The Political Imagination: An Introduction to American Government \u00a9 2021<\/p>\n
Peter Kolozi and James Freeman<\/p>\n
Civil Liberties<\/p>\n
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts…these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no courts can save it. No constitution, no law, no court can even do much to help it.<\/p>\n
Learned Hand<\/p>\n
Freedom, my friends, does not come from the clouds, like a meteor; it does not bloom in one night; it does not come without great efforts and sacrifices; all who love liberty have to labor for it.<\/p>\n
Ernestine Rose (cited in Feminism in Our Time, x)<\/p>\n
KEY TERMS<\/p>\n
After reading this chapter you should be able to define the following terms.<\/p>\n
Civil Liberties political speech concentration of media ownership<\/p>\n
Ordered liberty Brandenburg v. Ohio right to privacy<\/p>\n
Bill of Rights freedom of association rights of criminally accused<\/p>\n
Selective incorporation freedom of assembly Gideon v. Wainwright<\/p>\n
Democratic value (of civil liberties) prior restraint<\/p>\n
Civil Liberties and Public and Private Power<\/p>\n
Civil liberties, or individual rights and freedoms that serve as limits on government power are at the heart of the liberal tradition. Following John Locke, Thomas Jefferson, writing in the Declaration of Independence, stated that individuals are born with natural rights to life, liberty, and the pursuit of happiness. Rights which government ought to protect. Drawing on the idea of individual natural rights outlined in the Declaration of Independence, the US Constitution, specifically states those rights to be the freedom of religion, speech, press, assembly, petition, and due process of law. Each are rights which individuals possess and government cannot infringe. Civil liberties are premised on the notion that certain decisions are to be made by individuals based on their own beliefs, free from government interference. The liberal tradition, embodied by both the Declaration and the US Constitution conceive of government as the primary, if not exclusive, threat to an individuals\u2019 freedom. Thus, in the American political tradition, civil liberties are seen as individual freedoms that place limits on government power. They assume government to be the primary coercive agent in society and the non-public, private sphere of life to be an arena of freedom. <\/p>\n
But not all political thinkers agreed that government is the only threat to individual liberty. Thinkers in the republican, Marxist, socialist and feminist traditions recognized that while government may certainly threaten individual liberty, but so can so-called private institutions and actors who are not agents of government (Robin 2004; Thompson 2007; Macpherson 1973; Pateman 1988; Mills 1997). These thinkers recognized that domains of life considered to be \u201cprivate\u201d, such as the workplace could also be a coercive arena of domination and control by some and unfreedom for others. These so-called private relationships of unequal power may not only limit individual freedom in the private sphere, but may limit his\/her freedom on the public arena as well. For example, an employer or corporations has significant economic power over their individual employees because the corporation decides who to hire, promote, terminate, or otherwise penalize. The very real threat that an employee can be fired from their job because of their social or political beliefs or associations is a powerful tool at the disposal of an employer over his\/her employees to censor their employees\u2019 freedom of speech, press, assembly, association, and petition. For instance, during the Covid-19 pandemic in 2020 hospital corporations disciplined and fired doctors, nurses, and other healthcare workers who publicly raised concerns over the corporations\u2019 inadequate workplace health protections against their exposure to the virus (Scheiber and Rosenthal 2020). In another example, corporations may use their wealth and economic power to control the media in order to shape the public\u2019s knowledge and understanding of social and political issues and, thereby influence elections and public policy outcomes in their favor. Each of these examples suggest that corporations and employers, not just government, have the economic influence and power to infringe on an individual\u2019s civil liberties. <\/p>\n
As this chapter will illustrate, civil liberties are important individual freedoms that are essential in a democratic political system and for a person\u2019s individual expression and development. They are important freedoms that allow each person to decide what beliefs he\/she holds and the life he\/she wants to live without interference. Civil liberties are important limits on government power over the individual. As will be discussed later in the chapter individual freedom may be constrained by entities other than government. Constraints that also inhibit individual development and expression as well as, democratic citizenship. Despite the various ways in which an individual\u2019s civil liberties may be curtailed, the key point of this chapter is not how the freedom of speech, press, assembly and petition can be limited. Instead, there are three key points to understand about civil liberties. First, that civil liberties are of central importance for democracy. Second, civil liberties are important tools or means used to arouse the consciousness of the people to confront injustices and work towards a more just, free, equal, and democratic society. And third, that the meaning and application of civil liberties has evolved, is politically contested, and is the outcome of historical and contemporary political struggles. <\/p>\n
Defining Civil Liberties as Individual Rights and Limits on Government Power <\/p>\n
Civil liberties are individual freedoms that protect individuals from government power. There are two broad elements to the concept and practice of civil liberties. The first element consists of substantive rights that specify the freedoms that individuals have and which government cannot infringe. The second element consists of procedural rights. Procedural rights regulate how government is supposed to act, if and when, it deprives an individual of his\/her right to life, liberty, or property. Substantive civil liberties consist of things which government cannot do. They are derived from the first words of the first amendment of the US Constitution which reads, \u201cCongress shall make no law\u2026\u201d Examples of these limits on government power include the freedom of religion, speech, press and assembly. The first amendment language prohibits government from making laws that infringe on religious freedom, freedom of speech, a free press, and the freedom to assemble with others and petition government for redress of grievances. On the other hand, civil liberties consist of procedural rights which individuals have and that government must follow in the course of depriving a person of their freedom. For instance, government must follow certain \u201cdue process\u201d legal procedures in the course of conducting investigations and searches and in the course of obtaining evidence. Furthermore, government must follow \u201cdue process\u201d procedures during the course of a trial, such as allowing the accused to refuse to testify in court, or allowing the accused to cross-examine witnesses, or providing an individual with a lawyer for their defense. These procedural aspects of civil liberties are known as the rights of the criminally accused and are essential limits on potential abuses of power by law enforcement and government officials.<\/p>\n
Ordered Liberty: Regulating Civil Liberties<\/p>\n
Understanding civil liberties as individual freedoms and limits on government power oftentimes results in thinking about civil liberties in absolutist terms. Individuals either have complete freedom to speak, practice their religion, and to bear arms or they have no freedom at all and are completely subject government domination. But in fact, neither is the case. To be sure, individual freedoms can be threatened by an unlimited government with too much power. However, individual freedoms can also be imperiled in a lawless society where government has too little power to protect the public order. This being the case, most people would agree that government should have power to enact laws to regulate individual behavior and to provide for public safety and security. After all, individuals live in community with other people. The rights and liberties of all individuals must be protected. To regulate, or make rules constraining certain kinds of individual behavior is quite different than completely control. Ordered liberty, is a concept that conceives of liberty as a balance of individual rights and freedoms with the government having the legal powers necessary to maintain security and general welfare of the community. Defined this way, ordered liberty is very different from, on the one hand, an individual having complete freedom and license to do as one wishes. And on the other, the complete absence of individual freedom. The application of ordered liberty requires that, in some instances, government have the power and legal authority to regulate and punish individual behavior that threatens public welfare. In the interest of public safety government may enact laws regulating speech including speech related to hate crimes, or commercial speech regulations requiring food and drink manufacturers to provide nutritional information on labels on goods sold to customers. While government cannot regulate or proscribe any religious belief, government can enact laws that prohibit the use of illegal drugs. Even those drugs used in religious ceremonies (Employment Division v. Smith [1990]). Similarly, government can require parents, despite their religious objections to vaccinate their children for measles and other diseases before they attend school (Roy 2019). And while the 2nd Amendment broadly protects individuals\u2019 freedom to own guns, the federal, state, and local governments may establish laws regulating the manufacture, sale, and purchase of firearms. Such regulations include an assault weapons ban, establishing age requirements and background checks gun purchasers, and other regulations on legal firearms dealers, customers, and gun owners. <\/p>\n
Most Americans would agree that both individual freedom and government regulations are crucial for democracy, and for consumer and public safety. However, political disagreement and debate turns on which civil liberties should be regulated, under what conditions, to what extent should they be regulated, and whether such regulations undermine or promote ordered liberty, democratic citizenship, and public safety. This is an old, yet relevant debate in contemporary politics. Writing in 1788 in a letter to Thomas Jefferson, James Madison wrote, \u201cIt is a melancholy reflection that liberty should be equally exposed to danger whether the Government has too much or too little power; and that the line which divides these extremes should be so inaccurately defined by experience\u201d (Madison 1788). In US political history, determining where that line separating the realm of individual freedom and that of rightful government power, has changed according to circumstances and evolved over time. Both the legal limits on civil liberties and the legal limits on government power has been and continues to be politically contested with consequences for the meaning and practice of democracy in America.<\/p>\n
Civil Liberties in the US Constitution: The Bill of Rights<\/p>\n
The Bill of Rights is the most widely known aspect of the US Constitution. Public surveys measuring Americans\u2019 knowledge about the US Constitution consistently show that the public is more knowledgeable about the Bill of Rights than any other feature of the Constitution (\u201c2018 US Constitution Survey Results 2018). Ironically, however, the Bill of Rights was not included in the original US Constitution as drafted by the framers and supported by the Federalists in the debates over ratification. In fact, the original Constitution was amended shortly after ratification to include the Bill or Rights because of the arguments of the Anti-Federalists, the opponents of the Constitution during the ratification debates. In the view of the Anti-Federalists the US Constitution as originally drafted and presented by the Federalists did not provide for sufficient limits on government power protecting the rights and freedoms of individuals. The intent of the Bill of Rights was to amend the US Constitution to remedy this deficiency. <\/p>\n
Most of the rights that we consider civil liberties are found in the first ten amendments or changes to the US Constitution collectively known as the Bill of Rights. This bill or list of rights, is in reality, a list of civil liberties or individual freedoms that place limits on government power. The first words of the Bill of Rights, the 1st Amendment reads as follows: \u201cCongress shall make no law\u2026\u201d These few words are a clear indicator that the Bill of Rights constitutes a list of limits on government power. Among those limits on government power, and thus individual freedoms include the freedom of religion, speech, press, assembly and association. The second amendment provides for the right or freedom to bear arms. <\/p>\n
In addition to the first and second amendments the Bill of Rights contain amendments that explicitly place limits on government in the course of criminal investigations (4th Amendment), in the course of a criminal trial (6th Amendment), and in punishment (8th Amendment). But it is the 5th Amendment\u2019s \u201cdue process clause\u201d that sets the framework for the legal procedures that government must follow when bringing an individual to justice. The other limits on government power that protect the freedom of individuals are contained primarily in Article 1, Section 9 including the limit on the suspension of the writ of habeus corpus and the prohibitions against bills of attainder and ex post facto laws. <\/p>\n
For much of the country\u2019s history the Bill of Rights protections of individual freedoms and due process only curtailed the powers of the federal government. State and local governments were not obliged to recognize and protect the individual freedoms contained in the Bill of Rights. To be sure, many state constitutions contained freedoms that protected individuals from the abuses of power by states\u2019 governments, but those protections and their application varied according to state. Then beginning in the late 1800s, the US Supreme Court gradually began to apply aspects of the Bill of Rights to the states, thereby, protecting individual freedoms from being infringed upon not only be the federal government but by state governments as well. The Supreme Court began to apply the Bill of Rights limiting the power of states on a case by case basis. First, the US Supreme Court applied eminent domain limits to the states (1897). Then the freedom of speech (1925). Followed by the freedom of the press (1931) and so on. This gradual expansion of individual freedoms and limits on the powers of state governments by applying the Bill of Rights protections to the actions of the states is called selective incorporation. Today, most of the individual freedoms and procedural limits on government power limit the power of the federal government, as well as state and local governments. <\/p>\n
Civil Liberties in the US Constitution<\/p>\n
Article 1, Section 9<\/p>\n
Limits on suspending Habeus corpus<\/p>\n
Prohibition of bills of attainder<\/p>\n
Prohibition of ex post facto laws<\/p>\n
Amendment 1<\/p>\n
Protects the freedoms of religion, speech, press, assembly, and petition<\/p>\n
Amendment 2<\/p>\n
Guarantees states the right to establish a militia, and the people the right to bear arms<\/p>\n
Amendment 4<\/p>\n
Protects individuals from unreasonable search and seizure by government agents<\/p>\n
Amendment 5<\/p>\n
Guarantees that an individual will not stand trial more than once for the same offense; does not have to testify against him\/herself; individuals not be deprived of \u201clife, liberty, or property\u201d without \u201cdue process\u201d; eminent domain and compensation<\/p>\n
Amendment 6<\/p>\n
Guarantees criminal defendants an impartial trial; certain rights during trial; and the right to an attorney for their defense<\/p>\n
Amendment 8<\/p>\n
Protects individuals from excessive bail and \u201ccruel and unusual punishment\u201d<\/p>\n
The Democratic and Social Value of Individual Freedom<\/p>\n
Civil liberties are rooted in the Constitutional limits on government power. They are legal limits on government power over the freedoms of individuals. However, it is essential to keep in mind that civil liberties are so much more than legal definitions. Individual freedom to speak, write, assemble have social and political value that make them essential for living in a dynamic, free, and democratic society. <\/p>\n
Civil liberties freedoms have values for the individual and for the society as a whole. The freedom of thought, speech, and expression are necessary for an individual\u2019s development of reason, autonomous judgement and decision-making (Mill 2007). Having the liberty to be exposed to a variety of ideas, perspectives, social and cultural traditions presents the opportunity for an individual to develop all of his\/her human capacities to be intellectually curious, worldly, and to develop fully their rational and ethical selves. The freedom to believe, to speak, to write and otherwise disseminate one\u2019s ideas have the individual and social value of allowing the people to pursue philosophical, ethical, and scientific inquiry as a way to gaining better understanding of nature, of their society, and of the rich variety of the human experience. Robust protection of civil liberties creates the space for cultural expression in art, music, architecture, and literature as well as the philosophical and scientific pursuit of truth (Mill 2007). The value of civil liberties is not freedom as license to do whatever one wants without regard for others. Instead, the individual and social value of civil liberties is that it offers the opportunity for the full development of individual capabilities in the only way possible, within community with others. <\/p>\n
In addition to having value for individual and social development, civil liberties are politically important. Civil liberties have democratic value as the means for the people to obtain information in order to know what their government is doing in their name, to share this information with others, to criticize government officials and public policies, to offer alternatives to the social, political, and economic status quo, and to organize and assemble with others in order to pressure government to change officials and\/or policies. For example, following the police killing of George Floyd in 2020, millions of Americans demanded police accountability, justice for Floyd, criminal justice reform, racial justice, and a redistribution of government funding priorities to community and social programs and away from bloated law enforcement budgets. They wrote op-eds to their local newspapers, filmed and tweeted videos, petitioned elected officials and participated in peaceful rallies, marches, and demonstrations. Effectively, they used their civil liberties to speak out, publish, petition, assemble, organize, and mobilize to make change. As a result, cities and states instituted a number of reforms including banning police chokeholds, greater transparency of police misconduct, dismantling and reforming police agencies, and shifting funding from police to community programs (Bekiempis and Gabbat 2020). In other words, the freedom of speech, press, assembly and petition are essential for a political system in which the people rule: democracy. In the Notes on the State of Virginia, Thomas Jefferson wrote:<\/p>\n
In every government on earth is some trace of human weakness, some germ of corruption and degeneracy, which cunning will discover, and wickedness insensibly open, cultivate, and improve. Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories. And to render even them safe their minds must be improved (Jefferson \u201cNotes on the State of Virginia\u201d).<\/p>\n
Jefferson\u2019s point is that the most effective protection against government corruption is the people themselves. To hold their government accountable, prevent abuses of power, and to protect the people\u2019s freedom is the responsibility of the people. But Jefferson also stated that in order for the people to carry out this function, \u201ctheir minds must be improved.\u201d Jefferson believed in the civic importance of education, an education to cultivate an informed, democratic citizenry. But for education to serve this function, to \u201cimprove the minds\u201d of the people, the people must be free to hear, read, discuss, and openly debate different opinions and view-points. Including those opinions and view-points with which we might disagree. Thus, the civil liberties protections of the freedom of speech, press, assembly\/association, and petition serve an educative and democratic function by which when the people are exposed to different perspectives, they may develop their rational, analytical, and critical thinking skills. They learn to weigh facts, evidence, and arguments, make judgements on these bases, and innovate and develop alternatives to the status quo, thus, cultivating their political imagination. Civil liberties, therefore, are a means of cultivating an informed and politically engaged citizenry which serves the democratic functions of keeping government officials accountable to the people\u2019s interests and to prevent and correct the corruption and degeneracy of government officials. The people\u2019s freedom and democratic self-government is contingent on the people engaging in politics and robustly exercising their civil liberties.<\/p>\n
Political Freedoms: The First Amendment and Second Amendments<\/p>\n
1st Amendment Freedom of Speech<\/p>\n
Probably the most important civil liberties in a democracy are those expressed in the 1st Amendment to the Constitution: the freedom of speech, press, assembly, association and petition. These are political freedoms that are necessary for a democratic society to exist. <\/p>\n
The freedom of political speech is crucial in a democracy. Democracy, a government of the people, by the people, and for the people requires that the people have the freedom to advocate, discuss, criticize and debate government policy and government officials. The free exchange of political ideas is essential for the ability of the people to make government officials responsive to the demands of the public and hold their government officials accountable. Furthermore, the protection of political speech allows for the introduction and discussion of new ideas that make political and policy change possible. <\/p>\n
But under the concept of ordered liberty, no civil liberty, including the freedom of speech is absolute. In the case of freedom of speech, an individual is not free to say anything they want whenever they want. Certain speech can be censored and\/or punished including death threats, disrupting court proceedings, obscenity, slander and libel. Other forms of speech can be regulated such as commercial speech and campaign contributions. However, it is important to keep in mind that political speech, expression that comments on government action or conveys a political idea or ideology, has been, at least since the 1960s, broadly protected by the 1st Amendment. Political speech or expression being \u201cprotected\u201d by the first Amendment means that there are significant limits on government to censor [prevent] or punish political expression. Protected political expression can come in a variety of forms including in the spoken word; written form; expressive\/symbolic forms such as flag burning or wearing certain clothing such as an armband; and spending money on political campaigns and elections. <\/p>\n
The robust first Amendment protection of political expression was not always the law in the US. Throughout US history certain ideas, many of which today most people would agree with and not find objectionable, were in the past criminalized. Such ideas include speech criticizing the president, calling for the abolition of slavery, advocating for workers\u2019 right to organize into a labor union, encouraging an anti-war pacifist political position, or promoting contraceptives and family planning. In 1789, Congress enacted the Alien and Sedition Acts that criminalized speech and writing that shamed or was critical of the US government or government officials (Stone 2004). During World War I, Congress enacted the Espionage and Sedition Acts which among other things, criminalized speech that criticized the war and\/or encouraged young men to resist the military draft. Thousands of political dissenters were jailed including labor leader Eugene Debs who denounced the war\u2019s slaughter of millions of poor and working-class men and women. In the wake of the war, many immigrant labor organizers, socialists, syndicalists, anarchists, and pacifists were rounded up and deported. And in 1940, Congress enacted the Smith Act making it a crime to advocate for the overthrow of government. Under the Smith Act and the subsequent postwar era of political repression known as the Second Red Scare (late 1940s-1950s) led by Senator Joseph McCarthy, thousands of alleged socialists and communists (some were, many were not) were surveilled, interrogated, harassed, accused without evidence, and jailed. Many more were fired from their jobs, blacklisted from seeking other employment, and condemned to a life of limited opportunity and poverty (Caute 1979). <\/p>\n
The Supreme Court, for the most part upheld the constitutionality of these laws. Then in Brandenburg v. Ohio (1969), the court expanded the first amendment protection of freedom of speech by narrowing the authority of government to legally curtail political speech. In the Brandenburg decision the court ruled that government may prevent or punish political speech or writing only if the speech is \u201cdirected to inciting imminent lawless action and is likely to produce such action.\u201d Mere discussion or advocacy of lawlessness became protected speech. Incitement linked to action was not. Thus, even post-Brandenburg the freedom of speech is not absolute. Government may regulate, in this case prevent or punish certain speech. But, in order for public officials to have justification for censorship or punishment of political speech, the speech in question must be linked with impending lawless action. <\/p>\n
The Brandenburg decision is widely considered to be a landmark in the expansion and protection of the freedom on political speech in the US. It allows the expression of political ideas with which we agree and support and it allows the expression of ideas that we politically disagree or find socially, ethically, or morally offensive and repugnant. The principle underlying this broad protection of political speech is that so long as the speech does not lead to immanent lawless action, the free expression of any and all ideas should be available for the public to hear, to question, to judge, and to evaluate its proximity to truth. The principle protects speech that forwards tolerance, diversity, freedom, equality, artistic expression, scientific inquiry, philosophic pursuit of truth, and democracy. While at the same time, it also protects individuals\u2019 right to free speech whose message is the opposite; speech that promotes intolerance, hatred, tribalism, the supremacy and domination of one group over another, and anti-democracy. The freedom of speech even allows individuals to express opinions that are against freedom. It does so because the principle underlying the Brandenburg decision is that the best defense against hateful ideas is that they be confronted by solid counter-arguments by people with humane values in a free arena of public discourse and debate. This \u201cfree market place of ideas\u201d approach to the freedom of speech may make people uncomfortable as it tolerates the expression of ideas with which we may either agree or disagree, find humane or cruel, consider good or abhorrent. Despite its shortcomings the principle is no doubt better than allowing government officials to censor political speech, criminalize certain political ideas, and decide what ideas and opinions can and can\u2019t be expressed. As the examples above illustrate, when having that power government officials have censored some pretty good ideas. <\/p>\n
1st Amendment Freedom of Assembly, Association, and Petition<\/p>\n
The freedom of speech is important in the democracy, but so is the freedom of assembly, association, and petition. Without the freedom of assembly, association, and petition the freedom of speech would be meaningless. The freedom of association, although not explicitly stated in the US Constitution, but upheld by numerous Supreme Court decisions, allows people to actualize their freedom of speech by creating groups and organizations to pressure government, business and social institutions to make change. Individuals, unless they occupy political office or have great wealth, are relatively powerless. But it is in numbers and in organization, which the freedom of association makes possible, that regular people have the potential to wield their collective power and pressure government, employers, corporations or other entities to serve their interests. Thus, individual are free to form all kinds of associations including political parties where they can offer candidates to compete for elected office. Or they may organize advocacy groups such as the American Civil Liberties Union (ACLU), Black Lives Matter (BLM), or Greenpeace. They may organize labor unions or they may organize social service or community organizations working to provide legal aid, housing, immigration, or education assistance.<\/p>\n
The first amendment protection of the freedom of assembly allows individuals, groups and organization to use public places. For instance, they may use public places such as sidewalks, parks, and public streets to disseminate literature, hold speaking events, pickets, rallies, and demonstrations. Albeit, the right to use public places is not absolute. Government can regulate the activity by restricting the time, place, and duration of the activity. For instance, protesters are not allowed to march on public streets without a permit or to block entry into a public building or roadway. Furthermore, when government grants a permit for a protest or demonstration it can set the time, duration, and route of the demonstration. Indeed, in a clear effort to restrict rallies and demonstrations following the killing of George Floyd in May\/June 2020 curfews were instituted in a number of cities around the country. The violent police repression of peaceful protesters, albeit unsuccessful in deterring the protesters, was meant to discourage further demonstrations (Johnson 2020b). While government may variously regulate public assembly, it may not deny a group a public assembly permit on the basis of the content of the group\u2019s message. This means that any group, whatever their message, may apply for and receive a permit to hold an activity in a public place. The use of public places is a crucial way in which individuals and groups transmit their message to the broader public. It is also a way in which groups can exert material pressure on their opponents in the form of pickets or economic boycotts both of which discourage people from patronizing a place of business or petitioning government to address their concerns. <\/p>\n
The activities of the civil rights movement in the 1950s and 1960s are good examples of the importance of the freedom of association, assembly and petition. The gains of the civil rights movement were not merely the product of people having the freedom to criticize and offer alternatives to racial segregation and discrimination. They were the product of people having the freedom to associate with others and to publicly assemble to petition, lobby elected officials, and participate in protests, demonstrations, economic boycotts, strikes, and other forms of legal political assembly in order to pressure government officials and business groups to enact non-discrimination policy and desegregate. Although the civil rights movement also deployed effective public tactics that were not protected by the first amendment, such as sit-ins and occupations, much of the movement\u2019s activities utilized the constitutional protections of the freedom of association and assembly as a means to exerting the political pressure necessary for progress on civil rights and racial justice.<\/p>\n
1st Amendment Freedom of the Press<\/p>\n
The freedom of the press is absolutely essential in a democracy. Studies show that countries with a free press have lower levels of corruption and government officials tend to be more responsive to the needs of citizens (Iyengar 2016). <\/p>\n
In a democracy the press has several key functions. First, it should serve as watchdog and a means to hold government accountable by investigative reporting and disseminating information about what the government is doing in the name of the people. Second, the press is the source of information on which the people rely to make informed decisions about their government, including what policies to support or oppose and who to vote for or against. And third, the press should provide a forum for candidates and political parties to debate and discuss issues before the public. Without the freedom of the press elections would be meaningless because the public would be dangerously uninformed and ill-informed. Democracy is based on a citizenry that is civically educated, informed and active. As Thomas Jefferson stated, \u201cif a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.\u201d An uniformed, or poorly informed public is subject to tyrants, corrupt governments, and loss of the people\u2019s freedoms. Thus, the importance of the freedom of the press for a democratic politics and a free people.<\/p>\n
On way in which the freedom of the press is actualized in practice is through certain limits on the power of government to interfere in the dissemination of ideas and information. A crucial limit on government in the interest of the freedom of the press is the prohibition on prior restraint. Prior restraint means the government preventing or censoring material before it is published. The most famous court case concerning prior restraint was New York Times Co. v. United States (1971) in which the newspaper company published parts of a leaked secret study called The Pentagon Papers about the US government\u2019s conduct during the Vietnam War. The US Supreme Court rejected President Richard Nixon\u2019s appeal for an injunction (a court order that restrains a person\/agency from doing something) as unjustified and allowed the publication of the material. As is the case with other first amendment protection, the absence of prior restrain is not absolute. In certain instances, such as protecting the identity of a key witness (especially minors) or in the interest of national security government officials may withhold information from the press. In some cases, government may legitimately do so, but the practice may be abused and used to coverup and evade accountability to the public. The balance between legitimate government justification for secrecy with the democratic necessity to keep the people informed so that they can hold government officials accountable is politically contested. <\/p>\n
The doctrine of prior restraint is an important bulwark protecting the freedom of the press. However, the freedom of the press does not mean that a writer, publisher, or broadcaster can publish or air any material they wish. Certain forms of speech and press can be regulated and potentially punished. For instance, a person writing and disseminating libelous material can be sued in court and ordered to pay monetary penalties. Libel means defamation by written word (slander means defamation by spoken word). Defamation refers to the written or spoken word that is false and which damage a person\u2019s reputation. For a person to be punished for libel or slander it must be shown in court that the statements are false and that the writer\/publisher acted with malice or \u201cthe knowledge that the statement was false or with reckless disregard of whether it was false or not.\u201d <\/p>\n
Another example of where government can regulate the freedom of the press is in the area of obscenity. Specifically, in the area of pornography. Government can and has established laws regulating who can purchase pornographic materials (age requirement), where they may be sold (such as not near a school), as well as regulations prohibiting the manufacture, sale, and purchase of child pornography. <\/p>\n
US Media: The Public Power of Private Ownership<\/p>\n
The freedom of the press is essential for an informed citizenry and for democracy. Most people assume that for the freedom of the press to exist media companies cannot be public entities, but must be owned and operated by the private sector. However, this need not be the case. In democratic and free societies government may regulate and even provide funding for public programming, including the news media. Many countries, including rich, capitalist democracies in Europe the media is regulated to ensure public affairs programming and they have public broadcasting channels and a mixed public and private media consisting of publicly owned and commercial media outlets (Iyengar 2016). In an international comparative study, people living in countries with more media regulations than in the US were better informed and more knowledgeable about domestic and international news than Americans (Curran et. al. 2009). <\/p>\n
The US media is among the most under-regulated in the world. It is also one in which the concentration of media ownership has dramatically increased. Concentration of media ownership means that there are fewer and fewer media corporations and those that exist are bigger and more powerful. In 1983, 90% of the media was owned by 50 companies. Following the 1996 Telecommunications Act signed by President Bill Clinton, which was a major deregulation of the media allowing giant media companies to buy up their competitors, the ownership concentration increased significantly. Today, 90% of all media in the US is owned by six giant corporations, among them General Electric, CBS, News Corp., Disney, Time Warner and Viacom (Lutz 2012). These corporation are privately owned and operate to make profits. These and a few other corporations control a significant amount of outlets (TV, internet, radio, newspaper) by which Americans get their news. <\/p>\n
Both, extreme ownership concentration and under-regulation have been factors that have made private ownership of media very profitable, while at the same time eroding the media\u2019s democratic responsibility of informing the public. These have had the effect of limiting the amount of information and diversity of viewpoints to which the public is exposed and therefore strongly influence the social, economic, and political choices that people make. The content and biases of media organizations determine what news they decide to cover (and how they cover it) and what they decide not to cover. These decisions, by privately owned, for-profit corporations determine whether and how the public is informed. As Noam Chomsky and Edward Herman have written in their landmark book, Manufacturing Consent the US media have more often than not served as a propaganda organs in defense of the interests of the privileged classes in the US and abroad (Herman and Chomsky 2002). Their case studies include US media biases in the coverage of the Vietnam War, its activities in supporting dictatorships in Central America, as well as its pro-corporate biases in covering the North American Free Trade Agreement (NAFTA) and the polluting activities of the chemical industry. Studies have confirmed that media concentration has resulted in poorer quality of journalism (\u201cThe State of the Media, 2003\u201d). For instance, according to a recent study by Media Matters while the major TV broadcasting networks devote considerable time reporting on the weather and storms such as hurricanes, they seldom link the increase in the frequency and intensity of the storms to climate change (Cooper 2019). Scientists are nearly unanimous about the links between human caused climate change and the intensity of storms, but the public is much less aware because the media under reports the link which contributes to the lack of public understanding of the issue. <\/p>\n
Since most media outlets are privately owned, profit-oriented corporations their role to hold government and business elites accountable by informing the public can be outweighed by their private concern to sell advertisement and make profits. This can have a devastating effect on democracy. Media outlets dependent on advertisers to make profits might be dissuaded from covering a critical story about one of its advertisers. Or the major media outlets might collude to inflate and extend stories that increase profits. One such example is the incessant media coverage of presidential campaigns in excess of two years before an election. In order to keep media attention candidates now must spend longer and more money on political advertisements. As a result, often those candidates with the most money, not the best ideas, maintain media attention and retain a chance to be elected. An instructive example of this were comments given in February 2016 by the chairman of CBS Les Moonves: \u201cDonald Trump\u2019s candidacy\u2026may not be good for America, but it\u2019s damn good for CBS.\u201d Adding, \u201cMan, who would have expected the ride we\u2019re all having right now?…The money\u2019s rolling in and this is fun\u2026I\u2019ve never seen anything like this, and this going to be a very good year for us. Sorry. It\u2019s a terrible thing to say. But, bring it on, Donald. Keep going\u201d (Collins 2016). In November 2016 Donald Trump, after a year and a half long campaign made up of incoherent and vague public policy, and daily racist, sexist, xenophobic, anti-immigrant, anti-disabled, anti-Muslim, and anti-labor (he was quoted as saying that the problem in the US is that wages \u201care too high\u201d) was elected President of the United States. Most of the media were shocked by the electoral result, but cheered the windfall profits the election made for them.<\/p>\n
The corporate concentration of the media is a serious problem for democracy. However, there is a market, although much smaller, for independent, non-commercial, and non-corporate owned media outlets such as Democracy Now! (www.democracynow.org), The Real News Network (https:\/\/therealnews.com), and the Intercept (www.theintercept.com), among others. These media outlets cover news and current events (especially of protest movements and corporate malfeasance) that the mainstream corporate owned media often ignore, under-report, or cover in a manner biased in favor of elite opinion. Such news outlets, and many others on the web are an important antidote to the horse-race election coverage, the entertainment focus, and misinformation that passes as \u201cnews\u201d that is peddled by the corporate media eager for advertising revenue. Some media outlets are better sources of news, current events, and information than others. However, whatever problems there are with the media, and there are many, it is important to recognize that the freedom of the press is crucial to cultivating an informed citizenry upon which a democracy depends. <\/p>\n
1st Amendment Freedom of Religion<\/p>\n
In addition to the political freedoms that are essential in a democracy the 1st Amendment protects an individual\u2019s freedom to practice their religion (or no religion at all). The first Amendment\u2019s \u201cestablishment clause\u201d prohibits most association between church and state in the US. The \u201cestablishment clause\u201d means that the government cannot establish an official religion in the US, nor can the government require a religious test for public office, nor can the government punish someone for holding certain religious beliefs or for holding no religious belief at all. Nevertheless, as is the case with other civil liberties discussed above, the establishment clause is subject to Supreme Court interpretation. Issues pertaining to the \u201cestablishment clause\u201d include government aid (in the form of school vouchers) to religious schools, prayer in public schools (in Engel v. Vitale [1962] the US Supreme Court ruled that an officially administered prayer in public schools was a government \u201cestablishment\u201d of religion and therefore in violation of the Constitution), and religious displays on public property.<\/p>\n
The second aspect to the protection of religious freedom is the free exercise clause. The free exercise clause guarantees an individual to freely practice any religion they choose or no religion at all. Fundamentally, the purpose of the freedom of religion provisions in the Constitution is informed by the notion that religious belief is a private matter and government should not dictate or coerce belief as such coercion not only corrupts religion but government itself. Nevertheless, there are certain issues that arise under the \u201cfree exercise clause\u201d. For example, can a parent exempt their child from a government required vaccination on the basis that a vaccination violates their religious belief? The Supreme Court has ruled that the government has a compelling public interest in guaranteeing public health and so a parent cannot exempt their child from vaccination based on the freedom of religious practice. Another issue concerning the \u201cfreedom of religious exercise\u201d is whether government can require the removal of a religious veil or turban for driver\u2019s license photos? The Supreme Court has allowed the government to administer such laws on the basis that the government has a \u201ccompelling interest\u201d which outweighs an individual\u2019s claim that such a government regulation violates their religious practice. For instance, the courts have consistently allowed federal and state agencies issuing official identification cards to require applicants to remove face coverings for the photo, including religious veils, in order for the applicant to obtain identification.<\/p>\n
Second Amendment: The Right to Bear Arms<\/p>\n
The Second Amendment right to bear arms is among the most misunderstood amendments in the US Constitution. The words of the amendment read as follows: \u201cA well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.\u201d The framers of the US Constitution enacted this amendment at the time because collective security was primarily provided by state militias of volunteers. Today, collective security is provided by paid professional law enforcement and by the US military. The debate in the interpretation of the 2nd amendment is whether the right to bear arms is a \u201ccollective right\u201d tied with participation in a state militia or whether it is an individual right. The different interpretations matter because they would impact whether and how the state and federal governments may or may not regulate guns.<\/p>\n
Throughout US history states and the federal government enacted various regulations on gun ownership including prohibiting slaves, convicted criminals, and mentally ill people from possessing guns. Furthermore, the federal government and state governments have enacted a whole host of other regulations on the purchase and possession of firearms including age requirements, background checks, gun registration laws, bans of the manufacture and retail sale of certain weapons (assault weapons), conceal and carry laws, regulations either allowing or prohibiting the carrying of firearms in schools, workplaces, and public places, and many others. For much of its history, the US Supreme Court has interpreted the right to bear arms as a \u201ccollective right\u201d linked with the importance of a state\u2019s national guard (militia) for its security. Thus, the US Supreme Court upheld state and federal laws regulating firearms. Then, in a case that seemed to overturn two centuries of judicial precedent, the US Supreme Court in District of Columbia v. Heller (2008) established the right to bear arms as an individual right. The decision overturned a particularly restrictive law in Washington DC that prohibited the ownership of handguns (even in the home) and required rifles and shotguns stored in the home to be kept \u201cunloaded, disassembled or bound by a trigger lock.\u201d Justice Antonin Scalia wrote the majority decision in the 5-4 ruling. However, even he conceded the limited practical impact of the decision. Gun ownership may be an individual right, but state and federal laws regulating firearms continue to be constitutional. Scalia wrote, \u201cnothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.\u201d <\/p>\n
Indeed, the practical legal impact of the Heller decision has been minimal. Most gun regulations remain constitutionally valid. However, the debate over the right to bear arms and gun control laws has taken on increased political relevance. As of September 1, 2019 there have been more mass shootings in the US 283, than days of the year 244 (Silverstein 2019). Federal gun control measures are relatively weak with many loopholes. For instance, the ban on the manufacture for civilian use of assault weapons enacted in 1994 expired in 2004 and was not renewed by Congress. Federal background checks law requires federally licensed gun dealers to conduct background checks on customers. However, gun dealers at gun shows or guns sold by private individuals do not require background checks. Additionally, state laws vary considerably (Giffords Law Center 2019). Some states such as California, New York, New Jersey, Massachusetts, and Maryland enacted strict gun control regulations including prohibiting perpetrators of domestic violence from owning guns, higher age requirements for gun purchasers, requires private gun sellers to conduct background checks, requires a license to purchase a hand gun, and regulations on the purchase of ammunition, among other regulations. Many other states have fewer gun control measures making it easier for people to sell, purchase, own, and carry firearms. According to the Giffords Law Center which studies gun laws and gun deaths, states with more stringent gun control measures tend to have fewer gun deaths. However, as important as state laws may be gun violence including both mass shootings and more typical gun violence is a national problem. Some perpetrators of gun violence purchased their gun through legal channels within their own state, while others purchased their gun in another state and transported it home where they perpetrated violence. <\/p>\n
In international comparisons the US has among the weakest gun control laws, has among the highest rates of gun ownership, and has among the highest rates of gun-inflicted deaths in the world (Carlsen and Chinoy 2019). Compared to other rich, democracies the US gun-inflicted death rate is much higher. In another comparison, with over 37,000 gun-related deaths in 2016 the US ranks second, behind Brazil, in the number of people killed by guns in a country that is not at war (Institute for Health Metrics and Evaluations 2018). In addition, the US\u2019s lax gun laws have contributed to violence across its border. In Mexico, drug gangs and cartels have been slaughtering each other, terrorizing the population, and killing journalists. According to a 2018 Congressional Research Service report over 150,000 people have been killed in Mexico in organized crime related homicides (\u201cMexican Drug War Fast Facts 2019). In another report, most of the firearms used in these killings were purchased illegally in the United States. In other words, US guns and gun policies contribute to the terror and violence in not only the US, but across the border in Mexico (Lemon 2019). <\/p>\n
The Right to Privacy<\/p>\n
The right to privacy is rather unique in US jurisprudence. Several significant cases have been decided on the basis of the right to privacy including Roe v. Wade [1973] which legalized a woman\u2019s right to a chose to have an abortion and not be forced to carry a pregnancy to term. In another right to privacy case, Griswold v. Connecticut [1965] the Supreme Court legalized an individual\u2019s freedom to decide for themselves whether to use of contraceptives. The Griswold decision overturned a law in Connecticut and similar laws in other states that made it a crime for married individuals to use contraceptives during sex. Eisenstadt v. Baird (1972) did the same for unmarried individuals. Indeed, many Americans assume that such a right to one\u2019s privacy is obvious. Yet, the words \u201cthe right to privacy\u201d do not exist in the Constitution. However, in its formulation and interpretation of the right to privacy the US Supreme Court has held that in reading the 1st, 3rd, 4th, 5th, and 9th Amendments (the 9th Amendment reads \u201cthe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people\u201d) shows that there are certain spheres of life which are private, in which government should not interfere. While this interpretation of the Constitution as containing a right to privacy has withstood challenges for the last half century, the Constitutional right to privacy and what that means with regard to individuals\u2019 freedoms remains controversial, politically contested, and is subject to reinterpretation by judges on the US Supreme Court.<\/p>\n
For instance, since the Roe v. Wade decision, state governments have passed a number of laws (which the US Supreme Court has interpreted to be constitutional and not in violation of the right to privacy) that have curtailed a woman\u2019s right to obtain an abortion. In several states, governments have enacted laws to close abortion clinics, instituted 24 hour waiting period before a woman can legally obtain an abortion, and instituted rules requiring women seeking an abortion to obtain a sonogram (with pictures of the fetus) before obtaining clearance for an abortion. The result has been that it has become more difficult for women (in many, but not all states) to obtain a legal and safe abortion.<\/p>\n
Civil Liberties: Rights of the Criminally Accused<\/p>\n
The Democratic and Justice Purposes of the Rights of the Criminally Accused<\/p>\n
The first and second amendment civil liberties are limits on government power and individual freedoms. But of course, sometimes government is may limit an individuals\u2019 freedom. After all, we live in society with others and it is both unwise and impractical if each individual had absolute freedom and could do whatever they wanted. Social order is premised on the fact that a public authority, i.e. government, has the power to ensure the public safety, security, and welfare. However, in government\u2019s eagerness to do so, government agents can, at times, abuse their police power by harassing and punishing the innocent and thus curtailing other civil liberties necessary for social and cultural expression and a democratic political system. Indeed, historically, (and as the framers of the Declaration and US Constitution experienced it under British colonialism) among the most effective ways to silence social and political dissent is not only through outright censorship of speech and press, but by government using its police powers to harass, arbitrarily arrest, hold without trial, torture, permanently detain\/eliminate, or otherwise unjustly punish dissenting voices. Thus, the rights of the criminally accused have a democratic purpose to limit abuse of power to silence expression and political activities of ideas and opinions with which government officials disagree.<\/p>\n
The second purpose of the rights of the criminally accused is to ensure that the criminal justice system is just. The rights of the criminally accused exist not to make government\u2019s responsibility to ensure safety and security more difficult. Instead, they exist to ensure that the government does not punish the innocent. The legitimacy of the criminal justice system and of America\u2019s democratic project rests on the notion that government is able to ensure the safety and security of its citizens and, at the same time, that the criminal justice system is fair and does not punish the innocent. <\/p>\n
To prevent government abuse of power the second element of civil liberties is equally crucial to the realization of the freedom of speech, press, assembly, petition, and fundamentally, democracy. The second element of civil liberties are its procedural aspects or the rights of the criminally accused. The rights of the criminally accused are procedural rules that government must follow when the government deprives someone of their right to life, liberty, or property. The rights of the criminally accused require that in the process of investigating, prosecuting, and punishing an individual government power is limited to legal procedures. Individuals accused of crimes are afforded certain rights that protect them against potential abuses by government. For instance, among the procedures that government must follow is that government cannot hold an individual indefinitely without charging that person with a crime (habeus corpus). Likewise, as per the 4th Amendment the government must obtain evidence legally or else it cannot be used at trial (4th Amendment, exclusionary rule of evidence, Mapp v. Ohio [1961]) (Cole 2016). As per the Supreme Court\u2019s interpretation of the 5th Amendment government must inform the accused of their rights (Miranda warnings) and cannot compel a person to testify against themselves (5th Amendment freedom from self-incrimination). In addition, accused individuals have the right to obtain a lawyer for their defense and to obtain witnesses for their defense during the course of trial (6th Amendment, assistance of counsel). And finally, the 8th Amendment prohibits government from imposing excessive bail and from inflicting cruel and unusual punishments. All of these \u201cdue process procedures\u201d place limits on government power to limit its abuse of its coercive police powers. <\/p>\n
Like the first and second amendment freedoms, the rights of the criminally accused as expressed in the 4th, 5th, 6th, and 8th amendments are not absolute. The interpretation and application of these rights is subject to the US Supreme Court\u2019s interpretation and to the political process. <\/p>\n
4th Amendment: Searches and Seizures<\/p>\n
The application of the 4th Amendment\u2019s prohibition against \u201cunreasonable searches and seizures\u201d has been controversial and subject to intense political debate. The 4th Amendment reads that for individuals to be \u201csecure in their houses, papers and effects\u201d law enforcement officials must follow certain procedures in invading a person\u2019s privacy when conducting a search. In conductive a legal search an officer must obtain a search warrant issued by a judge based on probable cause. The warrant must be fairly specific with regard to where the search is being conducted and what is being searched for. The purpose of the amendment is to protect the privacy of individuals and prevent \u201cfishing expeditions\u201d by police in search of potential incriminating evidence. However, over the course of US history the US Supreme Court has carved out a number of exceptions to the warrant requirement, and to the exclusionary rule, where law enforcement is permitted to conduct legal searches, and to obtain evidence without obtaining a warrant. Such examples include searches conducted when an individual consents to a search, if evidence is in plain sight, stop and frisk, automobile searches, and during the course of arrest, among other exceptions. <\/p>\n
Since the terrorist attacks of September 11, 2001 the federal government has broadened its power to conduct searches and to surveil both citizens and non-citizens. The 2001 USA Patriot Act (subsequently renewed in 2006 and 2011) expanded the government\u2019s power to conduct secret searches on suspect\u2019s internet activities, financial records, phone conversations, library records, and even their mail. In 2013 NSA whistleblower Edward Snowden revealed that the federal government was not only collecting data (phone records and internet traffic) on potential terrorism suspects, but on everyone in the US (Greenwald 2013; Gellman 2014). Long denied by the government, as a result of Snowden\u2019s disclosures President Obama was forced to admit the government\u2019s activities (\u201cThe President on Mass Surveillance\u201d 2014). Obama argued the activities were legal as they were permitted and monitored by a secret court (accountable to seemingly no one). These programs continue to exist despite the disclosures of the extent of government surveillance on the activities of ordinary citizens as there has been little public resistance to the secret surveillance or demands for greater oversight.<\/p>\n
5th Amendment: Due Process and Freedom from Self-Incrimination<\/p>\n
The fifth amendment to the US Constitution provides for a number of limits on government power in the form of procedural requirements when the government deprives a person of \u201clife, liberty or property.\u201d These include the requirement that a person being charged for a crime be indicted by a grand jury or similar such body to ascertain if the authorities have sufficient cause to bring the accused to trial; the protection against double jeopardy which protects a person from being tried for the same charge twice; and eminent domain which allows government to seize private property for a public purpose, but requires government pay just compensation for the taking. Each of these provisions have their own purpose in limiting the power of government, providing for protection against government abuse, and protecting individual freedom. However, the most common aspects of the 5th amendment are its provisions against self-incrimination and \u201cdue process of law\u201d. Simply put, the due process of law provision of the 5th amendment implies that when the government detains or arrests someone, or deprives them of their property, government is required to follow due process procedures according the US Constitution and the laws. The due process provision prohibits government from acting arbitrarily by depriving and punishing an individual without following the law and abiding by the other provisions of the US Constitution including protections against unreasonable searches and seizure and an individuals\u2019 rights during detention and trial. <\/p>\n
The most widely known aspect of the 5th amendment is its protection from self-incrimination. This is what people mean when they say they \u201cplead the 5th.\u201d The freedom from self-incrimination means that government cannot legally compel a person to testify against themselves. A person\u2019s refusal to testify or to answering a question posed by authorities by \u201cpleading the 5th\u201d does not imply their guilt. The freedom from self-incrimination is an important limit on government power, especially that of law enforcement authorities. Confessions are the easiest way for law enforcement to \u201csolve\u201d an alleged crime and close a case. There is much history, and significant incentive for law enforcement to coerce confessions, including of the innocent. Thus, to protect individuals from such coercion and to ensure that law enforcement not punish the innocent the freedom from self-incrimination was given substance in the Miranda v. Arizona (1966) Supreme Court decision. In this 5-4 decision the US Supreme Court required that the accused be informed of their legal rights including their right to remain silent and their right to an attorney should they request one before further questioning by law enforcement. The purpose of the Miranda rights is to minimize coercion by informing individuals of their rights, which individuals are free to waive, when under interrogation by law enforcement. <\/p>\n
6th Amendment: Right to Counsel<\/p>\n
The 6th Amendment provides for an individual accused of a crime to have access to a lawyer during trial. This is essential for a \u201cfair\u201d trial as a trained lawyer has the knowledge and expertise in criminal law and procedure which are necessary for legal representation of someone accused of a crime. However, until the 1960s the Supreme Court interpreted this provision narrowly. For much of US history the \u201cright to counsel\u201d meant that if the accused individual could afford a lawyer and wanted to have one present government could not bar the lawyer from the trial. However, if the person could not afford a lawyer government was not obligated to provide one in non-capital cases. In Powell v. Alabama [1932], in a case overturning the conviction of the Scottsboro Boys in which nine black teenage boys were falsely accused and convicted of raping two white women, the US Supreme Court ruled that in capital cases (cases where the punishment can be the death penalty) the government was obligated to provide a lawyer for the indigent (poor). This meant that despite the important step toward fairness take in the Powell decision indigent individuals often went to trial (in non-capital cases) without the assistance of counsel. <\/p>\n
Then, thirty years later in a famous Supreme Court case Gideon v. Wainwright (1963) the court ruled that the right to a defense lawyer was an essential right and necessary for a fair trial and due process of law. This meant that the federal government and the states were required to provide a lawyer (at public expense) to any individual facing serious criminal charges (be they capital or non-capital charges, i.e. where the death penalty is not a possible punishment). The Gideon decision came on the heals of a renewed concern for the poor following Michael Harrington\u2019s publication of The Other America and President Kennedy\u2019s interest in the plight of the indigent. <\/p>\n
The Gideon decision rested on an interpretation of the Constitution that expanded the rights of the criminally accused. However, the effectiveness of these constitutional rights, including the right to a lawyer depend heavily on the federal government and states willingness to fund public defenders. Over the last several years as state budgets have shrunk and there has been a greater public emphasis on \u201claw and order\u201d states have cut the budgets of public defenders\u2019 offices. The result has been that states are able to hire fewer public defenders and existing public defenders are forced to take on increasing caseloads. Due to public defenders\u2019 high caseloads their indigent clients are persuaded to plea bargain. Over 90 percent of criminal prosecutions do not go to trial (\u201cCriminal Cases 2018). Instead, they are \u201cresolved\u201d in plea bargaining where the government drops certain charges or offers a more lenient penalty in exchange for the defendant agreeing to plead \u201cguilty.\u201d In many cases, the punishment as a result of the plea bargain consists of a longer jail sentence and a higher fine for the indigent than for those accused of the same crime but who are able to afford their own lawyer. In 2012, the US Supreme Court in Lafler v. Cooper and Missouri v. Frye extended the 6th Amendment right to counsel to plea bargaining (Rosdeitcher 2012). The extent to which these decisions serve to protect the innocent and guarantee fair justice remains to be seen. What is certain is that Supreme Court decisions in and of themselves are not enough to guarantee that the criminal justice system is fair and treats everyone equally. For the criminal justice system to maintain its legitimacy, to provide for public security and protect people\u2019s rights, and to ensure that the government does not punish the innocent requires funding and enforcement by the other branches of government and the political participation by the people to keep government accountable (Yoffe 2017; Bronner 2013; Rakoff 2016). <\/p>\n
A further expansion of the right to an attorney, and a first in the country, occurred in 2017 when New York City enacted a law providing free legal representation in housing court for low income people. The legal assistance has helped thousands of people saving them from eviction from their homes (Bittle 2018). As this example illustrates the protection of civil liberties have another political dimension: they have budgetary and monetary costs. As Stephen Holmes and Cass Sunstein have argued in their cleverly titled book, The Cost of Rights: Why Liberty Depends on Taxes. Determining whether government officials are willing to use their power to tax and spend public money on enforcing civil liberties is another aspect of the politically contested nature of civil liberties.<\/p>\n
8th Amendment: Prohibition Against Cruel and Unusual Punishment<\/p>\n
The practical application of the 8th Amendment\u2019s prohibition against cruel and unusual punishment has been equally controversial. What exactly constitutes cruel and unusual punishment? Is years of solitary confinement punishment that is cruel and unusual? In the view of the US Supreme Court it is not (Garbus 2016). Should it be? Likewise, is a life term in prison for a juvenile offender a form of cruel and usual punishment? According to the law, it is not (Liptak and Bronner 2012). Should it be? Is the death penalty a form of cruel and unusual punishment? <\/p>\n
In most developed capitalist democracies throughout the world the death penalty is considered a form of inhumane punishment and therefore is illegal. However, after a brief moratorium in the 1970s the US Supreme Court ruled that the death penalty is not a form of \u201ccruel and unusual punishment\u201d and is therefore legal in the United States. Following the end of the moratorium, the federal government and the states enacted criminal laws that permitted the death penalty for certain crimes. Since, the Supreme Court has curtailed the government\u2019s authority to execute certain people. For instance, the court has ruled that executing a juvenile offender or a mentally ill person as punishment of crime is cruel and unusual and this prohibited. With these exceptions, the death penalty remains legal in the US. Some states, such as Florida, Texas, Virginia, and California use the death penalty much more often than other states where the death penalty is legal. However, over the last couple of decades, as a result of public pressure stemming from the revelation of hundreds of DNA exonerations, some states have moved to abolish the death penalty. According to a study by the Death Penalty Information Center, 166 people who have been wrongfully convicted and sentenced to death have been exonerated, including 5 people in 2018 (Death Penalty Information Center 2019). In 2012, the death penalty was abolished in Connecticut. In 2013, it was abolished in Maryland. New York State effectively ended its death penalty in 2007.<\/p>\n
Source: ProCon.org, https:\/\/deathpenalty.procon.org\/view.resource.php?resourceID=001172<\/p>\n
Number of People Executed in the US<\/p>\n
2020<\/p>\n
17<\/p>\n
2019<\/p>\n
22<\/p>\n
2018<\/p>\n
25<\/p>\n
2017<\/p>\n
23<\/p>\n
Since 1976 (Supreme Court Lifted Death Penalty Moratorium)<\/p>\n
1504<\/p>\n
Source: Death Penalty Information Center, https:\/\/deathpenaltyinfo.org\/executions\/executions-overview\/number-of-executions-by-state-and-region-since-1976<\/p>\n
Unequal Before the Law: The Class and Racial Double Standard<\/p>\n
Each of the \u201crights of the criminally accused\u201d amendments discussed above, the 4th, 5th, 6th, and 8th are meant to ensure that the innocent are not punished and that everyone is treated by the law equally. The idea is that justice entails that the law treat the rich and the poor, white and non-white, equally. This is a noble and morally right aspiration. Unfortunately, the aspiration often diverges from reality. There is a significant class and racial bias in the making of the law, in its implementation, and therefore, in the criminal justice system. It is a bias that is legitimated by the hyped \u201cfear of crime\u201d which has the function of preserving the unequal class and racial status quo. The bias exists even in how the media and much of the public thinks of crime. As is often portrayed in the media the focus of crime reportage are on things like assaults, robberies, muggings, car jackings, and violent crimes. These obviously occur and must be policed. However, what often goes overlooked and underreported are the crimes perpetuated by economic elites. These are called white collar crimes and often not portrayed as bad as criminal activity associated with poor and working-class people. However, white collar crimes perpetuated by wealthy individuals and corporations have much greater social, environmental, monetary, and human costs. They also often go unpunished and rarely is someone sent to prison for these crimes (Reiman and Leighton 2016; Hobbes 2020; Coffee 2020). According to a Justice Department study a majority of the biggest US corporations were \u201cguilty of one or more criminal actions including tax evasion, price-fixing, illegal kickbacks, bribes to public officials, consumer fraud, or violations of labor codes, workplace safety, and environmental laws\u201d (Parenti 2011). <\/p>\n
The harsh reality is that a corporation\u2019s negligence or outright violation of the law has devastating consequences for regular people. When a corporation does not comply with federal and state health and safety regulations, such as in the mining and resource extraction industries, workers develop illnesses, cancer, and they die. Likewise, when a company defies federal pollution standards and dumps toxic materials contaminating the soil, water, and atmosphere people who live nearby, or who drink the water, or breath the air become sick, develop cancers and long-term illness, and some of them die as a result (Markowitz and Rosner 2013). When a company bribes public officials to get a contract, the taxpayer\u2019s money is wasted. Taxpayer money that could have gone to better use. White collar crime has enormous social repercussion. <\/p>\n
Examples of white-collar crime abound. In 2017 it was discovered that the banking giant Wells Fargo engaged in massive fraud by creating banking and credit card accounts of millions of people without their knowledge. The bank was fined a pittance of its revenues and no one went to jail. Banks, mortgage companies, and financial rating companies all colluded bringing about the financial crisis that devastated people\u2019s investments, retirement accounts, resulted in job loss, and foreclosure on their homes. The companies settled with the federal government for a fine, but no bank, mortgage company or ratings company executive went to jail (Stewart 2015). Similarly, General Motors and Volkswagen lied to investigators and violated fuel efficiency standards on their cars which emitted more pollution into the atmosphere. They were forced to pay a modest fine, but no one went to jail. In 2014, forest fires devastated parts of California. Pacific Gas and Electric, the power company operating in the state plead guilty to the deaths of 84 people in connection with the fires (the company knowingly used old and shotty equipment which caused the fires). Despite the guilty plea, no company executives went to prison. For years, Perdue Pharma, the maker of the OxyContin, unlawfully promoted the use of the drug to doctors and thus, patients. The drug, an opioid, is highly addictive and has caused the devastation of communities and the death of tens of thousands of people since 2007. For these crimes and the death of so many people, three Perdue Pharma executives were charged with, and pleaded guilty to misdemeanors and no one went to jail. The company was fined $600 million, a tiny amount of it profits, and business went on as usual. In 2020, the company pleaded guilty to three more felony charges. No one went to prison. The company was fined a more substantial $8 billion, but soon after the Trump Administration\u2019s Justice Department waived the payment of the fine to a mere $225 million (Coffee 2020). The above examples of corporate penalties are not as common as one would think. Corporations have so many resources and such good connections to government officials that they often go without settlement or trial and just wait out the prosecutors. Under President Trump a number of corporations, including Walmart and Barclays Bank settled for much lower fines than the Obama Administration wanted them to pay (Protess et al. 2017). The number of corporate malfeasance cases and the amount of fines imposed has plummeted under President Trump illustrating his pro-corporate position allowing corporate criminals to escape punishment (\u201cCorporate Impunity\u201d Public Citizen 2018). In other cases, the federal government did not even collect the fine reached at settlement (Parenti, 123; Public Citizen 2018). <\/p>\n
Often, even when a company is fined and settlement reached, the settlement does not include an admission of guilt by the company. Effectively, this means that the company commits crimes, but does not have a criminal record. The company just has to pay a fine and then resumes business as usual. One glaring example of this is wage-theft. Wage-theft is when an employer defrauds his\/her employee of the wages they are entitled to for their work. The scale of the wage theft problem is massive affecting tens of thousands of people to the tune of billions of dollars. Low income, working class, and undocumented people are its most common victims. According to a 2014 study, wage-theft costs American workers over $50 billion per year (Meixell and Eisenbrey 2014). In other words, employees did not receive over $50 billion dollars in wages that they worked for and rightfully deserve. In 2012, a total of $933 million was recovered for employees whose wages were stolen by their employers (Hobbes 2019). This amount is over three times more than the total amount stolen all other robberies for that year. Yet media coverage of robberies are a daily occurrence while wage-theft is hardly ever mentioned. Furthermore, what is more shocking is that under existing law, the maximum amount an employer can be fined for wage-theft violations is $2,014 (Hobbes 2019). This miniscule fine creates an incentive for employers to break the law, underpay and exploit their employees. If they get caught, they pay a tiny fine and return to business as usual.<\/p>\n
Not only are corporate penalties generally light with few if any executives going to jail betraying law enforcement\u2019s class bias, but the law also has a racial bias as well. People of color, black and Hispanic are more frequently targeted by law enforcement, suffer greater harassment, and endure harsher penalties by the courts and in the corrections system than are whites. This is particularly so regarding drugs enforcement and related offenses. For instance, as an example of racial bias in police harassment, in New York City between the years 2004 and 2012 over 4.4 million people were stopped and frisked. Few of the stop and frisks resulted in finding illegal weapons, the purpose of the stops. Few, arrests or summons were issued. In 88% of stop and frisks the police did not find any weapons, nor did they issue summonses or make arrests. The vast majority of stop and frisk victims did nothing wrong. Crucially, 83% of all stop and frisks conducted in the period under review were of black and Hispanic people, even though it was more likely that weapons would be found on white people subjected to stop and frisk (Editorial Board 2013). <\/p>\n
Studies have shown that whites are just as likely do deal drugs and more likely to use drugs than blacks or Hispanics. Yet, the latter are more likely to be targeted, arrested, and convicted for drug offenses (Alexander 2012; Ingraham 2014). The War on Drugs, officially declared by President Ronald Reagan in 1982, several years before the crack epidemic hit urban communities, was a \u201cwar\u201d that targeted poor communities of color. Lawmakers at the federal, state and local levels of government enacted more punitive sentencing laws, channeled billions of dollars for the prison industry and for the militarization of police, while at the same time gutted education, housing, and job creation programs. The Supreme Court allowed greater discretion for police in conducting searches, created exceptions to the 4th amendment\u2019s warrant requirement, narrowed the ability to seek legal remedies for racial bias in policing, and upheld draconian sentencing laws. The result of the racially biased \u201cwar on drugs\u201d was huge surge in the number of people incarcerated in what scholars have called \u201cmass incarceration\u201d (Alexander; Cox 2015). In 1976, roughly 200,000 people were incarcerated in the US. The vast majority for violent crimes. In 2017, over 1.4 million people were incarcerated, a significant portion are there for drug offenses with no prior criminal record (\u201cTrends in US Corrections\u201d 2019). <\/p>\n
Source: \u201cTrends in Corrections.\u201d Sentencing Project. 2019.<\/p>\n
Additionally, over half of the incarcerated population is black or Hispanic (\u201cTrends in US Corrections\u201d). In perhaps the most shocking statistic indicating the racial bias of the criminal justice system, one in three black men and one in six Hispanic men born after 2001 has a likelihood of being incarcerated at some point in their lifetime. The likelihood of a white man is, one in seventeen (\u201cTrends in Corrections\u201d). <\/p>\n
Source: \u201cTrends in Corrections.\u201d Sentencing Project. 2019.<\/p>\n
As Michelle Alexander in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness has argued, the racialized war on drugs and the policies that enabled it has had a devastating effect on communities of color, condemning many to a \u201cnew Jim Crow\u201d second class citizen status. Individuals convicted of felonies are penalized well after having served time in prison. In many states they are denied the right to vote. They lose access to federal and state social welfare benefits including housing assistance, food assistance, and tuition\/education assistance. And they are discriminated in seeking employment. Together these measures make it extremely difficult to rebuild one\u2019s life and become a law-abiding and productive member of society. <\/p>\n
The interpretation and implementation of the rights of the criminally accused and how the criminal justice system operates have huge impacts on people\u2019s lives and on the society. Civil liberties and criminal justice in general are political things. They are the result of decisions made by elected officials in the laws they crafted and the money they put toward it and in the interpretation of judges in the courts. The US criminal justice system betrays a class and racial bias that establishes a double standard in how the law and the courts treat the wealthy and corporations on the one hand, and the rest of the population on the other. Similarly, as the data indicate, there is a disparity in how the implementation of criminal justice law treats whites and people of color. <\/p>\n
Private Power and the Limits on Individual Freedom: Civil Liberties in the Workplace, on the Web, and in Public-Private Spaces <\/p>\n
As this chapter has argued civil liberties are individual freedoms placing limits on government power. These including the political freedoms of the first amendment and the rights of the criminally accused of the 4th, 5th, 6th, and 8th amendments. They are all essential for a democratic society. But government is not the only entity that may invade an individuals\u2019 privacy and punish a person for their beliefs, speech, and political activities without \u201cdue process\u201d. Employers in both public and private employment can inhibit individual freedom. However, unlike limits on government power to do so, these private entities are largely free to deny their employees their civil liberties. The 4th Amendment that protects an individual\u2019s privacy from unreasonable searches and seizures limits the power of government. However, at present, protections against invasions of privacy by employers and technology companies are weak at best. <\/p>\n
There is an old saying that many of your civil liberties end at your employer\u2019s door. The saying means that employers have extensive power to curtail and punish an employee for their political activities both in and outside of the workplace. Furthermore, employers also have extensive power to monitor and spy on their employees invading their privacy both in and outside of work. Employers have these extensive powers because of their economic power over employees\u2019 jobs. Employees who run afoul of their employers\u2019 determination of \u201cappropriate political activity\u201d can be punished in the form of being denied promotions, have their wages reduced, or they can be terminated from their job becoming unemployed. These are significant penalties which threaten an employees\u2019 ability to survive and provide for their families. In some cases, employees and\/or job applicants sign a consent form agreeing to the employer\u2019s right to surveille them. Some argue that employees or prospective employees voluntarily give up their right to privacy. But, since refusing to sign such a consent agreement would most likely result in not being hired, or in the case of an existing employee, termination, the individual does not have much of a choice whether to waive their right to privacy or not. <\/p>\n
Thus, employers\u2019 unilateral power to decide to hire, fire, or otherwise punish an employee can stifle employees\u2019 freedom of speech, association, and political activity both, in an outside of the workplace. Below are several examples illustrating an employers\u2019 power to surveille their employees curtailing their right to privacy. For instance, employers can subject their employees to random, compulsory drug tests. Employers can check prospective employees\u2019 credit report prior to being hired. Employers monitor employees key strokes, web browsing, their non-work related emails if they are on company equipment, social media activity and private messaging apps (Solon 2017). Employees can be terminated for web activities which the employer does not approve. According to the job site, CareerBuilder, in 2015, 52% of companies check prospective employees\u2019 social media profiles before hiring them (Kumar 2015). Employers may use GPS software installed on company provided cell-phones to track an employees\u2019 movements, even during non-work hours (Ruppel Shell 2018; Waddell 2017). Each of these can be viewed as invasions of an individuals\u2019 privacy that have nothing to do with the qualification for the job an individual holds or is applying for. <\/p>\n
In addition, an employer can use their power to inhibit a former employees\u2019 freedom of movement. Employers can prevent a former employee from seeking employment with another business in the area by requiring the employee to sign a non-compete agreement. These \u201cagreements\u201d prevent employees in a variety of jobs including managers, auto mechanics, scientists, truck drivers, landscape workers and many others from seeking higher wages, better working conditions, or escaping tyrannical employers and finding a job with a competitor (Dougherty 2017). <\/p>\n
Furthermore, employers can curtail an employees\u2019 freedom of speech, press, assembly and petition. Employers can prohibit employees and terminate their employment if they are publicly critical of the company or if the employee participates in political activities with which the employer disagrees. There is a long history of individuals who have been blacklisted, denied employment opportunities because of their political activities or union organizing were at odds with those of corporations and employers. Individuals engaged in organizing their coworkers to form a union to advocate for better wages, benefits, and working conditions have often been targets of businesses and employers. Labor union organizers, civil rights advocates and ordinary workers, teachers, public servants, and many others were blacklisted, demoted by their employer, fired from their jobs, and denied further employment for their views and political activities. Infamously, world renowned artists, writers, and actors were blacklisted during the McCarthy Purges in the 1940s and 1950s. Individuals including actor Charlie Chaplin, actor\/director Orson Welles, screenwriter Dalton Trumbo, actress\/singer Lena Horne, author and poet Langston Hughes, singer\/actor Paul Robeson, singer\/songwriter Pete Seeger, and playwright Arthur Miller among many others. Athletes were also been blacklisted in the nation\u2019s history. In the late 1960s, following Muhammad Ali\u2019s refusal to be drafted to fight in the Vietnam War the boxing federation stripped him of his titles and banned him from competing for over four years. Basketball player Craig Hodges was blacklisted by the NBA for speaking out against systemic racism. More recently, after taking a knee during the national anthem, NFL quarterback Colin Kaepernick has been blacklisted from the NFL in which all of the team owners have refused to employ him. These are just some of the most infamous examples of employers\u2019 power over employees to stifle the freedom of expression and invade their employees\u2019 privacy. <\/p>\n
In another example of the invasion of privacy by private companies, technology and media corporations surveille, collect, package and sell individuals\u2019 information. An individuals\u2019 consumer preferences, travel, social media activity, location, political and personal preferences to third parties which the individual has no knowledge with who their personal information has been shared (Zuboff 2019). Companies such as Google, Facebook, Twitter, dating apps such as OkCupid and Tinder, and other tech corporations make profits by selling this information to companies or by allowing other companies to target their ads to specific individuals (Singer and Krolik 2019). Facebook and Google collect massive amounts of information on all of its users. Google knows where you have been (based on using the google app on your phone). Google knows your age, gender, age, hobbies, career, relationship status, political affiliation, etc. Google knows everything you have ever searched or deleted. Facebook knows every message you have ever sent or received. It knows everything you have ever posted including photos, videos, audio recordings, etc. Facebook and Google also know every advertisement you have ever clicked on, and much, much more (Curran 2018). Information, which an individual believes to be private is not. Furthermore, in 2016 Facebook had a massive break of the data of over 50 million of its users. Cambridge Analytica, a voter-profiling company used the Facebook profiles they obtained from the breach to influence the 2016 Presidential election. <\/p>\n
Finally, another example of individual being deprived of their freedom of speech, assembly and petition is in public-private spaces such as shopping malls. Local strip malls located in almost every community in America along with giant shopping malls such as the nation\u2019s biggest, the Mall of America located in Minnesota are spaces where people go and congregate. Today, such spaces have substituted for the town square and main street where decades ago most retail and shopping was done. As malls have replaced \u201cmain street\u201d as the commercial lifeblood of a community it has had major impact on the civil liberties of individuals. Shopping malls, such as the Mall of America, are legally private spaces. The owners of the shopping malls have the right and the power to decide what kind of activities, including the expression of civil liberties, they allow or deny. Mall owners have the legal authority to deny and punish first amendment expressions, including handing out leaflets, making speeches, conducting protests or demonstration on mall property. Because malls are considered private property the mall owners are within their legal rights to curtail freedom of expression and punish those who exercise these rights with criminal prosecutions of trespassing among other citations (Maniscalco 2015).<\/p>\n
As each of the above examples demonstrate how civil liberties are curtailed and individual privacy violated by private agents such as employers, tech companies, and owners of public-private spaces. The US Constitution and the laws protect individuals\u2019 privacy and expression from government interference. However, at present the law does little to protect individuals from the power of private agents to abridge individuals\u2019 civil liberties. As this section has shown, to understand the extent to which an individual may fully express their civil liberties it is important to recognize that core individual freedoms essential for democracy, such as freedom of speech, press, assembly, association, petition and the right to privacy may be curtailed not only by the power of government, but also by the economic power of private employers and corporations. As the next section argues, neither the class and racial biases of the criminal justice system, nor the extensive power of employers over their employees over civil liberties are inevitable and must exist. Their existence are political choices, which means that they can be unmade, changed, and other policies enacted that better align with the principles of equal treatment and individual freedom.<\/p>\n
The Contested Politics of Civil Liberties: Interpreting and Applying Civil Liberties in American Politics<\/p>\n
How civil liberties exist in practice is the result of politics. Civil liberties are the product of political struggle and conflict. Civil liberties are politically contested. How civil liberties are interpreted and implemented, and how they impact our everyday lives and our democracy can and have changed over time. There is nothing fixed or inevitable about any of our civil liberties, be they the freedom of speech, the freedom of the press, the rights of the criminally accused, or \u201cdue process of law.\u201d What \u201cdue process\u201d means and what rights the criminally accused have has evolved over the course of American history. Furthermore, that evolution has not always been toward greater freedom or more \u201crights.\u201d For instance, since 2015 a number of states have enacted anti-protest bills. For instance, in Louisiana, protesting near oil and gas pipelines could result in an individual being charged with a felony and imprisoned for 5 years. Likewise, according to a 2018 law enacted in Texas \u201cinterfering\u201d with oil pipelines is now a third-degree felony punishable by two to ten years in prison. The same sentence as someone convicted of attempted murder (Johnson 2020a).<\/p>\n
Because the US Supreme Court is the final interpreter of the Constitution it matters who the judges on the Supreme Court are. As was discussed in the Judiciary chapter the selection of these judges is made by the president and the US Senate. The nomination and confirmation of Supreme Court judges are not merely legal procedures. They are politically contested because how a Supreme Court judge interprets the Constitution and what their political ideology is affects their rulings that may either have the effect of curtailing or expanding civil liberties. These decision have real consequences for a whole host of issues including police powers, the rights to privacy (including abortion), access to quality legal defense, freedom from torture at the hands of law enforcement, access to contraceptives, the freedom to protest and strike, and the freedom to express oneself, and to be a fully informed citizen in a democratic society. <\/p>\n
But the political struggle over the meaning and application of civil liberties is not exclusively a legal struggle involving lawyers and judges. The political struggle over civil liberties occurs in the halls of Congress, in state legislatures, and in public spaces where regular people engage. Elected officials on the local, state, and federal levels may disagree about the interpretation and application of civil liberties. Legislators and executives on the state and federal levels may pass laws or issue orders that may expand or curtail civil liberties protections. Wealthy campaign and election donors, lobbyists, citizen advocates, and social movement activists pressure elected officials to actualize their competing visions in public policy. For instance, since a woman\u2019s right to choose to have an abortion was legalized by Roe v. Wade (1973) the federal government and a number of states have enacted numerous laws that make it difficult for women to access that right. Since President Trump\u2019s appointment of Judges Gorsuch and Kavanagh to the US Supreme Court several states have enacted laws banning abortion. They have done so in order to openly challenge the Roe decision in the hope that the conservative majority on the US Supreme Court will overturn Roe. Meanwhile, other states, in anticipation of the Supreme Court overturning Roe have strengthened legal protections of a woman\u2019s right to choose (Tavernise 2019). <\/p>\n
Therefore, it is important that when students understand civil liberties, they don\u2019t just think about them as a series of Supreme Court cases and decisions. How civil liberties are defined and interpreted, how they are practiced, and what rights individuals have is the product of political struggle that occurs both, in and outside of the Supreme Court. The political conflict happens at all levels of government, among all the institutions of government, and in civil society. <\/p>\n
Civil Liberties and Democracy as a Way of Life<\/p>\n
As this chapter discussed there are a myriad of ways in which an individual\u2019s freedom of speech, press, assembly and petition can be legally curtailed by government. Similarly, corporations and employers, because of their economic power over the individual employee have also silenced and repressed dissent. But to fully appreciate civil liberties it requires more than just understanding how they can and have been curtailed. To understand their real value, for individual expression, social and cultural development, and for the existence of democracy it is important to understand how civil liberties have been used to make government and corporations more accountable to the public. It is because individuals, groups, and the media have exercised their civil liberties to inform the public, to criticize bad public or corporate policy, to offer alternatives and to organize and assemble with others to pressure government officials and corporate leaders to change policy that freedom, opportunity, and equality have expanded. Historically, Frederick Douglass and countless other Abolitionists exercised their civil liberties and spoke, wrote, organized abolitionist groups, and protested against the institution of slavery. Their tireless agitation made the issue of abolishing slavery central in the political discourse and persuaded many people of the moral, ethical, social and political evil that was slavery. The Civil Rights Movement advocates in the 1950s and 1960s also exercised their civil liberties to make the nation realize the wrong that is racial segregation and discrimination. Exercising their civil liberties these civil rights (and human rights) advocates and activists pressured government to make racial segregation illegal. Similarly, workers across racial, ethnic, and gender have exercised their freedom of speech and press to advocate on behalf of worker rights and protections, improved wages, working conditions, and a more inclusive and economically equitable society. They have exercised their right to assembly to organize themselves into labor unions, an association of many individuals acting collectively to wield greater pressure on employers and government. Likewise, in the wake of the mass shootings at US schools, concerts, shopping malls, and other public places young people including grade school students, middle and high school students, college students, their parents and other concerned citizens have exercised their first amendment rights to speak and write about their tragic experiences and to persuade the people to join in their efforts to petition government to reform gun laws to reduce\/eliminate the future mass shootings. <\/p>\n
In conclusion, as the discussion about the right to privacy, the freedom of speech, and the rights of the criminally accused has shown the meaning and practice of our civil liberties are subject to changing politics. They are the product of political struggle. Depending on who is elected to public office, which judges are chosen to serve on the courts, and how active (or inactive) the people are in defending their freedoms are all factors that determine how little or how much actual freedom the people have. Civil liberties are core freedoms in a democratic system of government where the people rule. But for a democratic system to exist, to remain robust and vibrant, the people themselves, must exercise their civil liberties, both to preserve their individual freedoms and safeguard democracy itself.<\/p>\n
DISCUSSION QUESTIONS<\/p>\n
What is the two-part definition of civil liberties? <\/p>\n
Why are civil liberties such as the freedom of speech, press, and assembly essential in a democracy? Think about the relationship between these civil liberties and democracy as a form of government.<\/p>\n
Do you think that the concentration of the media is positive or negative for democracy?<\/p>\n
What is the purpose of the \u201crights of the criminally accused\u201d? Provide a few examples of rights of the criminally accused.<\/p>\n
Do you agree with the authors that there is a class and racial bias in the criminal justice system? Why or why not? Explain your answer and provide evidence to support your point of view.<\/p>\n
Explain the saying, \u201can individual\u2019s civil liberties end at the workplace door. Do you believe that employers should have the right to curtail employees\u2019 civil liberties? Why or why not?<\/p>\n
If you lived in a society where all of your information was accessible and shared, there was no privacy, how would that impact your life? Would it impact who you hang out with? What you buy? With who, and about what you communicate with others? <\/p>\n
Civil liberties are \u201cpolitical things\u201d or that they are politically contested. Explain.<\/p>\n
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3<\/p>\n","protected":false},"excerpt":{"rendered":"
The Political Imagination: An Introduction to American Government \u00a9 2021 Peter Kolozi and James Freeman Civil Liberties I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts…these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[10],"class_list":["post-93953","post","type-post","status-publish","format-standard","hentry","category-research-paper-writing","tag-writing"],"_links":{"self":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts\/93953","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/comments?post=93953"}],"version-history":[{"count":0,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts\/93953\/revisions"}],"wp:attachment":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/media?parent=93953"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/categories?post=93953"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/tags?post=93953"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}