Chapter 4: Civil Liberties and Public Policy pg. 98 -civil liberties-the legal constitutional protections against govt.

Although our civil liberties are formally set down in the Bill of Rights, the courts, police, and legislatures define their meaning. -Bill of Rights-the first ten amendments to the U.S. Constitution, which define such basic liberties as freedom of religion, speech, and press and guarantee defendants rights -disputes about civil liberties often end up in court -Supreme Court=final interpreter of the content/scope of our liberties The Bill of Rights-Then and Now: -bill of rights-condition of ratification of the Constitution -ppl are devotees of rights in theory but their support wavers when those rights are put into practice (ex. freedom of speech & Ku Klux Klan) pg. 99 -Americans are willing to trade civil liberties for security when nation is threatened ~The Bill of Rights and the States~ -First Amendment-the constitutional amendment that est. the four great liberties: freedom of the press, of speech, of religion, and of assembly. -Bill of Rights written to restrict the powers of natl govt -Barron v. Baltimore-the 1833 Supreme Court decision holding that the Bill of Rights restrained only the natl govt, not the states and cities. pg. 100 -Gitlow v. New York-the 1925 Supreme Court decision holding that freedoms of press and speech are fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states as well as by the federal govt---> incorporation doctrine -Fourteenth Amendment-the constitutional amendment adopted after the Civil War that states, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws -Court interpreted the 14th Amendment to say that states couldnt abridge the freedoms of expression protected by the 1st Amendment -incorporation doctrine-the legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states thru the 14th Amendment (not everyone agreed w/ this) -during the Warren court, most of the BOR was applied to the states -2nd, 3rd, 7th, grand jury requirement of 5th, and prohibition against excessive fines and bail in 8th=exceptions to Gitlow Freedom of Religion: -1st Amendment has two elements: establishment clause & free exercise clause -establishment clause-part of the 1st Amendment stating that Congress shall make no law respecting an establishment of religion -free exercise clause-a 1st Amendment provision that prohibits government from interfering w/ the practice of religion -sometimes these freedoms conflict ~The Establishment Clause~

-an established national religion is prohibited by 1st Amendment pg. 101 -debate over whether est. clause means govt cant favor one religion over another or cant support religion at all -intense debate over aid to church-related schools and prayers in public schools -parochiaid: proponents argue that the aid doesnt favor any particular religion; opponents claim the Roman Catholic Church has the largest religious school system and gets most of the aid -Lyndon Johnson allowed first substantial aid to parochial elementary/secondary schools in 1965-argued that the aid went to students, not schools -Lemon v. Kurtzman-the 1971 Supreme Court decision that est. that aid to church-related schools must 1) have a secular legislative purpose 2) have a primary effect that neither advances nor inhibits religion 3) not foster excessive govt entanglement w/ religion pg. 102 -funds can be used for lunches/equipment/textbooks/computers, etc., but not teacher salaries or transportation

-Agostini v. Felton (1997)-public school systems could send teachers into parochial schools to tea ch remedial and supplemental classes to needy children -Zelman v. Simmons-Harris-the 2002 Supreme Court decision that upheld a state providing families w/ vouchers that could be used to pay for tuition at religious schools -Kiryas Joel v. Grumet (1994)-New York state had gone too far in favoring religion when it created a public school district for the benefit of a village of Hasidic Jews -Court decided that public universities that permit student groups to use their facilities must allow student religious groups on campus to use the facilities for religious worship -1984 Equal Access Act-Congress made it unlawful for any public high school receiving federal funds to keep student groups from using school facilities for religious worship of the school opens it facilities for other student meetings (extended to elementary schools in 2001) -1993, Court required public schools that rent facilities to organizations to do the same for religious groups -1995, Court held that University of Virginia was constitutionally required to subsidize a student religious magazine on the same basis as other student publications -2004, Court held that the state of WA was w/in its rights when it excluded students pursuing a devotional theology degree from its general scholarship program -religious instructors are not permitted to come into public school buildings during the school day to provide religious education, but they can release students from party of the school day to receive religious instruction elsewhere -1980, posting of the Ten Commandments on the walls of public classrooms was prohibited -school prayer=most controversial religious issue -Engel v. Vitale-the 1962 Supreme Court decision holding that state officials violated the 1st Amendment when they wrote a prayer to be recited by New Yorks schoolchildren -School District of Abington Township, Pennsylvania v. Schempp-a 1963 Supreme Court decision holding that a PA law requiring Bible reading in schools violated the establishment clause of the 1st Amendment -students can pray silently in school, but the Court forbids the sponsorship/encouragement of prayer by public school authorities pg. 103 -religious groups have urged members to political action---> religious issues/controversies have greater importance in political debate than before -majority of the public supports school prayer -Christian groups have pressed for the teaching of creation science-alternative to Darwinian theories of evolution (ex. Louisianas Balanced Treatment Act-Supreme Court ruled that it violated the establishment clause) -displays of religious symbols during holidays have ignited much controversy (ex. nativity scene must have secular symbols) -Court mandates accommodation of all religions and forbids hostility and govt endorsement pg. 104 ~The Free Exercise Clause~ -religions sometimes forbid actions that society thinks are necessary or require actions that society finds unacceptable (ex. Muhammad Ali refused induction into the armed services during Vietnam) -Courts have been cautious about the right to practice a belief

-Employment Division v. Smith (1988)-Court discarded its previous requirement for a compelling interest before a govt could even indirectly limit/prohibit religious practices-decided that state laws interfering w/ religious practices but not specifically aimed at religion are constitutional -before Smith, Court never permitted religious freedom to be an excuse for any/all behaviors (ex. forbade polygamy, denying tax exemptions to discriminatory religious schools) pg. 105 -some religiously motivated practices have been granted protection (ex. Amish parents can take their children out of school after the 8th grade) -Religious Freedom Restoration Act of 1993-conferred on all ppl the right to perform their religious rituals unless the govt can show that the law/regulation is narrowly tailored and in pursuit of a compelling interest-Supreme Court declared this an unconstitutional intrusion by Congress into the states prerogatives for regulating the health and welfare of citizens Freedom of Expression: -democracy depends on the free expression of ideas (totalitarian govts limit expression) -freedom of conscience-freedom to believe whatever one wants to believe-absolute -freedom of expression-right to say/publish what one believes-controversial pg. 106 -Oliver Wendell: the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic -judges have hadta balance freedom of expression against public order, natl security, and the right to a fair trial -hate speech-controversial freedom of expression -1992, Supreme Court ruled that legislatures/universities cant single out racial, religious, or sexual insults or threats for prosecutions as hate speech or bias crimes -govt can limit action more easily than expression ~Prior Restraint~ -prior restraint-a govt preventing material from being published. This is a common method of limiting press in some nations, but it is usually unconstitutional in the U.S., according to the First Amendment and as confirmed in the 1931 Supreme Court case of Near v. Minnesota pg. 107 -prior restraint=censorship -a person has the right to publish anything -Near v. Minnesota-the 1931 Supreme Court case decision holding that the First Amendment protects newspapers from prior restraint -extent of individ/groups freedom from prior restraint depends on who they are -1988, ruled that a high school newspaper was not a public forum and couldnt be regulated by school officials -wartime brings censorship to protect classified information-restrictions have public support -courts are reluctant to issue injunctions prohibiting the publication of material even in the area of natl security ~Free Speech and Public Order~ -govt=opponent of speech that opposes govt policies -connection between a free press and the need for public order=biggest conflict between press and govt -Schenck v. United States-a 1919 decision upholding the conviction of a socialist who had urged young

men to resist the draft during World War I. Justice Holmes declared that govt can limit speech if the speech provokes a clear and present danger of substantive evils -early 1950s-power anti-communism-govt wanted to jail leaders of the Communist Party -Smith Act of 1940-forbade advocating the violent overthrow of the American government -Dennis v. United States (1951)-Supreme Court upheld prison sentences for C Party leaders for conspiring to advocate the violent overthrow of the government-valued natl security over 1st Amendment pg. 111 -soon, Court narrowed interpretation of Smith Act and made it more difficult to prosecute dissenters -its permissible to advocate the violent overthrow of the govt in the abstract, but not actually to incite anyone to imminent lawless action (Yates v. United States, 1957; Brandenburg v. Ohio, 1969) -Vietnam War-source of most bitter controversy -Court is fairly supportive of the right to protest -federal free-speech guarantees dont apply when a person is on private property pg. 112 ~Free Press and Fair Trials~ -conflict between the right of the press to print what it wants and the rights to a fair trial -publicity can inflame the community/potential jurors against defendants (O.J. Simpson) -Constitutions guarantee of freedom of the press entitles journalists to cover every trial pg. 113 -journalists hope to capitalize their coverage on crime stories to sell newspapers, gain ratings, attract advertisers---> newspapers challenge courts restrictions on media coverage of trials -Court: the trial of a criminal case must be open to the public (pretrial hearings are diff.) -reporters dont always want the courts to have access to their files and sometimes withhold critical evidence-argue its part of protecting their sources (shield laws protect reporters in those situations) -Branzburg v. Hayes (1972)-in the absence of shield laws, the right of a fair trial preempts the reporters right to protect sources -Zurcher v. Stanford Daily-a 1978 Supreme Court decision holding that a proper search warrant could be applied to a newspaper as well as to anyone else without necessarily violating the First Amendment rights to freedom of the press -Court has never upheld a restriction on the press in the interest of a fair trial -only measure the judicial system can take against the influence of publicity in a high profile case is to sequester the jury, isolating it from the media and public opinion ~Obscenity~ -Roth v. United States-a 1957 Supreme Court decision ruling that obscenity is not within the area of constitutionally protected speech or press -defining obscenity=difficult pg. 114 -Miller v. California-a 1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a prurient interest and being patently offensive and lacking in value -deciding on obscenity should be based on average ppl applying the contemporary standards of local communities -difficulty=determining what is lewd/offensive -no nationwide consensus that offensive material should be banned

-courts have ruled that states may protect children from obscenity (Motion Picture Association of America) pg. 115 -Internet make it easier to distribute obscene material rapidly-Congress has decided that the Internet doesnt deserve free-speech protection and is a broadcast medium, so its subject to govt regulation -Communications Decency Act (1996)-banned obscene material and criminalized the transmission of indecent speech/images to anyone under 18 (later overturned in 1997-too broad/vague/violation of free speech) -Internet=similar to print media, has protections against govt regulation -1999, Court upheld prohibitions on obscene email and faxes -womens groups claim that pornography degrades and dehumanizes women ~Libel and Slander~ -libel-the publication of fake or malicious statements that damage someones reputation (written defamation)-not protected by the 1st Amendment -slander-spoken defamation -New York Times v. Sullivan-decided in 1964, this case est. the guidelines for determining whether public officials and public figures could win damage suits for libel. To do so, individuals must prove that the defamatory statements were made with actual malice and reckless disregard for the truth. -difficult to prove that a publication was intentionally malicious---> libel cases are difficult for public figures to win pg. 116 -easy for private individuals to win libel lawsuits-only need to show that statements made about them were defamatory falsehoods and that the author was negligent -unusual for someone to win a libel case b/c ppl dont wanna draw attention to critical statements about themselves -libel cases must balance freedom of expression w/ respect for individual reputations -free public debate=democracy -reputations can be harmed (General Westmoreland v. CBS-Vietnam War) -Supreme Court ruled that a publication can go quite far to parody/lampoon a public figure (Reverend Falwell v. Hustler magazine) pg. 117 ~Symbolic Speech~ -freedom of speech=guarantee of freedom of expression -Tinker v. Des Moines Independent Community School District-Court said that the freedom of speech went beyond the spoken word -Texas v. Johnson-a 1989 case in which the Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was a symbolic speech protected by the First Amendment -symbolic speech-nonverbal communication, such as burning a flag or wearing an armband. The Supreme Court has accorded some symbolic speech protection under the First Amendment-not precise (e.g. burning a flag is protected speech, burning a draft card is not) -First Amendment rights are not limited by a rigid definition of what constitutes speech Commercial Speech: -commercial speech-communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court

-Federal Trade Commission (FTC) decides what goods may be advertised and regulates the content of advertising-regulations have responded to changes in social mores/priorities (e.g. tampons/cigarettes); also attempts to prevent advertisers from making false claims about products -commercial speech-regulated more rigidly than other types of speech, but courts have been broadening its protection under the Constitution-struck down laws that prohibited advertising for certain products/ services -regulation of commercial speech-allowed when speech concerns unlawful activity/is misleading pg. 118 ~Regulation of the Public Airwaves~ -FCC regulates radio/television broadcasting -Miami Herald Publishing Company v. Tornillo-a 1974 case in which the Supreme Court held that a state could not force a newspaper to print replies from candidates it had criticized, illustrating the limited power of government to restrict the print media -Red Lion Broadcasting Comapny v. Federal Communications Commission-a 1969 case in which the Supreme Court upheld restrictions on radio/television broadcasting. These restrictions on the broadcast media are much tighter than those on the print media b/c there are only a limited number of broadcasting frequencies available -FCC restricts the use of obscene words -cable TV in most Americans homes---> Supreme Court faced w/ ruling on application of free-speech guidelines to cable broadcasting -United States v. Playboy Entertainment Group-if a less restrictive alternative would serve the govts purpose, Congress must use that alternative pg. 119 ~Freedom of Assembly~ -freedom of assembly=basis for forming interest groups, political parties, professional associations, picketing and protesting Right to Assemble: -includes rights to parade, picket, and protest -group has right to demonstrate w/ restrictions on time, place, and manner -must apply to city govt for a permit and post a bond -no limitations on content of a groups message (ex. Nazi Party, pro-lifers) pg. 120 Right to Associate: -includes right to associate w/ people who share a common interest, including political change -NAACP v. Alabama-the Supreme Court protected the right to assemble peaceably in this 1958 case when it decided the NAACP did not have to reveal its membership list and thus subject its members to harassment Defendants Rights: -defendants rights-originally intended to protect the accused in political arrests and trials-today mainly applied in criminal justice cases -criminal justice system=series of funnels decreasing in size (crime--->arrest--->prosecution--->trial-->verdict) pg. 121 ~Interpreting Defendants Rights~

-language of Bill of Rights=vague -rights are not clearly defined in the BOR -provisions of the BOR are being extended to the states (incorporation doctrine) ~Searches and Seizures~ -probable cause-the situation occurring when the police have reason to believe that a person should be arrested. In making the arrest, police are allowed legally to search for and seize incriminating evidence. -unreasonable searches and seizures-obtaining evidence in a haphazard or random manner, a practice prohibited by the Fourth Amendment. Probable cause and/or a search warrant are required for a legal and proper search for and seizure of incriminating evidence. -search warrant-a written authorization from a court specifying the area to be searched and what the police are searching for. pg. 122 -warrant-not constitutional requirement; searches are valid if probable cause exists -if police find anything in a search, they find what they have probable cause to believe is there -Court has upheld roadside checkpoints to randomly examine drivers for signs of intoxication -exclusionary rule-the rule that evidence, no matter how incriminating, cannot be introduced into a trial if it was not constitutionally obtained. The rule prohibits use of evidence obtained thru unreasonable search and seizure. -Mapp v. Ohio-the 1961 Supreme Court decision ruling that the Fourth Amendments protection against unreasonable searches and seizures must be extended to the states as well as to the fed. govt---> exclusionary rule became part of the Fourth Amendment -critics: exclusionary rule may permit guilty ppl to go free b/c of carelessness/errors -supporters: defendants rights protect the accused, not the guilty pg. 123 -conservative Court has made exceptions to the exclusionary rule: allowed use of illegally obtained evidence when this evidence led police to a discovery that they eventually would have made w/out it good-faith exception: evidence can be used if the police who seized it mistakenly thought they were operating under a constitutionally valid warrant rule does not bar evidence obtained illegally as the result of clerical errors pg. 124 -after 9/11, Patriot Act gave govt broad new powers ~Self-Incrimination~ -Fifth Amendment-the constitutional amendment designed to protect the rights of persons accused of crimes, including protection against double jeopardy, self-incrimination, and punishment w/out due process of law -self-incrimination-the situation occurring when an individual accused of a crime is compelled to be a witness against himself/herself in court. The Fifth Amendment forbids self-incrimination. -immunity-exemption from prosecution in exchange for suspects testimony regarding their own and others misdeeds -Miranda v. Arizona-the 1966 Supreme Court decision that sets guidelines for police questioning of accused persons to protect them against self-incrimination and to protect their right to counsel -guidelines set by Miranda: Suspects must be told that:

they have a constitutional right to remain silent and may stop answering questions at any time what suspects say can be used against them in a court of law they have a right to have a lawyer present during questioning and that the court will provide an attorney if they cannot afford their own lawyer -Court has made exceptions to Miranda: a coerced confession introduced in a trial does not automatically taint a conviction pg. 125 -Dickerson v. U.S.-Court made it clear that it supported the Miranda decision and that Congress was not empowered to change it -5th Amendment prohibits coerced confessions and coerced crimes -courts have overturned convictions based on entrapment-when law enforcement officials encourage ppl to commit crimes that they otherwise wouldnt commit ~The Right to Counsel~ -right to secure counsel-one of the most important Miranda rights -Sixth Amendment-the constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial. -right to counsel not extended to states til 1960s pg. 126 -Powell v. Alabama (1932)-Court ordered states to provide an attorney for indigent defendants accused of of a capital crime -Gideon v. Wainwright-the 1963 Supreme Court decision holding that anyone accused of a felony where imprisonment may be imposed, however poor he or she might be, has a right to a lawyer -Argersinger v. Hamlin (1972)-whenever imprisonment can be imposed, a lawyer must be provided for the accused ~Trials~ -highly publicized trials=rare -most cases dont go to trial-90% of cases begin and end w/ a guilty plea -plea bargaining-a bargain struck between the defendants lawyer and the prosecutor to the effect that the defendant will plead guilty to a lesser crime (or fewer crimes) in exchange for the states promise not to prosecute the defendant for a more serious (or additional) crime-advantages: saves time and money that could be spent on a trial and permits defendants to plead guilty to a less serious charge-practical necessity -defendants with money dont leave jury selection to chance-hire jury consultants pg. 127 -states can use fewer than 12 jurors and dont require an unanimous vote -federal courts employ 12-person juries and require unanimous votes for a criminal conviction -in recent years, Court has defended jurys role in criminal justice process and limited the discretion of judges in sentencing -Apprendi v. New Jersey (2000) & Blakely v. Washington (2004)-any fact that increases the penalty for a crime beyond the ordinary range hasta be submitted to a jury and proved beyond a reasonable doubtensure that the judges authority to sentence derives entirely from the jurys verdict -6th Amendment guarantees that ppl who are arrested have a right to be brought before a judge -those detained have a right to be informed of the accusations against them and the right to a speedy and public trial -after 9/11, FBI detained more than 1200 ppl and withheld their names, reducing their chances to exercise

their rights for access to the courts/counsel -Hamdi v. Rumsfeld & Rasul v. Bush (2004)-detainees held both in U.S> and at the naval base at Guantanamo Bay, Cuba had the right to challenge their detention before a judge or other neutral decision maker -Crawford v. Washington (2004)-testimony cannot be introduced into a trial unless the witness can be cross-examined by the accused ~Cruel and Unusual Punishment~ -Eighth Amendment-the constitutional amendment that forbids cruel and unusual punishment, although it does not define this phrase. Through the Fourteenth Amendment, this Bill of Rights provision applies to the states -cruel and unusual punishment-court sentences prohibited by the Eighth Amendment. Although the Supreme Court has ruled that mandatory death sentences for certain offenses are unconstitutional, it has not held that the death penalty itself constitutes cruel and unusual punishment -Witherspoon v. Illinoi (1968)-Court overturned a death sentence b/c opponents of the death penalty had been excluded from the jury at sentencing, which stacked the cards in favor of the extreme penalty -Furman v. Georgia (1972)-ruled on the requirement for a degree of consistency in the application of the death penalty -Woodson v. North Carolina (1976)-ruled against mandatory death penalties pg. 128 -Gregg v. Georgia-the 1976 Supreme Court decision that upheld the constitutionality of the death penalty, stating that It is an extreme sanction, suitable to the most extreme of crimes. The court did not, therefore, believe that the death sentence constitutes cruel and unusual punishment -McCleskey v. Kemp-the 1987 Supreme Court decision that upheld the constitutionality of the death penalty against charges that it violated the Fourteenth Amendment because minority defendants were more likely to receive the death penalty than were White defendants -1989, Court held that its constitutionally acceptable to execute 16-17 yr olds -Court has made it more difficult for death row prisoners to file petitions -Court has allowed victim impact statements detailing character of murder victims and their families suffering to be used against a defendant -2002, prohibited executing mentally retarded persons and required that a jury find an aggravating circumstance necessary for imposition of the death penalty -attorneys have employed DNA evidence to obtain the release of dozens of other prisoners pg. 129 The Right to Privacy: ~Is There a Right to Privacy?~ -not in BOR -right to privacy-the right to a private personal life free from the intrusion of govt pg. 130 -Griswold v. Connecticut-various portions of the BOR cast penumbras-unstated liberties implied by the explicitly stated rights-protecting a right to privacy, including a right to family planning between husband and wife pg. 131 ~Controversy over Abortion~ -Roe v. Wade-1973 Supreme Court decision holding that a state ban on all abortions was unconstitutional.

The decision forbade state control over abortions during the first trimester of pregnancy, permitted states to limit abortions to protect the mothers health in the second trimester, and permitted states to protect the fetus during the third trimester -Webster v. Reproductive Health Services (1989)-Court upheld Missouri law forbidding the use of state funds or state employees to perform abortions and upheld laws requiring minors to notify one or both parents or a judge before obtaining an abortion -Rust v. Sullivan (1991)-Department of Health and Human Services ruling-specifying that family planning services receiving federal funds could not provide women any counseling regarding abortionwas constitutional (Clinton lifted ban on abortion counseling) -Planned Parenthood v. Casey-a 1992 case in which the Supreme Court loosened its standard for evaluating restrictions on abortion from one of strict scrutiny of any restraints on a fundamental right to one of undue burden that permits considerably more regulation -Sternberg v. Carhart (2000)- partial birth abortions=unconstitutional pg. 132 -issue of abortion=politicians nightmare -advocates of either side take extreme action Understanding Civil Liberties: -Constitution restricts the govt--->limits what the ppl can empower the govt to do pg. 133 ~Civil Liberties and Democracy~ -1st Amendment rights=essential to democracy -majority rule can conflict with individual rights -Amendments 4-8-protect all Americans, but make it more difficult to punish criminals -past four decades, increased protections for defendants rights & defendants typically not among the elite - elitist courts have often protected civil liberties from the excesses of majority rule ~Civil Liberties and the Scope of Government~ -in U.S., freedom > order -when theres a conflict between an individual/group attempting to express themselves and an effort by govt to constrain them, individual/group usually wins pg. 134 -since Americans cant avoid the attention of govt, strict limitations on govt power (Bill of Rights) are essential -civil liberties limit scope of govt -expansion of freedom may require a simultaneous expansion of govt