Sean Hu

AP US Government
September 19, 2015
I.

II.

Chapter 4 Outline: Civil Liberties

Introduction
Civil liberties are the specific individual rights, such as
freedom of speech, that are constitutionally protected against
infringement by government
i.
Civil liberties refer to specific individual rights whereas
civil rights have to do with whether or not members of
differing groups such as race or religion are treated
equally
ii.
The framers of the Constitution did not foresee the
complexity of civil liberties and the Bill of Rights was its
foundation
iii.
Many questions come into question about whether or
not civil liberties are being infringed unlawfully or for the
better good
The Constitution: The Bill of Rights and the Fourteenth Amendment
The Bill of Rights, when initially proposed saw both fierce
opposition but also support:
i.
Originally strongly opposed by the Federalists who saw it
as unnecessary and even be dangerous as Madison
saw it
ii.
The Anti-federalist believed it was important for peoples
essential rights be explicitly expressed in the
Constitution and they eventually prevailed
The Bill of Rights were the first ten Amendments of the
Constitution to oblige the federal government to protect and
refrain from infringing
i.
1st Amendment: Freedoms of speech, press, assembly,
and religion
ii.
2nd Amendment: Right to bear arms
iii.
4th Amendment: Protection against unreasonable search
and seizure
iv.
5th Amendment: Protection against self-incrimination and
double jeopardy (tried twice for same crime if first trial
says you innocent)
v.
6th Amendment: Right to a jury trial, attorney, and
confront witness
vi.
8th Amendment: Protection against cruel and unusual
punishment
In Barron v. Baltimore, however, the Supreme Court upheld that
the Bill of Rights, based on the wording, was not intended to be
applied to the states
The Barron v. Baltimore created the nature of judicial federalism
regarding the extension of the Bill of Rights where citizens are
under the jurisdiction of the national government as well as the
state government, in essence, having dual citizenship

i.

This allowed the Southern states to pass Jim Crow laws

for segregation to become legal
Thus, for the most part, the Bill of Rights have little meaning
because the state governments have authority over daily lives,
and therefore, state laws are created to address these issues
(until 14th Amendment introduced)
A. Selective Incorporation of Free Expression Rights
However, states not being bound to the Bill of Rights was shortlived because of the introduction of the 14th Amendment and
today, most rights contained in the first 10 amendments are
protected by the state government
However, following the Civil War, many southern states enacted
laws that denied black people equal rights and the Congress
responded with the Reconstruction act that placed southern
states under military rule until the ratified the 14th Amendment
and conformed to the US Constitution
The 14th Amendment declares that all citizens are protected
under the rights of the Constitution
i.
It also includes a due process clause whereby no
states shall deprive any person of life, liberty, or
property without due process of law
ii.
However, the due process clause opened the Court up to
many different interpretations and cases
iii.
The court invalidated states laws restricting expression
in the areas of speech (Fiske v. Kansas), press (Near v.
Minnesota), religion (Hamilton v. Regents, University of
California), and assembly/petition (Defonge v. Oregon)
which were all interpretations on whether or not the
case was considered a freedom granted to people
iv.
In Gitlow v. New York, for example, the Supreme Court
upheld New York law that made it illegal to advocate the
violent overthrow of the US Government
These cases were cases in which the Supreme Court engaged in
selective incorporation, process by which certain rights
contained in the Bill of Rights become applicable through the
14th Amendment
B. Selective Incorporation of Fair Trial Rights
Among the rights granted in the Bill but not in the 14th
Amendments was the 5th Amendment and the Supreme Court
held back for help the rights of the accused
i.
In Powell v. Alabama, however, the Court made an
exception holding that states had to provide legal
counsel to defendants who were too poor to hire one
(which was 6th Amendment)
ii.
The Court had to further extend these rights during the
1960s with improvement in public education and people
becoming aware of their own rights, catalyzed with the
Civil Rights Movement
iii.
In Mapp v. Ohio (1961), the police forcibly entered

III.

Freedom

A. The

B. The

Mapps home for possibly harboring a fugitive but was

arrested and convicted when they found obscene
photographs she possessed, ignoring the fugitive
situation, whom they did not find
iv.
The Court ruled that evidence acquired through an
unconstitutional search cannot be used to obtain a
conviction in state courts
The Court also finally ruled that defendants cannot be
compelled to testify against themselves, have the right to
remain silent, have rights to an attorney, and right to jury trial
and cannot be subject to double jeopardy
of Expression
Freedom of Expression is the right of individual Americans to
hold and communicate thoughts of their choosing; provided by
the 1st Amendment
However, its not absolute because freedom of expression can
be denied if it endangers national security, wrongly damages
the reputation of others (defamation of character), or deprives
others of their basic rights
Early Period: The Uncertain Status of the Right of Free Expression
While Americans freely express themselves today, the US
government was not always so open, as shown with the Sedition
Act of 1798
i.
Sedition Act made it a crime to print harshly critical
newspaper stories about the president or other national
officials
The Sedition Act was not tested in the Supreme Court but it
opened the question of to what extent should the freedom be
controlled
In the Civil War, freedom of expression was harshly controlled,
and the Court was barred from hearing appeals for free
expression
The Schenk v. United States case restricted speech that would
create a clear and present danger such as falsely yelling Fire!
in a theatre causing panic
i.
The clear-and-present-danger-test became an
established constitutional standard as a result
Modern Period: Protecting Free Expression
Free Speech became much less limited, only to national security
concerns, following the two world wars that ended Americas
isolationist policies
During the Red Scare, the Supreme Court allowed government
to limit subversive expression and many were prosecuted under
a federal law that made it illegal to advocate the forceful
overthrow of the US government
When the fear dissipated, the government could only lawfully
prohibit citizens from speaking out when national security is
endangered
Brandenburg v. Ohio was the defining free speech case when

during a KKK rally, Brandenburg said revenge might have to

be taken if the national government continues to suppress the
white Caucasian race
i.
Ohio convicted the man but the Supreme Court decided
a state cannot prohibit speech that advocates unlawful
use of force unless it 1) was directed at inciting or
producing imminent lawless action and 2) was likely to
produce such action
ii.
This tested the likelihood of imminent lawless action,
which is usually unlikely as words alone do not tend to
lead others to engage in lawless actions
Snyder v. Phelps showed extent to which people are free to
express themselves
i.
Pastor Fred Phelps led a protest at the funeral of
Matthew Snyder, a homosexual Marine killed in the Iraq
War
ii.
Snyders father sued the Church for emotional distress
but the Supreme Court decided although it was hurtful
Phelps was protected by the First Amendment
Symbolic Speech has been less protected than verbal speech
i.
In 1968, the Court convicted a Vietnam War protestor
who burnt his draft registration card
ii.
However, theyve also shown leniency by allowing the
symbolic burning of the American flag as lawful form of
expression
The government can only prevent a speech or rally when the
event is likely to cause harm and there are no alternative ways
such as assigning police to prevent harm from happening
i.
This was shown when the Supreme Court allowed for a
parade by the American Nazi Party in Skokie which had
a large Jewish population
In New York Times Co. v. United States, the Court ruled the
Times could legally publish the Pentagon Papers that could not
be blocked by the government
i.
The papers were acquired illegally, however, because
the prior resistant, government prohibition of speech
or publication before it occurs, is unconstitutional unless
the government can justify restriction; they can only
censor news reports that may compromise military
operation or endanger American troops lives
C. Freedom of Speech and the Press Key Court Cases:
Schenk v. United States (1919): Schenk did not have the right to
print, speak, and distribute material against United States
efforts in World War I because a clear and present danger
existed
Chaplinsky v. New Hampshire (1942): Court determined the use
of obscenities aimed at governmental policies or worn on
clothing as a means of protest do not constitute fighting words
utterance that inflict injury or tend to incite an immediate

IV.

Freedom
A. The

breach of peace that governments may constitutionally punish

in and of themselves
New York Times v. Sullivan (1964): Established base definition of
libelmaterial written with malice and a reckless disregard for
the truth.
Tinker v. Des Moines (1969): Students right not shed at the
schoolhouse gates and defined the students wearing a black
armband in silent protest of the Vietnam War as a legitimate
form of symbolic speech but was later restricted in Hazelwood
v. Kuhlmeier (1988) allowing school administrators to censor
school newspaper
New York Times v. United States (1971): Supreme Court ruled
government did not have the right to prevent the New York
Times from printing information about the history of the
countrys involvement in the Vietnam War
Texas v. Johnson (1988): Supreme Court ruled burning of flag
was a form of symbolic speech protected by First Amendment
McConnell v. Federal Election Commission (2003): Ban on soft
money and restriction placed on television advertising did not
violate free speech
Citizens United v. Federal Election (2010): Corporate funding of
political advertisements that did not specifically endorse a
candidate was constitutional and could not be limited, allowing
independent expenditures to skyrocket
Libel (published) or slander (spoken) can be used as a reason
to sue someone for damages for claims of defamation
i.
However, public officials who are very often subject to
libel and slander, are not protected because if the
statement is factually correct, it is protected no matter
the consequences
ii.
Even if some statements are false, as long as there are
no proof for actual malice, knowing or reckless disregard
for the truth, it is also allowed as shown in New York
Times Co. v. Sullivan
Obscenity is not protected but it has to meet a three-part test:
i.
Material must depict sexual conduct in a patently
offensive way; standard differs based on the
contemporary community standards which would
change based on location
ii.
Material must be precisely described in law as obscene
iii.
Material taken as a whole must appeal to prurient
(lustful) interest and have no redeeming social value
of Religion
Establishment Clause
The establishment clause means the government may not
favor one religion over another or support religion over no
religion, this is also why the Congress is not allowed to declare
an official religion
The United States prohibits the reciting of prayers and Bible

V.

reading in public schools; indirect ways to bring religion into

education have been turned down
The Supreme Court has banned religious displays on public
property if its overtly religious and lacks a historical context
The wall of separation, strict separation of church and state, is
evident in Court rulings, however, it has also depended on the
accommodation doctrine, allowing government to aid religious
activity if no preference is shown toward a particular religion
and if the assistance is of a secular nature
The Lemon Test was a three-point test to determine whether
government assistance for activities that involve religion
i.
Statute must have a secular legislative purpose
ii.
Primary effect must be one that neither advances nor
inhibits religion
iii.
Statue must not foster an excessive government
entanglement with religion
B. The Free-Exercise Clause
Free-Exercise Clause mean that Americans are free to hold
any religious belief of their choosing
The government can interfere when the exercise of religious
belief conflicts with otherwise valid law such as polygamy
C. Freedom of Religion Key Court Cases:
Engle v. Vitale (1962): Struck down New York state
nondenominational prayer that started with the words Almighty
God, we acknowledge our dependence upon thee making it
unconstitutional for state officials to compose an official state
prayer and encourage its recitation in public schools
Lemon v. Kurtzman (1971): Established the lemon test to set a
standard to determine whether the line of governmental
interference is crossed
Lee v. Weisman (1992): School officials cannot invite clergy to
recite prayers at graduation ceremonies, similar to Engle v.
Vitale
The Right to Bear Arms
The decision on how the 2nd Amendment, which granted the
right to bear arms, was addressed in District of Columbia v.
Heller (2008)
i.
The Court decided that the Second Amendment protects
an individual right to possess a firearm unconnected
with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within
the home
ii.
Justice Scalia stated that they were aware of the
problem of handgun violence in the country, however,
must uphold certain constitutional rights and take
certain choices off the table (which is absolutely stupid
because the original intention of the right to bear arms
no longer applies today)
iii.
However, the effect was not immediate, only in

VI.

McDonald v. Chicago was the right to bear arms made

constitutionally protected but did not explicitly list set of
allowable restriction, leaving the issue to be decided in
future cases
Right to Keep and Bear Arms Key Court Case:
i.
United States v. Miller (1939): First case to be heard by
Supreme Court about the issue determined that the
National Firearms Acts decision to make it a crime to
ship certain kinds of weapons across state lines unless
they were registered was constitutional
ii.
However, the Brady Bill placed restrictions on handgun
registration, setting up a minimum waiting period before
purchase
iii.
District of Columbia v. Heller (2008): Challenged DC gun
control law banning guns in the district and required any
legal guns to be unloaded and made it unconstitutional
The Right of Privacy
The right of privacy means a zone of personal privacy that
government cannot lawfully invade
A. Abortion
In Roe v. Wade, the Supreme Court gave women full freedom to
choose abortion during the first three months of pregnancy
under the right of privacy
This has sparked conflicts including blocking the entrances of
abortion clinics, which have been reversed
In Gonzales v. Carhart, the Supreme Court upheld a ban on the
use of a particular type of abortion and provided a fine and
prison term for physicians who perform an abortion during the
birth process even if the mothers life or health is endangered
(killing the baby)
B. Consensual Sexual Relations among Same-Sex Adults
In Bowers v. Hardwick, however, held that right of privacy did
not extend to consensual sexual relations among adults of the
same sex
The major opposition are from religious groups that consider the
act as sinful
C. Right to Privacy Key Court Cases:
Wolf v. Colorado (1938): Held that even though the exclusion of
illegally obtained evidence as stipulated by state law was not
mandated by the due process section of the 14th Amendment,
the court did say that the 14th Amendments due process clause
did apply to the states
Mapp v. Ohio (1961): Established exclusionary rule for states,
allowing police to obtain only evidence available through a
legitimate search warrant but it was undermined with United
States v. Leon which created the good faith doctrine
Griswold v. Connecticut (1965): Struck down Connecticut law
that prohibited the use of contraceptives
Rode v. wade (1972): Supreme Court ruled abortions are

VII.

constitutionally protected
United States v. Leon (1984): Created the good faith doctrine
Planned Parenthood v. Casey (1992): Upheld Pennsylvania law
requiring minors to wait 24 hours after receiving parental
approval before getting an abortion as constitutional
Rights of Persons Accused of Crimes
The procedural due process refers to procedures that
authorities must follow before a person can lawfully be punished
for an offense
i.
While its not foolproof, it increases the likelihood of a
fair trial
ii.
The fifth and fourteenth Amendments provide people
the protection against government depriving them of
their life, liberty, or property without due process
A. Suspicion Phase: Unreasonable Search and Seizure
A person caught committing a crime can be arrested on the spot
and searched for weapons, however, if someone is simply
suspected of a crime, the police cannot act until they can
convince a judge that they have sufficient evidence to be
granted a search warrant
The Supreme Court have lowered the standard police must meet
to lawfully search a person
Whren v. United States determined that as long as a plice
stopped someone for a reasonable suspicion and found
evidence against the person through the plain view doctrine, the
evidence would be admissible
Warrantless searches are allowed under certain circumstances
such as police roadblocks to check for intoxication under the
condition that theyre systematic and consistent (not only
checking young drivers, but checking all)
However, roadblocks cannot be used to check for drugs as in
Indianapolis v. Edmund, the Court held that roadblocks serve a
general law enforcement purpose rather than one specific to
highway safety and therefore violates the fourth amendment
that requires police to have suspicion of wrongdoing before they
can search an individuals auto
In Ferguson v. Charleston, the Court ruled that patients in public
hospitals cannot be forced to take a test for illegal drugs if the
purpose is to report to police those patients who test positive
In public school, however, there is more leeway as the Court
held that random drug testing of high school students involved
in extracurricular activities does not violate the ban on
unreasonable searches because the school administrators are
responsible for student safety, including dangers from drugs
In Florence v. Board of Chosen Freeholders, the Supreme Court
ruled law enforcement officials can strip search anyone arrested
of a crime, even if its a minor infraction and even if they do not
have a reason to believe the individual is hiding a weapons or
contraband

B. Arrest Phase: Protection against Self-Incrimination

An individual cannot be compelled in any criminal case to be a
witness against himself as stated in the 5th Amendment
Police cannot legally begin their interrogation until the suspect
has been warned based on the Miranda Warning (Miranda v.
Arizona in which his own confession before the police had told
him was used against himself)
This has helped protect many of those who are less educated
and are unaware of their own rights
i.
Reaffirmed in Dickerson v. United States whereby the
Court said it was a constitutional rule so Congress
cannot abolish by ordinary legislation
ii.
In Missouri v. Siebert, the police could not interrogate
someone, tell them their Miranda rights, and then
interrogate more formally again so they could get a
confession easier
iii.
The Court weakened the warning allowing police to
question the individual if they fail to ask for an attorney
or fail to express their intent to remain silent
C. Trial Phase: The Right to a Fair Trial
A person cannot be tried unless indicted by a grand jury which
hears the prosecutions evidence and decides whether it is
strong enough to allow the government to try the suspect
i.
Its not required under the 14th Amendment but half do
so but for the rest, the prosecutor decides whether to
proceed with a trial
In Johnson v. Zerbst, the Supreme Court held that criminal
defendants must be provided a lawyer if they cannot afford one
i.
Gideon v. Wainwright supported this by overturning his
case on the grounds that he was denied legal counsel
There was also supposed to be impartiality among the jury and
no biases
The exclusionary rule bars the use of evidence that are
obtained in violation of the defendants rights as supported in
Weeks v. United states
A more liberal Supreme Court had originally ordered almost any
illegally obtained evidence as inadmissible but a more
conservative Court in 1980s decided evidences discovered
under a faulty warrant were admissible because police were
acting in good faith
i.
Reaffirmed in Herring v. United States when an arrest
warrant found firearms and drugs, later finding out their
warrant had expired, but was allowed to pass under the
good faith exception
D. Sentencing Phase: Cruel and Unusual Punishment
Under the Eighth Amendment, people could not be sentenced to
cruel and unusual punishment, but Supreme Court typically let
Congress and state legislatures determine appropriate penalties
for crime

Recently however, Supreme Court has employed 8th Amendment

to narrow the use of death penalty
i.
This included outlawing the death penalty for the
mentally retarded on grounds that it constitutes cruel
and unusual punishment
E. Appeal: Once Chance, Usually
The Constitution does not guarantee an appeal after conviction
but the federal government and all states permit at least one
appeal
Prisoners who believe their constitutional rights have been
violated by state officials can appeal their conviction to a federal
court
In 1992, however, the Court held that inmates can lose the right
to a federal hearing if they failed to first present their appeal
properly in state courts
Often times, even if the lawyer or judges made a mistake, the
defendant would lose the right for an appeal (failing to present
appeal in state courts or missing the deadline)
However, because inmates in the past had filed appeal after
appeal and the Supreme Court ruled, except in unusual cases, it
is fair to ask inmates to first pursue their options in state courts
and then confine themselves to a single federal appeal
F. Crime, Punishment, and Police Practices
While law requires officers to read suspects the Miranda
warning, research has shown these constitutional rights are
applied unevenly
i.
This is largely due to racial profiling which is assumption
that individuals from particular groups are more likely to
commit crimes and therefore require closer scrutiny
ii.
One-third of all black people would go to jail at least
once in their life because of serious racial profiling
iii.
While it continues, recent studies indicate its decline but
still persisting problem
The public have been more open to being tough on crime and
the number of federal and state prisoners have more than
doubled since 1990 as a result
The United States has by far the highest incarceration rate, with
Russia trailing behind by over a hundred
G. Right to Procedural Due Process Key Court Cases:
Escobedo v. Illinois (1964): Due process rights of selfincrimination and right to counsel were violated in Escobedos
case and he was released from prison
Gideon v. Wainright (1964): Established that the accused has
the right to an attorney even if he or she cannot afford one
Miranda v. Arizona (1966): Established Miranda Rights and made
police inform the alleged assailants before arresting them
New York v. Quarles (1984): Created public safety exception to
the Miranda warnings allowing police to arrest an accused
criminal without reciting Miranda rights where public safety is

VIII.

IX.

X.

threatened
Hamdi v. Rumsfeld (2004): Enemy combatants in US have due
process rights
Rights and the War On Terrorism
After Pearl Harbor was bombed, in Korematsu v. United States,
the Supreme Court allowed the government decision to relocate
tens of thousands of Japanese Americans in the West Coast to
go to detention centres
A. Detention of Enemy Combatants
Guantanamo Bay has been subject to much criticism because of
the horrible treatment and indignifying activities
In 2006, the Supreme Court ruled that the detainees in
Guantanamo were protected by the US Uniform Code of Military
Justice and by the Geneva Convention, and thus, Bush could not
use his secret military tribunals to try
Hamdan v. Rumsfeld cleared this case by ruling the tribunals
unlawful because they did not provide even minimal protections
of detainees rights
B. Surveillance of Suspected Terrorists
Surveillance has increased largely after the September 11
terrorist attacks with which the Congress passed the USA Patriot
Act, lowering the standard for judicial approval of wiretapping
when terrorist activity was at issue
Bush allowed the NSA to wiretap international phone calls and
email messages originating in the United States
Other Notable Court Cases:
A. Freedom of Assembly Key Court Case:
DeJonge v. Oregon (1937): Ruled the 14th Amendments due
process clause applies ot freedom of assembly and found
DeJonge had right to organize a Communist Party and speak at
its meetings even thought party advocated revolution
B. Eight Amendment Key Court Cases:
Gregg v. Georgia (1976): Punishment of death does not
invariably violate the Constitution
C. Undefined Rights Key Court Cases:
United States v. Lopez (1995): Supreme Court ruled Congress
misused its authority in enacting the Gun-Free School Zone
Safety Act, making the possession of a gun within 1,000 yards of
a school a federal crime (great job with that in Sandy Hook
geniuses)
Gonzales v. Oregon (2006): Federal government could not block
Oregons Assisted Suicide Law by moving against physicians
who assisted terminally ill patients by giving them medicine that
would enable them to commit suicide
The Courts and a Free Society
Judges inevitably must balance societys need for security and
public order against the rights of individuals