1. Chapter 4
Civil Liberties
Civil Liberties

2. Civil Liberties
The Bill of Rights protects Americans from government surveillance and searches without reasonable cause. Some people worry that increased government surveillance in the fight against terrorism represents a turn away from protecting civil liberties.

3. Civil Liberties: Substantive and Procedural
Civil liberties are areas of personal freedom protected from government interference
Two dimensions
Substantive: limits on what government can or cannot do
cannot establish an official state or national religion
cannot seize private property without compensation
Procedural: rules regarding how the government must act
guarantees citizens receive due process of law
Often we hear people speak about “what is fair” and “what is my right.” Such notions are rooted in the substance and procedures of civil liberties guaranteed in the Constitution.

4. Civil Liberties: Protection
Allow the minority to speak and act as they desire
Are the national means to protecting the marketplace of ideas for a healthy democracy
Allow people to live according to their preferences, as they choose
Note that we are referring to opinion minorities, not racial or ethnic groups. It was the minority opinion, for example, that the United States should not invade Iraq. In the buildup to the war, there was widespread public support for the invasion.
The last two points tell us that civil liberties are a means to an end (a protection), but also an end or value in themselves.

5. Civil Liberties: Brief History
The Constitutional Convention concluded without a Bill of Rights
The Federalists, led by Alexander Hamilton
Argued that a Bill of Rights was unnecessary
The national government was given only delegated powers
Hamilton: “For why declare that things shall not be done which there is no power to do?”

6. Rights in the Original Constitution (Not in the Bill of Rights)
Civil Liberties: Not in the Bill of Rights
Rights in the Original Constitution (Not in the Bill of Rights)
TABLE 4.1 Rights in the Original Constitution (Not in the Bill of Rights) 6

7. Civil Liberties: Brief History—The Bill of Rights
The Antifederalists, however, saw potential for government abuse of power without a Bill of Rights
The Federalists agreed to this to allay the fears of the Antifederalists
The House of Representatives adopted 17 amendments
The Senate adopted 12 of these amendments
Only 10 of the amendments were ultimately ratified by the states
These 10 amendments are called the Bill of Rights

8. The Bill of Rights
TABLE 4.2 The Bill of Rights

9. Nationalizing the Bill of Rights
Developments
1833: the Supreme Court ruled that the Bill of Rights limited only the actions of the federal government, and not the state governments
1868: changes that accompanied the adoption of the Fourteenth Amendment
The Fourteenth Amendment applies the Bill of Rights to the states

10. Nationalizing the Bill of Rights, Part 2
Additional Developments
1897: the Supreme Court ruled that the due process clause of the Fourteenth Amendment applied to the states
It prohibited the states from taking property for public use without just compensation
1925: the Supreme Court ruled that freedom of speech applied to the states
Freedom of speech is “among the fundamental personal rights and ‘liberties’ protected by the due process clause”

11. Nationalizing the Bill of Rights, Part 3
However, the Court did place some limits on the expansion of civil liberties under the Fourteenth Amendment
1937: Palko v. Connecticut
Ruled double jeopardy was not a provision of the Bill of Rights incorporated into the Fourteenth Amendment that restricted the states
Established the principle of selective incorporation
provisions of the Bill of Rights could be selectively applied as limits on the states through the Fourteenth Amendment

12. Nationalizing the Bill of Rights, Part 4
It took more than 30 years for the Court to nationalize constitutional protection against double jeopardy
Until 1961
Only the First Amendment and one clause of the Fifth Amendment had been clearly incorporated into the Fourteenth Amendment
After 1961
Most of the important provisions of the Bill of Rights were incorporated into the Fourteenth Amendment and applied to the states

13. The First Amendment: Freedom of Religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”
Establishment clause
freedom from the state imposing any particular religion
Free exercise clause
freedom to practice one’s religion of choice without state interference
The First Amendment addressed both freedom of religion and freedom from religion.
What examples of each freedom can students identify in actual examples or in theory?

14. The First Amendment: Establishment Clause
Establishment clause: different interpretations
Some people argue that there must be a “wall of separation”
Government cannot breach the wall between church and state
There is disagreement, however, over the height of the wall
prayer in school is one such area of contestation

15. The First Amendment: Establishment Clause, Part 2
Establishment clause: different interpretations
Prevents the establishment of an official church
This interpretation reflects the views of many of the First Amendment’s authors
Government cannot favor one religion over another
It is not prohibited from providing funds to religious institutions
but funding or other assistance cannot show favoritism

16. The First Amendment: The Lemon Test
Important Supreme Court case: Lemon v. Kurtzman
The Lemon test
Consists of three major parts
government involvement must have a secular purpose
its effect is neither to advance nor to inhibit religion
it does not entangle government and religious institutions in each other’s affairs

17. The First Amendment: The Free Exercise Clause
Free exercise of religion clause
Protects the right to practice whatever religion one chooses
Also protects the right to be a nonbeliever
West Virginia State Board of Education v. Barnette (1943)
The Court upheld the rights of children of Jehovah’s Witness family
can refuse to salute and pledge allegiance to the flag on grounds their religious faith does not permit it

18. The First Amendment: Freedom of the Press
The First Amendment also includes freedom of the press
“Congress shall make no law abridging the freedom of speech, or of the press . . .”
Democracy requires a marketplace of ideas
In 1938, the Supreme Court held legislation that restricts speech is to be held to a “more exacting judicial scrutiny”
A higher standard of judicial review is called “strict scrutiny”

19. The First Amendment: Political Speech
Strongly protected by strict scrutiny and legal standards
Must establish “compelling reasons” for limitations
Includes actions expressing political ideas
Example: financial contributions to causes, protests
Protected unless it leads to immediate harm
Examples: yelling “fire!” in a theater; yelling at night in a quiet neighborhood
Why is political speech so strongly protected?
What was the context in which these protections were written into the Constitution, which influenced free speech as a priority?
Why are political actions (like holding signs or donating money) treated the same as actual speech? (The sentiment in the amendment is to protect the expression of ideas, not merely the format in which they are conveyed.)
Citizens United v. Federal Election (2010) declared that the First Amendment prohibited a federal ban on corporate funding of independent political broadcasts aimed at electing or defeating particular candidates.

20. The First Amendment: Key Court Cases—Schenk v. United States
Important Court cases
Clear and present danger test
Established in Schenck v. United States (1919)
upheld the Espionage Act of 1917
speech encouraging draft resistance was ruled to constitute a “clear and present danger” and thereby was not protected

21. The First Amendment: Key Court Cases
Important Court cases
Brandenburg v. Ohio (1969)
Ruled that as long as speech falls short of actually inciting action, it cannot be prohibited even if it is subversive
Citizens United v. Federal Election (2010)
Declared that the law that banned corporate funding of independent electioneering broadcasts was unconstitutional

22. Freedom of Speech: Expressive Speech
Protected until it moves from the symbolic realm to a direct incitement of damaging conduct (use of fighting words)
Dennis v. United States (1951)
ruled there is no substantial public interest in permitting lewd, obscene, profane, libelous, or “fighting” words
however, the Court has reversed almost every conviction based on arguments that the speaker used “fighting words”

23. Fighting Words and Hate Speech
Fighting words are hard to ban because the target has option of ignoring them
Hate speech is difficult to ban because it is the expression of a political idea
When words leave the realm of thought and move into direct and immediate action, their speaker can be held accountable
Students may find it interesting for you to ask what your institution’s policies are on this matter.
What are students (or faculty) allowed to say, and what can they get in trouble for saying?
Speech (including writing, Facebook and Twitter posts, and text messages) that threatens terrorist acts, mass shootings, and other mayhem is increasingly dealt with in terms of protecting the public, not free speech.

24. Student Speech
Student speech
Conditionally protected speech for high school students in public schools
School punishment for sexually suggestive speech is permissible
Morse v. Frederick (2007)
The Court ruled a school could suspend a student, Joseph Frederick, for displaying a banner that read “Bong Hits 4 Jesus”

25. Commercial Speech
Commercial speech
Not nearly as strongly protected as political speech
Government only needs a rational reason to ban an ad
People can face consequences for perfectly legal speech
There is no right to be employed or supported by an employer, the public, or others who disagree
This may be the first time students are exposed to rational review. As the textbook notes, there are exceptions but, for the most part, the courts will uphold bans on commercial speech if there is a rational reason for them.

26. Freedom of the Press: Print Media
Government cannot prevent print media from publishing what they desire
The press, however, can be sued for
Statements made in “reckless disregard of the truth”
When written, it is libel; when spoken, it is slander
The rise of individuals gathering and reporting news complicates these issues.
WikiLeaks, the Anonymous community, and online bloggers are more difficult to contain or penalize than traditional media
Note that if the press harms a private individual by publishing a falsehood, the standard for that individual to sue for damages is lower than for a public individual. It is easier to sue under those conditions. Public individuals have more difficulty because the nature of their status makes them subject to media scrutiny.
Broadcast media are especially sensitive to this rule (and they are only a small part of the media today) because the federal government licenses their airwaves and ability to convey information; they can be restricted in ways the print media cannot.

27. Pornography: Early Definition
Pornography and obscenity are difficult to define, and thus difficult to regulate
Justice William Brennan provided a definition
Speech or writing that appeals to “prurient interest”
Brennan’s definition actually caused more confusion
In 1964, Justice Potter Stewart wrote that pornography was impossible to define, but added, “I know it when I see it.”

28. Pornography: Clarifying the Definition
These vague standards led to an effort to strengthen restrictions in 1973
The Supreme Court defined pornography as a work that:
(1) as a whole, is deemed prurient by the “average person” according to “community standards”;
(2) depicts sexual conduct “in a patently offensive way”; and
(3) lacks “serious literary, artistic, political, or scientific value”

29. The Right to Bear Arms The Second Amendment
The right to bear arms applies to states and localities
Banning possession of firearms in a home is not possible
District of Columbia v. Heller (2008)
The Court ruled that the Second Amendment provides a constitutional right to keep a loaded handgun at home for self-defense
States and local governments can regulate firearms
Includes waiting periods, registration, types of arms allowed, and other aspects related to access
The most recent Second Amendment case, McDonald v. Chicago (2010), generated a ruling that effectively applied the Second Amendment to states and localities, meaning they cannot ban the ownership of a firearm kept in a person’s home. Whether they can ban that person from taking the firearm outside the home or ban the ownership of more than one firearm remains to be seen.

30. Rights of the Accused: Due Process
Refers to the right of every citizen to be free of arbitrary action by national or state government
The Fourth, Fifth, Sixth, and Eighth Amendments, taken together, are the essence of due process of law
The question remains of what is a reasonable search, and the boundaries are constantly contested.
A 2012 Supreme Court ruling allows for strip searches for any offense before admitting people to jails even if the officials have no reason to suspect the presence of contraband.

31. The Fourth Amendment The Fourth Amendment
Guarantees the security of citizens against unreasonable (i.e., improper) searches and seizures
Exclusionary rule: the ability of courts to exclude illegally obtained evidence (Mapp v. Ohio, 1961)
United States v. Grubbs (2006): The Court ruled that police could conduct searches using “anticipatory warrants”
United States v. Jones (2012): The Court ruled that prosecutors could not attach a Global Positioning Device (GPS) device to a vehicle to monitor a suspect

32. Rights of the Accused: The Fifth Amendment
Miranda rights
Persons who are under arrest must be informed prior to police interrogation of their rights to remain silent
Right to a grand jury
The grand jury determines whether sufficient evidence is available to justify a trial
Why are the accused afforded so many constitutional protections? What is the public benefit to having these procedures and standards in place?

33. The Fifth Amendment
The case of Ernesto Miranda resulted in the creation of Miranda rights, which must be read to those arrested to make them aware of their constitutional rights.

34. Rights of the Accused: The Fifth Amendment
The Fifth Amendment also includes
Protection against double jeopardy
Protects people from being tried twice for same crime
Eminent domain
The government can take private property for public use
however, the Fifth Amendment requires demonstration of public purpose and fair payment

35. Rights of the Accused: The Sixth Amendment
Provides the right to counsel
Gideon v. Wainwright (1963)
People facing imprisonment have the right to an attorney, even if they cannot afford one (whereupon they will be appointed a public defender)
Public defender policies vary by state
some public defenders are full-time employees of the state
some are hired by contract or case
some states require the contribution of pro bono hours from all attorneys in the state
In the last example, some larger firms have attorneys who work full-time on pro bono work, covering the mandatory hours of their colleagues, who can then focus on their own work exclusively.
Competence among public defenders has been a point of contention in several high-profile cases, including death penalty cases, where adequate representation takes on the highest order of importance.

36. Rights of the Accused: The Eighth Amendment
Prohibits
Excessive bail
Excessive fines
Cruel and unusual punishment
The death penalty is allowed, but it must follow due process
The states decide whether to allow the death penalty
If allowed, the states determine the execution method or methods
There is currently a debate over what forms of execution are allowable.
No physician is allowed by any medical board to assist with an execution.
In 2010, an inmate was killed by firing squad (Utah and Oklahoma allow this form of execution).
As of 2016, 31 states allow the death penalty and 19 have banned it.

37. The Right to Privacy The right to privacy
Not explicitly written in the Constitution
But it has been interpreted as resting in the Fourth Amendment, facilitated by Ninth Amendment
The right to privacy covers controversial matters such as
Birth control
Abortion
Sexual orientation
The right to die
The Ninth Amendment says rights exist that are not explicitly delineated in the Constitution.
States and legal scholars have debated whether state legislatures should create laws and decide the validity of those laws on other grounds since there is no explicit right.
Revisit the specific points in the Ninth and Fourth Amendments that form the legal basis for the right to privacy. Students can research and discuss their findings in small groups in class.

38. Incarceration Statistics in the United States
Despite many freedoms protected by the Bill of Rights, the United States imprisons more people than any other nation
African Americans are 13 percent of the U.S. population, but make up 38 percent of prison population 
People convicted of violent crimes make up the majority of prison inmates
Drug offenders comprise the second largest group

42. Public Opinion Poll: Q1
Do you support limitations on some civil liberties (such as freedom of speech and freedom from searches and seizures) if limits on these liberties may decrease the potential of terrorist threat or increase security?
strongly support
support
oppose
strongly oppose 42

43. Public Opinion Poll: Q2
Should the U.S. Congress pass legislation that makes it a crime to burn the American flag?
yes no 43

44. Public Opinion Poll: Q3
Should it be legal to post personal information (address, phone numbers, where children attend school, etc.) about individuals without their permission on Facebook, Twitter, YouTube, and other highly popular websites?
yes no 44

45. Public Opinion Poll: Q4
Should law enforcement agencies (any organization from the FBI to campus police) collect user IDs and information about people posting threatening statements or openly discussing any kind of illegal activity online (Facebook, Twitter, or other sites)?
yes no 45

46. Public Opinion Poll: Q5
Should a teacher in a public school be allowed to begin class with a prayer?
yes no 46

47. Public Opinion Poll: Q6
There is quite a bit of discussion in American politics about the legality of abortion. Which one of the following opinions best agrees with your view on this issue?
Abortions should never be permitted.
Abortions should be permitted only in cases of rape or incest or if the woman's life is in danger.
Abortions should always be permitted.
Abortions should be allowed whenever a doctor and patient decide it is appropriate. 47

48. Additional Information
Following this slide, you will find additional images, figures, and tables from the textbook. 48

49. Separation between Church and State: School Prayer
The First Amendment affects everyday life in a multitude of ways. Because of the amendment’s ban on state-sanctioned religion, the Supreme Court ruled in 2000 that student-initiated public prayer at school is illegal. Pregame prayer at public schools also violates the establishment clause of the First Amendment.

50. Free Exercise Clause: Samantha Elauf
Does it violate the free exercise clause if a private business does not allow its employees to wear religious headscarves to work? In 2015, the Court ruled in favor of Samantha Elauf, declaring that the firm of Abercrombie and Fitch could not make an applicant’s religious practice a factor in employment decisions.

51. The First Amendment and Freedom of Speech and of the Press
During the 2008 presidential primaries, the conservative organization Citizens United released a documentary criticizing Hillary Clinton. A lower court found that ads for the film violated the ban on corporate funding of ads for or against a particular candidate by the Bipartisan Campaign Reform Act of 2002 (BCRA). In 2010 the Court declared the BCRA ban unconstitutional under the First Amendment.

52. Fighting Words and Hate Speech: Students’ Speech
The Supreme Court has ruled that high school students’ speech can be restricted. In a 2007 case involving a student who displayed the banner shown here, the Court found that the school principal had not violated the student’s right to free speech by suspending him.

53. Freedom of the Press
Should reporters be obligated to reveal sources if the information will aid a government investigation? In 2005, New York Times reporter Judith Miller served almost three months’ jail time for refusing to reveal a confidential source.

54. The Second Amendment and the Right to Bear Arms
A string of recent mass shootings in the United States, including the shooting of nine people during a prayer service at a church in Charleston, South Carolina, has prompted calls for legislation to limit the availability of guns.

55. The Fourth Amendment: Searches and Seizures
Police Search
The Fourth Amendment: Searches and Seizures
Under what circumstances can the police search an individual’s car? The Fourth Amendment protects against “unreasonable searches and seizures,” but the Supreme Court has had to interpret what is unreasonable. 55

56. Rights of the Criminally Accused: “Stop and Frisk”
The policing tactic of “stop and frisk” is intended to protect communities from violent crime, but opponents view it as invasion of privacy and unreasonable search without sufficient cause. Furthermore, opponents charge that such tactics damage the relationship between the police and the community.

57. The Eighth Amendment and Cruel and Unusual Punishment
Opponents argue that the death penalty constitutes cruel and unusual punishment. In recent years the use of lethal injection has come under scrutiny after some troubling executions where the process was drawn out and painful, in part due to faulty administration. In 2015, the Supreme Court upheld the use of lethal injection.

58. Thinking Critically about the Future of Civil Liberties
Director of national intelligence James Clapper and other defense officials testified before Congress following revelations in 2013 of extensive government surveillance programs. Electronic monitoring allows the government to gather vast quantities of data from private communications.

59. Bill of Rights Announcement
The Bill of Rights’ Ratification
The promise of a Bill of Rights was instrumental to securing ratification of the Constitution. One amendment adopted by the House and Senate in 1791 was finally ratified by the states in This amendment stipulates that no law changing salaries of Congress members can take effect until after an election has intervened. 59

60. Incorporation of the Bill of the Rights into the Fourteenth Amendment
TABLE 4.3 Incorporation of the Bill of Rights into the Fourteenth Amendment

61. Incorporation of the Bill of the Rights into the Fourteenth Amendment, Part 2
TABLE 4.3 Incorporation of the Bill of Rights into the Fourteenth Amendment

62. Separation between Church and State: Indiana’s License Plate
Despite the establishment clause, the United States still uses the motto “In God We Trust” and calls itself “one nation, under God.” This Indiana license plate was introduced in Do you think its reference to God is a violation of the separation of church and state?

63. Guns Laws and Gun Trafficking
Figure 4.1: Gun Ownership by State
FIGURE 4.1 Gun Laws and Gun Trafficking
Although state gun laws must conform to the Second Amendment as interpreted by the U.S. Supreme Court, laws concerning gun sales and ownership vary widely from state to state. It is much more difficult to buy a gun in, say, New York or California than in Texas or Kentucky. This map shows the percentage of the adult population in each state owning a gun in 2013.
SOURCE: Bindu Kalesan, Marcos D. Villarreal, Katherine M. Keyes, and Sandro Galea, “Gun Ownership and Social Gun Culture,” June 29, 2015, (accessed 6/13/16). 63

64. The Rights of the Accused from Arrest to Trial
Table 4.4: The Rights of the Accused from Arrest to Trial
TABLE 4.4 The Rights of the Accused from Arrest to Trial 64

65. Roe v. Wade
One of the most important cases related to the right to privacy was Roe v. Wade, which established a woman’s right to seek an abortion. However, the decision has remained highly controversial, with opponents arguing that the Constitution does not guarantee this right.

66. Freedom of Speech: The Westboro Baptist Church
Should the First Amendment’s protection of free speech apply even when that speech is seen as offensive? In 2011 the Supreme Court ruled 8–1 that members of the Westboro Baptist Church had a right to picket soldiers’ funerals to demonstrate what they take as a sign of God’s disapproval of homosexuality.

67. Civil Liberties around the World
America Side by Side: Civil Liberties around the World
Elections are only a small part of what makes a democracy a democracy. Liberal democracies—a term political scientists use to refer to countries they consider fully democratic—also have extensive civil rights and civil liberties.
Freedom House, an independent watchdog organization focusing on freedom and democracy around the world, collects data on political rights and civil liberties from each country. They measure freedom of expression and belief, respect for the “rule of law,”a the right to organize and form associations, and personal autonomy and individual rights to rank countries as free, partly free, and not free (shown below).
All countries vary in how they prioritize specific liberties. The United States is generally comparable to other democracies when it comes to the freedom of expression and belief and the right to organize and form associations, but the United States places exceptionally high emphasis on personal autonomy and individual rights. In comparison, Latvia is ranked slightly higher on the right to organize and form associations, but concerns regarding the treatment of women and minorities mean their individual rights score is lower. 67