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Civil Liberties and Civil Rights

Types of Civil Liberties


The Civil Rights Movement

The Constitution guarantees many types of civil liberties, including freedom of speech and the press, freedom of religion, and the rights of the accused. Over time, Americans have expanded their civil liberties to include the right to privacy.

Freedom of Speech and the Press

The First Amendment grants citizens freedom of speech, press, petition, and assembly, all essential for citizens to communicate freely in a democracy. Citizens must have the right to criticize the government for democracy to function properly. The courts have granted Americans wide-ranging freedoms of speech and expression.

Unprotected Speech

Not all speech is protected, however. In some cases, the government has the legal right to regulate what Americans say and print. Free speech must first pass a number of tests:

  • Clear-and-present-danger test: Speech that has the potential to cause harm or that constitutes a clear-and-present danger to the government is not protected.
  • Bad-tendency rule: Speech that might lead to some sort of “evil,” such as the violent overthrow of the government, is not protected.
  • Obscenity test: Speech that is considered obscene is not protected, even though Americans have different opinions on what material might be considered obscene.
  • Slander test: Speech that states something about a person or group that is known to be false is not protected because such speech (known as slander) can damage people’s otherwise good reputations.
  • Libel test: Libel, or printed material that slanders others, is also not protected; one important exception relates to public figures: People are free to print anything they want about public figures so long as they do not demonstrate actual malice (a reckless disregard for the truth with the aim of hurting the person).

In some trials, judges issue gag orders, which restrict what journalists can report about the trial. Prior restraint is a governmental act that stops the publication of materials thought to be damaging or slanderous; in recent years, the government has had a difficult time exercising prior restraint.

Example: In 1971, the Nixon Administration tried to prevent the New York Times from publishing classified documents called the Pentagon Papers that detailed how the government waged the Vietnam War. The Supreme Court argued that the government could not block the publication of the Pentagon Papers because otherwise the government would be determining what newspapers can and cannot publish.

Freedom of Religion

The First Amendment includes two clauses that ensure freedom of religion:

  1. The free exercise clause: Congress cannot forbid the practice of any religions.
  2. The establishment clause: Congress cannot make laws that establish specific religions as state religions.
Separation of Church and State

Thomas Jefferson interpreted the establishment clause to mean that there needs to be a “wall of separation between Church and State.” The courts have interpreted the clause to mean the following:

  • The government cannot set up a church.
  • The government cannot aid one religion or prefer one religion over another.
Government Aid to Religious Schools

Many of the recent conflicts over the establishment clause have concerned the role of religion in government-funded schools. In Lemon v. Kurtzman (1971), the Supreme Court held that the government cannot give money directly to religious schools. The Court developed the three-part Lemon test to determine the situations in which the government may give money to religious institutions. The government can only fund religious schools if the aid money follows these three conditions:

  1. It will be used for secular purposes.
  2. It will not be used to advance or inhibit religion.
  3. It will not be used to encourage the government to become involved with the religion.
School Vouchers

A recent controversy over the establishment clause concerns school vouchers, government money given to parents to help pay for tuition at private schools. Some states and municipalities have created voucher programs to help parents get their children out of poorly performing public schools. Opponents of the program argue that voucher programs violate the Lemon test by inadvertently funding religious schools, because many parents choose to send their children to private religious schools. In a 2002 case, the Supreme Court ruled that voucher programs do not violate the establishment clause because parents could use them to send their children to secular private schools.

School Prayer

In the landmark Engel v. Vitale case in 1962, the Supreme Court ruled that school-sponsored prayer in public schools violates the establishment clause and is therefore illegal. The Court rejected all school prayer, even general prayers that do not name a specific deity or propose a particular belief. Nevertheless, the Court has also ruled that religious clubs and organizations can meet on school property, as long as no student is required to attend. The Court has also held that schools cannot begin graduation ceremonies or school events with a prayer.

Free Exercise of Religion

The Bill of Rights does not protect all forms of religious expression. For example, murder in the name of religion is still murder and is therefore illegal. Similarly, the government sometimes overrules parents whose religious beliefs conflict with certain medical practices by requiring the parents to have their children vaccinated. The government has gone back and forth over the extent to which it can restrain religious activities.

Example: The Religious Freedom Restoration Act in 1993 required the government to accommodate religious behavior unless there is a compelling reason not to. The Supreme Court struck down parts of the act in 1997, claiming that Congress overstepped its authority. In fact, the Court has upheld the rights of some religious groups to use illegal substances, such as peyote, during religious ceremonies.

The Rights of the Accused

The Constitution gives many rights to people accused of crimes. The Founding Fathers sought to protect citizens of the United States from a government that would arrest and detain them without cause or trial, which is what Great Britain often did to American colonists before the Revolutionary War. According to the Constitution, a person accused of a crime has these rights:

  • Writ of habeas corpus, or the right to be presented to a judge and hear charges as to why he or she is being held; the government cannot hold people for no reason (Article I, Section 9)
  • Protection against searches and seizures without probable cause (Fourth Amendment)
  • Protection from self-incrimination (Fifth Amendment)
  • Quick arraignment and a speedy trial (Sixth Amendment)
  • Legal counsel (Sixth Amendment)
  • Not be tried more than once for the same crime (Sixth Amendment)
  • Trial by jury (Sixth Amendment)
  • Protection from cruel or unusual punishment (Eighth Amendment)
The Warren Court and the Rights of the Accused

Chief Justice Earl Warren, appointed by President Dwight D. Eisenhower in 1953, led the Supreme Court through many landmark civil rights and civil liberties cases. Some of the rights that the Warren Court established have been scaled back, but most of the basic principles have remained:

  • The exclusionary rule: In Mapp v. Ohio (1961), the Court ruled that all evidence must be submitted to the judge before the jury sees it in all state and federal criminal trials. If the judge decides that the evidence has been obtained illegally, the prosecution will not be able to use the evidence during the trial.
  • The right to an attorney: In Gideon v. Wainwright (1963), the Court ruled that the government must provide for an attorney to represent those defendants in all criminal cases who cannot afford an attorney on their own.
  • The right to a Miranda warning: In Miranda v. Arizona (1966), the Court ruled that police must inform the accused of his or her rights, including the right to remain silent during interrogation.

The Right to Privacy

Privacy is never explicitly mentioned in the Constitution, yet many Americans believe that they have an inherent right to privacy. In practice, Americans today believe their right to privacy includes access to birth control, the freedom to have abortions, freedom from persecution for some sexual behaviors, and the right to die as one chooses.

Birth Control and Abortion

In Griswold v. Connecticut (1965), the Supreme Court ruled that states could not ban the use of contraception because such a ban violated the right to privacy. Justice William O. Douglass argued that several amendments implied a right to privacy, particularly the Ninth Amendment, which states explicitly that the list of rights in the Constitution is not exhaustive.

In 1973, the Supreme Court ruled in the case Roe v. Wade that the government cannot ban abortion within the first trimester. The Court’s ruling is rooted in the woman’s right to privacy, which gives her the right to decide what to do with her body. Since Roe, the courts have limited abortion in a number of cases. In Webster v. Reproductive Health Services (1989), the Supreme Court ruled that states could ban the use of public funds for abortion. Three years later, in Planned Parenthood v. Casey, the Court ruled that states could require pre-abortion counseling, a waiting period of twenty-four hours, and parental permission for girls under eighteen years old.

Dying and Death

Many people now argue that the right to privacy extends to the right to choose one’s death. According to this view, people can choose to end their lives as they see fit. A decision in 1976 by the New Jersey Supreme Court held that a person could choose to refuse treatment for a terminal illness. Most courts have held, though, that people do not have a constitutional right to suicide, on their own or with a doctor’s assistance.

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