- Trace the process by which the Bill of Rights has been applied to the states.
- Distinguish the two types of religious rights protected by the 1st Amendment and determine the boundaries of those rights.
- Differentiate the rights of free expression protected by the 1st Amendment and determine the boundaries of those rights.
- Describe the rights to assemble and associate protected by the 1st Amendment and their limitations.
- Describe the right to bear arms protected by the 2nd Amendment and its limitations.
- Characterize defendants’ rights and identify issues that arise in their implementation.
- Outline the evolution of a right to privacy and its application to the issue of abortion.
- Assess how civil liberties affect democratic government and how they both limit and expand the scope of government.
Civil liberties are individual legal and constitutional protections against the government. While the Constitution did not address a wide array of civil liberties, there were protections including prohibitions of “bill of attainer”, “ex post facto” and “habeas corpus”. A much broader enunciation of Americans’ civil liberties are established in the Bill of Rights, the courts determine what the Constitution actually means through the cases they decide. Disputes about civil liberties are frequent because the issues involved are complex and divisive.
The Bill of Rights — Then and Now
Political scientists have discovered that people are advocates of rights in theory, but their support wavers when it comes time to put those rights into practice. Cases become particularly difficult when liberties are in conflict—such as free press versus a fair trial or free speech versus public order—or where the facts and interpretations are subtle and ambiguous.
The Bill of Rights is fundamental to Americans’ freedom. All of the state constitutions had bills of rights by the time of the 1787 convention, and the issue of adding a bill of rights to the proposed national constitution had become a condition of ratification. The Bill of Rights was passed as a group by the First Congress in 1789; the first ten amendments were ratified and became part of the Constitution in 1791.
The Bill of Rights was written to restrict the powers of the new central government. The 1st Amendment establishes the four great liberties: freedom of the press, of speech, of religion, and of assembly. What happens, however, if a state passes a law violating one of the rights protected by the federal Bill of Rights and the state’s constitution does not prohibit this abridgment of freedom? In Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights restrained only the national government and not states and cities. It was not until 1925 that the Court relied on the 14th Amendment to find that a state government must respect some 1st Amendment rights (Gitlow v. New York). In Gitlow, the Court announced that freedoms of speech and press “were fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states.”
The Supreme Court gradually applied most of the Bill of Rights to the states, particularly during the era of Chief Justice Earl Warren in the 1960s, developing the concept of the incorporation doctrine. At the present time, only the 2nd, 3rd, and 7th Amendments and the grand jury requirement of the 5th Amendment have not been applied specifically to the states. Not everyone agrees that the 14th Amendment incorporated parts of the Bill of Rights into state laws; in 1985, Edwin Meese (then attorney general) strongly criticized Gitlow and called for “disincorporation” of the Bill of Rights.
Freedom of Religion
The 1st Amendment makes two basic statements about religion and government, commonly referred to as the establishment clause and the free exercise clause. Sometimes these freedoms conflict, but cases involving these clauses usually raise different kinds of conflicts.
Some nations, like Great Britain, have an established church that is officially supported by the government. A few American colonies had official churches, but the religious persecutions that incited many colonists to move to America discouraged any desire for the First Congress to establish a national church in the United States. Debate still continues over what else the First Congress may have intended for the establishment clause. Some people believe that the establishment clause meant only that the government could not favor one religion over another. Thomas Jefferson argued that the 1st Amendment created a “wall of separation” between church and state that forbade any support for religion at all.
Debate has been especially intense over questions of aid to church-related schools and prayers or Bible-reading in the public schools. School prayer is possibly the most controversial religious issue. In 1962 and 1963, the Court ruled that voluntary recitations of prayers or Bible passages, when done as part of classroom exercises in public schools, violated the establishment clause (Engel v. Vitale and School District of Abington Township, Pennsylvania v. Schempp). A majority of the public has never favored the Court’s decisions on school prayer. Some religious groups pushed for a constitutional amendment permitting school prayer, and many school districts simply ignored the decision. In Employment Division v. Smith (1990), the Supreme Court ruled that states can prohibit certain religious practices, but not religion itself.
There has always been a fine line between aid to church-related schools that is permissible and aid that is not. In 1971, the Supreme Court declared that aid to church-related schools must have a secular legislative purpose, cannot be used to advance or inhibit religion, and should avoid excessive government “entanglement” with religion (Lemon v. Kurtzman). In a landmark decision in 2002, the Court in Zelman v. Simmons-Harris upheld a program that provided some families in Cleveland, Ohio, with vouchers that could be used to pay tuition at religious schools.
Conservative religious groups have had an impact on the political agenda. They devoted much of their time and energies in recent years to the issues of school prayer and creation science, and while they lost some battles (such as the battle over teaching creation science in the public schools), they have won others (for example, the Court decision that religious scenes could be set up on public property). Thus, in 1992, the Court ruled that a school-sponsored prayer at a public school graduation violated the constitutional separation of church and state. In 2000, the Court held that student-led prayer at football games was also unconstitutional.
The guarantee of free exercise of religion is also more complicated than it appears at first glance. The free exercise of religious beliefs sometimes clashes with society’s other values and laws. The Supreme Court has consistently maintained that people have an absolute right to believe what they want, but the courts have been more cautious about the right to practice a belief.
Freedom of Expression
The courts have frequently wrestled with the question of whether freedom of expression (like freedom of conscience) is an absolute. The courts have often ruled that there are instances when speech needs to be controlled, especially when the 1st Amendment conflicts with other rights. In their attempts to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order, national security, and the right to a fair trial.
The courts have also had to decide what kinds of activities constitute speech (or press) within the meaning of the 1st Amendment. Certain forms of nonverbal communication (like picketing) are considered symbolic speech and are protected under the 1st Amendment. Other forms of expression are considered to be action and are not protected. The Court has generally struck down prior restraint of speech and press (censorship that prevents publication), although the writer or speaker could be punished for violating a law or someone’s rights after publication (Near v. Minnesota, 1931).
Crises such as war often bring government efforts to enforce censorship. In Schenck v. United States (1919), Justice Oliver Wendell Holmes declared that government can limit speech if it provokes a clear and present danger of “substantive evils.” Free speech advocates did little to stem the relentless persecution of McCarthyism during the “cold war” of the 1950s, when Senator Joseph McCarthy’s unproven accusations that many public officials were Communists created an atmosphere in which the courts placed broad restrictions on freedom of expression. By the 1960s, the political climate had changed, and courts today are very supportive of the right to protest, pass out leaflets, or gather signatures on petitions (as long as it is done in public places).
The Bill of Rights is also a source of potential conflicts between different types of freedoms. The Constitution clearly meant to guarantee the right to a fair trial as well as the right to a free press, but a trial may not be fair if pretrial press coverage makes it impossible to select an impartial jury. Likewise, journalists seek full freedom to cover all trials (they argue that the public has a right to know), but they sometimes defend their right to keep some of their own files secret in order to protect a confidential source. In Zurcher v. Stanford Daily (1978), the Supreme Court disagreed with this claim.
Efforts to define obscenity have perplexed the courts for years. Although the Supreme Court has held that, “obscenity is not within the area of constitutionally protected speech or press” (Roth v. United States, 1957), it has proven difficult to determine what is legally obscene. The Court tried to clarify its doctrine by spelling out what could be classified as obscene and thus outside 1st Amendment protection in the 1973 case of Miller v. California. Then, Chief Justice Warren Burger wrote that materials were obscene if, taken as a whole, they appealed “to a prurient interest in sex”; that they showed “patently offensive” sexual conduct that was specifically defined by an obscenity law; and that, taken as a whole, they lacked “serious literary, artistic, political, or scientific value.”
Advances in technology have created a new wrinkle in the obscenity issue. The Internet and the World Wide Web make it easier to distribute obscene material rapidly, and a number of online information services have taken advantage of this opportunity.
In 1996, Congress passed the Communications Decency Act, banning obscene material and criminalizing the transmission of indecent speech or images to anyone under 18 years of age. The new law made no exception for material that has serious literary, artistic, political, or scientific merit as outlined in Miller v. California. In 1997, the Supreme Court overturned this law as being overly broad and vague and a violation of free speech. In 2002, the Court overturned a law banning virtual child pornography on similar grounds. Apparently the Supreme Court views the Internet similarly to print media, with similar protections against government regulation.
Libel and slander also raise freedom of expression issues that involve competing values. If public debate is not free, there can be no democracy. Conversely, some reputations will be unfairly damaged in the process if there are not limitations. Libel (the publication of statements known to be false that tend to damage a person’s reputation) and slander (spoken defamation) are not protected by the 1st Amendment, but the Court has held that statements about public figures are libelous only if made with malice and reckless disregard for the truth (New York Times v. Sullivan, 1964). The right to criticize the government (which the Supreme Court termed “the central meaning of the 1st Amendment”) is not libel or slander.
Wearing an armband, burning a flag, and marching in a parade are examples of symbolic speech: actions that do not consist of speaking or writing but that express an opinion. When Gregory Johnson set a flag on fire at the 1984 Republican National Convention in Dallas to protest nuclear arms buildup, the Supreme Court decided that the state law prohibiting flag desecration violated the 1st Amendment (Texas v. Johnson, 1989).
Commercial speech (such as advertising) is more restricted than are expressions of opinion on religious, political, or other matters. Similarly, radio and television stations are subject to more restrictions than the print media (justified by the fact that only a limited number of broadcast frequencies are available). The Federal Trade Commission (FTC) decides what kinds of goods may be advertised on radio and television and regulates the content of such advertising. The FTC attempts to ensure that advertisers do no make false claims for their products, but “truth” in advertising does not prevent misleading promises. Nevertheless, commercial speech on the airwaves is regulated in ways that would clearly be impossible in the political or religious realm.
The Federal Communications Commission (FCC) regulates the content, nature, and very existence of radio and television broadcasting. Although newspapers do not need licenses, radio and television stations do. The state of Florida passed a law requiring newspapers in the state to provide space for political candidates to reply to newspaper criticisms. The Supreme Court, without hesitation, voided this law (Miami Herald Publishing Company v. Tornillo, 1974). Earlier, in Red Lion Broadcasting Company v. Federal Communications Commission (1969), the Court upheld similar restrictions on radio and television stations, reasoning that such laws were justified because only a limited number of broadcast frequencies were available.
Freedom of Assembly
There are two facets to freedom of assembly. The right to assemble involves the right to gather together in order to make a statement, while the right to associate is the freedom to associate with people who share a common interest. The Supreme Court has generally upheld the right of any group—no matter how controversial or offensive—to peaceably assemble on public property. The balance between freedom and order is tested when protest verges on harassment.
Right to Bear Arms
Gun control has been very controversial. Many national, state, and local laws have been passed to regulate firearms. The National Rifle Association has invested millions of dollars to fight gun control. Surprisingly, the Supreme Court has rarely dealt with the issue. In 2008, the Supreme Court ruled in District of Columbia that the 2nd Amendment protects an individual right to possess a firearm unconnected with service in a militia. In 2010 in McDonald v. Chicago, the Court extended the 2nd Amendment’s limits on restricting an individual’s right to bear arms to state and local gun control laws. Despite this ruling, the 2nd Amendment is not unlimited. Regulations such as restrictions on concealed weapons, limiting possession by felons and the mentally ill, forbidding firearms in certain areas, and restricting use are permitted.
The 1st Amendment guarantees the freedoms of religion, speech, press, and assembly. Most of the remaining rights in the Bill of Rights concern the rights of people accused of crimes. These rights were originally intended to protect the accused in political arrests and trials. Today, the protections in the 4th, 5th, 6th, and 8th Amendments are primarily applied in criminal justice cases. Moreover, the Supreme Court’s decisions have extended most provisions of the Bill of Rights to the states as part of the general process of incorporation.
The Bill of Rights covers every stage of the criminal justice system. The 4th Amendment is quite specific in forbidding unreasonable searches and seizures. No court may issue a search warrant unless probable cause exists to believe that a crime has occurred or is about to occur, and warrants must describe the area to be searched and the material sought in the search. Since 1914, the courts have used the exclusionary rule to prevent illegally seized evidence from being introduced in federal courts. In 1961, the Supreme Court incorporated the exclusionary rule within the rights that restrict the states as well as the federal government (Mapp v. Ohio).
The Burger Court made a number of exceptions to the exclusionary rule, including the good-faith exception (United States v. Leon, 1984). The USA Patriot Act, passed just six weeks after the September 11, 2001, terrorist attacks, gave the government broad new powers for the wiretapping, surveillance, and investigation of terrorism suspects. The Patriot Act gave the federal government the power to examine a terrorist suspect’s records held by third parties such as doctors, libraries, bookstores, universities, and Internet service providers. It also allowed searches of private property without probable cause and without notice to the owner until after the search has been executed.
Under the 5th Amendment prohibition against forced self-incrimination, suspects cannot be compelled to provide evidence that can be used against them. The burden of proof rests on the police and the prosecutors, not the defendant. Miranda v. Arizona (1966) set guidelines for police questioning of suspects, whereby suspects must be informed of their constitutional rights. The more conservative Rehnquist Court made some exceptions to the Miranda rulings, but the Court made clear its continued support for the Miranda ruling in Dickerson v. U.S. (2000).
Although the 6th Amendment has always ensured the right to counsel in federal courts, this right was not incorporated to state courts until recently. In 1932, the Supreme Court ordered states to provide an attorney for indigent defendants accused of a capital crime (Powell v. Alabama), and in 1963, the Court extended the same right to everyone accused of a felony (Gideon v. Wainwright). The Court later ruled that a lawyer must be provided for the accused whenever imprisonment could be imposed (Argersinger v. Hamlin, 1972). The 6th Amendment also ensures the right to a speedy trial and an impartial jury, but most cases are settled through plea bargaining rather than through trial by jury. In recent times the Supreme Court has against judicial procedures enacted by the Bush administration used against “detainees” and others accused of terrorism.
The 8th Amendment forbids cruel and unusual punishment, but it does not define the phrase. Most of the constitutional debate over cruel and unusual punishment has centered on the death penalty. In Furman v. Georgia (1972), the Court first confronted the question of whether the death penalty is inherently cruel and unusual punishment. A divided Court overturned Georgia’s death penalty law because its imposition was “freakish” and “random” in the way it was arbitrarily applied (particularly with regard to factors such as race and income). Thirty-five states passed new laws that were intended to be less arbitrary. In recent years, the Court has come down more clearly on the side of the death penalty. A divided Court rebuffed the last major challenge to the death penalty in McCleskey v. Kemp (1987), when it refused to rule that the penalty violated the equal protection of the law guaranteed by the 14th Amendment. However, the number of death sentences issued has been sharply declining in the last decade due to DNA testing and public concerns about wrongful sentences.
The Right to Privacy
Today’s technologies raise key questions about ethics and the Constitution. Although the Constitution does not specifically mention a right to privacy, the Supreme Court has said that it is implied by several guarantees in the Bill of Rights. Questions involving a right to privacy have centered on such diverse issues as abortion rights, the drafting of state laws to define death, technological developments like in-vitro fertilization, and the right to die. Supporters of privacy rights argue that the 4th Amendment was intended to protect privacy. Opponents claim that the Supreme Court was inventing protections not specified by the Constitution when it ruled on constitutionally protected “rights of privacy.”
The Supreme Court first referred to the idea that the Constitution guarantees a right to privacy in a 1965 case involving a Connecticut law that forbade contraceptives (Griswold v. Connecticut), but the most important application of privacy rights came in the area of abortion. Americans are deeply divided on abortion: The positions of “pro-choice” and “pro-life” are irreconcilable.
Justice Harry Blackmun’s majority opinion in Roe v. Wade (1973) followed the practice of medical authorities in dividing pregnancy into three equal trimesters. Roe forbade any state control of abortions during the first trimester; permitted states to allow regulated abortions to protect the mother’s health in the second trimester; and allowed the states to ban abortion during the third trimester except when the mother’s life was in danger. In 1989, a clinic in St. Louis challenged the constitutionality of a Missouri law that forbade the use of state funds or state employees to perform abortions, but the Court upheld the law in Webster v. Reproductive Health Services (1989). In 1992, the Court changed its standard for evaluating restrictions on abortion from one of “strict scrutiny” of any restraints on a “fundamental right” to one of “undue burden” that permits considerably more regulation (Planned Parenthood v. Casey). In 2000, the Court held in Sternberg v. Carhart that Nebraska’s prohibition of “partial birth” abortions was unconstitutional because it placed an undue burden on women seeking an abortion by limiting their options to less safe procedures and because the law provided no exception for cases where the health of the mother was at risk. Beginning in 1994, the Supreme Court strengthened women’s access to health clinics, while Congress passed the Freedom of Access to Clinic Entrances Act, which made it a federal crime to intimidate abortion providers or women seeking abortions.
Understanding Civil Liberties
American government is both democratic (because it is governed by officials elected by the people and answerable to them) and constitutional (because it has a fundamental organic law, the Constitution, that limits the things government can do). The democratic and constitutional components of government can produce conflicts, but they also reinforce one another. One task that government must perform is to resolve conflicts between rights.
The rights guaranteed by the 1st Amendment are essential to a democracy. Likewise, the rights guaranteed by the 4th, 5th, 6th, and 8th Amendments protect all Americans, but they also make it harder to punish criminals. Ultimately, it is the courts that decide what constitutional guarantees mean in practice: Although the federal courts are the branch of government least subject to majority rule, the courts enhance democracy by protecting liberty and equality from the excesses of majority rule.
The USA PATRIOT Act (reauthorized by Congress in 2006 with a few changes), the Foreign Intelligence Surveillance Act of 2008, and actions carried out by the National Security Agency and George W. Bush administration raised new questions about the competing interests of national security and civil liberties. What are these interests and what issues of civil liberties are at stake? How should the Court reconcile these competing issues? Has the War on Terrorism overstepped appropriate boundaries of civil liberties?
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