Civil Liberties

Question 1

Define:

civil liberties

Answer 1

Civil liberties are the freedoms that protect the individual from the government by setting the outer limits of government power. They are those inalienable rights retained by the U.S. citizens. They include rights such as the freedom of religion and the right to bear arms.

The Bill of Rights was established to protect civil liberty from infringement by the federal government.

Question 2

Who are the ultimate guarantors of civil liberties?

Answer 2

The ultimate guarantors of civil liberties are the courts, where a citizen can file suit to prevent an infringement of rights.

Question 3

In its original text, the Constitution prohibits bills of attainder. What are bills of attainder?

Answer 3

A bill of attainder is an act of the legislature deeming a person or groups of persons guilty of a crime without the benefit of a trial. The Constitution also disallowed bills of attainder from state legislatures.

An example of a bill of attainder would be a congressional act that barred the government from paying the salary of three specifically identified federal employees for supporting Communism.

Question 4

An _____ _____ _____ law retroactively changes the legal consequences of an act that was legal when it was committed.

Answer 4

ex post facto

Barred by the Constitution, ex post facto laws are not limited to making an act illegal after the fact. They may also increase the punishment prescribed for an act that was a crime when committed.

Question 5

Article I, Section IX bars Congress from suspending the privilege of the writ of habeas corpus, unless invasion or rebellion requires it to ensure public safety. What is a writ of habeas corpus?

Answer 5

A writ of habeas corpus is a court order requiring an arresting authority to produce a person held in custody and show sufficient cause for their detention. A writ of habeas corpus thus prevents permanent, unlawful detentions.

Question 6

Describe:

Barron v. Baltimore (1833)

Answer 6

In Barron v. Baltimore, the Court held that the Bill of Rights did not apply to state governments. Much of Barron has been overruled in the 20th century, as the Court has held that the due process clause of the Fourteenth Amendment selectively incorporated the Bill of Rights and applied them to state governments.

Question 7

Which civil liberties are established by the First Amendment?

Answer 7

The First Amendment establishes the following freedoms, which are civil liberties protected from government interference:

• freedom of the press
• freedom of speech
• freedom of assembly and petition
• freedom of religion

The First Amendment also provides that the federal government will not establish a state religion.

Question 8

What is freedom of the press?

Answer 8

Freedom of the press protects publishers from government interference, although the Supreme Court has established some limits. For example, publishers can be held liable for publishing advertisments from cigarette manufacturers.

Question 9

______, the knowing printing of falsehoods, is not protected under the First Amendment.

Answer 9

Libel

Newspapers received an extra layer of protection in New York Times v. Sullivan (1964), where the Court held that the printing of falsehoods must be done with an “actual knowledge of falsity, or reckless disregard for the truth” when reporting on public figures.

Question 10

Define:

censorship

Answer 10

Censorship is the suppression of any form of public communication, such as speech, because communication may be considered objectionable or harmful to the government.

In the United States, censorship by federal and state governments is generally forbidden, although exceptions exist in times of war and for speech deemed obscene.

Question 11

What is prior restraint?

Answer 11

Prior restraint refers to the practice of a government imposing censorship restriction on the expression of an idea before the idea is expressed.

In New York Times Co. v. United States (1971), the federal government sought to bar the publication of top secret materials detailing U.S. involvement in Vietnam. The Supreme Court held that the federal government could not exercise prior restraint under the Constitution.

Question 12

Although nearly an absolute right, the Supreme Court has recognized that federal and state governments may enact reasonable time, place, or manner restrictions on _____.

Answer 12

speech

Guaranteed under the First Amendment, the legal protections applied to speech are some of the most expansive in the world.

Question 13

Define:

pure speech

Answer 13

Pure speech is everyday, normal speech, and receives the most protection from the courts.

Question 14

What is meant by “speech plus” conduct?

Answer 14

Speech plus conduct refers to speech accompanied by symbols. As an example, speech plus can include burning a draft card accompanied by a chant regarding war. Speech plus receives less protection from the courts, because actions can be physically dangerous.

Courts have consistenly ruled that those who engage in speech plus conduct may not endanger public safety, trespass, or obstruct traffic.

Question 15

Define:

symbolic speech

Answer 15

Symbolic speech is speech unaccompanied by words. Examples of symbolic speech include black armbands in protest of war or flag-burning.

Symbolic speech may be restricted by the government if it endangers public safety.

Question 16

_____ refers to harmful, untrue statements in spoken form.

Answer 16

Slander

Slander is not protected under the First Amendment, and uttering slanderous statements may subject one to civil liability.

Much like libel’s standard for written publication, public officials must demonstrate that the speech was malicious (conveyed with “knowledge that the information was false or with reckless disregard” of whether it was false or not), while private individuals need not do so.

Question 17

How has Congress limited the free speech protections of advertisers?

Answer 17

In passing the Truth in Advertising Act and related laws, Congress restricted the free speech rights of commercial (business) advertisers, barring them from publishing false statements.

Question 18

The Miller Test, established in Miller v. California (1973), allows governments to regulate what type of speech and publication?

Answer 18

The Miller Test (aka the Three Prong Obscenity Test) is the standard used by courts to determine obscenity of speech or expression. The three prongs are:

1. whether the average person in a community would find that the work as a whole appeals to prurient interests
2. whether the work depicts or describes, in an offensive manner, excretory functions or sexual conduct (as defined by state law)
3. whether the work, taken as a whole, lacks any serious literary, artistic, political, or scientific value

Question 19

What is the current standard regarding federal and state law regulation of speech advocating violence?

Answer 19

The Supreme Court held in Brandenburg v. Ohio (1964) that the government may not punish speech simply because it advocates violence in the abstract; rather, there must be a threat of “imminent lawless action.”

Brandenburg v. Ohio arose out of a Ku Klux Klan rally, where the state of Ohio had punished a Klan leader for advocating “revengeance” against those who supported racial minorities.

Question 20

The “Clear and Present Danger” test applies to government regulation of what activity?

Answer 20

The Clear and Present Danger test applies to government regulation of speech. The Supreme Court has held that a law restricting speech can be deemed constitutional if it prohibits language posing a “clear and present danger.”

Schenck v. United States (1919), a case arising out of efforts to obstruct the draft during World War I, was the first case to use the Clear and Present Danger test. The Court held that actions such as attempting to cause a panic by shouting “fire” in a crowded theater are not subject to First Amendment protections.

Question 21

Describe:

Schenck v. United States (1919)

Answer 21

In Schenck v. United States (1919) the Court held that Congress could restrict constitutional free speech protections in times of “clear and present danger.” Schenck, a Socialist Party leader, had mailed anti-draft circulars during World War I and had been jailed.

Question 22

Describe:

Gitlow v. New York (1925)

Answer 22

Benjamin Gitlow, a Socialist Party leader, had been convicted of publishing The Left Wing Manifesto, which advocated overthrowing the government by violent means.

The Court upheld Gitlow’s conviction citing that the First Amendment’s Free Speech clause had been “incorporated” into the liberties covered by the due process clause of the 14th Amendment.

Gitlow marked a reversal of Barron v. Baltimore (1833), and the first case in which the Court incorporated the Bill of Rights and applied it to state legislation.

Question 23

Describe:

Texas v. Johnson (1989)

Answer 23

In Texas v. Johnson, the Court struck down a Texas state law that prohibited burning the U.S. flag. The Court held that the defendant’s burning of the flag constituted “speech” and was protected under the First Amendment.

Question 24

What restrictions has the Supreme Court allowed to the First Amendment’s guarantee of “the right of the people peaceably to assemble, and to petition the government for a redress of grievances”?

Answer 24

The Court has allowed for reasonable restrictions on the right to assemble, such as requiring parade permits or preventing gatherings from obstructing the flow of traffic.

Question 25

What does the Establishment Clause of the First Amendment prohibit?

Answer 25

The Establishment Clause reads, “Congress shall make no law respecting the establishment of religion.” The Supreme Court has held that this provision prohibits Congress from establishing a national religion or giving preference to one religion over another.

Question 26

What religious protections are established in the Free Exercise Clause of the First Amendment?

Answer 26

The Free Exercise Clause states that Congress shall make no law regarding the “free exercise” of religion. This clause holds that the government may not compel certain beliefs nor forbid them.

Question 27

Describe:

Reynolds v. United States (1878)

Answer 27

In Reynolds, the Court upheld federal legislation making polygamy a crime. Mormon leader George Reynolds had been charged with bigamy and contended that the law was a violation of his First Amendment rights.

Question 28

Describe:

Engel v. Vitale (1962)

Answer 28

In Engel v. Vitale, the Court held that it was unconstitutional for state officials to encourage the recitation of an official school prayer in public schools. The Court ruled that government-composed prayers recited in public schools were a violation of the Constitution’s Establishment Clause.

The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.”

Question 29

Describe:

Lemon v. Kurtzman (1971)

Answer 29

In Lemon v. Kurtzman the Supreme Court held that awarding state funds to Catholic schools for teaching secular subjects violated the Establishment Clause. The Court established the three-pronged “Lemon Test,” which details the requirements of religious legislation.

Question 30

The Lemon Test was established in Lemon v. Kurtzman to detail the requirements of legislation concerning _____.

Answer 30

religion

If any of the three Lemon prongs are met, the government action is unconstitutional. The prongs are:

1. the government’s action must have a secular legislative purpose
2. the government’s action must not have the primary effect of either advancing or inhibiting religion
3. the government’s action must not result in an “excessive government entanglement” with religion

Question 31

Describe:

Oregon v. Smith (1990)

Answer 31

In Oregon v. Smith, the Court held that states are not required to accommodate illegal acts done in pursuit of religious beliefs, although they have the power to do so if they desire.

The two plaintiffs had been fired after using peyote (an illegal drug) in a religious ceremony. They filed for unemployment benefits, which were denied because the reason for their dismissal was deemed work-related “misconduct.” They then filed suit.

Question 32

The City of Hialeah, Florida had passed an ordinance that banned ritual slaughter of animals, an essential practice in the Santería religion, while the same law exempted kosher slaughter. How did the Supreme Court rule on the issue?

Answer 32

In Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) the Court held that the ordinance was not generally applicable, in that it exempted kosher slaughter, but was directed at Santería. Thus, the city faced a strict scrutiny standard and, because it was unable to demonstrate a compelling interest, the law was struck down.

Question 33

What civil liberties are established in the Second Amendment?

Answer 33

The Second Amendment establishes the right to bear arms.

In full, the amendment reads that “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.”

Question 34

In District of Columbia v. Heller (2008), the Supreme Court established which interpretation regarding the Second Amendment?

Answer 34

In Heller, the Supreme Court established for the first time that the right to bear arms is not limited solely to service in a state militia but that individuals may bear arms for purposes such as self-defense.

Question 35

The Third Amendment is the least cited of any of the amendments contained in the Bill of Rights. Why?

Answer 35

The Third Amendment prohibits the quartering of troops in private residences without the owner’s consent. There are no Supreme Court cases interpreting the Third Amendment and only one minor lower court opinion, largely because the issue of quartering troops in private residences has virtually never arisen.

Prior to the American Revolution, British troops were quartered in private homes in Boston, which roused the colonial ire.

Question 36

How does the Fourth Amendment protect American citizens?

Answer 36

The Fourth Amendment prohibits “unreasonable searches and seizures” and requires a warrant to be supported by a sworn oath and signed by a judge. Any warrant must be supported by probable cause.

Question 37

How did the Supreme Court treat a warrantless seizure of evidence from a person’s private home in Weeks v. United States (1914)?

Answer 37

The Court unanimously held that the seizure of evidence without a warrant was a violation of the protections of the Fourth Amendment. The Fourth Amendment was incorporated to the states via the due process clause of the 14th Amendment in Mapp v. Ohio (1961).

Question 38

What is the exclusionary rule?

Answer 38

The exclusionary rule holds that unconstitutional seizure of evidence may not be admissable in a criminal trial.

Question 39

Criminal defendants often “plead the Fifth.” What does this term mean?

Answer 39

The Fifth Amendment states that no defendant “shall be compelled in any criminal case to be a witness against himself.” Essentially, pleading the Fifth means that defendants are not required to testify under oath if it would incriminate themselves.

Pursuant to the decision of the Supreme Court in Miranda v. Arizona, criminals are advised of their Fifth Amendment “right to remain silent.”

Question 40

Describe:

Miranda v. Arizona (1966)

Answer 40

In Miranda v. Arizona, the Supreme Court held that the Fifth Amendment’s privilege against self-incrimination requires arresting officers to advise suspects of their rights to remain silent and to have an attorney present for any questioning.

Advising suspects of their Fifth Amendment privilege against self-incrimation is termed “Mirandizing.”

Question 41

Once a defendant is acquitted, he/she cannot be retried pursuant to the _____ _____ _____ contained in the Fifth Amendment.

Answer 41

double jeopardy clause

The clause reads, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

Question 42

Under the Fifth Amendment’s Takings Clause, a government may only take property pursuant to _____ _____, if it provides just compensation and the taking is for a public purpose.

Answer 42

eminent domain

In the 2004 case of Kelo v. New London, the Supreme Court held that the exercise of eminent domain need not transfer the property to the government; a municipality can transfer the property from one individual to another for purposes of economic development. Pursuant to the Court, property can now be taken for the benefit of another private party.

Question 43

What limit does the Fifth Amendment provide on the concept of eminent domain?

Answer 43

The Fifth Amendment’s Takings Clause requires that the the government provide just compensation in the event it takes property from a private individual.

Question 44

The Fifth and 14th Amendments both contain a _____ _____ clause.

Answer 44

due process

The Fifth Amendment applies to the federal government, while the 14th applies to the states. Both prohibit depriving a person of “life, liberty, or property without due process of law.” The due process clauses require that the legal proceeding be fair and that one have notice and opportunity to be heard.

Question 45

What are the two types of due process?

Answer 45

The two types of due process are:

1. Procedural due process: protects individuals by ensuring that adjudication processes are fair and impartial
2. Substantive due process: protects individuals from government intrusion into fundamental rights and liberties by requiring that laws restricting liberties be fair, reasonable, and further a legitimate governmental interest

Question 46

The Supreme Court had used the concept of _____ _____ _____ to establish a right to same-sex sexual activity, access to birth control, and the right to have an abortion, among other rights.

Answer 46

substantive due process

Substantive due process allows courts to enforce rights not specifically ennumerated in the Constitution, such as the right to marry a person of a different race, or the right to control the education of one’s own children.

Question 47

Describe:

Korematsu v. United States (1944)

Answer 47

During World War II, President Roosevelt interned Japanese Americans on the West Coast. Fred Korematsu, an American citizen of Japanese descent, challenged the practice. The Court ruled against him, holding that the need to protect against espionage outweighed the plaintiff’s individual rights and those of Japanese Americans.

Question 48

The Sixth Amendment guarantees a defendant a right to a speedy trial. If a court finds that a trial has been unduly delayed, what happens to the case?

Answer 48

In the event that a trial is unduly delayed, the Sixth Amendment’s right to a speedy trial requires the case to be dismissed.

There are some limitations; for instance, a court can examine the length of the delay, the reasons for it, and whether the defendant is prejudiced by the delay.

Question 49

Pursuant to the Sixth Amendment, who decides the guilt or innocence of a criminal defendant in a criminal trial?

Answer 49

In a criminal trial, guilt or innocence is the province of an impartial jury. In most federal cases, jury trials are not available for petty offenses (i.e. offenses that carry a maximum sentence of less than six months).

Question 50

The Sixth Amendment guarantees access to legal counsel (lawyers) for all defendants in a criminal proceeding. What occurs if a defendant cannot afford an attorney?

Answer 50

Pursuant to Gideon v. Wainwright (1964) and other cases, the court will assign counsel for an indigent defendant in any case in which there may be actual imprisonment.

Counsel is usually provided to indigent defendants through a public defender or by licensed attorneys working for free.

Question 51

Under the _____ Amendment, the federal government is prevented from imposing excessive bail or fines and carrying out cruel and unusual punishment.

Answer 51

Eighth

The Eighth Amendment protects citizens against torture, said by the Supreme Court to include disembowling, dissection, and other punishment “degrading to human dignity.”

Question 52

Does the death penalty constitute cruel and unusual punishment under the Eighth Amendment?

Answer 52

No. In Fuman v. Georgia (1972), the Supreme Court suspended the death penalty based upon perceived difficulties with various state statutes. Once states amended or readopted new death penalty statutes, the Supreme Court held that the death penalty was not cruel and unusual punishment under the Eighth Amendment in Gregg v. Georgia (1976).

Pursuant to the Supreme Court, the death penalty remains limited. For instance, it may not be used in cases of rape.

Question 53

Although not specifically mentioned in the Constitution, the Court has held the right to _____, protecting the rights of citizens to purchase contraception, have an abortion, or engage in consensual same-sex activity behind closed doors.

Answer 53

privacy

Beginning in Griswold v. Connecticut (1964), and continuing in Roe v. Wade (1972) and Lawrence v. Texas (2004), the Court held that a right to privacy existed in the Constitution’s “penumbras” and “emanations.”

Question 54

Describe:

Roe v. Wade (1973)

Answer 54

In Roe v. Wade, the Court held that the right to privacy, first established in Griswold, extended to a woman’s right to have an abortion.

In overturning the Texas law criminalizing abortion, the Court placed the right to privacy under the due process clause of the 14th Amendment.

Question 55

Although the Bill of Rights Amendments only applied to the federal government at the time they were written, what constitutional amendment applied the vast majority of them to state and local governments?

Answer 55

As decided in a number of Supreme Court cases, the Bill of Rights was applied (incorporated) to the states pursuant to the 14th Amendment.

For instance, in Mapp v. Ohio (1961), the Supreme Court incorporated the Fourth Amendment to the states.