Civil Liberties

Issues about Civil Liberties

Disputes about civil liberties often fall within one of two areas. First, there is much case law on freedom of speech or expression. Issues tend to concern the extent to which restrictions on this freedom can be justified based on, for example, national security, the protection of morality, or the protection of the rights of other individuals (defamation, privacy). Governments often wish to control the publication of information about their operation on the first ground; religious groups may wish to press for controls on the publication of sexually explicit books, plays, or films on the second; individuals may seek restrictions to protect their reputations or privacy on the third. There may also be issues about what actually constitutes “speech” or “expression”—does it extend, for example, to burning [Page 199]the national flag or nude dancing? The prime civil libertarian argument against restriction tends to be that the answer to “bad speech” should be “good speech”; suppression of speech does not in the end lead to a healthy society. One can trace many of the arguments used in this context back to the work of John Stuart Mill (1806–1873), whose essay “On Liberty,” first published in 1859, contains powerful support for the greatest possible freedom in this area.

The second main area of contention relates to police powers to prevent or detect crime or to prevent and control public disorder. To what extent can the state justifiably limit the freedoms of an individual, not convicted of any offense, in the interest of furthering these objectives? When can they detain, and when can they search the person or her property without her consent? People generally accept some limitation of individual freedom in this context, even the most ardent supporters of civil liberties, but the problem is to find the correct “balance” between freedom and intervention. Many jurisdictions place a hurdle of “reasonable suspicion” or “reasonable cause” on the police before they can initiate any action, such as arrest or search. In the United States, the tendency has been to control police misbehavior by making evidence obtained in breach of correct procedures inadmissible in subsequent judicial proceedings, as shown by the landmark Supreme Court decisions in Mapp v. Ohio (367 U.S. 643, 1961) and Miranda v. Arizona (384 U.S. 436, 1966). By contrast, in the United Kingdom, the focus has been on requiring the police to follow strict statutory procedures (as, for example, in the Police and Criminal Evidence Act of 1984) but not on applying any strong exclusionary rule other than in relation to the most blatant misuse of powers.

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