1. ●
Civil Liberties
Chapter 5
Rebecca Mendelsohn, Will Kumi, and Conrad
Black.
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2. Bill of Rights
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When the Bill of Rights , which contains many of
the most important protections of individual
liberties, was written, its drafters were not think
about issues such as abortion, gay rights, physician
assisted suicide , or any other personal liberties .
Civil Liberties- The personal guarantees and
freedoms that the federal government cannot
abridge by law, constitution or judicial
interpretation.
Civil Rights- The government protected rights of
individuals against arbitrary or discriminatory
treatment.

4. The First Constitutional Amendments: The
Bill of Rights
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1787 – Most state constitutions explicitly protected
a variety of personal liberties.
Speech, religion, freedom from unreasonable
search and seizure, trial by jury
New Constitution shifted power to the national
government
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Would the national government uphold
these liberties?

5. The First Constitutional Amendments: The
Bill of Rights
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Bill of Rights addition defeated unanimously at the federal convention
Federalists argued that a bill of rights was unnecessary.
Already included by states
Federalists believed it was foolhardy to list things that the
national government had no power to do.
Some Federalists supported the idea such as Thomas
Jefferson
James Madison did not support until politics intervened
He sought House seat in a district that was largely AntiFederalist in nature.
Made good on his promise and became prime author of the
Bill of Rights

6. The First Constitutional Amendments: The
Bill of Rights
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Bill of Rights
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1789 Congress sent proposed Bill of Rights to the states for
ratification, which occurred in 1791
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The first ten amendments to the Constitution contain
numerous specific guarantees:
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Free speech, press and religion
9th and 10th amendments highlighted Anti-Federalist fears
Ninth Amendment
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“The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.”
Tenth Amendment
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Reiterates that powers not delegated to the national government are
reserved to the states or to the people.

7. The Incorporation Doctrine: The Bill of Rights Made
Applicable to the States
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Bill of Rights intended to limit powers of the
national government
Barron v. Baltimore (1833)
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Court ruled that the national Bill of Rights limited only
the actions of the U.S. government and not those of the
states.
But decision suggested the possibility that some or all
of the protections might be interpreted to prevent state
infringement of those rights.

8. The Incorporation Doctrine: The Bill of Rights Made
Applicable to the States
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14th Amendment
Due process clause
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Over the years this clause has been construed to guarantee
to individuals a variety of rights.
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Economic liberty to criminal procedural rights and
protection from arbitrary governmental action
In 1897, the Court began to increase its jurisdiction over the states by
holding them to a substantive due process standard
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Substantive due process
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Judicial interpretation of the Fifth and Fourteenth
Amendments’ due process clause that protects citizens
from arbitrary or unjust laws

9. The Incorporation Doctrine: The Bill of Rights Made
Applicable to the States
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Incorporation Doctrine
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An interpretation of the Constitution that holds that the due process
clause of the Fourteenth Amendment requires that state and local
governments also guarantee those rights
 Gitlow v. New York (1925)- States were not completely free to limit
forms of political expression. Gitlow was the first step in the slow
development of what is called the incorporation doctrine.
 Near v. Minnesota (1931) was the first case in which the Supreme Court
found that a state law violated freedom of the press as protected by the First
Amendment.
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Selective Incorporation
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A judicial doctrine whereby most but not all of the protections found
in the Bill of Rights are made applicable to the states via the
Fourteenth Amendment
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Palko v. Connecticut (1937)
Fundamental Freedoms
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Those right defined by the Court to be essential to order, liberty and
justice

11. First Amendment Guarantees: Freedom of
Religion
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Framers did not support a national church or
religion.
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Article VI
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Provides that “no religious Test shall ever be required
as a Qualification to any Office or Public Trust under
the United States.”
First Amendment
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Part of the Bill of Rights that imposes a number of
restrictions on the federal government with respect to
the civil liberties of the people, including freedom of
religion, speech, press, assembly, and petition.

12. First Amendment Guarantees: Freedom of
Religion
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Establishment Clause
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The first clause in the First Amendment
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Prohibits the national government from establishing a national
religion
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Engel v. Vitale (1962)
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Lemon v. Kurtzman (1971)
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The Lemon Test- Court tried to create a test for laws dealing with
religious establishment issues. According to the Lemon test, a practice or policy
was constitutional if it: 1) had a secular purpose; 2) neither advanced nor
inhibited religion; and, 3) did not foster an excessive government
entanglement with religion. However, since the early 1980s, the Court has
often sidestepped the test altogether and has appeared more willing to lower
the wall between church and state so long as school prayer is not involved.
Cases during the 1990s lowered the wall between church and state. For more than a
quarter century, the Supreme Court basically allowed “books only” as an aid to religious
schools, noting that the books go to children, not to the schools themselves. In recent years,
the Court now appears willing to support programs so long as they provide aid to religious
and nonreligious schools, and the money goes to people who exercise free choice over how
it is used.

13. The Free Exercise Clause
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The second clause of the First Amendment
Prohibits the U.S. government from interfering with a citizen’s right to practice his or
her religion
The Supreme Court has interpreted the Constitution to mean that governmental
interests can outweigh free exercise rights. State statutes barring the use of certain
illegal drugs, snake handling, and polygamy—all practices of particular religious sects
—have been upheld as constitutional when states have shown compelling reasons to
regulate these practices. Nonetheless, the Court has made it clear that the free
exercise clause requires that a state or the national government remain neutral toward
religion.
Nonetheless, the Court has made it clear that the free exercise clause requires that a
state or the national government remain neutral toward religion. In 1993, for example,
the Court ruled that members of the Santería Church, an Afro-Cuban religion, had the
right to sacrifice animals during religious services.

14. First Amendment Guarantees: Freedom of Speech, Press,
and Assembly
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Democracy depends on a free exchange of
ideas.
Volatile area of constitutional interpretation
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Alien and Sedition Acts
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Prior restraint: Constitutional doctrine that prevents
the government from prohibiting speech or
publication before the fact; generally held to be in
violation of the First Amendment

15. First Amendment Guarantees: Freedom of Speech and
Press
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Slavery, the Civil War, and Rights Curtailments
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Lincoln suspended the free press provision of the First
Amendment as well as the writ of habeas corpus.
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Ordered the arrest of the editors of two New York papers who
were critical of him
Newspaper editor jailed by a military court without having any
charges brought against him
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Appealed to the Supreme Court: Ex parte McCardle (1869)
Congress enacted legislation prohibiting the Court from issuing a
judgment in any cases involving convictions for publishing
statements critical of the U.S.
Article II gives Congress power to determine the jurisdiction of the
Court.

16. First Amendment Guarantees: Freedom of Speech and
Press
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WWI
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Anti-governmental speech
Clear and Present Danger Test
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Test articulated by the Supreme Court in Schenck v. U.S. (1919) to draw
the line between protected and unprotected speech
The Court looks to see “whether the words used” could “create a clear
and present danger that they will bring about substantive evils” that
Congress seeks “to prevent.”
Anti-war leaflets okay during peace, but not permissible during war – too
dangerous
But what constituted a danger?
Direct Incitement Test
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A test articulated by the Supreme Court in Brandenburg v. Ohio (1969) that
holds that advocacy of illegal action is protected by the First
Amendment unless imminent lawless action is intended and likely to
occur

17. First Amendment Guarantees: Freedom of Speech and
Press
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Protected Speech and Publications
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Prior Restraint
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Court has made it clear that it will not tolerate prior
restraint of speech
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New York Times Co. v. Sullivan (1971)
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Pentagon Papers case
Supreme Court ruled that the U.S. government could not
block the publication of secret Department of Defense
documents illegally furnished to the Times by anti-war
activists.
Nebraska Press Association v. Stuart (1976)
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Court ruled in favor of press’s right to cover trial.

18. First Amendment Guarantees: Freedom of Speech and
Press
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Symbolic Speech
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Symbols, signs, and other methods of expression
generally also considered to be protected by the First
Amendment
Stromberg v. California (1931)
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Upheld flying of red flag (symbol of opposition to
U.S. government)
Tinker v. Des Moines Independent Community District School
(1969)
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Court upheld wearing of black armbands as protest
against Viet Nam War
Gregory Johnson and flag burning

19. Hate Speech, Unpopular Speech, Speech Zones
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R.A.V. v. City of St Paul (1992)
Two-thirds of colleges and universities have banned a variety
of forms of speech or conduct that creates or fosters an
intimidating, hostile or offensive environment on campus.
Some have created free speech zones.
 These restrict the time, place or manner of speech
 Implication that speech can be limited on other parts of
campus
 ACLU a critic a such policies; filed number of suits, but none
has reached the Supreme Court

20. Unprotected Speech and Publications
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Libel
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False written statements or written statements tending
to call someone’s reputation into disrepute
Slander
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Untrue spoken statements that defame the character of
a person
New York Times Co. v. Sullivan (1964)
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The Supreme Court concluded that “actual malice”
must be provided to support a finding of libel against a
public figure.
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Concept of malice can be difficult and confusing
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“knowledge of falsity,” “reckless disregard for the
truth”
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Malice standards make it difficult for public officials
or persons to win libel cases.

21. Unprotected Speech and Publications
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Fighting Words
 Chaplinsky v. New Hampshire (1942)
 In the 1942 case of Chaplinsky v. New Hampshire, the Court stated
that fighting words, or words that, “by their very utterance inflict
injury or tend or incite an immediate breach of peace” are not
subject to the restrictions of the First Amendment.
Obscenity
 Roth v. U.S. (1957)
 Congress concerned with obscenity on the Internet
 Communications Decency Act (1996)
 Prohibited transmission of obscene materials over the Internet to
anyone under age 18
 Reno v. ACLU (1997)
 Law too vague; violated First Amendment
 Child Online Protection Act (1998)
 Ashcroft v. Free Speech Coalition (2002)
 Court has continued to strike down as unconstitutional Congress’s latest
efforts to limit cyberporn and has blocked enforcement of COPA

22. Freedoms of Assembly and Petition
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DeJonge v. Oregon (1937)
 Incorporated the First Amendment’s freedom of
assembly clause
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“Peaceful assembly for lawful discussion cannot be made a crime,” Chief
Justice Charles Evans Hughes wrote in the 1937 case of DeJonge v.
Oregon, which incorporated the First Amendment’s freedom of
assembly clause.54 Despite this clear declaration, and an even more
ringing declaration in the First Amendment, the fundamental freedoms
of assembly and petition have been among the most controversial,
especially in times of war.
Among the most controversial, especially in
times of war

23. The Second Amendment: The Right to
Keep and Bear Arms
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Colonial times
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Distrust of standing armies evident
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1934 – Congress passed the National Firearms Act
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Required all white men to keep and bear arms
Local militias
2nd Amendment passed to make sure that Congress could not pass
laws to disarm state militias – appeased Anti-Federalists
Response to organize crime
U. S. v. M r (1939) upheld the constitutionality of the act
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This was the last time the Supreme Court directly addressed the
Second Amendment.
Brady Bill
Ban on Assault Weapons (Clinton; ten year time limit)
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Not renewed by Bush or the Republican-controlled congress prior to the
2004 elections when it expired

24. The Rights of Criminal Defendants
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Article I of the Constitution guarantees a number of rights for those accused of
crimes. The Constitution guarantees writs of habeas corpus, court orders in which
a judge requires authorities to prove that a prisoner is being held lawfully. Habeas
corpus rights also imply that prisoners have a right to know what charges are
being made against them. Article I of the Constitution also prohibits ex post facto
laws, or laws that apply to actions committed before the laws were passed. And,
Article I prohibits bills of attainder, legislative acts that inflict punishment on
individuals without judicial action.
Due process rights
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Procedural guarantees provided by the Fourth, Fifth, Sixth and
Eighth Amendments for those accused of crimes
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Warren Court made several provisions of the Bill of Rights dealing
with the liberties of criminal defendants (those charged but not yet
tried) applicable to the states through the Fourteenth Amendment.

25. Fourth Amendment
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“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.”

26. Fourth Amendment
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Over the years, the Court has interpreted the Fourth Amendment to allow the
police to search:
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The person arrested
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Things in plain view of the accused person
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Places or things that the arrested person could also touch or reach or are
otherwise in the arrestee’s immediate control.
Court has ruled that police must knock and announce their presence before
entering a home or apartment to execute a search
2001 ruling on thermal imaging drug evidence (without a warrant) was violation of
Fourth Amendment – binoculars or helicopters okay – why? Just plain eyesight
used – not a new technology
2006, the Court ruled that the police could not conduct a warrantless search of a
home if one of the occupants objected
Drug testing difficult search and seizure issue
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Chandler v. Miller (1997)
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Public employees enjoy more protection in the area of drug testing than do
employees of private enterprises
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But what about drug testing of pregnant women?
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2001, the Supreme Court said no. This is unconstitutional.

27. Fifth Amendment: Self-incrimination and Double
Jeopardy
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Imposes a number of restrictions on the federal government with respect
to the rights of persons suspected of committing a crime.
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“No person shall be…compelled in any criminal case to be a witness against
himself.”
Miranda v. Arizona (1966)
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Miranda rights
Provides for indictment by a grand jury and protection against selfincrimination
Prevents the national government from denying a person life, liberty, or
property without the due process of law
It also prevents the national government from taking property without fair
compensation
Double jeopardy clause
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Protects individuals from being tried twice for the same offense

28. Fourth and Fifth Amendments and the
Exclusionary Rule
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Judicially created rule that prohibits policy from using illegally
seized evidence at trial.
Weeks v. U.S. (1914)
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The Court reasoned that allowing police and prosecutors to
use a tainted search would only encourage that activity.
Mapp v. Ohio (1961)
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Warren Court ruled that “all evidence obtained by searches
and seizures in violation of the Constitution, is inadmissible in
a state court.”
The Court, despite its conservative reputation, has continued
to uphold the exclusionary rule.

29. Sixth Amendment and the Right to Counsel
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Sets out the basic requirements of
procedural due process for federal courts to
follow in criminal trials
 These include speedy and public trials, impartial
juries, trials in the state where the crime was
committed, notice of the charges, the right to
confront and obtain favorable witnesses, and
the right to counsel
-Gideon v.
Wainwright (1936)

30. The Sixth Amendment and Jury Trials
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Provides that a person accused of a crime shall
enjoy the right to a speedy and public trial by an
impartial jury
It also provides defendants the right to confront
witnesses against them.
Supreme Court has held that jury trials must be
available if a prison sentence of six or more
months is possible
Impartiality of jury
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Batson v. Kentucky (1986)
Right to confront witnesses
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Maryland v. Craig (1990)

31. The Eighth Amendment and Cruel and
Unusual Punishment
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Part of the Bill of Rights that states: “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”
Furman v. Georgia (1972)
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Court ended capital punishment
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Found it was imposed in an arbitrary manner
Gregg v. Georgia (1976)
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Reaction to rewriting of state laws on death penalty
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Death penalty statute found to be constitutional
McClesky cases (1987 and 1991)
House v. Bell (2006)
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DNA evidence
Court also ruled in 2006 that death-row inmates could
challenge the drugs and procedures involved in lethal
injections

32. Right to Privacy
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The right to be left alone
A judicially created doctrine encompassing an individual’s decision to use
birth control or to secure an abortion
Birth Control
 Griswold v. Connecticut (1965)
Abortion
 Roe v. Wade (1973)
 Court found a woman’s right to an abortion was protected by the
right to privacy that could be implied from specific guarantees found
in the Bill of Rights applied to the states through the Fourteenth
Amendment
 Webster v. Reproductive Health Services (1989)
 Planned Parenthood of S.E. Pennsylvania v. Casey (1992)
 Stenberg v. Carhart (2000)
 Partial Birth Abortion Ban Act (2003)
Homosexuality
 Lawrence v. Texas (2003)
 State sodomy laws found unconstitutional

33. The Right to Die
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1990 Court ruled in a 5-4 decision that
parents could not withdraw a feeding tube
from their comatose daughter after her
doctors testified that she could live for many
more years if the tube remained in place.
Rehnquist rejected any attempts to expand
the right to privacy in to this area.

34. The Right to Die
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Court did note that individuals could terminate medical treatment if they
were able to express, or had done so in writing via a living will, their
desire to have medical treatment terminated in the event they became
incompetent
1997 Court ruled unanimously that terminally ill persons do NOT have a
constitutional right to physician assisted suicide
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Oregon voters approved a right to die law in 2001.
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Attorney General Ashcroft issued legal opinion that this was not
acceptable.
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State and national conflict
Federal judge ruled that Ashcroft, then Attorney General, had
overstepped his authority
Gonzales v. Oregon (2005)
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Court once again disagreed and upheld Oregon’s law by a 6-3 vote.