1. Civil liberties
Chapter 4

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Learning Objectives
4.1 Identify what civil liberties are 4.2 Explain why civil liberties are limited in times of crisis 4.3 Distinguish what rights of expression the First Amendment protects 4.4 Determine what religious freedoms the First Amendment protects 4.5 Outline how the “right to bear arms” has been interpreted 4.6 Describe what protections the Bill of Rights provides to those accused of crimes 4.7 Assess what constitutes the right to privacy
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3. What Are Civil Liberties? 1 of 2
Civil Liberties and Civil Rights
Bill of Rights
Natural (unalienable) rights
Balancing Liberty and Order
Complete liberty could lead to breakdown of order
Civil liberties can conflict with order and equality
L.O. 4.1: Identify what civil liberties are.
civil liberties:
Those rights, such as freedom of speech and religion, that are so fundamental that they are outside the authority of government to regulate.
Bill of Rights:
First ten amendments to the Constitution, which provide basic political rights.
Natural (unalienable) rights:
Rights that every individual has and that government cannot legitimately take away.
Key Question
Why aren’t civil liberties subject to majority rule?
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4. Distinction between Civil Liberties and Civil Rights
Figure 4.1
Civil liberties provide a gate or barrier that protects people against interference by the government in fundamental liberties, such as freedom of speech or religion. Civil rights often require active involvement of the government in opening gateways to full civic participation by all, regardless of race, gender, or religion.
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5. What Are Civil Liberties? 2 of 2
Constitutional Rights
Writ of habeas corpus
The Bill of Rights and the States
Incorporated at end of 19th century
Fourteenth Amendment
Selective incorporation
Compelling interest test
writ of habeas corpus:
Right of individuals who have been arrested and jailed to go before a judge, who determines whether their detention is legal
incorporate:
Process of applying provisions of the Bill of Rights to the states.
Selective incorporation:
Doctrine used by the Supreme Court to make those provisions of the Bill of Rights that are fundamental rights binding on the states.
compelling interest test:
Standard frequently used by the Supreme Court in civil liberties cases to determine whether a state has a compelling interest for infringing on a right and whether the law is narrowly drawn to meet that interest.
Key Questions:
Why aren’t civil liberties subject to majority rule?
Which is more important to you, liberty or order?
Which is more important to you, liberty or equality?
Which government are citizens more likely to need a gate against – national or state?
What laws, if any, should protect the American flag?
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6. Constitutional Amendments that Pertain to Civil Liberties
First
1791
Prohibits abridging freedoms of religion, speech, press, assembly, and petition
Second
Prohibits abridging the right to bear arms
Third
Prohibits the involuntary quartering of soldiers in a person’s home during
peacetime
Fourth
Prohibits unreasonable searches and seizures
Fifth
Affirms the right to indictment by a grand jury and right to due process;
protects against double jeopardy, self-incrimination, and taking of property
without just compensation
Sixth
Affirms rights to speedy and public trial, to confront witnesses, and to counsel
Seventh
Affirms right to jury trials in civil suits over $20
Eighth
Prohibits excessive bail, excessive fines, and cruel and unusual punishments
Ninth
Declares that the enumeration of certain rights does not limit other rights
retained by the people
Tenth
Reserves the powers not granted to the national government to the states
or to the people
Fourteenth
1868
Makes all persons born in the United States citizens of the United States and
prohibits states from denying persons within its jurisdiction the privileges
or immunities of citizens, the due process of law, and equal protection of
the laws; apportionment by whole persons
Figure 4.2
A majority of the early amendments to the Constitution protect civil liberties.
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Incorporated and Not Incorporated Provisions of the First Through Eighth Amendments
Amendment
Provisions Incorporated
Not Incorporated
First
Religion, speech, press, assembly, petition
Second
Keep and bear arms
Third
Quarter soldiers
Fourth
No unreasonable searches and seizures
Fifth
Double jeopardy, self-incrimination, due process, taking of property without just compensation
Grand jury indictment
Sixth
Speedy and public trial, right to confront witnesses, right to counsel
Seventh
Jury trials in civil suits
over $20
Eighth
Cruel and unusual punishments, excessive bail
Excessive fines
Table 4.1
Today, almost all of the provisions of the First, Second, Fourth, Fifth, Sixth, and Eighth Amendments have been incorporated, with the exception of grand jury indictment and excessive fines (see Table 4.1).
Source: Cengage Learning
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8. Civil Liberties in Times of Crisis 1 of 4
From Revolution to Civil War
The Sedition Act
The World Wars
The Espionage Act
Marketplace of ideas
The Cold War and Vietnam
U.S. worried about communism
L.O. 4.2: Explain why civil liberties are limited in times of crisis.
marketplace of ideas:
Idea that the government should not restrict the expression of ideas because
the people are capable of accepting good ideas and rejecting bad ones.
Examples show that in times of crisis, Congress and the president limit civil liberties to secure order, often with public support.
Key Questions:
What civil liberties are you willing to give up to ensure more protection against terrorist attacks?
How free should you be to criticize the government? Should you be less free in wartime? Following 9/11?
Can you trust the people to decide whether an idea has merit? Do good ideas survive and bad ideas fade away?
Should enemy combatants have the same procedural safeguards as American citizens? What if the enemy combatant is an American citizen?
Should government imprison people for their political views? Or should views, such as belief in Communism and/or religious war (for example, jihad) be allowed to be tested in the marketplace of ideas?
Should government have access to your phone calls and messages?
Are alleged terrorists enemy combatants?
Should the United States obey the Geneva Convention?
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9. Civil Liberties in Times of Crisis 2 of 4
Anti-Communist propaganda from the first Red Scare.
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10. Civil Liberties in Times of Crisis 3 of 4
The War on Terror
The USA Patriot Act
Civil Liberties and American Values
Key Questions:
Should government have access to your phone calls and messages?
Are alleged terrorists enemy combatants?
Should the United States obey the Geneva Convention?
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11. Civil Liberties in Times of Crisis 4 of 4
The name of Senator Joseph McCarthy has been attached to an era noted for fear of Communism and the use of fear tactics to suppress freedom of speech and belief. His dishonesty and abusive treatment of witnesses during these hearings turned both the Senate and the public against him.
Here, during the 1954 Army- McCarthy hearings, he testifies on Communist Party organizations in the United States with the aid of a huge map.
Source: © Bettmann/Corbis
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12. The First Amendment and Freedom of Expression 1 of 5
Freedom of Speech
Advocacy of Unlawful Activities
Clear and present danger test
Fighting Words and Hate Speech
College speech codes
Symbolic Speech
Content-neutral justification
Time, Place, and Manner Regulations
L.O. 4.3: Distinguish what rights of expression the First Amendment protects.
clear and present danger test:
First Amendment test that requires the state to prove there is a high likelihood that the speech in question would lead to a danger that Congress has a right to prevent.
symbolic speech:
Actions, such as burning the flag, that convey a political message without spoken words.
content-neutral:
Free speech doctrine that allows certain types of regulation of speech, as long as the restriction does not favor one side or another of a controversy.
Key Questions:
Given the nature of terrorist attacks, is it possible to establish a “clear and present danger” before prosecuting the advocacy of unlawful activities?
How can you distinguish between fighting words and hate speech?
Should colleges and universities be marketplaces of ideas?
Does your college have a speech code? Should your college regulate what you can and cannot say?
Can trigger warnings lead to censorship in college classrooms?
What is more important, freedom of speech or an equal and non-hostile educational environment?
Should Americans be required to salute the flag? Should they be prevented from burning the flag?
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13. The First Amendment and Freedom of Expression 2 of 5
Bettmann/Corbis
In 1969, the Court ruled in the Tinkers’ favor, stating: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Mary Beth and John Tinker were teenagers in 1965 when they wore black armbands to school to protest the Vietnam War, and they were suspended. Arguing that students have free speech rights, the Iowa Civil Liberties Union sued the school district on their behalf and appealed the suspension in a series of cases that were finally appealed to the Supreme Court.
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14. The First Amendment and Freedom of Expression 3 of 5
Florida license plate expressing the state's pro life (anti-abortion) position. The Supreme Court has upheld such speech by states.
Pat Canova/Alamy
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15. The First Amendment and Freedom of Expression 4 of 5
In 2002, high school student Joseph Frederick unfurled this banner while his class watched the Olympic Torch relay pass through Juneau, Alaska. When the principal suspended Frederick for the banner’s message about drugs, Frederick sued, saying that his free speech rights had been violated.
The court of appeals, relying on the Tinker case, reversed the suspension, but in 2007, the Supreme Court upheld it, saying a student’s free speech rights did not extend to the promotion of illegal drugs.
Clay Good/Zuma Press
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16. The First Amendment and Freedom of Expression 5 of 5
Freedom of the Press
Prior Restraint
Subsequent Punishment
Seditious libel
Miller test for obscene materials
The Right of Association
prior restraint:
Government restrictions on freedom of the press that prevent material from being published.
Miller test:
Supreme Court test for determining whether material is obscene.
Key Questions
Should the American Nazi Party, the Ku Klux Klan, or the Communist Party be allowed to march in public streets? Should their ideas be suppressed, or should they be allowed to be tested in the marketplace of ideas?
What information on the Web should the government censor?
How can you protect yourself from what others may say about you on the Web?
Should pornography be submitted to the marketplace of ideas? Or should it be censored? On what legal grounds?
Which is more important to you, freedom of association or laws banning discrimination?
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Religious Freedom 1 of 2
Free Exercise
Free exercise clause
Valid secular purpose
The Establishment of Religion
Congress cannot recognize one official church
Establishment clause
Lemon test
L.O. 4.4: Determine what religious freedom the First Amendment protects.
free exercise clause:
First Amendment clause protecting the free exercise of religion.
valid secular purpose:
Supreme Court test that allows states to ban activities that infringe on religious practices as long as the state has a nonreligious rationale for prohibiting the behavior.
Establishment clause:
First Amendment clause prohibiting governmental establishment of religion.
Lemon test:
Test for determining whether aid to religion violates the establishment clause.
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Religious Freedom 2 of 2
Key Questions
Should all religions get equal treatment?
Can corporations have religious beliefs? If so, can they be required to provide birth control pills that some believe result in the termination of pregnancy to their employees?
Should prayers be allowed in school? Under what circumstances? What types of prayers? Is saying a silent prayer the same as wearing an armband?
Rally by pro-choice advocates against state laws that would limit the ability of clinics that provide abortions to stay open.
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19. The Right to Keep and Bear Arms 1 of 2
The Second Amendment
National Firearms Act 1934
Attempt to regulate gun ownership
Individual right to bear arms 2008
Following Sandy Hook School tragedy
99 bills to tighten access to guns
88 bills easing access to guns
L.O. 4.5: Outline how the “right to bear arms” has been interpreted.
Key Questions:
What are the arguments for and against gun control? What is your position?
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20. The Right to Keep and Bear Arms 2 of 2
Otis McDonald, a plaintiff in McDonald v. Chicago, joined the suit against Chicago’s handgun law because he wanted to have a handgun at home to protect himself from gangs. On June 18, 2010, the Supreme Court ruled that the Constitution incorporated the Second Amendment, declaring that states could not ban private possession of guns for self-defense.
AP Images/Haraz N. Ghanbari
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21. Criminal Procedure 1 of 2
Investigations
Searches and Seizures
Fourth Amendment
Expectation of privacy test
Exclusionary rule
Interrogations
Fifth Amendment
Miranda decision
Booking photo of Ernesto Miranda. His case led the Warren Court to require police to give arrested suspects “Miranda Warnings.”
L.O. 4.6: Describe what protections the Bill of Rights provides to those accused of crimes.
expectation of privacy test:
Supreme Court test for whether Fourth Amendment protections apply.
exclusionary rule:
Supreme Court rule declaring that evidence found in violation of the Fourth Amendment cannot be used at trial.
Source: AP Images/Matt York
Key Questions
If the police are tracking your car’s movements, does it matter if they physically touched your car to do so?
Why did the first Congress write so many protections regarding criminal procedure into the Bill of Rights?
Source: AP Images/Matt York
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Criminal Procedure 2 of 2
Trial Procedures
Right to counsel
Right to impartial jury
Verdict, Punishment, and Appeal
Double Jeopardy
Sentencing
Appeals
Key Questions:
Is the U.S. criminal justice system too harsh? Or does it let too many criminals get off on “technicalities”?
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The Right to Privacy 1 of 2
Birth Control and Abortion
1800s Comstock Laws
1961 Griswold v. Connecticut
Established right to privacy
1973 Roe v. Wade
Established national right to abortion
Modifications made in 1992
L.O. 4.7: Assess what constitutes the right to privacy.
right to privacy:
Constitutional right inferred by the Court that has been used to protect unlisted rights such as sexual privacy and reproductive rights, plus the right to end life-sustaining medical treatment.
Roe v. Wade:
1973 Supreme Court case extending the right to privacy to abortion.
Key Questions What are the arguments for and against the right of privacy in relation to abortion? What is your opinin? Are you “pro-life” or “pro-choice”?
When the people disagree with a Supreme Court decision, what can they do about it?
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The Right to Privacy 2 of 2
Homosexual Behavior
Lawrence v. Texas
The Right to Die
Does not include assisted suicide
Student Housing
Lawrence v. Texas:
2003 Supreme Court case extending the right to privacy to homosexual behavior.
Key Questions:
Does government have a right to regulate who can live in the same house or apartment?
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25. Civil Liberties and Democracy
Congress and president have ways to hold Supreme Court accountable
Unlimited liberties can harm social order
Political tolerance essential to democratic stability
Political tolerance:
Willingness of people to put up with ideas with which they disagree.
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Percentage of Americans Who Support Allowing Speeches by Members of Disfavored Groups
Figure 4.5
The willingness of Americans to allow Communists, atheists, and militarists (those who would do away with elections and have the military run the government) to give speeches has generally increased over the past sixty years. Tolerance toward racists, on the other hand, has slightly decreased.
Source: General Social Survey, various years.
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