Unit 4 Politics and American Society – Civil Liberties
Ch. 5: Civil Liberties, pp. 98-123. Take notes on each of the following, on notebook paper.
1. Define civil liberties and civil rights. Not much real difference:
Civil liberties—individual rights protected by the Constitution.
Civil rights—protecting certain groups against discrimination (usually by federal, state, and local laws).
2. What is meant by the statement, “the Constitution and the Bill of Rights contain a list of competing rights and duties” (Wilson and DiIulio 99)? Give an example of competing rights in American society.
Protected rights sometimes conflict with each other, or rights conflict with legitimate govt duties.
Rights in conflict: freedom of press to report details of a crime vs. right of accused to a fair trial
Rights/duties in conflict: body searches at airports (public safety); freedom of speech vs. protecting public order (permit requirement for parades); sobriety checkpoints/mandatory breathalyzer tests: public safety vs. protection of self-incrimination & warrantless search. Permissible for public safety. Driving is not a right. States have established “implied consent” of breathalyzers as a condition of getting a driver’s license.
3. From 1791 until after the Civil War, the Bill of Rights limited only the national government’s power, not the power of the various state governments. Each state had its own set of protected rights in its state constitution.
a) Name and date the Constitutional Amendment that, for the first time, extended the protections of the Bill of Rights to citizens at the state level. From your knowledge of American history, explain why this was done.
b) What does selective incorporation mean? Give an example of a Bill of Right not applied to the states.
a) 14th Amendment. Reason: to protect freedmen from black codes, unequal treatment in state law.
b) some but not all federal protections were extended to the states (due process and equal protection clauses of 14th A). Ex not incorporated: quartering act, indictment before a grand jury, right to a jury trial in civil cases, ban on excessive bail and fines. (Most states guarantee these rights in their state constitutions)
4. The First Amendment may be divided into two general parts. Name each.
freedom of expression / freedom of religion
5. Define prior restraint. Is it permitted by the First Amendment?
censoring in advance of publication. Not permitted.
6. No constitutionally-protected right is unlimited. Throughout U.S. history, Congress or state legislatures have imposed various limitations on speech and other protected rights. Ultimately, it is the task of the federal courts to determine if such limitations are constitutional. Justices sometimes establish in their rulings a rule or principle that guides legislatures regarding what limitations are or are not permissible. In Schenck v. United States, 1919, the Supreme Court enunciated the clear and present danger test of protected speech. Explain that test. How is it “a way of balancing the competing demands of free expression and national security” (Wilson and DiIulio 104)? Do you agree or disagree that this is an acceptable limitation on protected speech? Why/why not?
clear and present danger test: whether the words pose a threat to the United States or to public safety—ex. “falsely shouting fire in a theatre and causing a panic.”
Balances indiv. rights and national security—but does it. In times of crisis, courts tend to side with national security over indiv. rights. Japanese internment, arresting anti-war speakers during wartime, McCarthy era assaults on communists. Courts have expanded protection of individual rights in peacetime: 1969 ruling that the Klan could not be arrested for a racist protest and threat; even speech that calls for illegal action is protected if the action is not imminent or there is reason to believe the listener(s) will not take the action.
7. Generally, Congress or the states cannot legislate against “hate speech” (malicious words or symbols directed against an individual or group), as long as it is not used to incite violent or illegal action. Do you agree or disagree that this should be protected expression? Why/why not?
Hate crimes, (violence against a target group member) may be punished more severely than non-hate crimes (must show that hate motivated the violence); hate speech may not be criminalized. Swastikas, n-word, go back to Mexico you stupid wetback, etc.
8. Libel is not constitutionally protected speech, but it is a matter of civil law, not criminal law (no arrest or imprisonment; it is up to the individual or group harmed by the speech to sue for damages). For a public figure (politician, entertainer, prominent spokesperson) to prove libel in U.S. courts, what three criteria must be proven?
Libel: US has some of the strictest libel laws of modern nations under the rule of law. Public figures must prove 1) the words were false; 2) the words were damaging; 3) the words were motivated by “actual malice”—reckless disrespect for the truth. This last is the hardest. Most public figures don’t pursue libel claims; takes a long time and attracts more attention to the libelous words. Jerry Falwell’s libel suit: Hustler magazine ran a parody ad—Falwell, drunk, talks about his first sexual experience—with his mother.
Falwell sued; fed. district court found in his favor. Larry Flint (Hustler publisher) appealed; US Supreme Court ruled that it was not libel. It was clearly a satire that no intelligent reader would take seriously; therefore Falwell could not show damage or “actual malice.”
9. Obscenity is not constitutionally protected speech. What are the most recent requirements for speech, books, and/or films to be considered obscene and thus subject to permissible restraint?
no redeeming social value; designed to appeal primarily to one’s sexual rather than political or literary interests. Still hard to define.
Most recent requirements:
1. average person applying contemporary community standards would judge the work as appealing only to sexual (prurient, lustful) interest in a clearly offensive way.
2. Work must lack serious literary, artistic, political, or scientific value.
Problem: community standards. Amish? Easy. What of the tyranny of the majority in a small town or predominantly religious community? What ARE “community standards” in a diverse city like Kansas City?
10. Many forms of symbolic speech are generally not constitutionally protected. Define symbolic speech. Give an example of symbolic speech that is protected and one that is not protected under the First Amendment.
symbolic speech: an act rather than words to convey an idea.
Generally if the act is illegal it is not protected as “speech.” Ex: burning a draft card, helping an Indian escape from jail to protest mistreatment of native Americans, etc.
BUT burning the American flag is protected speech, even though it inflames many Americans, esp. war veterans.
11. Juveniles do not have the same freedom of expression as adults. Even though the Supreme Court declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” they nonetheless gave schools a limited right to restrict student expression as part of school-sponsored activities. Under what criteria may schools exercise such restrictions?
schools have fairly broad leeway: students may not be punished for speaking their personal views in private on campus but may be punished or censored if their acts/words use some school forum to interfere with the educational mission of the school. Thus, valedictory speeches, addresses to the assembly, student newspapers, plays, etc. may be censored. The regulations are permitted as long as they are reasonably related to legitimate educational concerns.
12. Identify and define the two clauses of the First Amendment concerning freedom of religion. Which of the two, according to your text, is the more difficult to interpret? Why?
free exercise clause
establishment clause—more difficult to interpret. Could just mean no national religion.
But SC has used Thomas Jefferson’s language of a “wall of separation” between church and state.
Does public money for religious schools “establish” a religion? What if it was given to all religious schools, regardless of religion? What about prayer in schools?
13. The federal courts have generally interpreted the establishment clause to mean, using Jefferson’s language, that a “wall of separation” must exist between church and state. The Supreme Court has established a three-part principle to determine when government involvement in religious activities (including schools) is permissible. List those three principles and give a specific example of government involvement in religion that meets those criteria.
1. govt. involvement has a secular (non-religious) purpose
2. primary effect of govt. role neither advances nor inhibits religion
3. it does not foster an excessive government entanglement with religion
For example, paving sidewalks in front of churches, contracting with churches to provide meals on wheels, or paying Title I money to religious schools for poverty programs. These are all legal actions.
14. Civil religion may be defined as vague, non-sectarian (non-religious) public references to God or religious beliefs by politicians, in government buildings/monuments, or at government ceremonies. Give three examples of constitutionally permissible civil religion (p. 113).
In God we trust; Congress opens each session with a prayer, armed services have chaplains, pledge of allegiance’s “under God”
15. Ever since Mapp v. Ohio, 1961, the courts have used the exclusionary rule to protect the Fourth Amendment rights of the accused. What is the exclusionary rule? What other remedy had been used before this time?
exclusionary rule: evidence gathered in violation of Bill of Rights (especially the Fourth Amendment) cannot be used in trial. Also applies to states.
Former remedy: the accused could sue the police. This offers less protection, puts greater burden on the accused.
16. In general, the places where one has a “reasonable expectation of privacy,” such as one’s body and home, cannot be searched without a warrant. Give two examples of constitutional searches of one’s person or property without a warrant. May a school administrator search your locker without your permission or a warrant?
persons can be searched when being arrested, including you, your things in plain view, and things or places under your immediate control. Ex: backpack, briefcase, your car, your office desk (but not the ceiling tiles), packages you’re carrying.
property can be searched: buildings other than your home (unattached garage, barn), backyard viewed from an airplane, if your home is a motor home and can be driven away.
schools and businesses can search your lockers, desks, anything they provide, because you don’t own that property.
New Jersey v. T.L.O
· Case originated when a vice principal discovered marijuana in a student's purse while searching for cigarettes
· Court ruled that students do have Fourth Amendment rights to freedom from unreasonable searches and seizures
· But school officials need not meet the normal standard of "probable cause" to justify searches; a lower standard of "reasonableness, under all the circumstances" is sufficient
17. Historically, war has been the biggest threat to the strict protection of American civil liberties. The American Civil Liberties Union (ACLU), for example, was founded to oppose the sedition laws and Palmer raids during WWI. According to your text, what is the biggest legal issue created by the current U.S. war on terror?
can accused terrorists be detained indefinitely without access to courts? Habeas corpus issues arise if the terrorists are held on American soil. That is why they are held in Cuba. The constitution does not apply there.