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Civil Liberties
Civil Liberties
What are Civil Liberties?
• Those rights, such as freedom of speech or religion, that are
so fundamental that they are outside the authority of
government to regulate
– Also known as “natural rights” or “inalienable rights”
• Rights that every individual has and that government
cannot legitimately take away
– Civil liberties are added to the Constitution through the
addition of the Bill of Rights.
• First 10 Amendments to the Constitution
Civil Rights
What are Civil Rights?
• Set of rights, centered around the concept of equal
treatment, that government is obliged to protect.
• They are found in amendments like the 13th, 14th, 15th,
and 19th Amendments to the Constitution.
Civil Liberties as a Balancing Act
In creating a government of men over men, the Framers had to
struggle with how to provide as much freedom to citizens as
possible without risking anarchy. This required giving the
government the power to limit citizens’ rights, but at the risk
of tyranny.
• Anarchy is a state of society without governmental authority,
in which everyone does as he or she pleases.
• Tyranny is a government that severely limits liberty.
Civil Liberties and
Constitutional Amendments
Civil Liberties in the Bill of Rights
Expressional rights are contained within the
First Amendment.
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Freedom of speech
Freedom of the press
Freedom of assembly
Freedom to petition the government
Free exercise of religion
– “Congress shall make no law respecting an establishment of
religion nor prohibit the free exercise thereof.”
Religious Freedom
Establishment Clause
• “Congress shall make no law respecting an establishment of
religion”
– Lemon Test (Lemon v. Kurtzman, 1971)
• Test for determining whether aid to religion violates the
establishment clause
• Does the law or practice have a secular purpose?
• Does it neither advance nor inhibit religion?
• Does it not foster an excessive government
entanglement with religion?
Religious Freedom
Free Exercise Clause
• “nor prohibit the free exercise thereof”.
– States are generally free to pass laws that restrict religious
practices as long as such laws have a valid secular
(nonreligious) purpose.
– In the 1960s, however, the Court ruled that states must
have a compelling interest before they could abridge
people’s religious practices, even if the law had a valid
secular purpose. Reynolds v. United States, 98 U.S. 145
(1878).
• Polygamy
• Muhammad Ali
Freedom of Speech
While the First Amendment declares that “Congress shall pass no
law . . . abridging the freedom of speech,” the Court has never
taken the phrase “no law” to literally mean “no law.”
• Dangerous Speech
– Clear and Present Danger Test
• First Amendment test that requires the state to prove
that there was a high likelihood that the speech in
question would lead to a danger that Congress has a
right to prevent.
• Brandenburg v. Ohio
Fighting Words and Hate Speech
“Fighting words” are phrases that might lead the
individual to whom they are directed to respond with
a punch.
Hate speech is speech that attacks or demeans a group,
rather than a particular individual.
• University speech codes
Symbolic Speech
• Expressive communication, such as wearing
armbands, that is not verbally communicated.
– Texas v. Johnson
Time, Place and Mannerism Regulations
Regulations of the time, place, and manner of speech, such as
when or where protests may take place, are generally valid as
long as they are neutral or equal, that is, they do not favor
one side or another of a controversy.
• National Socialist Party of America v. Village of Skokie
Subsequent Punishment
In other situations, the government can punish people after the
fact for what they publish.
• Libel
- Publishing false and damaging statements about
another.
• Seditious libel
- Conduct or language that incites rebellion against the
authority of a state.
• Slander
- The legal term for defamation of character that is
spoken.
Pornographic or Obscene Speech
Miller Test
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Supreme Court test for determining whether material is
obscene
– To the average person, applying contemporary community
standards as established by the relevant state, the work, taken
as a whole (not just isolated passages), appeals to the prurient
(sexual) interest;
– The work depicts in an offensive way sexual conduct specifically
defined by the state law
– The work lacks serious literary, artistic, political, or scientific
value.
The Right of Association
Civil liberties can conflict with civil rights.
• Supreme Court’s rulings indicate that states can enforce
antidiscrimination laws as long as those groups do not engage
in speech-related or expressive activities.
• But if the group does engage in expressive activities and
association with certain groups that violate the views thus
expressed, the group has a First Amendment right of
association that overrides state laws banning discrimination.
Freedom of the Press
In extraordinarily extreme cases, the government can censor
items before they are published. This practice is known as
prior restraint.
• Government restrictions on freedom of the press that
prevent material from being published
The 2nd Amendment
“A 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.”
• Infringed vs. the 1st Amendment’s standard of abridged
• Well-regulated militia
– The Supreme Court decided that issue in 2008 and
2010, ruling that there is an individual right to
possess a gun, at least for self-defense in one’s
home.
» District of Columbia v. Heller
» McDonald v. Chicago
Criminal Justice Provisions of the
Bill of Rights
The criminal justice provisions of the Bill of Rights are
found in the 4th, 5th, 6th and 8th Amendments to the
Constitution.
• How the government may conduct investigations is found
primarily in the 4th and 5th Amendments.
– “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.”
Criminal Procedure
Investigations
• The major limits on investigating crimes involve the authority
to search for physical evidence and the warnings that must be
given prior to questioning a suspect.
– Searches and Seizures
• 4th Amendment prohibits unreasonable searches and
seizure
– Expectation of privacy
» Supreme Court test for whether Fourth
Amendment protections apply
Criminal Procedure continued
If the police conduct a search later found to be in
violation of the Fourth Amendment, the exclusionary
rule holds that such evidence cannot be used in trial.
• Mapp v. Ohio (1961)
• Good faith exception allows evidence to be used if the police
obtain a warrant but the warrant is later found to lack
probable cause.
Interrogations
The Fifth Amendment protects the right against selfincrimination, being forced to give testimony against oneself
during criminal investigations or at criminal trials.
• Miranda v. Arizona (1966)
- They have the right to remain silent
- Anything they say may be used against them
- They have the right to an attorney, free if they cannot
afford one.
Criminal Justice Provisions of the
Bill of Rights continued
5th Amendment Provisions
» “. . .nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken
for public use without just compensation.”
Criminal Justice Provisions continued
• How the government many conduct trials is found primarily in
the 5th and 6th Amendments.
– 5th Amendment
• “No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself”
Criminal Justice Provisions continued
– 6th Amendment
» “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his
defense.“
Criminal Justice Provisions continued
• How the government may punish those convicted of crimes
is found primarily in the 8th Amendment.
– Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Verdict and Punishment
If the jury acquits the defendant, the double jeopardy clause
prevents the person from being tried again for the same offense.
But if the jury cannot reach a verdict, the government can retry
the defendant.
Sentences must not violate the Eighth Amendment’s prohibition
on cruel and unusual punishment.
• Furman v. Georgia (1972)
• Gregg v. Georgia (1976)
Protection of Property
Property rights are primarily found within the 3rd and 5th
Amendments.
– 3rd Amendment
• “No soldier shall, in time of peace be quartered in any
house, without the consent of the owner, nor in time of
war, but in a manner to be prescribed by law.”
– 5th Amendment
• “. . .nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken
for public use without just compensation.”
Reservation of Rights
While the Constitution spells out specific rights that are
protected, this does not mean that other rights are not
protected.
• Language of 9th Amendment
• Language of 10th Amendment
Selective Incorporation
When the Bill of Rights was first added to the Constitution, it only
protected citizens from abuses by the national government.
• 14th Amendment
– “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
– Due Process Clause
• Selective Incorporation
– Doctrine used by the Supreme Court to make those provisions
of the Bill of Rights that are fundamental rights binding on the
states
Testing Violations of Civil Liberties
How do the courts make a determination that the civil liberties
of citizens have been violated by the state or national
governments?
• Compelling Interest Test
– Standard frequently used by the Supreme Court in civil
liberties cases to determine if a state has a compelling
interest for infringing on a right and if the law is narrowly
drawn to meet that interest.
• (1) The government has a compelling interest in passing the law
(for example, the law is necessary for the functioning of
government), and (2) that the law is narrowly drawn to meet that
interest.
The Right to Privacy
The word “privacy” does not exist in the Constitution, but it is
implied in several amendments.
• 1st Amendment’s freedom of association
• 3rd Amendment’s freedom from quartering soldiers in
peacetime
• 4th Amendments freedom from unreasonable search and
seizure
• 5th Amendments freedom from self-incrimination
Implied Right
• Penumbra: The shadowy region of the Constitution where
implied rights are found.
The Right to Privacy Continued
Privacy cases
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Griswold v. Connecticut (1965)
– The Supreme ruled that married couples could use birth control.
The case established a right to privacy, and the Court soon
expanded this decision to cover the right of unmarried people to
use birth control.
Roe v. Wade (1973)
– Using the compelling interest test, the Supreme Court declared
that states had a compelling interest in preventing abortion in
the third trimester, when the fetus could live on its own, and a
compelling interest in regulating abortion during the second
trimester, to protect the health of the woman seeking the
procedure. The state had no interest in regulating or preventing
abortion in the first trimester.
The Right to Privacy Continued
Privacy cases
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Lawrence v. Texas (2003)
– The Supreme Court decided that “the liberty
protected by the Constitution allows homosexual
persons the right to choose to enter upon
relationships in the confines of their homes and their
own private lives”.
Focus Questions
• What is government’s role with regard to civil liberties? How
responsive can, or should, it be to the people’s will?
• What is the proper balance between liberty and order?
• Under what circumstances should civil liberties be restrained?
• What happens when rights clash? Are restrictions of civil
liberties justified if they promote equality?
• In what ways does the guarantee of civil liberties promote
democracy? Or does it pose challenges for democratic
government that can be considered gates?