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Chapter 18: Civil Liberties

Politics, Culture, and Civil Liberties


I. If costs are small and widely distributed, then one would expect that political
activity to reduce those costs would be infrequent and often ineffective.
A. Moreover, some of these costs will occur in the distant future, if at all.
Ordinary people are not politically sensitive to such distant and
hypothetical burdens.
II. There are three reasons why the liberties claimed by some ever become a
major issue. In two of the three the politics surrounding civil liberties are
similar to those around any other issues.
A. First, there might be rights in conflict—in which case we have interest
groups.
B. Second, passions may be inflamed by a skilled policy entrepreneur.
C. The third reason makes the politics of civil liberties different from that
of most issues: the political culture of the United States contains
principles that are in conflict with one another.
Rights in Conflict
I. The Constitution and the Bill of Rights contain a list of competing rights and
duties. That competition becomes obvious when one person asserts one
constitutional right or duty and another person asserts a different one.
II. Political struggles over civil liberties follow much the same pattern as
interest group politics involving economic issues.
A. Sometimes the opposed groups are entirely private; sometimes one
or both are government agencies. Often their clashes end up in
courts.
Policy Entrepreneurs
I. Just as a skilled policy entrepreneur can sometimes arouse legislators to act
against the normally undisputed claims of an interest group, so also can
such an entrepreneur sometimes arouse people to take action against the
rights and liberties claimed by political or religious dissidents.
A. The success of entrepreneurial politics, whether involving money
interests or civil liberties, often depends on the existence of a crisis.
II. In each case a real threat led the government to narrow the limits of
permissible speech and activity. Almost every time such restrictions were
imposed, the Supreme Court was called upon to decide whether Congress
had drawn those limits properly.
A. In most instances the Court tended to uphold the legislation. But as
time passed and the crisis ended, popular passions abated and many
of the laws proved to be unimportant.
Cultural Conflicts
I. Ethnic, religious, and cultural differences have given rise to different views
as to the meaning and scope of certain constitutionally protected freedoms.
A. Even within a given cultural tradition there are important differences
of opinion as to the balance between community sensitivities and
personal self-expression.
Interpreting and Applying the First Amendment
I. The First Amendment has roughly two parts: one protecting freedom of
expression and the other protecting freedom of religion.
Speech and National Security
I. The traditional view of free speech and a free press was expressed by
William Blackstone.
A. A free press is essential to a free state, he wrote, but the freedom
that the press should enjoy is the freedom from prior restraint—that
is, freedom from censorship, or rules telling a newspaper in advance
what it can publish.
B. The US Sedition Act of 1798 was in keeping with the traditional
English law. Like it, the act imposed no prior restraint on publishers; it
did, however, make them liable to punishment after the fact.
II. Congress is 1917-1918 placed restrictions not on publications that were
critical of the government but only on those that advocated “treason,
insurrection, or forcible resistance” to federal laws or attempted to foment
disloyalty or mutiny in the armed services.
A. In 1919 the new law was examined by the Supreme Court when it
heard the case of Charles T. Sphenck, who had been convicted of
violating the Espionage Act because he had mailed circulars to men
eligible for the draft urging them to resist.
B. Justice Oliver Holmes announced a rule by which to settle the matter.
It soon became known as the clear-and-present-danger test. In this
case things that might be safely in peacetime may be punished in
wartime.
III. During the same period the Court for the first time came to grips with the
power of state governments to punish speech.
A. The Bill of Rights was originally intended only to limit the powers of
the federal government. The adoption in 1868 of the 14th Amendment,
however, brought into the Constitution language that for the first time
created the possibility that some or all of the Bill of Rights might now
restrict the states’ actions.
B. The key phrase was the due-process clause: “No state shall…deprive
any person of life, liberty, or property, without due process of law.”
For over ½ a century after 1868, the Supreme Court steadfastly
denied that the due-process clause made the Bill of Rights applicable
to the states. Therefore, state legislatures could pass sedition laws or
antiobsenity laws without fear of having them overturned by the
Supreme Court.
C. In 1925 the Supreme Court decided that freedom of speech and of the
press were among the “fundamental personal rights” protected by the
due-process clause of the 14th Amendment from infringements by
state action.
IV. The clear-and-present-danger test was a way of balancing the competing
demands of free expression and national security.
A. As the memory of WWI and the Red Scare evaporated, the Court
began to develop other tests, ones that shifted the balance more
toward free expression.
B. But when a crisis reappears, the Court has tended to defer to
legislative judgments about the need to protect national security.
V. As popular worries about communism began to subside and the membership
of the Supreme Court changed, the Court began to tip the balance more
toward free expression.
A. By 1957 the Court made it clear that for advocacy to be punished, the
government would have to show not just that a person believed in the
overthrow of the government but also that he was using words
“calculated to incite” that overthrow.
B. By 1969 the pendulum had swung to the point where the speech
would have to be judged likely to incite “imminent” unlawful action.
What is Speech?
I. The Court has held that there are at least 4 forms of speaking and writing
that are not automatically granted full constitutional protection: libel,
obscenity, symbolic speech, and false advertising.
Libel
I. A libel is a written statement that defames the character of another person.
It must be proved that the libelous statement is false.
II. If you are a public figure, it is much harder to win a libel suit. They must not
only prove that the publication was false and damaging but also that the
words were published with “actual malice.”
Obscenity
I. Obscenity is not protected by the First Amendment. The Court has always
held that obscene materials, because they have no redeeming social value
and are calculated chiefly to appeal to one’s sexual rather than political or
literary interests, can be regulated by the state.
II. The current view of the Court is that localities can decide for themselves
whether to tolerate hard-core pornography; but if they choose not to, they
must meet some fairly strict constitutional tests.
A. One constitutionally permissible way to limit the spread of
pornographic materials has been to establish rules governing where in
a city they can be sold.
III. With the advent of the internet it has become more difficult for the
government to regulate obscenity.
A. It is difficult to apply the Supreme Court’s standard for judging
whether sexual material is obscene—the “average person” applying
“contemporary community standards”—to the internet, because there
is no easy way to tell what “the community” is.
Symbolic Speech
I. You cannot ordinarily claim than an illegal act should be protected because
it is meant to convey a political message. The Court reasoned that giving
symbolic speech the same protection as real speech would open the door to
permitting all manner of illegal actions if the perpetrator meant thereby to
send a message.
Who is a Person?
I. The Court has decided that a corporation, like a person, has certain First
Amendment rights, as do organizations.
II. Even though corporations have some First Amendment rights, the
government can place more limits on commercial than on noncommercial
speech.
A. If the regulations are too broad or do not serve a clear interest, then
ads are entitled to some constitutional protection.
III. Under certain circumstances, young people may have less freedom of
expression than adults.
A. School-sponsored activities can be controlled so long as the controls
are “reasonably related to legitimate pedagogical concerns.”
Church and State
I. The First Amendment has two parts. The first, often referred to as the free-
exercise clause, states that Congress shall make no law prohibiting the “free
exercise” of religion. The second, which is called the establishment clause,
states that Congress shall make no law “respecting an establishment of
religion.”
The Free-Exercise Clause
I. The free-exercise clause means that Congress cannot pass a law prohibiting
a religious practice.
A. In general the courts have treated religion like speech: you can pretty
much do or say what you want so long as it does not cause serious
harm to others.
II. Even some laws that do not appear on their face to apply to churches may
be unconstitutional if their enforcement imposes particular burdens on
churches or greater burdens on some churches than others.
III. Having the right to exercise your religion freely does not mean, however,
that you are exempt from laws binding other citizens, even when that law
goes against your religious beliefs.
The Establishment Clause
I. The Court has interpreted the establishment clause to mean that the
Constitution erects a “wall of separation” between church and state.
II. Since 1947 the Court has applied the wall-of-separation theory to strike
down as unconstitutional every effort to have any form of prayer in public
school.
A. The Court has held that laws prohibiting teaching the theory of
evolution or requiring giving equal time to “creationism” are
religiously inspired and thus unconstitutional.
III. The wall-of-separation principle has not been easy to apply. The Court has
tried to sort out the confusion by developing a three-part test to decide
under what circumstances government involvement in religious activities is
improper. That involvement is constitutional if it meets these tests:
1. It has a secular purpose
2. Its primary effect neither advances nor inhibits religion
3. It does not foster an excessive government entanglement with
religion
Crime and Due Process
I. The central problem in interpreting the those parts of the Bill of Rights that
affect people accused of a crime have been to decide not only what they
mean but also how to put them into effect.
II. There are 2 ways to provide protection against unreasonable searches.
A. One is to let the police introduce in court evidence relevant to the
guilt or innocence of the person, no matter how the evidence was
obtained, and then, after the case, punish the police officer if the
evidence was gathered improperly.
B. The other way is to exclude improperly gathered evidence from the
trial in the first place, even if it is relevant to the case.
The Exclusionary Rule
I. The second method relies on the exclusionary principle. That rule holds that
evidence gathered in violation of the Constitution cannot be used in a trial.
A. The rule has been used to implement two provisions of the Bill of
Rights—the right to be free from unreasonable searches and seizures
and the right to not be compelled to give evidence against oneself.
II. Not until 1949 did the Supreme Court consider whether to apply the
exclusionary rule to the states.
A. In Mapp v. Ohio, the Court required the use of the exclusionary rule as
a way of enforcing a variety of constitutional guarantees.
Search and Seizure
I. After the Court decided to exclude improperly gathered evidence, the next
problem was to decide what evidence was improper.
II. The police can reasonably search someone under two circumstances—when
they have a search warrant and when they have lawfully arrested you.
A. A search warrant is an order from a judge authorizing the search of a
place; the order must describe what is to be searched and seized, and
the judge can issue it only if he or she is persuaded by the police that
a probable cause exists to believe that a crime has been committed
and that the evidence bearing on that crime will be found at a certain
location.
B. You can also be searched if the search occurs when you are being
lawfully arrested. You can be arrested if a judge has issued an arrest
warrant for you, if you commit a crime in the presence of a police
officer, or if the officer has probable cause to believe that you have
committed a serious crime.
III. The courts have elaborated a set of rules that are complex, subject to
frequent change, and quite controversial. In general the police, after
arresting you, can search you, things in plain view, and things or places
under your immediate control.
Confessions and Self-Incrimination
I. The constitutional ban on being forced to give evidence against oneself was
originally intended to prevent the use of torture to extract confessions. It
has since been extended to cover many kinds of statements uttered not out
of fear of torture but of lack of awareness of one’s rights.
II. For many decades the Supreme Court had held that involuntary confessions
could not be used in federal criminal trials but had not ruled that they were
barred from state trials.
A. In the 1960s it changed its mind in two cases—Escobedo and Miranda.
B. The Miranda case initiated the practice of informing people of their
rights upon arrest, and mandating the presence of a lawyer when you
appear in a police lineup and when you are being questioned to see
whether you are competent to stand trial.
Relaxing the Exclusionary Rule
I. The courts began to decide a number of cases in ways that retained the
exclusionary rule but modified it by limiting its coverage and by
incorporating what was called a good-faith exception.
Terrorism and Civil Liberties
I. The attacks of September 11 raised important questions about how far the
government can go in investigating and prosecuting individuals.
II. The main provisions of the Patriot Act are:
1. Telephone taps. The government may tap, if it has a court order, any
telephone a suspect uses instead of having to get a separate order for
each telephone
2. Internet taps. The government may tap, if it has a court order,
internet communications
3. Voice mail. The government, with a court order, may seize voice mail
4. Grand jury information. Investigators can share with government
officials thins learned in secret grand jury hearings
5. Immigration. The attorney general may hold any noncitizen who is
thought to be a national security risk for up to 7 days. If the alien
cannot be charged with a crime or deported within that time, he will
be detained if he is certified to be a security risk.
6. Money laundering. The government gets new powers to track the
movement of money across US borders and among banks
7. Crime. This provision eliminates the statute of limitations on terrorist
crimes and increases the penalties.
III. A military trial is carried on before a commission of military officers and not
a civilian jury. The tribunal can operate in secret if classified information is
used as evidence.
A. 2/3 of the commission must agree before the suspect can be
convicted and sentenced. If convicted, the suspect can appeal to the
secretary of defense and the president, but not to a civilian court.
IV. In addition to the Patriot Act and the presidential order about military
tribunals, key federal agencies have intensified their investigations. Many of
these measures have been criticized by civil liberties organizations and may
be challenged in court.
A. The Court has typically granted exceptional powers to the federal
government during wartime.

Summary
This chapter addresses the issue of civil liberties, the role they play in society and
how they have changed over time. These include freedom of speech, religion, and
due process under the law. These laws are often difficult to interpret and apply
consistently because of cultural changes over time, the presence of competing
rights, and the subtleties of different situations.