Civil Liberties and Civil Rights

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 unalienable 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

Define:

civil rights

Answer 2

Civil rights are those rights that are bestowed by the government on the people as opposed to civil liberties, which the citizens have by virtue of their citizenship.

Examples of civil rights include protection from discrimination based on race or gender and the right to privacy.

Question 3

Who are the ultimate guarantors of civil liberties?

Answer 3

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

Question 4

Which civil liberties are established by the First Amendment?

Answer 4

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 5

What is freedom of the press?

Answer 5

Freedom of the press protects publishers from government information.

Question 6

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

Answer 6

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 7

Define:

censorship

Answer 7

Censorship is the supression 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 8

What is prior restraint?

Answer 8

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 9

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

Answer 9

speech

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

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 consistenly 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 includes black armbands in protest of war or flag burning.

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

Question 13

The “clear and present danger” test applies to government regulation of what activity?

Answer 13

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 One, 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 14

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

Answer 14

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 “immininent 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 15

_____ refers to harmful, untrue statements in spoken form?

Answer 15

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 16

How has Congress limited the free speech protections of advertisers?

Answer 16

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 17

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

Answer 17

The Miller Test allows for the regulation of obscene material. For the regulation to be permissable, three elements must all be met:

• The average person, applying community standards, would find the work as a whole would appeal to the prurient interest
• Whether the work depicts or describes, in an offensive manner, excretory functions or sexual conduct (as defined by state law)
• Whether the work, taken as a whole, lacks any serious literary, artistic, political, or scientific value

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 test applies when the Supreme Court examines laws that infringe on a fundamental constitutional right, (such as those found in the Bill of Rights) or when a law applies to a “suspect classification” (such as a race or national origin).

Answer 19

In these contexts, the Court employs a strict scrutiny standard. To meet the standard, the law or policy must:

• Serve a compelling government interest
• Be narrowly tailored to serve that interest
• Be the least restrictive means to serve that interest

Question 20

What does the Establishment Clause of the First Amendment prohibit?

Answer 20

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 21

The Lemon Test was established in Lemon v. Kurtzman (1968) to detail the requirements of legislation concerning _____.

Answer 21

religion

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

• The government’s action must have a secular legislative purpose
• The government’s action must not have the primary effect of either advancing or inhibiting religion
• The government’s action must not result in an “excessive government entaglement” with religion

Question 22

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

Answer 22

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 23

In Reynolds v. United States (1878), a Morman leader had married more than one woman pursuant to Mormon religious doctrine and was charged with bigamy. The leader contended that the law against bigamy violated the Constitution’s Free Exercise clause. How did the Supreme Court resolve the issue?

Answer 23

In Reynolds, the Court held that religious duty is not a defense to a criminal indictment. The Court stated that while the Constitution prevented Congress from legislating against religious opinion, Congress could legislate regarding religious action, including bigamy.

The Court contended that to hold otherwise would be to extend constitutional protection for a wide variety of religous beliefs, including extreme measures such as human sacrifice.

Question 24

What is the current position of the Supreme Court on whether persons can collect unemployment benefits for engaging in illegal acts done pursuant to religious beliefs?

Answer 24

In Oregon v. Smith (1990), the Court held that states are not required to accomodate illegal acts done in pursuit of religious beliefs, although they may do so if they so desire.

In the case, two plaintffs had been fired for using peyote in a religious ceremony and were denied unemployment benefits after they’d been terminated.

Question 25

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 25

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 26

What civil liberties are established in the Second Amendment?

Answer 26

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 27

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

Answer 27

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 28

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

Answer 28

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 29

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

Answer 29

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 30

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 30

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 31

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

Answer 31

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 32

How does the Fourth Amendment protect American citizens?

Answer 32

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 33

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

Answer 33

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 34

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

Answer 34

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 35

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

Answer 35

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 36

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 36

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 37

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

Answer 37

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 38

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 38

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 39

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

Answer 39

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

Question 40

According to the Sixth Amendment, where are criminal trials to be held?

Answer 40

The Sixth Amendment’s “vicinage” clause requires that trials be held in the district in which the crime occured.

Question 41

The Sixth Amendment’s Confrontation Clause allows for what right?

Answer 41

The Confrontation Clause allows those accused of crimes to “confront” (cross-examine) those who are witnesses against them.

Question 42

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 42

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 43

The Seventh Amendment guarantees the right to a _____ in all civil trials where the amount in controversy is in excess of $20.

Answer 43

jury

Question 44

The Seventh Amendment prohibts appellate courts from taking what action?

Answer 44

Under the Seventh Amendment, appellate courts are barred from overturning any factual determination reached by the jury, unless those determinations are clearly erroneous.

Question 45

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

Answer 45

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 46

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

Answer 46

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 47

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 47

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.

Question 48

The _____ _____ Clause of the 14th Amendment requires that the protection given by state law shall be equal to all citizens.

Answer 48

Equal Protection

Between the end of the Civil War and the passage of the 14th Amendment, Southern states had enacted black codes, which barred blacks from sitting on juries, to form contracts, or hold certain types of property. The Equal Protection Clause rendered these black codes unconstitutional.

Question 49

In the case of Plessy v. Ferguson (1896) the Court held that the concept of ______ _____ _____ does not violate the 14th Amendment’s Equal Protection clause.

Answer 49

separate but equal

In Plessy, the Court ruled that separate railway cars for blacks and whites did not violate the clause as long as the facilities were equal. The Court held that the 14th Amendment related only to civil rights, not to social arrangements.

Question 50

Which Supreme Court case overturned the Separate but Equal Doctrine as established in Plessy v. Ferguson (1896)?

Answer 50

The Separate but Equal Doctrine was overturned in Brown v. Board of Education (1954). In Brown, the Court held that separate educational facilities for black and white children violated the 14th Amendment’s Equal Protection Clause.

Question 51

What did the Civil Rights Act of 1964 prohibit?

Answer 51

The Civil Rights Act of 1964 barred disrimination in all public accomodations (e.g. hotels and restaurants) based on race, color, religion, or national origin, and prohibited state and local governments from denying access to public facilities based on these same criteria.

Title VII of the act prohibited discrmination in employment based on race, color, religion, sex, or national origin.

Question 52

Which piece of legislation established extensive federal oversight over elections?

Answer 52

Extensive federal oversight of elections was established in the Voting Rights Act of 1965. Historically, Southern states had used literacy tests to prevent blacks from voting. The act outlawed this practice.

It also required states with a history of voting discrimination to submit all changes in voting practices to the Department of Justice for clearance before they were implemented.

Question 53

The Civil Rights Act of 1968 prevents discriminatory practices in _____.

Answer 53

housing

Specifically the act prohibits discrimination concerning the sale, rental, and financing of housing based on race, religion, and national origin. The act was amended in 1974 to prohibit gender discrimination and in 1988 to extend protections to families with children and disabled persons.

Question 54

Define:

affirmative action

Answer 54

Affirmative action refers to overt policies to ensure that educational opportunities and employment is offered to minorities and women.

Affirmative action occassionally takes the form of a quota system. The Supreme Court struck down a University of California system that reserved a certain number of seats for minorities in Regents v. Bakke (1978) and a system that awarded extra admissions points to minorities in Gratz v. Bollinger (2003).

Question 55

What type of tax was prohibited by the 24th Amendment, which was ratified in 1964?

Answer 55

The 24th Amendment prohibits poll taxes. A poll tax is a tax that is required to be paid prior to voting and was commonly used to disenfranchise blacks in the South.

Question 56

Women gained the right to vote in national elections by the passage of which amendment?

Answer 56

The 19th Amendment, ratified in 1920, prohibited discrimination in voting on the basis of sex. Prior to the amendment’s passage, a number of states had extended the franchise to women.

Question 57

What conduct was barred by the passage of the Equal Pay Act in 1963?

Answer 57

The Equal Pay Act prohibts paying men and women different wages for jobs performed under similar working conditions and that require equal skill, effort, and responsibility.

Question 58

Those with mental or physical impairment are protected from discrimination in housing and employment by the _____ _____ _____ Act.

Answer 58

Americans with Disabilities

The act, passed in 1990, provided similar protection against discrimination as the 1964 Civil Rights Act, which had prohibited discrimination based on race, religion, sex, or national origin.

Question 59

In Romer v. Evans (1996), the Court was faced with a challenge to a Colorado State Constitutional Amendment, which prohibited the state from extending protected status for homosexuals and bisexuals. How did the Court respond?

Answer 59

The Court struck down the amendment as unconstitutional under the rational basis test, holding that it was not rationally related to a legitimate state interest.

Justice Kennedy wrote that the amendment imposed a special disability upon homosexuals and bisexuals, forbidding them from the safeguards that others could seek without constraint.

Question 60

Which Supreme Court case made same-sex sexual activity legal in all states?

Answer 60

In Lawrence v. Texas (2003), the Supreme Court struck down a Texas law that criminalized sodomy. The Court held that the law violated the privacy and liberty rights of individuals pursuant to the 14th Amendment.

Question 61

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

Answer 61

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 62

What are the two types of due process?

Answer 62

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 63

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

Answer 63

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.