Chapter 4
Civil Liberties
Civil Liberties/Civil Rights
 Civil liberties
 Restraining government’s action against individuals
 Limits on government power outlined in the Bill of
Rights, the first 10 amendments to the
Constitution, 384-385
 What government can’t do…
 Civil rights
 Rights individuals share as provided for in the 14th
amendment, which guarantees due process and
equal protection under the law, 386
 What government must do…(e.g., protect
individuals from discrimination; unequal treatment,
etc.)
Liberties/Rights and the
Courts
 Judicial interpretations shape
nature of civil liberties and civil rights
 Change over time depending on
interpretations
 Not “set in stone”
 Hence, importance of judicial
appointments and numerous
references to court cases
Incorporation Theory
 Bill of Rights
 Initially aimed at protecting citizens against
encroachments by the national government
 Grew out of fear of tyranny
 Part of constitutional compromise aimed at
limiting federal government’s power
 Incorporation theory
 View that protections of Bill of Rights apply to
state governments through 14th Amendment’s
(ratified in 1868) due process clause; see
page 68
Table 4-1: Incorporating the Bill of Rights into the
Fourteenth Amendment, 68
Year
Issue
Amendment
Involved
Court Case
1925
1931
1932
1937
1940
1947
1948
1949
1961
1962
1963
1964
1965
1966
1967
1969
Freedom of speech
Freedom of the press
Right to a lawyer in capital punishment cases
Freedom of assembly and right to petition
Freedom of religion
Separation of church and state
Right to a public trial
No unreasonable searches and seizures
Exclusionary rule
No cruel and unusual punishment
Right to a lawyer in all criminal felony cases
No compulsory self-incrimination
Right to privacy
Right to an impartial jury
Right to a speedy trial
No double jeopardy
I
I
VI
I
I
I
VI
IV
IV
VIII
VI
V
I, III, IV, V, IX
VI
VI
V
Gitlow v. New York, 268 U.S. 652.
Near v. Minnesota, 283 U.S. 697.
Powell v. Alabama, 287 U.S. 45.
De Jonge v. Oregon, 299 U.S. 353.
Cantwell v. Connecticut, 310 U.S. 296.
Everson v. Board of Education, 330 U.S. 1.
In re Oliver, 333 U.S. 257.
Wolf v. Colorado, 338 U.S. 25.
Mapp v. Ohio, 367 U.S. 643.
Robinson v. California, 370 U.S. 660.
Gideon v. Wainwright, 372 U.S. 335.
Malloy v. Hogan, 378 U.S. 1.
Griswold v. Connecticut, 381 U.S. 479.
Parker v. Gladden, 385 U.S. 363.
Klopfer v. North Carolina, 386 U.S. 213.
Benton v. Maryland, 395 U.S. 784.
Discussion Question
 Why is the Fourteenth
Amendment so important to civil
liberties?
Freedom of Religion
 Separation of Church and State
 First amendment, 384; two parts
 Establishment clause; Jefferson’s “wall of
separation”
 State churches were the rule (9 colonies had
official churches)
 See text, 68-69 for the meaning of the
establishment clause
 Free exercise Clause
 no type of religious practice can be prohibited
and restricted by the government unless there is
a compelling reason
Freedom of Religion
 Contemporary conflicts
 State aid to church-related schools
 School voucher programs
 Officially organized prayer in schools
 Posting the Ten Commandments (“Hanging Ten”)
 Pledge of Allegiance (“…under God…”)
 Teaching evolution
 Religious speech
 Free exercise
Discussion Questions
 Is it possible for the state to be truly neutral
when it comes to religion?
 Should the state give funding to church
schools?
 Should prayer be allowed in public schools?
 Should public institutions be allowed to “Hang
Ten”?
 Is the pledge of allegiance a violation of church
and state?
 Should creationism be given equal time with
evolution?
 Should any and all religious practice be OK?
Freedom of
Speech/Expression
 No prior restraint
 Courts generally disfavor restraining, censoring
an action/speech/expression before it has
occurred
 Protected speech
 Symbolic speech (e.g., burning a U.S. flag)
 Commercial speech (e.g., advertising)
 Permitted restrictions
 Speech that presents a “clear and present
danger” to public order
 Speech that might lead to some “evil” (the badtendency rule)
Freedom of
Speech/Expression

Unprotected speech

Obscenity (based on community standards of
indecency)
 Child pornography
 Obscenity and child pornography on the Internet

Slander
 Public uttering of false statement that harms the
good reputation of another; false, defamatory
statements

Campus speech codes
 Hate speech = abusive speech attacking
persons on the basis of their ethnicity, race,
or other criteria

Often considered unconstitutional restriction on free
speech
Freedom of the Press
 Special instance of free speech
 Press has some protection from libel charges
 Libel (defamation in writing) must be accompanied
by actual malice (knowledge of falsity or reckless
disregard for the truth)
 Press is now protected from gag orders during trials,
except in unusual circumstances
 Films subject to local obscenity laws; regulated
through rating system
 Radio and TV have much more limited 1st
amendment protections
 Regulated by FCC
Right to Assemble and Petition
the Government
 Ability to communicate ideas on public
issues
 Can be limited by municipalities’ right to
offer permits for marches, parades, sound
trucks, demonstrations (to control traffic or
prevent riots)
 Can be denied when groups are likely to
engage in fighting words
 Tested by anti-loitering ordinances aimed
at reducing congregation of gangs
Privacy Rights and Abortion
 No explicit right to privacy in Constitution
 unlike California State Constitution
 Griswold v. Connecticut (1965)
 Supreme Court rules that privacy rights exist
 comes from the 1st, 3rd, 4th, 5th and 9th
Amendments
 “right to be left alone”; “zone of privacy”
 Unique challenges posed by information age
 Roe v. Wade (1973) court rules that privacy rights
include abortion rights
 More recently Court taken a more restrictive
view of rights outlined in Roe
Other Privacy Rights
 Right to die
 “living wills”
 Physician-assisted suicide (only legal in
Oregon)
 Security issues after 9/11/01
 How much are we willing to sacrifice privacy
rights for security?
 Erosion of 4th amendment rights against
unreasonable searches and seizures given
roving wiretaps of suspected persons
Rights of Accused vs. Rights of
Society
 The Great Balancing Act
 Why give criminal suspects
rights?
 Avoid convicting innocent people
 All suspects have right to due
process and fair treatment
 Found primarily in 4th, 5th, 6th, and 8th
amendments
Rights of the Accused

Limits on Conduct of Police Officers and Prosecutors





No unreasonable or unwarranted searches or
seizures (4th)
 exclusionary rule = cannot use illegally seized
evidence without warrant based on probable, just
cause (mitigated by “good faith” clause)
Probable cause for arrest (4th)
No coerced confessions or illegal interrogation (5th)
No entrapment
Informed of rights, including silence
 Miranda warnings = “You have the right to remain
silent; anything you say can and will be used against
you. You have the right to an attorney; if you
cannot afford one, one will be provided for you.”
Rights of the Accused
 Defendant’s Pre-trial rights
 Writ of habeus corpus (Article 1,
Section 9, clause 2, 377)
 requires jailers to bring a person before a
court or judge and explain why the person
is being held





Prompt arraignment (6th)
Legal counsel (6th)
Reasonable bail (8th)
Informed of charges (6th)
Remain silent (5th)
Rights of the Accused
 Trial rights
 Speedy, public trial before a jury (6th)
 Impartial jury representative of community
(6th)
 Trial atmosphere free of prejudice, fear, and
outside interference
 No compulsory self-incrimination (5th)
 Adequate counsel (6th)
 No cruel or unusual punishment (8th)
 What about the Death Penalty?
 Right to appeal convictions (5th)
 No double jeopardy (5th)
States that Allow the Death
Penalty
© 2004 Wadsworth Publishing / Thomson Learning™
States that Don’t Allow
Death Penalty






Maine
Vermont
Massachusetts
Rhode Island
W. Virginia
Michigan






Wisconsin
Minnesota
Iowa
North Dakota
Alaska
Hawaii
Discussion Questions
 Have the courts done too much to
protect the rights of the accused?
 Are protections necessary to ensure
that no innocent person is convicted
of a crime?
 Do criminal suspects deserve fair
treatment?
 Is capital punishment cruel and
unusual?
Hot Links to Selected Internet
Resources:
 Book’s Companion Site:
http://politicalscience.wadsworth.com/sch
midtbrief2004
 Wadsworth’s Political Science Site:
http://politicalscience.wadsworth.com
 American Civil Liberties Union:
http://www.aclu.org
 Project Vote Smart:
http://www.vote-smart.org/issues
 EPIC Archive – Privacy:
http://www.epic.org/privacy