Chapter 4
Civil Liberties
Civil Liberties
Civil Liberties
• Civil liberties: protections from improper government
action
– Substantive: limits on what the government can or cannot
do
– Procedural: rules regarding how the government must act
Civil Liberties
• Civil liberties: a check on the majority in order to
allow unpopular minorities to speak and act as they
desire
• They are the national means to protecting the
marketplace of ideas for a healthy democracy.
• Civil liberties allow people to live according to their
preferences, of their own choosing.
A Brief History of the Bill of Rights
A Brief History of the Bill of Rights
• Bill of Rights: The first 10 amendments to the U.S.
Constitution
• Bill of Rights is an Antifederalist contribution.
• Nationalizing the Bill of Rights (Incorporation)
– Originally understood as applying only to the federal
government
– Fourteenth Amendment incorporates the Bill of Rights to
the states
The Bill of Rights
A Brief History of the Bill of Rights
The First Amendment and Freedom of Religion
• Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof . . .
– Establishment clause
• Freedom from the state imposing any particular religion
– Free exercise clause
• Freedom to practice religion of choice without state
interference
The First Amendment and Freedom of Religion
Establishment Clause
• Prevents an official church
– Government can aid religious institutions as long as it does
not favor some over others.
– Wall of Separation
• Lemon test:
1. government involvement must have a secular purpose;
2. its effect is neither to advance nor to inhibit religion, and;
3. it does not entangle government and religious institutions in
each other’s affairs.
The First Amendment and Freedom of Religion
Free Exercise Clause
– Can believe and practice religion of one’s choice
– Can hold no religious beliefs without consequence
– As long as it does not harm others in the name of religion
(or lack thereof), it is protected.
Separation between Church and State
Separation between Church and State
Freedom of Speech and the Press
• Congress shall make no law . . . abridging the
freedom of speech, or of the press . . .
– Democracy requires a marketplace of ideas.
• But are there limits?
– In short, the Court has said “yes,” but there is a lot of
latitude.
– The next slide provides an example.
The First Amendment and Freedom
of Speech and the Press
Freedom of Speech
• Political Speech
– Highly protected by strict scrutiny, legal standards
• Must establish “compelling reasons” and narrowly
defined to limit
– Includes actions expressing political ideas
• Ex: financial contributions to political causes, protests
– Protected unless leads to immediate harm (clear and
present danger)
– There are a few time and place limitations.
• Ex: fire in theatre; yelling at night in a neighborhood
Freedom of the Press
Freedom of the Press
• The government cannot prevent the print media from
publishing what it desires.
– Press can be sued for:
• negligently publishing a lie that harms a public figure.
• libelous writing about issues that are not of public
concern.
– The rise of individuals gathering and reporting news
complicates these issues.
• WikiLeaks, anonymous, and online bloggers are more
difficult to contain, reprimand, or otherwise penalize.
Pornography
• Pornography and obscenity are difficult to define,
thus hard to regulate.
• Must be kept out of reach or sight of children
– Obviously, Internet is not especially compliant
• Child pornography is banned; harmful to children
involved.
– Involves several crimes unrelated to speech
Fighting Words and Hate Speech
Fighting Words and Hate Speech
• Fighting words are hard to ban because the target of
them always has the option of ignoring them.
• Likewise, hate speech is difficult to ban because it is
the expression of a political idea.
• When words leave the realm of thought and move
into direct and immediate action, their speakers can
be held accountable.
Commercial Speech
• Commercial speech is not nearly as protected as
political speech.
– Typically, a government need only have a rational reason
to ban an advertisement.
• People can face consequences for perfectly legal
speech if employers deem it problematic.
– Civil liberties protect the right to express views.
– There is NO right to be employed or supported by
employer, public, or others who disagree.
The Second Amendment and
the Right to Bear Arms
The Right to Bear Arms
• The Second Amendment applies to states and
localities.
• Banning the possession of a firearm in the home is
not possible.
• States and local governments can place different
boundaries around waiting periods, registration,
types of arms allowed, and other aspects related to
access.
Rights of the Criminally Accused
Rights of the Criminally Accused
• Due process: the right of every citizen against
arbitrary action by national or state government
– Procedural safeguards intended to protect the innocent by
guaranteeing a fair and just process
• Fourth Amendment and search and seizure
– Exclusionary rule: the ability of courts to exclude illegally
obtained evidence
The Fifth Amendment
Rights of the Criminally Accused
Fifth Amendment
• Grand juries
• Double jeopardy
• Self-incrimination
• Eminent domain
Rights of the Criminally Accused
• Sixth Amendment
– Right to counsel
• Anyone facing imprisonment has the right to an attorney
if they cannot afford one (public defender).
• Public defender policies vary by state.
– Some full-time employees of the state
– Some by contract/case
– Some require pro bono hours from all attorneys in
the state.
Rights of the Criminally Accused
• Eighth Amendment
– Prohibits:
• excessive bail
• excessive fines
• cruel and unusual punishment
– The death penalty is allowed, but it must follow due
process carefully.
• States decide whether to allow the death penalty.
• If allowed, states determine execution method(s).
The Eighth Amendment and Cruel
and Unusual Punishment
WHO ARE AMERICANS?
Who Is in Prison?
CHAPTER 4
WHO ARE AMERICANS?
Who Is in Prison?
FOREIGN CITIZENS
UNDER 18
6%
0.2%
OTHER
HISPANIC
8%
22%
PUBLIC-ORDER
OFFENDERS
9%
PROPERTY
OFFENDERS
19%
FEMALE
7%
DRUG
OFFENDERS
19%
WHITE
32%
BLACK
38%
VIOLENT
OFFENDERS
52%
SOURCES: Bureau of Justice Statistics, "Prisoners in 2010" (2011); Roy Walmsley, "World Prison Population List,” Ninth Edition
(2011), International Centre for Prison Studies, School of Law, King's College, London.
WHO ARE AMERICANS?
Incarceration Rates Around the World
Per 100,000 of the
national population
RWANDA
UNITED
STATES
RUSSIAN
FEDERATION
595
743
568
SOUTH
AFRICA
IRAN
316
291
ISRAEL
BRAZIL
319
253
MEXICO
JAPAN
200
58
CHINA
122
MYANMAR
FRANCE
120
96
SWITZERLAND
79
SOURCES: Bureau of Justice Statistics, "Prisoners in 2010" (2011); Roy Walmsley, "World Prison Population List,” Ninth Edition
(2011), International Centre for Prison Studies, School of Law, King's College, London.
NIGERIA
INDIA
32
31
A Right to Privacy Online?
Right to Privacy
• Right to privacy is not explicitly written in the
Constitution, but has been interpreted in the Fourth
Amendment, facilitated by the Ninth
–
–
–
–
Birth control
Abortion
Homosexuality
The right to die
Thinking Critically about the
Future of Civil Liberties
Public Opinion Poll
Do you support limitations on some civil liberties
(such as freedom of speech and search and
seizures), if limits on these liberties may decrease
the potential of terrorist threat or increase security?
a)
b)
c)
d)
Strongly support
Support
Oppose
Strongly oppose
Public Opinion Poll
Should the U.S. Congress pass legislation that
makes it a crime to burn the American flag?
a) Yes
b) No
Public Opinion Poll
Should it be legal to post personal information
(address, phone numbers, where children attend
school, etc.) about individuals, without their
permission, on Facebook, Twitter, YouTube and
other highly popular websites?
a) Yes
b) No
Public Opinion Poll
Should law enforcement agencies (anything from
the FBI to campus police) collect user ID and
information about people posting threatening
statements or openly discussing any kind of illegal
activity online (Facebook, Twitter or other)?
a) Yes
b) No
Public Opinion Poll
Should a teacher in a public school be allowed to
begin his or her class with a prayer?
a) Yes
b) No
Public Opinion Poll
Should there be a ban on speaking languages
other than English in public places?
a) Yes
b) No
Public Opinion Poll
There is quite a bit of discussion in American
politics about the legality of abortion. Which one of
the opinions below best agrees with your view on
this issue?
a) Abortions should never be permitted.
b) Abortions should be permitted in cases of rape
or incest, or if the woman's life is in danger.
c) Abortions should always be permitted.
d)Abortions should be allowed when a doctor and
patient decide it is appropriate.
Chapter 4: Civil Liberties
• Quizzes
• Flashcards
• Outlines
• Exercises
wwnorton.com/we-the-people
Following this slide, you will find additional images,
figures, and tables from the textbook.
A Brief History of the Bill of Rights
Free Exercise of Religion
Freedom of the Press
Rights of the Criminally Accused
Rights of the Criminally Accused
The Death Penalty
Abortion
Homosexuality