Chapter 3: Civil Liberties 1

CHAPTER 3

Civil Liberties

Chapter Focus

This chapter surveys a number of pressure points that have developed in the American political system regarding the liberties of individuals and the government’s involvement in protecting or restricting those liberties.

1.Discuss how the government protects and restricts personal liberties.

2.Explain how the structure of the federal system affects the application of the Bill of Rights. How has the Supreme Court used the Fourteenth Amendment to expand coverage in the federal system? Describe the incorporation doctrine and indicate how the Court has applied it. Also, discuss the importance of the due process clause.

3.Explain the reason behind the Supreme Court’s protective attitude toward freedom of expression. Identify and define several exceptions to free expression and several court-devised doctrines that protect free expression.

4.Compare the free exercise and establishment clauses in terms of religious freedom.

5.Discuss the significance or Miranda v. Arizonaand how that case illustrates the due process principle.

Study Outline

I.Civil Liberties (see the “Liberties in the Constitution” box)

A.Definition of civil liberties

1.Freedom of expression

2.Freedom from arbitrary arrest

B.Bill of Rights and incorporation

1.Originally planned to protect citizens only from federal government

2.Fourteenth Amendment applied through due process and equal protection

3.Incorporation applied Bill of Rights to states through Fourteenth Amendment

C.Numbers of lawsuits indicate continuing commitment to, and preoccupation with, rights

D.Few rights are absolute, most are in conflict

II.Freedom of Expression

A.Courts have continued to broaden the area of free expression

B.Burden of proof placed on government (six doctrines)

C.Exceptions to protection of First Amendment

1.Libel, except of public citizens

2.Illegal actions with political or social messages

3.“Fighting words”—Nazis in Skokie, Illinois

4.Obscenity

D.Definition of “people” for First Amendment purposes

E.Campaign finance reform law

III.Church and State

A.“Free exercise” clause

1.Relatively clear meaning: no state interference

a)Law may not impose special burdens on religion

b)But no religious exemptions from laws binding all

c)Some cases difficult to settle

(1)Conscientious objection to war, military service; what is “religion”?

(2)Refusal to work Saturdays; unemployment compensation

(3)Refusal to send children to school beyond eighth grade: when is religion exempt?

B.The establishment clause (see the “Landmark Cases: Religious Freedoms” box)

1.Jefferson’s view: “wall of separation”

2.Congress at the time: simply “no national religion”

3.Ambiguous phrasing of establishment clause

4.Supreme Court interpretation: “wall of separation”

a)1947 New Jersey case: busing is religiously neutral

b)Later struck down school prayer, “creationism,” in-school “released time”

c)But allowed some kinds of aid to parochial schools

d)School vouchers

e)Three-part test for constitutional aid

(1)Secular purpose

(2)Neither advances nor inhibits religion in impact

(3)No excessive government entanglement with religion

f)Recent departures: Nativity scenes

g)Ten Commandments

h)Public schools-“creationism”, evolution and “intelligent design”.

IV.Crime and Due Process

A.The exclusionary rule

1.Most nations punish police misconduct apart from the criminal trial

2.United States punishes it by excluding improperly obtained evidence

3.Supreme Court rulings: based on Fourth and Fifth Amendments

a)1949: declined to use exclusionary rule against states

b)1961: changed, adopted it in Mapp case

4.Reasons for exclusionary rule

a)Deter police from using illegal means

b)Not convicted on tainted evidence

B.Search and seizure

1.When can “reasonable” searches of individuals be made?

a)With a properly obtained search warrant with probable cause

b)Incident to an arrest

2.What can police search incident to an arrest?

a)The individual being arrested

b)Things in plain view

c)Things under the immediate control of the individual

3.Purpose of law: protect places where there is “reasonable expectation of privacy”

a)One’s body

b)One’s house but not one’s motor home

c)Private employer has more freedom to search than government

C.Confessions and self-incrimination

1.Constitutional ban originally against torture and involuntary confessions

2.Extension of rights in 1960s

a)Escobedo

b)Miranda case: “Miranda rules” (see the “Miranda Rules” box)

D.Relaxing the exclusionary rule

1.Positions taken on the rule

a)Any evidence should be admissible; police misconduct open to suit

b)Rule too technical to work

c)Rule a vital safeguard

2.Court adopts second position through good faith and public safety exceptions

E.Terrorism and Civil Liberties

1.Increased federal powers to investigate terrorists enacted by Congress in 2001

2.Military tribunals can be used to try non-citizens suspected of terrorism

3.Criticized by civil liberties organizations

4.Use of military tribunals historically upheld by Supreme Court

5.2006 legislation authoring military commissions

Key Terms Match

Match the following terms and descriptions.

Set 1

1._____ The First Amendment clause guaranteeing religious freedom.
2._____ The First Amendment clause prohibiting an official religion.
3._____ The prohibition against the use of illegally obtained evidence in court.
4._____ A Supreme Court ruling that further asserted that certain rights apply to the states.
5._____ Specifically banned in the Constitution under Article I.
6._____ A constitutional amendment guaranteeing the right not to have soldiers forcibly quartered in your home.
7._____ A doctrine that expanded the scope of permissible expression by holding that restriction on the right of expression must utilize the least restrictive means to achieve its ends.
8._____ A type of right protected by the Constitution that includes freedom of expression and freedom from arbitrary arrest and prosecution.
9._____ Portion of the Fourteenth Amendment stating that no state shall “deprive any person of life, liberty, or property.”
10._____ A modification of the exclusionary rule allowing evidence in a trial even though it was obtained without following proper legal procedures if the police believed a defective warrant was valid when executed. / a.ex post facto laws
b.civil liberties
c.Third Amendment
d.Palko v. Connecticut
e.establishment
f.exclusionary rule
g.due process of law
h.free exercise
i.good-faith exception
j.least means

Set 2

1._____ Harming another by publishing defamatory statements.
2._____ A 1961 Supreme Court case used by the court to enhance the exclusionary rule in order to enforce a variety of constitutional guarantees.
3._____ A form of expression not protected by the Constitution that is defined as any work, taken as a whole, that appeals to the prurient interest of the average person of the community, that depicts sexual conduct in a patently offensive way, and that lacks literary, artistic, political, or scientific value.
4._____ A written authorization to police officers to conduct a search.
5._____ A Supreme Court case that led to rules that police officers must follow in warning arrested persons of their rights.
6._____ Increases federal powers to investigate terrorists.
7._____ A phrase used to describe keeping church and state apart.
8._____ Term used to describe when the police have a good reason to believe that a crime has been committed and the evidence bearing on that crime will be found at a certain location.
9._____ The right not to be compelled to give evidence against oneself.
10._____ A form of expression not protected by the Constitution that allows the punishment of an illegal action so long as government’s aim is not to suppress speech, but only to punish the act itself.
11._____ A court-devised doctrine that expanded the scope of permissible expression by holding that courts will rarely allow the government to censor in advance any speaking or writing. / a.libel
b.Miranda v. Arizona
c.wall of separation
d.no prior constraint
e.obscenity
f.Mapp v. Ohio
g.Fifth Amendment
h.probable cause
i.search warrant
j.USA PATRIOT Act
k.symbolic speech

Did You Think That . . . ?

A number of misconceptions are listed below. You should be able to refute each statement in the space provided, referring to information or argumentation contained in this chapter. Sample answers appear at the end of this chapter.

1.“The first amendment guarantees the right of all Americans to say whatever they want at any time or any place.”

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2.“The Bill of Rights applies uniformly to both federal and state governments.”

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3.“Flag burning and draft card burning are afforded the same free speech protection under the law.”

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4.“The language of the First Amendment clearly requires the separation of church and state.”

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5.“A non-citizen suspected terrorist or anyone who harbors a terrorist can only be tried in a civilian court.”

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6.“Since our country’s inception, the exclusionary rule has been applied by all levels of government.”

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True/False questions

Read each statement carefully. Mark true statements T. If any part of the statement is false, mark it F, and write in the space provided a concise explanation of why the statement is false.

1.TFCivil liberties are limitations placed by the Constitution on what powers the government can exercise over people.

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2.TFThe Constitution guarantees the rights of individuals against infringement by other individuals.

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3.TFThe First Congress proposed twelve amendments that became known as our Bill of Rights.

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4.TFThe Fourteenth Amendment incorporated the specific guarantees of the Bill of Rights, so that most of its provisions applied to state government.

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5.TFThe doctrine of incorporation was necessary in order to enhance the powers of state governments.

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6.TFDue process and equal protection are concepts not actually found in the Constitution.

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7.TFIn the United States, the burden is on individuals to prove that government is restricting free expression.

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8.TFThe courts will not allow the government to restrain or censor in advance any speaking or writing, regardless of how potentially libelous it may be.

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9.TFLibel is a form of protected speech.

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10.TFSymbolic speech has the same protection as actual speech.

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11.TFAny statement that advocates an illegal action is itself illegal.

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12.TFObscenity is not protected by the First Amendment.

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13.TFIn 1997, the Supreme Court ruled that “indecent” is an acceptable standard for determining what cannot be sent or read via the Internet.

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14.TFThe free exercise of religion does not exempt individuals from laws binding other citizens.

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15.TFJefferson’s concept of a “wall of separation” between church and state was not incorporated into the First Amendment.

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16.TFAccording to a New Jersey case, busing children to a parochial school breaches the “wall of separation” between church and state.

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17.TFThe Court has found it unconstitutional for states to pay for school vouchers to enable a child to attend a religious school.

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18.TFMost governments have rules to punish police officers for illegally obtaining evidence but do not exclude such evidence from courtroom use.

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19.TFWhat is “excluded” under the exclusionary clause is evidence gathered in violation of state law.

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20.TFThe good-faith exception only applies to federal officers.

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21.TFPolice, without a search warrant, would be allowed to examine the contents of your stomach if they suspected you of swallowing illegal drugs.

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22.TFThe Constitution does not restrict the power of corporations to require employees to undergo drug tests.

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23.TFErnesto Miranda’s confession was ruled involuntary because he did not have a lawyer present when he was questioned and had not waived his right to a lawyer.

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24.TFThe government may tap, with a court order, Internet communications.

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25.TFYour house is an example of an area where you have an expectation of privacy.

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Multiple Choice questions

Circle the letter of the response that best answers the question or completes the statement.

1.A basic difference between the Bill of Rights and the Constitution proper is that the former:

a.covers what government cannot do.

b.authorizes government to censor newspapers.

c.protects free speech.

d.applies principally to states.

e.specifically addresses slavery.

2.The due process clause of Section I of the Fourteenth Amendment states that:

a.no state shall “deny to any person within its jurisdiction the equal protection of the laws, without due process.”

b.Congress shall make no law prohibiting the “free exercise” of religion, without the due process of law.

c.Congress shall make no law “respecting an establishment of religion, without the due process of law.”

d.no state shall “deprive any person of life, liberty, or property, without the due process of law.”

e.no company can discriminate against an applicant based on race.

3.The possibility that the Bill of Rights might restrict some state actions came about with the adoption of:

a.the Sedition Laws.

b.the Fourteenth Amendment.

c.the state-limiting clause.

d.non-fundamental categories in the Supreme Court.

e.the federal income tax.

4.America, as a nation, is preoccupied with the rights of its citizens, in part because of the specific protection afforded by the Constitution. Another reason for this preoccupation is that:

a.many of its immigrants had suffered persecution abroad.

b.the Bill of Rights was not intended to protect individuals.

c.in America, it is relatively difficult to redress violations of rights through the judicial system.

d.the power of state governments is so limited.

e.in America, we have a strong fear of a monarchy.

5.The ban on double jeopardy can be found in which constitutional amendment?

a.the Fifteenth

b.the Fourth

c.the Fourteenth

d.the First

e.the Fifth

6.The right of free expression, though not absolute, enjoys a higher status than the other rights granted by the Constitution. This is known as the doctrine of:

a.prior restraint.

b.preferred position.

c.neutrality and clarity.

d.least means.

e.higher power.

7.The doctrine that protects an individual’s right to utter almost any inflammatory statement, except one that will actually lead to an illegal act, is known as:

a.no prior restraint.

b.neutrality.

c.imminent danger.

d.least means.

e.preferred status.

8.In general, you may make false and defamatory statement about public officials so long as you lack:

a.actual malice.

b.presumed competence.

c.provocative motivation.

d.venal motivation.

e.actual proof.

9.Harming another person by writing or publishing statements that defame his or her character is known as:

a.libel.

b.slander.

c.clarity.

d.neutrality.

e.least means.

10.In 1997 the Supreme Court expanded its protection of free speech to the Internet by ruling that the _____ of 1996 was unconstitutional.

a.hard-core pornography act

b.sexual conduct act

c.privacy act

d.communications decency act

e.lobbying act

11.Burning the American flag was recently considered by the Supreme Court to be a protected form of:

a.symbolic speech.

b.judicial activism.

c.libel.

d.slander.

e.imminent danger.

12.The two clauses of the First Amendment that deal with religion are concerned, respectively, with:

a.free exercise and establishment.

b.prohibition and free exercise.

c.separation and prohibition.

d.prohibition and free exercise.

e.equality and separation.

13.The First Amendment states that Congress shall make no law prohibiting the “free exercise” of religion. It may, however:

a.make laws that impose a special burden on religion.

b.bind members of all religions to the same laws.

c.insist that church and state remain separate.

d.make laws respecting the establishment of a religion.

e.allow regions of America to interpret the “free exercise” clause as they see fit.

14.Draft laws have always exempted _____ from military duty.

a.moral persons

b.politicians’ sons

c.minorities

d.political party members

e.conscientious objectors

15.Current Supreme Court rulings would permit all of the following forms of state aid to church-related schools except:

a.salary supplements to teachers of non-religious subjects.

b.construction of college buildings.

c.textbook loans.

d.tax-exempt status for the schools.

e.allowing parents to deduct tuition on their state income tax returns.

16.The Supreme Court has always held that _____ materials have no redeeming social value and can be regulated by the state.

a.educational

b.extremist

c.politically motivated

d.election year

e.obscene

17.The United States deals with the problem of illegally obtained evidence by:

a.dismissing cases that offer such evidence.

b.allowing only conclusions drawn from it to be presented in court.

c.dismissing the officers involved in obtaining it.

d.punishing police misconduct apart from the criminal trial.

e.suing the state in which the incident occurred.

18.The argument that tainted evidence cannot be used in court if citizens’ rights are to be maintained leads to what is called:

a.double jeopardy.

b.plea bargaining.

c.disciplining of police officers.

d.the Miranda warning.

e.the exclusionary rule.

19.The arrest of Dollree Mapp for possessing obscene pictures was voided by the Supreme Court because:

a.the pictures were not obscene by community standards.

b.the police were actually looking for drugs.

c.Mapp was not notified of her rights.

d.the police had not obtained a search warrant.

e.the pictures were not in “plain view.”

20.Police may legally search persons for evidence either when they have a search warrant or when:

a.they have probable cause.

b.they are in hot pursuit.

c.someone has complained.

d.they legally arrest those persons.

e.the police already know the individual.

21.The landmark Supreme Court case that held that involuntary confessions could not be used in state trails is known as:

a.McCulloch v. Maryland.

b.Marbury v. Madison.

c.Brown v. Board of Education.

d.Miranda v. Arizona.

e.Gutter v. Bollinger.

22.The Supreme Court has ruled that some drug testing is permissible, even in the absence of suspicion or a search warrant. An example is the testing of:

a.any federal employee.

b.railroad employees involved in accidents.

c.cabinet officers and other government officials.

d.airline pilots.

e.politicians.

23.An example of a good-faith exception to the exclusionary rule would be if police conduct a search:

a.incidental to an arrest.

b.with a properly obtained search warrant.

c.without a warrant but with concern for public safety.

d.of an automobile believed to be carrying drugs.

e.of things under your immediate control.

24.After the attacks of September 11, 2001, Congress passed and the president signed the ______to increase federal power to investigate terrorists.

a.NAFTA agreement

b.U.S.A. Patriot law

c.CAFTA agreement

d.Brady Bill