---
title: "Civil Liberties and Civil Rights for the FSOT"
description: "Distinguish civil liberties from civil rights for the FSOT: the Bill of Rights, the incorporation doctrine, landmark cases, and the equal-protection revolution."
url: "https://modeldiplomat.com/learn/lessons/fsot-us-government-civil-liberties-civil-rights"
---

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Civil liberties & civil rights

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# Civil liberties & civil rights

Civil liberties versus civil rights for the FSOT: the Bill of Rights, incorporation, landmark cases, and the equal-protection revolution.

## Two Distinct Concepts

The FSOT and serious constitutional study demand precision on a distinction candidates routinely blur. **Civil liberties** are protections *against* government action—the freedoms the state may not abridge, enumerated chiefly in the Bill of Rights (1791) and the Fourteenth Amendment (1868). **Civil rights** are guarantees of *equal treatment*—the affirmative claim to be free from invidious discrimination, rooted in the Equal Protection Clause of the Fourteenth Amendment and elaborated by statute (the Civil Rights Act of 1964, the Voting Rights Act of 1965).

Liberties concern *what government cannot do to you*; rights concern *whether government and others treat you as an equal*. The First Amendment's protection of speech is a liberty; the prohibition on segregating public schools is a civil-rights guarantee.

## The Bill of Rights and Its Reach

The Bill of Rights originally restrained only the federal government. In *Barron v. Baltimore* (1833), Chief Justice Marshall held the Fifth Amendment did not bind the states. That changed through **selective incorporation**: the Supreme Court, reading the Fourteenth Amendment's Due Process Clause, applied most Bill of Rights guarantees against the states one provision at a time.

Key milestones: *Gitlow v. New York* (1925) incorporated free speech; *Mapp v. Ohio* (1961) applied the Fourth Amendment exclusionary rule to states; *Gideon v. Wainwright* (1963) incorporated the Sixth Amendment right to counsel; *McDonald v. Chicago* (2010) incorporated the Second Amendment. A handful of provisions remain unincorporated, notably the Third Amendment and the Fifth Amendment's grand-jury requirement (*Hurtado v. California*, 1884).

## Speech, Religion, and the Limits

The First Amendment anchors expressive liberty. The Court abandoned the deferential *Schenck v. United States* (1919) "clear and present danger" formulation for the protective **Brandenburg test** in *Brandenburg v. Ohio* (1969): speech may be punished only when it is directed to inciting *imminent* lawless action and is likely to produce it. *Tinker v. Des Moines* (1969) protected symbolic student speech; *Texas v. Johnson* (1989) protected flag burning; *New York Times v. Sullivan* (1964) erected the "actual malice" standard shielding criticism of public officials.

Religion is governed by two clauses. The **Establishment Clause** bars government endorsement of religion; *Engel v. Vitale* (1962) struck school-sponsored prayer. The **Free Exercise Clause** protects religious practice; *Employment Division v. Smith* (1990) held neutral, generally applicable laws need not yield to religious objection, prompting Congress to pass the Religious Freedom Restoration Act (1993). Candidates should retain these clause names, the governing tests, and the dated cases that define each.

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