Ch. 4 Civil Liberties
Ch. 4 Civil Liberties P SC 1113
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This 5 page Class Notes was uploaded by Rebecca Hurlburt on Wednesday September 16, 2015. The Class Notes belongs to P SC 1113 at University of Oklahoma taught by Dr. Tyler Johnson in Fall 2015. Since its upload, it has received 136 views. For similar materials see American Federal Government in Political Science at University of Oklahoma.
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Date Created: 09/16/15
Chapter 4 Civil Liberties Week 3 Notes for American Federal Government P SC 1113 Chapter Notes Vocabulary bill of attainder a legislative act that in icts punishment on particular persons or groups without granting them the right to a trial civil liberties individual rights protected by the Constitution against the powers of the government due process clause the constitutional guarantee set out in the Fifth and Fourteenth Amendments that the government will not illegally or arbitrarily deprive a person of life liberty or property due process of law the requirement that the government use fair reasonable and standard procedures whenever it take any legal action against an individual required by the Fifth and Fourteenth Amendments ex postfacto law a criminal law that punishes individuals for committing an act that was legal when the act was committed writ of habeas corpus an order that requires an of cial to bring a speci ed prisoner into court and explain to the judge why the person is being held in jail commercial speech advertising statements that describe products Commercial speech receives less protection under the First Amendment than ordinary speech establishment clause the section of the First Amendment that prohibits Congress from passing laws respecting an establishment of religion free exercise clause the provision of the First Amendment station that the government cannot pass laws prohibiting the free exercise of religion imminent lawless action test the current Supreme Court doctrine for assessing he constitutionality of subversive speech To be illegal speech must be directed to inciting imminent lawless action Lemon test a threepart test enunciated by the Supreme Court in the 1971 case of Lemon v Kurtzmcm to determine whether government aid to parochial schools is constitutional Ma published report of a falsehood that tends to injure a person s reputation or character obscenity indecency or offensiveness in speech expression behavior or appearance school voucher an educational certi cate provided by a government that allows a student to use public funds to pay for a private or a public school chosen by the student or his or her parents seditious speech speech that urges resistance to lawful authority or that advocates the overthrow of a government slander the public utterance speaking of a statement that hols a person up for contempt ridicule or hatred symbolic speech the expression of beliefs opinions or ideas through forms other than verbal speech or print speech involving actions and other nonverbal expressions double jeopardy the prosecution of a person twice for the same criminal offense prohibited by the Fifth Amendment in all but a few circumstances exclusionary rule a criminal procedural rule stating that illegally obtained evidence is not admissible in court Miranda wamings a series of statements informing criminal suspects on their arrest of their constitutional rights such as the right to remain silent and the right to counsel required by the Supreme Court s 1966 decision in Miranda 12 Arizona probable clause cause for believing that there is a substantial likelihood that a person has committed or is about to commit a crime selfincrimination providing damaging information or testimony against oneself in court The Constitutionwsis for our Civil Liberties Safeguards in the Original Constitution A writ ofhabeas corpus requires that a specific prisoner be brought before a judge to explain why the prisoner is in jail This prevents government officials from throwing political opponents in jail for no reason The Constitution prohibits bills ofattairza er legislative acts that directly that directly punish and individual or group without a trial The Constitution also prohibits Congress from passing ex postfacto laws An eX post facto law would punish an individual for doing something that was legal at the time The Bill of Rights When the Constitution was drafted the Framers believed that the individual states constitutions already contained enough protection for the people However the Antifederalists refused to ratify the Constitution without a Bill of Rights to ensure the protection of the citizens rights and liberties The Supreme Court has the final say in how far our civil liberties go The Incorporation Principle The Court began applying the Bill of Rights to the states with the Fourteenth Amendment which states that no state could deny citizens their rights without due process of law In 1925 the Bill of Rights was incorporated under the Fourteenth Amendment so no state may deny its citizens those rights Several other amendments have also been incorporated by the Supreme Court not including right to a grand jury hearing and the right to refuse to quarter soldiers Protections under the First Amendment Freedom of Religion Even though the original colonists came to America to escape religious persecution they were not very religiously tolerant So in order to protect the people and prevent government interference in the church the national government cannot establish a religion or prohibit the free exercise of religion This does not mean that the government cannot support religion in general and even some meetings of Congress open in prayer which has been ruled constitutional as recently as 2014 Most controversies surrounding the establishment clause have to do with schools such as whether times of prayer can be promoted during class and if creationism should be taught alongside evolution Belief is different from practice Although the government cannot inhibit a person s belief if the practice of their religion interferes with the law they may still be convicted such as Mormons who practice polygamy Freedom of Expression The First Amendment protects both verbal speech and symbolic speech The Court ultimately decides what speech is protected Speech that impedes on the rights of others especially if it puts others in harm s way is not protected Speech that presents a clear and present danger might lead to some evil or is directed to inciting imminent lawless action is not protected by the Court Fraud libel slander and obscenity that lacks any literary or artistic value have never been protected under the First Amendment Freedom of the Press Freedom of the press is very similar to freedom of speech However some censorship has been permitted at different times when articles were deemed inappropriate The Right to Privacy The Abortion Controversy Abortion is one of the most debated issues today Although the decision made following Roe v Wade made abortion legal after the first trimester this is no longer the case and states have passed laws that make it more and more difficult to get an abortion Do We Have the Right to Die The right to physician assisted suicide is another debate The Supreme Court did not rule that assisted suicide was a constitutional right but it also did not rule that state laws that permitted assisted suicide were unconstitutional Privacy and Personal Information Congress has passed several acts to protect our privacy such as driving records and medical records However the Internet makes protecting privacy very difficult and it is hard to determine whether acts like cyberbullying are protected under free speech or not Personal Privacy and National Security After 911 national security became of the utmost importance and it seemed necessary to undermine some civil liberties The NSA could trace phone calls without a warrant However acts that were unconstitutional were eventually stopped A few people who leaked national security secrets have had to leave the country for fear of imprisonment Some Americans are very concerned about this lack of privacy while others rely on the fact that they have nothing to hide The Rights of the Accused The Rights of Criminal Defendants It is important that criminals have rights because without them the government could decide that anyone was a criminal even an innocent Criminal rights include necessity of probable cause due process of law prohibition of double jeopardy protection against selfincrimination right to a speedy trial by jury and the right to legal counsel The Exclusionary Rule Any evidence uncovered in an unlawful way cannot be used as evidence in court The Miranda Warnings The Miranda clari es when criminal rights go into effect usually immediately after arrest The arresting of cer is required by law to eXplain the suspects rights to them immediately The Erosion of Miranda Miranda has not always held up in court After several rulings suspects must actually request an attorney before the police have to stop questioning them alone The new trend of recorded interrogations ful ll the Fifth Amendment right without the use of the Miranda possibly making it obsolete in the coming years Lecture Notes Liberties and Rights Let s say the Oklahoma Nazi Party if there was such a thing wanted to hold a demonstration in Norman What arguments could be made for or against such a request The Skokie Case 39 1977 National Socialist Party of America Nazis wanted to hold a demonstration carry signs wear uniforms 39 Rejected by Chicago who required insurance settle on suburban Skokie home of thousands of Jewish residents 39 City passes new requirements insurance required no demonstrations by hostile groups 39 Freedom of expression lawsuits lead courts to side with Nazis Interpreting the First Amendment Seems straightforward but not really Might think of a pendulum swinging between freedom and protection Pendulum shifts based on state of affairs wartime v peacetime post 911 39 Today focus on historical and modern challenges to some of these liberties Original Philosophies 39 Founders didn t always live up to these ideals eX Alien and Sedition Acts Earliest major speech case 1919 s Schenck case clear and present danger as test of 1917 Espionage Act was passing out yers subverting the military during WWI Near V Minnesota 1931 key case in favor of free expression by newspapers in a time of peace newspaper editor wanted to make his name by investigating and outing politicians Over time shift from balancing doctrine to what some call fundamental freedoms doctrine where government has to meet heavy burden Supreme Court is more likely to be in favor of an individual over the government New York Times v United States 1971 leaked classified documents on state of Vietnam War an example of government failing to meet this burden Who s swinging the pendulum Three cases above government versus individualsmedia At times government action built on foundation of public opinion post 911 citizens are concerned and more willing to give up freedoms until public opinion shifts again A Gallup Question In order to curb terrorism in this country do you think it will be necessary for averagre Americans to give up some freedoms 1997 30 percent agree before 911 however knew of explosion of terrorism in the Middle East and Africa during the 70s Post 911 four years later just under 60 percent agree By 2009 back down to 30 percent Similar downward trends for national ID cards gov t ability to monitor credit cardsphone email Key to moving that pendulum perception of threat Testing Tolerance Vague questions like do you believe in freedom of speech lead to strong support Start naming groups support drops Sullivan Piereson and Marcus the least liked group changes over time very different in 1950s communists and atheists 1970s Nazis KKK feminists 2000s radical Islam Why Threats change new issues pop onto agenda Norms and Power Conditioning Marcus Sullivan TheissMorse and Wood tolerance is shaped by multiple assessments of the situation Do we think demonstrators will follow norms cooperate with police follow routes or be violent and cause trouble Do we think demonstrators have any chance of gaining power The Skokie example no to the first a mixed history on the second Bradley Effect people say they will vote for an African American to appease others but they will really vote for the old white man throwing off polls