Civil Rights and Civil Liberties

III

Civil Rights and Civil Liberties in the United States

The civil rights and liberties of U.S. citizens are largely embodied in the Bill of Rights (the first ten amendments to the Constitution) and in similar provisions in state constitutions. The First Amendment guarantees freedom of speech, press, assembly, and religious exercise as well as separation of church and state (see Speech, Freedom of; Press, Freedom of the; Religious Liberty). The Fourth Amendment protects the privacy and security of the home and personal effects and prohibits unreasonable searches and seizures. The Fifth through Eighth amendments protect persons accused of crime; they guarantee, for example, the right to trial by jury, the right to confront hostile witnesses and to have legal counsel, and the privilege of not testifying against oneself. The Fifth Amendment also contains the general guarantee that no one shall be deprived of life, liberty, or property without due process of law (see Due Process of Law). Originally these amendments were binding only on the federal government. However, decisions by the Supreme Court of the United States have established that the Due Process Clause of the 14th Amendment (ratified in 1868) applies many of the guarantees in the Bill of Rights to actions by state and local governments.

A

Religious Freedom

Although religious freedom has not generally been curtailed in the United States, Roman Catholics, Jews, and members of such unconventional Protestant groups as the Oneida Community and the Church of Jesus Christ of Latter-day Saints have historically been discriminated against and sometimes have even been persecuted, although today overt discrimination has almost vanished.

The federal Civil Rights Act of 1964, as well as many state and local laws, prohibits religious discrimination. The government recognizes the right of religious pacifists to refuse to bear arms, even in time of war. The Supreme Court has ruled that this right, known as conscientious objection, need not be based only on religious training or belief in a supreme being. The Court has also upheld the right of Jehovah’s Witnesses to refuse to salute the flag because of religious objections.

Applying the principle of separation of church and state (see Church and State), the Court has struck down many attempts to use public funds to finance religious schools; at times, however, the Court has permitted the use of public funds for buildings and other nonsectarian programs of religious schools. In the 1960s the Court ruled that state-composed prayers and Bible reading in public schools violated the Constitution, a policy to which the Court has adhered. In 2000, for example, it struck down school-sponsored prayers at public high school football games. Efforts to reverse these rulings were unsuccessful, but in recent years the Court has been more permissive in allowing government aid to religion. For example, in certain cases it has upheld a community’s right to place religious displays on public property, and in 2002 it upheld a school voucher program in which public funds were largely to pay for education at religious private schools. At the same time, however, the Court has refused to require the government to carve out religious exemptions from generally applicable laws.

---

---

B

Freedom of Speech, Press, and Assembly

Civil liberties have been most endangered during periods of national emergency. In 1798 hostility toward revolutionary France led Congress to enact the Alien and Sedition Acts, which stripped aliens of nearly all civil rights and threatened freedom of speech and the press by prohibiting “false, scandalous and malicious writing” against the government, Congress, or the president. The constitutionality of these acts was never tested, but they soon expired, were not reenacted, and are now generally agreed to have been unconstitutional.

During the American Civil War (1861-1865), President Abraham Lincoln gave his principal military officers wide and unreviewed authority to arrest civilians for disloyal speech or acts. After World War I (1914-1918), fear of the newly established Communist government in the Soviet Union led to the harassment of suspected subversives by the U.S. Department of Justice.

The rise of National Socialism in Germany, the spread of communism, and the Great Depression of the 1930s all combined to arouse concern for the internal security of the United States. The federal legislative and executive power to deal with disloyal acts was enlarged. In 1940 Congress passed the Smith Act, which outlawed the advocacy of force and violence as a means of bringing about changes in government. In 1950 Congress adopted the Internal Security Act, which established a new federal agency for identifying and suppressing so-called subversive persons and organizations. Congress virtually outlawed the Communist Party in 1954, although membership in the party was not expressly made criminal. These statutes were upheld by the Supreme Court, but eventually were limited in scope and fell into disuse during the 1960s. In 1969 the Court adopted a constitutional standard that protects political speech unless “directed to inciting … imminent lawless action” and was likely to produce such action.

In the 1950s congressional and state investigating committees conducted widely publicized hearings at which thousands of individuals were questioned concerning their political activities and associations, if any, with the Communist Party. Among the legislators prominently identified with these investigations were Senators Patrick McCarran of Nevada and Joseph McCarthy of Wisconsin. The Supreme Court subsequently limited such proceedings.

New problems emerged during the 1960s and 1970s. Demonstrations by opponents of racial discrimination and the Vietnam War (1959-1975), and government attempts to restrict these demonstrations, led the Supreme Court to specify where, when, and how cities and states may limit the use of streets, parks, and other public places for purposes of protest. At the same time, certain symbolic forms of expression were employed by the protesters, leading to court rulings upholding criminal punishment for the burning of draft cards but reversing convictions for the mutilation of the American flag as a form of expression. The Court held in 1989 and 1990 that neither the federal government nor the states could single out the burning of the American flag for criminal penalties.

The attempted publication in 1971 by the New York Times and the Washington Post of the so-called Pentagon Papers led to a major Supreme Court decision that prior restraints on publication of national security material could not be enjoined unless such material “will surely result in direct, immediate and irreparable damage to our nation or its people.” See Censorship.

In 1964 the Supreme Court ruled for the first time that, to give the press breathing room, even false statements about public officials are protected by the First Amendment unless uttered with “actual malice”; that is, with knowledge of their falsehood or with reckless disregard of the facts. Later cases refined this decision but left to the discretion of the states whether to allow defamation actions brought by persons who are neither public officials nor public figures.

The Supreme Court also elaborated its 1957 ruling that obscenity is not constitutionally protected speech. Determining the content of obscenity has been difficult; in 1973 it was defined as speech that, taken as a whole, appeals to the prurient interest, is patently offensive in depicting sexual conduct, and lacks serious literary, political, or scientific value. This vague definition has led to numerous lawsuits involving explicit sexual material. Conservative religious groups and some feminists have attempted to restrict the distribution of sexually explicit material that is not obscene. The movement achieved limited success, but civil libertarians have led efforts to combat this form of censorship. In 1997 the Court struck down a federal law that banned nonobscene but sexually explicit material on the Internet. The Court reasoned that Congress may not prohibit circulation to adults of constitutionally protected speech simply because children might see it.

One of the most controversial First Amendment cases of the late 1970s did not reach the Supreme Court. When a U.S. Nazi group sought to march in Skokie, Illinois, the home of many Jewish survivors of German concentration camps, emotions were aroused, and the city enacted laws designed to prevent the march. Both federal and state courts upheld the right of this Nazi group, which was represented by the American Civil Liberties Union, to express itself peaceably.

The Court has broadened constitutional protection for many other forms of speech, including commercial speech. In the 1990s, it struck down several attempts to ban advertising, including liquor advertising, said to be harmful.

C

Criminal Trials and Due Process of Law

Thousands of Supreme Court rulings have been concerned with the rights of persons accused of crimes. Defendants in state as well as federal criminal cases are assured that they cannot be imprisoned for an offense unless represented by a lawyer, or counsel; if a defendant is impoverished, such counsel must be supplied by the government. Defendants must be warned that they may not be questioned until counsel is provided, and defendants may not be convicted on the basis of confessions obtained by coercion. The Court also ruled that prosecutors may not exclude people from juries on grounds of race or sex.

The Fifth Amendment privilege against self-incrimination was the most controversial constitutional protection during the 1950s and 1960s, when it was invoked by, among others, individuals accused of subversive activities and participation in organized crime. The Court’s interpretation of the Fourth Amendment has also generated controversy; its provisions protecting the security of the person and of dwellings have been cited in disallowing convictions based on evidence obtained by the police illegally. The Court in the 1970s began to narrow its interpretation, a process that has continued into the 21st century as the public has come to favor crime-control measures over the rights of defendants. This climate of opinion has also led to more frequent use of capital punishment, although the Court has limited the crimes for which death may be the punishment. The Court has also prescribed procedures that must be followed before the death penalty may be given. At the same time, it has limited the right of prisoners to appeal their convictions on constitutional grounds.

C

1

Criminal Trials and Due Process during the ‘War on Terror’

Following the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon by international terrorists, President George W. Bush invoked his constitutional authority as commander-in-chief and signed a military order allowing the government to detain and conduct military trials of noncitizens suspected of terrorism. The U.S. military proceeded to detain as “unlawful enemy combatants” hundreds of foreign nationals who were captured during hostilities in Afghanistan and elsewhere. The government held them indefinitely at the U.S. naval base at Guantánamo Bay, Cuba, without bringing criminal charges or allowing them legal counsel. The military also detained two American citizens as unlawful enemy combatants.

In 2004 the Supreme Court considered the constitutionality of indefinite detentions of enemy combatants. In the case Hamdi v. Rumsfeld, the Court upheld the authority of the president of the United States to classify U.S. citizens as unlawful enemy combatants and to detain them without charges. However, the Court ruled that such detainees are entitled to challenge the government’s case against them before an impartial judge. In addition, detainees have the right to an attorney. In Rasul v. Bush, the Court ruled that foreign detainees held at Guantánamo Bay have the right to challenge their detention in U.S. courts.

In June 2006 the Supreme Court addressed the issue of military trials for accused enemy combatants. In Hamdan v. Rumsfeld the Court ruled that proposed military tribunals for alleged unlawful combatants violated federal statute and the Uniform Code of Military Justice (UCMJ), in part because the UCMJ incorporates Common Article 3 of the Geneva Conventions—most importantly its requirement of trials before “regularly constituted courts.” The Court found that the Bush administration’s proposed military tribunals were illegal because, unlike normal court-martial proceedings, trials in these commissions allowed for evidence obtained by coercion and hearsay, and because the accused were not allowed to be present at all times during the trial or to see all the evidence against them.

In September 2006 the U.S. Congress responded to the Supreme Court’s ruling by passing the Military Commissions Act of 2006. The new law reflected Congress’s insistence that torture be prohibited but also permitted under certain conditions the admission of evidence obtained by coercion. The new law also denied the right of habeas corpus to noncitizens designated as unlawful enemy combatants by the president or secretary of defense. The law affirmed the president's power to hold people as enemy combatants based on a wide range of conduct, some of it falling well short of actual military hostilities.

	More from Encarta
	•  7 tips for funding an online degree •  How to succeed in the fashion industry without being a top designer •  Presidential Myths Quiz •  Coffee break: Recharge your brain