Mr. Tuccillo AP Government Chapter 4

Civil Liberties and Public Policy

Objectives: 1. Students will be able to analyze why people who are the advocates of rights in theory often hesitate when it comes times to put those rights into practice. 2. Students will be able to 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. 3. Students will be able to describe how the two constitutional statements about religion and government-the establishment clause and the free exercise clause – may sometimes conflict. 4. Students will be able to examine what the First Congress may have intended by the terms establishment and free exercise of religion. 5. Students will be able to establish why the Supreme Court will usually not permit prior restraint on speech and press. 6. Students will be able to explain why it has been difficult for the courts to clearly define which types of materials are considered to be obscene. 7. Students will be able to differentiate between freedom of speech and related concepts like symbolic speech and freedom of expression. 8. Students will be able to understand the conflict that can occur between free speech and public order. 9. Students will be able to 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. 10. Students will be able to identify the two facets of freedom of assembly and explain how they may conflict with other societal values. 11. Students will be able to explain how specific provisions of the Bill of Rights have been used to extend basic rights to defendants in criminal trials. 12. Students will be able to ascertain how concepts such as a right to privacy can be inferred or implied from the Bill of Rights. 13. Students will be able to explain why civil liberties are seen as an individual’s protection against the government. 14. Students will be able to establish how American government is both democratic and constitutional.

Outline: I. The Bill of Rights-Then and Now A. Civil Liberties: the legal constitutional protections against government 1. they are essential for a democracy 2. Bill of Rights: the first ten amendments to the constitution, that set down American’s civil liberties (ratified in 1791) a. the courts are the arbiters of these liberties because they determine what the Constitution means in the cases they decide b. although the original Constitution had no bill of rights, the state made it clear that adding one was a condition of ratification c. the Bill of Rights was passed when British abuses of the colonists’ civil liberties were a still fresh and bitter memory 3. political scientists have found that people are supporters of rights in theory, but their support often falters when it comes time to put those rights into practice 4. cases become difficult when liberties are in conflict with other individual or societal values B. The Bill of Rights and the States 1. The Bill of Rights was written to restrict the powers of the new central government (every state constitution had its own bill of rights) 2. Barron v. Baltimore, 1833: the Supreme Court held that the Bill of Rights restrained only the national government, not the states or cities 3. Gitlow v. New York, 1925: Supreme Court decision holding that freedoms of press and speech are “fundamental personal rights and liberties protected by the dues process clause of the Fourteenth Amendment from impairment by the states” as well as the federal government a. Fourteenth Amendment, ratified in 1868: included guarantees of privileges and immunities of citizens, due process of law, and equal protection of the law, and explicitly applied these guarantees against the states 4. 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 Fourteenth Amendment a. not everyone agreed with this idea that the 14th Amendment incorporated parts of the Bill of Rights into state laws; in 1985, Edwin Meese (then U.S. Attorney General) strongly criticized Gitlow and called for the disincorporation of the Bill of Rights b. gradually the Supreme Court applied most of the Bill of Rights to the states, particularly during the era of chief Justice Earl Warren in the 1960s c. so far only the 2nd, 3rd, and 7th Amendments, the grand jury requirement of the 5th Amendment, and the prohibition against excessive fines and bail in the 8th Amendment have not been applied to the states

II. Freedom of Religion A. First Amendment: the constitutional amendment that establishes the four great liberties: freedom of the press, of speech, or religion, and of assembly B. the First Amendment included two statements about religion and government, commonly referred to as the establishment clause and the free exercise clause 1. sometimes these two clauses come into conflict with each other C. Establishment Clause: state that “Congress shall make no law respecting and establishment of religion” 1. this clause clearly prohibits an establishment of a national church in the United States (a reaction to the religious persecutions that had convinced many colonists to move to America) 2. it is less clear what else the first Congress intended to be included in the establishment clause a. some argue that it meant only that the government may not favor one religion over another b. Thomas Jefferson argued that the First Amendment created a “wall of separation” between church and states, which would forbid not only favoritism but any support for religion at all c. debate is very intense over aid to parochial schools (called parochiaid), which has existed in various forms since the 1960s 3. Lemon v. Kurtzman, 1971: the Supreme Court decision that established that aid to church-related schools must (1) have a secular legislative purpose; (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster excessive government entanglement with religion 4. 1984 Equal Access Act: Congress made it unlawful for any public high school receiving public funds to keep student groups from using school facilities for religious worship if the school opens its facilities for other students meetings a. in 1993 the Court required that public schools that rent facilities to organizations to do the same for religious groups b. in 1995 the Court held that the University of Virginia was constitutionally required to subsidize a student religious magazine on the same basis as other student publications 5. Westside Community School v. Mergens, 1990: the Supreme Court upheld the 1984 Equal Access Act 6. the line of constitutional acceptability becomes higher when public funds are used in a more direct way to support education a. school authorities may not permit religious instructors to come into the public school buildings during the school day to provide religious education 1. students can be released from part of the compulsory school day to receive religious instruction elsewhere b. 1980 the Court prohibited the posting of the Ten Commandments on the walls of public classrooms 7. school prayer is perhaps the most controversial religious issue a. Engel v. Vitale, 1962: Supreme Court decision holding that state officials violated the 1st Amendment when they wrote a prayer to be recited by New York’s school children b. School District of Abington Township, Pennsylvania v. Schempp, 1963: Supreme Court decision holding that a Pennsylvania law requiring Bible reading in schools violated the Establishment Clause of the 1st Amendment c. the Court felt that the schools should be committed to neutrality with respect to religion d. it is not unconstitutional to pray in public schools – students may pray silently as they wish, the prayers can just not be led, encouraged by school authorities e. 1992 – Court said prayer at a public school graduation violated 1st Amendment f. 2000 – Court held that a student-led prayer before football games was unconstitutional g. Wallace v. Jaffree, 1985: Court ruled that periods of time set up for silent meditation or voluntary prayer were unconstitutional 8. A majority of the public has never favored the Court’s decision on school prayer a. many school districts have simply ignored the Court’s ban on school prayer and continue to allow prayers in their classrooms b. some religious groups have pushed for a constitutional amendment permitting prayer in school 9. Fundamentalist Christians have pressed some state legislatures to mandate teaching of “creation science” as an alternative to evolution a. 1987 – the Court ruled these laws violate the Establishment Clause 10. Lynch v. Donelly, 1984 and County of Allegheny v. American Civil Liberties Union, 1992: recent Court rulings that brought some lowering of the “wall of separation” by allowing religious scenes to be set up on public property a. Christmas trees and a menorah have a secular purpose and provide little or no benefit to religion b. Court did say however that a Nativity scene could not be displayed at a courthouse D. The Free Exercise Clause 1. people are free to believe in or not believe in whatever they choose 2. problems arise when the free exercise of religious beliefs clash with society’s other values or laws a. some religions forbid actions that society thinks are necessary 1. medical treatment, fighting in wars, attending school b. religions may require actions that society finds unacceptable 1. multiple marriages, use of marijuana 3. the Supreme Court has consistently maintained that people have an absolute right to believe what they want, but the courts have been more cautious about the right to practice a belief a. however, in Wisconsin v. Yoder, 1972: the Court allowed Amish parents to take their children out of school after the eighth grade 4. the Court used to need a compelling interest before the government could even indirectly limit or prohibit religious practices a. Employment Division v. Smith, 1990: Court decided that state laws interfering with religious practices but not specifically aimed at religion are constitutional 1. Smith meant that people could be prosecuted who use peyote as part of their religious rituals 2. even before this ruling the Court had upheld laws that: forbid polygamy; denied tax exemptions to religious schools that discriminate on the basis of race; approved building a road through ground sacred to some Native Americans; prohibited a Jewish air force captain from wearing his yarmulke (Congress later allowed this) 5. Court has allowed the free exercise of religion in: allowing parents to choose religious schools over public schools; Jehovah’s Witnesses or members of other religions do not have to participate in public school flag- saluting; people can be conscientious objectors to war on religious grounds; allowed animal sacrifices 6. Religious Freedom Restoration Act of 1993: Congress attempted to overturn the Smith decision, but this law was found unconstitutional III. Freedom of Expression A. Does “no law” in the 1st Amendment really mean “no law”? The courts have frequently wrestled with the question of whether freedom of expression (like freedom on conscience) is absolute 1. Supreme Court Justice Hugo Black believed that the words no law literally meant that Congress shall make no laws abridging the fundamental rights of the 1st Amendment a. The courts have often ruled that there are instances when speech needs to be controlled, especially when the 1st Amendment conflicts with other rights (Justice Holmes wrote in 1919 about yelling fire in a theater) b. in their attempts to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order, national security, and the right to a fair trial 2. The courts have also had to decide what kinds of activities constitute speech (or press) within the meaning of the 1st Amendment a. Certain forms of nonverbal communication (like picketing) are considered symbolic speech and other forms of action are considered to be actions b. question of whether hate speech is speech or “fighting words” not deserving of 1st Amendment protection 1. 1992: Court ruled that legislatures and universities may not single out racial, religious, or sexual insults or threats for prosecution as “hate speech” or bias crimes” B. Prior Restraint: a government’s preventing material from being published 1. the Supreme Court has generally struck down prior restraint of speech and press 2. Near v. Minnesota, 1931: Supreme Court decision holding that the 1st Amendment protects newspapers from prior restraint a. a newspaper had called local officials “grafters” and Jewish gangsters” and was shut down 3. a writer or speaker can be punished for violating a law or someone’s rights after publication 4. there are exceptions to the doctrine that prohibits prior restraint a. Hazelwood School District v. Kuhlmeier, 1988: Court ruled that a high school newspaper was not a public forum and could be regulated in “any reasonable manner” by school officials b. restrictions on the right to publish have also been upheld in the name of national security 1. usually, however, the courts are reluctant to issue injunctions prohibiting the publication of material even in the area of national security c. New York Times v. United States, 1971: “Pentagon Papers” – the Nixon administration was unable to obtain an injunction against the Times that would have prohibited publication of secret documents pertaining to American involvement in the Vietnam War C. Free Speech and Public Order 1. War often brings government efforts to enforce censorship a. Schenck v. United States, 1919: Justice Oliver Wendell Homes declared that government can limit speech if it provokes a clear and present danger of “substantive evils that Congress has a right to prevent” b. the Smith Act of 1940 forbade the advocacy of violent overthrow of the American government c. Dennis v. United States, 1951: Court upheld the convictions of 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 d. with the supposed threat of communism, the Supreme Court valued national security over 1st Amendment rights at the time e. By the 1960s the political climate had changed 1. the Court narrowed the interpretation of the Smith Act making it more difficult for the government to prosecute dissenters 2. Yates v. United States, 1957 and Brandenburg v. Ohio, 1969: Court found it permissible to advocate the violent overthrow of the government in the abstract, but not actually to incite anyone to imminent lawless action 3. waves of protest over the Vietnam War and unrest over political, economic, racial, and social issues expanded the constitutional meaning of free speech 2. today, courts are very supportive of the right to protest, pass out leaflets, or gather signatures on petitions (as long as it is done in public places) a. 1994: Court ruled that cities cannot bar residents from posting signs on their own property D. Free Speech and Fair Trials 1. the Bill of Rights is a source of potential conflicts between different types of freedoms: the Constitutional clearly meant to guarantee the right to a fair trial as well as the right to a free press, but a trail may not be fair if the pretrial press coverage makes it impossible to select an impartial jury 2. journalists seek full freedom to cover all trials: they argue that the public has a right to know a. Courts have protected the right of the press during trials and revoked gag orders, but permitted closed hearings during a pretrial where it could compromise the defendant’s right to fairness b. although reporters want trials open to them, they sometimes defend their right to keep some of their own files secret in order to protect a confidential source 1. many have gone to jail to protect their sources c. some state have passed shield laws to protect reporters in situations where they need to protect a confidential source 1. in most states reporters do not have these rights d. Branzburg v. Hayes, 1972: Court held that in the absence of shield laws, the right to a fair trial preempts the reporter’s right to protect sources e. Zurcher v. Stanford Daily, 1978: Court decision holding that a proper search warrant could be applied to a newspaper as well as to anyone else without necessarily violating the 1st Amendment rights to freedom of the press E. Obscenity 1. deciding what is obscene has never been an easy matter 2. public standards vary from time to time, place to place, and person to person 3. works that some call “obscene” may be “art” to others 4. Roth v. United States, 1957: Supreme Court ruled that “obscenity is not within the area of constitutionally protected speech or press” 5. Miller v. California, 1973: Supreme Court decision where the Court tried to clarify what could be classified as obscene, and therefore outside 1st Amendment protection a. Chief Justice Burger wrote the things were 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” b. in Miller, the Court felt that decisions on obscenity should be based on average people (juries) applying contemporary standards of local–not national-communities 6. some people feel that nothing should be banned when it is restricted solely for adults a. many communities have lenient laws for pornography, and it is difficult to convict people in other areas because the juries do not see anything wrong with disputed material 7. Court has consistently ruled that states may protect from obscenity a. the rating system on movies is an example b. Osborne v. Ohio, 1991: Court ruling upholding a law forbidding the possession of child pornography 8. the Internet has thrown a new twist into obscenity, allowing for faster, easier, and more widespread access to obscene material a. Congress has ruled that the internet is more of a broadcast medium then it is a printing press and therefore is subject to government regulation b. 1996: Congress passed the Communications Decency Act, banning obscene material and criminalizing the transmission of indecent speech or images to anyone under 18 years of age 1. 1997 – Court overruled this law saying it was overly broad and vague and a violation of free speech 2. 1999 – Court did uphold prohibitions on obscene e-mail and faxes F. Libel and Slander 1. Libel: the publication of false or malicious statements that damages someone’s reputation 2. Slander is spoken defamation 3. New York Times v. Sullivan, 1964: Court established the guidelines for determining whether public officials and public figures could win damage suits for libel a. Court said that statements about public figures are libelous only is made with malice and reckless disregard for the truth b. the right to criticize the government or public official is not libel or slander 4. private persons only need to show that statements about them were defamatory falsehoods and that the author was negligent 5. it is unusual for someone to win a libel case a. usually most people do not want to draw attention to critical statements made about them 6. Courts have ruled that parodies and jokes are allowed a lot of freedom when it comes to public figures G. Symbolic Speech 1. Symbolic Speech: nonverbal communication that expresses an opinion 2. broadly interpreted, freedom of speech is a guarantee of freedom of expression 3. Tinker v. Des Moines, 1965: Court upheld the rights of students to wear armbands as a sign of protest 4. Texas v. Johnson, 1989: Court struck down a law banning burning the American flag on the grounds that such action was symbolic speech a. burning a draft card is not protected 5. Court held that parades are forms of expression and therefore the organizers are free to include whomever they want H. Commercial Speech 1. Commercial Speech: communication in the form of advertising a. it is restricted far more than expressions of opinion on religious, political, or other matters 2. Federal Trade Commission (FTC): decides what kinds of materials may be advertised on radio and television, and regulates the content of advertising a. these regulations change with the social mores and priorities b. ex. 30 years ago there would be no tampon commercials but a lot of cigarette commercials – the reverse is true today 3. FTC also ensures that advertisers do not make false claims for their products a. truth in advertising does not prevent misleading promises 4. the courts have been broadening commercial speech protection in recent years a. courts have overturned laws that prevented commercials on legal and engineering services, abortions, condoms, casinos I. Regulation of the Public Airwaves 1. the Federal Communications Commission (FCC) regulates the content, nature, and very existence of radio and television broadcasting 2. radio and television stations need to be licensed a. a licensed station must comply with the regulations, including the requirement that they devote a certain percentage of broadcast time to public service, news, children’s programming, political candidates, or views other than those its owners support 1. the rules are more relaxed for cable channels, which can specialize in a particular type of broadcasting, because consumers pay for the service 3. these same restrictions were struck down when they were imposed on the print media a. Miami Herald Publishing Company v. Tornillo, 1974: the Supreme Court held that a state could not force a newspaper to print replies from candidates it had criticized 4. these restrictions were upheld for radio and television stations 5 years earlier a. Red Lion Broadcasting Company v. FCC, 1969: Supreme Court upheld restrictions on radio and television broadcasting, such as giving adequate coverage to public issues and covering opposing views 1. restrictions on broadcast media are much tighter because there are only a limited number of frequencies available 5. the FCC has consistently regulated obscene words and indecency on the airwaves a. 1978: George Carlin’s “Seven Words You Can Never Say on Television” b. 1992: Howard Stern J. Freedom of Assembly 1. the freedom to assemble is the basis for forming interest groups and political parties, for picketing and protesting in groups 2. there are two facets of the freedom of assembly a. Right to Assemble: to gather together in order to make a statement 1. this freedom can conflict with other societal values when it disrupts public order (traffic, peace, quiet, etc) 2. Time, Place, and Manner: within reasonable limits, freedom of assembly includes the rights to parade, picket, and protest 3. no group can hold a spontaneous demonstration anytime or anywhere it chooses 4. usually groups must apply for a permit from there local city government and post a bond of a few hundred dollars a. the government must grant the permit as long as the group pledges to have its demonstration at a time and place that allows the police to prevent major disruptions 5. there are no limitations on the content of the group’s message 6. the balance between freedom and order is tested when protest verges on harassment (abortion clinics) b. Right to Associate: freedom to associate with people who share a common interest 1. the right to associate includes the right to meet with people who want to create political change 2. NAACP v. Alabama, 1958: the Supreme Court protected the right to assemble peaceably when it decided that the NAACP did not have to reveal its membership list and thus subject its members to harassment IV. Defendants’ Rights A. Interpreting defendants’ rights 1. Besides the 1st Amendment, most of the other rights protected in the Bill of Rights concern the rights of people accused of crimes a. these rights were originally intended to protect the accused in political arrests and trials b. today the protections of the 4th, 5th, 6th, 7th, and 8th Amendments are mostly applied in criminal justice cases c. there are about 5 crimes to every arrest made 2. the language of the Bill of Rights is vague, and defendants’ rights are not well defined 3. the Supreme Court’s decisions have extended most provisions of the Bill of Rights to the states as part of the general process of incorporation B. Searches and Seizures 1. before making an arrest, police need what the courts call probable cause a. Probable Cause: reasonable grounds to believe that someone is guilty of a crime 2. Unreasonable Search and Seizures: obtaining evidence in a haphazard or random manner, a practice prohibited by the 4th Amendment a. both probable cause and a search warrant are required for a legal and proper search for and seizure of incriminating evidence b. Search Warrant: a written authorization from a court specifying the area to be searched and what the police are searching for c. most searches in this country take place without a warrant because they are reasonable searches 1. probable cause exists, the search may be necessary to protect an officer’s safety, or the search is limited to material relevant to the suspected crime or within the suspect’s immediate control d. it is okay for police to spot things on private property from planes without warrants e. DWI checkpoints are also okay 3. Exclusionary Rule: the rule that evidence, no matter how incriminating, cannot be introduced into a trial if it was not constitutionally obtained a. the rule prohibits the use of evidence obtained through unreasonable search and seizure b. until 1961, this rule only applied to the federal government c. Mapp v. Ohio, 1961: Supreme Court decision ruling that the Fourth Amendment’s protection against unreasonable searches and seizures must be extended to the states as well as the federal government 4. Critics of the exclusionary rule claim that it lets guilty people go free because of police carelessness or innocent errors 5. Supporters of the exclusionary rule say that the Constitution is not a technicality; defendants’ rights protect the accused in a system whereby everyone is presumed to be innocent until proven guilty 6. The Burger Court made some exceptions to the exclusionary rule a. Nix v. Williams, 1984: the Court allowed the use of illegally obtained evidence when the evidence led police to a discovery that they eventually would have made without it b. United States v. Leon, 1984: established the good-faith exception, which permitted evidence to be used if the police who seized it mistakenly thought they were operating under a constitutionally valid warrant c. United States v. Payner, 1980: allowed evidence illegally obtained from a banker to be used to convict one of his customers d. 1995: Court ruled that the exclusionary rule does not bar evidence illegally obtained as a result of a clerical error 7. Florida v. J.L., 2000: Supreme Court decision that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer’s stopping and frisking that person C. Self-Incrimination 1. suspects cannot be forced to help their own conviction by providing evidence against themselves 2. Fifth Amendment: designed to protect the rights of persons accused of crimes, including protections against double jeopardy, self- incrimination, and punishment without due process a. this applies to a congressional hearing, a courtroom, a police station b. under the law, the government may guarantee suspects’ immunity or exemption from prosecution in exchange for suspects’ testimony regarding their own and others’ misdeeds 1. if they offer immunity the suspect must testify 3. Self-Incrimination: a situation in which an individual accused of a crime is compelled to be a witness against himself or herself in court 4. Miranda v. Arizona, 1966: Supreme Court decision that sets guidelines for police questioning of accused persons to protect them against self-incrimination and to protect their right to a counsel a. police must read suspects their rights 5. the Supreme Court has made exceptions to Miranda’s requirements a. in 1991, the Court held that coerced confession does not automatically taint a conviction 1. if other evidence is enough for a conviction, then the coerced confession is a “harmless error” that does not necessitate a new trial 6. Dickerson v. U.S., 2000: Court made it clear that it supported Miranda and was not empowered to change it 7. the Fifth Amendment also protects against coerced crimes a. the courts have overturned convictions based on entrapment – when law enforcement officials encourage persons to commit crimes that they otherwise would not commit D. The Right to Counsel 1. Sixth Amendment: designed to protect individuals accused of crimes; it includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial a. the 6th Amendment has always ensured the right to counsel in federal courts, this right was not extended to people tried in state courts until the 1960s 1. this is an important right for the poor who up until the 1930s were convicted and given the death penalty without even having a lawyer b. Powell v. Alabama, 1932: Supreme Court ordered the states to provide an attorney for indigent (poor) defendants accused of capital crimes c. Gideon v. Wainwright, 1963: Supreme Court decision holding that anyone accused of a felony where imprisonment may be imposed, however poor he or she might be, has a right to a lawyer a. extended the right to an attorney to state courts d. Argersinger v. Hamlin, 1972: Court extended the right to counsel to anyone who faces imprisonment E. Trial By Jury 1. in reality, most cases, even ones with solid evidence, do not go to trial 2. in American courts, 90% of all cases begin and end with a guilty plea a. most are settled out of court with plea bargain 3. Plea Bargaining: an actual bargain struck between the defendant’s lawyer and the prosecutor to the effect that the defendant will plead guilty to a lesser crime (or fewer crimes) in exchange for the state’s promise not to prosecute the defendant for a more serious (or additional) crime a. critics of plea bargains believe that it permits many criminals to avoid the full punishment they deserve 1. one studied done showed that a larger proportion of defendants who went to trial (rather than plea bargained) ended up going to prison, compared to those who pleaded guilty and had no trial b. the process does save time and money that would otherwise be spent on a trial c. most say because of a lack of resources, that plea bargaining is necessary for our court system 4. the defendants in the approximately 300,000 cases per year that actually go to trial are entitled to a lot of rights a. a speedy trial by an impartial jury b. jury selection is taken very seriously and both sides spend hours questioning prospective jurors in a major case 5. the Constitution does not specify the size of a jury, it could be anywhere from one to one hundred people, but traditionally it is set at 12 a. in petty cases 6 is sometimes used 6. traditionally jury decisions had to be unanimous in order to convict, however, the Supreme Court had eroded those traditions, permitting state to use fewer than 12 jurors and to convict with a less than unanimous vote 7. all federal court still have juries of 12 people and still require a unanimous vote for a criminal conviction F. Cruel and Unusual Punishment 1. Eight Amendment: forbids cruel and unusually punishment, although it does not define the phrase a. this amendment applies to the states because of the 14th Amendment 2. most constitutional debates over the 8th Amendment is centered around the death penalty a. nearly 3000 people are currently on death row b. Witherspoon v. Illinois, 1968: overturned a death sentence because opponents of the death penalty had been excluded from the jury at sentencing c. Furman v. Georgia, 1972: overturned Georgia’s death penalty law because its imposition was “freakish” and “random” in the way it was arbitrarily applied (particularly with regard to factors such as race and income) 1. because of Furman, 35 states passed new laws permitting the death penalty 2. to prevent arbitrariness, some states made the death penalty mandatory for some crimes d. Woodson v. North Carolina, 1976: Court ruled against mandatory death penalties e. Gregg v. Georgia, 1976: Supreme Court decision that upheld the constitutionality of the death penalty, stating that “It is an extreme sanction, suitable to the most extreme of crimes.” f. McCleskey v. Kemp, 1987: Supreme Court decision that upheld the constitutionality of the death penalty against charges that it violated the 14th Amendment because minority defendants were more likely to receive the death penalty than were white defendants 3. the Supreme Court has recently held that it is constitutionally acceptable to execute 16 and 17 year olds and mentally retarded persons 4. the Court has also made it more difficult for death row prisoners to force legal delays and appeals to stave off their executions 5. the Court has allowed “victim impact” statements detailing the character of murder victims and their families’ suffering to be used against a defendant V. The Right to Privacy A. New technologies have raised ethical issues unimaginable in the 18th century 1. today one of the greatest debates concerning civil liberties is in the area of privacy rights B. Is There a Right to Privacy? 1. Right to Privacy: although the Constitution does not specifically mention a right to privacy, the Supreme Court has said that it is implied by several guarantees of the Bill of Rights 2. in 1928, Justice Brandeis hailed privacy as “the right to be left alone- the most comprehensive of the rights and the most valued by civilized men.” C. there are many questions involving the right to privacy: abortion, euthanasia, in-vitro fertilization, frozen embryos, etc 1. Griswold v. Connecticut, 1965: in a case concerning the distribution of birth control, the Supreme Court ruled that there are unstated liberties implied in the Bill of Rights, one of which is the right to privacy, including a right to family between husband and wife 2. supporters of privacy rights argued that the 4th Amendment was intended to protect privacy 3. critics of the ruling claimed the Supreme Court was inventing protections not specified by the Constitution D. Controversy over Abortion 1. American are deeply divided on abortion 2. Roe v. Wade, 1973: Supreme Court decision holding that a state ban on all abortions was unconstitutional a. the decision forbade state control over abortions during the 1st trimester of pregnancy, permitted state to limit abortions to protect the mother’s health in the 2nd trimester, and permitted state to protect the fetus during the 3rd trimester (except when the mother’s life or health was in danger) 3. numerous state and federal regulations have been passed which prohibit the use of state and/or federal funds for abortions 4. Webster v. Reproductive Health Services, 1989: the Court upheld a Missouri law the forbid the use of state funds or state employees to perform abortions 5. the Court has also upheld laws requiring minors to notify one or both parents or a judge before obtaining an abortion 6. Rust v. Sullivan, 1991: the Court held that a Department of Health and Human Services ruling-specifying that family planning services receiving federal funds could not provide women any counseling regarding abortion-was constitutional a. on his 3rd day in office President Clinton lifted the ban on abortion counseling 7. Panned Parenthood v. Casey, 1992: the Supreme Court loosened its standard for evaluating restrictions on abortion from one of “strict scrutiny” of any restraints on a “fundamental right” to one of “undue burden” that permits considerably more regulation a. the Court upheld a 24 hour waiting period, a parental or judicial consent requirement for minors, and a requirement that doctors present women with information on the risks of the operation b. the Court did strike down a law requiring women to tell her husband of her intent to have an abortion 8. Sternberg v. Carhart, 2000: the Court held that Nebraska’s law banning partial birth abortion was unconstitutional because it placed undue burden on women seeking an abortion by limiting their options to less safe procedures and because the law provided no exception for cases where the health of the mother was at risk 9. Freedom to Access Clinic Entrances Act – 1994: makes it a federal crime to intimidate abortion providers or women seeking abortions 10. Court has also upheld laws that call for buffer zones around clinics a. Madsen v. Women’s Health Center, 1994: upheld 30 foot buffer zone E. A Time to Live and a Time to Die 1. One of the most difficult issues facing our high-tech society is whether there is a right to choose to die or a right for parents to choose to allow their children to die 2. many of the issues surrounding birth and death were crystallized in two “Baby Doe” cases in the early 1980’s a. Baby Doe was a baby born in Indiana in 1982 with Down Syndrome 1. the parents refused to give the child surgery in which the doctors said was necessary 2. the doctors went to court to get permission, but the court ruled for the parents and the child died b. Baby Jane Doe was born in New York in 1983 with spina bifida 1. parents and doctors both agreed against surgery, however a 3rd party sued to protect people with disabilities a. parents won again and the Supreme Court once again affirmed parents’ rights to make medical decisions for their children b. Baby Jane Doe survived F. another difficult issue facing society is who has custody of children produced by in-vitro fertilization and artificial insemination, and who has custody of frozen embryos G. Adults choosing to die 1. Cruzan v. Director, Missouri Department of Health, 1990: Supreme Court recognized a limited constitutional right for patients to refuse unwanted medical treatment, a form of suicide 2. Vacco v. Quill and Washington v. Glucksburg, 1997: Supreme Court ruled that there is no constitutional right to physician-assisted suicide and that states may prohibit it if they wish VI. Understanding Civil Liberties A. American government is both democratic (because it is governed by officials elected by the people and answerable to them) and constitutional (because it has a fundamental organic law, the Constitution, that limits the things government can do) B. the democratic and constitutional components of government can produce conflicts, but they also reinforce one another C. Civil Liberties and Democracy 1. the rights ensured by the 1st Amendment are essential to democracy 2. Individual participation and the expression of ideas are crucial components of democracy, but so is majority rules, which can conflict with individual rights 3. the rights guaranteed by the 4th, 5th, 6th, 7th, and 8th Amendments protect all Americans; but they also make it harder to punish criminals 4. ultimately, the courts decide what constitutional guarantees mean in practice: although the federal courts are the branch of government least subject to majority rule, the courts enhance democracy by protecting liberty and equality from the excesses of majority rule D. Civil Liberties and the Scope of Government 1. today’s government is huge and commands vast, powerful technologies a. it is virtually impossible to hide from the police, the FBI, the IRS, or any other government agency 2. because Americans can no longer avoid the attention of government, strict limitations on governmental power are essential (those set forth in the Bill of Rights) 3. in general, civil liberties limit the scope of government a. sometimes however, like with the issue of protecting the right to abortion, it is necessary to expand government in order to protect freedoms