The document discusses civil liberties in the United States Constitution. It provides context on the Bill of Rights and how it protects individual freedoms such as freedom of speech, press, religion, and protections from unlawful search and seizure. It also discusses ongoing debates around balancing individual rights with societal interests and national security, including discussions on the USA PATRIOT Act and presidential powers in times of war or crisis.

1. Civil Liberties I What is the purpose of having civil liberty guarantees in the Constitution? Who has civil liberty guarantees? Why are civil liberties in constant flux? Do societal rights trump individual rights?

2. Definition Civil liberties: “Those personal freedoms that are protected for all individuals. Civil liberties typically involve restraining the government’s actions against individuals.” (Schmidt et. al)

3. Bill of Rights (1791) First 10 amendments to the Constitution protect individuals and states from the potential tyranny of the federal government 1 st Amendment protects civil liberties/personal freedoms Freedom of speech, press, religion, peaceable assembly, and to petition the government. 2 nd and 3 rd Amendment protects against government encroachment Right to keep and bear arms. Protection from quartering of troops.

4. Bill of Rights 4th – 8th Amendments protects individuals rights in from law tyrannical enforcement and courts Upholds the rule of law. Protection from unreasonable search and seizure. Due process, double jeopardy, self-incrimination, private property. Trial by jury and other rights of the accused. (speedy trial and right to an attorney) Civil trial by jury if over 20 dollars. Prohibition of excessive bail, as well as cruel or unusual punishment.

5. Bill of Rights 9th and 10 th Amendment protects the state rights Protection of rights not specifically enumerated in the Bill of Rights. Reserved powers given to states (federalism)

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7. Institutions Judicial Branch: Shapes the nature and degree of civil liberties Interprets the constitution and establishes the range and degree of liberties. Forces the US Congress and state governments to abide the Constitution.

8. Dilemmas with Liberties The Great Balancing Act (rights of the individual verse the rights of society): Can someone say anything they want? Can someone choose to die when they are in extreme chronic pain? Can homosexual marry? Can a religious group practice any type of ritual? Are suspected terrorists, who are American citizens, protected by the Bill of Rights?

9. 1st Amendment: Freedoms Foundation of civil liberties- “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

10. 1st Amendment: Freedoms Freedom of Expression: Courts have been very supportive of verbal or symbolic expression. Prior restraint or government censorship is limited. “ carries a heavy burden of showing justification for the enforcement of such restraint.”

11. 1st Amendment: Freedoms Restricting Expression: Clear and present danger test: Justice Holmes argued that speech can be limited when it presents a “clear and present danger” to public order. Modified in 1951 to grave and probable danger rule: “ the gravity of the evil discounted by its improbability justifies such invasion of free speech as it is necessary to avoid the danger.” Bad tendency doctrine: Free Speech can be restricted if it tends to lead to illegal action Osborne Vs. Ohio

12. 1st Amendment: Freedoms Restricting Expression: What is obscene? The debate- Justice Byron White's Definition : "no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity.“ Justice Brennan's Definition, The Limp Dick Test : "no erections. He was willing to accept penetration as long as the pictures passed what his clerks referred to as the 'limp dick' standard. Oral sex was tolerable if there was no erection.“ Justice Stewart's Definition, The Casablanca Test : “I know it [obscenity/pornography] when I see it." In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his 'Casablanca Test'."

13. 1st Amendment: Freedoms Restricting Expression: The Conclusion on obscenity- “I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms."

14. 1st Amendment: Freedoms Freedom of Religion: The Establishment Clause: Forbids government from making any law about “an establishment of religion.” Congress may not help or hinder any religion. Lemon v. Kurtzman- state actions must have a secular purpose, which neither advances nor inhibits religion The Free Exercise Clause: Prevents the government from restricting people’s religious practices

15. 1st Amendment: Freedoms Freedom of Press: The press can report on anything that does not violate these rules below. Libel -defaming a person that goes through a third person. Actual malice – conveying derogatory information when known to be false or the reckless use of information.

16. 1st Amendment: Freedoms Freedom of Press: Limitations- “Gag order” refers to a judge restricting the publication of a trial or pretrial information, thus to allow fair court proceedings. FCC-Grants rights to electromagnetic frequencies. Broadcasters must prevent the filthy language.

17. 1st Amendment: Freedoms Freedom of Assembly: People have the right to gather for any purpose and to petition the government.

18. 1st Amendment: Freedoms Freedom of Assembly: Limitations: Similar to the limitations of freedom of speech. Clear and present danger Grave and probable danger

19. Is there a right to privacy? Implied right to privacy: Not listed anywhere in the Constitution, but construed from the 3 rd , 9 th , and 10th Amendments.

20. Civil Liberties II Should criminals share the same rights as the victim? How can the president supersede the rule of law and rights listed in the Constitution?

21. Bill of Rights 4th – 8th Amendments protects individuals rights in from law tyrannical enforcement and courts Upholds the rule of law. Protection from unreasonable search and seizure. Due process, double jeopardy, self-incrimination, private property. Trial by jury and other rights of the accused. Civil trial by jury. Prohibition of excessive bail, as well as cruel or unusual punishment.

22. What is the US Patriot Act? Dramatically expands the authority of U.S. law enforcement for the stated purpose of fighting terrorist acts in the United States and abroad.

23. US Patriot Act 9-11 - Initial Public Opinion American public opinion united behind leaders Most Americans believed Bush Administration on who was behind attacks Vast majority in favour of military action against those responsible

24. US Patriot Act * Responded as it is a necessary tool, about rights, or Not Far Enough 49% 45% Apr 13-16 2005 64% 26% Feb 16-17 2004 65% 25% Nov 10-12 2003 69% 22% Aug 25-26 2003 Not Too Far * Too Far Date Does the USA PATRIOT Act go too far?

25. History Curtailment of Civil Liberties during Previous Crises WWI Congressional actions against ‘disloyal speech’ WWII internment of citizens of Japanese heritage Korean War period government actions against steel factory uprising Various government actions during Vietnam War

26. Does president Bush have the power to tap communications without a warrant?

27. US Patriot Act Provisions Domestic terrorism becomes a federal crime Trap and trace devices to track telephone and internet Low ranking intelligent agents can apply for court order to gather tangible evidence Foreign Intelligence Gathering

28. US Patriot Act Provisions Money Laundering Securing US Borders Sneak-and-Peek searches Secret search warrants and seizures upon a showing of reasonable necessity Eliminates the requirement that immediate notification of seized items be provided

29. US Patriot Act II Renewal Unchecked authority to deport foreign nationals Strip citizenship for political association Bypassing of judicial oversight Remove privacy protections Extradition without treaty Expedited deportation for ‘criminal aliens’

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31. Habeas Corpus Latin for you should have the body. Today’s meaning- the govt is required to bring the prisoner (the body) before a judge and provide legal rationale for continuous imprisonment Should the govt deny these rights to detainees in Gitmo?

32. Current Court Rulings Rasul v. Bush (June 2004)- Supreme Court ruled that detainees have the right to sue for their freedom Hamdi v. Rumsfeld (2004)- Justice O’Connor writes “We have long since made clear that the state of war is not a blank check for the president.” She suggested that the pres. “work w/ all three branches when civil liberties are at stake. Must establish rules for trying prisoners.

33. Change in Government Behavior The govt plans to give 80 out of 430 detainees full trials The rest will receive abbreviated hearings know as CSRT (Combatant Status Review Tribunals) Not allowed to call witnesses (unless a Gitmo detainee) No attorney present Not allowed to see evidence against them Presumed guilty Commission Act passed allows govt to deny Habeas Corpus to any non-citizen Includes aliens captured in the US knowingly giving money to terrorist organizations,

34. What Civil Liberties? “ The Enemy Within” Schulhofer (2002) US Patriot Act was a Poor Response to 911 Bad compromises September 11 opportunism Unchecked Executive power

35. Security or Freedom? “ Can We be Secure and Free?”, Thomas Powers (2003 ) “ In a liberal republic, liberty presupposes security; the point of security is liberty.” ‘ mutually reinforcing’ War on Terror has come into direct conflict with increased commitment to due process Debate has also been shaped by partisan political considerations

36. How can we be secure? “Your security does not lie in the hands of Kerry, Bush, or al-Qaeda. Your security is in your hands. Each and every state that does not tamper with our security will automatically assured its own security.” --Bin Laden (BBC, 2004)

37. Quiz Is it worth it to compromise civil liberties for alleged security?