AP Gov CH 5 Civil Liberties

Civil liberties are the individual freedoms guaranteed in the Bill of Rights-mostly about protecting citizens from too much gov’t control. Addressed in 1 st 10 Amends., but not always clearly defined. Rarely absolute, open to interpretation. The Bill of Rights-Then & Now -protects freedoms at a nat’l level, but not necessarily guaranteed in some state const. -Barron v Baltimore (1833), Sup. Ct ruled that B. of R. didn’t protect individuals ag. state gov’ts. -Gitlow v New York (1925), Ct. reversed citing due process clause of 14 th Amend as reason to protect individuals’ free speech & free press rights, found in 1 st Amend. ag. state gov’t incursions. -Gitlow began tradition called selective incorporation doctrine. Sup. Ct. has gradually ruled on cases by case basis ensured protection of most freedoms in B. of R. from state infringement by means of due process clause. Didn’t incorporate every freedom. Not “total” but “selective”. Freedom of Religion Establishment Clause: in 1 st Amend, prohibiting Congress from making any laws establishing any religion in conjunction w/ gov’t. -Some interpret clause loosely: gov’t shouldn’t favor 1 religion over another in its policies. Others (T. Jefferson) say it endorses the separation of church and state

-Est. cl is at center of debate over prayer in school & over federal funding to private religious schools -Lemon v Kurtzman (1971): Sup. Ct. allowed fed. funding of parochial schools, provided that the $ neither advances not inhibits religious teaching, but instead is used for administrative purposes. In 2002, Sup. Ct also permitted state vouchers to be used for parochial schools in Zelman v Simmons-Harris. -Engel v Vitale (1962) & School District of Abington Township, PA v Schempp (1963): forbade practice of prayer in school as a violation of the establishment clause & breaching of church & state. -Fed. funds may be used to construct school buildings & to provide administrative & academic supplies, but not to endorse religious teaching -Student religious groups can’t be denied access to school buildings for the purpose of meeting or worship if other groups are allowed access Free Exercise Clause: 1 st Amend. right that guarantees freedom to practice or not any religion -Court has upheld that the gov’t can’t infringe on people’s beliefs, but it can regulate religious behavior to some degree -State laws can ban religious practices that conflict with other laws, but can’t forbid religious worship itself Freedom of Expression Speech:

-Courts grapple with definition. Political protests and picketing are protected by 1 st Amend., but libel, slander, & obscenity aren’t -Fraud & incitement to violence are considered action, not speech, & aren’t protected -Const. forbids prior restraint, or gov’t censorship of the press. This policy strengthened by case of Near v Minnesota (1931) – Court ruled in favor of the press -Prior restraint is granted in situations where nat’l security might be compromised -Schenck v U.S. (1919) freedom of speech may be curtailed when it threatens public order -acts of symbolic speech, like protesting & flag burning (Texas v Johnson, 1989) protected under 1 st Amend. -commercial speech like advertising more closely regulated by the Federal Trade Commission -Commercial speech on radio & TV regulated by Federal Communications Commission. Broadcast media have significantly less freedom than print (Red Lion Broadcasting Co. v FCC 1969) though not required to print replies from candidates they criticized (Miami Herald Publishing Co. v Tornillo 1974) The Press _Freedom of press can conflict w/ right to fair trial, but press does have right to report on any criminal proceeding, & all trials must be open to public. But in Branzburg v Hayes (1972) Court ruled in favor of fair trial

over reporter’s right to protect sources & in Zucher v Stanford (1978) Court sided w/ police over press -Roth v U.S. (1957) Court said that obscenity not protected under 1 st Amend., but definition of obscenity controversial -Miller v California (1973) allowed community standards, varying in different parts of country to be used in determining if material is obscene -Cases of libel usually hard to win cuz public figures must prove insults were intentionally malicious, New York Times v Sullivan (1964) (Libel-written, slander-spoken) Assembly -Freedom of assembly includes right to protest, picket or hold demonstration w/in reasonable limits called “time, place, & manner restrictions” & with virtually no limitations on content of group’s message -NAACP v Alabama (1958) court held that right to establish groups of people w/ similar political interests, from pol. Parties to KKK was also protected under assembly Right to Bear Arms -right to keep & bear arms protected by 2 nd Amend., but rarely been subject of Sup. Ct. review. States generally had wide latitude in restricting firearms as 2 nd Amend. hasn’t been incorporated -District of Columbia v Heller (2008) Court ruled that 2 nd Amend. did protect an individual’s right to possess firearm unconnected w/ service

in militia, & to use that firearm for traditionally lawful purposes like self-defense w/in home. Extended to state & local laws (DC governed by Congress) in McDonald v Chicago (2010) Defendants’ Rights Courts continually interpret vague language of Const. to apply to today’s issues -Searches & Seizures: 4 th Amend protects citizens from unreasonable searches & seizures

• Police investigators can’t search private property w/out serch warrant   issued by court unless there is reason to believe that the evidence will   disappear or be destroyed or removed   -Police can’t arrest someone unless there is probable cause to believe   he is guilty   -Exclusionary rule prevents prosecutors from using evidence acquired   through unreasonable search & seizure. Mapp v Ohio (1961) extended   rule to sates as well as federal cases   -recently court has made exceptions to ex. Rule. EX: when police are   thought to have acted in “good faith” even if actions technically violate   rule, court has allowed use of seized evidence   -USA Patriot Act (2001) & 2008 revisions to Foreign Intelligence   Surveillance Act following revelations about warrantless eavesdropping   by fed. agencies expanded gov’ts right to investigate terrorism suspects   w/out warrants.

-Self-incrimination: 5 th Amend. protects people from being forced to supply evidence ag. themselves -Cuz person innocent til proven guilty, prosecution responsible for proving defendant’s guilt -Miranda v Arizona (1966): established that suspects must be informed of their const. rights before they are questioned by police -right to counsel: 6 th Amend. guarantees all accused persons tried in fed. court have right to represented by attorney -Gideon v Wainwright (1963): extends this to cases tried in state courts -Most cases settled by plea bargaining between lawyers instead of trial -6 th Amend. requires trial by jury of 12 in fed. cases; in state cases this # may be fewer & conviction doesn’t require unanimous vote -Cruel & unusual punishment prohibited by 8 th Amend but term not clearly defined in B. of R. -Gregg v Georgia (1976) & McCleskey v Kemp (1978) Court confirmed that death penalty doesn’t violate B. of R. (not cruel/unusual) -Sup. CT has placed increasing # of restrictions on who can be executed (mentally ill-Ford v Wainwright), (mentally retarded-Atkins v Virginia) & (under 18-Roper v Simmons) & (crimes where victim not killed-Kennedy v Lousiana) -Court also required jury not just judge find aggravating circumstance necessary for imposition of death penalty (Ring v Arizona) & lawyers for defendants in death penalty cases make reasonable efforts to fight for clients at sentencing phase (Rompilla v Beard)

-Debate over death penalty continues. DNA can prove innocence of inmates on death row leading some states to declare moratoria on executions. # of executions declining Right to Privacy Right not specifically guaranteed by B. of R. but Sup. Ct. has interpreted B of R to imply this right -Griswold v Connecticut asserted right to privacy. Became more controversial when applied in Roe v Wade to forbid states from controlling abortions during 1 st trimester =Webster v Reproductive Health Services (1989) Court upheld Missouri law that prevented use of state funds for abortion clinics & that prohibited state employees from performing abortions -Sup. Ct. while allowing abortions has increasingly permitted regulation of them (Planned Parenthood v Casey) -Medical technology also causes debate over right to privacy in cases of surrogate parenthood & physician-assisted suicide