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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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 22
The Bill of Rights: A Selected The Bill of Rights: A Selected List of Constitutional ProtectionsList of Constitutional Protections
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 33
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 44
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 55
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 66
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 77
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 88
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 99
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1010
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1111
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”
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1212
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1414
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1515
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1616
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1717
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1818
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 1919
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 2020
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 2121
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 2323
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 2424
Opinions on the Rights of Individuals Opinions on the Rights of Individuals Suspected of Terrorist ActsSuspected of Terrorist Acts
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 2525
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?
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved. 2626