American National GovernmentAmerican National Government

Chapter 4 Civil Liberties

Pezza

Civil LibertiesCivil Liberties

• Individual rights that are constitutionally protected against infringement by government.

• Found in the Bill of Rights AND…

• In case law developed and defined by the federal courts when interpreting the constitution.

Important ExamplesImportant Examples

• First Amendment: speech, press, “expression,” religion, assembly

• Fourth Amendment: Search and Seizure• Fifth Amendment: Self-incrimination,

double jeopardy, due process• Sixth Amendment: right to an attorney,

speedy and public trial• Eighth Amendment: Excessive bail, cruel

and unusual punishment

14th Amendment

• No state shall make or enforce…

• Equal protection of the law…

• Life, liberty or property…due process of law

• The funnel clause of the 14th amendment extends protections against the federal government to the states as well.

• Incorporation cases

Defining Civil Liberties has become Defining Civil Liberties has become increasingly complex in recent increasingly complex in recent years.years.• Rights are balanced against competing

rights AND society’s collective interest.

• Example: Privacy vs. National Security

Topics in this chapter…Topics in this chapter…

• Freedom of Expression

• Due Process of Law

• 14th Amendment Incorporation

United States Supreme Court 1984United States Supreme Court 1984

• “The freedom to speak one’s mind is not only as aspect of individual liberty- and thus good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole.”

Freedom of ExpressionFreedom of Expression

• Foundation of our government

• Not an absolute: reputation of others, national security, freedom of others

Limits on Free SpeechLimits on Free Speech

• Schenck v. United States

• Justice Oliver Wendell Holmes “Fire!”

• “Clear and present danger” test

• Later replaced by the imminent-lawless-action test.

General Notes on General Notes on Freedom of ExpressionFreedom of Expression

• Cold War Era limited speech directed at the overthrow of the government (Red Scare)

• Justice Stone: Freedom of expression ought to have a “preferred position” when weighed against competing interests

• Therefore, government must show that security is directly and substantially imperiled before it can limit expression.

More General NotesMore General Notes

• Courts also protect symbolic speech but with more limits.

• Case studies: – Draft card burning– Flag burning

Press Freedom and Prior RestraintPress Freedom and Prior Restraint

• Case Study

• New York Times Co. v. United States– “Any system of prior restraints on the press is

unconstitutional unless the government can clearly justify the restriction.”

– Any attempt by government to prevent expression carries a “heavy presumption” against its constitutionality.

Free Expression and Free Expression and State Governments State Governments• 14th amendment incorporation

• The 14th amendment’s due process clause would be meaningless if state were allowed to deny freedoms.

• Supreme court Rules only on “real cases.”