Chapter Four Civil Liberties

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Chapter FourCivil Liberties
Instructor Kevin Sexton Course U.S. Political
Systems Southeast Missouri State University
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Civil Liberties versus Civil Rights
Civil Liberties deal with the Bill of
Rights. Civil Rights deal with laws passed by
national and state legislatures.
AND..
CIVIL LIBERTIES are protections from
government CIVIL RIGHTS are protections by
government
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Protections from Government?
Who Is or Who Was The Government?
The WHO has changed.
Prior to the Civil War the level of government to
which the Bill of Rights applied was the federal
government. The U.S. Constitution is the rules
by which the federal government operate, the Bill
of Rights is the first ten amendments to the U.S.
Constitution.
What did the Civil War change?
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Civil Liberties After The Civil War
Three CIVIL RIGHTS amendments ratified after the
Civil War
13th Amendment Abolished Slavery 14th
Amendment Redefined Civil Rights
Liberties 15th Amendment -- Provided The Vote To
All Male Citizens
14th Amendment changes the fact that the Bill of
Rights only applied to the federal
government. HOW?
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Due Process Clause
Both the 5th and 14th Amendment addresses
due process. 5th Amendment ... nor be
deprived of life, liberty, or property
without due process of law
14th Amendment nor shall any State
deprive any person
of life, liberty, or property with the due
process of law
WHAT IS THE
DIFFERENCE? nor shall any STATE deprive
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Selective Incorporation
The 14th Amendment now applies the Bill of Rights
to both the federal and state governments. But
the federal government was not in a position to
do this. The federal government (Supreme Court)
implemented a process known as SELECTIVE
INCORPORATION The case by case application of
each right found within the Bill of
Rights. Most, but not all of the Bill of Rights
is applied to the States. (i.e. 2nd Amendment)
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Liberties Addressed In The Bill of Rights
1st Speech, Press, Assembly and Religion
2nd Bear Arms 3rd Quartering of
Troops 4th-8th Rights of Criminally Accused
9th Necessary and Proper 10th Reserved
Powers
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Are We Always Free To..

• Several things to remember about our Civil
  Liberties or freedoms
• The right to BELIEVE anything we want, is the
  only
• right we have that is ABSOLUTE.
• 2. Your freedoms end where someone elses freedom
  begins.
• (i.e. Listening to Music, keeping your yard cut.)

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1st Amendment(free speech, press, assembly
religion)
Freedom of Speech
Five Doctrines or Tests that have been used to
measure the appropriateness of limits placed on
speech.

• Bad Tendency Test
• Clear Present Danger Doctrine
• Fighting Words Doctrine
• Balancing Doctrine
• Fundamental Freedoms Doctrine

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Bad Tendency and Clear Present Danger
Bad Tendency Test

• English rule that stated that expression could
  be limited if it could
• ultimately lead to illegal behavior.
• Gave very broad discretion to the English
  government.
• often used to protect the monarchy from
  criticism.

Clear Present Danger

• Established in Supreme Court Ruling in Schenck
  v. U.S. (1919)
• 1st Major Supreme Court ruling dealing with
  freedom of speech.
• Freedom of expression should be complete unless,
  the speech
• endangered the nation.
• It left the interpretation of endanger open
  for review.
• Did not differ a whole lot from the Bad
  Tendency Test.

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Fighting Words Balancing Doctrines
Fighting Words Doctrine

• Established in 1942 Supreme Court ruling in
  Chaplinsky v. New Hampshire
• Stated that some words constitute violent acts
  and therefore those words
• are not protected by the 1st Amendment.
• Greatly enhanced the governments ability to
  limit speech.

Balancing Doctrine

• Established in the 1951 Supreme Court ruling in
  Dennis v. U.S.
• Stated that freedom of speech had to be balanced
  against other competing
• public interests.
• i.e. Communist partys right to free speech as
  balanced against the governments right
• to prevent their
  overthrow.
• It reinterpreted and placed limits on the clear
  and present danger test.

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Fundamental Freedoms Doctrine

• In 1960s the Courts began using the concept
  that certain rights,
• such as speech, press have a preferred position
  in the Constitution.
• Therefore, they must be given extraordinary
  protections.
• Even if the speech was offensive to good taste
  it should be
• protected.
• Has been the basis of our current policies
  allowing for very limited
• instances of limiting free speech rights.
• i.e. Papish v. Board of Curators for the
  University of Missouri

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Limits On Free Expression

• There are some very specific instances when
  limits can be placed
• on our speech or expression.
• Several of those are listed below
• Commercial Speech
• Obscenity
• Libel/Slander

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Commercial Speech

• Speech or expression for business purposes can be
  regulated.
• According to the Supreme Court regulating
  commercial speech for two primary reasons
• To prevent companies from providing false or
  misleading information, therefore taking
  advantage of consumers.
• To limit use of substances deemed harmful by the
  government.
• i.e. Limited cigarette and alcohol advertising
• Truth in labeling Laws

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Obscenity
Many people are unsure if obscene material is or
should be illegal. The Supreme Court is very
clear about this. Obscene Material is illegal
and can be restricted. The question is not IS
obscene material illegal. The questions is WHAT
is obscene and WHO determines what is
obscene In Miller v California (1973) the
Supreme Court stated that LOCAL COMMUNTIY
STANDARDS will determine what is considered
obscene. Are there any questions about what
LOCAL COMMUNITY STANDARDS are? YES How Do We
Deal With Internet Pornography and Local
Community Standards?
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Libel and Slander
Libel deals with the written word. Slander deals
with the spoken word.

• Libel and Slander involve false statements made
  by someone
• about another person. In order for an ordinary
  citizen to prove libel or slander they must prove
  that
• The statement was false.
• The statement caused harm.
• The statement was made without adequate research
  into the truthfulness of the statement.
• IT IS SOMEWHAT DIFFERENT FOR CELEBRITIES.
• In order for a public official or celebrity to
  prove libel or slander they
• must prove the above three things,
• PLUS
• 4. That the statement was made with intent to do
  harm.

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Freedom of Religion
Two clauses in the 1st Amendment address
religion. Establishment Clause government will
not create a state religion Free Exercise
Clause we can practice ANY religion we choose
without
government interference.
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Establishment Clause
Separation of church and state
Where in the Constitution is this doctrine
found? NO WHERE. IT IS NOT FOUND IN ANY
HISTORICAL U.S. DOCUMENT. Where does it come
from? Thomas Jeffersons Letter to the Danbury
Baptist Association (a copy of this letter is
found on the course website) Does this doctrine
mean that the government cannot be involved or
supportive of any religious organization? NO Gov
ernments can provide support to religious schools
and organizations as long as there is no
excessive entanglements as a result of the
involvement.
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Establishment Clause(continued)
Lemon v Kurtzman (1971)
Any state law providing assistance to religious
schools must meet the following standards

• The law must have a secular legislative purpose.
• The laws primary effect must be one that neither
• advances not inhibits religion.
• The law must not foster an excessive government
• entanglement with religion.

i.e. YES to textbooks, but NO to teacher salaries
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Free Exercise Clause

• As with other liberties we are free to exercise
  our own religions
• however we choose --- within established limits.
  There is no one
• test or doctrine that the courts follow. They
  address each issue
• on a case by case basis. Here are a few examples
  of religious
• exercise cases decided by the Supreme Court.
• Wisconsin v Yoder (1972) Amish children do not
  have to attend
• 
  school.
• Church of the Lukumi Babalu Aye. Inc. v City of
  Hialeah (1993)
• City wrote law outlawing animal sacrifice in
  response to
• the churches practice of sacrificing
  chickens.
• Oregon v Smith (1990) Native Americans denied
  unemployment
• after
  being fired for smoking peyote.

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Rights of the Criminally Accused
The vast majority of the Bill of Rights deals
with the rights of the criminally
accused. WHY? The anti-federalist feared that
the central government would be able to squash
opposition by imprisoning them, as the British
did prior to Americas Independence. To prevent
that from happening they created a number of
guarantees To protect those that might be wrongly
accused of a crime.
Amendments 4 thru 8 deal with the rights of the
criminally accused.
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Rights of the Criminally Accused(continued)
For the in-class portion of exam one you will
need to be Familiar with the court cases
presented in this power point As well as those
listed in the table found on page 451 of
your Textbook.
IN ADDITION
Be familiar with the basic rights of the
criminally accused And in which amendment they
are covered.