Civil Liberties

By: Kelly Real

Protections in the Constitution

Writ of habeas corpus- "protect the body"; court order directing the official holding the prisoner to bring him to a court official and explain why they are being held.

Ex post facto law- prohibited in the constitution; one cannot be charged for a crime that was not illegal before it was committed.

Bill of attainder- prohibited by the constitution; being charged for a crime without a trial

Explanation of Clauses

Due process- clause in the 14th Amendment which states that no person shall be "deprived of life, liberty, or property without due process of law." Usually due process refers to fair procedurals.

Establishment- clause in the 1st Amendment restricting the establishment of an official state religion

Free exercise- clause in the 1st Amendment which allows for everyone to practice their religion however they like

Timeline of Court Cases that Protect First Amendment Rights

Free Speech

Although the Constitution allows us to speak freely, to organize in groups, questions decisions of government, and campaign against them, they are still some restraints.

Bad Tendency Test- This was the interpretation of the first amendment that would allow the congress or state legislatures to prohibit or limit speech that had the tendency to cause corruption or illegal activities.

Clear and Present Danger Doctrine- This was established in Schenck v. US in which it gave the government the right to censor free speech if, during national emergencies such as war, would pose threat to the nation

Preferred Position Doctrine- The interpretation of the First Amendment that holds that freedom of expression is so essential to democracy that the government should not punish people for what they say, but for what they do

Protected Speech

Overbreadth- A law that prohibits unprotected speech, but also too much protected speech, is SUBSTANTIALLY OVERBROAD and therefore unconstitutional. (Not applicable to Commercial Speech)

Centrality of political speech- political speech is given special protection because of its importance in a democracy it is less likely to be resticted than other types of speech

Commercial speech- communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.

Limits on Speech

Obscenity- Obscenity falls outside the protection of the First Amendment. Although absolute bans on publication generally have been declared unconstitutional, the Supreme Court has permitted government regulation of the sale and distribution of obscene materials. The Court has consistently required that those regulations be narrowly defined to cover materials judged obscene by contemporary community standards.

Fighting words- Fighting words are unprotected by the First Amendment because these words are used to inflict danger and cause corruption among others, therefore disturbing peace. An example of fighting words would be burning a cross because it is a form of intimidation.

Hate speech- In two recent Supreme Court cases, the Court ruled that acts, but not speech, may be regulated by the government. The two Supreme Court cases were R.A.V v City of St. Paul and Wisconsin v. Mitchell. The Court ruled that the government could not regulate someone's hateful speech because this would go against their First Amendment protection; however it did rule that the government could regulate their actions.

Free Press

Does the press have a right to know?- The Supreme Court has refused to acknowledge that the press has a constitutional right to know

Free Press v. Fair Trials and Due Process- Both a fair trial and a free press are guaranteed by the Constitution. Two constitutional rights are- the First and Sixth Amendments. The First Amendment says that "Congress shall make no law...abridging the freedom of...the press", while the Sixth Amendment states "In all criminal prosecutions, the accused shall enjoy the right to a State and district wherein the crime shall have been committed..." However, sometimes reporters may describe crimes in vivid details, which could then inflame the public opinion and thus make it difficult for the jurors to remain unbiased. Therefore, to make certain it is a fair trial, there are "gag orders".

Protections of other media:

Handbills, soundtracks, billboards- Religious and political pamphlets have been used for quite some time now in order to spread information and opinions to the public and is protected by the Constitution

Motion pictures and plays- The government is to prove to the Supreme Court if the scenes being shown to the public is obscene; other than this, plays, concerts, and revues are protected by the Constitution

Broadcast and Cable Communications- Since broadcasts are federally funded, the FCC can regulate them and levy fines, therefore receiving the least First Amendment protection. However, cable TV has greater protection because homeowners can block unwanted programming

Internet- Established the Child Online Protection Act which makes criminal for web sites to make available to anyone under the age of 17 sexually explicit material considered “harmful to minors” based on “community standards”.

Freedom of Assembly

Public forums- a government owned property that is open to public expression and assembly

Local rules on assembly- The government can't censor what can be said, however, it can make "reasonable" time, place, and manner regulations for protests and parades.

Limited public forums- Nonpublic forums that have been specifically designated by the government as open to a certain group or topic at certain times of the day; limited access.

Right to Privacy

Although the right of privacy is not explicitly stated in the Constitution, the majority of the Justices in the Supreme Court believe the "right to privacy" to be a basic human right. Some amendments that are believed to include the right of privacy are the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

Supreme Court Cases Involving the Right to Privacy

Griswold v. Connecticut- Mrs. Griswold gave counsel to marital couples that wished to use birth control that was apparently against a Connecticut statute. Result: Marital couples have the right to privacy implied by a few amendments of the Bill of Rights. The statue therefore is unconstitutional. The right to privacy are found in the 1st, 3rd, 4th, 8th, and 14th amendments.

Stanley v. Georgia- Robert Stanley was a suspected bookmaker and the police searched his house. They found nothing on gambling, but instead a reel of pornos and arrested him. The Supreme Court (Thurgood Marshall) said it was unconstitutional because Marshall found absolute protection for the "right to receieve information and ideas." That protection forbids "state inquiry into the contents of a person's library." It goes against the First Amendment because one can do whatever they please in their own home.

Roe v. Wade-A pregnant single woman (Roe) brought a class action challenging the constitutionality of the law in Texas that had established that abortion was illegal. The Supreme Court ruled that the Texas Law violated the Due Process Clause in the Fourteenth Amendment, which protects state action against the right of privacy, including a woman’s qualified right to terminate her pregnancy.

Bowers v. Hardwick- Court ruled that the constitution did not protect the practice of sodomy between homosexuals, and that the states could ban sodomy.

Lawrence v. Texas- Overturned Bowers v. Hardwick and declared a state law banning sodomy to be an unconstitutional intrusion on the right to privacy.

The Four States of Privacy

Solitude- The act of being alone; free from observation of others

Intimacy- This refers to someone being able to choose whomever they want to be their friend or partner without being worried of what others will think

Anonymity- Free from identification and supervision

Reserve- We are free to not share information with others unless we choose to

Property Rights/Equal Rights


How Citizenship is Acquired- If one is born in the United States, they are automatically a US citizen, regardless of their parents' citizenship. Another way how citizenship is acquired is through Naturalization.

How Citizenship is Lost- Citizenship can be lost if one chooses to not be a citizen of a certain country anymore, an act called expatriation. A citizen of the United States loses U.S. citizenship by becoming a citizen of a foreign country unless a special exception is made by the State Department. A person can also lose U.S. citizenship for serving in the armed forces of, or holding office in, a foreign government. U.S. citizenship can also be taken away from people who have been convicted of a major federal crime, such as treason.

Property Rights

Contract clause- This clause found in Article I, Section 10 was designed to prevent states from extending the period for debtors to meet their payments or evade contractual obligations

Police Powers- Inherent powers of state governments to pass laws to protect the public health, safety, and welfare; the national government has no directly granted police powers but accomplishes the same goals through other delegated powers.

Eminent Domain- The power of a government to take private proverty for public use; the U.S. constitution gives national and state governments this power and requires them to provide just compensation for property so taken.

Regulatory Takings- Government regulation of property so extensive that government is deemed to have taken the property but the power of eminent domain, for which it must compensate the property owners.

Due Process

The Fifth and Fourteenth Amendments forbids national and state governments from denying anyone of life, liberty, or property w/o “due process of law”

Due Process of Law- Established rules and regulations that restrain people in government, who exercise power.

Procedural Due Process- Constitutional requirement that governments proceed by proper methods; places limits on how governmental power may be exercised.

Substantive Due Process- Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; places limits on what a government may do.


Voting Rights Act of 1965- Suspended literacy tests, empowered federal officials to register voters, empowered federal officials to ensure that citizens could vote, empowered federal officials to count ballots, prohibited states from changing voting procedures without federal permission. A law designed to help end formal and informal barriers to African American suffrage. Under the law, hundreds of thousands of African Americans were registered and the number of African American elected officials increased dramatically.

Nineteenth Amendment- Gave women suffrage

The Need for Equality

Chicano- Many hispanics have suffered discrimination in employment, education, housing, and access to public accommodations. Then in 1994, California passed Proposition 187 which established a state-run citizenship screening system and prohibited illegal immigrants from using health care, public education, and other social services in the US State of California. The court agreed with this act and declared that one could deny everything except for emergency healthcare treatment for children and education. A figure who had a major impact on the Chicano movement was Caesar Chavez who organized the Union Farm Workers (UFW). He helped migratory farm workers gain better pay & working conditions through nonviolence and unionized Mexican-American farm workers.

Asian American- Asian Americans faced widespread prejudice. The ones who were especially prone to discrimination were Japanese Americans. In 1905, white labors organized the Japanese and Korean Exclusion League, the San Francisco board of education excluded children, some western states denied them from owning any land, and they were placed in internment camps.

Native Americans- Many Native Americans live in poverty, have worse health than the rest of the population, die earlier and suffer disproportionately from alcoholism, accidents, diabetes, and pneumonia, many reservations continue to experience 50-60 %, unemployment, lack health care facilities, schools, and decent housing and jobs.

Equal Education for All?

Because not everyone has the same starting position in regards to education opportunities, the government began the head start program for low income families.

Following Brown v. BOE, and the ensuing civil rights struggles of the 1950s and 1960s, Congress passed the Civil Rights Act of 1964, which prohibits discrimination based on race, color, age, creed, or national origin in any federally funded activity or program. In addition, ten years later, Congress enacted the Equal Educational Opportunities Act (EEOA) to champion the rights of all children to have equal educational opportunities

Affirmative Action

Affirmative Action- The requirement, imposed by law or administrative regulation, that an organization (business firm, government agency, labor union, school, or college) take positive steps to increase the number or proportion of women, African Americans, or other minorities in its membership.

These general policies are almost uniformly supported by Americans, both whites and minorities. However, there are also strong opponents against the affirmative action policies, especially among whites, when the policies establish quotas or "set-asides" to promote minority candidates in the hiring, admission or contract awarding process, sometimes at the expense of white candidates, therefore calling the affirmative action policies as reverse discrimination.

One of the most important affirmative action cases is the Regents of the University of California v. Bakke. Alan Bakke was a top student at college and was denied to medical school twice on account of his race. In response to Bakke's challenge of the admission policy, the Court ruled that the school must admit Bakke, but it did not ban the use of quotas if they were aimed at redressing current and past discrimination against minorities. However, such public disfavor grew to point that in 1996 voters in that state passed a proposition banning the use of quotas in university admissions in the University of California system. Several legal challenges to the Proposition have failed and the policy has remained in place. Since that time, admission of minorities to some schools and programs in the state system of higher education have dropped significantly. Critics complain that minorities are now being unfairly denied educational opportunities. Supporters of Prop. 209 argue that the abandonment of racial quotas has focussed attention on the real problem--inadequate inner-city high schools.

Overall, the controversy over affirmative action centers on board disagreement about the best way to fight discrimination in the present and to make amends for past discrimination.