Civil Liberties: Protecting Civil Liberties: Protecting Individual RightsIndividual Rights

Chapter 4Chapter 4

The Constitution: The Bill of Rights The Constitution: The Bill of Rights and the Fourteenth Amendmentand the Fourteenth Amendment

Selective incorporation of free expression Selective incorporation of free expression rightsrightsFourteenth Amendment due process clause Fourteenth Amendment due process clause

prevents states from abridging individual rightsprevents states from abridging individual rightsSupreme Court engaged in “selective Supreme Court engaged in “selective

incorporation”—invoking Fourteenth Amendment incorporation”—invoking Fourteenth Amendment to apply Bill of Rights to the statesto apply Bill of Rights to the states

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The Bill of Rights: A Selected The Bill of Rights: A Selected List of Constitutional ProtectionsList of Constitutional Protections

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The Constitution: The Bill of Rights The Constitution: The Bill of Rights and the Fourteenth Amendmentand the Fourteenth Amendment

Selective incorporation of fair trial rightsSelective incorporation of fair trial rightsInitial resistance by the Supreme Court to invoke Initial resistance by the Supreme Court to invoke

selective incorporation to protect the rights of the selective incorporation to protect the rights of the accused in the statesaccused in the states

Change in the 1960s: Court begins to assert and Change in the 1960s: Court begins to assert and protect rights of accusedprotect rights of accused

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Freedom of ExpressionFreedom of Expression

The early period: the uncertain status of the The early period: the uncertain status of the right of free expressionright of free expressionSedition Act, 1798Sedition Act, 1798Espionage Act, 1917Espionage Act, 1917Schenck v. United States Schenck v. United States (1919) (1919)

Clear-and-present-danger testClear-and-present-danger test

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Freedom of ExpressionFreedom of Expression

The modern period: protecting free expressionThe modern period: protecting free expressionEarly cold war—freedom of speech abridged in Early cold war—freedom of speech abridged in

interest of national security; protected after 1950sinterest of national security; protected after 1950sImminent lawless actionImminent lawless actionSymbolic speech protected, but less completely Symbolic speech protected, but less completely

than verbal speechthan verbal speech

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Freedom of ExpressionFreedom of Expression

The modern period: protecting free expressionThe modern period: protecting free expressionFree assembly—some restrictions allowed, based Free assembly—some restrictions allowed, based

on national security or disruption of daily lifeon national security or disruption of daily lifePress freedom and prior restraintPress freedom and prior restraint

““Pentagon Papers”Pentagon Papers”New York Times Co. v. United States New York Times Co. v. United States (1971)(1971)Prior restraint disallowed under extreme burden of Prior restraint disallowed under extreme burden of

proof on governmentproof on government

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Freedom of ExpressionFreedom of Expression

The modern period: protecting free expressionThe modern period: protecting free expressionLibel and slanderLibel and slander

Libel: publishing material that falsely damages person’s Libel: publishing material that falsely damages person’s reputationreputation

Slander: spoken words that falsely damage person’s Slander: spoken words that falsely damage person’s reputationreputation

Libel against public officials requires malicious intentLibel against public officials requires malicious intent

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Freedom of ExpressionFreedom of Expression

The modern period: protecting free expressionThe modern period: protecting free expressionObscenityObscenity

Material must lack “redeeming social value”Material must lack “redeeming social value”Material must be “patently offensive”Material must be “patently offensive”““Reasonable person” to be judge of “community Reasonable person” to be judge of “community

standards”standards”Supreme Court distinction between obscenity in public Supreme Court distinction between obscenity in public

and in homeand in home

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Freedom of ReligionFreedom of Religion

The establishment clauseThe establishment clauseGovernment may not favor one religion over Government may not favor one religion over

anotheranotherGovernment may not favor religion over no Government may not favor religion over no

religionreligion““Wall of separation” versus “excessive Wall of separation” versus “excessive

entanglement”entanglement”The Lemon test—conditions for acceptable The Lemon test—conditions for acceptable

government actiongovernment action

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Freedom of ReligionFreedom of Religion

The free-exercise clauseThe free-exercise clauseGovernment prohibited from interfering with the Government prohibited from interfering with the

practice of religionpractice of religionGovernment interference allowed when exercise of Government interference allowed when exercise of

religious belief conflicts with otherwise valid lawreligious belief conflicts with otherwise valid lawGovernment may not prohibit free exercise of Government may not prohibit free exercise of

religionreligion

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The Right to Bear ArmsThe Right to Bear Arms

Widely accepted view that the amendment Widely accepted view that the amendment blocked the federal government from blocked the federal government from abolishing state militiasabolishing state militias

InIn District of Columbia v. Heller District of Columbia v. Heller (2008) the (2008) the Court ruled that “the Second Amendment Court ruled that “the Second Amendment protects an individual right to possess a protects an individual right to possess a firearm”firearm”

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The Right of PrivacyThe Right of Privacy

Griswold v. ConnecticutGriswold v. Connecticut: Americans have a : Americans have a “zone of privacy” that cannot lawfully be “zone of privacy” that cannot lawfully be denieddenied

AbortionAbortionProtected as a right of privacy in Protected as a right of privacy in Roe v. WadeRoe v. Wade, and , and

upheld when challengedupheld when challenged

Sexual relations among consenting adultsSexual relations among consenting adultsAnti-sodomy laws in states struck down by Anti-sodomy laws in states struck down by

Supreme Court in 2003Supreme Court in 2003© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1313

Americans’ Opinions On Americans’ Opinions On AbortionAbortion

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Procedural due process: Procedural due process: procedures that procedures that authorities must follow before a person can authorities must follow before a person can lawfully be punished for an offenselawfully be punished for an offense

Suspicion phaseSuspicion phaseNo police search unless probable cause that crime No police search unless probable cause that crime

occurred (Fourth Amendment)occurred (Fourth Amendment)Not a blanket protection; some warrantless Not a blanket protection; some warrantless

searches allowed based on situationsearches allowed based on situation

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Arrest phaseArrest phaseFifth Amendment protection against self-Fifth Amendment protection against self-

incriminationincriminationMiranda v. ArizonaMiranda v. Arizona: No legal interrogation until : No legal interrogation until

suspect has been warned their words could be used suspect has been warned their words could be used as evidenceas evidenceMiranda warningMiranda warning

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Trial phaseTrial phaseLegal counsel and impartial juryLegal counsel and impartial jury

Fifth Amendment: suspect cannot be tried for federal Fifth Amendment: suspect cannot be tried for federal crime unless indicted by grand jury; states not required crime unless indicted by grand jury; states not required to use grand juriesto use grand juries

Sixth Amendment: right to legal counsel before and Sixth Amendment: right to legal counsel before and during trialduring trial

Right to speedy trialRight to speedy trial

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Trial phaseTrial phaseThe exclusionary ruleThe exclusionary rule

No admission of illegally obtained evidenceNo admission of illegally obtained evidence1960s expansion of exclusionary rule1960s expansion of exclusionary ruleExceptions: inevitable discovery; good faithExceptions: inevitable discovery; good faith

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Sentencing phaseSentencing phaseEighth Amendment prevention of “cruel and Eighth Amendment prevention of “cruel and

unusual punishment” of convicted personsunusual punishment” of convicted personsSupreme Court generally allows states to decide Supreme Court generally allows states to decide

punishments, but has limited aspects of death punishments, but has limited aspects of death penaltypenalty

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Appeal: one chance, usuallyAppeal: one chance, usuallyNo constitutional guarantee of appeal; but federal No constitutional guarantee of appeal; but federal

and states allow at least one appealand states allow at least one appealFederal law bars in most instances a second federal Federal law bars in most instances a second federal

appeal by a state prison inmateappeal by a state prison inmate

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Rights of Persons Accused of CrimesRights of Persons Accused of Crimes

Crime, punishment, and police practicesCrime, punishment, and police practicesSupreme Court rulings have affected police Supreme Court rulings have affected police

practicespracticesMirandaMiranda

Some poor or arbitrary application of rightsSome poor or arbitrary application of rightsRacial profilingRacial profiling

Tough sentencing policies popular, but prison Tough sentencing policies popular, but prison overcrowding an issueovercrowding an issue

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Incarceration Rates, by CountryIncarceration Rates, by Country

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Rights and the War on TerrorismRights and the War on Terrorism

WWII detention of Japanese AmericansWWII detention of Japanese AmericansDetention of enemy combatantsDetention of enemy combatants

Hamdi v. Rumsfeld Hamdi v. Rumsfeld (2004)(2004)Hamdan v. RumsfeldHamdan v. Rumsfeld (2006) (2006)

Surveillance of suspected terroristsSurveillance of suspected terroristsUSA Patriot ActUSA Patriot ActWarrantless wiretappingWarrantless wiretapping

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The Courts and a Free SocietyThe Courts and a Free Society

Americans embrace freedom of expression as Americans embrace freedom of expression as an abstract virtuean abstract virtue

Americans favor limits of freedom of Americans favor limits of freedom of expression in particular instancesexpression in particular instances

Judicial system the primary protector of Judicial system the primary protector of individuals’ rightsindividuals’ rights

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Opinions on the Rights of Individuals Opinions on the Rights of Individuals Suspected of Terrorist ActsSuspected of Terrorist Acts

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What’s Your Opinion?What’s Your Opinion?

What can be done to safeguard individuals’ What can be done to safeguard individuals’ due process rights?due process rights?

Who is responsible when due process rights Who is responsible when due process rights are violated?are violated?

Is it possible to make the justice system Is it possible to make the justice system foolproof? If so, how?foolproof? If so, how?

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