Civil Liberties Notes

Civil Liberties     Civil Liberties – the limits placed on government so that people can freely exercise their rights The Rise of Civil Liberties o Civil Rights and Civil Liberties  Civil rights – the freedom to participate in the full life of the community – to vote, use public facilities, and exercise equal economic opportunity.  Civil liberties require government action to help secure individual rights; civil liberties restrict government action to protect individual rights.  Until people have wo their rights and the idea of protecting them is meaningless  When the governments enforce civil rights for some people, they often limit the liberty of others. o The Slow Rise of Rights  The first amendment begins, “Congress shall make no law” prohibiting the exercise of religion or restricting speech  The Bill of Rights eventually reached the states thanks to the quest for civil rights  Selective Incorporation – extending protections from the Bill of Rights to the state governments, one right at a time o The Supreme Court neatly defined civil liberties in 1943: the Bill of Rights withdraws certain subjects from political controversy and places them beyond the reach of majorities and officials o The Bill of Rights did not apply to the states until the 14th amendment required that no state could deprive any citizen of life, liberty or property o The court applied the Bill of Rights to the states one right at a time between 1897 (no taking of property without compensation) and 2010 (the right to bear arms) Privacy o Penumbras and Emanations  The penumbras – literally, the shadows – of the First Amendment create “zones of privacy” in which people have a right to make their own choices free from government interference o The court discovered a right to privacy implicit in the shadows of the 1st, 3rd, th th 4 , 5 and 9th amendments o The court applied the right to privacy to strike down laws banning abortion. In Roe v Wade, the court issued a rule prohibiting states from interfering during the first trimester. Freedom of Religion o The first amendment gives 2 succinct commands regulating religion o The Establishment Clause The federal government may not establish an official religion – known as the establishment clause (the first amendment, the principle that government may not establish an official religion  Free exercise clause – in the first amendment, the principle that government may not interfere in religious practice  Strict separation – the strict principles articulated in the lemon test for judging whether a law establishes a religion  Accommodation – the principle that government does not violate the establishment clause as long as it does not confer an advantage to some religions over others. o Free Exercise of Religion  The first amendment has 2 religious clauses: the government may not establish a religion and it may not interfere with the free exercise of religions  The courts have ruled on establishment cases by trying to approximate Jefferson’s wall separating church and state. The Court requires three things of government action : it must have a secular purpose, neither advance not inhibit religion, and not excessively entangle government in religion (the 3 requirements were known as the Lemon test). A more recent view (known as accommodation) simply requires that government not promote one religious view over another  In protecting the free exercise of religion, the courts traditionally asked if the government had a compelling interest for imposing a burden Freedom of Speech o A Preferred position  Among all the amendments to the Constitution  Among the rights listed in the first amendment (free speech, religion, press and assembly, and the right to petition government), free speech holds a preferred position  When freedom of speech conflicts with any other right, the court generally will prefer to protect speech o Political Speech  Clear and present danger – court doctrine that permits restrictions of free speech if officials believe that the speech will lead to prohibited action such as violence or terrorism o Symbolic Speech  An act, rather than actual speech, used to demonstrate a point of view o Limit to Free Speech : Fighting Words  Hate speech- hostile statements based on someone’s personal characteristics, such as race, ethnicity, religion or sexual orientation  Fighting Words – expressions inherently likely to provoke violent reaction and not necessarily protected by the First Amendment o Free speech is crucial to democracy, and the Court, gives it a privileged position – even against angry public opposition at the flag burning, cross burning, or homophobic displays at military funeral. The Court is very reluctant to permit restrictions on speech      o Free speech can be curtailed if it poses, a “clear and present danger”. Today the court requires the danger to be both imminent and likely to occur o There are limits to free speech, including fighting words and student speech Freedom of the Press o Prior Restraint  Legal effort to stop speech before it occurs, - in effect, censorship o Obscenity o Libel – written falsehoods o The rules for freedom of the press reflect those of free speech and strongly protect free expression o The courts are especially skeptical of any effort to impost prior restraint. The new media makes it almost impossible to even try o Obscenity is not protected by the first amendment. The court has spent a long time wrestling with just what counts as obscenity and now uses the three-part Miller test. Under the test, it is extremely difficult to ban material as obscene The Right to Bear Arms o 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 o Some critics see the Second Amendment as an outmoded defense of citizen militias o Others see it as an important individual right – perhaps even the most important right in the entire constitution o In 2010 the Supreme Court incorporated the right to bear arms as an essential individual right. Since then, most state and local restrictions have been upheld The Rights of the Accused o The Bill of Rights places special emphasis on protecting people accused of crimes o Four Amendments (4,5,6, and 8) list 31 different rights for those who face criminal charges o The Fourth Amendment: Search and Seizure  The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized  Exclusionary rule – the ruling that evidence obtained in an illegal search may not be introduced in a trial o The Fifth Amendment: Rights at Trials  Grandy jury – a jury that does not decide on guilt or innocence but only on whether there is enough evidence for the case to go to trial  Double jeopardy – the principle that an individual cannot be tried twice for the same offense  Miranda warnings – a set of rights that police officers are required to inform suspects of, including the right to remain silent  o The Sixth Amendment: The Right to Counsel  Guarantees a speedy and public trial decided by an impartial jury,  In all criminal prosecutions, the accused shall… have the assistance of counsel for his defense o The Eighth Amendment: The Death Penalty  Cruel and unusual punishment…shall not be ….inflicted  Proponents argue that some crimes are so terrible that justice demands capital punishment. o The bill of rights places special emphasis on the rights of those accused of crimes. Even so, American incarceration rates are the highest in the world o The police may not search or seize without a warrant (with minor exceptions); they must inform suspects of their right to remain silent; the accused have a right to legal counsel. The courts have widened the legal right but it is often limited by underfunded public defenders o Under current interpretation, capital punishment is not considered “cruel and unusual punishment” o Between 1962-1968, the Supreme Court vastly expanded the rights of the accused. Fighting Terrorism and Protecting Liberty o USA Patriot Act – legislation that sought to enhance national security, passed in the aftermath of the September 11,2001 o The response to 9/11 and subsequent terror attacks created a new debate about the balance between civil liberties and public safety o With the snowden revelations, controversy arose about the NSA data collection of phone records and internet surveillance. The debate centers on whether the practice is constitutional and what controls may be necessary to safeguard privacy rights o In 2015, the USA Freedom Act reauthorized the Patriot Act with new limitations – and forbade the use of bulk data collection