Civil LibertiesCivil Liberties

Wilson Chapter 18Wilson Chapter 18

The politics of civil liberties The politics of civil liberties

►The objectives of the Framers The objectives of the Framers ►Limited federal powers Limited federal powers ►Constitution: a list of dos, not don'ts Constitution: a list of dos, not don'ts ►Bill of Rights: specific do nots Bill of Rights: specific do nots

Not intended to affect states Not intended to affect states A limitation on popular ruleA limitation on popular rule

Politics, culture, and civil Politics, culture, and civil liberties liberties

► Liberties become a major issue for three Liberties become a major issue for three reasons reasons

► 1. Rights in conflict: Bill of Rights contains 1. Rights in conflict: Bill of Rights contains competing rights competing rights Sheppard Sheppard case (free press versus fair trial) case (free press versus fair trial) New York Times New York Times and Pentagon Papers (common and Pentagon Papers (common

defense versus free press) defense versus free press) KunzKunz anti-Jewish speeches (free speech versus anti-Jewish speeches (free speech versus

public order) public order) Struggles over rights show same pattern as Struggles over rights show same pattern as

interest group politicsinterest group politics

►2. Policy entrepreneurs most successful 2. Policy entrepreneurs most successful during crises, especially war, by arousing during crises, especially war, by arousing people people Sedition Act of 1789, during French Revolution Sedition Act of 1789, during French Revolution Espionage and Sedition Acts of World War I Espionage and Sedition Acts of World War I Smith Act of World War II Smith Act of World War II Internal Security Act of 1950, Korean War Internal Security Act of 1950, Korean War Communist Control Act of 1954, McCarthy eraCommunist Control Act of 1954, McCarthy era

► 3. Cultural conflicts 3. Cultural conflicts ►Original settlement by white European Original settlement by white European

Protestants produced Americanism Protestants produced Americanism ►Waves of immigration brought new cultures Waves of immigration brought new cultures

and conflicts and conflicts Non-Christians offended by government-Non-Christians offended by government-

sponsored creches at Christmas sponsored creches at Christmas English speakers prefer monolingual schools English speakers prefer monolingual schools Boy Scouts of America exclude homosexuals Boy Scouts of America exclude homosexuals

from being scout leadersfrom being scout leaders►Differences even within cultural traditions Differences even within cultural traditions

Interpreting and applying the Interpreting and applying the First Amendment First Amendment

Speech and national security Speech and national security ► Original Blackstone view: no prior press censorship Original Blackstone view: no prior press censorship

Sedition Act of 1789 followed Blackstone view Sedition Act of 1789 followed Blackstone view

► By 1917-1919, Congress defines limits of expression By 1917-1919, Congress defines limits of expression Treason, insurrection, forcible resistance Treason, insurrection, forcible resistance Upheld in Upheld in Schenck Schenck via test of "clear and present danger" via test of "clear and present danger"

►

1414thth Amendment "due process" not applied to states Amendment "due process" not applied to states originallyoriginally Gitlow Gitlow elicits "fundamental personal rights" elicits "fundamental personal rights"

► Supreme Court moves toward more free expression after Supreme Court moves toward more free expression after WWI WWI But communists convicted under Smith Act under "gravity of evil" But communists convicted under Smith Act under "gravity of evil" By 1957, test of "calculated to incite" By 1957, test of "calculated to incite" By 1969 (By 1969 (BrandenburgBrandenburg), "imminent" unlawful act ), "imminent" unlawful act 1977 American Nazi march in Skokie, Illinois, held lawful 1977 American Nazi march in Skokie, Illinois, held lawful "Hate" speech permissible but not "hate crime""Hate" speech permissible but not "hate crime"

What is speech? What is speech?

►Some forms of speech not fully Some forms of speech not fully protected; four kinds protected; four kinds

►Libel: written statement defaming Libel: written statement defaming another by false statement another by false statement Oral statement: slander Oral statement: slander Variable jury awards Variable jury awards Malice needed for public figuresMalice needed for public figures

Obscenity Obscenity

► Twelve years of decisions; no lasting definition Twelve years of decisions; no lasting definition ► 1973 definition: patently offensive by community 1973 definition: patently offensive by community

standards of average person standards of average person ► Balancing competing claims remains a problem Balancing competing claims remains a problem ► Localities decide whether to tolerate pornography Localities decide whether to tolerate pornography

but must comply with strict rules but must comply with strict rules Protection extended: nude dancing only marginally Protection extended: nude dancing only marginally

protected protected Indianapolis statute: pornography degrading but court Indianapolis statute: pornography degrading but court

disagreed disagreed Zoning ordinances upheld Zoning ordinances upheld

► Regulation of electronic Internet (computer-Regulation of electronic Internet (computer-simulated child pornography)simulated child pornography)

Symbolic speech Symbolic speech

►Acts that convey a political message: Acts that convey a political message: flag burning, draft card burning flag burning, draft card burning

►Not generally protected Not generally protected Exception is flag burning: restriction of Exception is flag burning: restriction of

free speechfree speech

Who is a person?Who is a person?

►Corporations, etc., usually have same Corporations, etc., usually have same rights as individuals rights as individuals Boston bank, antiabortion group, Boston bank, antiabortion group,

California utility California utility More restrictions on commercial speech More restrictions on commercial speech

►Regulation must be narrowly tailored and Regulation must be narrowly tailored and serve public interest serve public interest

►Yet ads have some constitutional protectionYet ads have some constitutional protection Young people may have fewer rights; Young people may have fewer rights;

HazelwoodHazelwood; school newspaper can be ; school newspaper can be restrictedrestricted

Church and state Church and state

► Free exercise clause: no state interference, Free exercise clause: no state interference, similar to speech similar to speech Law may not impose special burdens on religion Law may not impose special burdens on religion But no religious exemptions from laws binding all But no religious exemptions from laws binding all Some cases difficult to settle Some cases difficult to settle

►Conscientious objection to war, military service Conscientious objection to war, military service ►Refusal to work Saturdays; unemployment Refusal to work Saturdays; unemployment

compensation compensation ►Refusal to send children to school beyond eighth gradeRefusal to send children to school beyond eighth grade

The establishment clause- The establishment clause- Regarding religionRegarding religion

► Jefferson's view: "wall of separation" Jefferson's view: "wall of separation" ►Congress at the time: "no national Congress at the time: "no national

religion" religion" ►Ambiguous phrasing of First Ambiguous phrasing of First

Amendment Amendment ►Supreme Court interpretation: "wall of Supreme Court interpretation: "wall of

separation" separation"

Changing InterpretationsChanging Interpretations

► 1947 New Jersey case (reimbursements) 1947 New Jersey case (reimbursements) Court: First Amendment applies to the states Court: First Amendment applies to the states Court: State must be neutral toward religionCourt: State must be neutral toward religion

► Later decisions struck down Later decisions struck down School prayers (voluntary, nonsectarian, delivered by a School prayers (voluntary, nonsectarian, delivered by a

rabbi or minister or student elected by others students) rabbi or minister or student elected by others students) Teaching of creationism Teaching of creationism In-school released time programsIn-school released time programs

► Public aid to parochial schools particularly Public aid to parochial schools particularly controversial controversial Allowed: aid for construction of buildings, textbook loans, Allowed: aid for construction of buildings, textbook loans,

tax-exempt status, state deductions for tuition, computers, tax-exempt status, state deductions for tuition, computers, and sign language interpreters and sign language interpreters

Disallowed: teacher salary supplements, tuition Disallowed: teacher salary supplements, tuition reimbursements, various school services, money to reimbursements, various school services, money to purchase instructional materials, special districts purchase instructional materials, special districts

Though the Court can (and does) change its mindThough the Court can (and does) change its mind

Development of a three-part test for Development of a three-part test for constitutional aid constitutional aid ►It has a strictly secular purpose It has a strictly secular purpose ►It neither advances nor inhibits religion It neither advances nor inhibits religion ►It involves no excessive government It involves no excessive government

entanglemententanglement Failure of the Court's test to create certainty Failure of the Court's test to create certainty

in our law in our law ►Nativity scenes, menorahs, and Christmas trees Nativity scenes, menorahs, and Christmas trees ►Seeming anomalies: Prayer in Congress, Seeming anomalies: Prayer in Congress,

chaplains in the armed services, "In God We chaplains in the armed services, "In God We Trust" on currency Trust" on currency

►Deep division / confusion among members of the Deep division / confusion among members of the CourtCourt

Crime and due processCrime and due process

►The exclusionary rule The exclusionary rule Most nations punish police misconduct Most nations punish police misconduct

apart from the criminal trial apart from the criminal trial United States punishes it by excluding United States punishes it by excluding

improperly obtained evidence improperly obtained evidence Supreme court rulings Supreme court rulings

►1949: declined to use exclusionary rule 1949: declined to use exclusionary rule ►1961: changed, adopted it in 1961: changed, adopted it in Mapp Mapp casecase

Search and seizure Search and seizure

►When can "reasonable" searches of When can "reasonable" searches of individuals be made? individuals be made? With a properly obtained search warrant with With a properly obtained search warrant with

probable cause probable cause Incident to an arrestIncident to an arrest

►What can police search incident to an arrest? What can police search incident to an arrest? The individual being arrested The individual being arrested Things in plain view Things in plain view Things under the immediate control of the Things under the immediate control of the

individualindividual

► What of an arrest while driving? What of an arrest while driving? Answer changes almost yearly Answer changes almost yearly Court attempts to protect a "reasonable expectation of privacy" Court attempts to protect a "reasonable expectation of privacy" Privacy in body and home but not from government supervisorPrivacy in body and home but not from government supervisor

► Testing for drugs and AIDS Testing for drugs and AIDS Mandatory AIDS testing called for, not yet in place Mandatory AIDS testing called for, not yet in place Government drug testing now in courts but private testing OK Government drug testing now in courts but private testing OK Supreme Court: some testing is permissible Supreme Court: some testing is permissible

► Law enforcement and railroad employees Law enforcement and railroad employees ► Random sobriety checks on drivers Random sobriety checks on drivers ► Key: concern for public safety or national security Key: concern for public safety or national security ► High school athletesHigh school athletes

Confessions and self-Confessions and self-incrimination incrimination

►Constitutional ban originally against Constitutional ban originally against torture torture

►Extension of rights in the 1960s Extension of rights in the 1960s EscobedoEscobedo Miranda Miranda case: "Miranda rules" to prove case: "Miranda rules" to prove

voluntary confessionvoluntary confession

Relaxing the exclusionary Relaxing the exclusionary rule rule

►Positions taken on the rule Positions taken on the rule Any Any evidence should be admissible evidence should be admissible Rule had become too technical to work Rule had become too technical to work Rule a vital safeguardRule a vital safeguard

►Supreme Court moves to adopt second Supreme Court moves to adopt second position position

Terrorism and Civil LibertiesTerrorism and Civil Liberties

Patriot Act Patriot Act Telephone and internet taps, voice mail seizure Telephone and internet taps, voice mail seizure Grand jury information exchange Grand jury information exchange Detainment of non-citizens and deportation of aliens Detainment of non-citizens and deportation of aliens Money laundering Money laundering Crime and punishmentsCrime and punishments

► Executive order for use of military courts Executive order for use of military courts Trial before commission of military officers, may be Trial before commission of military officers, may be

secret secret two-thirds vote for conviction, appeal to secretary of two-thirds vote for conviction, appeal to secretary of

defense and the presidentdefense and the president► Intensified investigations and concerns of civil Intensified investigations and concerns of civil

liberties organizationsliberties organizations