Chapter 4: Civil Liberties and Public Policy
Explain why Obscenity is so difficult to define.
-Roth v. United States: ruled that "Obscenity is not within the area of Constitutionally protected speech or press" -Miller v. California: defined things as obscene if 1) the work, taken as a whole, appealed "to a prurient interest in sex" 2) The work showed "patently offensive" sexual conduct that was specifically defined by an obscenity law 3) The work, taken as a whole, lacked "serious literary, artistic, political, or scientific value" -There is no nationwide consensus pertaining to which offensive material should be banned.
Identify the two facets of freedom of assembly and explain how they may conflict with societal values.
1.) Right to Assemble: the right to gather together in order to make a statement. -can disrupt the societal values when it disrupts public order, traffic flow, or any other situation depending on time, place and manner restrictions. 2.) Right to Associate in political change or a common interest. -NAACP v. Alabama: decided that NAACP or any group with multiple did not have to give out a list of members that may be subject to harassment.
Explain how specific provisions of the Bill of Rights have been used to extend basic rights to defendants in criminal trials.
4th Amendment: "Unreasonable search and seizure" -requires probable cause (a reason as to why police believe someone should be arrested). -requires a search warrant (written authorization for a court specifying an area to be searched and what they are searching for). -exclusionary rule applicable (rule that evidence, no matter how incriminating, cannot be used if it is obtained illegally) -Mapp v. Ohio: Supreme Court decision extended 4th amendment rights to the states. 5th Amendment: Rights of the person accused -self-incrimination (when an individual is accused of a crime and is compelled to be a witness against him or herself) -Miranda v. Arizona: Set the following guidelines for police questioning of an accused person 1) right to remain silent and refuse to answer questions 2) anything can be used against them in a court of law 3) right to a lawyer during questioning and a court provided attorney if they can't afford one. 6th Amendment: designed to protect individuals accused of crime -includes right to counsel, right to confront witnesses, and right to speedy and public trial. -Gideon v. Wainwright: extended the right to an attorney for everyone accused of a felony in a state court. -protects against Habeas Corpus and guarantees that a person arrested has the right to be brought in front of a judge. 8th Amendment: forbids cruel and unusual punishment. -Furman v. Georgia: court decided that death penalty wasn't cruel and unusual punishment but overturned his death penalty order. -Gregg v. Georgia: upheld constitutionality of the death penalty, saying that "it is an extreme sanction, suitable to the most extreme of crimes." -McCleskey v. Kemp: upheld constitutionality of death penalty on charges that it violated 14th amendment because minority defendants were more likely to receive the penalty than white defendants.
Examine what the First Congress may have intended by the terms establishment and free exercise of religion.
Congress didn't want to establish a national church or religion because of their experiences with Great Britain. Some people thought it was meant only to not favor one religion over another. Thomas Jefferson wanted a wall of separation of church and state.
Describe how the two constitutional statements about religion and government- establishment clause and free exercise clause- may sometimes conflict.
Establishment clause: part of the first amendment stating "Congress shall make no law respecting an establishment of religion." -Lemon v Kurtzman: declared that government provided aid to parochial schools must 1) have a secular purpose 2) have a primary effect that neither advances or prohibits religion 3) not foster excessive government entanglement with religion. -Zelman v Simmons-Harris: upheld a program that families in Cleveland, Ohio could use vouchers to pay tuition to religious schools. -Engel v Vitale: Supreme Court ruled that state officials violated the 1st amendment when they wrote a prayer to be recited by New York schoolchildren. -School District of Abington Township, Pennsylvania v. Schempp: the Pennsylvania law requiring bible reading in schools violated the establishment clause of 1st amendment. Free Exercise Clause: 1st amendment provision that prohibits government from interfering with the practice of religion. -Employment Division v Smith: decided that state laws interfering with religious practices but not specifically aimed at religion are constitutional.
Determine how essential rights such as the right to a fair trial can conflict with other rights such as the right to a free press.
Free press can sway the public's opinion of a defendant. This causes the defendant to have an unfair trial because it will be likely that the person is tried by a judge who has read the newspapers or watched news stories. -Zurcher v. Stanford Daily: held that a proper search warrant could be applied to a newspaper as well to anyone else without necessarily violating the First Amendment rights to freedom of the press.
Differentiate between freedom of speech and related concepts like symbolic speech and freedom of expression.
Freedom of Expression: the right to publish or say what one believes. -Near v. Minnesota: held that Prior Restraint (a government preventing material from being published) was in violation of the Constitution. Freedom of Speech: the right to publish or say what one believes. -Schenck v. United States: decision upheld that government can limit speech if the speech provokes a "clear and present danger" of substantive evils. -Dennis v. United States: Court upheld prison sentences for Communist Party Leaders for conspiring to advocate the violent overthrow of the government--even in the absence of evidence that they actually urged people to commit specific acts of violence. -Yates v. United States and Brandenburg v. Ohio: found it permissible to to advocate for a violent overthrow of the government abstractly, not an act of actually inciting anyone to commit lawless actions. Symbolic Speech: nonverbal communication, such as burning the flag. -Texas v. Johnson: struck down a law that banned the burning of the American flag on the grounds that such action was symbolic speech protected by the first amendment. Commercial Speech: communication in the form of advertising. -has higher restrictions based on the fact that advertising is regulated by the Federal Trade Commission (FTC).
Examine how decisions of the Supreme Court have extended specific provisions of the Bill of Rights to the states as part of the incorporation doctrine.
Incorporation doctrine: the 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 14th amendment. 14th amendment: states "No states shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Explain why civil liberties are seen as an individual's protection against the government.
Many infringement of rights can be related back to the government taking advantage of those liberties. Usually government is the one to always take away a liberty. -civil liberties limit the scope of government.
Ascertain how concepts such as right to privacy can be inferred or implied from the Bill of Rights.
The First Congress had the following implications in mind when they wrote the Bill of Rights: -freedom of religion implies the right to execute private beliefs. -protection of "unreasonable search and seizure" makes people secure in their homes. -private property cannot be seized without "due process of law." -concepts are formed through circumstances that aren't directly quoted in the constitution such as Roe v. Wade.
Understand the conflict that can occur between free speech and public order.
The public order can influence restrictions on freedom of speech. For example, when Communism was feared in the U.S. Communists were punished for advocating for an uprising against the government, due to the public's opinions.