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Civil Liberties and Civil Rights for AP U.S. Government (page 2)

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By — McGraw-Hill Professional
Updated on Mar 4, 2011

Freedom of Speech

Types of Speech

There are several different classifications of speech:

  • pure speech—the most common form of speech, verbal speech; given the most protection by the courts
  • speech plus—verbal and symbolic speech used together, such as a rally and then picketing; may also be limited
  • symbolic speech—using actions and symbols to convey an idea rather than words (burning a draft card or flag, wearing an armband in protest); may be subject to government restrictions if it endangers public safety.

Regulating Speech

Limitations on free speech have generally existed in the area of providing for national security. In 1798 Congress passed the Alien and Sedition Acts, making it illegal to say anything "false, scandalous and malicious against the government or its officials." Although these acts were aimed at the opponents of President John Adams and his Federalist supporters, others were convicted under these laws. The Alien and Sedition Acts were never challenged in court, and they expired in 1801.

After the assassination of President McKinley by an anarchist in 1901 and the entrance of the United States into World War I, Congress again passed sedition laws forbidding verbal attacks on the government, and the states began following suit. These and subsequent laws were challenged in the courts.

  • Schenck v. United States (1919)—Schenck mailed fliers to draftees during World War I urging them to protest the draft peacefully; he was convicted of violating a federal law against encouraging the disobedience of military orders. Oliver Wendell Holmes wrote in the opinion that such speech was not protected during wartime because it would create a clear and present danger, establishing a standard for measuring what would and would not be protected speech.
  • Gitlow v. New York (1925)—The Court applied the protections of free speech to the states under the due process clause of the Fourteenth Amendment.
  • Chaplinsky v. New Hampshire (1942)—The Court ruled that the first amendment did not protect "fighting words."
  • Tinker v. Des Moines (1969)—The Court ruled that wearing black armbands in protest of the Vietnam War was symbolic speech, protected by the First Amendment.
  • Brandenburg v. Ohio (1969)—The Court made the "clear and present" danger test less restrictive by ruling that using inflamatory speech would be punished only if there was imminent danger that this speech would incite an illegal act.
  • Miller v. California (1973)—The Court established the Miller test, which sets standards for measuring obscenity: (1) major theme appeals to indecent sexual desires applying contemporary community standards; (2) shows in clearly offensive way sexual behavior outlawed by state law; and (3) "lacks serious literary, artistic, political, or scientific value."
  • Texas v. Johnson (1989)—The Court ruled that flag burning is a protected form of symbolic speech.
  • Reno v. ACLU (1997)—The Court ruled the Communications Decency Act unconstitutional because it was "overly broad and vague" in regulating Internet speech.

Since the 1940s the Court has supported the preferred position doctrine: First Amendment freedoms are more fundamental than other freedoms because they provide a basis for other liberties; therefore, they hold a preferred position and laws regulating these freedoms must be shown to be absolutely necessary to be declared constitutional.

Freedom of the Press

Freedom of the press is often protected because it is closely related to freedom of speech; the press is used as a form of expression. Today the press includes newspapers, magazines, radio, television, and the Internet.

  • Near v. Minnesota (1931)—The Court applied the protections of free press to the states under the due process clause of the Fourteenth Amendment and prohibited prior restraint.
  • New York Times v. Sullivan (1964)—The Court protected statements about public officials.
  • New York Times v. United States (1971)—The Court reaffirmed its position of prior restraint, refusing to stop the publication of the Pentagon Papers.
  • Hazelwood School District v. Kuhlmeier (1988)—The Court ruled in favor of school district censorship of student newspapers as long as censorship is related to legitimate concerns.

Freedom of Assembly and Petition

The First Amendment guarantees the "right of the people peacefully to assemble, and to petition the Government for a redress of grievances." Freedom of assembly and petition applies to both private and public places, allowing citizens to make their views known to government officials through petitions, letters, picketing, demonstrations, parades, and marches. The courts have protected these rights while allowing the government to set limits to protect the rights and safety of others.

  • Dejonge v. Oregon (1937)—The Court established that the right of association (assembly) was as important as other First Amendment rights and used the due process clause of the Fourteenth Amendment to apply freedom of assembly to the states.
  • The courts have generally ruled:

  • That to protect public order, government may require groups wanting to parade or demonstrate to first obtain a permit.
  • Certain public facilities (schools, airports, jails) not generally open to the public may be restricted from demonstrations.
  • Restrictions on assembly must be worded precisely and must apply to all groups equally.
  • The right to assemble does not allow groups to use private property for its own uses (creates buffer zones around abortion clinics).
  • Police may disperse demonstrations in order to keep the peace or protect the public's safety (if demonstrations become violent or dangerous to public safety).

Property Rights

The due process clause of the Fifth and Fourteenth Amendments provide for the protection of private property by guaranteeing that the government cannot deprive a person of "life, liberty, or property, without due process of law." Although the Supreme Court has not defined the term due process, it has generally accepted the concept of government acting in a fair manner according to established rules. Substantive due process involves the policies of government or the subject matter of the laws, determining whether the law is fair or if it violates constitutional protections. Procedural due process is the method of government action or how the law is carried out, according to established rules and procedures. Although the due process clause has often been applied to those accused of crimes (the guarantee of a fair trial would be due process), due process has also been used to protect property rights. The Fifth Amendment states that government cannot take private property for public use without paying a fair price for it. This right of eminent domain allows government to take property for public use but also requires that government provide just compensation for that property.

Right to Privacy

The Constitution makes no mention of a "right to privacy." The Supreme Court, however has interpreted several rights that might fall under the category of privacy.

  • Griswold v. Connecticut (1965)—The Court ruled that the First, Third, Fourth, Ninth, and Fourteenth Amendments created "zones of privacy" and enhanced the concept of enumerated rights.
  • Roe v. Wade (1973)—The outcome was a continuation of the recognition of a constitutional right of privacy for a woman to determine whether to terminate a pregnancy.

Rights of the Accused

Several amendments of the Bill of Rights address the rights of those accused of crimes. The Fourteenth Amendment extends those protections to apply to the states.

Fourth Amendment: Search and Seizure

  • Wolf v. Colorado (1949)—The Court applied protections against unreasonable search and seizure to the states under the due process clause of the Fourteenth Amendment.
  • Mapp v. Ohio (1961)—The Court ruled that evidence obtained without a search warrant was excluded from trial in state courts. Mapp v. Ohio involved the application of the exclusionary rule to the states. The exclusionary rule is the Court's effort to deter illegal police conduct by barring from court evidence that has been obtained in violation of the Fourth Amendment.
  • Terry v. Ohio (1968)—The Court ruled that searches of criminal suspects are constitutional and police may search suspects for safety purposes.
  • Nix v. Williams (1984)—The Court established the inevitable discovery rule, allowing evidence discovered as the result of an illegal search to be introduced if it can be shown that the evidence would have been found anyway.
  • United States v. Leon (1984)—The Court established the good faith exception to the exclusionary rule.

Fifth Amendment: Self-Incrimination

  • Miranda v. Arizona (1966)—The Court ruled that suspects in police custody have certain rights and that they must be informed of those rights (right to remain silent, right to an attorney).

Sixth Amendment: Right to an Attorney

  • Powell v. Alabama (1932)—The Court established that the due process clause of the Fourteenth Amendment guarantees defendants in death penalty cases the right to an attorney.
  • Betts v. Brady (1942)—The Court ruled that poor defendants in non-capital cases are not entitled to an attorney at government expense.
  • Gideon v. Wainwright (1963)—The Court ruled that in state trials, those who cannot afford an attorney will have one provided by the state, overturning Betts v. Brady.
  • Escobedo v. Illinois (1964)—The Supreme Court extended the exclusionary rule to illegal confessions in state court cases. The Court also defined the "Escobedo rule," which stated that persons have the right to an attorney when an investigation begins "to focus on a particular suspect." If the suspect has been arrested, has requested an attorney, and has not been warned of his or her right to remain silent, the suspect has been "denied council in violation of the Sixth Amendment."

Eighth Amendment: Cruel and Unusual Punishment

  • Furman v. Georgia (1972)—The Court ruled the death penalty unconstitutional under existing state law because it was imposed arbitrarily.
  • Gregg v. Georgia (1976)—In this case, the death penalty was constitutional because it was imposed based on the circumstances of the case.
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