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Chapter 4
Civil Liberties and Public Policy
I.The Bill of Rights – Then and NowA.Civil liberties are individual legal and constitutional protections against the government. They areessential for democracy.1.American’s civil liberties are set down in the Bill of Rights, but the courts are the arbiters(someone with the power of judgment) of these liberties because they determine what theConstitution means in the cases that they decide.a.Although the original Constitution had no bill of rights, the states made it clear thatadding one was a condition of ratification.b.The first ten amendments (ratified in 1791) comprise the Bill of Rights.c.The Bill of Rights was passed at a period of history when British abuses of the colonistswere still a recent and bitter memory.2.Political scientists have found that people are supporters of rights in theory, but their supportfalters when it comes time to put those rights into practice.3.Cases become particularly difficult when liberties are in conflict (such as free press versus afair trial or free speech versus public order) or where the facts and interpretations are subtleand ambiguous.B.The Bill of Rights was written to restrict the powers of the new central government (every stateconstitution had its own bill of rights).
1.
In
Barron v Baltimore
(1833), the Court ruled that the Bill of Rights restrained only the nationalgovernment, not states and cities.
a.
 The Court denied Barron’s argument that the city of Baltimore had deprived him of justcompensation of property under the 5
th
Amendmentb.Marshall wrote that each state had written their own constitution and that each personwas protected under their state constitutionc.This created a concept of dual citizenship – a citizen is under the jurisdiction of thenational and state governments.2.The Incorporation doctrine provides the rationale for the process by which fundamentalfreedoms have been applied against state action through interpretation of the FourteenthAmendment.a.The Fourteenth Amendment (ratified in 1868) included guarantees of privileges andimmunities of citizens, due process of law, and equal protection of the law, and explicitlyapplied these guarantees against the states.
 b.
It was not until 1925, however, that the Court relied on the 14
th
Amendment to find thata state government must respect some 1
st
Amendment rights in
Gitlow v New York (1925)
 
i.
 This was the first case to apply the Bill of Rights to the states…beginning the
incorporation
of the B.O.Rii.Gitlow was convicted in New York for advocating the forcible overthrow of thegovernment using violent means.iii.Court ruled that his actions were a violation of a NY statute because his actionscreated a “bad tendency,” which endangered the public welfare.
iv.
 The majority ruled that the “freedom of speech and of press – which areprotected from abridgment by Congress – are among the fundamental personalrights and ‘liberties’ protected by the
due process clause of the 14
th
Amendment from impairment by the States.” 
v.
 This is the first time that the Supreme Court ruled that there was a directrelationship among the 14
th
Amendment, actions by the states, and the B.O.R.c.The Supreme Court gradually applied most of the Bill of Rights to the states, particularlyduring the era of chief Justice Earl Warren in the 1960s.d.At the present time, only the Second, Third, and Seventh Amendments and the grand jury requirement of the Fifth Amendment have not been applied specifically to thestates.3.Not everyone agrees that the Fourteenth Amendment incorporated parts of the Bill of Rightsinto state laws; in 1985, Edwin Meese (Attorney General under Reagan) actually called for thedisincorporation of the Bill of Rights.II.Freedom of Religion
 
A.The First Amendment includes two statements about religion and government, commonly referred to asthe establishment clause and the free exercise clause.B.These freedoms sometimes conflict, but establishment and free exercise cases usually raise differentkinds of conflict.C.The establishment clause states that “Congress shall make no law respecting an establishment of religion.”1.This clause clearly prohibits an establishment of a national church of the United States.(reaction to religious persecution many colonists had faced)2.Debate still continues today over what else the First Congress may have intended for theestablishment clause.a.Thomas Jefferson argued that the First Amendment created a “wall of separation”between church and states, which would prohibit not only favoritism but any support forreligion at all.b.Proponents of aid to parochial schools (known as parochiaid) argue that it does not favorany particular religion; opponents claim that the Roman Catholic church gets most of theaid.
c.
In
Lemon v Kurtzman
(1971), the Supreme Court developed a test known as the “Lemon Test” to determine if aid to church-related schools was constitutional or not.i.Aid must have a secular purposeii.Cannot be used to advance or inhibit religioniii.Should avoid excessive government “entanglement” with religion.
d.
In
Westside Community Schools v Mergens
(1990), the Court upheld the 1984 EqualAccess Act, which made it unlawful for any public high school receiving federal funds tokeep student groups from using school facilities for religious worship if the school opensup its facilities for other student meetings.e.School prayer is possibly the most controversial religious issue.
i.
Engle v Vitale (1962)
– struck down a NY State nondenominational prayer thatstarted with the words “Almighty God, we acknowledge our dependence uponthee…”
ii.
 Abington School District v Schempp (1963)
– ruled that a Pennsylvania law thatallowed a Bible passage to be read at the start of the school day wasunconstitutional.iii.A majority of the public has never favored the Court’s opinion on school prayer.D.Fundamentalist Christians1.Conservative religious groups devote much of their time and energies to the issues of schoolprayer and creation science.2.They lost some court battles to create a more conservative agenda, but won others
a.
 The Supreme Court rejected attempts to legalize school prayer by making it voluntary in
Wallace v Jaffree
(1985)
 b.
Epperson v Arkansas (1968)
– Struck down an Arkansas law forbidding the teaching of the theory of evolution. It was further clarified in
Edwards v Aguillard 
(1987) – said thatLouisiana could NOT teach creationism (as a religious doctrine) even if it was taught
along with
evolution.E.The First Amendment also guarantees the free exercise of religion.1.The free exercise of religious beliefs sometimes clashes with society’s other values.
2.
 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.
a.
Wisconsin v Yoder 
(1972)i.The Supreme Court ruled that Amish parents could take their children out of school after the eighth grade.III.Freedom of Expression
A.
Does “no law” in the First Amendment really mean “
no law
”? The courts have frequently wrestled withthe question of whether freedom of expression (like freedom of conscience) is an absolute.
1.
Supreme Court Justice Hugo Black believed that the words
no law
literally meant that Congressshall make
no
laws abridging the fundamental rights of the First Amendment.a.The courts have often ruled that there are instances when speech needs to becontrolled, 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 apanic.”)
 b.
In their attempts to draw the line separating
 permissible from impermissible speech
, judges have had to balance freedom of expression against competing values like publicorder, national security, and the right to a fair trial. (known as the “balancing test”)
2.
 The courts have also had to decide what kinds of activities constitute
speech
(or press) withinthe meaning of the First Amendment.a.Certain forms of nonverbal communication (like picketing) are considered symbolicspeech, and are protected under the First Amendment.b.Other forms of expression are considered to be action, and are not protected.B.Prior Restraint – a government’s actions that prevent material from being published.
1.
 The Supreme Court has generally struck down prior restraint of speech and press, although thewriter or speaker could be punished for violating a law or someone’s rights
after 
publication.
a.
In
Near v Minnesota
, 1931, the Court decided a landmark case dealing with priorrestraint.b.The state of Minnesota created a law that authorized the abatement (prevention of publication) of any “malicious, scandalous, or defamatory” publication.c.The law was specifically aimed at the Saturday Press, who claimed that the law was inviolation of their First Amendment rights.d.The Court’s ruling against Minnesota was important for two reasonsi.One, it continued the incorporation of the Bill of Rightsii.Second, it said that government has no power of prior restraint.2.There are exceptions to the general doctrine that prohibits prior restraint.
a.
In
Hazelwood School District v Kuhlmeier 
(1988), the Court ruled that a high schoolnewspaper was not a public forum and could be regulated in “any reasonable manner”by school officials.
 b.
Many argue that government should sometimes limit individual behavior on the groundsof 
national security 
.i.The courts have been reluctant to issue injunctions prohibiting the publication of material even in the area of national security.
ii.
In the famous “Pentagon Papers” case (
New York Times v US
, 1971), the Nixonadministration was unable to obtain an injunction against the
Times
that wouldhave prohibited publication of secret documents pertaining to Americaninvolvement in the Vietnam War.C.Free speech and public order1.War often brings government efforts to enforce censorship.
a.
In
Schenck v US
(1919), Justice Oliver Wendell Holmes declared that government canlimit speech if it provokes a clear and present danger of “substantive evils that Congresshas a right to prevent.”b.The Smith Act of 1940 forbade the advocacy of violent overthrow of the Americangovernment.c.Free speech advocates did little to stem the relentless persecution known asMcCarthyism during the Cold War of the 1950s, when Senator Joseph McCarthy’sunproven accusations that many public officials were Communists created anatmosphere in which broad restrictions were placed on freedom of expression.d.By the 1960s, the political climate had changed.i.The Court narrowed the interpretation of the Smith Act so that the governmentcould no longer use it to prosecute dissenters.ii.Waves of protest over the Vietnam War and unrest over political, economic,racial, and social issues expanded the constitutional meaning of free speech.2.Today, the courts are very supportive of the right to protest, pass out leaflets, or gathersignatures on petitions (as long as it is done in public places).D.Free press versus free trial1.The Bill of Rights is a source of potential conflicts between different types of freedoms: theConstitution clearly meant to guarantee the right to a fair trial as well as the right to a freepress, but a trial may not be fair if pretrial press coverage makes it impossible to select animpartial jury.2.Journalists seek full freedom to cover all trials: they argue that the public has a right to know.
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