Civil liberties are constitutional and other legal protections of individuals against government actions. Americans’ civil liberties are set down in the Bill of Rights, the first 10 amendments to the Constitution.

• Issues of civil liberties present many vexing problems for the courts to resolve

• Disputes about civil liberties often end up in court.

THE BILL OF RIGHTS

The first 10 amendments to the U.S. Constitution, which define such basic liberties as freedom of religion, speech, and the press, and guarantee defendants’ rights.

• 1st Amendment: The constitutional amendment that protects the four great liberties: freedom of religion, of speech, of the press, and of assembly

• The Founders wrote the Bill of Rights to restrict the powers of the new national government.

• The Bill of Rights, said the Supreme Court in Barron v. Baltimore, restrained only the national government, not states or cities.

  • Barron v. Baltimore: The 1833 Supreme Court decision holding that the Bill of Rights restrained only the national government, not the states or cities.

14th Amendment: The constitutional amendment adopted after the Civil War that declares “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

• Privileges or Immunity Clause: Applied only to national citizenship and not state citizenship and thus did little to protect citizens against state actions.

• Gitlow v. New York: The 1925 Supreme Court decision holding that freedoms of press and speech are “fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states” as well as by the federal government.

  • Due Process Clause: Part of the Fourteenth Amendment guaranteeing that persons cannot be deprived of life, liberty, or property by the U.S. or state governments without due process of law.

  • In effect, the Court interpreted the Fourteenth Amendment to say that states could not abridge the freedoms of expression protected by the First Amendment.

• Incorporation Doctrine: The legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the Fourteenth Amendment.

FREEDOM OF RELIGION

Establishment Clause: Part of the First Amendment stating that “Congress shall make no law respecting an establishment of religion.”

• Thomas Jefferson argued that the First Amendment created a “wall of separation” between church and state, forbidding not just favoritism but also any support for religion at all.

  • Lemon v. Kurtzman: The 1971 Supreme Court decision that established that aid to church-related schools must (1) have a secular legislative purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) not foster excessive government entanglement with religion.

  • Zelman v. Simmons-Harris: The 2002 Supreme Court decision that upheld a state program providing families with vouchers that could be used to pay for tuition at religious schools.

  • Engel v. Vitale: The 1962 Supreme Court decision holding that state officials violated the First Amendment when they required that a prayer be recited by public schoolchildren.

  • School District of Abington Township, Pennsylvania v. Schempp: The 1963 Supreme Court decision holding that a Pennsylvania law requiring Bible reading in schools violated the establishment clause of the First Amendment.

  • West Virginia Board of Education v. Barnette: The 1943 Supreme Court decision holding that compulsory symbolic acts can’t be compelled by the government because it would crush any possibility of dissent in a free society.

  WHY IT MATTERS TODAY

• What if the Constitution did not prohibit the establishment of religion? If a dominant

  religion received public funds and was in a position to control health care, public education, and other important aspects of public policy, public policies might well reflect the values and beliefs of that religion. In addition, the potential for conflict between followers of the established religion and adherents of other religions would be substantial.

Free Exercise Clause: A First Amendment provision that prohibits government from interfering with the practice of religion.

Despite 9/11, Americans are more tolerant of the free speech rights of religious extremists than are people in other democracies with developed economies.

• Wisconsin v. Yoder

FREEDOM OF EXPRESSION

Prior Restraint: Government actions that prevent material from being published. As confirmed in Near v. Minnesota, prior restraint is usually prohibited by the First Amendment.

• Near v. Minnesota: The 1931 Supreme Court decision holding that the First Amendment protects newspapers from prior restraint.

• Schenck v. United States: A 1919 Supreme Court decision upholding the conviction of a socialist who had urged resistance to the draft during World War I. Justice Holmes declared that the government can limit speech if the speech provokes a “clear and present danger” of substantive evils.

• Roth v. United States: A 1957 Supreme Court decision ruling that “obscenity is not within the area of constitutionally protected speech or press.”

• Miller v. California: A 1973 Supreme Court decision holding that community standards be

  used to determine whether material is obscene, defined as appealing to a “prurient interest,” being “patently offensive,” and lacking in “serious literary, artistic, political, or scientific value.”

Libel refers to written defamation, slander to spoken defamation.

• New York Times Co. v. Sullivan: A 1964 Supreme Court decision establishing that, to win damage suits for libel, public figures must prove that the defamatory statements about them were made with “actual malice” and reckless disregard for the truth.

WHY IT MATTERS TODAY - LIBEL LAW

• It is difficult for public figures to win libel cases. Public figures are likely to lose even when they can show that a defendant made defamatory falsehoods about them. This may not be fair, but it is essential for people to feel free to criticize public officials. Fear of losing a lawsuit would have a chilling effect on democratic dialogue.

Symbolic speech: Nonverbal communication, such as burning a flag or wearing an armband. The Supreme Court has accorded some symbolic speech protection under the First Amendment.

• Texas v. Johnson: A 1989 case in which the Supreme Court struck down a law banning the

  burning of the American flag on the grounds that such action was symbolic speech protected by the First Amendment.

Commercial speech: Communication in the form of advertising, which can be restricted more than many other types of speech.

• The Federal Trade Commission (FTC) decides what kinds of goods may be advertised on

  radio and television and regulates the content of such advertising.

• The Federal Communications Commission (FCC) regulates the content, nature, and

  very existence of radio and television broadcasting.

  • Miami Herald Publishing Company v. Tornillo: A 1974 case in which the Supreme Court held that a state could not force a newspaper to print replies from candidates it had criticized. The case illustrates the limited power of the government to restrict the print media.

  • Red Lion Broadcasting Company v. Federal Communications Commission: A 1969 case in which the Supreme Court upheld restrictions on radio and television broadcasting similar to those it had overturned in Miami Herald Publishing Company v. Tornillo. The Court reasoned that regulating radio and television broadcasting is justified because there are only a limited number of broadcasting frequencies available.

FREEDOM OF ASSEMBLY

The last of the great rights guaranteed by the First Amendment is the freedom to “peaceably assemble.” Commentators often neglect this freedom in favor of the more trumpeted freedoms of speech, press, and religion, yet it is the basis for forming interest groups, political parties, and professional associations as well as for picketing and protesting.

• The Supreme Court has generally upheld the right of any group, no matter how controversial or offensive, to peaceably assemble, as long as the group’s demonstrations remain on public property.

Right to associate: The second facet of freedom of assembly, associating with people who share a common interest, including an interest in political change.

• NAACP v. Alabama: The 1958 Supreme Court decision that the right to assemble meant that

  Alabama could not require the state chapter of NAACP to reveal its membership list.

RIGHT TO BEAR ARMS

McDonald v. Chicago: The 2010 Supreme Court decision that extended the Second Amendment’s

limits on restricting an individual’s right to bear arms to state and local gun control laws.

• The right to bear arms is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for any purpose whatsoever.

This cartoon shows that constitutional rights are sometimes in conflict.

DEFENDANTS’ RIGHTS

Today the courts apply the protections in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments mostly in criminal justice cases.

• Most of the remaining words concern the rights of people accused of crimes. The Founders intended these rights to protect the accused in political arrests and trials

Probable cause: Police cannot arrest a citizen without reason. Before making an arrest, police need what the courts call probable cause, reasonable grounds to believe that someone is guilty of a crime.

Unreasonable Search and Seizure: Obtaining evidence in an unlawful manner, a practice prohibited by the Fourth Amendment. The police must have probable cause and/or a search warrant in order to make a legal and proper search for and seizure of incriminating evidence and to seize such evidence.

Search Warrant: A written authorization from a court specifying the area to be searched and what the police may search for

• A search can take place without a warrant (as most do) if probable cause of a crime

  exists, if the search is necessary to protect an officer’s safety, if the search is limited to

  material relevant to a suspected crime or within the suspect’s immediate control, or if

  there is a need to prevent the imminent destruction of evidence.

Although our criminal justice system is complex, it can be broken down into five stages. The Constitution protects the rights of the accused at every stage.

Exclusionary rule: The rule that evidence cannot be introduced into a trial if it was not obtained in a constitutional manner. The rule prohibits use of evidence obtained through unreasonable search and seizure.

• Mapp v. Ohio: The 1961 Supreme Court decision ruling that the Fourth Amendment’s protection against unreasonable searches and seizures must be extended to the states.

WHY IT MATTERS TODAY - EXCLUSIONARY RULE

• The exclusionary rule, which requires courts to disregard evidence obtained illegally,

  has been controversial. Although critics view the rule as a technicality that helps criminals to avoid justice, this rule protects defendants (who have not been proven guilty) from abuses of police power.

  • Critics of the exclusionary rule, including some Supreme Court justices, argue that its strict application may permit guilty persons to go free because of police carelessness

    or innocent errors.

  • Supporters of the exclusionary rule respond that the Constitution is not a technicality

    and that—because everyone is presumed innocent until proven guilty—defendants’

    rights protect the accused, not the guilty.

USA Patriot Act: Gave the government broad new powers to engage in wiretapping and surveillance when investigating terrorism suspects.

• Gave the federal government the power to examine a terrorist suspect’s records held by third parties, such as doctors, libraries, bookstores, universities, and Internet service providers. It also allowed the government to search private property without probable cause and without notifying the owner until after the search had been executed, limiting the owner’s opportunities to challenge the search.

5th Amendment: A constitutional amendment designed to protect the rights of persons accused of crimes. It provides protection against double jeopardy, self-incrimination, and punishment without due process of law.

• The accused need not provide evidence that can later be used against them. However, the government may guarantee suspects immunity—exemption from prosecution in exchange for suspects’ testimony regarding their own and others’ misdeeds.

Self-Incrimination: Being a witness against oneself. The Fifth Amendment forbids involuntary self-incrimination.

• Miranda v. Arizona: The 1966 Supreme Court decision that set guidelines for police questioning of accused persons to protect them against self-incrimination and to protect their right to counsel.

  • They have a constitutional right to remain silent and may stop answering questions at any time.

  • What they say can be used against them in a court of law.

  • They have a right to have a lawyer present during questioning, and the court will

    provide them with a lawyer if they cannot afford their own.

• Double Jeopardy: Being tried for the same crime twice. However, the Supreme Court has allowed both the federal government and a state government to prosecute a person for the same crime on the theory that the federal and state governments are separate constitutional actors with their own sovereign authority.

6th Amendment: A constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial.

• Gideon v. Wainwright: The 1963 Supreme Court decision holding that anyone accused of a felony where imprisonment may be imposed has a right to a lawyer. The decision requires the government to provide a lawyer to anyone so accused who is too poor to afford one.

Plea Bargaining: A bargain struck between a defendant’s lawyer and a prosecutor to the effect that the defendant will plead guilty to a lesser crime (or to fewer crimes) in exchange for the state’s promise not to prosecute the defendant for a more serious crime or for additional crimes.

8th Amendment: The constitutional amendment that forbids cruel and unusual punishment.

• Cruel and Unusual Punishment: Court sentences prohibited by the Eighth Amendment.

  • McCleskey v. Kemp: The 1987 Supreme Court decision that upheld the constitutionality of the death penalty against charges that it violated the Fourteenth Amendment because minority defendants were more likely to receive the death penalty than were

    white defendants.

  • Gregg v. Georgia: The 1976 Supreme Court decision that upheld the constitutionality of the death penalty, as “an extreme sanction, suitable to the most extreme of crimes.”

Supreme Court decisions, DNA technology, and perhaps a growing public concern about the fairness of the death penalty have resulted in a dramatic drop in the number of death sentences—from 98 in 1999 to 22 in 2019. Texas led the nation in executions, representing 41 percent of the national total in 2019. Texas prosecutors and juries are no more apt to seek and impose death sentences than those in other states that have the death penalty. However, once a death sentence is imposed there, prosecutors, the courts, the pardon board, and the governor are united in moving the process along

THE RIGHT TO PRIVACY

The right to a private personal life free from the intrusion of government.

• Roe v. Wade: The 1973 Supreme Court decision holding that a Texas state ban on

  abortions was unconstitutional. The decision forbade state control over abortions during the first trimester of pregnancy, permitted states to limit abortions to protect a mother’s health

  in the second trimester, and permitted states to ban abortion during the third trimester.

  • A right to privacy extends to a woman’s decision to have an abortion under

    the due process clause in the Fourteenth Amendment. However, that right must be balanced against the state’s two legitimate interests in regulating abortions: protecting prenatal life and protecting the woman’s health

• Planned Parenthood v. Casey: A 1992 case in which the Supreme Court loosened its standard for evaluating restrictions on abortion from one of “strict scrutiny” of any restraints on a “fundamental right” to abortion to one in which regulations did not impose an “undue burden” on women.

  • The Court upheld a 24-hour waiting period, a parental or judicial consent

    requirement for minors, and a requirement that doctors present women with information on the risks of the operation.

In few areas of public opinion research do scholars find more divided opinion than abortion. Some people feel very strongly about the matter, enough so that they are “single-issue voters” unwilling to support any candidate who disagrees with them. The largest group takes a middle position, supporting the principle of abortion but also accepting restrictions on it. Overwhelmingly, Americans oppose overturning Roe v. Wade.