Chapter 18
Colette Spencer
NMBHS
Civil liberties protect people
from the abuses of government
Civil rights come about as a
result of the equal protection
under the law
However, both limit the power
of gov’t
Civil liberties are guaranteed in
the Constitution, the Bill of
Rights, other amendments and
through court interpretation
The Constitution guarantees many
“civil rights”:
Writ of habeas corpus –
informed of charges
No bills of attainder – can’t be
punished w/o trial
Freedom of religion, press,
speech, petition, and assembly
No unreasonable search and
seizure
Protection against selfincrimination and double
jeopardy
Protections in criminal
proceedings
14th Amendment expanded individual rights
Supreme Court interpreted the due process clause
to apply to state and local gov’ts also
Congress passes laws that set limits on one
person’s rights over another or balance rights of
people with the interests of society
Example: false advertising not protected under 1st
Amendment
Federal court decisions protect rights through
judicial review
Two protections exist for freedom of religion:
establishment clause and free exercise clause
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof”
Establishment Clause:
No national religion
Can’t favor one over the other
Can’t tax to support a religion
The Supreme Court has helped define the
parameters of this clause:
Engel v. Vitale – 1962 – school sanctioned prayer is
unconstitutional
Abington School District v. Schempp – 1963 – no
required reading of the Bible at the beginning of each day
Lemon v. Kurtzman – 1971 – struck down law
reimbursing parochial schools for textbooks and salaries.
Also established the Lemon Test:
A law must:
1) have a primarily secular purpose
2) its principal effect must not aid or inhibit religion
3) it must not create excessive entanglement between
government and religion
Lynch v. Donnelly – 1984 – upheld the right of gov’ts to
celebrate Christmas with displays as long as secular
displays were included
Edwards v. Aguillard – 1987 – Louisiana could not force
public schools that taught evolution to also teach
creationism
Santa Fe Independent School District v. Doe – 2002 –
overturned Texas law that allowed high school students
to read a prayer at athletic events like football games
Free Exercise Clause:
Guarantees the right to practice any religion or no
religion
Courts have said that the practice of beliefs may be
restricted, esp. if they conflict with criminal law
Reynolds v. US – 1879 – upheld federal law that
prohibited polygamy
Wisconsin v. Yoder – 1972 – ruled that Wisconsin
could not require Amish children to go beyond the
8th grade due to beliefs
Employment Division of Oregon v. Smith – 1990 –
ruled that Oregon could deny unemployment
benefits to workers fired for using drugs (peyote) as
part of a religious ceremony
Different types:
Pure speech – most common, verbal, given most
protection by courts
Speech plus – verbal and symbolic speech used
together, like at a rally and then picketing; may be
limited
Symbolic speech – using actions or symbols to
convey ideas, like burning a draft card or flag; may
be restricted if it endangers the public
Limits on free speech usually exist in the area of
providing for national security
1798 – Alien and Sedition Acts first laws that limited free
speech – expired in 1801
After the assassination of McKinley in 1901 and
then WWI, the gov’t again began passing laws
limiting speech:
Schenck v. US – 1919 – he mailed fliers to draftees during
WWI to urge them to protest peacefully, convicted of
encouraging disobedience of military orders; this speech
not protected during wartime
Gitlow v. New York – 1925 – Gitlow convicted in NY of
advocating the forcible overthrow of the gov’t using
violent means - courts applied protection of free speech
to the states under the due process clause of the 14th
Amendment
Tinker v. Des Moines – 1969 – court ruled that wearing
black armbands protesting the Vietnam War was
symbolic and protected by 1st Amendment
Brandenburg v. Ohio – 1969 – Court made the “clear and
present” danger test less restrictive by saying that using
inflammatory speech could be punished only if there was
imminent danger that the speech would incite an illegal
act.
Miller v. California – 1973 – Court established the Miller
test setting standards for defining obscenity:
1) theme appeals to indecent sexual desires by
applying contemporary standards
2) show in a clearly offensive way behavior outlawed
by state law
3) lacks serious literary, artistic, political, or scientific
value
Texas v. Johnson (1989) – Flag burning is a
protected form of symbolic speech
Since 1940’s, Court has supported the following:
1st Amendment freedoms are more important
than other freedoms because they provide a
basis for those freedoms
Closely related to freedom of speech
Basic interpretation comes down to: protecting
a person’s right to free speech vs. gov’t limiting
it to protect the interests and safety of the
country
Near v. Minnesota (1931) – Court applied the
protections of free press to the states under the
“due process” clause of 14th Amendment
New York Times v. Sullivan (1964) – protected
statements about public officials
Defined what constitutes libel
New York Times v. US (1971) – using prior restrain,
the Court refused to stop the publication of the
Pentagon Papers
Applies to both public and private places
Citizens can make their views known through
petitions, letters, picketing, demonstrations,
parades and marches.
Court has allowed the gov’t to set limits to
protect rights and safety of others
Dejonge v. Oregon (1937) – said right of assembly
was as important as other 1st Amendment rights
DeJonge had right to organize a Communist Party and
speak at meetings even though it advocated revolution
Dennis V. US (1951) – fear of Communism at the
time resulted in upholding that Dennis had violated
the Smith Act by advocating the forcible overthrow
of the gov’t
Also used “due process” clause to apply it to
states
Courts have generally ruled:
Gov’t may require groups to obtain a permit before
marches or demonstrations
Certain facilities (jails, schools, airports) may be
restricted from demonstrations
Restrictions must apply to all groups equally
Does not allow groups to use private property for
its own use (buffer zone around abortion clinics)
Police may disperse group to keep the peace or
protect safety of others if demonstration become
violent
Private property is protected by the “due
process” clause of 5th and 14th Amendments
Due process = gov’t acting in a fair manner
according to established rules
5th Amendment says gov’t can’t take property
without paying a fair price for it
Eminent domain = gov’t can take property for
public use but must give fair compensation for it
Constitution does not mention “right to
privacy”
But Court has mentioned it
Griswold v. Connecticut (1965) – 1st, 3rd, 4th, 9th
and 14th Amendments created “zones of privacy”
and enhanced concept of enumerated rights
Roe v. Wade (1973) – constitutional right of privacy
for a women to determine whether to terminate a
pregnancy
Planned Parenthood v. Casey (1992) – minors must
wait 24 hours after getting parental permission to
have an abortion – also women do not have to
inform spouses
4th, 5th, 6th, 8th Amendments and 14th
Amendment to apply it to states
4th Amendment: Search and Seizure
Mapp v. Ohio (1961) – evidence obtained without
a search warrant was excluded from trial in state
courts – used “exclusionary rule”
Terry v. Ohio (1968) – searches of criminal suspects
for safety purposes are okay
Nix v. Williams (1984) – “inevitable discovery rule”
– evidence from an illegal search can be introduced
if it can be shown that it would have been found
anyway
5th Amendment: Self-Incrimination
Miranda v. Arizona (1966) – suspects in police
custody have rights and they must be informed of
those rights.
6th Amendment: Right to an Attorney
Powell v. Alabama (1932) – “due process clause” of
14th Amendment guarantees death penalty
defendants the right to an attorney
Betts v. Brady (1963) – poor defendants in
noncapital cases are not entitled to an attorney at
the state’s expense
Gideon v. Wainwright (1963) – in state trials,
people who can’t afford an attorney will be
provided one by the state
Overturned Betts. v. Brady
Escobedo v. Illinois (1964) – extended exclusionary
rule to confessions in state court cases
“Escobedo Rule” – people have a right to an attorney
when the investigation begins
8th Amendment: Cruel & Unusual Punishment
Furman v. Georgia (1972) – death penalty
unconstitutional under existing state law because it
was imposed arbitrarily
Gregg v. Georgia (1976) – death penalty
constitutional because it was imposed based on
circumstances of the case
9th Amendment called “elastic clause” of the Bill
of Rights
10th Amendment is the basis for federalism
US v. Lopez (1995) – ruled that the Gun-Free
School Zone Safety Act which made possession
of a gun within 1000 yards of a school a federal
crime unconstitutional