Chapter 5

Civil Liberties

Culture and Civil Liberties

Civil liberties are the protections the Constitution provides against the abuse of gov’t power.

Americans often think of civil liberties as a set of principles that protect the freedoms of all of us all the time.

However, the Constitution contains a list of “competing” rights and duties.

See examples on pgs. 95-96

Cultural Conflicts

Traditional idea of “Americanism” comes from our founding (idea of WASP-White Anglo Saxon Protestant) and their fundamental beliefs.

Immigration to this country brought a flood of new settlers coming from many different backgrounds.

Ethnic, religious, and cultural differences have given rise to different views about the meaning and scope of certain constitutionally protected freedoms.

See examples on pgs. 97-98

Applying the Bill of Rights to the States For many years after the founding, the amendments

added to the Constitution only applied to the federal gov’t.

This began to change after the Civil War when new amendments were ratified to ban slavery and protect the newly freed slaves.

For example, the due process clause was added in the 14th Amendment. This denies the gov’t the right, without due process, to

deprive people of life, liberty, and property. Also added the idea of equal protection of the laws which

states that equal treatment must be observed by the gov’t.

By 1897 the SC started to use the due process clause and the equal protection clause to apply certain rights to state gov’ts.

The SC used the policy of selective incorporation to apply the BoR to states.

The following rights are not applied to the states: 2nd, 3rd, 5th, 7th, 8th

See info on p. 98

Interpreting and Applying the First Amendment The 1st Amendment has two parts:

Freedom of expression Freedom of religion

Speech and National Security The traditional view of free speech and free press

was expressed by William Blackstone in 1765. He believed that freedom from prior restraint or

censorship was essential to free press. Chief Justice Oliver Wendell Holmes helped create

the clear and present danger test to show which types of speech should be protected or not.

See examples on pgs.99-100

What is Speech?

The Court has ruled that there are at least four forms of speaking and writing that are not automatically granted full constitutional protection:

Libel Obscenity Symbolic Speech False Advertising

Libel

Written statement that defames the character of another person.

You must be able to prove that the words were published with “actual malice” and with reckless disregard for the truth.

Obscenity

Obscenity is not protected by the Constitution, however, the definition of obscene causes conflict whenever cases arise.

From 1957 to 1968 the SC dealt with 13 major cases involving the definition of obscene.

With the advent of the Internet it has become more difficult for the gov’t to regulate obscenity.

Symbolic Speech

An act that conveys a political message. The SC argues that giving symbolic speech

the same protection as real speech would open the door to permitting all manner of illegal actions meant to send a message.

Who is a Person?

It is commonly accepted that corporations, interest groups, and children have the same right to speak and publish as do people.

Students may lawfully say things on campus, as individuals, that they cannot say if they are part of school-sponsored activities.

The gov’t can place more limits on commercial rather than noncommercial speech. For example: restrictions on ads for cigarettes, liquor, and

gambling. See cases on p.105

Church and State

Many people believe, wrongly, that the language of the 1st Amendment requires the “separation of church and state.”

Original language comes from Thomas Jefferson, who opposed having an established church

The Amendment has two parts: Free-exercise clause: law cannot prevent free exercise of

religion Establishment clause: banned laws “respecting an

establishment of religion.” “Wall of separation”: Court ruling that gov’t cannot be

involved in religion. See examples on pgs.107-108

The Court has tried to sort out the confusion by developing a three-part test to decide under what circumstances gov’t involvement in religious activities is improper.

The involvement is constitutional if it meets these tests: It has a secular purpose Its primary effect neither advances nor inhibits religion. It does not foster an excessive gov’t entanglement with

religion. See examples on pgs.108-110

Crime and Due Process

There are two ways to provide protection for both the police and those accused of crimes: Let the police introduce in court evidence relevant

to the guilt or innocence of a person, no matter how it was obtained and then, after the case is settled, punish the police if the evidence was gathered improperly.

Exclude improperly gathered evidence from the trial in the first place, even if its is relevant to determining the guilt or innocence of the accused.

Exclusionary Rule

Evidence gathered in violation of the Constitution cannot be used in a trial.

This has been used to implement the right to be free from unreasonable search and seizure (4th) and the right not to be compelled to give evidence against oneself (5th).

Search and Seizure

A search warrant is an order from a judge authorizing the search of a place; the order must describe what is to be searched and seized.

The judge can issue it only if he is persuaded by the police that good reason or probable cause exists to believe that a crime has been committed and that the evidence bearing on that crime will be found at a certain location.

You may also be searched if it occurs at the time of arrest.

The search may include you, things in plain view, and things or places under your immediate control.

See examples on pgs.112-113

Confessions and Self-Incrimination The ban on being forced to give evidence

against oneself was originally intended to prevent the use of torture or “third-degree” police tactics used to extract confessions.

The Court decided that a person’s statement should be assumed involuntary unless they have been fully informed of their rights.

Miranda Warning-See p.114-115

Relaxing the Exclusionary Rule Arguments to the constitutionality of the

exclusionary rule have led the Courts to adopt the good-faith exception -an error in gathering evidence that is minor may be used in the trial.

Terrorism and Civil Liberties

The attacks on 9/11 raised questions about how far the gov’t can go in investigating and prosecuting individuals.

The USA Patriot Act was passed to increase federal powers to investigate terrorists.

The Patriot Act gave gov’t leeway in gathering evidence through telephone taps, internet taps, voice mail, grand jury information, etc.

It also gave more power over immigration, money laundering, and crime.

See pgs. 116-117