Civil Liberties

Three reasons liberties become big issues

    1. Rights in conflict
    2. Passions enflamed by policy entrepreneur
    3. US Political culture

The First Amendment:

Freedom of expression

Freedom of religion

Freedom of Speech

Freedom from Prior restraint

There is NO prior restraint – really, at at all.

Clear and present danger test: do the words create a clear and present danger that will bring about substantive evils?

I.e. "fire" in theatre

Due process clause of 14th amendment guaranteed protection of liberties against State law

What is speech?

Libel – written statement that defames the character of another person.

Harder for public figure to win libel suit – must prove not only falsity but "actual malice"

Slander: spoken word

To recover from libel, you must show negligence if you are an ordinary person

To recover from libel, you must show recklessness if you are a public person (recklessness: a reasonable person would have done differently, and a reporter knew that but did it anyway).

Obscenity—not protected by the first amendment

Nudity and sex are not, by definition, obscene

Symbolic speech – not given same degree of protection due to potential Pandora’s Box of problems.

Who is a person?

Corporations have rights – they are people

Many organizations have rights too (Planned Parenthood, et. al.)

Government can place restrictions on advertisements and commercial speech if it serves the public interest.

Young people have less freedom of speech.

Freedom of Religion

Free-exercise clause: no law prohibiting "free exercise" of religion

Establishment clause: No law respecting an establishment of religion

Free-exercise clause – you can pretty much do whatever you want as long as it doesn’t cause harm to others.

Can’t tax churches, prohibit animal sacrifice


No polygamy

Can force immunizations for Christian Scientists

No peyote

Challenges surface when the court is forced to define religion

The establishment clause—the erection of a wall of separation between church and state

Wall-of-separation principle

Limiting public aid to parochial schools

Government CAN build buildings on denominational college campuses; grant tax-exempt status to parochial schools

Government CANNOT pay secular teachers in parochial schools, reimburse parents for parochail-school costs, teach creationism, or create special school districts

Involvement in religion is constitutional if:

    1. it has a secular purpose
    2. It’s primary effect neither advances nor hinders religion
    3. It does not foster excessive government entanglement with relgion


Crime and Due Process



Board notes to later integrate

Equal-time rule: broadcast media must provide candidates with equal times, prices, etc.

No longer exists

Second Amendment:

Original intent argument: States are sovereign – may decided how to protect themselves.

Second amendment has not real bearing under second amendment

Supreme court sides with original intent – the state can decide.

Third Amendment

Can’t quarter troops in your home during times of peace.

Rights of the criminally accused [4-8]

Search and Seizure (Mapp v. Ohio)

Mapp v. Ohio – it’s another incorporation case; essentially the rights of the criminally accused in federal law are the same as those in state law

Must be reasonable under the circumstances. Probable cause – a reasonable belief that a person was involved in criminal activity

Exigency search – a search in the emergency.

Self-incrimination (Miranda v. Arizona)

Due process in other institutions


No cruel and unusual punishment