5. Civil LibertiesCivil LibertiesNationalization of Civil LibertiesSlide 4Nationalization of Civil Liberties: The Bill of Rights Checks Majority RuleThe Bill of RightsWriting Rights and Liberties into the ConstitutionIncorporation via the Fourteenth AmendmentMajor versus Peripheral RightsFreedom of SpeechSubversive Speech and National SecuritySubversive Speech and National SecuritySlide 13Subversive Speech during non-conflictSymbolic expressionHate SpeechObscenitySlide 18Libel and SlanderSlide 20Fighting WordsFreedom of the Press, Assembly, PetitionFreedom of ReligionFreedom of Religion: EstablishmentFreedom of Religion: Testing a Policy’s “Neutrality”Freedom of Religion: School Prayer and Bible ReadingFreedom of Religion: Free ExerciseGun RightsCriminal RightsSlide 30Slide 31Slide 32Slide 33Slide 34Slide 35Slide 36PrivacySlide 38Privacy: Childbearing ChoicesPrivacy: The Brave New World of Information Privacy5. Civil LibertiesCivil Liberties•Snowden’s freedom of speech and press•Citizen’s freedom of privacy in government data gathering (telephones, license plates, etc.)•Personal information and property in police searches•Physician-assisted suicide•AbortionNationalization of Civil Liberties•Constitution’s protections from government power•Civil liberties emerged on the national policy agenda for several reasons, especially the emergence of new technologies and changes in lifestyles.•Principles versus changing standards, implementation, new mediums, etc.Nationalization of Civil Liberties•Determination of civil liberties shifted from almost the exclusive jurisdiction of states and communities to Washington.•Advances in national civil liberties policy often involve reining in majorities. •National policies include, for example:–protecting flag-burning demonstrators from being incarcerated–barring communal prayer at a public school graduation–preventing juries from hearing confessions before defendants were read their Miranda rightsNationalization of Civil Liberties: The Bill of Rights Checks Majority Rule •The Bill of Rights was designed to limit government’s capacity to impose conformity costs on individuals and minorities.–High transaction costs to amend Constitution and modify rights–But no amendment is absolute and ambiguity may arise Other constitutional provisions, especially those related to national security, may bring official action into conflict with individual rights. •Civil liberties are a boundary-setting activity regarding what government actions are and are not permissible.The Bill of Rights•1st Amendment–Freedom of religion (establishment and exercise), speech, press, assembly, petition•2nd Amendment–Right to keep and bear arms•3rd Amendment–Quartering of soldiers•4th Amendment–Unreasonable search and seizure•5th Amendment–Self-incrimination, grand jury for capital crime, double jeopardy, due process•6th Amendment–Speedy and public trial, impartial jury, confront witnesses, counsel•7th Amendment–Right to trial by jury•8th Amendment–Cruel and unusual punishment•9th Amendment–Disclaimer (these enumerated right do not deny other rights retained by people)•10th Amendment–Powers reserved to the statesWriting Rights and Liberties into the Constitution•Civil liberties protections were added over time. –Bill of Rights–14th Amendment (post Civil War)–Incorporation = Supreme Court used 14th Amendment to make Bill of Rights binding on state governments (not just federal)—overturning precedent set by Barron v. Baltimore (1833)Incorporation via the Fourteenth Amendment •The 14th Amendment (1868) –initially intended to protect former slaves –took almost 50 years for states would be required to adhere to the protections –Unified citizenship (state and nation), privileges and immunities clause, due process clause, equal protection clause–civil liberties have been gradually nationalized through selective incorporation •Still not incorporated: 3rd, 5th (grand jury hearings), 7th (jury trial in civil cases), 8th (excessive bails and fines)Major versus Peripheral Rights •Major rights—heavily litigated and well developed•Peripheral rights—not fully developed–the right of assembly (1st Amendment)–protection against the government taking private property without just compensation under the 5th Amendment (takings clause)Freedom of Speech•Freedom of speech is essential to representative government and the exercise of individual autonomy.•In general, the Supreme Court has gone to great length to protect speech that is expressly political. Nonetheless, there are limits to this type of speech: –Subversive speech= speech that advocates illegal activity (esp. during conflict)–Obscenity–Libel and slander–Fighting wordsSubversive Speech and National Security•Political speech must pass clear and present danger test–Opposing recruitment for WWI violated Espionage Act in Schenck v. U.S. (1919)•socialist distributed anti-war leaflets •Justice Oliver Wendell Holmes: “The question in every case is whether the words used are in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”•Eg. “Fire” in a theaterSubversive Speech and National Security•Incorporated to states–Gitlow v. New York (1925)•Left Wing Manifesto distributed during workers’ strikes (declared unconstitutional)•The First Amendment free speech clause applied to the actions of state governmentsSubversive Speech and National Security–Dennis v. U.S. (1951) communists charged with conspiracy to violently overthrow government (during Korean War)–court creates clear and probable danger test•“In each case [the courts] must ask whether the gravity of the ‘evil,’ discounted by its probability, justifies such invasion of free speech as is necessary to avoid the danger.”Subversive Speech during non-conflict•Brandenburg v. Ohio (1969) raised standard required of government where action must pose imminent danger–Member of KKK using racial slurs on televised rally and overthrow of government if continued to suppress Caucasian race–Direct incitement test: advocacy of illegal action protected unless imminent lawless action is intended and likely to occur (replacing previous tests)–“Freedoms of speech and press do not permit a State to forbid advocacy