AP Government Review - Civil Liberties

Civil Liberties

• Civil liberties are protections of individuals/groups against the government.
• Civil liberties are not absolute; there are limitations.
  • Balance between protecting public order and individual freedom.
• The Bill of Rights was added to the Constitution to appease concerns of Anti-Federalists.
  • The first 10 Amendments to the Constitutions.
• Originally, the Bill of Rights applied strictly to the relationship with the federal government.
  • The 1st Amendment says, “Congress shall make no law…”
• Process of incorporation: most of the Bill of Rights applies to citizens’ relationship with state & local government.

The Bill of Rights & The States

• Barron v. Baltimore (1833): Bill of Rights applied ONLY to the federal government
• Gitlow v. New York (1925): due process clause of the 14th Amendment meant states could not violate freedom of speech.
  • Incorporation doctrine: application of some rights to state government

Freedom of Religion

• 1st Amendment contains two parts protecting religion.
  • Part 1) The Establishment Clause:
    • Can’t make an official religion.
    • Favor one religion over another.
  • Part 2) The Free Exercise Clause: prohibits the denial of a citizens’ freedom to worship (or NOT to worship) as they want.
• Debate continues over the interpretation of these two clauses.
• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

Establishment Clause

• Conflicting interpretations of the Establishment Clause.
• Examples:
  • Should prayer be allowed in public school?
    • Engel v. Vitale: a public school cannot sponsor prayer- unconstitutional.
    • Students may pray in school, but it can’t be led by a school employee.
    • Equal Access Act (1984): students must be allowed to use school grounds for religious worship if they allow other groups to host meetings
  • Can religious symbols be posted on government property?
    • Banned if displayed to put forward religion
    • Allowed if they serve a legitimate historic purpose.
  • What about holiday decorations such a menorahs and nativity scenes?
    • Inconsistent rulings
• “Wall of separation”

Establishment Clause (cont.)

• Can a state prohibit the teaching of evolution in public schools?
  • Butler Act in Tenn. - Scopes Trial
  • 1968 SC said states can’t ban teaching of evolution or require teaching creationism.
  • Rebranding- “intelligent design”
• Are religious schools eligible for government aid?
  • Lemon v. Kurtzman (1971) : issue of fed $ to parochial schools
  • Court ruled yes, but with some conditions (Lemon Test);
    • Aid must have a secular legislative purpose
    • Primary effect of aid must neither advance nor inhibit religion
    • Must not foster excessive gov’t “entanglement” with religion
  • Zelman v. Simmons-Harris (2002): ruled vouchers could be used to pay tuition at religious schools

Free Exercise Clause

• Conflicting interpretations of Free Exercise Clause.
• What happens when a religious practice violates norms and laws in society?
• Wisconsin v. Yoder (1972): forcing Amish students to attend school past 8th grade violates the free exercise clause.
• Strict scrutiny: to restrict religious practices the state must show a compelling state interest in restricting the activity
  • Must be narrowly tailored

Freedom of Expression

• “Congress shall make no law… or abridging the freedom of speech”
• The Courts have defined certain types of speech as not having Constitutional protection
• Prior restraint is basically censorship by the gov’t
  • Stop publication of material in advance
  • Near v. Minnesota (1931): SC ruled prior restraint unconstitutional
  • New York Times Co. v. United States (1971): established a “heavy presumption against prior restraint” even in cases involving national security
  • Exceptions: public school newspapers and exceptions for national security

Free Speech & Public Order

• Free speech
• Supreme Court has restricted speech during times of war or national security threats
• Schenck v. U.S. (1919) speech could be restricted if it poses a “clear & present danger”
• Smith Act: forbid advocating the violent overthrow of the gov’t
• Evolution of restrictions on freedom of speech
• Brandenburg v. Ohio (1969): established the “imminent lawless violence” standard
  • Gov’t cant punish inflammatory speech

Free Speech & Obscenity

• Obscene: offensive or disgusting by accepted standards of morality or decency
• Roth v. United States (1957) obscene material is not always constitutionally protected
• Challenge: What is obscene?
• Miller v. California (1973): Supreme Court sought to clarify obscenity standards
• Materials are obscene if:
  • Lacked “serious literary, artistic, political, or scientific value”
  • Showed “patently offensive” sexual conduct
  • Appealed to a “prurient interest”
• Obscene materials lack constitutional protection, but most Americans do not want all obscene materials to be banned to consenting adults
  • Regulation of adult content, video games, music, etc.

Free Speech: Libel & Slander

• Malicious false statements that hurt individuals reputation are NOT protected speech
  • Libel: written defamation
  • Slander: spoken defamation
• Both can be prosecuted, but standards for conviction are high.
• New York Times v. Sullivan: comments about public figures are only libelous if the person knew they were untrue and had malicious intent to harm the person

Free Speech: Symbolic Speech

• Symbolic speech is an action that expresses an opinion
• Supreme Court has ruled that symbolic speech is protected by the 1st amendment
  • Tinker v. Des Moines Independent School District (1969): Wearing an armband to protest the Vietnam War
  • Texas v. Johnson (1989): Burning the U.S. flag
• Symbolic speech is NOT absolute:
  • Can’t burn draft cards
  • Threats

Free Speech: Other Areas

• Commercial speech is regulated by the Federal Trade Commission (FTC)
  • Cant make false claim
  • Prohibits advertising of items such as cigarettes
  • Restrictions of bad words on public airwaves
• Federal Communications Commission (FCC): regulates radio, TV, cable, & other media broadcasts
• Citizens United v. Federal Election Commission (2010):

Freedom of Assembly

• Right of citizens to gather together to make a statement
  • Forms: protest, picket, parade
• Not absolute:
  • Permit needed
  • time, place, manner restrictions
  • Must stay on public property
  • Local gov’t cant discriminate against a group because of their views
• Right to associate with similarly minded people is protected
  • NAACP v. Alabama (1958): Alabama could not require NAACP to turn over its membership lists

Second Amendment

• “The rights to bear arms” remains one of the most debated constitutional rights
  • Right of states to create militias vs individual right to bear arms.
• District of Columbia v. Heller (2008): right to bear arms isn’t connected to service in a militia
  • Laws that restrict a citizens ability to use a gun for self- defense are unconstitutional
• McDonald v. Chicago (2010): 2nd amendment is applicable to the states through the 14th amendment

Rights of the Accused

• Individuals accused of a crime in the U.S. have a wide variety of constitutional protections
  • Protection for the rights of the accused at every stage
• Various interpretations of these rights:
  • “cruel and unusual punishment”

4th Amendment

• 4th Amendment provides protection against unreasonable searches and seizures-
  • Need a warrant
  • To obtain a warrant must have probable cause: a good reason to suspect person is guilty
  • Exclusionary rule: illegally obtained evidence cannot be used by the prosecution
  • Mapp v. Ohio (1961): evidence seized illegally, without a warrant may not be used
• Courts have made lots of exceptions for the need of a warrant
  • Example: somebody is injured inside a home
  • Debate: “technicality”, too easy on criminals

5th & 6th Amendments

• 5th Amendment: protects against self incrimination & burden of proof on prosecution
  • Cannot be forced to testify against yourself
  • Innocent until proven guilty
  • “due process of law”
• Miranda v. Arizona (1966): ruled that the police must inform a accused person of their rights
  • Right to remain silent, what you say can be used against you, right to attorney during questioning, right to attorney provided if cannot afford one
• 6th Amendment:
  • Right to speedy and public trial
  • Right to a impartial jury trial
  • Right to be informed of all charges
  • Right to confront accusers in court
  • Right to producing supporting evidence and witnesses
  • Right to legal counsel (an attorney)
• Gideon v. Wainwright (1963): states must provide an attorney for indigent or poor
• Cannot be held indefinitely without charge (habeas corpus)

Patriot Act & 8th Amendment

• Patriot Act (2001) gave the government new power of surveillance to stop potential terrorist attacks
  • No warrant needed: wiretap, searching library records, etc.
• Guantanamo Bay Naval Base: U.S. naval base where prisoners are being held
• 6th amendment “right to a speedy trial”
• 8th Amendment: forbids cruel and unusual punishment
  • Cruel & unusual punishment not defined
• Gregg v. Georgia (1976): death penalty / capital punishment NOT cruel and unusual punishment
  • Exceptions:
    • Juveniles
    • Mentally ill
    • Mentally retarded

Right to Privacy

• No explicit mention of the right to privacy in the Constitution or Bill of Rights
  • Inferred from other constitutional rights
• Griswold v. Connecticut (1965): court ruled that the right to privacy is implied
• Roe v. Wade (1973): the right to privacy protects a woman’s decision to end a pregnancy
  • Not an absolute right
  • Recognized state interests in potential life and maternal health
• Planned Parenthood v. Casey (1992): restrictions on abortion were unconstitutional only if they placed an “undue burden” on a woman seeking an abortion

Civil Liberties & Democracy

• The Constitution stops the democratic majority from trying to curtail the civil liberties of minorities
• 1st Amendment freedoms of speech, press, and assembly are core aspects of a democratic society
• “Provisions of the Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals”