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4. Civil Liberties: Safeguarding the Individual, Topic Overview
Topic Overview Using the Video Readings Critical Thinking Activity Web-Based Resources



Topic Overview Unit 4

Civil Liberties: Safeguarding the Individual

Learning Objectives

After completing this session, you will be able to:

  • Emphasize the role that the concept of liberty plays in American government.

  • Illustrate the Bill of Rights in action.

  • Evaluate the myth of absolute liberty.

  • Describe the modern tests of the limits of free press.

  • Show how liberties can conflict with one another.

This unit explores the concept of civil liberties in American life, distinguishing civil liberties from civil rights and illuminating some of the problems encountered in protecting civil liberties. As the unit points out, most of us have a conception of the Bill of Rights as a list of absolutes, but this has never been the case. At some point, as our courts have often recognized, the exercise of civil liberties conflicts with other values that we also hold dear. The result is that we have frequently balanced liberty against order. The unit also demonstrates what happens when civil liberties collide.

The first ten amendments to the U.S. Constitution are collectively known as the Bill of Rights. The First Amendment contains several important rights that guarantee a person's basic civil liberties including freedom of speech, freedom of the press, freedom of association, and freedom to practice one's own religion. Our civil liberties are protected against government restriction and the interference of others, but they are not absolute. That's because our rights often collide, and thus must be balanced against each other in ways that promote the public good for all citizens. Americans have never fully agreed on where the balance should be struck in all cases.

In specifying what the government cannot do, the Bill of Rights is an important source of our civil liberties that cannot be taken away even when popular majorities at the local, state, or national level vote to restrict them. Some protections provided by the Bill of Rights, such as the Fourth Amendment's protection against unreasonable search and seizure, are written in vague terms that often require judicial interpretation.
The First Amendment to the Constitution contains several prohibitions against national government power. It states that Congress cannot:

  • Restrict freedom of speech, the press, or the right of people to peaceably assemble and to petition the government for a redress of grievances.

  • Restrict an individual or group's free exercise of religion.

  • Promote any religion.

While the First Amendment has been a bulwark against overbearing government throughout American history, courts have interpreted the scope and substance of First Amendment liberties differently. Originally written during a time when there were no telephones, radio, television, or computers, the exact meanings of the free speech and press guarantees in the First Amendment have necessarily been redefined and reinterpreted ever since.

The courts have never considered the rights enshrined in the First Amendment, or in the entire Bill of Rights, to be absolute. Instead, when one right clashes with another, as when a person's freedom of speech right clashes with another person's right to privacy, the courts must balance the conflicting rights and consider where one right should give way to the other. For example, most people would agree that a person's right to shout "fire!" in a crowded theatre (or "bomb!" on a passenger jet for that matter) is negated by the larger public value of keeping people safe from being trampled to death.

In weighing competing values such as free speech and public safety, the courts have developed a series of tests to help them find the right balance that is in keeping with prior court decisions. The clear and present danger test, for example, says that government may restrict speech to prevent grave and immediate dangers. Courts later added the bad tendency test, which says that speech that poses an indirect and future danger may still be restricted. In some cases the courts have denied the media's right to report facts (e.g., the names of criminal defendants or their victims) if such reporting clashes with other protected rights, such as a defendant's right to a fair trial.

The Fourth through Sixth Amendments to the Constitution protect Americans from governmental intrusions such as unreasonable searches and seizures, and include procedural due process guarantees for people accused of crimes. In applying the Fourth Amendment in specific cases, courts have grappled with the question of what constitutes "reasonable" versus "unreasonable" searches. Mitigating factors might include whether police or other government personnel had a lawful search warrant, whether there was "probable cause" to indicate that a crime had likely been committed, and whether the search takes place in a person's home, on their person, or at some other place such as work or school. In 1989, the Supreme Court held that law enforcement employees and others in occupations with heightened safety concerns could be subjected to drug tests without a search warrant. However, a later court held that some drug testing programs go too far when it struck down a Georgia statute requiring all political candidates to take a drug test.

The Sixth Amendment guarantees, among other things, that criminal defendants have the "right to a speedy and public trial, by an impartial jury," although the exact meaning of "speedy," "public," and "impartial" has evolved over two centuries of case law. In many criminal cases the trial judge must rule on specific legal questions involving things like what information is open to the media, the rules governing jury selection, evidence that can or cannot be admitted, and specific sentencing guidelines. Parties to a case who feel they were treated unfairly during the trial process may try to appeal their case to a higher court. It is the job of the appeals courts and sometimes the U.S. Supreme Court to interpret and apply the Constitution to that particular case, and ultimately to determine if someone's basic rights have been violated.


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