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CHAPTER 4 CIVIL LIBERTIES AND PUBLIC POLICY CHAPTER OUTLINE I. Introduction (pp. 97-99)

A. Civil liberties are individual legal and constitutional protections against the government.

B. Americans’ civil liberties are set down in the Bill of Rights, the first 10 amendments to the Constitution.

II. The Bill of Rights - Then and Now (pp. 99-100)

A. The First Amendment is the source of Americans’ freedom of religion, speech, press, and assembly.

B. The Bill of Rights and the States 1. Barron v. Baltimore. The Bill of Rights restrained only the national

government. 2. Gitlow v. New York relied on the due process clause of the Fourteenth

Amendment to rule that a state government must respect some First Amendment rights.

3. The incorporation doctrine is a legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment.

III. Freedom of Religion (pp. 101-107)

A. The Establishment Clause: “Congress shall make no law respecting an establishment of religion.” (Lemon v. Kurtzman, Zelman v. Simmons-Harris, Engel v. Vitale, and School District of Abington Township, Pennsylvania v. Schempp)

B. The Free Exercise Clause prohibits the abridgment of the citizens’ freedom to worship, or not to worship, as they please.

IV. Freedom of Expression (pp. 107-116)

A. Prior Restraint, or governmental actions that prevent material from being published (censorship), has been consistently struck down by the Supreme Court (Near v. Minnesota).

B. Free Speech and Public Order: the right to protest has been protected to varying extent depending on the political climate (Schenck v. United States).

C. Free Press and Fair Trials 1. Press coverage may interfere with a fair trial. 2. Reporters do not always like to open their files to the courts; shield laws

may protect reporters from revealing their sources (Zurcher v. Stanford Daily).

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D. Obscenity has not been regarded as a fully constitutionally protected area of free speech and press, but remains controversial (Roth v. United States and Miller v. California).

E. Libel and slander: the Supreme Court has held (New York Times v. Sullivan) that statements about public figures are libelous only if made with malice and reckless disregard for the truth.

F. Symbolic speech is an action that does not consist of speaking or writing but that expresses an opinion (Texas v. Johnson).

V. Commercial Speech (pp. 117-118)

A. Introduction B. Regulation of the Public Airwaves, the Federal Communications Commission

regulates the content, nature, and very existence of radio and television broadcasting (Miami Herald Publishing Co. v. Tornillo and Red Lion Broadcasting Co. v. Federal Communication Commission).

VI. Freedom of Assembly (pp. 118-120) A. Right to Assemble, to gather together in order to make a statement.

B. Right to Associate, to associate with people who share a common interest, including an interest in political change (NAACP v. Alabama).

VII. Defendants’ Rights (pp. 120-130) A. Interpreting Defendants’ Rights B. Searches and Seizures 1. Before making an arrest, police need probable cause to believe that

someone is guilty of a crime. 2. The Fourth Amendment forbids unreasonable searches and seizures. 3. The Constitution requires that probable cause exist before issuing a search

warrant. 4. The exclusionary rule prevents illegally seized evidence from being

introduced in the courtroom (Mapp v. Ohio). C. Self-incrimination: the Fifth Amendment forbids self-incrimination and

Miranda v. Arizona set guidelines for police questioning. D. The Right to Counsel: the Sixth Amendment ensures the right to counsel and

Gideon v. Wainwright extended this right to those who cannot afford counsel. E. Trials: Most cases are settled through plea bargaining. F. Cruel and Unusual Punishment

1. The Eighth Amendment forbids cruel and unusual punishment. 2. Almost all of the constitutional debate over cruel and unusual punishment

has centered on the death penalty (Gregg v. Georgia and McClesky v. Kemp).

VIII. The Right To Privacy (pp. 130-133)

A. Is There a Right to Privacy? B. Controversy over Abortion: Roe v. Wade defined the conditions under which

abortions are allowed. Planned Parenthood v. Casey permitted more regulation of abortions.

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IX. Understanding Civil Liberties (pp. 134-135) A. Civil Liberties and Democracy B. Civil Liberties and the Scope of Government

X. Summary (pp. 136-137) LEARNING OBJECTIVES After studying Chapter 4, you should be able to: 1. Understand the constitutional basis of civil liberties and the Supreme Court’s role

in defining them. 2. Discuss the religious liberties guaranteed in the First Amendment. 3. Explain the nature of and the issues involving freedom of expression and

assembly in America. 4. Identify the rights of individuals accused of crimes. 5. Evaluate and discuss the issue of the right to privacy. 6. Understand the impact of civil liberties on democracy and the scope of

government. The following exercises will help you meet these objectives: Objective 1: Understand the constitutional basis of civil liberties and the Supreme Court’s role in defining them. 1. Define the term “civil liberties.”

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2. What was the most important difference between the Supreme Court’s decision in Barron v. Baltimore and Gitlow v. New York?

3. Explain the importance of the Fourteenth Amendment. 4. What is the incorporation doctrine? Objective 2: Discuss the religious liberties guaranteed in the First Amendment. 1. List four Supreme Court cases concerning the establishment clause and comment

on their significance. 1. 2. 3. 4.

2. Compare and contrast the Supreme Court case of Employment Division v. Smith (1990) with the Religious Freedom Restoration Act of 1993.

Objective 3: Explain the nature of and the issues involving freedom of expression and assembly in America. 1. Define the term “prior restraint.”

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2. List and explain the significance of three Supreme Court cases concerning free speech and public order.

1. 2. 3. 3. What is a shield law? 4. How did the Supreme Court define obscenity in the case of Miller v. California? 5. How are the standards for winning libel lawsuits different for public figures and

private individuals? 6. Define the term “symbolic speech.” 7. Who regulates commercial speech? 8. What is the function of the Federal Communications Commission (FCC)? 9. Explain the two facets of the freedom of assembly. 1. 2.

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Objective 4: Identify the rights of individuals accused of crimes. 1. Draw a diagram of the criminal justice system as a series of funnels. 2. How are the following terms interrelated: probable cause, unreasonable searches

and seizures, search warrant, and exclusionary rule? 3. What are the three guidelines for police questioning of suspects as set forth in

Miranda v. Arizona (1966)? 1. 2. 3. 4. What is the significance of the Supreme Court case of Gideon v. Wainwright

(1963)?

5. What are the pros and cons of plea bargaining?

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6. List and explain the importance of three Supreme Court cases concerning the death penalty.

1. 2. 3. Objective 5: Evaluate and discuss the issue of the right to privacy. 1. Explain how the Constitution implies a right to privacy. 2. List and explain the importance of four Supreme Court cases concerning abortion. 1. 2. 3. 4. Objective 6: Understand the impact of civil liberties on democracy and the scope of government. 1. In your opinion, are the rights guaranteed in the Fourth, Fifth, Sixth, Seventh, and

Eighth Amendments more beneficial to criminals or society at large? 2. In what ways do civil liberties limit the scope of government and in what ways do

they expand the scope of government?

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KEY TERMS Identify and describe: civil liberties Bill of Rights First Amendment Barron v. Baltimore (1833) Gitlow v. New York (1925) Fourteenth Amendment Due process clause incorporation doctrine establishment clause free exercise clause Lemon v. Kurtzman (1971)

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Zelman v. Simmons-Harris (2002) Engel v. Vitale (1962) School District of Abington Township, Pennsylvania v. Schempp (1963) prior restraint Near v. Minnesota (1931) Roth v. United States (1957) Miller v. California (1973) libel New York Times v. Sullivan (1964) Texas v. Johnson (1989) symbolic speech commercial speech

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Miami Herald Publishing Co. v. Tornillo (1974) Red Lion Broadcasting Co. v. Federal Communications Commission (1969) NAACP v. Alabama (1958) unreasonable searches and seizures search warrant exclusionary rule Mapp v. Ohio (1961) Fifth Amendment self-incrimination Miranda v. Arizona (1966) Sixth Amendment Gideon v. Wainwright (1963)

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plea bargaining Eighth Amendment cruel and unusual punishment Gregg v. Georgia (1976) McCleskey v. Kemp (1987) right of privacy Roe v. Wade (1973) Planned Parenthood v. Casey (1992) Compare and contrast: civil liberties and Bill of Rights First Amendment and Fourteenth Amendment Barron v. Baltimore and Gitlow v. New York

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Gitlow v. New York and Fourteenth Amendment establishment clause and free exercise clause Lemon v. Kurtzman and Zelman v. Simmons-Harris Engel v. Vitale and School District of Abington Township, Pennsylvania v. Schempp prior restraint and Near v. Minnesota Roth v. United States and Miller v. California libel and New York Times v. Sullivan Texas v. Johnson and symbolic speech Miami Herald Publishing Company v. Tornillo and Red Lion Broadcasting Company v. Federal Communications Commission probable cause, unreasonable searches and seizures, and search warrant unreasonable searches and seizures and Mapp v. Ohio unreasonable searches and seizures and exclusionary rule

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Fifth Amendment and self-incrimination Fifth Amendment and Miranda v. Arizona Sixth Amendment and Gideon v. Wainwright Eighth Amendment and cruel and unusual punishment Gregg v. Georgia and McCleskey v. Kemp right of privacy and Roe v. Wade Name that term: 1. The Supreme Court has one-by-one done this to the Bill of Rights. _________________________ 2. This part of the First Amendment forbids the government from having an official

church. _________________________

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3. A government’s actions that prevent material from being published in the first place.

_________________________ 4. This 1973 Supreme Court case attempted to clarify the meaning of obscenity by

spelling out what would and would not be obscene. _________________________ 5. The publication of knowingly false or malicious statements that damage

someone’s reputation. _________________________ 6. Actions that do not consist of speaking or writing, but that express an opinion. _________________________ 7. This type of speech is restricted far more extensively than expressions of opinion

on religious, political, or other matters. _________________________ 8. This case upheld the right to associate. _________________________ 9. The Constitution requires that no court may issue one of these unless probable

cause exists to believe that a crime has occurred or is about to occur. _________________________ 10. This case extended the exclusionary rule to the states. _________________________

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11. This case set strict guidelines for police questioning of suspects. _________________________ 12. Most criminal cases are settled through this process. _________________________ 13. Undefined by the Eighth Amendment, this has been the basis of the controversy

over the death penalty. _________________________ 14. This right is implied, but not directly stated, in the Bill of Rights. _________________________ USING YOUR UNDERSTANDING 1. Select one of the Supreme Court cases discussed in this chapter that is of interest

to you. Find and read the opinions presented in the case, including any dissenting opinions, and briefly describe what you found. Identify the social values that were in conflict in the case. Based on your understanding, state whether or not you are persuaded by the arguments presented in justification of the decision.

2. How have the terrorist attacks of September 11, 2001 affected civil liberties in the

United States? List and explain the various restrictions put in place and laws, such as the Patriot Act, passed by the government that have had an impact on our personal freedoms since September 11, 2001. In your opinion, are these restrictions worth the tradeoff? Does the reality of international terrorism require a reevaluation of an unconditional commitment to civil liberties? In your opinion, how far should we go?

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REVIEW QUESTIONS Check the correct answer: 1. Civil liberties are legal and constitutional protections against a. criminals. b. government. c. foreign invasions. d. private enterprise. 2. Civil liberties are formally set down in the a. Bill of Rights. b. preamble to the Constitution. c. Declaration of Independence. d. Articles of Confederation. 3. Most cases concerning civil liberties are easy and straightforward. True False 4. Which of the following statements about civil liberties is FALSE? a. The first Congress passed the Bill of Rights. b. All of the original states had their own bills of rights. c. The American people are entirely devoted to political rights in both theory

and practice. d. Our civil liberties often conflict. 5. In literal terms, the First Amendment is directed toward a. the states. b. Congress. c. the courts. d. all units of government.

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6. In the case of Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights restrained only the national government, not the states and cities.

True False 7. Freedom of speech was incorporated into state laws by a. Barron v. Baltimore. b. the first Congress. c. Gitlow v. New York. d. the Tenth Amendment. 8. The Bill of Rights a. applies only to the national government. b. immediately applied to the states after ratification of the Fourteenth

Amendment. c. was gradually incorporated into state laws. d. has always applied to the states as well as national government. 9. According to Thomas Jefferson, the First Amendment was designed to create a. a national church. b. federal support for religious pursuits. c. a wall of separation between church and state. d. government control of churches. 10. The “wall of separation” separates a. assembly and association. b. government and religion. c. protected and unprotected speech. d. civil liberties and civil rights. 11. According to the Supreme Court, school-sponsored prayers in public schools are

acceptable only with certain restrictions. True False

12. Which of the following statements regarding religion in the United States in recent years is FALSE?

a. Religious issues and controversies have assumed much greater importance in political debate.

b. Fundamentalist religious groups have shied away from political action due to recent controversies.

c. Some groups have advocated the teaching of “intelligent design” as an alternative to evolution in the public schools.

d. Conservative Republicans have pushed for a constitutional amendment permitting school prayer.

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13. The Supreme Court has been very tolerant of the right of people to believe what they want and less tolerant of their right to practice what they believe.

True False 14. (bonus) Who said “The most stringent protection of free speech would not protect

a man in falsely shouting ‘fire’ in a theater and causing a panic”? a. Justice Oliver Wendell Holmes b. Justice Hugo Black c. Justice Thurgood Marshall d. Justice Potter Stewart 15. Prior restraint a. is frequently exercised by the United States government. b. was allowed in Near v. Minnesota (1931). c. means government prevention of publication. d. allows a newspaper to print libelous materials. 16. According to the Supreme Court in the case of Schenck v. United States (1919),

free speech can be restricted by the government only on the basis of a. obscenity. b. community sentiment. c. symbolic protest. d. clear and present danger. 17. In the case of Dennis v. United States (1951), the Supreme Court permitted the

government to a. exercise prior restraint over certain publications. b. jail some American Communist Party leaders. c. prohibit all forms of symbolic speech. d. use wiretaps to spy on American citizens. 18. Constitutional protections of free speech diminish once a person steps on private

property. True False 19. Some states have passed shield laws that protect a. criminals from self-incrimination. b. publications from prior restraint. c. reporters’ notes and information from being revealed in court. d. courts from holding trials in public.

20. In Roth v. United States (1957), the Supreme Court ruled that obscene material

was not within the realm of constitutionally protected speech or press. True

False

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21. (bonus) “I know it when I see it” refers to a. obscenity. b. libel. c. crime. d. cruel and unusual punishment. 22. In Miller v. California (1973), defining obscenity was left up to a. private individuals. b. courts. c. Congress. d. state and local officials. 23. The newest issue in the obscenity controversy involves a. regulations aimed at keeping obscene material away from the young. b. the proliferation of pornography on the Internet. c. the proliferation of pornography in video stores. d. the use of obscene words in public places. 24. To be libelous, a statement must be knowingly false or malicious.

True False

25. The Supreme Court case of New York Times v. Sullivan (1964) a. made it easier for public officials to win libel cases. b. held that statements about public officials are libelous only if made with

malice and reckless disregard for the truth. c. held that statements about public officials are libelous if they are intended

to damage severely the person's reputation. d. severely limited the ability of the press to express its opinions freely. 26. Private individuals have a lower standard to meet for winning lawsuits for libel

than public figures. True False 27. The Supreme Court has dealt with questions of free speech by a. allowing the government to regulate the content of speech on the airwaves. b. distinguishing between pure and symbolic speech. c. using a “clear and present danger” test. d. all of the above 28. In 1989, the Supreme Court ruled that the burning of an American flag was a form

of constitutionally protected speech. True False

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29. Which of the following has received the greatest amount of regulation by the

federal government? a. symbolic speech b. commercial speech c. television news d. newspapers 30. The Federal Communications Commission regulates the content, nature, and

licensing of radio, television, and newspapers. True False 31. The Supreme Court has a. ruled that newspapers must provide space for political candidates to reply

to newspaper criticisms. b. allowed the policy of barring certain words from radio or television when

children might hear them. c. ruled that cable television is subject to the same regulations as commercial

television. d. all of the above 32. Freedom of assembly only concerns the literal right of people to gather in one

place. True False 33. The Supreme Court has ruled that spontaneous demonstrations at any time,

anywhere, and in any way are protected by the First Amendment’s freedom of assembly.

True False 34. Most of the words contained in the Bill of Rights pertain to the rights of persons

accused of crime. True False 35. The most infrequent event in the criminal justice system is a(n) a. crime. b. arrest. c. prosecution. d. trial.

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36. In Mapp v. Ohio (1961), the Supreme Court a. extended the principle of unreasonable searches and seizures to the states. b. established the exclusionary rule. c. required probable cause to make an arrest. d. protected individuals against self-incrimination. 37. The exclusionary rule prohibits a court’s use of a. illegally seized evidence. b. cruel and unusual punishment. c. search warrants. d. plea bargaining. 38. Fifth Amendment protection against self-incrimination begins with a. a trial. b. prosecution. c. an arrest. d. criminal sentencing. 39. According to the Supreme Court’s decision in Miranda v. Arizona (1966), police

suspects must be told that a. they are constitutionally entitled to remain silent. b. anything they say can be used against them. c. they have a right to have a lawyer present during police questioning. d. all of the above 40. The Sixth Amendment’s guarantee of a right to a lawyer was extended to state

courts by the Supreme Court case of a. Miranda v. Arizona (1966). b. Gideon v. Wainwright (1963). c. Mapp v. Ohio (1961). d. Gregg v. Georgia (1976). 41. Most criminal cases are settled through plea bargaining. True False 42. Plea bargaining usually a. costs the state more money. b. results in fewer defendants going to prison. c. results in harsher punishment for defendants. d. can only be used by defendants accused of minor crimes. 43. The Constitution a. does not specify the size of a jury. b. sets jury size at 12. c. sets jury size according to the type of crime. d. sets jury size according to the type of court.

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44. The Supreme Court has ruled that the death penalty a. is suitable to the most extreme of crimes. b. is always unconstitutional. c. can be made mandatory for certain crimes. d. is the highest form of cruel and unusual punishment. 45. The Bill of Rights spells out the right of privacy in the Third Amendment. True False 46. In Roe v. Wade (1973), the Supreme Court a. forbade state regulation of abortion during the first trimester. b. permitted states to allow abortion in the second trimester only to protect a

mother’s health. c. permitted states to forbid abortions in the third trimester. d. all of the above 47. Which of the following statements about recent Supreme Court decisions

concerning abortion is FALSE? a. It has upheld state laws forbidding the use of state funds to pay for

abortions. b. It has upheld a ban on abortion counseling in federally supported family

planning programs. c. It has upheld a law requiring a married woman to tell her husband of her

intent to have an abortion. d. It has upheld a law requiring a 24-hour waiting period prior to an abortion. 48. Which of the following statements is FALSE? a. First Amendment rights are essential to a democracy. b. Ultimately, Congress decides what constitutional guarantees mean in

practice. c. The courts enhance democracy by protecting liberty and equality from the

excesses of majority rule. d. The Bill of Rights places strict limitations on governmental power. 49. In general, civil liberties limit the scope of government. True False

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ESSAY QUESTIONS 1. What is the relationship between the national government and the states in the

protection of civil liberties? How was the issue of protecting civil liberties at the state level resolved?

2. What would a literal interpretation of the First Amendment mean for the

protection of civil liberties? What factors tend to prevent such a literal interpretation? Give examples to illustrate your answer.

3. Compare the First Amendment freedoms in terms of the restrictions placed on

their application. Do you agree with these restrictions? Support your position with examples of actual or hypothetical cases.

4. What role has religion played in American politics? How has religious freedom

been interpreted in the United States? 5. Identify the various types of speech. Categorize the different types of speech

according to the extent to which they are protected by the Constitution. Give examples of court cases that have helped to establish these protections.

6. What are the constitutional protections of persons accused of crimes, and where

are they found? How has the Supreme Court interpreted and shaped these protections?

7. What is meant by the “right to privacy”? Explain the controversies that have

arisen over the right to privacy. 8. How do civil liberties affect the nature of democracy and the scope of government

in the United States?

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