your home is your business

Miranda Rights

• Concept of protection against self-incrimination originally intended to protect against confessions extracted from torture but now it covers those people who don’t know their rights because of the Miranda case

• Miranda v Arizona- establishment rights of those accused, including having a lawyer