1 Government in America; 15th Edition Chapter 4 Civil Liberties and Public Policy

2 The Bill of Rights Civil LibertiesProtections against the government Example of Civil Liberties? Bill of Rights Many Americans love the idea of rights in theory, but don’t always follow through in practice Example: Texas v. Johnson, KKK rally, etc. 1st Amendment – “Congress shall make no law” – known as the Establishment Clause Originally Barron v. Baltimore, the Supreme Court interpreted the Bill of Rights to only apply to the federal government, NOT THE STATES In 1925, the Supreme Court, in Gitlow v. New York, ruled that through the 14th Amendment, states must respect the 1st Amendment ***Incorporation Doctrine*** - Supreme Court has applied the Bill of Rights to states through the 14th Amendment

3 Freedom of Religion Free Exercise ClauseThe government cannot abridge (prohibit or limit) religion or worship This does not mean one can do something illegal under the guise of religion Thomas Jefferson advocated the 1st Amendment meant there was a “wall of separation” between church and state forbidding the government favoring a religion Can the government provide aid to religious schools? Yes, according to Lemon v. Kurtzman, however, aid must: Not advance or inhibit religion Not entangle government with religion Have a secular purpose Aid can be use for textbooks, lunches, etc. Equal Access Act (1984): Schools cannot prohibit students from using school grounds for religious worship, provided the school allows other meetings The Ten Commandments cannot be posted on the wall of public classrooms

4 Freedom of Religion Cont.Engle v. Vitale: School-sponsored prayer in public schools is illegal Students CAN pray in school, it cannot be led by school officials In 1968, the Supreme Court ruled that states cannot prohibit the teaching of evolution in public schools The Supreme Court has ruled in favor of accommodation of religion and not favoring any one Religious Freedom Restoration Act (1933): Allowed people to practice certain religious rituals unless the government could show a compelling interest to regulate those rituals Later declared unconstitutional

5 Freedom of Expression Prior Restraint: (Government censorship)The 1st Amendment limits the ability of the government to censor material before it comes out Does not apply to school newspapers or national security issues During times of war, or crisis, individual liberties decrease Schenck v. US (1919) Free speech could be limited if it poses a “clear and present danger” Cannot yell “fire” in a theater Smith Act (1940) Made it illegal to teach or favor the violent overthrow of the government Roth v. US (1957) Obscene material is not always protected by the 1st Amendment Miller v. California (1973) Supreme Court helped define obscene material It encourages an excessive interest in sex It is “patently offensive” in terms of sexual conduct Lacked “literary, artistic, political, or scientific value”

6 Freedom of Expression Cont.Libel and Slander Libel – publishing malicious false statements intending to damage a reputation (Written) New York Times v. Sullivan – public figures have a higher threshold than private individuals Public figures have a harder time proving libel in court Slander – making a false statement intending to damage a reputation (spoken) The 1st Amending also protects Symbolic Speech Texas v. Johnson – burning the American flag Tinker v. Des Moines – protesting the Vietnam War with armbands in a school was ok Commercial Speech (advertising) is much more regulated Federal Trade Commission (FTC) can regulates what can advertised on TV (cigarettes) Federal Communications Commission (FCC) can regulate what appears on TV and radio

7 Freedom of Assembly What is freedom of assembly?Right to gather to make a statement or point – parade, protest, picket, etc. Oftentimes, a permit is needed to assemble in public places Rights may often conflict: Right to an abortion and right to protest abortions The Right to assemble also includes the right to associate with other like-minded individuals NAACP v. Alabama – NAACP membership list could not be turned over to authorities Right to Bear Arms: 2nd Amendment – a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. District of Columbia v. Heller – ability to possess firearms are unconnected to militia service; can use firearms for lawful purposes

8 Defendants’ Rights Interpreting Defendants’ Rights:The Bill of Rights can be vague: what is a “speedy trial?” What is “cruel and unusual punishment?” Searches and Seizures: Probable Cause – reasonable grounds that one is guilty 4th Amendment forbids illegal searches and seizures – must have a warrant signed by a court Police can enter homes without warrants if they believe: someone inside is seriously injured or threatened Over the years police have increased warrantless searches through “reasonable suspicion” Exclusionary Rule – prosecution cannot use illegally seized evidence in a case Originally only applied to the federal government… Mapp v. Ohio (1961) While searching Dolly Mapp’s house for a fugitive, police seized pornographic material, which was illegal The Supreme Court declared that the evidence was seized illegally since the police did not have a warrant Critics of the exclusionary rule believe that is too lenient to criminals, supporters claim in supports those accused of crimes, not convicted of crimes

9 Defendants’ Rights Cont.The War on Terrorism: Patriot Act gave broad powers to the government Government could wiretap and obtain doctor, library, and school records In 2005, the Bush administration ordered the NSA to monitor international phone calls and s of people in the U.S. As of 2014, this practice is still occurring Foreign Intelligence Surveillance Act – gave the government the ability to eavesdrop on large foreign groups at once, instead of using individual wiretaps IN TIMES OF WAR AND CRISIS, INDIVIDUAL RIGHTS GO DOWN! Self-Incrimination: 5th Amendment – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in tine of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of lie or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” Prohibits coerced, or forced confessions, protects against entrapment (law officials encourage an individual to commit a crime)

10 Defendants’ Rights Cont.The Right to Counsel: 6th Amendment – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, … and to have the Assistance of Counsel for his defence.” Until 1932, some individuals were tried for capital crimes in states WITHOUT an attorney Gideon v. Wainwright (1963) – right to an attorney was established for any individual accused of a felony in a state court; later applied to any charge where imprisonment could be a result Trials Most cases do NOT go to trial; 90% end with a guilty plea Plea bargaining – individual will confess to a less serious crime Ex. Speeding ticket -> paid a fine and attended a class Almost all juris have 12 jurors and require unanimous votes to convict

11 Defendants’ Rights Cont.The War on Terrorism After 9/11, over 1,200 people deemed a threat to national security were held without trial and held in jail US withheld their names Hamdan v. Rumsfield (2006) – President Bush procedures at Guantanamo Bay (Gitmo) violated Uniform Code of Military Justice and the Geneva Conventions Supreme Court ruled that detainees in Gitmo were allowed to challenge their holding before a judge or a neutral decision maker Again, IN TIMES OF WAR AND CRISIS, INDIVIDUAL RIGHTS GO DOWN! Cruel and Unusual Punishment: 8th Amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” – applies to states as well though the 14th Amendment Overturned Georgia’s death penalty law; death penalty cannot be applied in a “freakish” and “random” way – Furman v. Georgia (1972) Gregg v. Georgia (1976) – Supreme Court upheld capital punishment Death penalty cannot be applied to mentally ill, mentally retarded, those under 18, and those convicted of rape that did not kill the victim, or intend to cause death

12 The Right to Privacy Is There a Right to Privacy?Not listed in the Bill of Rights Griswold v. Connecticut (1965) – Supreme Court declared a Connecticut law barring the use of contraceptives unconstitutional, stating a right to privacy Applied to the legalization of abortion in 1973 (Roe v Wade) Controversy over Abortion: Roe v. Wade (1973) – states could use a 24-hour waiting period before an abortion procedure, parental requirement for a minor Freedom of Access to Clinic Entrances Act – made it a federal crime to intimidate abortion providers or women seeking abortions

13 Understanding Civil Liberties1st Amendment means all ideas should be heard in a democracy The individual usually wins out if the government tries to restrict expression or worship

14 Quick Recap Incorporations Doctrine – applying amendments to state governments Engle v. Vitale Rights (Speech) can be limited in times of crisis (Schenck v. US) Exclusionary Rule and Mapp v. Ohio (now applied to states) 5th Amendment and Miranda Rights The 6th Amendmnt and Gideon v. Wainwright Griswold, Roe, and right to privacy