Download Civil Liberties and Public Policy

Chapter 4
CIVIL LIBERTIES AND PUBLIC POLICY
BELL RINGER 4/7
Is
it okay to limit speech?
 YOU
NEED YOUR BOOK TODAY
Pearson Education, Inc., Longman © 2008
Explain why!!!!! If so, where do
we draw the line?

BELL RINGER 4/9
to the 8th amendment we,
as US citizens, are exempt from “cruel
and unusual punishment”. Do you feel
that there is any way to have capital
punishment that is neither cruel nor
unusual? Explain.
 According
Pearson Education, Inc., Longman © 2008
Introduction:
From where do we get our freedom of speech?
 Why is it protected?
 Can we have free elections w/o freedom of
speech?
 Is freedom of speech absolute?
 Who should decide the extent of our liberties?
 President?
 Elected representatives in Congress?
 Supreme Court?

Appointed Officials
 Living Constitution vs. Original Intent

THE BILL OF RIGHTS–THEN AND NOW

Civil Liberties: the legal constitutional
protections against the government

Essential for democracy
Civil Liberties are set down in the the Bill of
Rights, but the courts are the arbiters of these
liberties because they determine what the
Constitution means in the cases they decide.
 Bill of Rights added as a condition of ratification.
 Passed when British abuses of the colonists civil
liberties were still a recent and bitter memory.

THE BILL OF RIGHTS–THEN
AND NOW
Political scientists have found that people are
supporters of rights in theory, but their support
often falters when it comes time to put those
rights into practice.
 Cases become particularly difficult when liberties
are in conflict (such as free press vs. a fair trial or
free speech vs. public order) or where the facts
and interpretations are subtle and ambiguous.

THE BILL OF RIGHTS—THEN AND NOW
THE BILL OF RIGHTS—THEN AND NOW
 The

Bill of Rights and the States
Written to restrict the national government
(every state had its own bill of rights.
“Congress shall make no law…”
 Barron v. Baltimore (1833)—court ruled that the Bill
of Rights restrained only the national government,
not states and cities.


Incorporation Doctrine—provides the
rationale for the process by which fundamental
freedoms have been applied against state
action through interpretation of the 14th
Amendment.
THE BILL OF RIGHTS—THEN
AND NOW
14th Amendment (1868)—included guarantees
of privileges and immunities of citizens, due
process of law, and equal protection of the law,
and explicitly applied these guarantees against
the states.
 It was not until 1925 that the Court relied on the
14th Amendment to find that a state government
must respect the 1st Amendment rights. In
Gitlow v. New York, the Court announced that
freedoms of speech and press “were fundamental
personal rights and liberties protected by the due
process clause of the 14th Amendment from
impairment by the states.”

THE BILL OF RIGHTS—THEN AND NOW
FREEDOM OF RELIGION


The First Amendment --Establishment clause and the
free exercise clause.
The Establishment Clause

“Congress shall make no law respecting the
establishment of religion…”


Debate still continues over what else the First Congress may have intended
for the establishment clause.
Thomas Jefferson argued that the First Amendment created a
“wall of separation” between church and state, which would
prohibit not only favoritism but any support for religion at all.

Letter to Danbury Baptist Association of Connecticut, 1802
FREEDOM OF RELIGION

In Lemon v. Kurtzman (1971), the Supreme
Court declared that aid to church-related schools
must:



have a secular purpose,
cannot be used to advance or inhibit religion, and
should avoid excessive government “entanglement” with
religion.
FREEDOM OF RELIGION

The Establishment Clause (continued)

Are school vouchers constitutional?


Zelman v. Simmons-Harris (2002) the Court upheld a
program that provided some families in Cleveland, Ohio,
with vouchers that could be used to pay tuition at religious
schools.
1984 Equal Access Act—made it unlawful for any
public high school receiving public funds (almost all
of them do) to keep groups from using school facilities
for religious worship if the school opens its facilities
for other student meetings?

Is this reverse discrimination?
FREEDOM OF RELIGION
School prayer is possibly the most controversial religious issue.
1.
In 1962 and 1963, the Court ruled that voluntary recitations of
prayers or Bible passages, when done as part of classroom
exercises in public schools, violated the establishment clause
(Engel v. Vitale and School District of Abington Township,
Pennsylvania v. Schempp).
2.
In Engel and Abington, the Court observed that “the place of
religion in our society is an exalted one, but in the relationship
between man and religion, the State is firmly committed to a
position of neutrality.”
In other words it is not unconstitutional to pray in school. Students
may pray. What the Constitution forbids is the sponsorship or
encouragement of prayer, directly or indirectly, by public school
authorities.
Is prayer before a football game unconstitutional?
3.
A majority of the public has never favored the Court’s
decisions on school prayer.
F
REEDOM
OF RELIGION
Christian
Conservative
Reaction.
1.
2.
Conservative religious groups devote much of their
time and energies to the issues of school prayer
and creation science.
They lost some court battles to create a more
conservative agenda, but won others.


The Supreme Court rejected attempts to legalize school prayer
by making it voluntary (Wallace v. Jaffree, 1985) and to
mandate the teaching of creation science as an alternative to
Darwinian theories of evolution (Edwards v. Aguillard, 1987).
Recent Supreme Court rulings brought some lowering of the “wall
of separation,” as when the Court held that religious scenes could
be set up on public property (Lynch v. Donelly, 1984 and
County of Allegheny v. American Civil Liberties Union, 1992).
FREEDOM OF RELIGION



The Free Exercise Clause
The free exercise of religious beliefs sometimes clashes with
society’s other values or laws, as occurred when the Amish
refused to send their children to public schools.
The Supreme Court has consistently maintained that
people have an absolute right to believe what they want,
but the courts have been more cautious about the right to
practice a belief (but in Wisconsin v. Yoder, 1972, the
Court did allow Amish parents to take their children out of
school after the eighth grade).



A law is constitutional if it is intended to prohibit an act and
not intended to limit the religious belief behind it.
You are the Judge—Page 106 in the textbook
In the Religious Freedom Restoration Act of 1993, Congress
attempted to overcome this ruling, but the law was found
unconstitutional by the Supreme Court in 1997 (Boerne v.
Flores).
FREEDOM OF EXPRESSION

Does “no law” in the First Amendment really
mean “no law”? The courts have frequently
wrestled with the question of whether freedom of
expression is an absolute.

Supreme Court Justice Hugo Black believed that the
words no law literally meant that Congress shall make
no laws abridging the fundamental rights of the First
Amendment.

The courts have often ruled that there are instances when
speech needs to be controlled, especially when the First
Amendment conflicts with other rights (as when Justice Oliver
Wendell Holmes wrote in 1919 that “the most stringent
protection of free speech would not protect a man in falsely
shouting ‘fire’ in a theater and causing a panic”).
FREEDOM OF EXPRESSION
In their attempts to draw the line separating
permissible from impermissible speech, judges
have had to balance freedom of expression
against competing values like public order,
national security, and the right to a fair trial.
 The courts have also had to decide what kinds of
activities constitute speech (or press) within the
meaning of the First Amendment.



Certain forms of nonverbal communication (like
picketing) are considered symbolic speech, and are
protected under the First Amendment.
Other forms of expression are considered to be action,
and are not protected.
FREEDOM OF EXPRESSION

Prior Restraint

Definition: a government preventing material from
being published; censorship; unconstitutional



Near v. Minnesota (1931)-Court struck down prior restraint
of speech.
May be permissible during wartime
One may be punished after something is published.
FREEDOM OF EXPRESSION
 Free

War often brings government efforts to censor.

Schenck v. United States (1919), Justice Oliver
Wendell Holmes declared that government can limit
speech if it provokes a clear and present danger of
“substantive evils that Congress has a right to prevent.”


Smith Act (1940) forbade the advocacy of violent
overthrow of the American government and McCarthyism
1950’s
Permissible to advocate the violent overthrow of
government in abstract, but not to incite anyone to
imminent lawless action


Speech and Public Order
Brandenburg v. Ohio (1969)
Speech is generally protected in public places, but usually
not on another’s private property.
FREEDOM OF EXPRESSION



Tinker v. Des Moines, 1969
Tinker inaugurated the era of student rights.
Prior to Tinker:
No student rights
 Schools operated under “In Loco Parentis”—”In place of the
parent”




In Loco Parentis is a two-part expression of guardianship
 Schools have responsibilities (Shelter, protect, feed…)
 Schools have rights to control students (set up codes of conduct)
In Tinker, the Court extended the due process clause of the
14th amendment to students.
Critics claim that in overruling in loco parentis, the court
diminished a school’s rights to control, but not its
responsibilities. Applying the 14th amendment to students
has made schools more responsible for children, but less
and less able to control them.
FREEDOM OF EXPRESSION

Facts of the Case--John Tinker, 15
years old, his sister Mary Beth Tinker, 13
years old, and Christopher Echardt, 16
years old, decided along with their
parents to protest the Vietnam War by
wearing black armbands to their Des
Moines schools during the Christmas
holiday season. Upon learning of their
intentions, and fearing that the
armbands would provoke disturbances,
the principals of the Des Moines school
district resolved that all students wearing
armbands be asked to remove them or
face suspension. When the Tinker
siblings and Christopher wore their
armbands to school, they were asked to
remove them. When they refused, they
were suspended until after New Year's
Day.

Question--Does a prohibition against
the wearing of armbands in public
school, as a form of symbolic protest,
violate the First Amendment's freedom
of speech protections?
FREEDOM OF EXPRESSION



Sharp distinction between speech and conduct.
Inability to regulate conduct would be
lawlessness.
Is clothing conduct or symbolic speech?
Tinker Test
1.
Is it speech?

Does it have a clear communicative purpose?
Was there a viewpoint violation or discrimination?
3. Was the speech, as exercised, significantly
disruptive to the school’s ability to conduct its
duties.
2.

Did the exercise of the speech cause a material
and substantive interference with the
requirements of appropriate discipline in the
operation of the school?
FREEDOM OF EXPRESSION

Conclusion--The wearing of armbands was "closely akin to 'pure
speech'" and protected by the First Amendment. School
environments imply limitations on free expression, but here the
principals lacked justification for imposing any such limits.The
principals had failed to show that the forbidden conduct would
substantially interfere with appropriate school discipline.
FREEDOM OF EXPRESSION

Free Press and Fair Trials

Is extensive press coverage of high profile trials (OJ
Simpson; Martha Stewart) permissible?
The public has a right to know what happens; trial must be
open to the public.
 The press’ own information about a trial may not be
protected.
 Yet, some states have passed shield laws to protect
reporters.

IS THIS CONSTITUTIONAL?

A student wears this button to class. Is this
constitutional or unconstitutional? Why?
IS THIS CONSTITUTIONAL?

A student wears this button to class. Is this
constitutional?
DIRECTIONS
1.
2.
3.
Choose a partner.
Choose a case.
Create a visual to present to your class that
includes the following:
1.
2.
3.
4.
Brief description of the case
Question the Supreme Court had to address
Supreme Court’s decision
What impact this case has on us
UNPROTECTED SPEECH
1.
2.
3.
4.
5.
6.
7.
8.
Obscenity
Defamation
Expression intended and likely to incite imminent
lawless action
Fighting Words
Unwarranted Invasion of Privacy
Deceptive or misleading advertisements or those for
illegal products or services
Clear and immediate threats to national security
Copyright Violations
Expression on school grounds that causes a material
and substantial disruption of school activities.
JUSTIN TIMBERLAKE AND JANET JACKSON’S
“WARDROBE MALFUNCTION”

“I am sorry that anyone was offended by the wardrobe
malfunction during the halftime performance of the Super
Bowl. It was not intentional and is regrettable.”
Justin Timberlake
FREEDOM OF EXPRESSION

Obscenity

No clear definition on what constitutes
obscenity


Justice Potter Stewart: “I know it when I see it.”
Miller v. California (1973) stated that
materials were obscene if the work:

appeals “to a prurient interest in sex”




Prurient: characterized by an inordinate interest in sex: prurient
thoughts.
showed “patently offensive” sexual conduct
lacks “serious literary, artistic, political or scientific
value”
Decisions on obscenity are based on local
community standards.
FREEDOM OF EXPRESSION
 Libel


and Slander
Libel: the publication of false or malicious
statements that damage someone’s reputation
Slander: the same thing, only spoken instead
of printed

New York Times v. Sullivan (1964): statements about
public figures are libelous only if made with reckless
disregard for truth.

Private individuals have lower standard to
meet to win libel lawsuits.

The advent of the internet has blurred the line between
speech and press, thus making libel and slander difficult
issues for the courts.
FREEDOM OF EXPRESSION

Symbolic Speech
Definition: nonverbal communication, such as
burning a flag or wearing an armband
 Generally protected along with verbal speech


Texas v. Johnson (1989): Burning the American flag is
symbolic speech protected by the First Amendment.
COMMERCIAL SPEECH
 Definition:
communication in the form of
advertising

Generally the most restricted and regulated
form of speech (Federal Trade Commission)
 Regulation


of the Public Airwaves
Broadcast stations must follow Federal
Communication Commission rules.
Regulation must be narrowly tailored to
promote a compelling governmental interest.

United States v. Playboy Entertainment Group (2000)
FREEDOM OF ASSEMBLY
 Right


Generally permissible to gather in a public
place, but must meet reasonable local
standards, such as fire codes and apply for
permits
Balance between freedom and order
 Right

to Assemble
to Associate
Freedom to join groups or associations without
government interference

NAACP v. Alabama (1958)
DEFENDANTS’ RIGHTS
Much of the Bill of Rights (Amendments 4, 5, 6,
7, and 8) apply to defendants’ rights.
 Interpreting Defendants’ Rights

Law enforcement personnel are limited by the Bill of
Rights and failure to follow constitutional protections
may invalidate a conviction.
 Courts continually rule on what is constitutional and
what is not.

DEFENDANTS’ RIGHTS
DEFENDANTS’ RIGHTS

Searches and Seizures



Probable Cause: when the police have reason to
believe that a person should be arrested
Unreasonable searches and seizures: evidence
obtained in a haphazard or random manner, prohibited
by the Fourth Amendment
Exclusionary Rule: the rule that evidence, no matter
how incriminating, cannot be introduced into trial if it
was not constitutionally obtained. This rule only applied
to the federal government until:
 Mapp v. Ohio (1961)
 You are the Judge: The Case of Ms. Montoya, p.120
DEFENDANTS’ RIGHTS

Self-Incrimination


Definition: when an individual accused of a crime is
compelled to be a witness against himself or herself
in court
Police must inform suspects of these and other Fifth
Amendment protections upon arrest.


Miranda v. Arizona (1966)
Protection from coerced confessions and entrapments
DEFENDANTS’ RIGHTS
 The

Right to Counsel
The state must provide lawyers in most
criminal cases (Sixth Amendment).

Gideon v. Wainwright (1963)—extended 6th
amendment to all crimes (state and federal) with
imprisonment consequences
 Trials



Plea bargaining: a bargain between the
prosecution and defense for a defendant to
plead guilty to a lesser crime; 90 percent of
cases end here and do not go to trial
Juries generally consist of 12 people, but
unanimity is not always needed to convict.
The Sixth Amendment also guarantees a
“speedy and public” trial.
DEFENDANTS’ RIGHTS

Cruel and Unusual Punishment


The Eighth Amendment forbids cruel and unusual
punishment.
The death penalty is not cruel and unusual. It is “an
extreme sanction, suitable to the most extreme
crimes.”


Gregg v. Georgia (1976)
The death penalty’s use and application varies by
state.
THE RIGHT TO PRIVACY

Is There a Right to Privacy?


Definition: the right to a private personal life, free
from the intrusion of government
Not explicitly stated in the Constitution, but implied
by the Fourth Amendment

1928, Justice Brandeis called privacy “the right to be left
alone.”
Griswold v. Connecticut (1965)—the court found that
various portions of the Bill of Rights cast
“penumbras” (unstated liberties implied by the
explicitly stated rights) that protected the right to
privacy
 The most important application to the right to
privacy has come in the area of?
 Explain how the court applied the right to privacy to

THE RIGHT TO PRIVACY
 Controversy
over Abortion
Roe v. Wade (1973)
 Planned Parenthood v. Casey (1992)
 Protections of those seeking an abortion
 Rights of protesters

UNDERSTANDING CIVIL LIBERTIES
 Civil


Liberties and Democracy
Rights ensured in the Bill of Rights are
essential to democracy.
Courts typically protect civil liberties from
excesses of majority rule.
 Civil
Liberties and the Scope of
Government


In deciding between freedom and order, the
United States generally chooses liberty.
Civil liberties limit the scope of government,
even though government efforts are needed to
protect rights.
SUMMARY
Civil liberties are expressed in the Bill of Rights.
 These are the individual’s protections—for
religion, expression, assembly, and the accused—
against the government.
 Legislatures and courts constantly define what
the Bill of Rights protects in practice.
