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Civil Liberties: Protecting Individual Rights
Chapter 4
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The Constitution: The Bill of Rights and the Fourteenth Amendment
Selective incorporation of free expression rights Fourteenth Amendment due process clause prevents states from abridging individual rights Supreme Court engaged in “selective incorporation”—invoking Fourteenth Amendment to apply Bill of Rights to the states © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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The Bill of Rights: A Selected List of Constitutional Protections
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 Symbolic speech protected, but less completely than verbal speech © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
Freedom of Expression The modern period: protecting free expression Free assembly—some restrictions allowed, based on national security or disruption of daily life 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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
Freedom of Expression The modern period: protecting free expression Libel and slander Libel: publishing material that falsely damages person’s reputation Slander: spoken words that falsely damage person’s reputation Libel against public officials requires malicious intent © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
Freedom of Expression The modern period: protecting free expression Obscenity Material must lack “redeeming social value” Material must be “patently offensive” “Reasonable person” to be judge of “community standards” Supreme Court distinction between obscenity in public and in home © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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” The Lemon test—conditions for acceptable government action © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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The Right to Bear Arms Widely accepted view that the 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” © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
The Right of Privacy Griswold v. Connecticut: Americans have a “zone of privacy” that cannot lawfully be denied Abortion Protected as a right of privacy in Roe v. Wade, and upheld when challenged Sexual relations among consenting adults Anti-sodomy laws in states struck down by Supreme Court in 2003 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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Americans’ Opinions On Abortion
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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 crime occurred (Fourth Amendment) Not a blanket protection; some warrantless searches allowed based on situation © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 their words could be used as evidence Miranda warning © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 in most instances a second federal appeal by a state prison inmate © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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Incarceration Rates, by Country
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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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 © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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Opinions on the Rights of Individuals Suspected of Terrorist Acts
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© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
What’s Your Opinion? What can be done to safeguard individuals’ due process rights? Who is responsible when due process rights are violated? Is it possible to make the justice system foolproof? If so, how? © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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