UNIT 3: PROTECTIONS OF AND FROM GOVERNMENT U.S.

GOVERNMENT | Peterson

Chapter 5 Civil Liberties
The Bill of Rights
Most citizens are not aware that the Bill of Rights originally applied only to the national government.
The Supreme Court, through the process referred to as incorporation, has employed the Due Process
Clause of the Fourteenth Amendment to apply many of the protections set forth in the Bill of Rights to
the states. The first right to be incorporated was the freedom of speech in Gitlow v. New York (1925).
Not all of the protections in the Bill of Rights have been made applicable to the states.
Freedom of Religion
The First Amendment begins with two basic principles of religious freedom. The first prohibits the
governmental establishment of religion and the second embodies protection for the free exercise of
religion. The first words in the First Amendment are Congress shall make no law respecting an
establishment of religion. In the view of Thomas Jefferson the establishment clause was intended to
create a wall of separation between church and state. The establishment clause has produced
conflicts over governmental aid to religious schools, prayer in public school, and the clash between the
teaching of evolution and creationism.
The free exercise clause presents a challenging situation for the Supreme Court, as individuals and
groups assert the ability to violate the law in the name of their religion. The Court has sought a middle
ground by proclaiming that the First Amendment protects all religious beliefs, but not necessarily all
religious practices. While this distinction has a certain surface appeal, it still places the Court in the
difficult position of determining which religious practices will be unprotected by the First Amendment.
Freedom of Expression
Freedom of expression is probably the most frequently used right that Americans possess, but this right
cannot be used to say anything at any time and any place. The Supreme Court has established any
number of restrictions on free speech. The clear and present danger test from the Schenck v. U.S. case
(1919) restricted speech that creates a clear and present danger to public order. Prior restraint of
speech, sometimes known as censorship, has usually been ruled unconstitutional by the Court. In one of
its most famous cases, New York Times v. U.S. (1971), the Supreme Court ruled The New York Times had
the right to publish the Pentagon Papers, a comprehensive study of American involvement in the
Vietnam War.
It is not only political speech that is covered by the First Amendment. The Court has also extended
constitutional protection to commercial speech and symbolic speech. One of the Supreme Courts most
controversial decisions, Texas v. Johnson, involved symbolic speech. In this case the Court ruled that the
state of Texas could not criminalize the burning of an American flag, even though most people regarded
such an action as offensive. Certain types of speech have been ruled to be unprotected by the First
Amendment, including obscenity, slander and child pornography.
Freedom of the Press
The Framers regarded freedom of the press as an essential means of making our governmental system
work properly. One of the major complications in applying freedom of the press is libel, the published
or broadcast defamation of a persons character. In a landmark decision the Supreme Court in New York
Times v. Sullivan (1964) provided a great deal of protection to the media by ruling that public officials
who bring suit against media companies for libel must prove actual malice on the part of the media.
Only in the instances in which a public official can establish that the news organization published with
knowledge of the falsity of its story, or acted in reckless disregard of the truth, can such a public official
UNIT 3: PROTECTIONS OF AND FROM GOVERNMENT U.S. GOVERNMENT | Peterson

prevail. This greater burden of proof for public officials and figures allows for the criticism of public
officials and discussions of differences of opinion without fear of lawsuits.
The Right to Assemble and to Petition the Government
The First Amendment protects the rights of unpopular groups to have their say. At the same time
government has the responsibility to prevent rioting in the streets. The key issue is how to balance the
right of individuals to put forth their controversial views with the necessity for public officials to
maintain public order.
More Liberties under Scrutiny: Privacy Rights
The right to privacy is not explicitly mentioned in the Constitution. Rather, the Supreme Court stated in
Griswold v. Connecticut (1965) that the right to privacy stems from penumbras in the First, Third,
Fourth, Fifth, and Ninth Amendments in the Bill of Rights. The Court has also come to see the
Fourteenth Amendments Due Process Clause as an important source for the right of privacy. One of the
most controversial decisions in this area was Roe v. Wade (1973), in which the Supreme Court accepted
the argument that laws against abortion violate a womans right to privacy by interfering with her
decision whether to have a child. This decision created one of the most divisive public policy issues in
America, even though later Court decisions placed restrictions on abortion rights.
A second controversial application of the right to privacy is the right to die. If the right to privacy
protects our ability to make decisions about the most intimate and personal details of our lives, should it
protect the ultimate decision to end our lives? The U.S. Supreme Court provided support for this idea in
Cruzan v. Director, Missouri Department of Health (1990). The Cruzan case has led to the creation of
living wills and other documents to provide documentation of the patients intention not to be kept
alive by extraordinary means. A final area of controversy is the diminishing of privacy rights in the wake
of 9/11, as government extends its power in order to make the nation safer from terrorist attacks.
The Great Balancing Act: The Rights of the Accused versus the Rights of Society
One of the most difficult areas of the Constitution involves the conflict between the necessity of
government to protect its citizens from crime and the rights given to those accused of criminal offenses
in the Fourth, Fifth, Sixth and Eight Amendments. Your text includes a complete listing of these rights.
During the 1960s the Supreme Court greatly expanded the rights of the accused. In 1963, Gideon v.
Wainwright ensured that a poor defendant would be given an attorney paid for by the government. In
1966, Miranda v. Arizona required the police to inform individuals of their constitutional rights prior to
custodial interrogation, although the Court has been willing in recent years to acknowledge some
exceptions to this rule.
The Death Penalty
The Eight Amendment prohibits cruel and unusual punishment. It is doubtful that the Framers of the
Constitution would have thought the death penalty to be cruel and unusual punishment. In fact the
Fifth Amendment provides that the government may take the life of a citizen as long as it is done
consistently with due process of law. However, in the 1972 case of Furman v. Georgia the Supreme
Court ruled that the random and arbitrary manner in which the death penalty was being used
throughout the nation violated the prohibition against cruel and unusual punishment. The Court
declared existing death penalty statutes to be unconstitutional, but challenged states to restructure and
rewrite their laws on when capital punishment was appropriate. Four years later the Court upheld the
newly revised death penalty laws. Today the death penalty exists in 38 states.