Janet Lin

Chapter 3 Outline
Civil Liberties: Protecting Individual Rights
1. Civil Liberties Specific individual rights, such as freedom of speech, that are
constitutionally protected against infringement by government.
a. It refers to specific individual rights, such as protection against selfincrimination, whereas civil rights have to do with whether members of
different groups are treated equally.
2. The Constitution: The Bill of Rights and the Fourteenth Amendment
a. Bill of Rights
i. Created because of the constitutions failure to enumerate individual
freedoms
ii. Enacted in 1791
iii. First then amendments of the Constitution
iv. Examples of these rights
1. First Amendment: freedom of speech, press, assembly, and
religion
2. Second Amendment: right to bear arms
3. Fourth Amendment: protection against unreasonable search
and seizure
4. Fifth Amendment: protection against self-incrimination and
double jeopardy
5. Sixths Amendment: right to a jury trial, to an attorney, and to
confront witnesses
6. Eighth Amendment: Protection against cruel and unusual
punishment
b. The Supreme Court has assumed responsibility for defining what the Bill of
Rights guarantees will mean in practice, in some areas the Court has
devised specific tests to determine whether authorities have acted
properly
c. Originally the bill of rights only applied to the national government. In
Barron v. Baltimore (1833), the Supreme court said the first ten
amendments did not contain any expression indicating it being applied to
state governments
3. Selective Incorporation of Free Expression of Rights
a. The Development of the Bill of Rights being incorporated into State laws
occurred slowly
b. After the Civil War, several southern states enacted laws denying newly
freed slaves the right held by whites
c. Then Congressed passed the reconstruction act which, which placed the
southern states under military rule until they ratified the amendment and
adopted state constitution that conformed with the U.S constitution
d. In 1868, the Fourteenth Amendment was ratified it includes a due process
clause that says no state shall deprive any person of life, liberty, or
property, without due process of law.
e. Then through cases such as Gitlow v New York (1925), the Supreme Court
upheld a New York laws that made it illegal to advocate the violent
overthrow of the U.S. Government, In doing so, however, the Court held

Janet Lin
that states do not have complete authority over what their residents can
say and write. They interpreted the Fourteenth Amendments due process
clause to protect a First Amendment Right.
f. Then the Supreme Court engaged in what came to be known as selective
incorporation the process by which certain of the rights contained in
the bill of Rights become applicable through the Fourteenth Amendment
to actions by the state government.
4. Freedom of Expression
a. First Amendments provides for the freedom of expression the right of
individual Americans to hold and communicate thoughts of their choosing.
b. In 1917, the Congress passed the Espionage Act, which prohibited forms
od dissent, including the distribution of antiwar leaflets that could harm
the nations effort in World War I.
i. In Schenck v. Untied States (1919) the court unanimously upheld the
constitutionality of the Espionage Act. The Court said that Congress
could restrict speech that was of such a nature as to create a clear
and present danger to the nations security.
ii. The Schenck case established a constitutional standard the clearand-present-danger test. According to this test the government
has to clearly demonstrate that spoken or written expression
presents a clear and present danger before it can prohibit the
expression
c. Free Speech
i. Brandenburg v. Ohio (1969)
1. In a Ku Klux Klan rally, Clarance Brandenburg said that
revenge must be taken if the government keeps suppressing
the white Caucasian race. He was convicted under an Ohio
Law, but the Supreme Court reversed the conviction, saying a
state cannot prohibit speech that advocates the unlawful use
of force unless it meets a two-part test.
2. First, the speech must be directed at inciting producing
imminent lawless action,
3. Second, it must be likely to produce such action
4. This test the likelihood of imminent lawless action is a
refinement of the clear and present danger test.
ii. The Courts protection of Symbolic Speech has been less
substantial than its protection of verbal speech. For example during
the Vietnam war when a protester burned his draft registration card.
The Court Concluded that the federal law prohibiting the destruction
of draft cards was intended to protect the militarys manpower
needs and not to prevent people from criticizing government policy.
iii. However, in 1989, the Court ruled that symbolic burning of the
American flag is a lawful form of expression in Texas v. Johnson
d. Free Assembly is also protected by the Bill of Rights
e. Press Freedom and Prior Restraint
i. In New York Times co. v United States (1971), the Court ruled that
the Timess publication of the Pentagon Papers could not be blocked
by the government

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ii. The unacceptability of prior restrains - government prohibition of
speech or publication before it occurs - is basic to the current
doctrine of free expression.
f. Libel and Slander
i. If false information harmful to a persons reputation is published
(libel) or spoken (slander), the injured party can sure for damages.
Generally such libel or slander can only be allowed if there is
evidence of the person doing bad things.
g. Obscenity
i. Obscenity is a form of expression that is not protected by the Fist
Amendment and thus can legally be prohibited
ii. Miller v. California (1973), established a three part test for a material
to be judged obscene.
1. Fist the material must depict sexual conduct in a patently
offensive way
2. Second the material must be precisely descried in law as
obscene
3. Third the material taken as a whole must appeal to prurient
interest and have no redeeming social value
5. Freedom of Religion
a. Establishment clause
i. Interpreted by court to mean that government may nor favor one
religion over another or support religion over no religion
b. Lemon v. Kurtzman (1971)
i. A case involving state funding of salaries or religious school
instructors who teach secular subjects, such as math and English.
ii. In the ruligin, the Court articulated a three point test that is known
as the Lemon Test
1. First: the statute must have a secular legislative purpose
2. Second: its principle or primary effect must be one that
neither advances nor inhibits religion
3. Third: the statute must not foster an excessive government
entanglement with religion
6. The Free Exercise Clause
a. The First and Fourteenth Amendments also prohibits government
interference with the free exercise of religion.
b. The free-exercise clause has been interpreted t mean that Americans
are free to hold ant religious belief of their choosing.
7. Right to Bear Arms
a. Second Amendment to the Constitution says A well regulated Militia,
being necessary to the security of a free state, the right of the people to
keep and bear Arms, shall not be infringed.
8. Right of Privacy
a. The Court decided after the Griswold v. Connecticut (1965), case that
individuals have a zone of personal privacy that government cannot
lawfully invade.
9. Right of Persons accused of Crimes

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a. Due process refers to legal protections that have been established to
preserve the rights of individuals. The most significant of these
protections is procedural due process the term refers primarily to
procedures that authorities must follower before a person can lawfully be
punished for an offense.
b. The Constitution offers procedural safeguards designed to protect a
person form wrongful arrest, conviction, and punishment.
i. Article I, Section 9, a person who is in police custody is entitle to
seek a write of habeas corpus
ii. The Fifth and Fourteenth Amendments provide generally that no
person can be deprived of life, liberty, and property without due
process of law.
iii. Specific Procedural protections for the accused are listed in the
Fourth, Fifth, Sixth, and Eighth Amendment.
c. Procedures
i. Suspicion Phase: Unreasonable Search and Seizure (Fourth
Amendment)
ii. Arrest Phase: Protection against Self Incrimination (Fifth Amendment)
iii. Trial Phase: The right to a Fair Trial
1. Legal Counsel and Impartial Jury
a. Under the fifth Amendment, suspects charged with a
federal crime cannot be tried unless indicated by a
grand jury
b. The sixth amendment provides a right to legal counsel
before and during trial
c. Criminal Defendants also have the right to a speedy trial
and to confront witnesses against them. At federal level
and sometimes at state level they have a right to jury
trial, which is to be heard by an impartial jury.
2. Exclusionary Rule
a. An issue in some trials is the admissibility of evidence
obtained in violation of the defendants rights
b. The Exclusionary rule bars that use of such evidence
in some circumstances
iv. Sentencing Phase: Cruel and Unusual punishment (Eighth
Amendment)
v. Appeal: One Chance, Usually
1. The Constitutional does not guarantee and appeal after
conviction, but the federal government and all states permit
at least on appeal