CHAPTER 4:
CIVIL LIBERTIES
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Civil Liberties
Provide protections from the government
The Bill of Rights: added because colonists feared
a tyrannical government.
While the Bill of Rights protected the people
from the national government it did not
protect the people from state governments.
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Incorporation Theory
The Fourteenth Amendment (1868): provided
that no state could “deprive any person of life, liberty or
property without due process of law”
Incorporation: An interpretation of the Constitution by
the Supreme Court that most of the protections of the Bill of
Rights apply to state governments through the Fourteenth
Amendment’s due process clause
Gitlow v. New York (1925): first real case to
incorporate civil liberties embodied in the Bill of Rights to
the states
• Supreme Court: states don’t have absolute authority to restrict speech
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Freedom of Religion
First Amendment: Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof
Establishment Clause: prohibits national government from
establishing a national religion
• Engel v. Vitale (1962): nondenominational prayer cannot be read in
public schools
• Lemon test: government statute is unconstitutional if the statute has
no secular purpose, if its principal or primary effect advances or
inhibits religion, or if it fosters ‘an excessive government
entanglement with religion’”
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Freedom of Religion,
cont’d
Free Exercise Clause: Guarantees the free exercise of
religion; restrained when religious practices interfere with
public policy
• Sherbert v. Verner (1963): Supreme Court declared that
only a “compelling state interest” could justify an exception on the
basis of religion
• Employment Division v. Smith (1990): Supreme Court
declared a government interested in applying its neutral laws over
religious objections may do so based on any legitimate state interest-
a very low bar
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Freedom of Expression
First Amendment: Congress shall make no law…
abridging the freedom of speech, or of the press.
New York Times v. U.S. (1971)
• No Prior Restraint: U.S. government could not require
material be approved before it can be published
Protection of Symbolic Speech: symbols, signs, and
other methods of expression generally considered to be
protected
• Texas v. Johnson (1989): Supreme Court declared flag
burning constitutional- “government may not prohibit the
expression of an idea simply because society finds the
idea itself offensive or disagreeable”
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Restrictions on Expression
Clear and Present Danger
• Schenck v. U.S. (1919): words used could create a
clear and present danger that they will bring about
substantive evils that congress seeks to prevent
Direct Incitement
• Brandenburg v. Ohio (1969): advocacy of illegal
action is protected by First Amendment unless imminent
lawless action is intended and likely to occur
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Restrictions on Expression
Obscenity and Pornography
• Miller v. California (1973): created SLAPS test
• SLAPS test: to determine if material is obscene-patently
offensive, appeals overtly to prurient (lustful) interests,
devoid of political, artistic, literary, or scientific value
Hate Speech
• Virginia v. Black (2003): most hate speech is
protected; however, cross burning is not protected under
First Amendment because its purpose is to intimidate
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Freedom of the Press
Libel: written defamation of character
• New York Times v. Sullivan (1964): created more
stringent test for libel
Must prove all three:
• Actual Malice
• Knowingly False
• Reckless Disregard for the Truth
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Right to Bear Arms
Second Amendment: A well regulated militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
D.C. v. Heller (2008): Second Amendment forbids
government from banning all forms of handgun possession in
home for self-defense- individual right to bear arms
McDonald v. Chicago (2010): incorporated Second
Amendment to the states
• Governments can still regulate commercial sale of handguns and
prohibit possession by felons and mentally ill, as well as such places
as school buildings.
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Rights of the Accused
Fourth Amendment: The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.
Mapp v. Ohio (1961)
• Exclusionary Rule: evidence seized illegally must be excluded
from admission in court
• Good Faith Exception: if a search warrant is invalid through no
fault of the police, evidence obtained may be admissible in court
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Rights of the Accused
Fifth Amendment: No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or in public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life and limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law
No compulsory self-incrimination
• Miranda v. Arizona (1966): an individual who is
arrested must be read a statement that explains the
person’s right to remain silent and the right to an attorney.
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Rights of the Accused
Sixth Amendment: In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Gideon v. Wainwright (1963): “lawyers in
criminal courts are necessities, not luxuries”
• Must be provided with a lawyer if declared
indigent (poor)
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Rights of the Accused
Eighth Amendment: Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted.
Atkins v. Virginia (2002): “mentally retarded” cannot
be executed
Update: Excessive bail has now been incorporated to the
States by the Supreme Court in Timbs v. Indiana (2019).
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Privacy Rights
Ninth Amendment: The enumeration in the
Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people.
Griswold v. Connecticut (1965): Supreme Court
struck down an anti-contraceptive law- including a ban on
disseminating information regarding contraception to a
married couple planning a family.
• Zone of privacy: interpreted from several of the Bill of Rights,
including First, Third, Fourth, Fifth and also Fourteenth Amendment
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Privacy Rights and
Abortion
Roe v. Wade (1973): Supreme Court held that
governments could not totally prohibit abortions because this
violates a woman’s right to privacy. Government action was
limited depending on the stage of the pregnancy.
Planned Parenthood v. Casey (1992): “undue burden”
test- does the restriction (regardless of trimester) place an
undue burden on a woman’s right to privacy?
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UPDATE:
Privacy Rights and Abortion
Dobbs v. Jackson Women’s Health Organization (2022)
• Overturned both Roe v. Wade (1973) and Planned Parenthood v.
Casey (1992)
• No right to an abortion under U.S. Constitution
• Returned abortion issue back to the states
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Americans’
Attitudes on
Rights That
Should Be
Guaranteed
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