Civil Liberties: Protecting Individual Rights Chapter 4

The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation Selective incorporation of free expression rights Fourteenth Amendment due process clause prevents states from abridging individual rights Supreme Court engaged in selective incorporation—invoking the Fourteenth Amendment to apply the Bill of Rights to the states

The Constitution: The Bill of Rights and the Fourteenth Amendment Selective incorporation of fair trial rights Initial resistance by the Supreme Court to invoke selective incorporation to protect the rights of the accused in the states Change in the 1960s: Court begins to assert and protect rights of accused

Civil Liberties Rankings 105

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Freedom of Expression The early period: the uncertain status of the right of free expression Sedition Act, 1798 Espionage Act, 1917 Schenck v. United States (1919) Clear-and-present-danger test

Freedom of Expression The modern period: protecting free expression Early cold war—freedom of speech abridged in interest of national security; protected after 1950s Imminent lawless action test Symbolic speech protected, but less completely than verbal speech

Freedom of Expression Free assembly Press freedom and prior restraint Some restrictions allowed, based on national security or disruption of daily life Government can place time, place, and manner restrictions Press freedom and prior restraint “Pentagon Papers” New York Times Co. v. United States (1971) Prior restraint disallowed under extreme burden of proof on government

Freedom of Expression Libel and slander Libel: publishing material that falsely damages a person’s reputation Slander: spoken words that falsely damage a person’s reputation Libel against public officials requires malicious intent

Freedom of Religion The establishment clause Government may not favor one religion over another Government may not favor religion over no religion “Wall of separation” versus “excessive entanglement”

Freedom of Religion The establishment clause often involves the Lemon test The policy must have a nonreligious purpose The policy’s primary effect must be one that neither advances nor inhibits religion The policy must not foster “an excessive entanglement of government with religion

Freedom of Religion The free-exercise clause Government prohibited from interfering with the practice of religion Government interference allowed when exercise of religious belief conflicts with otherwise valid law Government may not prohibit free exercise of religion

The Right to Bear Arms Widely accepted view that the Second Amendment blocked the federal government from abolishing state militias In District of Columbia v. Heller (2008) the Court ruled that “the Second Amendment protects an individual right to possess a firearm” In McDonald v. Chicago (2010), the Court further extended the 2008 decision to apply to all state and local governments

The Right of Privacy Griswold v. Connecticut (1965): Americans have a “zone of privacy” that cannot lawfully be denied Abortion Protected as a right of privacy in Roe v. Wade (1973) Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), and Gonzales v. Carhart (2007) have placed some restrictions on abortion. Sexual relations among consenting adults Anti-sodomy laws in states struck down by Supreme Court in 2003, overturning the 1986 Bowers v. Hardwick ruling

Pro-Life vs. Pro-Choice 120

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Rights of Persons Accused of Crimes Procedural due process: procedures that authorities must follow before a person can lawfully be punished for an offense Suspicion phase No police search unless probable cause that a crime occurred (Fourth Amendment) Not a blanket protection; some warrantless searches allowed based on situation

Rights of Persons Accused of Crimes Arrest phase Fifth Amendment protection against self-incrimination Miranda v. Arizona: no legal interrogation until suspect has been warned his/her words could be used as evidence Miranda warning

Rights of Persons Accused of Crimes Trial phase Legal counsel and impartial jury Fifth Amendment: suspect cannot be tried for federal crime unless indicted by grand jury; states not required to use grand juries Sixth Amendment: right to legal counsel before and during trial Right to speedy trial

Rights of Persons Accused of Crimes Trial phase The exclusionary rule No admission of illegally obtained evidence 1960s expansion of exclusionary rule Exceptions: inevitable discovery; good faith

Rights of Persons Accused of Crimes Sentencing phase Eighth Amendment prevention of “cruel and unusual punishment” of convicted persons Supreme Court generally allows states to decide punishments, but has limited aspects of death penalty and punishments of minors

Rights of Persons Accused of Crimes Appeal: one chance, usually No constitutional guarantee of appeal; but federal and states allow at least one appeal Federal law bars a second federal appeal by a state prison inmate in most instances

Rights of Persons Accused of Crimes Crime, punishment, and police practices Supreme Court rulings have affected police practices Miranda Some poor or arbitrary application of rights Racial profiling Tough sentencing policies popular, but prison overcrowding an issue

130 incarceration rate

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Rights and the War on Terrorism WWII detention of Japanese Americans Detention of enemy combatants Hamdi v. Rumsfeld (2004) Hamdan v. Rumsfeld (2006) Surveillance of suspected terrorists USA Patriot Act Warrantless wiretapping Snowden leaks about NSA communications surveillance

The Courts and a Free Society Americans embrace freedom of expression as an abstract virtue Americans favor limits of freedom of expression in particular instances Judicial system the primary protector of individuals’ rights