Overview Unit 4
Civil Liberties: Safeguarding the Individual
After completing this session, you will be able to:
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.
- Emphasize the role that the concept of liberty plays in American
- 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.
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
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
- 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
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