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Chapter 4. Civil Liberties. The Bill of Rights. The first ten amendments to the Constitution are intended to protect the civil liberties of Americans. The Bill of Rights contains specific guarantees such as freedom of speech, press, and religion and the right to a public and speedy trial

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Chapter 4 l.jpg

Chapter 4

Civil Liberties


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The Bill of Rights

  • The first ten amendments to the Constitution are intended to protect the civil liberties of Americans.

  • The Bill of Rights contains specific guarantees such as freedom of speech, press, and religion and the right to a public and speedy trial

  • The Ninth Amendment makes it clear that the listing of rights does not mean that others do not exist


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The Bill of Rights

  • The Tenth Amendment reserves to the states those powers not delegated to the national government nor denied to the states

  • The First Amendment Applied to the States: The Incorporation Doctrine--Initially, the Bill of Rights was intended to limit the power of the national government to prevent infringement upon civil liberties.

  • Selective Incorporation--


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Civil Liberties

  • The protection of civil liberties in the Bill of Rights has been the center of conflict between the basic values of freedom and order.

  • .



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Thirteenth Amendment

  • Thirteenth Amendment--outlawed slavery throughout the United States


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Fourteenth Amendment

  • Reversed Dred Scott by making all people who were born or naturalized in the U.S. citizens of both the U.S. and the states in which they resided.

  • This Amendment guaranteed “due process” of law (no state shall deprive any person of life, liberty, or property with out due process of law).


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Fourteenth Amendment

  • “Equal protection” of laws to all persons, and prohibits states from abridging the “privileges and immunities” of citizens (no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.


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First Amendment and Religion

  • “Congress shall make no law respecting an established religion, or prohibiting the free exercise thereof.”

  • Note that there are two clauses: the establishment clause and the free exercise clause.


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Religion

  • As the framers understood it, an “established” church is one singled out as the church of the nation.

  • .


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Religion

  • In 1990, The Court upheld the constitutionality of the Equal Access Act, which declares that no public secondary school receiving federal funds may ban after-school meetings on school property by student religious or political groups if the same privilege is provided to other groups


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  • Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessing upon us, our parents, our teachers, and our country.”

  • Note it refers only to God, and not Jesus or any other figure associated with a particular religious denomination.


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The Ruling voluntary.

  • The Supreme Court ruled in favor of the parents. Justice Black gave the majority opinion, stating that “Public school prayer is an established religion--perhaps not a particular religion…such a union tends to destroy government and degrade religion.”



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Lemon v. Kurtzman voluntary.

  • The Supreme Court said that the statute might incidentally benefit religion without violating the establishment clause, but for such a statute to pass constitutional muster, it must meet three criteria.


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Three Criteria voluntary.

  • 1)


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The Court and Religion voluntary.

  • While banning all religious activity, “even moments of silence,” from public schools while classes are in session, the Court has allowed religious groups to use schools after hours (1990 Equal Access Act)


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The Court and Religion voluntary.

  • The Supreme Court has upheld the constitutionality of state funded Nativity scenes, because it included secular Christmas figures (Santa, Carolers, etc.)

  • It also upheld the display of the Jewish menorah alongside a Christmas tree on public property and it ruled the KKK has a right to erect a cross in a state owned park that functions as forum for pr. exp


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The Court and Religion voluntary.

  • In 1994, the Court struck down a New York law that created a public school district for the benefit of a village of orthodox Hasidic Jews.

  • Minersville School District v. Gobitus (1940) the Court upheld the expulsion of two children who refused to salute the flag, even though it violated their faith as JWs.

  • West Virginia v. Barnette (1943),



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The Court and Religion voluntary.

  • In 1965, the Court denied three men conscientious objector status during the Vietnam War because they did not subscribe to organized religion which was entitled to deferments.

  • In 1990, the Supreme Court refused to grant membership of the Native American Church an exemption to use peyote in their religious observances


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A Thread of Consistency? voluntary.

  • Maybe it seems to be this: anything essentially secular, though it may include religious display or incidentally aid religious people, can enjoy state sponsorship, but when religion is brought in, at least when children are apt to be affected by it, there can be no state involvement.


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Religion and the State voluntary.

  • Should religion and the state be kept entirely separate in America? Should the wall of separation be unbreachable, or should the wall be low and porous?


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Religion and the State voluntary.

  • Some argue that religion and the state are “natural enemies” because they make competing claims on the mind. Faith implies the refusal to accept any laws but Gods. Thus, how can a government that relies on the perpetuation of its authority be compatible with an institution that dictates from invisible powers?

  • Others contend that the very authority of government depends on its ties to chr her.


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Freedom of Speech voluntary.

  • Congress shall make no law…abridging the freedom of speech.

  • “Sticks and Stones may break my bones but words will never hurt me.”

  • Acts can be harmful, but not words, “for words never committed a crime, no name ever violated a law, no speech ever broke a bone.”


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Freedom of Speech voluntary.

  • Words do have consequences. They helped bring about the Communist Revolution and the Third Reich in Germany. Words can inspire people to great deeds--they can also lead to infamous crimes. Thus, in a sense, speeches can break bones.

  • The Skokie March


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Schenck v. United States (1919) voluntary.

  • Some have interpreted the First Amendment literally, but the court has always been prepared to make exceptions.


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Schenck v. U.S. voluntary.

  • Charles Schenck, general secretary of the American Socialist Party, mailed potential draftees 15,000 leaflets that compared military conscription with slavery and urged readers to “assert your rights.” Schenck did nothing to obstruct the draft; his actions were only verbal. He was arrested under the Espionage Act of 1917.


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Schenck v. U.S. voluntary.

  • The Court’s opinion was written by Justice Holmes, who agreed that under normal times Schenck’s rights would have been protected under the First Amendment. But during wartime, Schenck’s act constituted a clear and present danger of an evil that government had a right to prevent.

  • Clear and present danger clause-- government has the right to restrict freedom of speech when public order is threatened.


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Schenck v. U.S. voluntary.

  • Holmes illustrated “clear and present danger” with the now classic allegory. “The most stringent protection of free speech would not protect a man from falsely shouting fire in a theater and causing panic.”


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Chaplinsky v New Hampshire (1942) voluntary.

  • In this case, a member of the JW had gotten into a fight on a sidewalk after calling a city official “a God damned racketeer” and a “damned fascist.”His conviction was upheld


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Freedom of Speech voluntary.

  • Gitlow v. New York (1925): Gitlow published “The Left Wing Manifesto” which embraced a militant socialism to mobilize the proletariat to destroy the existing order in favor of communism. Gitlow did not advocate specific action to break the law, but was convicted under the New York Criminal Anarchy Law.


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Gitlow v. New York voluntary.

  • The Supreme Court held that NY was bound by the First Amendment but then argued that even the First Amendment did not prohibit NY from incarcerating Gitlow.



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“Politically Correct” Speech voluntary.

  • This controversy grew out of the movement of universities to ban offensive speech.

  • At the University of Pennsylvania late one night, a white student shouts at noisy members of an African-American sorority, “Will you water buffaloes get out of here?” He is accused of racial harassment, and the university takes disciplinary action against him.


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Speech voluntary.

  • A University of Wisconsin student is suspended for telling an Asian-American, “It’s people like you--that’s the reason this country is screwed up.”

  • At Southern Methodist University, a student is sentenced to work with minority organizations for 30 hours because, among other things, he sang “We Shall Overcome” in a sarcastic manner.

  • During a class at the University of Michigan, a student argues that homosexuality could be treated with psychotherapy. He is accused of violating the campus rule against victimizing people on the basis of their sexual orientation.


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Speech voluntary.

  • Incidents in which reprimanded students have challenged the college’s code of speech have been challenged successfully by the American Civil Liberties Union.


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Symbolic Expression voluntary.

  • Non-verbal behavior has been upheld by the Court; although it is generally less protected than free speech.





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Hate Crimes voluntary.

  • Do people deserve protection against hate speech


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Obscenity and Pornography voluntary.

  • Roth v. United States (1957)--The Court held that to be considered obscene, the questionable material must be “utterly without redeeming social importance.”



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Pornography? voluntary.


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Freedom of the Press voluntary.

  • Alien and Sedition Acts (1798)--were designed to silence the criticism of the government, and made publication of “any false, scandalous writing against the government of the United States” a criminal offense.

  • During the Civil War, President Lincoln suspended the free press provision of the First Amendment and ordered the arrest of editors of two New York newspapers critical of him. Congress supported the President.


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Freedom of the Press voluntary.

  • Ex Parte McCardle (1869)-McCardle, a Mississippi newspaper editor, was jailed during the Civil War by a military court with having charges brought against him when he criticized the Union occupation and threatened to arouse anti-Lincoln sentiment. Congress barred the Supreme Court from hearing appeals of cases of convictions for publishing criticisms of the Union government. Since Article III of the Constitution gives Congress the power to determine jurisdiction of the Court, the Court had no authority to rule on the matter.


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Freedom of Press voluntary.

  • States began to prosecute individuals who espoused unpopular beliefs. State laws curtailing speech and press went unchallenged for years.


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Freedom of the Press voluntary.

  • New York Times Co. v Sullivan 1964

  • The Supreme Court declared that the freedom of the press takes precedence over the rights of public officials suing for libel. (libel=written, slander=oral)

  • The Court has extended the concept of freedom of the press to protect publishers against suits from public figures

  • The Court has consistently held that freedom of press does not override the requirements of law enforcement


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Prior Restraint voluntary.

  • Although the state can punish individuals for libelous statements after the fact, the Court made in clear that with only a few exceptions, prior restraint, or censorship of speech or press before the fact, would not be tolerated.


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The Second Amendment voluntary.

  • Acknowledges “the right of the people to keep and bear arms” has been the focus of heated controversy.

  • Do restrictions on gun ownership violate the 2nd Amendment?

  • Should the right to bear arms apply only to state militias and not the individual


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The Fourteenth Amendment voluntary.

  • Because of this Amendment most of the individual protections found in the Bill of Rights now apply to the states.

  • Palko v. Connecticut (1937), the Court determined that double jeopardy and trial by jury were not fundamental rights to be protected by the state. Changed 30 years later.


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The Court and Criminal Proceedings voluntary.

  • The application of the constitutional procedural safeguards in criminal proceedings to the states has reshaped the American criminal justice system in the last thirty years.


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Mapp v. Ohio (1961) voluntary.

  • The Court enunciated the “exclusionary rule” to prevent policy and prosecutors from using evidence that had been obtained from warrantless and unreasonable searches.

  • In recent years the Court has grown more lenient allowing “good faith” exceptions of evidence that would have been discovered during the course of an investigation.


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United States v. Leon (1984) voluntary.

  • The Court authorized the “good faith” exception to the exclusionary rule. Prosecutors may introduce evidence obtained illegally if they can show that police relied on a warrant that appeared valid (typographical errors, etc.)


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Murray v United States (1988) voluntary.

  • Court allowed prosecutors to use evidence obtained in illegal searches if other evidence unrelated to the legal evidence would have justified the search warrant


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The Fourth Amendment voluntary.

  • Police may search without a warrant if there is a likelihood of violence or imminent destruction of evidence.

  • Searches can be made without a warrant if consent is obtained

  • Because of the mobility of the automobile, the Court has been more lenient about the scope of automobile searches.


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5th Amendment voluntary.

  • The Warren Court ruled that the privilege not to incriminate oneself was useless at the trial stage if police could coerce confessions before the trial took place


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5th Amendment voluntary.


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5th Amendment voluntary.

  • Miranda v. Arizona (1966) - The Court mandated that prior to questioning, a suspect must be informed of her or his constitutional rights such as the right to remain silent and the right to an attorney if the suspect cannot afford one.


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6th Amendment voluntary.

  • The right to counsel in felony cases


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6th Amendment voluntary.

  • The Sixth Amendment provides that the accused must have a speedy and public trial by an impartial jury.

  • “Impartiality” of jury selection has been challenged on the basis of procedures used to select a jury.

  • The Supreme Court has ruled that the equal protection clause of the Fourteenth Amendment prohibits discrimination in jury selection on the basis of race or gender.


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8th Amendment voluntary.

  • Furman v. Georgia (1972)

  • McCleskey v Kemp (1987) the Court ruled individual defendants must show that racism played a role in their specific case.

  • Penny v. Lenaugh (1989) the Court allowed the execution of a convicted murderer who had the intelligence level of a 7-year-old

  • Sanford v. Kentucky (1989) the Court allowed the execution of a minor who had been convicted of murder.


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9th Amendment voluntary.

  • Protects rights not specifically enumerated in the Constitution, has been used by the Supreme Court to define the limits of government encroachment on personal autonomy.

  • Griswald v. Connecticut (1965)


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Griswold v Connecticut voluntary.

  • Griswold v. Connecticut (1965)--This case involved the constitutionality of an 1870 state law that prohibited the dissemination of contraceptives or information about birth control.

  • In 1961, the Court refused to address merits of the case since a doctor had not been charged with violating the statute.

  • Estelle Griswold, executive director of Planned Parenthood, opened a birth-control clinic and were arrested for violation of the statute.

  • The Connecticut statute was ruled unconstitutional as a violation of marital privacy, a right that could be read into the intent of the Constitution.


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Homosexuality voluntary.

  • The Supreme Court has declined to interpret the right to privacy to include the right to engage in homosexual behavior.

  • Bowers v Hardwick (1986)--Although troubled by many outdated provisions of state laws punishing homosexual acts, the Court has been unwilling to expand the right of privacy to invalidate state laws criminalizing homosexual behavior.