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Flashcards in Civil Liberties Deck (55)
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civil liberties

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.


Who are the ultimate guarantors of civil liberties?

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


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

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.


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

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.


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?

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.


Barron v. Baltimore (1833)

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.


Which civil liberties are established by the First Amendment?

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.


What is freedom of the press?

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.


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


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.



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.


What is prior restraint?

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.


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


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


pure speech

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


What is meant by "speech plus" conduct?

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.


symbolic speech

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.


_____ refers to harmful, untrue statements in spoken form.


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.


How has Congress limited the free speech protections of advertisers?

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.


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

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


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

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.


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

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.


Schenck v. United States (1919)

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.


Gitlow v. New York (1925)

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.


Texas v. Johnson (1989)

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.


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"?

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.


What does the Establishment Clause of the First Amendment prohibit?

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.


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

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.


Reynolds v. United States (1878)

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.


Engel v. Vitale (1962)

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."


Lemon v. Kurtzman (1971)

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.


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


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