Civil Liberties
Chapter 5
What are civil liberties?
• Civil liberties are the personal rights and
freedoms that the government cannot
abridge, either by law, constitution, or
judicial interpretation.
– They place limitations on the power of
government to restrain or dictate how
individuals act.
• Civil liberties are found in the Bill of Rights
– The first ten amendments to the Constitution
The (Selective) Incorporation
Doctrine
• Over time, the Bill of Rights are applied to
the states due to the Fourteenth
Amendment.
– Fourteenth Amendment (1868): “No state shall
… deprive any person of life, liberty or
property, without due process of law.”
The (Selective) Incorporation
Doctrine
• Beginning in the 1920s, the Court starts handing
down decisions that gradually “incorporate”
almost all of the protections of the Bill of Rights.
– Gitlow vs. New York (1925)
• States could not abridge free speech due to Due Process Clause
– Near vs. Minnesota (1931)
• Due Process Clause extended to cover freedom of the press.
• Not all of the Bill of Rights have been
incorporated.
Freedom of Religion
• The First Amendment sets two prohibitions
on government regarding religion:
– Congress shall make no law about
• Establishment of religion
• Free exercise of religion
Freedom of Religion
• Most controversial rulings regarding No
Establishment Clause?
– School prayer
– Bible-reading in public schools
• Engel vs. Vitale (1962)
– The Court ruled that government has no
business composing official prayers.
Freedom of Religion
•
What constitutes establishment?
– In Lemon vs. Kurtzman (1971), the court
devised a test to determine if a law affecting
religious activity is constitutional.
– To be constitutional, the state law
1. Must have a secular purpose
2. Must neither advance nor inhibit religion
3. Must not foster “an excessive government
entanglement with religion.”
Freedom of Speech
• Anti-government speech
– Schenck vs. U.S. (1919)
• Congress allowed to restrict speech that would cause
a “clear and present danger” to society
– Brandenburg vs. Ohio (1969)
• Court devises “direct incitement” test
– Advocacy of illegal action can only be punished if there is
a likelihood of of imminent harm
Freedom of Speech
• Libel and Slander
– Libel is a written statement that defames
someone’s character
– Slander is spoken defamation of character.
• In order to win a libel suit, must prove that
statements made against you were false.
Freedom of Speech
• Libel and Slander
– New York Times vs. Sullivan (1964)
• For a public figure to prove libel or slander,
statements against them must have been made with
‘knowledge of falsity’ and ‘actual malice’
Freedom of Speech
• Obscenity and Pornography
– Generally are not protected speech, but
the Court has a hard time defining
pornography
– Roth vs. U.S. (1957)
• Obscene material is “utterly without
redeeming social importance”
• Must appeal entirely to prurient interest
when applying contemporary community
standards
– Miller vs. California (1973)
• Obscene material contains patently offensive
sexual conduct and lacks serious literary,
artistic, political or scientific value (the
LAPS test)
Pornography is
difficult to define,
but "I know it when I
see it."
Freedom of Speech
• Types of protected speech
include:
– Flying the red communist
flag
– Wearing black armbands to
protest the Vietnam War
• Tinker vs. DesMoines
Independent School District
(1969)
– Burning the American flag
• Texas vs. Johnson (1989)
– Burning a cross
Rights of Criminal Defendants
• The Fourth Amendment was designed to
prevent the national government from
making general searches of citizens.
– Protects people from “unreasonable searches
and seizures”
– Requires that no warrants shall be issued
without probable cause
Rights of Criminal Defendants
• The police can search a person and/or
property without a warrant when:
– Someone is arrested
– Something is in plain view of the accused
– Something or some place is in immediate
control of the accused
– Consent to search is given by roommates or
other household members
Rights of Criminal Defendants
• The police can
– Stop and frisk individuals under reasonable
suspicion
– Search drunk drivers
– Search open fields
• In general?
– The police may search without a warrant any
place that does not have a reasonable
expectation of privacy.
Rights of Criminal Defendants
• The Fifth Amendment
prevents self-incrimination:
“I take the Fifth.”
• Freedom from incrimination
also means that involuntarily
obtained evidence cannot be
used at trial.
– Miranda vs. Arizona (1966)
• Confessions cannot be coerced.
• All suspects must be read their
rights.
Rights of Criminal Defendants
• The Fourth and Fifth Amendments led to
the Exclusionary Rule
– Weeks vs. United States (1914)
• Illegally obtained evidence cannot be admitted at
trial
Rights of Criminal Defendants
•
The Sixth Amendment …
– guarantees a right to counsel.
• Gideon vs. Wainwright (1963)
– A lawyer is a necessity in a
criminal case, not a luxury.
– The state must provide a lawyer to
poor defendants in felony cases.
•
•
The Court has extended the right to
counsel any time there is a
possibility of prison/jail term.
The Sixth Amendment provides
– for a speedy and public trial by an
impartial jury.
– a right to confront witnesses
(though not absolute)
Rights of Criminal Defendants
• The Eighth Amendment
prohibits cruel and
unusual punishment.
– Furman vs. Georgia (1972)
• Death penalty, as then
applied, constituted cruel
and unusual punishment
because it was imposed in
an arbitrary manner
– Gregg vs. Georgia (1976)
• Georgia’s death penalty
statute was rewritten to
comply with Court
concerns, ruled
constitutional by Court
Right to Privacy
• Access to Birth Control
– Griswold vs. Connecticut
(1965)
• First, Third, Fourth, Fifth
and Fourteenth
Amendments create a zone
of privacy
• Zone includes a married
couple’s right to plan a
family
– Right to birth control later
extended to unmarried
persons
Right to Privacy
• Abortion
– Roe vs. Wade (1973)
• Opinion divides pregnancy
into trimesters
– First trimester: A
woman has an absolute
right to an abortion
– Second trimester: State
may regulate abortion
procedure to save a
woman’s health
– Third trimester: State
can prohibit abortion.
“Jane Roe” is Norma McCorvey
-Now runs an anti-abortion ministry
Right to Privacy
• Homosexuality
– Lawrence vs. Texas (2003)
• Texas’ sodomy law is unconstitutional because it
violates the 14th Amendment