Civil liberties in the United States

This page is a survey of civil liberties guaranteed to citizens of the United States under the Constitution of the United States as interpreted and clarified by its Supreme Court.

Freedom of speech

Main article: Freedom of speech in the United States

Freedom of speech, protected by the First Amendment, allows people the freedom to express themselves and enjoy the expressions of others in nearly all instances.

Even students may express themselves in government-run schools (Tinker v. Des Moines). Wearing things is a form of expression (ibid.).

Freedom of speech in the US follows a gradated system, with different types of regulations subject to different levels of scrutiny in court challenges.

Time, Place, or Manner Restrictions

These get the lowest level of scrutiny and are usually upheld, unless their requirements have an especially burdensome impact on speech. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another).

Content-Based Restrictions

Restrictions that require examining the content of speech to be applied must pass strict scrutiny.

Viewpoint-Based Restrictions

Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are almost always overturned, unless they fall into one of the courts special exceptions.

Special exceptions

Obscenity, defined by the Miller test, is work that, applying contemporary community standards: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)

Fighting Words are words or phrases that are likely to induce the listener to get in a fight. This previously applied to words like nigger, but with people getting less sensitive to words, this exception is little-used.

Speech that presents a clear and present danger may also be restricted. The canonical example, enunciated by Justice Oliver Wendell Holmes, is yelling "Fire!" in a crowded movie theater. The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content.

Restrictions on commercial speech, defined as speech mainly in furtherance of selling a product, is subject to a lower level of scrutiny than other speech, although recently the court has taken steps to bring it closer to parity with other speech. This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company).

Prior restraint

If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what's illegal (vagueness: ??), cover the minimum speech necessary (overbreadth: ??), make a quick decision (??), be backed up by a court (??), bear the burden of suing and proving the speech is illegal (??), and show that allowing the speech would "surely result in direct, immediate and irreparable damage to our Nation and its people" (New York Times Co. v. United States).

Sexual freedom

The freedom to have an abortion (Roe v. Wade). The freedom to have private consensual sex (Lawrence v. Texas).

Equal protection

Main article: Equal protection clause

Equal protection prevents the government from creating laws that are discriminatory in application or effect.