GOV 2305 CH 4: Civil Liberties

bad tendency test

which held that speech could be restricted if it was likely to have harmful consequences. Using this broad test, the Court upheld the Espionage Act's restrictions on speech in several cases

Privacy Act 1974

which restricts government disclosure of data to third parties

The USA Patriot Act

gave the government broad latitude to investigate people who are only vaguely associated with terrorists. Under this law, the government can access personal information on American citizens to an extent never before allowed.

First Amendment

guarantees the freedoms of religion, speech, the press, and assembly, as well as the right to petition the government. Prohibits Congress from passing laws "respecting an establishment of religion, or prohibiting the free exercise thereof." The first part of this amendment is known as the establishment clause. The second part is called the free exercise clause.

Fair procedure

has been interpreted as requiring that the person have at least an opportunity to object to a proposed action before an impartial, neutral decision maker (who need not be a judge).

Roe v. Wade

held that the "right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The right is not absolute throughout pregnancy, however. The Court also said that any state could impose certain regulations to safeguard the health of the mother after the first three months of pregnancy and, in the final stages of pregnancy, could act to protect potential life

writ of habeas corpus

is an order requiring that an official bring a specified prisoner into court and explain to the judge why the prisoner is being held in jail.

Sedition Act

made it a crime to utter "any false, scandalous, and malicious" criticism of the government.

The United States Supreme Court

our nation's highest court, has the final say as to how the Constitution, including the Bill of Rights, should be interpreted.

Driver's Privacy Protection Act

prevents states from disclosing or selling a driver's personal information without the driver's consent

Espionage Act of 1917

prohibited attempts to interfere with operations of the military forces, the war effort, or the process of recruitment

Partial-Birth Abortion Ban Act in 2003

prohibiting a form of late termination of pregnancy called "partial-birth abortion", referred to in medical literature as intact dilation and extraction.

Article I, Section 9, of the Constitution

provides that the writ of habeas corpus (a Latin phrase that roughly means "produce the body") will be available to all citizens except in times of rebellion or national invasion.

14th Amendment

ratified in 1868, granted citizenship to all persons born or naturalized in the United States—including former enslaved people—and guaranteed all citizens "equal protection of the laws."

Procedural Due Process

requires that any governmental decision to take life, liberty, or property be made equitably. For example, the government must use "fair procedures" in determining whether a person will be subjected to punishment or have some burden imposed on him or her.

The establishment clause

forbids the government from establishing an official religion or church.

political correctness

means criticizing others for speech that is offensive to minority group members, women, or LGBT persons

Civil rights

specify what the government must do—for example, ensure equal protection under the law for all Americans.

The Preferred-Position Doctrine

states that certain freedoms—including freedom of speech and of the press—are so essential to a democracy that they hold a preferred position. According to this doctrine, any law that limits these freedoms should be presumed unconstitutional unless the government can show that the law is absolutely necessary.

Lemon case

the Court denied public aid to private and parochial schools even for the salaries of teachers of secular courses and for textbooks and instructional materials in certain secular subjects. The Court held that the establishment clause is designed to prevent three main evils: "sponsorship, financial support, and active involvement of the sovereign [the government] in religious activity.

Do We Have the "Right to Die"?

the Court upheld the states' rights to ban euthanasia (mercy killing) or assisted suicide, the Court did not hold that state laws permitting assisted suicide were unconstitutional. In 1997, Oregon became the first state to implement such a law. Five additional states now allow the practice—California, Colorado, Montana, Vermont, and Washington

Evolution versus Creationism

Some groups contend that evolutionary theory, a theory with overwhelming scientific support, directly counters their religious belief that human beings did not evolve but were created fully formed, as described in the biblical story of the creation. The Supreme Court, however, has held that state laws forbidding the teaching of evolution in the schools are unconstitutional

Griswold v. Connecticut

the Supreme Court held that a right to privacy is implied by other constitutional rights guaranteed in the First, Third, Fourth, Fifth, and Ninth Amendments.

Burwell v. Hobby Lobby

the Supreme Court held that a closely held for-profit corporation could be exempted from the requirement to provide certain forms of birth control coverage if its owners objected on religious grounds. The ruling was based on congressional legislation rather than the free exercise clause. It therefore left many questions unanswered

subversive or seditious speech

urges resistance to lawful authority or advocates overthrowing the government.

The Rights of Criminal Defendants

- The Fourth Amendment protection from unreasonable searches and seizures. - The Fourth Amendment requirement that no warrant for a search or an arrest be issued without probable cause—cause for believing that there is a substantial likelihood that a person has committed or is about to commit a crime. - The Fifth Amendment requirement that no one be deprived of "life, liberty, or property, without due process of law." As discussed earlier in this chapter, this requirement is also included in the Fourteenth Amendment, which protects persons against actions by state governments. - The Fifth Amendment prohibition against double jeopardy—being tried twice for the same criminal offense. - The Fifth Amendment provision that no person can be required to be a witness against (incriminate) himself or herself. This is often referred to as the constitutional protection against self-incrimination. It is the basis for a criminal suspect's "right to remain silent" in criminal proceedings. - The Sixth Amendment guarantees of a speedy trial, a trial by jury, a public trial, and the right to confront witnesses - The Sixth Amendment guarantee of the right to counsel at various stages in some criminal proceedings. The right to counsel was strengthened in 1963 in Gideon v. Wainwright. 45 The Supreme Court held that if a person is accused of a felony and cannot afford an attorney, an attorney must be made available to the accused person at the government's expense. - The Eighth Amendment prohibitions against excessive bail and fines and against cruel and unusual punishments. Should the death penalty be considered a cruel and unusual punishment? We discuss that question in this chapter's Join the Debate feature.

exclusionary rule

A criminal procedural rule stating that illegally obtained evidence is not admissible in court.

bill of attainder

A legislative act that directly punishes a specifically named individual (or a group or class of individuals) without a trial. For example, no legislature can pass a law that punishes a named Hollywood celebrity for unpatriotic statements.

commercial speech

Advertising, or _________ , is also protected by the First Amendment, but not as fully as regular speech. Generally, the Supreme Court has considered a restriction on commercial speech to be valid as long as the restriction: 1. Seeks to implement a substantial government interest. 2. Directly advances that interest. 3. Goes no further than necessary to accomplish its objective.

School Voucher

An educational certificate, provided by a government, that allows a student to use public funds to pay for a private or a public school chosen by the student or his or her parents.

Medical Treatment for Children

Another issue under the free exercise clause is the right to refuse medical treatment.The right of parents to refuse treatment for their children is limited. The courts have long held that a refusal by a parent to allow lifesaving treatments for a child can be considered a serious crime. This principle also extends to vaccination. As a public health measure, states may require all children attending public schools to be vaccinated against common diseases. Typically, state law allows parents to opt out for religious reasons. Some states allow opt-outs based on philosophical beliefs as well. Such opt-outs are not required by the Constitution.

Engel v. Vitale, The Regents' Prayer Case

Engel v. Vitale, also known as the "Regents' Prayer case." The State Board of Regents in New York had composed a nondenominational prayer and urged school districts to use it in classrooms at the start of each day. The prayer read as follows: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country. Some parents objected to the prayer, contending that it violated the establishment clause. The Supreme Court agreed and ruled that the Regents' Prayer was unconstitutional.

due process clause

In 1868, three years after the end of the Civil War, the Fourteenth Amendment was added to the Constitution. The _____________ of this amendment requires that state governments protect their citizens' rights. (A similar requirement, binding on the federal government, was provided by the Fifth Amendment.) The due process clause reads, in part, as follows: No State shall . . . deprive any person of life, liberty, or property, without due process of law.

The NSA Revelations

In June 2013, materials released to the press by Edward Snowden, a national security contractor, revealed that surveillance by the NSA had been more universal than most people had previously assumed. Snowden, aware of the treatment of leakers such as Manning, was in Hong Kong by the time his identity was released. Learning that the Chinese government might turn him over to the United States, he fled to Russia, where he was granted asylum.

The USA Freedom Act

In June 2015, several key provisions of the USA Patriot Act expired. Debate in Congress on whether to renew the provisions was fierce. In an unusual coalition, Republican libertarians united with left-leaning Democrats in an attempt to place limits on the NSA's activities. The result was the USA Freedom Act. The new act reauthorized most of the provisions of the USA Patriot Act. Still, it also sought to control the NSA's collection of metadata on domestic phone calls.

The Erosion of Miranda

In an important 1991 decision, the Court stated that a suspect's conviction will not be automatically overturned if the suspect was coerced into making a confession. If the other evidence admitted at trial is strong enough to justify the conviction without the confession, then the fact that the confession was obtained illegally can be, in effect, ignored.49 In 2011, however, the Court ruled that because children are more susceptible to pressure than adults, police officers must take extra care in ensuring the Miranda rights of child suspects

federal Department of Health and Human Services

In late 2000, the ___________ issued a regulation protecting the privacy of medical information. Health-care providers and insurance companies are restricted from sharing confidential information about their patients

The Miranda Warnings (Miranda v. Arizona)

In that case, the Court enunciated the Miranda warnings that are now familiar to almost all Americans: Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed.

obscenity

Indecency or offensiveness in speech, expression, behavior, or appearance.

Civil liberties

Legal and constitutional rights that protect citizens from government actions. Civil liberties limit government action, setting forth what the government cannot do.

Libel and Slander

No person has the right to libel or slander another. Libel is a published report of a falsehood that tends to injure a person's reputation or character. Slander is the public utterance (speaking) of a statement that holds a person up for contempt, ridicule, or hatred. To prove libel or slander, certain criteria must be met. The statements made must be untrue, must stem from an intent to do harm, and must result in actual harm

"Teach the Controversy"

One strategy to restrict the teaching of evolution is a campaign known as "Teach the Controversy," promoted by the Discovery Institute, an antievolution group. Proponents of this campaign argue that it is only fair to present both sides of the question— that is, both evolution and other views, such as intelligent design

ex post facto law

Punishes individuals for committing an act that was legal when it was committed. The Constitution prohibits Congress from passing ex post facto laws. The Latin term ex post facto roughly means "after the fact."

Reynolds v. United States

Reynolds was a member of the Latter-Day Saints (Mormons) who had two wives. Polygamy, or the practice of having more than one spouse simultaneously, was encouraged by the customs and teachings of his church at that time. Polygamy was prohibited by federal law, however. Reynolds was convicted and appealed the case, arguing that the law violated his constitutional right to freely exercise his religious beliefs. The Court did not agree. It said that to allow Reynolds to practice polygamy would make religious doctrines superior to the law. In 1890, the Latter-Day Saints issued a manifesto prohibiting new polygamist marriages.

The Lemon Test

Since 1971, the Supreme Court has held that, to be constitutional, a state's school aid must meet three requirements: (1) the purpose of the financial aid must be clearly secular (not religious), (2) its primary effect must neither advance nor inhibit religion, and (3) it must avoid an "excessive government entanglement with religion." The Court first used this three-part test in Lemon v. Kurtzman, and hence it is often referred to as ________.

Prior Restraint

Stopping an activity before it actually happens is known as ___________. With respect to freedom of the press, ____________ means censorship, which occurs when an official removes objectionable materials from an item before it is published or broadcast. An example of censorship and prior restraint would be a court's ruling that two paragraphs in an upcoming article in the local newspaper had to be removed before the article could be published. The Supreme Court has generally ruled against prior restraint, arguing that the government cannot curb ideas before they are expressed

Barron v. Baltimore (1833)

The Bill of Rights did not apply to state laws. Eventually, however, the Supreme Court began to take a different view. Because the Fourteenth Amendment played a key role in this development, we look next at the provisions of that amendment.

Fourteenth Amendment also

The ___________ states that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." For some time, the Supreme Court considered the "privileges and immunities" referred to in the amendment to be those conferred by state laws or constitutions, not the federal Bill of Rights. The Supreme Court gradually began using the due process clause to say that states could not abridge a civil liberty that the national government could not abridge.

imminent lawless action test

The current standard for evaluating the legality of speech opposing the government was established by the Supreme Court in 1969. Under the ___________, speech can be forbidden only when it is "directed to inciting . . . imminent [immediate] lawless action."25 This is a hard standard for prosecutors to meet.

symbolic speech

The expression of beliefs, opinions, or ideas through forms other than verbal speech or print. Also speech involving actions and other nonverbal expressions. Some common examples include picketing in a labor dispute or wearing a black armband in protest of a government policy.

Religious Practices and the Workplace

The free exercise of religion in the workplace was bolstered by Title VII of the Civil Rights Act of 1964, which requires employers to accommodate their employees' religious practices unless such accommodation causes an employer to suffer an "undue hardship." Thus, if an employee claims that religious beliefs prevent him or her from working on a particular day of the week, such as Saturday or Sunday, the employer must try to accommodate the employee's needs if possible.

due process of law

The right to ______________ is simply the right to be treated fairly under the legal system. That system and its officers must follow "rules of fair play" in making decisions, in determining guilt or innocence, and in punishing those who have been found guilty. Due process has two aspects—procedural and substantive.

The Free Exercise Clause

The second part of the First Amendment's statement on religion consists of the free exercise clause, which forbids the passage of laws "prohibiting the free exercise of religion." This clause protects a person's right to worship or to believe as he or she wishes without government interference.

Evolution Versus Intelligent Design

This concept posits that an intelligent cause, rather than an undirected process such as natural selection, lies behind the creation and development of the universe and living things. Proponents of intelligent design claim that it is a scientific theory and thus that its teaching does not violate the establishment clause in any way. Opponents contend that the "intelligent cause" is simply another term for God.

Foreign Intelligence Surveillance Court (FISC)

This secret court is responsible for authorizing searches by the NSA and other intelligence agencies. The FISC must now release justifications for key rulings. A new panel is to review search requests and challenge them if necessary.

California v. Miller

To be ruled obscene, a work must 1. excite unwholesome sexual desire under present day community standards, 2. offensively depict prohibited sexual conduct, and 3. lack serious literary, artistic, political, or scientific value.

Schenck v. United States

Under the clear and present danger test, expression could be restricted if it would cause a dangerous condition, actual or imminent, that Congress had the power to prevent

1966 Freedom of Information Act

allows any person to request copies of information about her or him contained in government files

Incorporation Theory

constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment.

Substantive Due Process

focuses on the content, or substance, of legislation. If a law or other governmental action limits a fundamental right, it will be held to violate ______________, unless it promotes a compelling or overriding state interest. All First Amendment rights plus the rights to interstate travel, privacy, and voting are considered fundamental. Compelling state interests could include, for example, the public's safety