Liberties and the Bill of Rights
Civil liberties are protections from government interference, mostly set out in the Bill of Rights, the first ten amendments (1791). Originally, they limited only the national government. Through the 14th Amendment (1868), which says that no state may deprive a person of life, liberty or property without due process, the Supreme Court gradually applied most of these protections to the states, a process called selective incorporation. Gitlow v. New York (1925) began this for free speech.
First Amendment
- Religion: the Establishment Clause forbids government from establishing an official religion, and the Free Exercise Clause protects individuals' religious practice. Engel v. Vitale (1962) held that state-sponsored school prayer violates the Establishment Clause.
- Speech: broadly protected, but not unlimited. In Schenck v. United States (1919), the Court introduced the "clear and present danger" test. Brandenburg v. Ohio (1969) later protected advocacy unless it is directed at inciting imminent lawless action and likely to produce it. In Tinker v. Des Moines (1969), the Court ruled that students do not "shed their constitutional rights at the schoolhouse gate", while allowing schools to limit speech that substantially disrupts learning.
- Press: In New York Times Co. v. United States (1971), the Court refused to block publication of the Pentagon Papers, applying a heavy presumption against prior restraint (government censorship before publication).
- Assembly and petition.
Criminal procedure
- 4th Amendment: protects against unreasonable searches and seizures; warrants require probable cause. Mapp v. Ohio (1961) applied the exclusionary rule, which bars illegally obtained evidence in state courts.
- 5th Amendment: protection against self-incrimination, double jeopardy, and the requirement of due process. Miranda v. Arizona (1966) requires police to tell suspects of their rights before custodial questioning.
- 6th Amendment: speedy and public trial, an impartial jury and the right to a lawyer. Gideon v. Wainwright (1963) held that states must provide a lawyer to defendants charged with serious crimes who cannot afford one.
- 8th Amendment: bans cruel and unusual punishment and excessive bail.
Balancing
Rights are rarely absolute. Courts weigh the individual's interest against the government's reasons, using different levels of review. Laws restricting core rights typically face more demanding review than ordinary regulation.
Worked example: a school armband case
- Students wear black armbands to school to silently protest a war. School officials suspend them.
- Speech question: is wearing an armband "speech"? The Court said yes, as symbolic speech.
- The school is a government actor, so the First Amendment (applied to the states by the 14th) is relevant.
- The test: did the action substantially disrupt school work or invade the rights of others? The students' protest was quiet and did not.
- Result in Tinker: the suspension violated the students' rights.
Note that the result would not protect speech that did cause substantial disruption, which shows why the facts of the case matter. The reasoning does not depend on which side of the underlying political dispute the students were on.