Civil liberties refer to restraining the government’s actions against individual rights outlined in the Bill of Rights. A few rights, like prohibiting ex post facto laws are found in Article I, Section 9 of the Constitution.
The Bill of Rights
Most citizens are not aware that the Bill of Rights originally applied only to the national government. The Supreme Court, through the process referred to as incorporation, has employed the Due Process Clause of the Fourteenth Amendment to apply many of the protections set forth in the Bill of Rights to the states. The first right to be incorporated was the freedom of speech in Gitlow v. New York (1925). Not all of the protections in the Bill of Rights have been made applicable to the states. See Table 4-1 for a list of cases incorporating various aspects of the Bill of Rights.
Freedom of Religion
The First Amendment begins with two basic principles of religious freedom. The first prohibits the governmental establishment of religion and the second embodies protection for the free exercise of religion. The first words in the First Amendment are “Congress shall make no law respecting an establishment of religion.” In the view of Thomas Jefferson the establishment clause was intended to create a “wall of separation” between church and state. The establishment clause has produced conflicts over governmental aid to religious schools, prayer in public school, and the clash between the teaching of evolution and creationism. In Lemon v. Kurtzman (1971), the Supreme Court ruled that direct state aid could not be used to subsidize religious instruction. This case created a three-part test for establishment clause questions, focusing on the purpose of governmental actions, the primary effects of those actions and whether the government had become involved in an excessive entanglement with religion. The use of government vouchers for religious education has so far been upheld by the Supreme Court, but important issues remain. In the Engel v. Vitale case (1962) the Court ruled that school sponsored prayer was a violation of the establishment clause. Wallace v. Jaffree (1985) struck down an Alabama law calling for a moment of silence that was to be used for silent prayer or meditation. Prayer at public school graduation ceremonies was limited in Lee v.Weisman (1992). The teaching of creationism was addressed in Edwards v. Aguillard (1987), in which the Supreme Court struck a Louisiana law calling for the teaching of creationism as well as evolution in public schools. However, it would be incorrect to assume that the Court is trying to achieve an inviolable and absolute separation of church and state. In the 1995 case of Rosenberger v. University of Virginia, the Court ruled that the university must provide support to a student religious group if it was also supporting other nonreligious student groups.
The free exercise clause presents a challenging situation for the Supreme Court, as individuals and groups assert the ability to violate the law in the name of their religion. The Court has sought a middle ground by proclaiming that the First Amendment protects all religious beliefs, but not necessarily all religious practices. While this distinction has a certain surface appeal, it still places the Court in the difficult position of determining which religious practices will be unprotected by the First Amendment. Obviously human sacrifice should not be protected by the freedom of religion, but what about other, less dramatic religious practices that technically violate the law, such as the ingestion of illegal substances as a religious practice? In Oregon v. Smith (1990), two Native-American drug counselors were fired for using peyote, an illegal drug, in their religious services. The Court ruled the First Amendment did not protect this practice, which was firmly rooted in the traditions of their religion. Congress responded with the Religious Freedom Restoration Act (RFRA), legislation designed to limit the Smith decision and to provide more protection for religious practices. In 1997 the Supreme Court had the final say in Boerne v. Flores, ruling RFRA unconstitutional and warning Congress that the Court was the ultimate arbiter of how the First Amendment should be interpreted.
Freedom of Expression
Freedom of expression is probably the most frequently used right that Americans possess, but this right cannot be used to say anything at any time and any place. The Supreme Court has established any number of restrictions on free speech. The clear and present danger test from the Schenck v. U.S. case (1919) restricted speech that creates a “clear and present danger” to public order. Fifty years later the Court provided considerably more protection to this sort of speech in Brandenburg v. Ohio, creating a test that required the government to prove that both the intention and the likelihood of the speech was imminent lawless action. Prior restraint of speech, sometimes known as censorship, has usually been ruled unconstitutional by the Court. In one of its most famous cases, New York Times v. U.S. (1971), the Supreme Court ruled The New York Times had the right to publish the Pentagon Papers, a comprehensive study of American involvement in the Vietnam War.
It is not only political speech that is covered by the First Amendment. The Court has also extended constitutional protection to commercial speech and symbolic speech. One of the Supreme Court’s most controversial decisions, Texas v. Johnson, involved symbolic speech. In this case the Court ruled that the state of Texas could not criminalize the burning of an American flag, even though most people regarded such an action as offensive. Certain types of speech have been ruled to be unprotected by the First Amendment, including obscenity, slander and child pornography. On the other hand, efforts by government to limit speech at public universities, hate speech and Internet pornography have been ruled unconstitutional by the Court as an infringement of protected First Amendment interests.
Freedom of the Press
The Framers regarded freedom of the press as an essential means of making our governmental system work properly. One of the major complications in applying freedom of the press is libel, the published or broadcast defamation of a person’s character. In a landmark decision the Supreme Court in New York Times v. Sullivan (1964) provided a great deal of protection to the media by ruling that public officials who bring suit against media companies for libel must prove actual malice on the part of the media. Only in the instances in which a public official can establish that the news organization published with knowledge of the falsity of its story, or acted in reckless disregard of the truth, can such a public official prevail. This greater burden of proof for public officials and figures allows for the criticism of public officials and discussions of differences of opinion without fear of lawsuits. Another important issue for free press is the conflict between the public’s right to know and the right of individuals to receive a fair trial. In Gannett Company v. DePasquale (1979), the Supreme Court ruled that a judge could issue a gag order to protect a defendant’s right to a fair trial against excessive news publicity.
The Right to Assemble and to Petition the Government
The First Amendment protects the rights of unpopular groups to have their say. At the same time government has the responsibility to prevent rioting in the streets. The key issue is how to balance the right of individuals to put forth their controversial views with the necessity for public officials to maintain public order. One of the most interesting and poignant examples of this struggle came when members of the American Nazi Party wanted to hold a march in Skokie, Illinois, a town with a substantial Jewish population, many of whom were survivors of the death camps during World War II. The Supreme Court in Smith v. Collin (1978) upheld a lower court decision recognizing the First Amendment right of the Nazis to march. The federal court judges involved in this litigation believed the only thing worse than the ideas of the Nazis was putting the government in the position of being able to determine what its citizens can say and hear.
More Liberties under Scrutiny: Privacy Rights
The right to privacy is not explicitly mentioned in the Constitution. Rather, the Supreme Court stated in Griswold v. Connecticut (1965) that the right to privacy stems from “penumbras” in the First, Third, Fourth, Fifth, and Ninth Amendments in the Bill of Rights. The Court has also come to see the Fourteenth Amendment’s Due Process Clause as an important source for the right of privacy. One of the most controversial decisions in this area was Roe v. Wade (1973), in which the Supreme Court accepted the argument that laws against abortion violate a woman’s right to privacy by interfering with her decision whether to have a child. This decision created one of the most divisive public policy issues in America, even though later Court decisions placed restrictions on abortion rights. A second controversial application of the right to privacy is the right to die. If the right to privacy protects our ability to make decisions about the most intimate and personal details of our lives, should it protect the ultimate decision to end our lives? The New Jersey Supreme Court agreed with this principle in a 1976 case involving Karen Ann Quinlan. The United States Supreme Court also provided support for this idea in Cruzan v. Director, Missouri Department ofHealth (1990). The Cruzan case has led to the creation of “living wills” and other documents to provide documentation of the patient’s intention not to be kept alive by extraordinary means. However, the Court has not been willing to extend constitutional protection to assisted suicide, leaving the question up to the individual states. A final area of controversy is the diminishing of privacy rights in the wake of 9/11, as government extends its power in order to make the nation safer from terrorist attacks.
The Great Balancing Act: The Rights of the Accused versus the Rights of Society
One of the most difficult areas of the Constitution involves the conflict between the necessity of government to protect its citizens from crime and the rights given to those accused of criminal offenses in the Fourth, Fifth, Sixth and Eight Amendments. Your text includes a complete listing of these rights. During the 1960’s the Supreme Court greatly expanded the rights of the accused. In 1963, Gideon v. Wainwright ensured that a poor defendant would be given an attorney paid for by the government. In 1966, Miranda v. Arizona required the police to inform individuals of their constitutional rights prior to custodial interrogation, although the Court has been willing in recent years to acknowledge some exceptions to this rule. In the case of Mapp v. Ohio (1961) the Supreme Court applied the exclusionary rule to every criminal court in the nation, ensuring that evidence obtained unconstitutionally would be inadmissible at trial. As was the case with the Miranda precedent, the Court has been willing to recognize some exceptions to the exclusionary rule, most notably the “good faith” exception.
The Death Penalty
The Eight Amendment prohibits cruel and unusual punishment. One of the most controversial questions of our time asks whether the death penalty violates this provision. It is doubtful that the Framers of the Constitution would have thought the death penalty to be cruel and unusual punishment. In fact the Fifth Amendment provides that the government may take the life of a citizen as long as it is done consistently with due process of law. However, in the 1972 case of Furman v. Georgia the Supreme Court ruled that the random and arbitrary manner in which the death penalty was being used throughout the nation violated the prohibition against cruel and unusual punishment. The Court declared existing death penalty statutes to be unconstitutional, but challenged states to restructure and rewrite their laws on when capital punishment was appropriate. Four years later the Court upheld the newly revised death penalty laws. Today the death penalty exists in 38 states, as shown in Figure 4-1. In 1996 Congress passed the Anti-Terrorism and Effective Death Penalty Act, which sharply reduced the time for death-row appeals. Whether this represents a move toward justice and holding murderers accountable or a rush to judgment that may result in the execution of innocent people remains to be seen.
clear and present danger
free exercise clause
Writ of habeas corpus
A number of valuable supplements are available to students using the Schmidt, Shelley, and Bardes text. The full list of the supplements is in the preface to this study guide. Ask your instructor how to obtain these resources. One supplement is highlighted here, the INFOTRAC Online Library.
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You can access the article by typing the exact phrase below.
“On Life, Liberty, and Law”
The premise of this brief article is the proposition that even persons accused of being terrorists have rights.
What was the alleged terrorist attack mentioned in this article?
What role does public fear play in the rights of an individual accused of being terrorists?
What does the author conclude about the rights of terrorists?
(Answers appear at the end of this chapter.)
Fill-in-the-Blank. Supply the missing word(s) or term to complete the sentence.
_________ ___________ involve restraining the government’s actions against individuals.
It was not until the ______________ Amendment was ratified that our Constitution explicitly guaranteed due process of law to everyone.
The Lemon Test provides the means by which the Court can determine whether the government has violated the ______ ________ within the First Amendment.
The Supreme Court in Schenck v. United States concludedthat government may restrict speech that creates a ______ ____ ______ of some evil that government may prevent.
The burning of the American flag as part of a peaceful protest was ruled to be protected by the First Amendment in the case of ____________.
The requirement that individuals be advised of their constitutional rights upon custodial interrogation was created in the case of ______________.
Only when a statement is made with______________ _________________ can a public official receive damages for libel.
In the 1990s, the most controversial aspect of the right-to-die is _______________ assisted suicide.
The ____________, _________________, ________________, and ____________ Amendments specially deal with the rights of criminal defendants.
The use of illegally seized evidence is prohibited in a trial because of the _____________________ rule.
True/False Circle the appropriate letter to indicate if the statement is true or false.
T F 1. The concept of civil liberties mainly refers to laws passed by Congress to limit government power.
T F 2. As originally drafted, the Bill of Rights limited only the powers of the states, not those of the national government.
T F 3. Most of the guarantees in the Bill of Rights now apply to the fifty states.
T F 4. The use of state aid to private religious schools has generally been accepted by the Supreme Court.
T F 5. For the most part, Americans are very limited in their ability to criticize public officials.
T F 6. The federal courts have not extended constitutional protections to speech that is determined to be obscene.
T F 7. Gag orders restrict the publication of news about a trial in progress or a pretrial hearing.
T F 8. The right of privacy is explicitly guaranteed in the Bill of Rights.
T F 9. The Webster and Planned Parenthood decisions have made it much easier to obtain a legal abortion.
T F 10. The United States has one of the highest violent crime rates in the world.
Multiple Choice Circle the correct response.
When we are speaking of civil liberties, we are referring to limitations on government as outlined in the
Declaration of Independence.
Articles of Confederation.
Bill of Rights.
The view that most of the protections of the Bill of Rights are included under the Fourteenth Amendment’s guarantee of due process of law is called the
necessary and proper theory.
symbolic speech theory.
The three-part Lemon test concerns the issue of
establishment of religion.
presentation of evidence before a grand jury.
The free exercise clause in the First Amendment does not prevent the government from curtailing religious practices that
work against public policy and the public safety.
infringe on citizen’s sensitivities.
are defined by media as “cult” religions.
are a willful violation of the Pledge of Allegiance at public school.
are door to door solicitations.
According to the “clear and present danger” test,
a speech must be unclear as to its intent for it to be ruled unconstitutional.
the action called for must be constitutionally “vague” in order to be ruled unconstitutional.
free speech can be curbed if such speech would cause a condition that Congress has the power to prevent.
free speech may not be curbed because speech alone cannot bring about action.
only symbolic speech can bring about danger.
The burning of an American flag in a peaceful protest is an example of
a violation of the Constitution.
a violation of the bad-tendency doctrine.
a protected action under the clear and present danger concept.
a protected action under the symbolic speech concept.
an issue not yet decided by the Supreme Court.
Paid advertising can be constitutionally protected as a form of
The Miller v. California case created a list of requirements that apply to
the right to remain silent.
Child pornography has been ruled by the Supreme Court to be
a constitutionally protected form of speech.
an unprotected form of speech which can be regulated by the state.
a constitutionally protected form of speech only in the privacy of your home.
a constitutionally protected form of speech only on the Internet.
in a vague area that the federal courts have not ruled on.
Public officials may sue for libel if they can prove the statement
hurt the official’s reputation.
hurt the official’s feelings.
was made with actual malice.
was made during an election campaign.
Gag orders are
designed to eliminate illegal speech.
designed to eliminate unlawful assembly.
restrictions on the publication of news concerning pretrial hearing or trials in progress.
part of the controversy over the death penalty.
ruled unconstitutional in Gannett Co. v. De Pasquale.
An adequate short answer consists of several paragraphs that relate to concepts addressed by the question. Always demonstrate your knowledge of the ideas by giving examples. The following represent major ideas that should be included in the short essay answer.
Explain the process of incorporation and why it was essential to make the Bill of Rights applicable across the nation.
The Supreme Court ruled early that the Bill of Rights did not apply to state governments.
The Fourteenth Amendment has been used to apply the protections of the Bill of Rights to the states, a process known as incorporation.
The process of incorporation has occurred gradually, on a case-by-case basis, and not every provision in the Bill of Rights has been applied to the states.
See Table 4-1 for a list of cases incorporating different constitutional rights.
Identify and explain the two concepts of freedom of religion contained in the First Amendment.
The establishment clause prohibits official government support of religion.
Lemon v. Kurtzman (1971) creates a three-part test for determining whether the government has violated the establishment clause.
Engle v. Vitale (1962) ruled that official prayer in public school is unconstitutional.
Teaching of evolution cannot be banned, and creationism cannot be taught.
The free exercise of religion shall not be prohibited.
Religious beliefs are absolute, but religious practices, which work against public policy and public welfare may be restricted.
Oregon v. Smith (1990) ruled that Native Americans could be denied unemployment benefits when fired from a state job for using peyote in their religious services.
Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to require all levels of government to “accommodate religious conduct.”
City of Boerne v. Flores (1997) ruled the RFRA law unconstitutional.
Discuss the important principles established by the Supreme Court for freedom of speech and press.
Freedom of speech has never been considered absolute, so some restrictions are permitted.
Schenck v. U.S. (1919) ruled that speech that creates a “clear and present danger” is unprotected.
Gitlow v. New York (1925) held that expression that might lead to some “evil” is not protected.
Brandenburg v. Ohio (1969) expanded protection of speech dramatically, ruling that the government may only limit speech that is intended and likely to provoke imminent lawless action.
However, in the New York Times v. U.S. (1971), it was ruled that prior restraint or censorship is unconstitutional.
Symbolic speech and commercial speech have received constitutional protection.
Texas v. Johnson (1989) ruled that the burning of an American flag in a peaceful protest is protected symbolic speech.
Some speech has never been constitutionally protected.
Slander, the public uttering of a false statement that harms a person’s reputation, is not protected.
Hate speech and Internet pornography can be regulated in some cases.
Freedom of the press can be viewed as printed speech, so many of the same concepts apply.
Libel is the written defamation of a person’s reputation, but the press has some limited protect from libel.
New York Times v. Sullivan (1964) created the rule that a public official must prove actual malice on the part of media to be able to sue for libel.
Another significant free press issue is the conflict between free press and a criminal suspect’s right to a fair trial. Gannett Company v. De Pasquale (1979) allowed judges to issue gag orders to restrict the publication of news about pretrial hearings, or trials in progress.
Broadcast media has generally not been protected to the same extent as published materials. The Federal Communications Commission (FCC) has been used to regulate the broadcast media, as it has done in the cases of George Carlin and Howard Stern.
4. Outline and discuss the rights of an individual accused of a crime.
In the Bill of Rights, the Fourth, Fifth, Sixth and Eighth Amendments deal with rights of the accused. The process is divided into three parts.
1. Limits on the conduct of police officers and prosecutors
2. Defendant’s pretrial rights
3. Trial rights
The Fourth Amendment protects against unreasonable search and seizure of evidence.
The exclusionary rule prevents this evidence from being admitted at trial. Mapp v. Ohio extended the exclusionary rule to state courts.
The Fifth Amendment provides for the protection against self-incrimination. Miranda v. Arizona created a requirement that individuals be advised of their rights prior to custodial interrogation.
The Sixth Amendment provides for the assistance of counsel and the Court has ruled that government must provide an attorney even if the individual cannot afford an attorney.
The Eighth Amendment protects against excessive bail and cruel and unusual punishment.