Chapter 5: Civil Liberties

A legal framework used to determine whether free speech can be limited in cases where it stands to incite violence or a crime.

Brandenburg test

A rule used by the Supreme Court to distinguish between speech protected and not protected by the First Amendment. Under this rule, the First Amendment does not protect speech aimed at inciting an illegal action.

clear and present danger test

A rule introduced by Chief Justice Fred Vinson for the courts to enlist in free expression cases: “In each case [the courts] must ask whether the gravity of the ‘evil,’ discounted by its probability, justifies such invasion of free speech as is necessary to avoid the danger.”

clear and probable danger test

The Supreme Court’s 1973 ruling that a work is obscene if it is “utterly without redeeming social importance” and “to the average person, applying contemporary ‘community standards,’ the dominant theme of the material, taken as a whole, appeals to prurient interests.”

community standards

Criminal penalties not considered appropriate by a society that involve torture or can result in death when the death penalty has not been ordered.

cruel and unusual punishments

A clause found in both the Fifth and Fourteenth Amendments to the Constitution protecting citizens from arbitrary action by the national and state governments.

due process clause

A Fourteenth Amendment clause guaranteeing all citizens equal protection of the laws. The courts have interpreted the clause to bar discrimination against minorities and women.

equal protection clause

The first clause of the First Amendment. The establishment clause prohibits the national government from establishing a national religion.

establishment of religion clause

A judicial rule prohibiting the police from using at trial evidence obtained through illegal search and seizure.

exclusionary rule

The second clause of the First Amendment. The free exercise clause forbids the national government from interfering with the exercise of religion.

free exercise clause

The Supreme Court’s extension of the guarantees of the Bill of Rights to state and local governments through its various interpretations of the Fourteenth Amendment.

incorporation

The most far-reaching of the controversial cases in which the Supreme Court specified three conditions every state law must satisfy to avoid running afoul of the establishment of religion prohibition: the statute in question “must have a secular legislative purpose,” such as remedial education; the statute’s “primary effect must be one that neither advances nor inhibits religion”; and the statute must not foster “an excessive government entanglement with religion.”

Lemon test

Requirement that police inform suspects that they have a right to remain silent and a right to have counsel while being interrogated. Failure to inform suspects of their rights will result in any confession or evidence thus obtained being inadmissible against them at trial.

Miranda rule

Policy favored by justices in establishment of religion decisions. The justices used the neutrality test not so much to prevent favoritism among religious groups as to root out policies that preferred religious groups generally over nonreligious groups engaged in a similar activity.

neutrality test

Defined as publicly offensive acts or language, usually of a sexual nature, with no redeeming social value. The Supreme Court has offered varying definitions in its rulings over the years.

obscenity

Judicially created rights based on various guarantees of the Bill of Rights. The right to privacy is not explicitly stated in the Constitution, but the Supreme Court has argued that this right is implicit in various clauses found throughout the Bill of Rights.

penumbras

The clause in Section I of the Fourteenth Amendment stipulating that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

privileges and immunities clause

The Supreme Court’s gradual process of assuming guardianship of civil liberties by applying piecemeal the various provisions of the Bill of Rights to state laws and practices.

selective incorporation