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After you’ve read this chapter, you will be able to

 4.1 Define rights and liberties and their role in a democratic society.

 4.2 Explain how the Bill of Rights relates to the federal government and to the states.

 4.3 Describe how the First Amendment protects both church and state, as well as individuals’ religious freedom.

 4.4 Explain the value of freedom of expression and how its protections have been tested.

 4.5 Give examples of different interpretations of the Second Amendment’s meaning.

 4.6 Describe the protections afforded criminal defendants under the Constitution.

 4.7 Discuss the extent of an individual’s right to privacy.

 4.8 Compare the idea of civil rights with civil obligations.

What’s at Stake . . . in Regulating the Internet?

Net neutrality. It’s the kind of free expression issue the founders never dreamed of.

Even the founders of the Internet had no idea what they were starting. The early days of the Internet were the wild, wild West—the frontier of information technology. People communicated freely, individuals wrote their own rules, and freewheeling entrepreneurs could take off on exciting adventures, make their fortunes, and create empires. (Hello, Jeff Bezos and Mark Zuckerberg, we are looking at you!) There was no lawman in town, mostly because there were no laws.

TOLES © 2014 The Washington Post. Reprinted with permission of UNIVERSAL UCLICK. All rights reserved.

In those formative years of anything-goes-online life, it was hard to imagine that one day we would be asked to pay for access to news sites, have to pay sales tax on purchases made online, or be limited by profit-minded Internet providers in where we could go and how fast we could get there. The world was our electronic oyster.

That was then.

Today the Internet isn’t just a quirky place where academics or gamers or other nerdy types hang out. It is a virtual public square that an increasing number of us visit daily, hourly, or constantly, a line of communication on which most of us depend to mediate our social ties, our business lives, our creative work, our faith, and our entertainment. Of course we expect to pay for an Internet provider, but having our online access limited beyond that—to pay different amounts to access sites depending on whether the sites have economic or political clout—seems at once outrageous and fundamentally unfair, as if we were being asked to pay for access to the air we breathe or the ground we walk on.

And that is the issue at the heart of net neutrality: the idea that Internet providers should provide the same access to all sites, regardless of content or source. Providers should not favor or promote some sites over others, or offer them at a premium speed, and no sites should be discriminated against by a provider’s tax or penalty. In other words, the government should regulate Internet providers so that they provide users equal access to all sites.

net neutrality the idea that Internet providers should provide access to all websites without preference or prejudice

Many groups, from the libertarian right to the progressive left, have been in favor of net neutrality. Then-candidate Barack Obama endorsed the idea in 2007, and under his administration the Federal Communications Commission (FCC) adopted a net neutrality policy in 2010.

Obama claimed that net neutrality was necessary for “lowering the cost of a new idea, igniting new political movements, and bringing communities closer together.”¹ Other supporters said it was about freedom of expression (one Democratic commissioner said that the rule was “no more a plan to regulate the Internet ‘than the First Amendment is a plan to regulate free speech’”).²

Verizon Communications challenged the FCC ruling in court, where it was overturned in 2014. In response to a citizens’ petition on the White House’s “We the People” site, signed by 105,572 people, the FCC classified Internet providers as “common carriers,” which allowed them to be regulated as public utilities under the 1934 Communications Law designed to deal with the new media of radio and television. During a required public comment period, almost four million Americans chimed in on the subject, an FCC record. On February 26, 2015, the FCC voted in favor of the principle that all Internet traffic should be treated the same.³

Not surprisingly, the vote was immediately controversial. In April 2016 the House of Representatives passed a bill along party lines that banned the FCC from reviewing the rates that Internet service providers charge, an effort to blunt the effect of the FCC rule change. Although it had no chance of becoming law (even if it got through the Senate, the president would have vetoed it), it was seen as a victory by Republicans who had been trying to strike down net neutrality.⁴ A Republican commissioner on the FCC who voted against the new rule said that it would lead to a “monumental shift” toward “government control of the Internet.” He argued that rates would go up, service would slow as more users accessed the system for free, and it would open the doors to “billions of dollars in new taxes.”⁵ A Republican House member who voted for the congressional legislation said, “The last thing we want to throw on there is the cold water of Washington bureaucracy, after the fact regulation, that will stifle competition and innovation.”⁶

And then, when Donald Trump became president in 2017, he appointed Republicans to the FCC who overturned the Obama-era policy, allowing Internet service providers to charge what they wanted. Within months, Democratic-backed legislation to overturn the FCC regulations had passed in the Senate with some Republican support. It had no hope of passing in the House, however, and President Trump would have almost certainly vetoed it anyway. Democrats hoped to leverage their position, popular with the public, into electoral advantage in November 2018.⁷

Polls showed that 83 percent of the public favored the Obama-era net neutrality, including a large majority of Republicans.⁸ Given our constitutional guarantees of free speech and free press in this country, not to mention the right of the people to assemble, which is the kind of engagement that could easily be promoted, or stifled, on the Internet, it’s hard to see where the force of the objections comes from. Why the controversy about a principle that on its face just makes the Internet a more fair and open channel of communication? We’ll take a closer look at this issue after we explore the political battles Americans have fought to secure all of their freedoms.

“GIVE me liberty,” declared patriot Patrick Henry at the start of the Revolutionary War, “or give me death.” “Live Free or Die,” proudly proclaims the message on the New Hampshire license plate. Americans have always put a lot of stock in their freedom. Certain that they live in the least restrictive country in the world, Americans celebrate their freedoms and are proud of the Constitution, the laws, and the traditions that preserve them.

And yet, living collectively under a government means that we aren’t free to do whatever we want. Limits on our freedoms allow us to live peacefully with others, minimizing the conflict that would result if we all did exactly what we pleased. John Locke said that liberty does not equal license; that is, the freedom to do some things doesn’t mean the freedom to do everything. Deciding what rights we give up to join civilized society, and what rights we retain, is one of the great challenges of democratic government.

What are these things called “rights” or “liberties,” so precious that some Americans are willing to lay down their lives to preserve them? On the one hand, the answer is very simple. Rights and liberties are synonyms; they mean freedoms or privileges to which one has a claim. In that respect, we use the words more or less interchangeably. But when prefaced by the word civil, both rights and liberties take on a more specific meaning, and they no longer mean quite the same thing.

Our civil liberties are individual freedoms that place limitations on the power of government. In general, civil liberties protect our right to think and act without government interference. Some of these rights are spelled out in the Constitution, particularly in the Bill of Rights. These include the rights to express ourselves and to choose our own religious beliefs. Others, like the right to privacy, rest on the shakier ground of judicial decision making. Although government is prevented from limiting these freedoms per se, they are often limited anyway, even if only by another person’s rights. Government does play a role in resolving the conflicts between individuals’ rights.

civil liberties individual freedoms guaranteed to the people primarily by the Bill of Rights

While civil liberties refer to restrictions on government action, civil rights refer to the extension of government action to secure citizenship rights for all members of society. When we speak of civil rights, we most often mean that the government must treat all citizens equally, apply laws fairly, and not discriminate unjustly against certain groups of people. Most of the rights we consider civil rights are guaranteed by the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments. These amendments lay out fundamental rights of citizenship, most notably the right to vote, but also the right to equal treatment before the law and the right to due process of the law. They forbid government from making laws that treat people differently on the basis of race, and they ensure that the right to vote cannot be denied on the basis of race or gender.

civil rights citizenship rights guaranteed to the people (primarily in the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments) and protected by the government

Not all people live under governments whose rules guarantee them fundamental liberties. In fact, we argued earlier that one way of distinguishing between authoritarian and nonauthoritarian governments is that nonauthoritarian governments, including democracies, give citizens the power to challenge government if they believe it has denied them their basic rights. In fact, democracies depend on the existence of rights in at least two ways. First, civil liberties provide rules that keep government limited, so that it cannot become too powerful. Second, civil rights help define who “we, the people” are in a democracy, and they give those people the power necessary to put some controls on their governments.

We will take two chapters to explore in depth the issues of civil liberties and civil rights. In this chapter we begin with a general discussion of the meaning of rights or liberties in a democracy and then focus on the traditional civil liberties that provide a check on the power of government. In Chapter 5 we focus on civil rights and the continuing struggle of some groups of Americans—like women, African Americans, and other minorities—to be fully counted and empowered in American politics.

As an introduction to the basic civil liberties guaranteed to Americans, in this chapter you will learn about the meaning of rights in a democratic society, the Bill of Rights as part of the federal Constitution and its relationship to the states, and several specific rights that it details—freedom of religion, speech, and the press; the right to bear arms; the rights of people accused of crimes; and the right to privacy.