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Civil Liberties vs. Civil Rights
Civil Liberties: protection of
citizens from improper
government action
Civil Rights: obligations
imposed on government to
take positive action to protect
citizens from illegal actions of
other private citizens and
other government agencies.
Bill of Rights
• Was it necessary?
• Hamilton thought no: how could the national
government abuse powers not given to it in the
first place?? (Art. I, Section 9, listed the right of
habeas corpus-prohibits government from
depriving a person of their liberty w/o an open
trial before a judge).
• Added after ratification, but rights only slowly
incorporated into national law.
Suspend Writ of Habeas
Corpus
• President Abraham Lincoln suspends
writ of habeas corpus eight times
• "all persons…guilty of any disloyal
practice.. shall be subject to court
martial"
• 38,000 civilians imprisoned
Later
• 1866: Supreme Court says Lincoln
exceeded his authority
• Habeas Corpus cannot be suspended,
even in war.
Alien and Sedition Acts (1798)
• Alien Act: deport any non-citizen judged
dangerous to US peace and safety
– no right to a hearing or to present evidence
• Sedition Act: prohibit false, scandalous,
or malicious writing against the
government
– aggressive criticism of Adams deemed
unlawful
Later
• President Jefferson pardons all of those
convicted
• Congress repays the fines
• Federalist party declines in power
Espionage/Sedition Act (1917)
• US enters World War I
• Made it a crime for a person to convey
information with intent to interfere with
the operation or success of the armed
forces of the United States or to
promote the success of its enemies.
Later
• Government releases every person who
had been convicted
• President Franklin D. Roosevelt grants
amnesty, restoring civil rights
• Eventually, Supreme Court overrules
every WWI decision supporting actions
against dissent
Fear of Communism
• Smith Act: advocating the overthrow of the
US government is illegal
• Internal Security Act: communists had to
register with government
• Communist Control: commies are a part of
a conspiracy to overthrow government
Patriot Act (2001)
• Expands wiretaps, search warrants, pen/trap
orders, and subpoenas
• Allows spying by foreign intelligence agencies
• FBI and CIA can now access phones and
computers w/o demonstrating use by a
suspect or target of an order
Patriot Act, II
• ISPs, libraries forced to hand over user
information
• New definitions of terrorism expand scope of
surveillance
• Collection of DNA for "any crime of violence."
• Information sharing between domestic law
enforcement and intelligence
Patriot Act, III
• Removes Freedom of Information Act
protections for detainees
• Nullifies consent decrees against state law
enforcement agencies that prevent spying
on individuals and organizations
• Strips citizenship from anyone who gives
"material support" to any group that the
Atty. Gen. designates as a terrorist
organization
1st Amendment
• Gitlow vs. New York (1925): freedom of
speech and press are “fundamental
personal rights”.
• State laws limiting speech, press or
peaceful assemble: unconstitutional.
• Example of selective incorporation!
1st Amendment Protections
• Preferred Position: free expression is more
important than other rights.
• Prior Restraint: No prior restraint on
expression.
• Least restrictive: Impose the least amount
of restrictions on expression
• Symbolic speech: communicating beliefs.
Draft card and flag burning: Why different?
1st Amendment Restrictions
• Libel: written false statement
(National Inquirer)
• Slander: spoken false statement
• Imminent danger: incite unlawful act
• Clear and present danger: shouting “fire”
in a movie theater.
1st Amendment: Obscenity
• Very difficult issue: what is obscene?
• Have used “community standards” as a
measure
• Zoning laws have restricted where
“offensive materials” can be sold
1st Amendment: Religion
• Religion divided into “establishment
clause” and “free exercise clause”
• Establishment: there is a wall of
separation between the church/state.
Fed government cannot establish a
national religion.
• Free exercise: restricting anyone’s
practice of a religion: Wicca, snake
handlers, peyote, Mormons?
What do you think?
Does the government have the right to infringe on civil
liberties? When? How far is too far?
What about racial profiling? Is racial profiling an acceptable
deviation from the equal protection clause?
Is the government protecting US citizens from future
terrorist attacks or invading their privacy?
Is the Patriot Act a necessary part of life after September 11
or does it overstep the boundaries of privacy invasion?