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Chapter 4 Civil Liberties LEARNING OBJECTIVES After students have read and studied this chapter they should be able to: Explain the concept of “civil liberties” and give examples. Understand why the Bill of Rights did not initially restrict the states. Understand how the Fourteenth Amendment extended the Bill of Rights to the states, and the meaning of “incorporation theory.” Identify the constitutional basis for freedom of religion and distinguish between the establishment clause and the free exercise clause. Describe current law on the establishment of religion, especially regarding the schools (aid to church schools, school vouchers, prayer in schools, and evolution) and religious displays on public property. Describe current law on the free exercise of religion and the nature of tax-exempt bodies. Understand the concept of “freedom of expression,” including free speech and a free press. Explain the principle of “no prior restraint.” Define “symbolic speech” and “commercial speech.” 31
Explain the historical tests that have been applied to freedom of speech, especially the doctrines of “clear and present danger” and the “incitement test.” Explain the current Supreme Court definition of obscenity and the four criteria that determine its presence. Understand legislative attempts at protecting children from being used for creating pornography and being exposed to obscene materials. Define slander and libel and understand their relation to defamation of character. Explain the pertinent legal issues related to student speech, including student rights, activity fees, and behavior codes. Discuss freedom of speech as it relates to the press, including actual malice and public figures, gag orders, and broadcasting restrictions. Explain the development of the “right to privacy.” Give the historical context as well as the current state of the law regarding abortion. Explain the current debate concerning the issue of the “right to die." Understand how the terrorist attacks of September 11, 2001 have led to antiterrorist legislation restricting certain basic rights. Discuss privacy rights versus security issues, including wiretaps, secret surveillance, and limits on the rights of noncitizens and illegal immigrants. Identify the civil liberties pertaining to rights of the criminally accused, including limitations on police conduct, defendant’s pretrial rights, and defendant’s trial rights. Explain the Miranda rule and the exclusionary rule. TOPICS FOR DISCUSSION What was the historical basis for civil liberties? Are people as concerned today about the protection of their civil liberties as were the founders? What rights would you have included in the Bill of Rights that were not included? (possibilities include an explicit right to privacy and a ban on slavery.) Why were these not included? Are there any rights that you would not have included? How does the provision of the First Amendment guaranteeing free exercise of religion affect religion in schools? To what extent can the government regulate religious practices? 32
Why should the government be prohibited from invoking prior restraint on speech? What impact would prior restraint have if allowed? Is there any group that you think should be banned from speaking? What is the danger of selecting a group and treating it differently from others? (Who gets to decide who is banned?) Do libel laws restrict a free press? Should the press be allowed to publish anything it wants about a person? What if the press had to prove that everything they published was absolutely true? If the press had to prove every word to be true, would we have known about Watergate, the nature of the U.S. involvement in Vietnam, or any other covert activity, public or private? Where did the right to privacy originate? Should people be able to decide for themselves whether to refuse treatment for a terminal illness? Should physicians be able to assist in suicides? What are the advantages and dangers of this practice? Many people complain about the rights of the accused. Why are these rights important? Is there any way to balance the rights of victims and the rights of the accused? BEYOND THE BOOK It is worth pointing out to the students that not all Constitutional protections of civil liberties are found in the Bill of Rights. A few are in the main body of the Constitution, notably the privilege of the writ of habeas corpus, and the ban on bills of attainder (that inflict punishment without trial) and ex post facto laws. These provisions have been imposed on the states by the Fourteenth Amendment just as the Bill of Rights has been. Many of the protections contained in the Bill of Rights are also law in other advanced industrialized nations, but there are exceptions. Among the most important are the widespread existence of established churches and provisions for state support of religion. Examples include the Church of England and laws in countries such as Germany for support of both Protestant and Catholic churches. There seems to be a high correlation between state support for religion and a lack of enthusiasm for religion among the general population. Might this just be a historical accident or could there be a real relationship between the two phenomena? A difficult area concerning freedom of the press is where and how information is obtained. Should the press be allowed to publish information if the information has initially been stolen but is then given to the press? Should the press be required to relinquish information if the information could lead to the prosecution of individuals? These are very complex questions with no simple solutions. Many individuals would prefer the press to assist the police in apprehending and convicting known violators of the law. Others indicate that if the press had to assist the police, the press would not have access to information that the public has a right to know.
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The mechanisms that enforce separation of church and state are sometimes a difficult concept for students to grasp, particularly because the application of the establishment clause is fraught with compromise positions by the courts and executive branch. Churches are not to endorse candidates, but the IRS rarely enforces violations. Displays of the nativity scene in public spaces may be allowed, but only if included as part of a greater secular holiday display. Ask students to argue the relative merits of these compromises within the context of their understanding of the establishment clause of the Constitution.
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CHAPTER OUTLINE Restraints on the actions of government against individuals generally are referred to as civil liberties. The first ten amendments of the U.S. Constitution, the Bill of Rights, set these restraints on the federal government. The most famous is the First Amendment, which provides for freedom of religion, speech, the press, and other rights. I.
The Bill of Rights The framers created a brief document with broad guidelines in structuring the Bill of Rights, knowing that the courts would interpret it over time. It places limitations on the government, thus protecting citizens’ civil liberties. Disagreements continue over the meaning of its simple phrases such as “freedom of religion” or “freedom of the press,” as well as its power over the states. A. Extending the Bill of Rights to State Governments. While the Bill of Rights protected the people from the national government, it did not protect them from state governments. In 1833, Barron v. Baltimore confirmed this. Most states had their own bills of rights, meaning that people in different states essentially lived with different civil rights. In 1868, the Fourteenth Amendment was ratified, and constitutional protections of civil liberties began to be applied to state governments. B. Incorporation of the Fourteenth Amendment. Beginning in 1925, with Gitlow v. New York, the Supreme Court began to apply specific rights depicted in the Bill of Rights to state governments (see Table 4-1). But incorporation theory, the idea that most protections of the Bill of Rights are incorporated into the Fourteenth Amendment, has never been fully accepted by the Supreme Court.
II. Freedom of Religion The First Amendment addresses the issue of religion from two venues: 1) separation of church and state, and 2) free exercise of religion. A. The Separation of Church and State—The Establishment Clause. The First Amendment states that “Congress shall make no law respecting an establishment of religion.” The establishment clause prohibits the creation of a church officially supported by the national government. It creates a “wall of separation between Church and State.” 1.
Aid to Church-Related Schools. In 1971, in Lemon v. Kurtzman, the Supreme Court ruled that state aid could not be used to subsidize religious instruction, and its three-part “Lemon test” is often used to interpret these types of questions. Such aid is ruled out by the establishment clause, but the Court has permitted aid in limited situations.
2.
School Vouchers. One ongoing controversy is whether “school vouchers” can be used for religious schools. Some states’ attempts at education reform involve granting student 35
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