CH. 4 CIVIL LIBERTIES NOTES



Civil liberties are individual legal and constitutional protections against the government.Although Americans’ civil liberties are established in the Bill of Rights, the courts determinewhat the Constitution actually means through the cases they decide. Disputes about civilliberties are frequent because the issues involved are complex and divisive..THE BILL OF RIGHTS—THEN AND NOWPolitical scientists have discovered that people are advocates of rights in theory, but theirsupport wavers when it comes time to put those rights into practice. Cases becomeparticularly difficult when liberties are in conflict—such as free press versus a fair trial or freespeech versus public order—or where the facts and interpretations are subtle and ambiguous.The Bill of Rights is fundamental to Americans’ freedom. All of the state constitutions hadbills of rights by the time of the 1787 convention, and the issue of adding a bill of rights to theproposed national constitution had become a condition of ratification. The Bill of Rights waspassed as a group by the First Congress in 1789; the first ten amendments were ratified andbecame part of the Constitution in 1791.The Bill of Rights was written to restrict the powers of the new central government. The FirstAmendment establishes the four great liberties: freedom of the press, of speech, of religion,and of assembly. What happens, however, if a state passes a law violating one of the rightsprotected by the federal Bill of Rights and the state’s constitution does not prohibit thisabridgement of freedom? In Barron v. Baltimore (1833), the Supreme Court ruled that theBill of Rights restrained only the national government and not states and cities. It was notuntil 1925 that the Court relied on the Fourteenth Amendment to find that a stategovernment must respect some First Amendment rights (Gitlow v. New York). In Gitlow, theCourt announced that freedoms of speech and press “were fundamental personal rights andliberties protected by the due process clause of the Fourteenth Amendment from impairmentby the states.”Chapter 443The Supreme Court gradually applied most of the Bill of Rights to the states, particularlyduring the era of Chief Justice Earl Warren in the 1960s, developing the concept of theincorporation doctrine. At the present time, only the Second, Third, and SeventhAmendments and the grand jury requirement of the Fifth Amendment have not been appliedspecifically to the states. Not everyone agrees that the Fourteenth Amendment incorporatedparts of the Bill of Rights into state laws; in 1985, Edwin Meese (then attorney general)strongly criticized Gitlow and called for “disincorporation” of the Bill of Rights.FREEDOM OF RELIGIONThe First Amendment makes two basic statements about religion and government,commonly referred to as the establishment clause and the free exercise clause. Sometimesthese freedoms conflict, but cases involving these clauses usually raise different kinds ofconflicts.Some nations, like Great Britain, have an established church that is officially supported by thegovernment. A few American colonies had official churches, but the religious persecutionsthat incited many colonists to move to America discouraged any desire for the First Congressto establish a national church in the United States. Debate still continues over what else theFirst Congress may have intended for the establishment clause. Some people believe that theestablishment clause meant only that the government could not favor one religion overanother. Thomas Jefferson argued that the First Amendment created a “wall of separation”between church and state that forbade any support for religion at all.Debate has been especially intense over questions of aid to church-related schools and prayersor Bible reading in the public schools. School prayer is possibly the most controversialreligious issue. In 1962 and 1963, the Court ruled that voluntary recitations of prayers orBible passages, when done as part of classroom exercises in public schools, violated theestablishment clause (Engel v. Vitale and School District of Abington Township,Pennsylvania v. Schempp). A majority of the public has never favored the Court’s decisionson school prayer. Some religious groups pushed for a constitutional amendment permittingschool prayer, and many school districts simply ignored the decision. In EmploymentDivision v. Smith (1990), the Supreme Court ruled that states can prohibit certain religiouspractices, but not religion itself.There has always been a fine line between aid to church-related schools that is permissibleand aid that is not. In 1971, the Supreme Court declared that aid to church-related schoolsmust have a secular legislative purpose, cannot be used to advance or inhibit religion, andshould avoid excessive government “entanglement” with religion (Lemon v. Kurtzman). In alandmark decision in 2002, the Court in Zelman v. Simmons-Harris upheld a program thatprovided some families in Cleveland, Ohio, with vouchers that could be used to pay tuition atreligious schools.Conservative religious groups have had an impact on the political agenda. They devotedmuch of their time and energies in recent years to the issues of school prayer and creationscience; and while they lost some battles (such as the battle over teaching creation science inthe public schools), they have won others (for example, the Court decision that religiousscenes could be set up on public property). Thus, in 1992, the Court ruled that a schoolsponsoredprayer at a public school graduation violated the constitutional separation of churchChapter 444and state. In 2000, the Court held that student-led prayer at football games was alsounconstitutional.The guarantee of free exercise of religion is also more complicated than it appears at firstglance. The free exercise of religious beliefs sometimes clashes with society’s other valuesand laws, as occurred when the Amish refused to send their children to public schools. TheSupreme Court has consistently maintained that people have an absolute right to believe whatthey want, but the courts have been more cautious about the right to practice a belief (but inWisconsin v. Yoder, 1972, the Court did allow Amish parents to take their children out ofschool after the eighth grade).FREEDOM OF EXPRESSIONThe courts have frequently wrestled with the question of whether freedom of expression (likefreedom of conscience) is an absolute. The courts have often ruled that there are instanceswhen speech needs to be controlled, especially when the First Amendment conflicts withother rights. In their attempts to draw the line separating permissible from impermissiblespeech, judges have had to balance freedom of expression against competing values likepublic order, national security, and the right to a fair trial.The courts have also had to decide what kinds of activities constitute speech (or press) withinthe meaning of the First Amendment. Certain forms of nonverbal communication (likepicketing) are considered symbolic speech and are protected under the First Amendment.Other forms of expression are considered to be action and are not protected. The Court hasgenerally struck down prior restraint of speech and press (censorship that preventspublication), although the writer or speaker could be punished for violating a law orsomeone’s rights after publication (Near v. Minnesota, 1931).Crises such as war often bring government efforts to enforce censorship. In Schenck v.United States (1919), Justice Oliver Wendell Holmes declared that government can limitspeech if it provokes a clear and present danger of “substantive evils.” Free speechadvocates did little to stem the relentless persecution of McCarthyism during the “cold war”of the 1950s, when Senator Joseph McCarthy’s unproven accusations that many publicofficials were Communists created an atmosphere in which the courts placed broadrestrictions on freedom of expression. By the 1960s, the political climate had changed, andcourts today are very supportive of the right to protest, pass out leaflets, or gather signatureson petitions (as long as it is done in public places).The Bill of Rights is also a source of potential conflicts between different types of freedoms.The Constitution clearly meant to guarantee the right to a fair trial as well as the right to afree press, but a trial may not be fair if pretrial press coverage makes it impossible to selectan impartial jury. Likewise, journalists seek full freedom to cover all trials (they argue thatthe public has a right to know), but they sometimes defend their right to keep some of theirown files secret in order to protect a confidential source. In Zurcher v. Stanford Daily(1978), the Supreme Court disagreed with this claim.Efforts to define obscenity have perplexed the courts for years. Although the Supreme Courthas held that “obscenity is not within the area of constitutionally protected speech or press”(Roth v. United States, 1957), it has proven difficult to determine what is legally obscene.Chapter 445The Court tried to clarify its doctrine by spelling out what could be classified as obscene andthus outside First Amendment protection in the 1973 case of Miller v. California. Then,Chief Justice Warren Burger wrote that materials were obscene if, taken as a whole, theyappealed “to a prurient interest in sex”; showed “patently offensive” sexual conduct that wasspecifically defined by an obscenity law; and taken as a whole, lacked “serious literary,artistic, political, or scientific value.”Advances in technology have created a new wrinkle in the obscenity issue. The Internet andthe World Wide Web make it easier to distribute obscene material rapidly, and a number ofonline information services have taken advantage of this opportunity.In 1996, Congress passed the Communications Decency Act, banning obscene material andcriminalizing the transmission of indecent speech or images to anyone under 18 years of age.The new law made no exception for material that has serious literary, artistic, political, orscientific merit as outlined in Miller v. California. In 1997, the Supreme Court overturnedthis law as being overly broad and vague and a violation of free speech. In 2002, the Courtoverturned a law banning virtual child pornography on similar grounds. Apparently theSupreme Court views the Internet similarly to print media, with similar protections againstgovernment regulation.Libel and slander also raise freedom of expression issues that involve competing values. Ifpublic debate is not free, there can be no democracy. Conversely, some reputations will beunfairly damaged in the process if there are not limitations. Libel (the publication ofstatements known to be false that tend to damage a person’s reputation) and slander (spokendefamation) are not protected by the First Amendment, but the Court has held that statementsabout public figures are libelous only if made with malice and reckless disregard for the truth(New York Times v. Sullivan, 1964) The right to criticize the government (which theSupreme Court termed “the central meaning of the First Amendment”) is not libel or slander.Wearing an armband, burning a flag, and marching in a parade are examples of symbolicspeech: actions that do not consist of speaking or writing but that express an opinion. WhenGregory Johnson set a flag on fire at the 1984 Republican National Convention in Dallas toprotest nuclear arms buildup, the Supreme Court decided that the state law prohibiting flagdesecration violated the First Amendment (Texas v. Johnson, 1989).COMMERCIAL SPEECHCommercial speech (such as advertising) is more restricted than are expressions of opinionon religious, political, or other matters. Similarly, radio and television stations are subject tomore restrictions than the print media (justified by the fact that only a limited number ofbroadcast frequencies are available). The Federal Trade Commission (FTC) decides whatkinds of goods may be advertised on radio and television and regulates the content of suchadvertising. The FTC attempts to ensure that advertisers do no make false claims for theirproducts, but “truth” in advertising does not prevent misleading promises. Nevertheless,commercial speech on the airwaves is regulated in ways that would clearly be impossible inthe political or religious realm.The Federal Communications Commission (FCC) regulates the content, nature, and veryexistence of radio and television broadcasting. Although newspapers do not need licenses,Chapter 446radio and television stations do. The state of Florida passed a law requiring newspapers in thestate to provide space for political candidates to reply to newspaper criticisms. The SupremeCourt, without hesitation, voided this law (Miami Herald Publishing Company v. Tornillo,1974). Earlier, in Red Lion Broadcasting Company v. Federal CommunicationsCommission (1969), the Court upheld similar restrictions on radio and television stations,reasoning that such laws were justified because only a limited number of broadcastfrequencies were available.FREEDOM OF ASSEMBLYThere are two facets to freedom of assembly. The right to assemble involves the right togather together in order to make a statement, while the right to associate is the freedom toassociate with people who share a common interest. The Supreme Court has generally upheldthe right of any group—no matter how controversial or offensive—to peaceably assemble onpublic property. The balance between freedom and order is tested when protest verges onharassment.DEFENDANTS’ RIGHTSThe First Amendment guarantees the freedoms of religion, speech, press, and assembly. Mostof the remaining rights in the Bill of Rights concern the rights of people accused of crimes.These rights were originally intended to protect the accused in political arrests and trials.Today, the protections in the Fourth, Fifth, Sixth, and Eighth Amendments are primarilyapplied in criminal justice cases. Moreover, the Supreme Court’s decisions have extendedmost provisions of the Bill of Rights to the states as part of the general process ofincorporation.The Bill of Rights covers every stage of the criminal justice system. The FourthAmendment is quite specific in forbidding unreasonable searches and seizures. No courtmay issue a search warrant unless probable cause exists to believe that a crime hasoccurred or is about to occur, and warrants must describe the area to be searched and thematerial sought in the search. Since 1914, the courts have used the exclusionary rule toprevent illegally seized evidence from being introduced in federal courts. In 1961, theSupreme Court incorporated the exclusionary rule within the rights that restrict the states aswell as the federal government (Mapp v. Ohio).The Burger Court made a number of exceptions to the exclusionary rule, including the goodfaithexception (United States v. Leon, 1984). The USA Patriot Act, passed just six weeksafter the September 11, 2001, terrorist attacks, gave the government broad new powers for thewiretapping, surveillance, and investigation of terrorism suspects. The Patriot Act gave thefederal government the power to examine a terrorist suspect’s records held by third partiessuch as doctors, libraries, bookstores, universities, and Internet service providers. It alsoallowed searches of private property without probable cause and without notice to the owneruntil after the search has been executed.Under the Fifth Amendment prohibition against forced self-incrimination, suspects cannotbe compelled to provide evidence that can be used against them. The burden of proof rests onthe police and the prosecutors, not the defendant. Miranda v. Arizona (1966) set guidelinesfor police questioning of suspects, whereby suspects must be informed of their constitutionalChapter 447rights. The more conservative Rehnquist Court made some exceptions to the Miranda rulings,but the Court in Dickerson v. U.S. (2000) made clear its continued support for the Mirandaruling.Although the Sixth Amendment has always ensured the right to counsel in federal courts,this right was not incorporated to state courts until recently. In 1932, the Supreme Courtordered states to provide an attorney for indigent defendants accused of a capital crime(Powell v. Alabama), and in 1963, the Court extended the same right to everyone accused of afelony (Gideon v. Wainwright). The Court later ruled that a lawyer must be provided for theaccused whenever imprisonment could be imposed (Argersinger v. Hamlin, 1972). The SixthAmendment also ensures the right to a speedy trial and an impartial jury, but most cases aresettled through plea bargaining rather than through trial by jury. In recent times the SupremeCourt has against judicial procedures enacted by the Bush administration used against“detainees” and others accused of terrorism.The Eighth Amendment forbids cruel and unusual punishment, but it does not define thephrase. Most of the constitutional debate over cruel and unusual punishment has centered onthe death penalty. In Furman v. Georgia (1972), the Court first confronted the question ofwhether the death penalty is inherently cruel and unusual punishment. A divided Courtoverturned Georgia’s death penalty law because its imposition was “freakish” and “random”in the way it was arbitrarily applied (particularly with regard to factors such as race andincome). Thirty-five states passed new laws that were intended to be less arbitrary. In recentyears, the Court has come down more clearly on the side of the death penalty. A dividedCourt rebuffed the last major challenge to the death penalty in McCleskey v. Kemp (1987),when it refused to rule that the penalty violated the equal protection of the law guaranteed bythe Fourteenth Amendment. However, the number of death sentences issued has been sharplydeclining in the last decade due to DNA testing and public concerns about wrongfulsentences.THE RIGHT TO PRIVACYToday’s technologies raise key questions about ethics and the Constitution. Although theConstitution does not specifically mention a right to privacy, the Supreme Court has said thatit is implied by several guarantees in the Bill of Rights. Questions involving a right to privacyhave centered on such diverse issues as abortion rights, the drafting of state laws to definedeath, technological developments like in-vitro fertilization, and the right to die. Supportersof privacy rights argue that the Fourth Amendment was intended to protect privacy.Opponents claim that the Supreme Court was inventing protections not specified by theConstitution when it ruled on constitutionally protected “rights of privacy.”The Supreme Court first referred to the idea that the Constitution guarantees a right to privacyin a 1965 case involving a Connecticut law that forbade contraceptives (Griswold v.Connecticut), but the most important application of privacy rights came in the area ofabortion. Americans are deeply divided on abortion: the positions of “pro-choice” and “prolife”are irreconcilable.Justice Harry Blackmun’s majority opinion in Roe v. Wade (1973) followed the practice ofmedical authorities in dividing pregnancy into three equal trimesters. Roe forbade any statecontrol of abortions during the first trimester; permitted states to allow regulated abortions toChapter 448protect the mother’s health in the second trimester; and allowed the states to ban abortionduring the third trimester except when the mother’s life was in danger. In 1989, a clinic in St.Louis challenged the constitutionality of a Missouri law that forbade the use of state funds orstate employees to perform abortions, but the Court upheld the law in Webster v.Reproductive Health Services (1989). In 1992, the Court changed its standard for evaluatingrestrictions on abortion from one of “strict scrutiny” of any restraints on a “fundamentalright” to one of “undue burden” that permits considerably more regulation (PlannedParenthood v. Casey). In 2000, the Court held in Sternberg v. Carhart that Nebraska’sprohibition of “partial birth” abortions was unconstitutional because it placed an undueburden on women seeking an abortion by limiting their options to less safe procedures andbecause the law provided no exception for cases where the health of the mother was at risk.Beginning in 1994, the Supreme Court strengthened women’s access to health clinics, whileCongress passed the Freedom of Access to Clinic Entrances Act, which made it a federalcrime to intimidate abortion providers or women seeking abortions.UNDERSTANDING CIVIL LIBERTIESAmerican government is both democratic (because it is governed by officials elected by thepeople and answerable to them) and constitutional (because it has a fundamental organic law,the Constitution, that limits the things government can do). The democratic and constitutionalcomponents of government can produce conflicts, but they also reinforce one another. Onetask that government must perform is to resolve conflicts between rights.The rights guaranteed by the First Amendment are essential to a democracy. Likewise, therights guaranteed by the Fourth, Fifth, Sixth, and Eighth Amendments protect all Americans;but they also make it harder to punish criminals. Ultimately, it is the courts that decide whatconstitutional guarantees mean in practice: although the federal courts are the branch ofgovernment least subject to majority rule, the courts enhance democracy by protecting libertyand equality from the excesses of majority rule.CHAPTER OUTLINEI. THE BILL OF RIGHTS—THEN AND NOWA. Civil liberties are individual legal and constitutional protections against thegovernment. They are essential for democracy.1. Americans’ civil liberties are set down in the Bill of Rights, but the courts arethe arbiters of these liberties because they determine what the Constitutionmeans in the cases that they decide.a. Although the original Constitution had no bill of rights, the states made itclear that adding 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 in a period of history when British abuses ofthe colonists’ civil liberties were still a recent and bitter memory.2. Political scientists have found that people are supporters of rights in theory, buttheir support often falters when it comes time to put those rights into practice.3. Cases become particularly difficult when liberties are in conflict (such as freepress versus a fair trial or free speech versus public order) or where the facts andinterpretations are subtle and ambiguous.Chapter 449B. The Bill of Rights was written to restrict the powers of the new central government(every state constitution had its own bill of rights).1. In Barron v. Baltimore (1833), the Court ruled that the Bill of Rights restrainedonly the national government, not states and cities.2. The First Amendment prohibits Congress from passing any laws that violatefreedom of the press, of speech, of religion, and of assembly.3. Incorporation doctrine provides the rationale for the process by whichfundamental freedoms have been applied against state action throughinterpretation of the Fourteenth Amendment.a. The Fourteenth Amendment (ratified in 1868) included guarantees ofprivileges and immunities of citizens, due process of law, and equalprotection of the law, and explicitly applied these guarantees against thestates.b. It was not until 1925 that the Court relied on the Fourteenth Amendment tofind that a state government must respect some First Amendment rights(Gitlow v. New York); in Gitlow, the Court announced that freedoms ofspeech and press “were fundamental personal rights and liberties protectedby the due process clause of the Fourteenth Amendment from impairment bythe states.”c. The Supreme Court gradually applied most of the Bill of Rights to the states,particularly during the era of Chief Justice Earl Warren in the 1960s.d. At the present time, only the Second, Third, and Seventh Amendments andthe grand jury requirement of the Fifth Amendment have not been appliedspecifically to the states.4. Not everyone agrees that the Fourteenth Amendment incorporated parts of theBill of Rights into state laws; in 1985, Edwin Meese (then U.S. AttorneyGeneral) strongly criticized Gitlow and called for “disincorporation” of the Billof Rights.II. FREEDOM OF RELIGIONA. The First Amendment includes two statements about religion and government,commonly referred to as the establishment clause and the free exercise clause.B. These freedoms sometimes conflict, but establishment and free exercise casesusually raise different kinds of conflict.C. The establishment clause states that “Congress shall make no law respecting anestablishment of religion.”1. This clause clearly prohibits an establishment of a national church in the UnitedStates (a reaction to the religious persecutions that had convinced manycolonists to move to America).2. Debate still continues over what else the First Congress may have intended forthe establishment clause.a. Thomas Jefferson argued that the First Amendment created a “wall ofseparation” between church and state, which would prohibit not onlyfavoritism but any support for religion at all.b. Proponents of aid to parochial schools (known as parochiaid) argue that itdoes not favor any particular religion; opponents claim that the RomanCatholic church gets most of the aid.c. In Lemon v. Kurtzman (1971), the Supreme Court declared that aid tochurch-related schools must have a secular purpose, cannot be used toChapter 450advance or inhibit religion, and should avoid excessive government“entanglement” with religion.d. In a landmark decision in 2002, the Court in Zelman v. Simmons-Harrisupheld a program that provided some families in Cleveland, Ohio, withvouchers that could be used to pay tuition at religious schools.e. School prayer is possibly the most controversial religious issue.(1) In 1962 and 1963, the Court ruled that voluntary recitations of prayersor Bible passages, when done as part of classroom exercises in publicschools, violated the establishment clause (Engel v. Vitale and SchoolDistrict of Abington Township, Pennsylvania v. Schempp).(2) In Engel and Abington, the Court observed that “the place of religion inour society is an exalted one, but in the relationship between man andreligion, the State is firmly committed to a position of neutrality.”(3) A majority of the public has never favored the Court’s decisions onschool prayer.D. Fundamentalist Christians.1. Conservative religious groups devote much of their time and energies to theissues of school prayer and creation science.2. They lost some court battles to create a more conservative agenda, but wonothers.a. The Supreme Court rejected attempts to legalize school prayer by making itvoluntary (Wallace v. Jaffree, 1985) and to mandate the teaching ofcreation science as an alternative to Darwinian theories of evolution(Edwards v. Aguillard, 1987).b. Recent Supreme Court rulings brought some lowering of the “wall ofseparation,” as when the Court held that religious scenes could be set up onpublic property (Lynch v. Donelly, 1984 and County of Allegheny v.American Civil Liberties Union, 1992).E. The First Amendment also guarantees the free exercise of religion.1. The free exercise of religious beliefs sometimes clashes with society’s othervalues or laws, as occurred when the Amish refused to send their children topublic schools.2. The Supreme Court has consistently maintained that people have an absoluteright to believe what they want, but the courts have been more cautious about theright to practice a belief (but in Wisconsin v. Yoder, 1972, the Court did allowAmish parents to take their children out of school after the eighth grade).3. In the Religious Freedom Restoration Act of 1993, Congress attempted toovercome this ruling, but the law was found unconstitutional by the SupremeCourt in 1997 (Boerne v. Flores).III. FREEDOM OF EXPRESSIONA. Does “no law” in the First Amendment really mean “no law”? The courts havefrequently wrestled with the question of whether freedom of expression (likefreedom of conscience) is an absolute.1. Supreme Court Justice Hugo Black believed that the words no law literallymeant that Congress shall make no laws abridging the fundamental rights of theFirst Amendment.a. The courts have often ruled that there are instances when speech needs to becontrolled, especially when the First Amendment conflicts with other rightsChapter 451(as when Justice Oliver Wendell Holmes wrote in 1919 that “the moststringent protection of free speech would not protect a man in falselyshouting ‘fire’ in a theater and causing a panic”).b. In their attempts to draw the line separating permissible from impermissiblespeech, judges have had to balance freedom of expression against competingvalues like public order, national security, and the right to a fair trial.2. The courts have also had to decide what kinds of activities constitute speech (orpress) within the meaning of the First Amendment.a. Certain forms of nonverbal communication (like picketing) are consideredsymbolic speech, 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(Near v. Minnesota, 1931), although the writer or speaker could be punished forviolating a law or someone’s rights after publication.2. There are exceptions to the general doctrine that prohibits prior restraint. Also,many argue that government should sometimes limit individual behavior on thegrounds of national security.C. Free speech and public order.1. War often brings government efforts to enforce censorship.a. In Schenck v. United States (1919), Justice Oliver Wendell Holmes declaredthat government can limit speech if it provokes a clear and present dangerof “substantive evils that Congress has a right to prevent.”b. The Smith Act of 1940 forbade the advocacy of violent overthrow of theAmerican government.c. Free speech advocates did little to stem the relentless persecution known asMcCarthyism during the “cold war” of the 1950s, when Senator JosephMcCarthy’s unproven accusations that many public officials wereCommunists created an atmosphere in which broad restrictions were placedon freedom of expression.d. By the 1960s, the political climate had changed and the Court narrowed theinterpretation of the Smith Act so that the government could no longer use itto prosecute dissenters.2. Today, courts are very supportive of the right to protest, pass out leaflets, orgather signatures on petitions (as long as it is done in public places) but notsupportive of inciting others to imminent lawless action.D. Free press versus free trial.1. The Bill of Rights is a source of potential conflicts between different types offreedoms: the Constitution clearly meant to guarantee the right to a fair trial aswell as the right to a free press, but a trial may not be fair if pretrial presscoverage makes it impossible to select an impartial jury.2. Journalists seek full freedom to cover all trials: they argue that the public has aright to know.a. Although reporters want trials to be open to them, they sometimes defendtheir right to keep some of their own files secret in order to protect aconfidential source.b. A few states have passed shield laws to protect reporters in situations wherethey need to protect a confidential source; but in most states, reporters haveno more rights than other citizens once a case has come to trial.Chapter 452c. The Supreme Court has ruled that (in the absence of shield laws) the right toa fair trial preempts the reporter’s right to protect sources (Branzburg v.Hayes, 1972) and has sustained the right of police to obtain a search warrantto search the files of a student newspaper (Zurcher v. Stanford Daily, 1976).E. Efforts to define obscenity have perplexed the courts for years.1. Public standards vary from time to time, place to place, and person to person.2. Work that some call “obscene” may be “art” to others.3. No nationwide consensus exists that offensive material should be banned.4. The newest issue in the obscenity controversy involves the claim of somewomen’s groups that pornography degrades and dehumanizes women.5. The courts have consistently ruled that states may protect children fromobscenity (Osborne v. Ohio, 1991); adults often have legal access to the samematerial.6. Although the Supreme Court has held that “obscenity is not within the area ofconstitutionally protected speech or press” (Roth v. United States, 1957), it hasproven difficult to determine just what is obscene.7. In Miller v. California (1973), the Court tried to clarify what could be classifiedas obscene, and therefore outside First Amendment protection.a. Chief Justice Warren Burger wrote that materials were obscene if the work,taken as a whole, appealed to a “prurient interest” in sex; and if it showed“patently offensive sexual contact”; and if it “lacked serious artistic,literary, political, or scientific merit.”b. In Miller, the Court also ruled that decisions should be made to reflect thestandards of local (not national) communities.c. In 2002, the Supreme Court overturned a law banning virtual childpornography, suggesting that the Court views the Internet similarly to printmedia, with similar protections against government regulation.F. Libel (the publication of statements known to be false that tend to damage a person’sreputation) and slander (spoken defamation) are not protected by the FirstAmendment.1. Libel and slander involve freedom of expression issues that involve competingvalues.a. If public debate is not free, there can be no democracy.b. Conversely, some reputations will be unfairly damaged in the process.2. The Court has held that statements about public figures are libelous only ifmade with malice and reckless disregard for the truth (New York Times v.Sullivan, 1964).a. The right to criticize the government (which the Supreme Court termed “thecentral meaning of the First Amendment”) is not libel or slander.b. In 1984, General William Westmoreland dropped his suit against CBS inreturn for a mild apology; he realized that it would be impossible to provethat the network had been intentionally malicious, even though he was ableto show that CBS had knowingly made factual errors.3. Private persons only need to show that statements about them were defamatoryfalsehoods and that the author was negligent.G. Symbolic speech refers to actions that do not consist of speaking or writing but thatexpress an opinion.1. Broadly interpreted, freedom of speech is a guarantee of freedom of expression.Chapter 4532. The doctrine of symbolic speech is not precise: burning a flag is protectedspeech, but burning a draft card is not (Texas v. Johnson, 1989, and U.S. v.O’Brien, 1968).IV. COMMERCIAL SPEECHA. Commercial speech (such as advertising) is more restricted than are expressions ofopinion on religious, political, or other matters.B. The Federal Trade Commission (FTC) decides what kinds of materials may beadvertised on radio and television, and regulates the content of advertising.1. Although commercial speech is regulated more rigidly than the other types ofspeech, the courts have been broadening its protection under the Constitution; inrecent years, the courts have struck down many restrictions (including restraintsagainst advertising for professional services and for certain products such ascondoms) as violations of freedom of speech.C. Radio and television stations are subject to more restrictions than the print media(justified by the fact that only a limited number of broadcast frequencies areavailable).1. The Federal Communications Commission (FCC) regulates the content andnature (and the very existence) of radio and television broadcasting.2. A licensed station must comply with regulations that include provisions for acertain percentage of broadcast time for public service, news, children’sprogramming, political candidates, or views other than those its owners support.3. In 2000 in United States v. Playboy Entertainment Group, the Supreme Courtagreed that although government had a legitimate right to regulate sexuallyoriented programming, any such regulation must be narrowly tailored to promotea compelling government interest.IV. FREEDOM OF ASSEMBLYA. Freedom of assembly provides the constitutional basis for forming interest groupsand political parties, for picketing and protesting in groups.B. Two facets of the freedom of assembly.1. Right to assemble - the right to gather together in order to make a statement.a. Within reasonable limits (called time, place, and manner restrictions),freedom of assembly includes the rights to parade, picket, and protest.b. The Supreme Court has generally upheld the right of any group—no matterhow controversial or offensive—to peaceably assemble on public property.c. The balance between freedom and order is tested when protest verges onharassment (as illustrated by the dispute over protesters lined up outsideabortion clinics).2. Right to associate - freedom to associate with people who share a commoninterest.a. The right to associate includes the right to meet with people who want tocreate political change.b. In 1958, the Court found Alabama’s attempt to require the NAACP to turnover its membership list to be an unconstitutional restriction of freedom ofassociation (NAACP v. Alabama).Chapter 454V. DEFENDANTS’ RIGHTSA. Interpreting defendants’ rights.1. The First Amendment guarantees the freedoms of religion, speech, press, andassembly.2. Most of the remaining rights in the Bill of Rights concern the rights of peopleaccused of crimes.a. These rights were originally intended to protect the accused in politicalarrests and trials.b. Today, the protections in the Fourth, Fifth, Sixth, and Eighth Amendmentsare primarily applied in criminal justice cases.3. The language of the Bill of Rights is vague, and defendants’ rights are not welldefined.4. The Supreme Court’s decisions have extended most provisions of the Bill ofRights to the states as part of the general process of incorporation.B. The Fourth Amendment is quite specific in forbidding unreasonable searches andseizures.1. No court may issue a search warrant unless probable cause exists to believethat a crime has occurred or is about to occur.2. Warrants must specify the area to be searched and the material sought in thesearch.3. Since 1914, the courts have used the exclusionary rule to prevent illegallyseized evidence from being introduced in the courtroom.a. In Mapp v. Ohio (1961), the Supreme Court incorporated the exclusionaryrule within the rights that restrict the states as well as the federalgovernment.b. Critics of the exclusionary rule argue that its strict application may permitguilty persons to go free because of police carelessness or innocent errors (or“technicalities”).c. Supporters of the exclusionary rule respond that the Constitution is not atechnicality; defendants’ rights protect the accused in a system wherebyeveryone is presumed to be innocent until proven guilty.d. The Burger Court made some exceptions to the exclusionaryrule.e. Warrantless searches are valid if probable cause exists, if the search isnecessary to protect an officer’s safety, or if the search is limited to materialrelevant to the suspected crime or within the suspect’s immediate control.C. The Fifth Amendment prohibits forced self-incrimination.1. Suspects cannot be compelled to provide evidence that can be used against them.a. The burden of proof rests on the police and the prosecutors, not thedefendant.b. This right applies to congressional hearings and police stations, as well as tocourtrooms.c. Suspects must testify if the government guarantees immunity fromprosecution.2. Miranda v. Arizona (1966) set guidelines for police questioning of suspects.a. Suspects must be informed of their constitutional right to remain silent.b. Suspects must be warned that what they say can be used against them in acourt of law.Chapter 455c. Suspects must be told that they have a right to have a lawyer present duringquestioning, and that a lawyer will be provided if the accused cannot affordone.3. The more conservative Supreme Court under Chief Justice Burger did notweaken the Miranda rulings, but the Rehnquist Court did begin to makeexceptions: in 1991, the Court held that a coerced confession is “harmlesserror” if other evidence is sufficient for conviction (Arizona v. Fulminante).4. If law enforcement officials encourage persons to commit crimes (such asaccepting bribes or purchasing illicit drugs) that they otherwise would notcommit, convictions for these crimes will be overturned by the courts.D. Although the Sixth Amendment has always ensured the right to counsel in federalcourts, this right was not extended (incorporated) to state courts until recently.1. In 1932, the Supreme Court ordered states to provide an attorney for indigentdefendants accused of a capital crime (Powell v. Alabama).2. In 1963, the Court extended the same right to everyone accused of a felony(Gideon v. Wainwright, which was heard by the Court only after ClarenceGideon wrote a pauper’s petition with the help of the prison’s law books).3. The Court later ruled that a lawyer must be provided for the accused wheneverimprisonment could be imposed (Argersinger v. Hamlin, 1972).E. The Sixth Amendment also ensures the right to a speedy trial and an impartialjury.1. Most cases (90 percent) are settled through plea bargaining rather than throughtrial by jury.a. In plea bargaining, an agreement is made between a defendant’s lawyer anda prosecutor to the effect that a defendant will plead guilty to a lesser crimeor to fewer crimes and often results in greatly reduced punishment.b. Critics believe that plea bargaining permits many criminals to avoiddeserved punishment; however, it also saves the state time and money.2. The Constitution does not specify the size of a jury; tradition has set jury size at12, but six jurors are sometimes used in petty cases.3. Juries traditionally had to be unanimous in order to convict, but the BurgerCourt permitted states to use fewer than 12 jurors and to convict with less than aunanimous vote. Federal courts still employ juries of 12 persons and requireunanimous votes for a criminal conviction.F. The Eighth Amendment forbids cruel and unusual punishment, but it does notdefine the phrase.1. Most of the constitutional debate over cruel and unusual punishment hascentered on the death penalty.a. Witherspoon v. Illinois (1968) - overturned a death sentence becauseopponents of the death penalty had been excluded from the jury atsentencing.b. Furman v. Georgia (1972) - overturned Georgia’s death penalty lawbecause its imposition was “freakish” and “random” in the way it wasarbitrarily applied (particularly with regard to factors such as race andincome).c. Woodson v. North Carolina (1976) - ruled against mandatory deathpenalties.d. Gregg v. Georgia (1976) - found that the death penalty is “an extremesanction, suitable to the most extreme of crimes.”Chapter 456e. McCleskey v. Kemp (1987) – upheld the constitutionality of the deathpenalty against charges that it violated the Fourteenth Amendment becauseminority defendants were more likely to receive the death penalty than wereWhite defendants.2. The Supreme Court has recently held that it was constitutionally acceptable toexecute 16- or 17-year-olds or mentally retarded persons; has made it moredifficult for death row inmates to force legal delays through habeas corpuspetitions; and has allowed “victim impact” statements detailing the character ofmurder victims and their families’ suffering to be used against a defendant.3. In 2002, however, the Court prohibited executing mentally retarded persons andrequired that a jury, not just a judge, find an aggravating circumstance necessaryfor imposition of the death penalty.4. Death sentences are in steep decline today due to DNA testing and publicconcerns over wrongful sentences.VI. THE RIGHT TO PRIVACYA. Today’s technologies raise key questions about ethics and the Constitution.1. Although the Constitution does not specifically mention a right to privacy, theSupreme Court has said that it is implied by several guarantees in the Bill ofRights.2. In 1928, Justice Brandeis called privacy “the right to be left alone.”3. Questions involving a right to privacy have centered on such diverse issues asabortion rights; the drafting of state laws to define death; technologicaldevelopments like in-vitro fertilization, frozen embryos, and artificialinsemination; and even the right to die (a patient’s right to refuse treatment, orthe right of families of a guardian to exercise the patient’s right when a patient isno longer able to communicate).B. The Supreme Court first referred to the idea that the constitution guarantees a right toprivacy in a 1965 case involving a Connecticut law that forbade contraceptives.1. In Griswold v. Connecticut, the Court found that various portions of the Bill ofRights cast “penumbras”—unstated liberties implied by the explicitly statedrights—that protected a right to privacy.2. Supporters of privacy rights argued that the Fourth Amendment was intended toprotect privacy.3. Critics of the ruling claimed that the Supreme Court was inventing protectionsnot specified by the Constitution.C. The most important application of privacy rights came in the area of abortion.1. Americans are deeply divided on abortion: the positions of “pro-choice” and“pro-life” are irreconcilable (making abortion a politician’s nightmare).2. Supreme Court Justice Harry Blackmun’s opinion in Roe v. Wade (1973)followed that of medical authorities in dividing pregnancy into three equaltrimesters.3. Roe forbade any state control of abortions during the first trimester, permittedstates to allow regulated abortions to protect the mother’s health in the secondtrimester, and allowed the states to ban abortion during the third trimester exceptwhen the mother’s life was in danger.4. Roe caused a furor that has never subsided, and numerous state and federalregulations were passed, which prohibited the use of funds for abortions.Chapter 457a. A clinic in St. Louis challenged the constitutionality of a Missouri law thatforbade the use of state funds or state employees to perform abortions, butthe Court upheld the law in Webster v. Reproductive Health Services(1989).b. The Court has also upheld laws requiring minors to obtain the permission ofone or both parents or a judge before obtaining an abortion; and in Rust v.Sullivan (1991), the Court upheld a Department of Health and HumanServices ruling that provided that family planning services that receivedfederal funds could not provide women with any counseling regardingabortions. (President Clinton lifted the ban on abortion counseling on histhird day in office.)5. In 1992, the Court changed its standard for evaluating restrictions on abortionfrom one of “strict scrutiny” of any restraints on a “fundamental right” to one of“undue burden” that permits considerably more regulation (Planned Parenthoodv. Casey).6. In 1997, the Court also upheld a 15-foot buffer zone. In another case, the Courtdecided that abortion clinics can invoke the federal racketeering law to sueviolent anti-abortion protest groups for damages.7. In 2000, the Court held in Sternberg v. Carhart that Nebraska’s prohibition of“partial birth” abortions was unconstitutional because it placed an undue burdenon women seeking an abortion by limiting their options to less safe proceduresand because the law provided no exception for cases where the health of themother was at risk.VII. UNDERSTANDING CIVIL LIBERTIESA. American government is both democratic (because it is governed by officials electedby the people and answerable to them) and constitutional (because it has afundamental organic law, the Constitution, that limits the things government can do).B. The democratic and constitutional components of government can produce conflicts,but they also reinforce one another.C. Civil liberties and democracy.1. Individual rights may conflict with other values.a. The rights guaranteed by the First Amendment are essential to a democracy.b. Individual participation and the expression of ideas are crucial componentsof democracy, but so is majority rule, which can conflict with individualrights.c. The rights guaranteed by the Fourth, Fifth, Sixth, and Eighth Amendmentsprotect all Americans, but they also make it harder to punish criminals.2. Ultimately, the courts decide what constitutional guarantees mean in practice:although the federal courts are the branch of government least subject tomajority rule, the courts enhance democracy by protecting liberty and equalityfrom the excesses of majority rule.D. Civil liberties and the scope of government.1. Today’s government is huge and commands vast, powerful technologies.2. Since Americans can no longer avoid the attention of government, strictlimitations on governmental power are essential—limitations that are providedby the Bill of Rights.Chapter 4583. In general, civil liberties limit the scope of government. However, in someinstances, such as protecting the right to abortion, an expansion of freedom mayrequire simultaneous expansion of government to protect those freedoms. ................
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