Civil Liberties
Civil Liberties
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Constitutional protections an individual has
against government—things govt. cannot take
away
To understand them, we will look at 3 pts.
Why liberties in the BOR are important
 How they came to apply to the states
 Why they have grown
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Background of Civil Liberties
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Why did the original constitution not have a
BOR?
Framers had 3 objectives in regards to civil
liberties
1. Limit the federal powers (“Congress shall make
no law…”)
 2. Constitution was meant for what govt. could do,
not what they could not do
 3. Any mention of what they could not do was
meant to apply to federal govt., not state govt.
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Issues with Civil Liberties
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BOR contains competing rights
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Government officials have sometimes taken
action against the rights of political or religious
grps.
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Rights of one group may conflict with the rights of
another
During WWI it was made a crime to utter statements
that would interfere with the draft
Cultural conflicts due to immigration
Before Civil War

Barron v. Baltimore
Barron argued that the 5th Amendment should apply
to the city of Baltimore (eminent domain)
 John Marshall of the Supreme Court interpreted that
BOR restrained only the federal govt., not the states
and cities
 Confirmed the idea of “dual citizenship”
 This remained unchallenged until after the civil war
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After the Civil War
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14th Amendment was passed to protect the
rights of recently freed slaves (1868)
The first section contains three sections that
limit the state govt.
Privileges and Immunities— “single citizenship”
 Due Process Clause—prohibits abuse of “life,
liberty, or property”
 Equal Protection Clause—basis for civil rights mvt.

Slaughter-House Cases
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Louisiana govt. issued a corporation monopoly over
slaughterhouse business—other companies sued as a
violation of 5th Amendment
Supreme Court determined that the federal government
was under no obligation to protect the “privileges and
immunities” of citizens of a particular state against
arbitrary actions by the that state’s govt.

Claimed 14th Amendment only applied to protect former
slaves
Incorporation of the
14th Amendment

Incorporation-the legal concept under which the
Supreme Court has nationalized the BOR by making
most of its provisions applicable to the states through
the 14th Amendment (Gitlow v. New York)
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Total Incorporation
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Supreme Court to apply the entire BOR to the states
Selective Incorporation
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Supreme Court to decide, on a case-by-case basis,
which provisions of the Bill of Rights it wished to
apply to the states
Incorporation Cases
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Gitlow v. New York
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Near v. Minnesota
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Right to Counsel in capital cases
DeJonge v. Oregon
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Freedom of Press
Powell v. Alabama
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Freedom of Speech
Freedom of Assembly, right to petition
Cantwell v. Connecticut
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Free exercise of religion
Incorporation Cases
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Everson v. Board of Education
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Wolf v. Colorado
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Exclusionary rule
Gideon v. Wainwright
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Right against unreasonable search and seizure
Mapp v. Ohio
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No establishment of religion
Right to counsel in felony cases
Griswold v. Connecticut
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Privacy
1st Amendment & Freedom of
Speech
Government has felt the right to limit this
freedom the most during times of war or
matters of national security
 Court has had to balance freedom of
expression against values like public order,
national security, and the right to a fair trial

Conditionally Protected Speech
Libel—the publication of false statements that are
malicious and damage a person’s reputation
 Obscenity—Not protected by 1st Amendment
unless it has political, literary, or artistic merit
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Difficult for the Court to define a & therefore is more
regulated by state govt.
Symbolic speech—not protected when it involves
advocating illegal actions, fighting words, or
inciting others to commit illegal actions
Conditionally Protected Speech

Free speech of high school students in
public schools is limited
 Bethel School District v. Fraser
 sexually
 Hazelwood
suggestive speech
School District v. Kuhlmeier
 Censorship
of school newspaper
Key Court cases affecting Speech
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Gitlow v. New York
Schenck v. United States
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Dennis v. United States
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Speech limited (during McCarthyism)
Brandenburg v. Ohio
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Established clear and present danger test
Speech protected (unless it incites imminent lawless
action)
Chaplinsky v. State of New Hampshire
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Fighting words not protected
Key cases Affecting Symbolic Speech
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Tinker v. Des Moines
 Black

arm bands
Virginia v. Black
 Burning

of a cross
Texas v. Johnson
 Flag
burning
Civil Liberties in 1st Amendment
Religion
 Contains
two elements or clauses
 Establishment Clause
 Free Exercise Clause
Establishment Clause
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“Congress shall make no law respecting an
establishment of religion…”
This clause is the foundation to religious liberty
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Has created a “wall of separation”
Supreme Court has interpreted this to mean no
government involvement in religion
Most controversial is when to give federal aid to
parochial (religious) schools—ultimately
answered by the Lemon Test
Key Court cases affecting
Establishment Clause
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Engle v. Vitale
Everson v. Board of Education
Lemon v. Kurtzman
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Lemon Test
Wallace v. Jaffree
Free-exercise clause
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Govt. cannot interfere with an individual’s
practice of religion
Law may not impose special burdens on religion
Supreme Court’s interpretation has been that
people have the absolute right to believe what
they want, but not the right to practices that may
harm society
Key Court Cases affecting FreeExercise Clause
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West Virginia State Board of Education v. Barnette
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Reynolds v. United States
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Polygamy
Jacobson v. Massachusetts
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Flag salute
Vaccinations
Wisconsin v. Yoder
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Amish kids in school
Freedom of the Press
Prior Restraint
 Government censorship of material
before it is published
 This is a common method of limiting the
press in other nations but is
unconstitutional in U.S.

Other Key Court cases Affecting the
Press
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Near v. Minnesota
 Prior
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restraint extended to state govt.
New York Times v. Sullivan
 Libelous

speech
New York Times v. United States
 aka Pentagon Papers
Freedom of Assembly
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The ability of people to assemble, associate, and
petition the govt.
Right to parade, picket, and protest
May come into conflict with the interests of
govt.
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DeJonge v. Oregon
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Protected
Dennis v. United States
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Not protected
Civil Liberties in the
4th Amendment
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Protects from unreasonable search and seizure
Police must have probable cause & in some
cases a search warrant
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Mapp v. Ohio
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Exclusionary rule applied to states
United States v. Leon
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“Good faith” exception to exclusionary rule
th
5
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,
th
6
,&
th
8
Amendments
5th: Protects against self-incrimination &
guarantees the due process of law for those
accused of a crime
Escobedo v. Illinois
 Miranda v. Arizona
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6th: Right to counsel
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Gideon v. Wainwright
8th: Cruel and Unusual punishment
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Furman v. Georgia
Right To Privacy
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Not stated in the BOR but implied through the
3rd, 4th, 5th, and 9th Amendments
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Griswold v. Connecticut
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Contraceptives
Roe v. Wade
Abortion
 Many cases since Roe have tried to limit or regulate
abortion
 Webster v. Reproductive Health Services
 Planned Parenthood v. Casey
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