Note
Studied by 78 people
Ch. 4 Civil Liberties
CIVIL LIBERTIES
It's a free country . . . right?
DEFINING CIVIL LIBERTIES
Civil liberties are the political freedoms that protect citizens from government abuse, and they include the right to assemble, to protest, to worship freely, and to keep certain matters private. Frequently, security or civic issues are at odds with these rights, and the Supreme Court often has to make difficult decisions regarding the trade-offs between security and liberty. As a result, there are limits to our civil liberties.
In addition to balancing competing interests, court rulings draw lines between conduct permissible for the government and that for individuals. Establishing where to draw the line between personal liberty and government interests is difficult.
Origins of the Bill of Rights
During the Constitutional Convention, one of the concerns among the Antifederalists was that the federal government would be too strong and would restrict the civil liberties of the country.
In order to assuage the fears of the Antifederalists, the first Congress ratified 10 protections of individual liberties, which became the first 10 amendments to the Constitution.
The Bill of Rights protections were understood to be guaranteed by the national government only and did not apply to the states. This view was upheld by the Supreme Court from constitutional ratification until the Civil War.
Selective incorporation and the Fourteenth Amendment
Following the Civil War, Congress passed the Thirteenth, Fourteenth, and Fifteenth amendments (known as the Civil War amendments), which dramatically influenced how the Bill of Rights was applied to the states.
The new language of the Fourteenth Amendment helped ensure newly freed slaves would not be denied due process.
Over time, the Supreme Court's opposition to the expansion of civil liberties to state laws eroded, and a series of cases from 1897 to the 1960s led to a slowly growing tendency of the Court to extend protections from the Bill of Rights to the state level via the Fourteenth Amendment.
This process, known as selective incorporation, occurred on a case-by-case basis. That is, the Bill of Rights protections were not uniformly applied to the states. Rather, specific protections from the Bill of Rights were incrementally applied to the states in a series of cases decided by the Supreme Court.
FREEDOM OF RELIGION
The First Amendment makes two provisions regarding the regulation of religion: the establishment clause and the free exercise clause.
The establishment clause and the separation of church and state
This clause prohibits Congress from making a law that favors or establishes any religion.
Public Prayer
The Court has had difficulty establishing exactly what constitutes a violation of the establishment clause. While school prayer has been prohibited since 1962, and the Ten Commandments cannot be displayed in public buildings, the Court has allowed churches from recognized religions to avoid paying property taxes.
Aid to religious organizations
To help determine when the establishment clause is being violated, the Court developed the Lemon test, which prohibits "excessive government entanglement in religion."
The free exercise clause prohibits Congress from interfering with religious practice.
Hundreds of cases have come before the Court in the area of the free exercise of religion. Here is one example of the questions they addressed: May Amish parents be forced to send their children to schools beyond the eighth grade? No, as established in Wisconsin v. Yoder in 1972, a case in which the Supreme Court held that compelling Amish students to attend school past the eighth grade violates the free exercise clause. The ruling opened the door to homeschooling, which is a common practice today.
The Court has generally supported the right to exercise freely, though there are significant limitations.
For Congress to restrict religious practices, the Court has required that the government show a "compelling state interest."
FREEDOM OF SPEECH, ASSEMBLY, AND THE PRESS
Generally protected expression
The standards for protection of speech are rooted in the content of the speech. Courts apply either strict scrutiny or intermediate scrutiny to determine whether or not the speech is permissible.
Political Speech
The Supreme Court's interpretation of freedom of speech has evolved over time. Though it has not always been, political speech is now strongly protected, particularly with the direct incitement test. Free speech is not absolute. One limit is the clear and present danger test, a standard developed in 1925. The direct incitement test holds that speech is protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Symbolic Speech The Court is similarly committed to the protection of symbolic speech, and has overturned flag-burning convictions and allowed people to make contributions to political campaigns. During the Vietnam War the Court protected the right of a war protester to wear an American flag patch sewn on the seat of his pants, high school students’ right to wear an armband to protest the war (Tinker vs. Des Moines School District, 1969), and an individual’s right to tape a peace symbol on the flag and fly it upside down outside an apartment window. Recently, the Court ruled that corporations are now also allowed to spend money on issue ads in campaigns. However, symbolic speech is still limited: for example, draft-card burning is deemed to conflict with Congress's right to raise an army.
Money as Speech Spending money in political campaigns also may be protected by the First Amendment since it provides the means for more-conventional types of political speech. While there are still limitations, these have been reduced in light of recent Supreme Court decisions.
While hate speech is heavily regulated on college campuses, the Supreme Court is remarkably tolerant of hate speech, protecting it as long as it does not present an "intent to intimidate," which is determined by examining the context of the act.
Speech on the Internet Internet hate speech has become increasingly controversial in recent years. Social media companies have great latitude in what they permit online, and the government has limited power to regulate access to social media.
The freedom of assembly is broadly protected by the Supreme Court, which has ruled that peaceable assemblies are to be allowed for all groups, no matter how unsavory. However, governments are allowed to regulate the time, manner, and place of the assembly, as long as it is content neutral.
Freedom of the press has been widely protected by the Court, which has not allowed the government to exercise prior restraint even in the case of leaked classified documents to the press. A famous example of this is the 1971 New York Times Co. v. United States ruling, in which the Court ruled that the government could not prevent the publication of the Pentagon Papers, which revealed lies about the progress of the war in Vietnam.
Less protected speech and publications
Fighting words, libel, and slander are not protected by the Supreme Court, but the Court has placed a high threshold in determining what constitutes an offense, making these difficult to reduce. The direct incitement test holds that speech is protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Commercial speech has evolved over time, from receiving little protection to getting a significant amount. Currently, advertising may be regulated by the government, but the government must demonstrate a good reason to do so.
Obscenity and pornography have been difficult to define. Prohibitions on child pornography are almost universally supported, but beyond this the Court has had a difficult time defining obscenity. Since 1973, the Court has adopted the Miller test to help determine what the government can restrict.
THE RIGHT TO BEAR ARMS
Up until 2008, the Supreme Court has generally avoided defining the right to bear arms, providing little restriction to firearms. Congress, state, and local governments had been granted significant autonomy to define their own gun ownership and gun-carrying rights. A notable exception is the Brady Bill, which requires a background check and waiting period before purchasing a handgun.
In 2008, the Supreme Court struck down a Washington, D.C., handgun ban, recognizing an individual right to bear arms. In 2010, the Court applied the Second Amendment protections to the states in striking down a Chicago gun control ordinance in McDonald v. Chicago.
Given the strong public support for gun ownership and the Supreme Court's endorsement of an individual right to bear arms, stronger gun control at the national level is highly unlikely (especially given the unsuccessful pushes after the shootings at Sandy Hook Elementary School in 2012 and in Orlando, Florida, in 2016 and Las Vegas in 2017).
However, the president and Congress have taken some limited steps in recent years. Early in 2016, President Obama issued an executive order requiring most gun sales to be through federally licensed dealers who would conduct background checks. President Trump also signed an executive order banning bump stocks.
LAW, ORDER, AND THE RIGHTS OF CRIMINAL DEFENDANTS
The Fourth, Fifth, Sixth, and Eighth Amendments provide criminal defendants with a number of civil liberties restricting what the government can do based on the ideas of fairness and justice. These due process rights have their origins in the Magna Carta and can be controversial, as we sometimes have difficulty defining exactly what is fair or just.
The Fourth Amendment: unreasonable searches and seizures
Searches and Warrants
The Fourth Amendment protections from "unreasonable" search and seizure become difficult to define when we balance one's private freedom with the government's obligation to provide security. The Court has traditionally protected homes from intrusion, requiring warrants before a search is authorized, but there are exclusions to this rule. For example, cars or school lockers are not subject to the same protection as homes.
If evidence has been collected illegally, it is subject to the exclusionary rule, which prohibits it from being admitted in court, no matter how compelling the evidence is. This right has been incorporated into state law and is not limited to federal cases.
Another area of Fourth Amendment law concerns drug testing. The clause granting people the right "to be secure in their persons" certainly seems to cover drug testing. However, the courts have long recognized the right of private companies to test their employees for illegal drugs.
The Post-September 11 Politics of Domestic Surveillance After the 9/11 attacks, controversy on what should and should not be permissible with regard to surveillance has intensified as the government both tries to ensure security but balance civil rights.
The Fifth Amendment
The Court has established the Fifth Amendment Miranda rights, which protect suspects from making confessions unless they are aware that it is a free choice. That is, confessions are generally inadmissible if the police do not read the suspect his rights.
Exceptions are rare but they do occur, as in the case of the police being led to an "inevitable discovery," or when the rights are overridden by a "concern for public safety."
In addition, prosecutors are forbidden to try a suspect twice for the same crime. This double jeopardy protection was originally a federal law, but it has been extended to state law since 1969. There are two exceptions to double jeopardy: a suspect can be tried in both federal court and state court for the same crime, and a suspect who is found innocent of criminal charges can have civil charges brought against him.
The Sixth Amendment: the right to legal counsel and a jury trial
The right to an attorney has been strengthened over time, and the law now stipulates that individuals have the right to one who will provide effective legal counsel, even if they cannot afford it.
Prior to 1963, if you were accused of a felony but could not afford an attorney, you were forced to represent yourself. Following Gideon v. Wainwright, however, the right to counsel was extended to all individuals.
The Eighth Amendment: cruel and unusual punishment
The Court's position on the death penalty demonstrates sensitivity to public opinion and political changes and also to state legislation and jury verdicts as a way to determine if there is a "national consensus" against a previously accepted practice.
PRIVACY RIGHTS
Privacy rights are never explicitly mentioned in the Constitution: they were established in 1965 in the case of Griswold v. Connecticut, which found that there were implicit "zones of privacy" in the First, Third, Fourth, Fifth, and Ninth amendments. Because it is never explicitly mentioned in the Constitution, the right to privacy is somewhat vulnerable to changes in the composition of the Supreme Court.
Abortion Rights The right to privacy formed the basis of Roe v. Wade, which legalized abortion in 1973. The 2022 decision in Dobbs v. Jackson overturned Roe and left abortion politics and choices to the states.
LGBTQ rights are typically conceived as a civil right rather than a civil liberty, but the Court has extended considerable privacy rights for sexual behavior. The substantive due process doctrine was the basis for the landmark Court ruling in Lawrence v. Texas, in which the Court ruled that the Fourteenth Amendment allows homosexuals to have sexual relations.
Things To Know: Civil Liberties
Why did the authors of the 14th Amendment feel it needed to be created?
Effects of important clauses in the 14th Amendment: Citizenship Clause, Due Process Clause, Equal Protection Clause
What is the difference between Civil Liberties and Civil Rights? What are the different government obligations in both situations?
Liberties contained within each of the amendments in the Bill of Rights and how they are applied
Doctrine of Selective Incorporation: what is it, how is it applied, what allowed for it to be created
What amendments/clauses have been applied to the states?
What is the difference between the Equal Protection Clause and the Free Exercise Clause of the First Amendment?
What are categories of speech that have absolute protection, some protection, minimal protection?
Why has the Court allowed speech restrictions from the government during times of war or unrest?
Significance of these cases: Wisconsin v. Yoder, Tinker v. Des Moines, Texas v. Johnson, Lemon v. Kurtzman, Engel v. Vitale, Gideon v. Wainwright, Gitlow v. New York, Mapp v. Ohio, Near v. Minnesota, Griswold v. Connecticut, McDonald v. Chicago, Heller v. D.C., Schenck v. United States, New York Times v. United States, Roe v. Wade, Lawrence v. Texas, Bowers v. Hardwick, Loving v. Virginia, Obergefell v. Hodges
Why should flag burning, kneeling, protesting at funerals of fallen soldiers (like Westboro Baptist does) and other forms of controversial protest be protected?
Why can someone still be fired or face other losses from their speech or social media posts?
Why can social media companies ban individuals or block accounts of individuals they determine to have violated their terms of service?
What are the three “prongs” of the Lemon Test?
What are the standards in the test for determining if something is pornographic? What is the name of the test? Why is it difficult to ban?
What are the protections of liberties that already existed in the Constitution before the Bill of Rights was added?
Why did the Federalists agree to add a Bill of Rights to the Constitution? Why did they originally oppose it?
What is meant by “fruit of the poisoned tree?” What is the exclusionary rule?
What are the Civil War Amendments? Which amendments are included? What do they address?
What are the two interpretations of Jefferson’s idea of a “wall of separation” between church and state?
Why did the Court rule in favor of a Ten Commandments display in Van Orden v. Perry and against the Ten Commandments display in McCreary County v. ACLU?
Why did the Court strike down the Religious Freedom Restoration Act?
Difference between strict scrutiny and intermediate scrutiny?
What are the “direct incitement test” and the “clear and present danger” test?
What are hate speech, fighting words, libel, and slander? Why are they so hard to get a conviction on?
What is prior restraint and why can’t the government force it on media outlets?
How does the change in the use of the death penalty and what is permissible reflect the idea of informal amendment to the Constitution?
Explain what pieces of the Constitution the Court used to justify that a right to privacy was found in the Constitution?
Explain how the Court reasoned that abortion is also protected under the privacy rights in the Constitution?
