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Synthesis - Civil Liberties

Civil Liberties: specific individual rights that are protected from government infringement under the Constitution. Civil liberties are individual rights, but differ from civil rights.

Map of Barron's Wharf, which Barron said had been
 "damaged" by Baltimore when the rivers were modified

The Bill of Rights was enacted in 1791 since it was not addressed in the Constitution. The Bill of Rights originally protected only against infringement by the national government, and Barron v. Baltimore (1833) affirmed that the Bill of Rights did not protect individuals from the state governments.

The 14^th amendment, ratified in 1868, included the due process clause: “no state shall… deprive any person of life, liberty, or property without due process of law”. In Gitlow v. New York, the Supreme Court invoked the due process clause to protect a 1^st amendment right, effectively saying that states do not have complete authority over freedom of expression. Other cases would allow the Court to broaden the protection to include all the 1^st Amendment rights. Through these cases, the court engaged in selective incorporation, the process by which certain rights in the Bill of Rights become applicable through the due process clause to actions by the state governments

Freedom of Expression is the right to think and say what you want. Free expression can be denied if it endangers national security, wrongly damages the reputation of or deprives others of their basic rights. The early period: the uncertain status of the right of free expression. The Sedition Act of 1798 made it a crime to print harshly critical stories about the president or other national officials; The act was later nullified. Schlenk v. United States (1919): clear-and-present-danger test for determining when the government could legally prohibit freedom of speech

In the modern period, free expression has become more protected. Bradenburg v. Ohio (1969): limited the test to prohibit free speech to the likelihood of imminent lawless action. The protection of hate speech does not extend to hate crimes. In Texas v Johnson (1988), the Supreme Court declared that symbolic speech was protected, which, in this case, was the burning of the US flag. In  Tinker v. Des Moines (1969), students who wore black armbands to protest the Vietnam War to school were sent home by the school. The Court declared that the silent protest via armbands was a form of symbolic speech.

In Dejonge v Oregon (1937), the court incorporated the Fourteenth Amendment’s due process clause to apply to the freedom of assembly. Before government can lawfully prevent freedom of speech on the basis of it potentially causing harm, it must prove that it lacks an alternative way to prevent the harm from happening (e.g., assigning police to control the crowd). Government cannot regulate the content of a message.

New York Times Co. v. United States (1971): Court ruled that the Times’s publication of the “Pentagon Papers” could not be blocked by the government. The Supreme Court ruled that it was unconstitutional to have prior restraint: government prohibition of speech or publication before it occurs. An exception is wartime reporting, where the government can censor news reports that might compromise a military operation or endanger American troops.

It false information about a person is published (libel) or spoken (slander), the injured party can sue for damages. It is very difficult, if not impossible, for public officials to sue for libel/slander, since people would be afraid otherwise to criticize those in power. In New York Times v. Sullivan (1964), the Court declared that public officials need to be able to show that there was a knowing or reckless disregard of the truth.

Obscenity did not have a constitutionally clear definition. Miller v. California (1973) established a three-part test:

1.  Patently offensive
2.  Precisely described in law as obscene
3.  Taken as a whole, of prurient interest and has no social value

A 2003 federal statute banned child pornography because it encouraged using children in the making of pornography, which is a crime. The Child Online Protection Act (1998) also restricted the transmission of obscene material that would be accessible to children.

The Freedom of Religion is another civil liberty. The establishment clause stated that Congress may not favor one religion over another or support religion over no religion. Engel v. Vitale (1962): establishment clause prohibits the recital of prayers in public schools. This became part of the wall of separation doctrine: strict separation of church and state. The accommodation doctrine was a more relaxed interpretation: state can aid religious activity if passes Lemon test from Lemon v. Kurtzman (1971):

1.       Statute must have a secular legislative purpose,
2.      Must neither advance nor inhibit religion,
3.     And must not show an “excessive government entanglement”

The free exercise clause states that Americans can hold any religious belief. Exception: the prohibition of polygamy by Mormons.

The Right to Bear Arms is very important to the individualistic nature of Americans. The Second Amendment prevents the national government from allowing militia to join together. In District of Columbia v. Heller (2008), the Court ruled that the 2^nd Amendment gives citizens the right to possess a firearm unconnected with service in a militia, and to use that firearm for traditional lawful purposes (self-defense). DC was a federal territory, so McDonald v. Chicago (2010) extended the ruling to states.

The AR-15 assault rifle is perfectly legal to carry around in most states. 'merica

The Right of Privacy is a right that was not explicitly stated by the Constitution, but is a right that is implied, according to the Court. This is in accordance with the Ninth Amendment, which says that rights are not limited to those in the Constitution. Griswold v. Connecticut (1965) challenged a state law prohibiting the use of condoms and other birth control devices, establishing “the right of privacy” Roe v. Wade (1973) also invoked the right of privacy, giving women full freedom to choose abortion during the first three months of pregnancy. Bowers v. Hardwick (1986): Supreme Court ruled against same-sex consensual relations. Lawrence v. Texas (2003): Supreme Court ruled that Texas’s sodomy law violated “the right of privacy” implied by a grant of liberty in the 14^th. In addition to Mapp v. Ohio, in Nix v. Williams (1984), the Court allowed “inevitable discovery” of tainted evidence, and in United States v. Leon (1984), the Court created the “good faith” doctrine, where police may submit evidence that they thought they legally required.

Rights of persons accused of crime: Procedural due process: the procedure authorities must follow before a person may be lawfully punished for his/her crimes. The first phase of arrest is the Suspicion Phase, which is protected from unreasonable search and seizure. The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath of Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A person caught in the act of a crime can be arrested on the spot and searched. Whren v. United States (1996): Officers had a hunch that suspect was a drug dealer and stopped him for a minor traffic infraction. The SC ruled that the motive was irrelevant as long as there was an independent justification to stop. This also established the plain view doctrine: Evidence in plain view is admissible even if not related to the reason for seizure. Indianapolis v. Edmund (2001): Police may not search vehicles via roadblock to enforce anti-narcotics law. Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002): SC is more lax in allowing students to be tested in public schools.

The next is the Arrest Phase, where you get protection against self-incrimination. The Fifth Amendment says that an individual is protected against having to testify against himself. Miranda v. Arizona (1966): Police cannot legally begin their interrogation until the suspect has been informed of the rights they hold for themselves, or “Miranda warning”, which begins with "You have the right to remain silent...".

The next phase is the Trial Phase: The Right to a Fair Trial. People will need a Legal Counsel and Impartial Jury. The Fifth Amendment says that suspects charged with a federal crime cannot be tried unless indicted by a grand jury; this has not been incorporated, but is still done by half of the states. Johnson v. Zerhst (1938) established that Criminal defendants must be provided a lawyer at government expense if they cannot afford legal counsel. In Gideon v. Wainright (1963), the Court extended the requirement to include state felony cases. In Witherspoon v. Illinois (1969), the Court invalidated Illinois’ policy of allowing an unlimited number of challenges in capital cases, as it was used to get rid of any on the jury who felt qualms about death sentences.

Selective incorporation of fair trial rights was slower than that of free expression rights, but increased in the 1960s. Powell v. Alabama (1932) established that states had to provide legal counsel to defendants who were too poor to hire one. In Mapp v. Ohio ( 1961), because she defeated Apple  “The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” and the ruling that information obtained through an unconstitutional search can not be used in trial. The Supreme Court also ruled in the 60’s that defendants:

1. must be provided a lawyer in felony cases if they cannot afford to hire one,
2. have the right to remain silent and have legal counsel at the time of arrest, have the right to a jury trial in crime proceedings,
3. and cannot be subjected to double jeopardy; tried a second time for the same thing

The exclusionary rule bars the use of evidence that was obtained in violation of the defendant’s rights.

The last phase is the Sentencing Phase: The Eighth Amendment prohibits “cruel and unusual punishment” of those convicted of crime. Atkins v. Virgina (2002) and Panetti v. Quarterman (2007): death penalty for the mentally retarded is “cruel and unusual punishment. An appeal is not guaranteed in the Constitution after conviction, but the federal government and the states permit at least one appeal. Prisoners can appeal their conviction to a federal court. Racial profiling is a common police practice that results in the unequal treatment of minorities. The US is “tough on crime”: America has the highest incarceration rates in the world. The US drug policy differs from those of other Western nations, who rely on treatment programs instead of incarceration for nonviolent drug offenders.

In time of war, the courts have upheld government policies that would not be permitted in peacetime. The Bush administration sent “enemy combatants” – individuals who could be engaged in hostile military actions against US military forces – to detention camps like Guantanamo Bay. The SC issued rulings that rebuked some of these policies. After 911, Congress passed the USA Patriot Act, which lowered the standard for judicial approval of wiretapping when terrorist activity was at issue. In 2005, the New York Times revealed that the NSA had been authorized to wiretap international phone calls and e-mail messages originating in the US, which had been earlier prohibited.

Average Americans have shown themselves to be less supportive of individual rights. Judges tend to favor individual rights more, similar to what the framers’ had in mind.

Is free speech in America too free?

        In the documentary "Significant Minority", the Westboro Baptist Church is shown as an example of free speech being taken to a most extreme and controversial extent. Founded in 1955, the Westboro Baptist Church preaches vulgarly hate-filled messages that criticize gays, America, and Catholic priests. The WBC interprets the Bible in their own special way; for instance, the WBC insists that 911 was an act of God against America for allowing gay soldiers to be enlisted. The group spreads their messages by holding signs in public such as "GOD HATES FAGS", and is enthusiastic to give their children these signs to hold. The WBC is also strongly against the Catholic Church, voicing concern and anger over a child rape scandal involving Catholic priests, along with the fact that the Pope had tried hide the scandal. The WBC is also known for picketing at people's funerals; After picketing at a gay soldier's funeral, the WBC protestors got successfully sued by the soldier's family members for compensatory damages and punitive damages for invasion of privacy and emotional distress (Belzman, 2007, 3). Despite their "controversial" protests, the (currently 39) members of the Church perform acts of protest that are allowed and within the bounds of their civil liberties in the Constitution. ("About Westboro Baptist Church", 2014, 1)

        Judging by the actions of the WBC, I think that free speech is not worth the intrinsic value of freedom over the antisocial effects it can produce. The Westboro Baptist Church definitely has opinions and beliefs that I would establish as crazy. Apart from their negative perception of the Pope, their views are a general negative influence on society. In particular, the church members are allowed to teach their children their terrible beliefs and give them profane signs to hold up. These children could easily grow up to become hate-filled and violent, after being taught at a young age to hate homosexuals. While allowing controversial statements to be freely expressed supposedly can keep people's brains active, the Westboro Baptist Church is more of a headache than a constructive think tank. (It's actually ironic that the WBC condemns the very country that allows them their freedom to express their views.) I think that it is okay to protest and hold up signs, but that it is not okay to teach your children to hold up hateful anti-gay signs. Therefore, the views of the WBC should determine whether or not they are allowed freedom of offensive speech. I think that America should do the converse of what Russia is doing with gay expression: make it illegal to teach kids to hate gays. While that is unlikely to happen, I believe that over time, the people who believe in the WBC's beliefs (mostly family) will eventually fade away out of society as homosexuals become more and more a normal part of society.

Documentary: https://www.youtube.com/watch?v=4ygBjvKKQqM
Belzman, Josh. "Father Wins Millions from War Funeral Pickets."Msnbc.com. Msnb, 31 Oct. 2007. Web. 09 Oct. 2014.
" About Westboro Baptist Church." About Westboro Baptist Church. Westboro Baptist Church, n.d. Web. 08 Oct. 2014.

Snowden: Hero or Traitor?

            Edward Snowden is an international subject of much controversy. Snowden worked as an NSA contractor for Dell and later on, Booz Allen. Snowden traveled to Hong Kong and gave information he acquired about the NSA’s domestic and international surveillance programs to two reporters to leak. Edward Snowden later traveled to Russia, where he did not have a visa. The United States had charged Snowden of theft and espionage, and also canceled his passport, leaving Snowden in airport limbo for 39 days before Russia granted him asylum (Cole, 2014, 21). Snowden revealed that the NSA had a massive metadata collection program of email and phone records from Verizon customers (Cole, 2014, 16). The leaks also reveal that the NSA in a program called PRISM and can gather information such as search history and emails from companies including Facebook and Google (Cole, 2014, 17). Snowden also revealed that the US as part of an intelligence alliance called the Five Eyes has been spying on the other countries in the alliance and sharing information (King, 2014, 1). The issues that Snowden have brought to question revolve around mass surveillance, government secrecy, and the balance between national security and personal privacy. The Supreme Court ruled in a unanimous decision on June 25, 2014 that phone searches of criminal suspects require a warrant. This ruling goes with the Fourth Amendment of the Constitution, which offers protection against “unreasonable search and seizure”. (Mears, 2014, 23)

Revelation	Details	Source
Secret court orders	Secret court orders allow the NSA to access customer phone records from all the telephone companies	(Bicchierrai, 2014, 4)
PRISM	The NSA does not have direct access to companies’ user information, but it can force them to comply and hand over information	(Bicchierrai, 2014, 9)
NSA spies on foreign countries or foreign leaders	NSA has spied on German chancellor Angela Merkel and Argentinian President Dilma Roussef	(Bicchierrai, 2014, 15)
XKeyScore	XKeyScore is a program that the NSA uses to spy on “nearly everything a user does on the Internet”	(Bicchierrai, 2014, 16)
NSA efforts to crack encryption	NSA has developed a series of techniques and tricks to circumvent Internet security, undermining Internet security as a whole	(Bicchierrai, 2014, 17)
NSA hacking team techniques revealed	The NSA has an elite hacker team codenamed “Tailored Access Operations’ (TAO). The team infects computers when all other operations fail.	(Bicchierrai, 2014, 21)
NSA can hack into Google and Yahoo data centers	Self-explanatory. Tech companies are enraged.	(Bicchierrai, 2014, 24)
NSA collects phone information	NSA “collects it all”, intercepting 200 million text messages every day in a program called Dishfire	(Bicchierrai, 2014, 27)
NSA intercepts phone calls	NSA intercepts all the phone calls in Afghanistan and the Bahamas, along with all the phone metadata in Mexico, Kenya, and the Philippines	(Bicchierrai, 2014, 30)

Bicchierrai, Lorenzo F. "Edward Snowden: The 10 Most Important Revelations From His Leaks." Mashable. Mashable, 5 June 2014. Web. 06 Oct. 2014. <http://mashable.com/2014/06/05/edward-snowden-revelations/>.

Cole, Mathew. "Edward Snowden: A Timeline - NBC News." NBC News. NBC, n.d. Web. 05 Oct. 2014. <http://www.nbcnews.com/feature/edward-snowden-interview/edward-snowden-timeline-n114871>.

Mears, Bill. "Supreme Court: Police Need Warrant to Search Cell Phones." CNN. Cable News Network, 25 June 2014. Web. 07 Oct. 2014. <http://edition.cnn.com/2014/06/25/justice/supreme-court-cell-phones/>.

King, Eric. "Snowden Spyware Revelations: We Need to Unmask the Five-eyed Monster." The Guardian. The Guardian, 26 Nov. 2013. Web. 7 Oct. 2014. <http%3A%2F%2Fwww.theguardian.com%2Fcommentisfree%2F2013%2Fnov%2F26%2Fsnowden-spyware-five-eyed-monster-50000-networks-five-eyes-privacy>.

Hero:

Raphael, Daniel. "Why Edward Snowden Is a Hero." The Huffington Post. TheHuffingtonPost.com, 07 Nov. 2013. Web. 06 Oct. 2014. <http://www.huffingtonpost.com/daniel-raphael/why-edward-snowden-is-a-h_b_4227605.html>.

"GAP Statement on Edward Snowden and NSA Domestic Surveillance."GAP. Government Accountability Project, 3 Jan. 2014. Web. 07 Oct. 2014. <http://whistleblower.org/press/gap-statement-edward-snowden-and-nsa-domestic-surveillance>.

Cassidy, John. "Why Edward Snowden Is a Hero - The New Yorker." The New Yorker. The New Yorker, 10 June 2013. Web. 06 Oct. 2014. <http://www.newyorker.com/news/john-cassidy/why-edward-snowden-is-a-hero>.

l   Snowden didn’t jeopardize national security: “Snowden spent months meticulously studying every document."

n   Snowden planned the information carefully to not actually release information that would reveal too much.

n   The leak mainly says that the government seized phone logs without warrants and that the NSA tracks user data from large sites.

l   The program is illegal and serves no purpose other than benefit military contractors since NSA is run by the military.

l   The program violates the First Amendment, which gives people free speech.

l   Snowden uncovered questionable activities that the government had hidden from the public.

n   Snowden revealed information that is reasonably illegal and abusive.

n   US District Judge Richard Leon says the bulk telephony metadata program is “likely unconstitutional”.

n   The NSA has the capacity to access vast amounts of user data from Internet companies such as Facebook, Google, Yahoo, Microsoft, and Skype… around the world.

n   Snowden’s actions have rippled (positively) across the world: Government and corporate reforms, Congress bills, lawsuits, etc.

l   Pervasive surveillance does not meet the standard for classified information.

n   Documents cannot be classified to cover illegal or embarrassing government conduct.

n   It can only be so if the country’s population includes most of its enemies

l   There is a clear history of reprisal against NSA whistleblowers.

n   Snowden is criticized for not using the internal channels that have repeatedly failed to address the issues.

n   Previous NSA whistleblowers Tom Drake, William Binney, and J. Kirk Wiebe have been subject to government reprisal including armed FBI raids and had their careers ended

l   Whistleblowing is becoming a criminal act.

n   The government targets those who reveal gross waste, illegality, or fraud instead of those who actually perform misdemeanors.

l   Not one person of the NSA has been charged for spying on the people, nor has any government official been penalized for lying to the public or the Congress.

n   Based on Snowden’s revelations, two NSA officials have lied in open court about the NSA’s capabilities

l   In a surveillance state, the enemy is the whistleblower.

n   Secrecy, retaliation, and intimidation undermine constitutional rights and weaken democratic processes more so than the acts of terror that they purport to protect the citizens from.

Traitor:

Carafano, James. "Defining Edward Snowden." Daily Signal. The Heritage Foundation, n.d. Web. 07 Oct. 2014. <http://dailysignal.com/2014/01/17/defining-edward-snowden/>.

Toobin, Jeffrey. "Edward Snowden Is No Hero - The New Yorker." The New Yorker. The New Yorker, 10 June 2013. Web. 07 Oct. 2014. <http://www.newyorker.com/news/daily-comment/edward-snowden-is-no-hero>.

Kirchick, James. "Edward Snowden, traitor." NY Daily News. NY Daily News, 1 June 2014. Web. 07 Oct. 2014. <http://nydailynews.com/opinion/edward-snowden-traitor-article-1.1811878>.

l   Snowden says complete transparency means freedom, which is naïve

n   Free societies recognize that the government can keep legitimate secrets

n   Democracies operate under the concept of “ordered liberty”

l   Snowden is neither “freedom fighter or whistleblower”

n   His leaks mostly reveal no wrongdoing

l   Snowden’s actions are irresponsible

n   Snowden did not have to leak because there were whistleblower protection laws

n   Snowden betrayed the trust he was given to safeguard the nation’s secrets

l   Snowden’s decision is questionable

l   The NSA obviously was supposed to intercept electronic communications

n   Snowden leaked the very court decision that authorized the programs

n   Snowden was exposing things that didn’t meet his own standards of propriety

l   Snowden was dumping information

n   The Post decided to only publish four of the forty-one slides that Snowden provided, which shows that it exercised more judgment than Snowden did

l   Snowden ran to Hong Kong, which really belongs to China

n   China as an intelligence adversary of the US and may very well take in Snowden’s information on the US spy networks

l   Snowden is in Russia, where he likely could have given Russia national secrets

l   Snowden could disclose the NSA’s domestic surveillance, but exposing America’s foreign intelligence operations makes him become a traitor, not a whistleblower

Personal Opinion

I think that Snowden is more of a hero than a traitor. Snowden revealed that the government had partaken in activities of examining phone logs without getting warrants beforehand. In addition, the court order which had authorized the operation had been kept secret. A law is barely a law if people don't know about it. In this case, the court order was kept secret to hide the fact that the government was spying on people's phones everyday and avoid public criticism. Thus, I believe that this knowledge should have been made public.
Regarding the international espionage, I think the US is untrustworthy for spying on its allies, in cases such as targeting Angela Merkel and Dilma Roussef. I think its use of information from companies like Facebook and Microsoft is abusive, as the companies are forced to hand over information at the government's request. The NSA hacking programs are bad for internet security as a whole and infringe upon protecting liberty. I think however that it is up to the government to do what it thinks is necessary in terms of spying. Snowden may actually have revealed too much information regarding the NSA's hacking techniques, such as the TAO.
I think Snowden was right to run away from the United States, since he would not have much of a life to live in the US after the leak, though it was likely a bad idea to go to Russia. Snowden likely would not willingly give information to the Russians. Russia likewise would want to treat Snowden hospitably to try and look like the bigger man on the issue of espionage.
Snowden’s actions reveal that the US is corrupt at the core. When other whistleblowers brought up issues internally, the government retaliated viciously, raiding their houses and ruining their careers. That was the case with Tom Drake, William Binney, and J. Kirk Wiebe. In a free society, the government should do more to protect whistleblowers instead of criminalizing them for revealing secrets.