Chapter 4
Civil Liberties
Civil Liberties/Civil Rights
 Civil liberties
 Restrain government’s action against individuals
 Limits on government power outlined in Bill of
Rights, first 10 amendments to Constitution, 371-2
 What government can’t do…
 Civil rights
 Rights individuals share as provided for in 14th
amendment, guarantees due process and equal
protection under law, 373
 What government must do…(e.g., protect
individuals from discrimination; unequal treatment,
etc.)
Liberties/Rights and Courts
 Judicial interpretations shape
nature of civil liberties and civil rights
 Change over time depending on
changing 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 national government
 Grew out of fear of tyranny
 Part of constitutional compromise aimed at
limiting federal government’s power
 Incorporation theory
 View protections of Bill of Rights apply to state
governments through 14th Amendment’s
(ratified in 1868) due process clause; see
page 373
Table 4-1: Incorporating Bill of Rights into 14th
Amendment, 67
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, 371; two parts
 Establishment clause; Jefferson’s
“wall of separation”
 State churches were rule (9 colonies had official
churches)
 See text, 68 for meaning of Establishment
clause
 Free exercise Clause
 no type of religious practice can be prohibited
and restricted by 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 Ten Commandments (“Hanging
Ten”)
 Pledge of Allegiance (“…under God…”)
 Teaching evolution
 Religious speech
 Free exercise
Discussion Questions
 Is it possible for state to be truly neutral when it
comes to religion?
 Should state give funding to church schools?
 Should prayer be allowed in public schools?
 Should public institutions be allowed to “Hang
Ten”?
 Is pledge of allegiance a violation of church and
state?
 Should creationism/”intelligent design” 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
action/speech/expression before it has occurred
 Protected speech
 Symbolic speech (e.g., burning U.S. flag)
 Commercial speech (e.g., advertising)
 Permitted restrictions
 Speech that presents “clear and present
danger” to public order
 Speech that might lead to some “evil” (the badtendency rule)
Unprotected Speech
 Obscenity (based on community standards of
indecency)
 Child pornography
 Obscenity and child pornography on Internet
 Slander
 Public uttering of false statement that harms
good reputation of another; false, defamatory
statements
 Campus speech codes
 Hate speech = abusive speech attacking
persons on basis of ethnicity, race, or
other criteria
 Often considered unconstitutional restriction
Freedom of Press
 Special instance of free speech
 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 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 more limited 1st
amendment protections
 Regulated by FCC
Right to Assemble and Petition
Government
 Ability to come together with others of like
interest, to form voluntary associations
 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 privacy rights exist
 from 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 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
 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 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 Accused
 Defendant’s Pre-trial rights
 Writ of habeus corpus (Article 1,
Section 9, clause 2, 365)
 requires jailers to bring person before court
or judge and explain why person is being
held





Prompt arraignment (6th)
Legal counsel (6th)
Reasonable bail (8th)
Informed of charges (6th)
Remain silent (5th)
Rights of Accused
 Trial rights
 Speedy, public trial before 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 Death Penalty?
 Right to appeal convictions (5th)
 No double jeopardy (5th)
Discussion Questions
 Have courts done too much to protect
rights of accused?
 Are protections necessary to ensure
no innocent person is convicted of a
crime?
 Do criminal suspects deserve fair
treatment?
 Is capital punishment cruel and
unusual?