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Civil Rights

The Constitution provides that all people are entitled to certain rights. Most of those rights are listed in the “Bill of Rights” (the first ten amendments to the Constitution) and in the Fourteenth Amendment, but some are listed in the original text of the Constitution or in the other amendments. The rights guaranteed by the Constitution include the right to a fair trial for a criminal defendant, the right to avoid cruel and unusual punishment, and the right against self incrimination.

For purposes of this section, we will focus on four rights guaranteed by the Constitution:

  1. Freedom of Speech
  2. Freedom of Religion
  3. Due Process
  4. Equal Protection

Freedom of Speech

The First Amendment provides,

“Congress shall make no law…abridging the freedom of speech.”

This has been interpreted to mean that, with certain exceptions, no government (state or federal) can prevent people from expressing themselves. Conduct is also considered “speech” and thus is also protected if it is meant to convey a political message. So, if a person wants to paint himself green to show solidarity with tree leaves, the government cannot prevent him from doing so. 

Freedom of speech includes freedom to avoid speech. Thus:

  • people cannot be forced to salute the flag or rise during the national anthem
  • school children cannot be forced to recite the pledge of allegiance

However, the government can regulate conduct. Thus, if the conduct is otherwise prohibited, the fact that it is meant as a political statement does not make it permissible! This means, for example, that a state may prohibit public nudity even if, when displayed, it is meant to communicate an idea.

There are certain types of speech, however, that are not protected by the First Amendment. This is because, sometimes, the interest of society in preventing dangerous or destructive behavior can outweigh the right to freedom of speech. These categories include:

1) Speech that tends to provoke imminent lawless action
Under a famous Supreme Court case called Brandenburg v. Ohio, speech can be prohibited and punished if:

  • It is intended to provoke imminent lawless conduct; and
  • It is likely to cause imminent lawless conduct


2) “Fighting words” 
Speech that is “likely to incite physical violence as retaliation” can be prohibited.


3) Obscenity 
Obscene expression is not protected by the First Amendment. Obscenity is defined as any expression that:

  1. appeals to prurient interest;
  2. portrays the material in a way that is patently offensive in the community; and 
  3. lacks any serious literary, artistic, political or scientific value


4) Defamation
False statements about people that are defamatory (statements that cause a person’s reputation in the community to suffer) are unprotected by the First Amendment.


5) Commercial Speech
Commercial speech (i.e., advertising, etc.) is less protected than other forms of speech. These forms of commercial speech can be and are prohibited: 

  • false or misleading advertising
  • advertising for an illegal activity or transaction

Freedom of Religion

The First Amendment provides,

“Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.”

This includes 2 components:

1) The “establishment” clause: The government cannot condone or support a particular religion to the exclusion of others, nor can the government condone or support religion over lack of religion. For example, a state or the federal government cannot set up a state church or pass a law requiring people to attend church or reward people for doing so.

The question arising is: What happens if a law has a mixed secular and religious purpose? The Supreme Court has applied the following test to such cases: 

  1. Does the law have a non-secular purpose? If so, it violates the Establishment Clause.
  2. Is the primary effect either to advance religion or to inhibit religion? If so, it violates the Establishment Clause.
  3. Does the law foster an excessive governmental entanglement with religion? If so, it violates the Establishment Clause.

2) The “Free Exercise” Clause: This part of the First Amendment disallows the government from prohibiting religious activities or punishing them for carrying out those activities.

There has been some question as to how laws that unintentionally infringe on religion will be assessed. As with freedom of speech, the government can prohibit general conduct for general reasons, even if that law has the unintended effect of prohibiting certain religious activities. The Supreme Court has allowed these types of laws as long as the law was not designed to inhibit religious activities and as long as making an exception for the religious group would help defeat the purpose of the law. However, if an accommodation can be made for a religious sect without sacrificing the effectiveness of the law, the courts will often require it. For example, the courts have forced an exemption to the state school requirement for Amish families because a fundamental tenet of their religion forbade secondary education.

Due Process 

The Fifth and Fourteenth Amendments to the United States Constitution guarantee that no government within the United States can deprive any person of

“life, liberty, or property, without due process of law.”

The “due process” clauses have been held by the Supreme Court to make two distinct guarantees: 

First, there is the guarantee of “procedural due process”. This means that before the government can deprive someone of a right, the government must give that person a chance to defend him or herself. This is most evident in the field of criminal procedure, where there are many procedural protections for criminal defendants, such as the right to a jury trial and the right to be represented by counsel at trial. 

In addition, there are other situations where a person has the right to a full hearing before a right is taken away. For example, before a person is committed to a mental hospital involuntarily and before someone’s welfare benefits are cut off, that person is entitled to a hearing before a neutral judge to determine if the government is entitled to take away his or her rights to liberty or property. Some level of due process is required for less serious deprivations as well, such as suspensions from public school or suspension of a driver’s license. 

More controversial, but just as entrenched in American law, is the right to “substantive due process”. Although the phrase “due process” seems to inherently refer to procedure, the Supreme Court has ruled that the due process clauses prevent any government from making any law that takes away any right from people unless the government has an adequate justification for the law. 

The level of “justification” that must be met by the government to pass a restrictive law depends on the nature of the right that is being taken away. If the law seeks to infringe on the “fundamental rights" of people, the law can only be passed if it is necessary to achieve a compelling purpose (it must be extremely important). If the law seeks only to infringe on a “non-fundamental right", the law is okay as long as it is rationally related to a legitimate government purpose. 

Thus, it is very important to determine whether a right is “fundamental” or not. If the law infringes on a fundamental right, it will usually be struck down as a violation of the due process clause, while if it infringes only on a “non-fundamental” right, it will probably be upheld. The Supreme Court has, so far, found the following rights to be “fundamental”: privacy (which includes many other areas, such as the right to refuse medical treatment), voting, speech, travel between states, religion, and the right of association with whomever one wants to. Any right that is not found to be fundamental is, by default, not fundamental. Note that this list is not set in stone, and may be expanded or contracted by future Supreme Court decisions.

Equal Protection

The Fourteenth Amendment provides

“No State shall…deny to any person within its jurisdiction the equal protection of the laws."

Although the Amendment only lists states, the “equal protection” clause has been held to apply to the federal government as well.

Of course, the “equal protection” clause was designed to prevent government discrimination against certain groups of people. However, this does not mean that the government may never differentiate between different groups of people. After all, the government needs to be able to set age restrictions on tasks like driving and the government certainly needs to differentiate between competent and incompetent people when it does its hiring. The “equal protection” clause simply requires that, much as with the due process clause, the government must have an adequate justification for differentiating on the basis of a classification of people before it does so.

What level of justification is necessary for a government classification depends on how “suspect” a classification is:

  • If the classification is a “suspect classification” (such as a classification based on race or national origin), the classification must be necessary to achieve a compelling purpose to stand. In practice, few laws that are based on suspect classifications have withstood Supreme Court scrutiny. One notable exception to this principle is that the Court has shown a willingness to uphold some affirmative action programs (programs that benefit minorities for the purpose of remedying past discrimination against them) even though they are race-based classifications.
  • If the classification is “quasi-suspect” (partially suspect) (such as classifications based on gender), the law will pass if it is substantially related to an important purpose.
  • If the classification is “non-suspect” (any classification that has not been listed by the courts as being suspect or quasi-suspect), the classification will be allowed as long as it is rationally related to a legitimate purpose.