Civil Liberties

The politics of civil liberties
1. The objectives of the Framers
  1. Limited federal powers
  2. Constitution: a list of dos, not don'ts
  3. Bill of Rights: specific do nots
    1. Not intended to affect states
    2. A limitation on popular rule
Politics, culture, and civil liberties
1. Liberties become a major issue for three reasons
2. Rights in conflict: Bill of Rights contains competing rights
  1. Sheppard case (free press versus fair trial)
  2. New York Times and Pentagon Papers (common defense versus free press)
  3. Kunz anti-Jewish speeches (free speech versus public order)
  4. Struggles over rights show same pattern as interest group politics
3. Policy entrepreneurs most successful during crises, especially war, by arousing people
  1. Sedition Act of 1789, during French Revolution
  2. Espionage and Sedition Acts of World War I
  3. Smith Act of World War II
  4. Internal Security Act of 1950, Korean War
  5. Communist Control Act of 1954, McCarthy era
4. Cultural conflicts
  1. Original settlement by white European Protestants produced Americanism
  2. Waves of immigration brought new cultures, conflicts
    1. Non-Christians offended by government-sponsored creches at Christmas
    2. English speakers prefer monolingual schools
    3. Boy Scouts of America exclude homosexuals from being scout leaders
  3. Differences even within cultural traditions
Interpreting and applying the First Amendment
1. Speech and national security
  1. Original Blackstone view: no prior press censorship
  2. Sedition Act of 1789 followed Blackstone view
  3. By 1917-1919, Congress defines limits of expression
    1. Treason, insurrection, forcible resistance
    2. Upheld in Schenck via test of "clear and present danger"
    3. Justice Holmes dissents, saying test not met
  4. Fourteenth Amendment "due process" not applied to states originally; Gitlow elicits "fundamental personal rights"
  5. Supreme Court moves toward more free expression after WWI
    1. But communists convicted under Smith Act under "gravity of evil"
    2. By 1957, test of "calculated to incite"
    3. By 1969 (Brandenburg), "imminent" unlawful act
    4. 1977 American Nazi march in Skokie, Illinois, held lawful
    5. "Hate" speech permissible but not "hate crime"
2. What is speech?
  1. Some forms of speech not fully protected; four kinds
  2. Libel: written statement defaming another by false statement
    1. Oral statement: slander
    2. Variable jury awards
    3. Malice needed for public figures
  3. Obscenity
    1. Twelve years of decisions; no lasting definition
    2. 1973 definition: patently offensive by community standards of average person
    3. Balancing competing claims remains a problem
    4. Localities decide whether to tolerate pornography but must comply with strict rules
    5. Protection extended: nude dancing only marginally protected
    6. Indianapolis statute: pornography degrading but court disagreed
    7. Zoning ordinances upheld
    8. Regulation of electronic Internet (computer-simulated child pornography)
  4. Symbolic speech
    1. Acts that convey a political message: flag burning, draft card burning
    2. Not generally protected
    3. Exception is flag burning: restriction of free speech
Who is a person?
1. Corporations, etc., usually have same rights as individuals
  1. Boston bank, antiabortion group, California utility
  2. More restrictions on commercial speech
    1. Regulation must be narrowly tailored and serve public interest
    2. Yet ads have some constitutional protection
  3. Young people may have fewer rights; Hazelwood; school newspaper can be restricted
Church and state
1. The free exercise clause: no state interference, similar to speech
  1. Law may not impose special burdens on religion
  2. But no religious exemptions from laws binding all
  3. Some cases difficult to settle
    1. Conscientious objection to war, military service
    2. Refusal to work Saturdays; unemployment compensation
    3. Refusal to send children to school beyond eighth grade
2. The establishment clause
  1. Jefferson's view: "wall of separation"
  2. Congress at the time: "no national religion"
  3. Ambiguous phrasing of First Amendment
  4. Supreme Court interpretation: "wall of separation"
    1. 1947 New Jersey case (reimbursements)
      1. Court: First Amendment applies to the states
      2. Court: State must be neutral toward religion
    2. Later decisions struck down
      1. School prayers (voluntary, nonsectarian, delivered by a rabbi or minister or student elected by others students)
      2. Teaching of creationism
      3. In-school released time programs
    3. Public aid to parochial schools particularly controversial
      1. Allowed: aid for construction of buildings, textbook loans, tax-exempt status, state deductions for tuition, computers, and sign language interpreters
      2. Disallowed: teacher salary supplements, tuition reimbursements, various school services, money to purchase instructional materials, special districts
      3. Though the Court can (and does) change its mind
    4. Development of a three-part test for constitutional aid
      1. It has a strictly secular purpose
      2. It neither advances nor inhibits religion
      3. It involves no excessive government entanglement
    5. Failure of the Court's test to create certainty in our law
      1. Nativity scenes, menorahs, and Christmas trees
      2. Seeming anomalies: Prayer in Congress, chaplains in the armed services, "In God We Trust" on currency
      3. Deep division / confusion among members of the Court
Crime and due process
1. 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
    1. 1949: declined to use exclusionary rule
    2. 1961: changed, adopted it in Mapp case
2. Search and seizure
  1. When can "reasonable" searches of individuals be made?
    1. With a properly obtained search warrant with probable cause
    2. Incident to an arrest
  2. What can police search incident to an arrest?
    1. The individual being arrested
    2. Things in plain view
    3. Things under the immediate control of the individual
  3. What of an arrest while driving?
    1. Answer changes almost yearly
    2. Court attempts to protect a "reasonable expectation of privacy"
    3. Privacy in body and home but not from government supervisor
  4. Testing for drugs and AIDS
    1. Mandatory AIDS testing called for, not yet in place
    2. Government drug testing now in courts but private testing OK
    3. Supreme Court: some testing is permissible
      1. Law enforcement and railroad employees
      2. Random sobriety checks on drivers
      3. Key: concern for public safety or national security
      4. High school athletes
3. Confessions and self-incrimination
  1. Constitutional ban originally against torture
  2. Extension of rights in the 1960s
    1. Escobedo
    2. Miranda case: "Miranda rules" to prove voluntary confession
4. Relaxing the exclusionary rule
  1. Positions taken on the rule
    1. Any evidence should be admissible
    2. Rule had become too technical to work
    3. Rule a vital safeguard
  2. Supreme Court moves to adopt second position
5. Terrorism and Civil Liberties
  1. USA Patriot Act
    1. Telephone and internet taps, voice mail seizure
    2. Grand jury information exchange
    3. Detainment of non-citizens and deportation of aliens
    4. Money laundering
    5. Crime and punishments
  2. Executive order for use of military courts
    1. Trial before commission of military officers, may be secret
    2. two-thirds vote for conviction, appeal to secretary of defense and the president
  3. Intensified investigations and concerns of civil liberties organizations