Download A. Civil Liberties and Democracy

Civil Liberties and Public Policy
I. Introduction
Civil liberties are individual legal and constitutional protections against the government. Issues about civil
liberties are subtle and complex. Disputes about civil liberties often end up in court.
II. The Bill of Rights—Then and Now
A. Introduction
The first ten Amendments to the Constitution make up the Bill of Rights and ensure Americans basic
liberties, such as freedom of speech and religion, and protection against arbitrary searches and being held
for long periods without trial.
B. The Bill of Rights and the States.
Literally, the Bill of Rights only restricts the powers of the national government, not the states. In 1925
(Gitlow v. New York) the Supreme Court ruled that the Fourteenth Amendment made parts of the Bill of
Rights applicable to the states. This began the development of the incorporation doctrine in which the
Supreme Court applied the Bill of Rights, one by one, to the states.
III. Freedom of Religion
A. The Establishment Clause
The establishment clause says, “Congress shall make no law respecting an establishment of religion” while
the free exercise clause prohibits the abridgment of the citizens’ freedom to worship, or not to worship, as
they please. Thomas Jefferson argued that the establishment clause forbid not just favoritism but any
support for religion at all. Today, most debates over the establishment clause centers on aid to churchrelated schools and prayer in school. In 1971 the Supreme Court declared (Lemon v. Kurtzman) that aid
to church-related schools must have a secular legislative purpose, have a primary effect that neither
advances nor inhibits religion, and not foster an excessive government “entanglement” with religion. The
Supreme Court has allowed federal aid to parochial schools as long as it is not used to support sectarian
education. The Supreme Court has also opened public schools to religious activities as long as public funds
are not used to directly support religious education. School prayer has been a very controversial issue. In
1963 the Supreme Court ruled that voluntary recitations of prayers or Bible passages, when done as part
of classroom exercises in public schools, violated the establishment clause. Some groups have pushed for
a constitutional amendment to allow school prayer and some school districts simply ignore the Court’s
ruling. Other issues involving the establishment clause have included what information (especially creation
science versus Darwinism) should be taught in the public education system and whether religious symbols
are allowed on public property. The Supreme Court has ruled that the Constitution does not require
complete separation of church and state; it mandates accommodation of all religions and forbids hostility
toward any.
B. The Free Exercise Clause
The free exercise clause is also controversial because sometimes religions forbid actions that society
thinks are necessary or require actions that society finds disruptive. The Supreme Court has consistently
maintained that people have the right to believe what they want, but are more cautious about the right to
practice a belief. The Supreme Court has never permitted religious freedom to be an excuse for any
behavior. The Court has held that religious freedom takes precedence over compulsory education laws.
IV. Freedom of Expression
A. Introduction
The First Amendment plainly forbids the national government from limiting freedom of expression.
Controversy exists, however, whether freedom of expression is absolute.
B. Prior Restraint
It is clear that the Supreme Court has consistently struck down prior restraint (censorship) on speech and
the press. The landmark case was Near v. Minnesota (1931). Some prior restraint, such as for high school
newspapers and in time of war, has been tolerated.
C. Free Speech and Public Order
The biggest conflict between the press and government has been about the connection between free press
and the need for public order. Wartime often brings censorship. In 1919 the Supreme Court (Schenck v.
United States) declared that the government could limit speech if it provokes a clear and present danger
of substantive evils. The Smith Act (1940) forbade the advocacy of violent overthrow of the government of
the United States. Political changes in the 1960s have resulted in narrow interpretations of the Smith Act.
Today, you can call for the overthrow of the government in the abstract with no repercussions.
D. Free Press and Fair Trials
Conflict often occurs between a freedom of expression and a freedom at the bar of justice. Pretrial
publicity can jeopardize a fair trial. Reporters often feel they should not have to open their files to the
courts. In the absence of shield laws that protect reporters’ rights to keep sources anonymous, reporters
do not have a right to withhold information from the courts.
E. Obscenity
The Supreme Court has never intended to include obscenity in its listing of protected forms of expression.
In Miller v. California (1973) the Court ruled that materials were obscene if they appealed, “to a prurient
interest in sex,” showed “patently offensive sexual conduct” that was specifically defined by an obscenity
law, and “lacked serious artistic, literary, political, or scientific value.” Decisions regarding whether
material was obscene should be based on local not national standards. The courts have been more
consistent in protecting children from obscenity. A new issue in regard to pornography has arisen due to
advances in technology and whether obscene material on the World Wide Web should be regulated. In
1997 the Supreme Court struck down the Communications Decency Act that would have made obscene
material on the net illegal. Other attempts to restrict obscenity have been proposed by some women’s
groups, which claim that pornography degrades and dehumanizes women.
F. Libel and Slander
Libel consists of the publication of false statements that are malicious and damage a person’s reputation.
The New York Times v. Sullivan (1964) ruled that statements about public officials are libelous only if they
are defamatory falsehoods made with malice and reckless disregard for the truth. Private individuals need
show only that statements made about them were defamatory falsehoods and that the author of the
statements was negligent.
G. Symbolic Speech
Actions that do not consist of speaking or writing but that express an opinion are called symbolic speech.
The Court has ruled that symbolic speech, like burning the American flag, is protected by the Constitution.
H. Commercial Speech
Commercial speech, such as advertising, is restricted far more extensively than other expressions of
opinion. The Federal Trade Commission (FTC) regulates commercial speech.
I. Regulation of the Public Airwaves
The Federal Communications Commission (FCC) regulates the public airways. The FCC regulates the
content, nature, and very existence of radio and television broadcasting. Licensed stations must comply
with certain regulations, such as forbidding the use of certain obscene words on the airways.
J. Freedom of Assembly
Freedom of assembly consists of the right to assemble and associate. The right to assemble consists of the
right to gather together in order to make a statement. This freedom, which includes the rights to parade,
picket, and protest, is subjected to reasonable limits (time, place, and manner). The balance between
freedom and order is tested when protest verges on harassment, which has been an issue during abortion
protests. The right to associate with people who share a common interest provides a basis for people to
form interest groups and political parties.
V. Defendants’ Rights
A. Introduction
Most of the Bill of Rights concerns the rights of people accused of crimes. The judicial process can be
viewed as a series of funnels decreasing in size. A crime is sometimes followed by an arrest, which is
sometimes followed by a prosecution, which is sometimes followed by a trial, which usually results in a
verdict of innocence or guilt.
B. Interpreting Defendants’ Rights
The courts continually must rule on the constitutionality of actions by police, prosecutors, judges, and
legislatures. The Supreme Court’s decisions have extended specific provisions of the Bill of Rights to the
states.
C. Searches and Seizures
Police need probable cause to make an arrest. The Fourth Amendment forbids unreasonable searches and
seizures. No court may issue a search warrant unless probable cause exists. Most searches take place
without a warrant if the search is necessary to protect an officer’s safety and limited to material relevant
to the suspected crime, or within the suspect’s control. The exclusionary rule prevents illegally seized
evidence from being introduced in court. In Mapp v. Ohio (1961) the exclusionary rule was incorporated
within the rights that restrict the states. Recently the Supreme Court has made some exceptions to the
exclusionary rule.
D. Self-incrimination
The Fifth Amendment states, “no person shall be compelled to be a witness against himself.” Miranda v.
Arizona (1966) set guidelines for police questioning. Suspects must be told they have the right to remain
silent, what they say can be used against them in court, they have the right to have a lawyer present
during questioning, and the court will provide one if they can not afford one. The Fifth Amendment also
prohibits coerced crimes.
E. The Right to Counsel
The Sixth Amendment guarantees a right to a lawyer in a federal court. Gideon v. Wainwright (1963)
extended this right to defendants accused of felonies in state courts.
F. Trial by Jury
Most court cases are settled through plea bargaining which occurs when a bargain is struck between a
defendant’s lawyer and a prosecutor. Plea bargaining saves the state time and money but many feel it
allows the defendant to get off with less than he deserves. The Constitution does not specify the size of a
jury, although tradition has set it at twelve.
G. Cruel and Unusual Punishment
The Eighth Amendment forbids cruel and unusual punishment, but does not define it. The major issue
centers on the death penalty. The Supreme Court has vacillated considerably on this issue. Most victims of
the death penalty have been members of minority groups. Today, more and more offenses are made
punishable by death. The Court has held it is constitutional to execute sixteen- or seventeen-year-olds or
mentally retarded persons. The Court has also made it more difficult for defendants to delay their
execution.
VI. The Right to Privacy
A. Is There a Right to Privacy?
Although the Bill of Rights does not say that Americans have a right to privacy the concept of privacy is
implied in the first ten amendments. The Bill of Rights contains “penumbras”óunstated liberties on the
fringes of the more explicitly stated rightsóprotecting a right to privacy.
B. Controversy over Abortion
The most controversial aspect of the right to privacy concerns abortion. In Roe v. Wade (1973) the Court
forbade any state control of abortions during the first trimester; permitted states to regulate abortions to
protect the mother’s health in the second trimester; and allowed states to ban abortion during the third
trimester, except when the mother’s life or health was in danger. Since this decision, the Court has tended
to uphold laws restricting abortion. Americans are very divided over the issue of abortion. Individual rights
may conflict as a result of the abortion issue when protests become overzealous.
C. A Time to Live and a Time to Die
With the advances in medical science state laws have had to struggle to define death. The Supreme Court
has affirmed parents’ rights to make medical decisions for their children. Issues of surrogate births, in
vitro fertilization, and the right to die are all right to privacy concerns.
VII. Understanding Civil Liberties
A. Civil Liberties and Democracy
The rights ensured by the First Amendment are essential to a democracy. Individual participation and the
expression of ideas are crucial components of democracy, but so is majority rule, which can conflict with
individual rights. The conflict is even sharper in relation to the rights at the bar of justice.
B. Civil Liberties and the Scope of Government
Civil liberties in America are both the foundation for and a reflection of our emphasis on individualism.
Because Americans can no longer avoid the attention of government, strict limitations on governmental
power are essential. The Bill of Rights provides these limitations. Americans’ civil liberties have expanded
since the Constitution was written. In general civil liberties limit the scope of government. However,
government efforts are often required to protect the expansion of our civil liberties. An expansion of
freedom may require a simultaneous expansion of government.