Chaper 4 : Civil Liberties
A) What Are Civil Liberties ?
What are “civil liberties”? Name some examples.
???? Fundamental rights that the government cannot legitimately take away; for example: freedom of speech, the right to bear arms, the right to have a trial by jury, etc.
What is the difference between “civil right” and “civil liberty”?
???? Civil liberty protects people’s rights against the government while civil right protects people’s right through government intervention –meaning that the government is providing protection of people’s right.
Where in the constitution are the “civil liberties” listed?
???? In the “Bill of Rights” –the first 10 amendments of the Constitution are the “Bill of Right”.
o What are some civil liberties not listen in the “Bill of Rights” but are still in the Constitution? ▪ The writ of habeas corpus –determining legal detention-, bill of attainder –when
judges/juries determines if someone is guilty or not-, ex post facto –someone cannot be
charged of a crime after it has been committed
The Bill of Rights and the States
The Bill of Rights limited the power of the national government, not the state government at first. However, at the end of the 19th century, it began to limit the power of the state government as well.
Which amendment is most closely related to the national government?
???? The first amendment.
Name the court case that stated that the Bill of Rights only applied to the national government and not the state government. ???? Barron vs Baltimore Don't forget about the age old question of Who was the first guy to do sexual research on a large
Which amendment began applying the Bill of Rights to the state government? What was its purpose? ???? 14th amendment tried to overturn the Barron vs Baltimore case and apply the Bill of Rights to the state governments.
What is the “selective incorporation”?
???? A doctrine the Supreme Court uses to make the state government somewhat comply with the Bill of Rights.
Which amendments (parts of the Bill of Rights) are present-day applied in state governments?
???? Most all of them: 1,2,4,5,6, ,and 8
o Which amendments are not implemented in state governments?
▪ 3rd –duty to quarter soldiers and 7th –jury trials in civil suits over 20$
What is the “compelling interest act”?
???? An act allowing the federal/state government to limit some rights in the Bill of Rights only if the Supreme Court decides that 1) the government has compelling interest in passing the law and or 2) the law is narrowly drawn to meet that interestDon't forget about the age old question of What are the fallacious arguments from ignorance?
Marbury vs Madison
John Adams made last minute appointments of government workers to hinder Jefferson’s presidency. Marbury was appointed as justice, but his paper works wasn’t delivered on time and thus Jefferson disregarded Marbury’s appointment. The Supreme Court nullified Judiciary Acts in this case.
Why is this case important?
???? The Supreme Court gained the power of “judicial review” which allows the Supreme Court to nullify legislations that are
McDonald vs Chicago
Chicago banned handguns which went against the 2nd amendment (the right to bear arms). McDonald, who lived in an area in Chicago where there was a lot of crime, claimed that he should be allowed to have a gun with him in order to protect himself; the Supreme Court decided that Chicago could not stop people from having guns because it was unconstitutional. Don't forget about the age old question of Why was hades banned from olympus?
Why don’t we want too much freedom or too much control? What do we need in order to preserve civil liberties?
???? Too much freedom may lead to chaos, but too much control may lead to tyranny. In order to have civil liberties, we need a balance of public order and individual liberty. Don't forget about the age old question of How does the plasma membrane stay attached to the rest of the cell?
Civil liberties and civil rights conflicts sometimes: government’s attempts to secure equality for some people may lead the government to limit the freedom of others.
B) Civil Liberties in Times of Crisis
During wartime or other threats, there is usually many attempts to limit civil liberties.
Name important cases/events that led to important acts/laws that limited civil liberties.
???? 1. After the French Revolution, the US was in an undeclared war with France over trading issues and thus the US government (which at that time was mostly filled with Federalists) passed the Sedition Act which made it illegal to “write, print, utter, or publish” any “false, scandalous, and malicious writing” about the national government. We also discuss several other topics like What are some examples of culture bound syndromes?
o What is the “Schenck vs US” case? Don't forget about the age old question of What is the atomic number for the atom?
▪ Schenck published pamphlets that encouraged people not to be afraid of the government and not to join the army. He was arrested and claimed that he has the “freedom of speech/press” to do so, however, the Supreme Court sided with the government because the pamphlet
Schenck published could potentially put the government at risk by obstructing draft.
✔ What power did this case give to the Supreme Court?
✔ It brought the Clear and present danger test (later explained)
2. During the Civil War, Lincoln suspended the writ of habeas corpus
3. During WW1, the Espionage Act of 1917 which prohibited people to talk badly about the US Constitution of government as well as talk against the US’ war effort.
o What is the “Abrams vs US” case?
▪ Abrams spread pamphlets that went against the government’s WW1 efforts. He was arrested. The Supreme Court sided with the government because the pamphlet did impose threat to the government by obstructing military efforts.
4. During the McCarthy era, because of the Red Scare, Congress prohibited the Communist Party and its membership in the US government as well as political life.
o How was the McCarthy era overturned?
▪ Through free press (television for this particular case), McCarthy’s ill-doings were exposed. 5. During the Vietnam War, the COINTELPRO (a program under FBI) penetrated and disrupted groups that opposed American policies.
o How and why was the COINTERLPRO’s power limited?
▪ Congress put restrictions after realizing that the COINTERLPRO was abusing its power. 6. After 9/11, the USA PATRIOT ACT allowed more sharing of intelligence information and allowed law enforcement to tap telephones and emails. Also, it regulated financial transactions with foreign countries and made it easier to deport immigrants suspected of terrorist attacks.
7. The Defense Authorization Act of 2012 allowed the president to detain US citizens indefinitely and without trial.
In which act did the government most powerfully limited “free speech”?
???? The Seditions Act.
Which branch of the government mostly supports restrictions on civil liberties and why? ???? The executive branch since it is most responsible for national security
C) The First Amendment and Freedom of Expression
Freedom of Speech
What is the “clear and present danger test”?
???? The 1st amendment test that obligates states to prove that there is a high possibility that a speech could lead to a danger that Congress must prevent.
What is the “fighting words” doctrine?
???? A policy that bans people from using fight inducing phrases. o What is the difference between hate speech and fighting words?
▪ Hate speech doesn’t provoke violence –it can be
upsetting though-, but fighting words lead to
What is a “symbolic speech”?
???? Non-verbal actions that has a political message.
o Can you desecrate the American flag?
▪ Yes you can because it is considered as a symbolic
What is a “content-neutral” doctrine?
???? A policy that permits the government to limit freedom of speech if the limitation does not favor one side or the other of a controversy (for example: limited flag burning in a forest in order to prevent forest fire).
Freedom of the Press
During the colonial era, what did “freedom of the press” signify? What does it mean now?
???? It meant freedom from prior
censorship. Now, it is really hard to apply censorship to the press (for
example: it is nearly impossible to strike down a newspaper company through censorship).
What is “subsequent punishment”?
???? When the government fines and or imprisons writers and publisher for their written works.
What is the “Miller Test”?
???? The Supreme Court’s test to decide if a material is obscene or not.
According to this test a material is obscene if it 1) appeals to sexual
interest to average people 2) depict unlawful sexual conduct 3) doesn’t have any literary, artistic, political, or scientific value.
Freedom of Association
According to the 1st amendment, government cannot stop people from gathering.
When can the state government limit the right of association?
???? When a group discriminates for no legitimate reason.
C) Religious Freedom
History to Religious Freedom
Who first established a state that grant religious “liberty of conscience”?
???? Roger Williams, who was banished from Massachusetts for not agreeing with the church, established Rhode Island as the first state that granted some sort of religious freedom.
What is the “Maryland’s Toleration Act”? Why was it passed?
???? An act that guaranteed the freedom to worship for all Christians. This act was passed in order to allow Christians, especially Catholics to practice their faith without persecution since Catholics were persecuted in Europe at that time.
Which state fought for religious freedom for the Quakers?
???? New Amsterdam (today NY) fought for the religious freedom for every people, especially the Quakers who were persecuted by the governor of New Amsterdam at that time.
What is the “Flushing Remonstrance”?
???? An era when people demanded for religious freedom and called for “every man to stand or fall to his own Master”.
What is the “Statute for Religious Freedom”? Who wrote it?
???? A law passed by the VA General Assembly that enabled religious freedom in the colonies. Thomas Jefferson wrote it. This law was later put in the free exercise clause (which is part of the 1st amendment clause protecting the right to practice one’s own religion) of the Bill of Rights.
In the beginning, though, this law only protected individuals against the national government. Now with the incorporation of Bill of Rights, states must allow guarantee the freedom of religion.
When can the state governments restrict religious activity?
???? When the state governments have a valid secular purpose –a Supreme Court test that allows states to ban religious activities because the states has a rational reason.
The Establishment of Religion
What is the “establishment clause”?
???? Part of the 1st amendment that prohibits the government to establish a religion as well as to favor one religion over another or any religion over no-religion.
Who led the antiestablishment movement? Where? How?
???? Thomas Jefferson and James Madison began the antiestablishment movement in VA. Jefferson passed the Disestablishment Bill in 1786 which ended VA’s establishment of the Anglican Church. He also called for a “wall of separation” between states and church.
What is “Lemon clause”?
???? A test that checks if aid to religion goes against the establishment clause.
o What religious practices did the lemon clause prohibit?
▪ School prayers and devotional Bible readings in schools.
D) The Rights to Keep and Bear Arms
Which law/act was the government’s first attempt to regulate gun possessions?
???? The National Firearms Act.
o The Supreme Court declared after the passage of the National Firearms Act that people may carry arm for self-defense.
The 2nd amendment was also not applied to the states until 2010.
E) Criminal Procedure
Which amendments protects people’s right against police and or law enforcement policies? Describe each.
???? 4th amendment protects us from unreasonable searches and seizures.
5th amendment protects us from double jeopardy, self-incrimination, due process, taking of property without just compensation, trial by grand jury
o What is “double jeopardy”?
▪ When someone is tried twice for the same offense.
6th amendment protects us from public trial, right to confront witness, and right to counsel 8th amendment protects us from cruel and unusual punishment and excessive bail.
What happens if a police uses evidence found by violating the 4th amendment (unreasonable search/seizure) in trial? ???? That evidence is overlooked according to the exclusionary rule.
What is the “Miranda Warning”? Which court case established it?
???? Individuals 1) right to remain silent, 2) right to know that whatever they say may be used against them, 3) right to an attorney whether they can afford one or not (if they can’t the government will appoint them one). o The Miranda Warning must be told to the individuals BEFORE their interrogations.
Which part of the amendments that protects people’s right against police and or law enforcement policies are not incorporated to the states?
???? Trial by a jury (6th amendment) and excessive bail (8th amendment).
Why is the death penalty an exception when the judge declares a criminal’s sentence?
???? For death penalties, the jury decides.
Can criminals appeal a trial court conviction?
???? Only unless his or her constitutional right has been violated.
F) The Right to Privacy
Which amendment guarantees people’s basic freedom of privacy?
???? 9th amendment.
What are the 3 controversial issues that are sometimes protected and sometimes not protected by the “freedom of privacy”?
???? Abortion, homosexual behavior, and the right to die.
Most states have their own laws restricting abortion and birth control.
What is the “right to privacy”?
???? Constitutional right that are not specifically listed in the Bill of Rights but are supposed to be protected.
Which court case established a national right to abortion?
???? Roe vs Wade
Which court case allowed homosexual behavior as part of protecting “right to privacy”?
???? Lawrence vs Texas.
The Right to Die
An individual may terminate life-sustaining care if they decide to do so with their own free will. However, an individual may not assist suicide.
G) Civil Liberties and Democracy
What is “political tolerance”?
???? People’s willingness to not complain against what they disagree.
o Political tolerance is important for democratic stability and the marketplace of ideas.
Edward Snowden case
What is the “Defense Intelligence Agency” (DIA)?
???? A section of the Department of Defense that gathers and spread foreign military intelligence, mostly battlefield/troop related.
What is the “National Security Agency” (NSA)?
???? National Security Agency (NSA) –codebreaking/decrypting and code-making or encrypting foreign intelligence communication (this is the Agency involved in Snowden case)
Background for Edward Snowden case.
Patriot Act (October 26 2001) enhanced domestic security against terrorism.
Protect America Act (2007) removed warrant requirement for government surveillance on foreign intelligence targets “reasonably believed” to be outside of the US as well as between Americans and a foreign target.
PRISM was created in 2007 in order to collect massive data on our private lives. Most of the data were dumped if it was deemed not useful. This program was secret.
Xkeyscore was a program used to intercept communication worldwide which allowed NSA to spy on national leaders.
Lot of private companies (like Verizon) complied with NSA and gave them private data of everyday people. NSA hacked into companies’ data if the companies didn’t comply. Furthermore, the government took contents (and not only metadata). What is the difference between “Metadata” and “content”?
???? Metadata just provides a summary of an information of a data but content is the actual, entire information.
Did Congress know PRISM and Xkeyscore was going on?
???? Congressmen say no, but skeptical.
So what happened with Edward Snowden?
???? Edward Snowden was at Hawaii at that time and was working for a private organization (Booz Allen Hamilton) that later on held hands with the CIA which allowed him to get access to some classified docs. He is now in Russia to get protection (he went there in 2013). Snowden discovered that NSA was spying on civilians’ lives. He decided to inform the public of NSA and how it penetrates in our privacy.
What was Snowden charged with?
???? Snowden was charged with theft of government property and violation of the Espionage Act. 1917. How did the Union European react to Snowden’s case?
???? The EU took a vote to whether they should charge Snowden but they decided to drop any pending charges against him. Rather, EU declared that he was a “human right defender”.
Can he be prosecuted under international law?
???? No because the International principle of non-refoulement forbids the deportation of a victim of persecution and the International Court of Justice (also called World Court), which is the judicial branch of the UN, is only in charge of disputes between nations.
What is the legacy that Snowden’s case left?
???? Opinions vary, some people view him as a traitor who threatens the national security while others see him as a hero.
Did the NSA violate the constitutional right to privacy?
???? Technically, there is no law that states “we have a right to privacy”, however, the 4th amendment vaguely claims that we have the right to be secure in our houses, properties, and effects, against unreasonable searches. o Why is the 4th amendment so vague?
▪ But how do we define effects and unreasonable. This issue is controversial.
Griswold vs Connecticut
Describe this case
???? CT banned any drug, medicine article or instrument preventing contraception.
Griswold sold condoms in a way to show her disagreement to his law and was therefore arrested. However, in this case Supreme
Court ruled that CT had no right to do so because it was an invasion of “marital
o What was the controversy?
▪ The competing idea between
implied law or not. 7 justices
claimed that right to privacy
is implied in the Constitution
and only 2 justices claimed
that right to privacy is not
explicit in the constitution.
Roe vs Wade
Describe this case
???? The Supreme Court declared that the “right to privacy” was an implied law.
Riley vs CA
Describe this case.
???? A man was charged for being a member of a gang because officers had clues by searching into the suspect’s phone without a warrant; the judge said that the police could not use the phone as an evidence because the police
officer does not have a right to search one’s phone without warrant.
San Bernardino Shooting
Describe this case.
???? Apple Company refused to give FBI access to a shooter’s iphone but FBI hacked it.