chapter 4

Question 1

civil liberties

Answer 1

the focus of civil liberties is freedom

Freedoms you have against government interference in your life

Question 2

bill of rights

Answer 2

It just means a list of civil liberties; a list of things the government is not allowed to do to people

Question 3

“the” Bill of Rights

Answer 3

the first ten amendments of the US Constitution

Question 4

establishment clause (separation of church and state)

Answer 4

So, if the government promotes one religion over others, or
promotes religion over non-religion, this will create an issue under the establishment clause, and
someone will probably file a lawsuit challenging the action

But just as a general matter, make sure you
understand that the establishment clause applies to a situation where it looks like the government is
promoting or endorsing religion—supporting religion

Question 5

free exercise clause

Answer 5

This one applies to a different situation. Here, the government is not supporting or promoting religion; it’s going against someone’s religion, keeping
them from freely exercising their religion. And that’s why the person is complaining. When the free
exercise clause is violated, we either have the government telling someone they cannot do what their
religion requires or making them do something their religion prohibits

Question 6

Sherbert test

Answer 6

When the government takes action that interferes with someone’s free exercise
of their religion, the government must have a compelling interest (that’s the first element), and the
action must be narrowly tailored (that’s the second element

Question 7

compelling interest

Answer 7

If something is compelling, it means it’s really, really important. Whatever the government is doing, it
has to have a really, really important reason for doing that

Question 8

narrowly tailored

Answer 8

And even so, the way the government
pursues that interest must be narrowly tailored. In other words, when the government is pursuing its
compelling interest, it has to do so through action that interferes with people’s religion as little as
possible. If there’s a way to achieve the compelling interest with less interference in someone’s
religion, then the government has to back off and use less interference. So, the government can only
pursue its goals through the least restrictive action on people’s free exercise of religion

Question 9

Religious Freedom Restoration Act (RFRA)

Answer 9

Some people did not like this case (peyote case) . They felt that it allowed the government to interfere too much with
people’s religion; that it watered down the free exercise clause and didn’t protect people against
government action as much as it should. So, the U.S. Congress responded and passed a law called
the Religious Freedom Restoration Act (RFRA, if you want the acronym). What Congress said
through this act is that the U.S. government will be held to the higher standard of Sherbert v. Verner.
Even though that standard is no longer required by the Constitution, and the U.S. government could
get away with more religious interference if it wanted to, we’re choosing not to do that. We are holding
the national government to a higher standard.

So, despite the peyote case, the U.S. government is still bound by the Sherbert standard. Some state
legislatures have done the same thing and passed their own religious freedom restoration acts
binding their state governments to the higher standard of Sherbert as well.

The bottom line here is, if the federal government interferes with your religious practices and you sue
them, they cannot win the case simply by arguing that the law is generally applicable and does not
target your religious practice. They’re going to have to prove that they have a compelling interest, and
that the action they’ve taken is narrowly tailored to achieve that interest. If they can’t prove that,
they’re going to lose the case. They’ll have to back off and find a less restrictive way to accomplish
their goal

Question 9

peyote case

Answer 9

The Native
American Church used this substance as part of its religious sacrament, and some Native Americans
got fired from their jobs for using the substance because it was banned by state law. When they
applied for unemployment benefits, the state of Oregon denied their application. The reasoning was,
if you got fired for breaking the law, we’re not going to pay you unemployment.
Their response was, but the reason we broke the law is because we were exercising our religion, and
under the Sherbert test we should get an exception to that law. Normally they would be right, because
if you think about those two elements we just discussed, although the government has a compelling
interest in prohibiting the use of certain drugs, there is a less restrictive way to pursue that interest in
this case. For example, they could say to the Native Americans, it’s ok for you to use this substance
in church. We just need to regulate it in a way that when people are under the influence of the
substance, they’re not a danger to themselves or to others. You could regulate its use for religious
purposes as opposed to just prohibiting it outright, and that would be less restrictive. So, under the
Sherbert test, the Native Americans had a really strong argument.

But the Supreme Court decided that the Constitution generally does not require the Sherbert test
after all. Instead, if the government’s action is generally applicable (meaning it applies to everyone,
not just to people who engage in the conduct for religious purposes), and if the government is not
targeting anyone’s particular religious practice, then everyone has to obey the law, even if it interferes
with your exercise of your religion

Question 10

freedom of expression

Answer 10

the right to freedom of speech, freedom of the press, freedom of assembly, and
freedom to petition the government

Question 11

symbolic speech

Answer 11

With symbolic speech,
you’re not actually using your voice. You’re engaging in some kind of conduct that is designed to send
a message, and the Supreme Court has said this kind of expression is also covered by the First
Amendment. So, you don’t even have to use words to be protected. The only way the government can
stop symbolic speech is through narrowly tailored action to achieve a content neutral objective

Question 12

Content neutral

Answer 12

means the government’s objective is unrelated to the message being sent by the symbolic speech (the government is taking action for some reason other than the message)

Question 13

narrowly tailored

Answer 13

That means the government
cannot restrict more expression than is necessary to accomplish its goal. If it’s restricting more than
necessary, then it has to pull back.

Question 14

prior restraint

Answer 14

censorship

Question 15

extraordinary circumstances

Answer 15

Like if a news reporter is traveling with the troops during a war, and the military
needs to review what the reporter sends back home in case it contains sensitive information. That’s
an extraordinary circumstance because the reporter might inadvertently give the enemy cues about
where the troops are going, and that could lead to an ambush

Question 16

incitement

Answer 16

This is defined as speech intended, and likely, to provoke imminent
lawless action

Question 17

imminent

Answer 17

Someone is talking about breaking the law, and they’re doing it in a way that makes
the lawless action imminent. By imminent I mean it’s on the verge of happening. They’ve pushed it
so far, that that’s the next domino to fall. A speaker does not have the right to get people so riled up
that it’s like lighting a fuse. The explosion hasn’t happened yet, but you’ve put it in motion

Question 18

fighting words

Answer 18

Another type of unprotected expression is fighting words. They’re similar to incitement, but this is
where you’re making a direct personal insult to someone, and the words are so bad that it’s likely to
provoke an imminent violent response. In other words, they’re going to punch you or do something
like that. People don’t have a First Amendment right to provoke a fight or some other type of violent
response

Question 19

true threat

Answer 19

Another type of unprotected expression is a true threat. There is no First Amendment right to make a
particular person or people in a particular group fear for their safety. So a true threat is a statement
of intent to commit unlawful violence on a particular individual or group. Anyone who does that can
be prosecuted, and it will be no defense for them to argue that they have freedom of expression. That
kind of situation is not covered

Question 20

defamation

Answer 20

Defamation is defined as a false statement, made
as if it were fact, that harms someone’s reputation

Question 21

libel

Answer 21

if defamation is written, such as in a newspaper article, then it’s libel.

Question 22

slander

Answer 22

if defamation is spoken, such as by a radio host on a show, then it’s slander.

Question 23

peaceably

Answer 23

With assembly, notice the word peaceably. The government is allowed to regulate the time, the
place, and the manner of people’s assembly to make sure that it remains peaceful. What the
government cannot do is restrict someone’s gathering or assembly because government officials
don’t like the message that the people are sending. The restrictions have to be content neutral

Question 24

militia

Answer 24

The Second Amendment guarantees the right to keep and bear arms. It mentions the militia, so some
people have argued that you only have the right to keep and bear arms if you’re in the militia. Today,
that would be the National Guard. But the Supreme Court has said otherwise. Just because the First
Amendment mentions a militia doesn’t mean that’s the only reason someone has the right to have a
firearm. There are other reasons, such as self-defense and lawful recreation. So, the government can regulate firearms to make sure they’re used in a safe manner, but firearms cannot be prohibited by
law

Question 25

3rd amendment

Answer 25

The Third Amendment deals with quartering of soldiers. It just says that in peacetime, the
government cannot quarter soldiers in your house without your consent. You have to agree to it.
During war, the government cannot quarter soldiers in your house except as prescribed by law. So,
Congress would pass a law establishing the process for quartering of soldiers, and the government
would have to follow that process. That’s if we’re in wartime

Question 26

4th amendment

Answer 26

Now we’re on the Fourth Amendment. This one deals with searches and seizures and warrants. It’s
written in two parts. I’m going to read the first part for you: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated.” You have a right against unreasonable searches and seizures, and the coverage of this
right is pretty broad. It not only applies to your person, but it also applies to your house or your
residence, and to your stuff (papers, effects, and so on). The key is the word unreasonable. The police
are allowed to conduct searches and seizures. What they’re not allowed to do is conduct
unreasonable ones. So, to really understand this right, we have to know what would make a search
reasonable

Question 27

warrant

Answer 27

The most obvious answer is the police have a warrant. A warrant is a court order authorizing police
officers to conduct a search and seizure, or in the case of an arrest warrant, a seizure of someone’s
person. And this gets us to the second part of the amendment, which talks about requirements that
must be met for a warrant to be valid. I’m going to read that language now: “No warrants shall issue,
but upon probable cause, supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” If we pick that language apart, you’ll see that it
has three requirements that must be met for a warrant to be valid: probable cause, oath or
affirmation, and a particular description. Let’s take those one at a time to make sure you understand
what they mean

Question 28

probable cause

Answer 28

For search warrants, probable cause is a reasonable basis to believe that evidence of a crime will
be found. For an arrest warrant, probable cause is a reasonable basis to believe that the person has
committed a crime. If I’m a police officer and I want a search warrant, I can’t just go to the judge and
say please give me a warrant. The judge will say, why do you want one? And I’ll have to explain the
basis of my suspicion that criminal activity is going on. It can’t just be that I have a hunch or a gut
feeling. I actually have to tell the judge something specific to the person or the place involved that
makes it reasonable to believe criminal activity has occurred or is occurring

Question 29

oath or affirmation

Answer 29

In addition to probable cause, the Fourth Amendment requires an oath or affirmation. In other
words, the person providing the evidence to establish probable cause has to formally swear or affirm
that the information they’re providing is true. If you officially tell a judge that what you’re saying is true,
and then you lie, you’re subject to prosecution for a crime called perjury

Question 30

perjury

Answer 30

Perjury means lying under oath. The idea here is to make sure that when people provide information to a judge for a finding of
probable cause, they know how serious it is to tell the truth. They could be subject to criminal
prosecution if they give false information.

Question 31

particular description

Answer 31

The last thing required by the Fourth Amendment is a particular description of the place to be
searched and of the person or things to be seized. So, the warrant has to have specific language. It
can’t be so open that when the police arrive, they have freedom to decide where they look and what
they look for. If I’m a police officer searching someone’s property for a stolen car, the language of the
warrant has to limit me to the garage, the backyard, and other places where a car could be. That
means I can’t go inside the house and start searching the drawers in someone’s dresser in their
bedroom. There’s no way a car could be in there. The judge is responsible, through specific language
in the warrant, to make sure the police officers’ authority is limited to the scope of their probable
cause

Question 32

consent

Answer 32

The first situation is consent. If I’m a police officer and I want to search someone’s house, I don’t
have a warrant, but I go knock on the front door and the owner answers, I can ask them for permission
to search the house. And as long as I don’t make any threatening gestures, if they tell me I can search
the house, it’s reasonable for me to search because they said yes of their own free will

Question 33

exigent circumstances

Answer 33

Another situation where the police can search and seize evidence without a warrant is called exigent
circumstances. This applies where the police need to act now. If they don’t act now, evidence will
be destroyed. There’s no time to go get a warrant. So, just imagine that I’m a police officer walking
down the street, and when I round a corner, there are people on the front porch of a house handing
someone a baggie and taking money in exchange. They see me and say, “Quick, grab it and head for
the bathroom. ” They start grabbing the baggies and running inside the house. In that situation, it’s
obvious that I don’t have time to go get a warrant. If I took that time, the evidence would be flushed
down the toilet. So, exigent circumstances would allow me to chase them into the house to prevent
them from destroying the evidence

Question 34

plain view

Answer 34

Another warrantless situation you need to know about is called plain view. With plain view, the police
are allowed to seize evidence without a warrant because the evidence is simply in their plain view.
Let’s go back to the scenario where I rounded the corner and the people ran to the bathroom with
their bags of drugs. What if instead of that, I’m walking on the sidewalk in front of a house, you can
see right into the living room through the window, and on the coffee table there are piles of cocaine
with scales, and baggies, and other paraphernalia. I don’t need a warrant to go seize that evidence. I
was just walking down the street and it came within my plain view.
But there is an important point for you to understand. The plain view exception only applies if, at the
time the officer sees the evidence, they are in a place where they’re legally authorized to be, doing
something they’re legally authorized to do. And in this scenario, that’s the case. I was just walking
down the street on a public sidewalk. I turned my head, and there it was in plain view. I wasn’t
violating anyone’s rights in the process

Question 35

automobile exception

Answer 35

The last warrantless situation I want you to know about involves automobiles. Sometimes this is
called the automobile exception to the warrant requirement. If a police officer has a vehicle lawfully
stopped on the roadside, and something happens to give the officer probable cause to believe that
there’s evidence of a crime inside, the officer can search the vehicle for that evidence without going
to get a warrant. A vehicle is mobile. If you take the time to go get a warrant, someone might drive the
vehicle away by the time you get back

Question 36

indictment

Answer 36

An indictment is a document that charges someone with a
crime, and indictments are issued by grand juries

Question 37

grand jury

Answer 37

A grand jury looks at the evidence that the prosecutor has and decides whether that evidence is strong enough for a suspect to be charged with
a crime. A prosecutor cannot just go ahead and charge someone with a serious crime. Instead, they
have to convince a grand jury to issue the charge. That way, if the prosecutor is out of line, the grand
jury can say no, charges will not be issued. Okay. Don’t confuse a grand jury with the trial jury. If a
defendant is on trial, the grand jury has already done its work and is gone

Question 38

double jeopardy

Answer 38

The next thing the Fifth Amendment says is, and I’m quoting the actual language here, “nor shall any
person be subject for the same offense to be twice put in jeopardy of life or limb.” This is what we call
double jeopardy. If the government prosecutes you for an offense once, they can’t prosecute you for
the same offense a second time. The most obvious example would be you’re found not guilty. Then
the prosecutor can’t say, “We’re going to file charges again and make you go to trial with a different
jury.
” That would violate double jeopardy

Question 39

federalism

Answer 39

However, this protection is not as straightforward as it seems. There are actually two situations where
you could end up in court a second time for the same action. The first one has to do with
federalism—in other words, the fact that we have two levels of government in the United States. If a
person’s conduct violates both state law and federal law, each of those governments can prosecute
the person for violating their law. The second situation involves the difference between a criminal
case and a civil case. Double jeopardy only applies in criminal cases, which means you could be
sued by someone in civil court after already being prosecuted for the same thing in criminal court

Question 40

right against self-incrimination or the right to remain silent

Answer 40

Due process of law. And it basically means if you’re the subject of a criminal investigation, you don’t have to
provide the government with any evidence. If they ask you questions, you don’t have to answer. If they
want you to testify in court and you don’t want to, you don’t have to. You are not obligated to give them
any information that might incriminate you, which is why it’s nicknamed the right to remain silent

Question 41

due process of law

Answer 41

The next right in the Fifth Amendment is the right to due process of law. Specifically, it says the
government cannot deprive you of life, liberty, or property without due process of law. This means the
government’s procedures have to be fair. Due process requires that if the government is going to take
away your life, your liberty, or your property, they do it in a way that is fair. You get notice of what they
plan to do, and you get an opportunity to be heard and to argue your side of the issue. That has to
happen before the government makes its decision

Question 42

Just compensation

Answer 42

And the last thing in the Fifth Amendment is the right to just compensation if the government takes
your private property for a public use. For example, what if they want to widen the road in front of your
house, but to do that, they need to take three feet off your front lawn? They can’t just take it. They
have to pay you for it

Question 43

eminent domain

Answer 43

You may have heard the term eminent domain. This is the power of government
to take private property for public use. The Fifth Amendment says whenever the government
exercises this power, they have to pay you a fair price for the property taken

Question 44

exclusionary rule

Answer 44

We apply a rule called the exclusionary rule. If the police acquire evidence in violation of someone’s
constitutional rights, that evidence will be excluded from the trial. In other words, the evidence
cannot be used against the defendant. It’s thrown out. That’s the exclusionary rule, and its purpose
is to encourage police officers to follow the Constitution during their criminal investigations. Because
as an officer, you know you’re going to lose the evidence if you violate someone’s constitutional
rights

Question 45

Good faith

Answer 45

There are two exceptions to the exclusionary rule—situations where evidence can be used against a
defendant even though it was obtained in violation of their rights. These exceptions are good faith
and inevitable discovery. Good faith applies when the police honestly believe they are following the
Constitution, such as when they execute a defective warrant. They don’t know it’s defective, and they
followed the rules by getting a warrant before conducting their search. Since there’s no bad behavior
to fix, the evidence they seize will be admissible in court

Question 46

Inevitable discovery

Answer 46

Inevitable discovery applies when
evidence obtained illegally by the police would have been found legally by someone else anyway.
There’s a case where police officers learned the location of a murder victim’s body by violating the
defendant’s right to remain silent. When they went to retrieve the body, a search party was
approaching the same spot. Because the search party would have found the victim even without
police misconduct, the evidence was admitted at trial

Question 47

the right to a speedy and public trial

Answer 47

That pretty much explains itself. The government can’t
make you sit in jail for years before they take you to trial. And the trial has to be public. They
can’t have witnesses testify in secret so nobody knows how the court reached its decision

Question 48

the right to trial by an impartial jury of the state and district where the crime was committed.

Answer 48

If you’re on trial for a crime, and you want your guilt or innocence determined by a jury of your
peers instead of the judge, you have a right to that. And the jury has to be impartial; it cannot
be biased against you. Also, the jury has to be drawn from the local area. They can’t make you
travel a long distance from where the offence occurred so that you can be tried by a jury
somewhere else

Question 49

the right to be informed of the nature and cause of the accusation.

Answer 49

If you’re going to be
charged with a criminal offense, you need to be told what that charge is. That way you’re able
to prepare a defense against the charge

Question 50

the right to be confronted with the witnesses against you

Answer 50

When the government brings in
witnesses to testify against you, you have the right to be there. And you also have the right to
question those witnesses. That’s called CROSS EXAMINATION

Question 51

The right to compulsory process for obtaining witnesses in your favor

Answer 51

If you’re charged with a
crime, and somebody has evidence that you’re not guilty but they refuse to testify, you can
get a court order compelling them to come in and offer that testimony to help your defense

Question 52

counsel

Answer 52

The last right in this amendment is the right to the assistance of counsel for your defense.
Here, the word counsel means an attorney to help you present a defense against the charge
or the charges

Question 53

public defenders

Answer 53

Because of this right, we have public defenders. If someone is charged with
a crime, but they don’t have enough money to pay for a defense attorney, the government has
to provide one for them

Question 54

Miranda warning

Answer 54

Our next item is the Miranda warning. Everybody knows this. “You have the right to remain silent.
Anything you say can and will be used against you in a court of law. You have the right to an attorney.
If you cannot afford an attorney, one will be provided for you by the government.” That warning
contains two rights that we’ve already discussed: the right against compelled self-incrimination from
the Fifth Amendment (in other words, the right to remain silent); and the right to the assistance of
counsel from the Sixth Amendment

Question 55

custodial interrogation

Answer 55

Now on TV and in the movies, police officers always read these rights at the moment they handcuff
someone. There’s nothing wrong with that, but there’s also no rule that says you have to read the
warning at that particular time. You need to know when the warning is required, and the magic words
are custodial interrogation. Custodial means you’re in custody, you’ve been arrested. That doesn’t
necessarily mean you’re in handcuffs either. If the police have put you in a situation where you’re not
free to leave, then you’re in custody. Interrogation means questioning. So, if the police are holding
you in custody and they want to question you, they have to read you your Miranda rights before the
questioning starts.
What if the police do not read the Miranda warning before custodial interrogation, and the defendant
confesses? Then we apply the exclusionary rule, and the confession cannot be used against the
defendant in court. You have to follow the rules. If you don’t follow the rules, the evidence will be
excluded

Question 56

7th amendment

Answer 56

Our next amendment in the Bill of Rights is the Seventh Amendment. It’s very simple. In a civil case,
you have a right to trial by jury. You might be thinking, didn’t the Sixth Amendment already say that?
No, it did not. The Sixth Amendment said in a criminal case, you have the right to trial by an impartial
jury. So, the Seventh Amendment comes along and says the right to trial by jury also applies in a civil
case

Question 57

bail

Answer 57

The judge can say, “I’ll let you out, but you need to leave a certain sum of money with the court as a
security deposit. And you need to understand that if you skip the jurisdiction and don’t come back
for your trial, you lose that money. ” That’s called bail. So, it’s an amount of money that you have to
pay as a security deposit to get out of jail while you’re waiting for your trial. You’re basically promising
that you won’t run away; you’ll come back for trial. The Eighth Amendment says that the judge cannot
charge you excessive bail. Otherwise, the judge could abuse their power and just mess with you by
setting bail at $100 million, knowing very well that you can’t pay that much, and so you have to stay
in jail.

Question 58

8th amendment

Answer 58

The Eighth Amendment is next. There are three rights in this amendment. The first right says the
government cannot charge you excessive bail. To understand that one, you have to know what the
word bail means. Imagine being arrested and held in jail while you’re waiting for your trial. You go to
the judge and you say, “Judge, you should let me out of jail until my trial. After all, what if I’m found
not guilty? Then I never should have been in jail in the first place, and it would have been unfair to
hold me. I promise I’ll come back for trial, but let me out until the trial happens.
”

Question 59

9th amendment

Answer 59

just because certain rights are listed in the Constitution doesn’t mean those are the only
rights that exist. The people have other rights too

Question 60

10th amendment

Answer 60

And then the last amendment in the Bill of Rights is the Tenth Amendment. That one says any power
that’s not delegated to the national government or prohibited to the states belongs to the states (or
to the people). It’s based on federalism. It protects individuals by telling the national government,
you don’t get to do everything because a lot of power belongs to the states. If you don’t have power
to do something, you need to back off and leave people alone

Question 61

right to privacy

Answer 61

Before concluding, we should discuss the right to privacy. The word “privacy” is not in the
Constitution, but the Supreme Court has inferred this right from others that are written there. For
example, the Fourth Amendment prohibits the police from searching your house without probable
cause. That’s because your house is your private place. The Court has used this kind of reasoning to
support a constitutional right to privacy. Because of this right, the government cannot punish a
couple for using contraceptive birth control during sex. The government also cannot punish same-
sex couples for engaging in sexual relations. Both cases involve private matters that are none of the
government’s business. These are just two of many ways that the right to privacy has been applied.