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.