Chapter 4
Chapter 4: Civil Liberties
Chapter Review
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. For example, the freedom of speech does not allow us to yell “Fire!”
in a movie theater.
Civil Liberties and 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 electorate.
- In order to assuage the fears of the Antifederalists, the first Congress ratified
ten protections of individual liberties, which became the first ten Amendments to
the Constitution.
- A key provision in the Bill of Rights is these protections
are only guaranteed from the national government, as they did not apply to the states.
This view was upheld by the Supreme Court from constitutional ratification until
the Civil War.
- Following the Civil War, Congress passed the Thirteenth, Fourteenth, and Fifteenth
Amendments (known as the Civil War Amendments), which would dramatically influence
how the Bill of Rights applied to the states.
- Congress passed these amendments with the intent to expand civil liberties to include
protection from state governments as well, but these laws were quickly muted by
the Supreme Court.
- Over time, the Supreme Court’s opposition to this 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.
The First Amendment
- The Freedom of Speech, Assembly and Press: More Protected Freedoms
- The Supreme Court’s interpretation of freedom of speech has evolved over time. Political
speech is now strongly protected, though it is not absolute. In particular, the
Court does not allow free speech if it fails to pass the clear and present danger
test, a standard developed in 1925. Over time, the Court has moved toward greater
protection of free speech, establishing the direct incitement test, which was developed
in 1969.
- 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.
However, symbolic speech is limited: draft card burning is deemed to conflict with
Congress’s right to raise an army, and political campaign contributions are capped
at a certain level.
- 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.
- 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. The Court has not allowed
the government to exercise prior restraint even in the case of leaked classified
documents to the press. A gag order in a court case does limit the press from describing
facts about the case, though these are only issued if the judge believes that the
media contact will undermine a fair trial.
- Freedom of Speech, Assembly and Press: Less Protected Freedoms.
- 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.
- 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.
- 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 prohibits Congress from favoring any religion.
- It has been difficult for the Court to determine where the boundary between church
and state lies: for example, prayer in public schools used to be commonplace until
1962, when it was disallowed.
- Other areas of controversy include displaying
the Ten Commandments in public buildings, giving tax breaks to churches, and subsidies
for private religious schools.
- The Courts developed the Lemon test, which prohibits
“excessive government entanglement in religion,” to help determine when the establishment
clause is being violated.
- The free exercise clause prohibits Congress from interfering with religious practice.
- The Court has generally supported the right to exercise freely, though there are
significant limitations.
- While the Amish cannot be compelled to send their children to school beyond the
eighth grade, they are still subject to traffic regulations.
- Religiously based
“conscientious objector” status is generally permissible to avoid the draft, but
polygamy is not allowed, even for religious reasons.
- For Congress to restrict religious practices, the Court has required that the government
show a “compelling state interest.”
The Second Amendment
- Up until 2008, the Courts have 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 -carrying rights.
- A notable exception is the Brady Bill, which required a background check and waiting
period before purchasing a handgun.
- In 2008, the Supreme Court struck down a Washington, DC, handgun ban, though the
ruling stopped short of extending the Second Amendment protections to the states.
The Rights of Criminal Defendants
The Fourth, Fifth, Sixth, and Eighth Amendments provide criminal defendants a number
of civil liberties restricting what the government can do, based on the ideas of
fairness and justice. Based on the Magna Carta, the rights of due process are controversial;
as we have difficulty defining exactly what is fair or just.
- The Fourth Amendment: Unreasonable Searches and Seizures
- The Fourth Amendment protections from “unreasonable” search and seizure become difficult
to definer 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 are.
- 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.
- The Fifth Amendment: Self-Incrimination
- The Fifth Amendment protects individuals from incriminating themselves in court.
-
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
or her 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 particular
crime. Double jeopardy has been extended to state law since 1969.
- Exceptions to double jeopardy occur if: the suspect can be tried in the federal
court and state court on the same crime or if the suspect is found innocent of criminal
charges, civil charges can still be brought against him or her.
- The Sixth Amendment: Right to Legal Counsel and a Jury Trial
- The right to an attorney has been strengthened over time, and it 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.
- In addition, individuals have a right to fair and speedy trial, meaning that they
cannot be held indefinitely without trial.
- The Eighth Amendment: Cruel and Unusual Punishment
- At the time of the founding, the death penalty was a widely accepted punishment—even
for horse thievery. As times changed, support for the death penalty waned.
- The Court has struck down state laws for mandatory death penalty in cases of murder
or rape.
- Recently, the Court has stated that the mildly retarded, juveniles,
and child rapists cannot be put to death either.
- Extensive research has found that the death penalty is inconsistent in its application,
particularly in relation to the race of the victim: someone who kills a white person
is far more likely to be sent to death row than someone who kills a black person.
Privacy Rights
- Privacy rights are never explicitly mentioned in the Constitution: they were established
in 1965 in the case of Griswold v. Connecticut, which established 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.
- The right to privacy formed the basis of Roe v. Wade, which legalized abortion in
1973.
- Privacy rights are also extended to the right to die, which has been subject
to intense debate: both for those in “persistent vegetative states” and those who
are terminally ill and wish to receive assistance in committing suicide.