Unit 3 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

Which civil liberties are established by the First Amendment?

Answer 6

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 7

What is freedom of the press?

Answer 7

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 advertisements from cigarette manufacturers.

Question 8

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

Answer 8

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 9

Define “censorship”

Answer 9

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 10

Define “pure speech”

Answer 10

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

Question 11

What is meant by “speech plus” conduct?

Answer 11

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

Question 12

Define “symbolic speech”

Answer 12

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 13

_____ refers to harmful, untrue statements in spoken form.

Answer 13

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 14

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

Answer 14

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:

whether the average person in a community would find that the work as sexually explicit

whether the work depicts or describes, in an offensive manner, sexual conduct (as defined by state law)

whether the work, taken as a whole, lacks any serious literary, artistic, political, or scientific value

Question 15

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

Answer 15

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 16

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

Answer 16

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 17

Describe Schenck v. United States (1919)

Answer 17

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 18

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 18

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 19

What does the Establishment Clause of the First Amendment prohibit?

Answer 19

he 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 20

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

Answer 20

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 21

Describe Engel v. Vitale (1962)

Answer 21

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 22

What civil liberties are established in the Second Amendment?

Answer 22

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 23

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

Answer 23

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 24

How does the Fourth Amendment protect American citizens?

Answer 24

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 25

What is the exclusionary rule?

Answer 25

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

Question 26

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

Answer 26

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 27

Describe Miranda v. Arizona (1966)

Answer 27

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-incrimination is termed “Mirandizing.”

Question 28

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

Answer 28

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 29

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 29

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 30

The 5th and 14th amendments both contain which clause?

Answer 30

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 31

What are the two types of due process?

Answer 31

The two types of due process are:

Procedural due process: protects individuals by ensuring that adjudication processes are fair and impartial

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 32

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 32

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 33

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 33

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 34

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

Answer 34

Eighth

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

Question 35

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 35

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 36

Describe Roe v. Wade (1973)

Answer 36

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.