2. Presentation by Eric Miller, Blinn College, Bryan, Texas. C HAPTER 4 Civil Liberties: Protecting Individual Rights

3. T HOMAS J EFFERSON A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference. Civil Liberties= liberties that are constitutionally protected from infringement by government A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference. Civil Liberties= liberties that are constitutionally protected from infringement by government

4. F REEDOM OF E XPRESSION The Early Period: The Uncertain Status of the Right of Free Expression Sedition Act of 1798 - prohibited false or malicious newspaper stories about the president or other national officials Clear-and-Present-Danger test Justice Oliver Wendell Holmes- government can restrict speech that threatens national security Falsely yelling “Fire!” in a crowded theater All civil liberties are NOT absolute

5. F REEDOM OF E XPRESSION The Modern Period: Protecting Free Expression Freedom of expression is the most fundamental to the maintenance of a democratic society Free Speech and Assembly Gov can prevent a rally from taking place when it can demonstrate that a “non-preventable evil” will result if the rally is held Press Freedom and Prior Restraint “Pentagon Papers”- New York Times Co. v. United States (1971) Press can be held accountable for what they have already published but NOT by restricting what can be published Prior restraint should only apply in rare circumstances ONLY if government can clearly justify the restriction 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

6. F REEDOM OF E XPRESSION Free Expression and State Governments Due Process clause The Fourteenth Amendment and Selective Incorporation Selective Incorporation- absorption of certain provisions of the Bill of Rights into the 14 th Amendment so that these rights are protected from infringements by state governments Gitlow v. New York (1925) The 14 th Amendment applies to state (& local) action in the area of freedom of expression Limiting the Authority of States to Restrict Expression Imminent lawless action test Gov. cannot lawfully suppress advocacy unless it can be proven that it promotes and is likely to result in “imminent lawless action”

8. F REEDOM OF E XPRESSION Libel and Slander Slander- spoken words that are known to be false and harmful to a person’s reputation Libel- Printed lies… Public people (less protection) vs. private people (more protection) Obscenity Obscenity is NOT protected by the 1 st Amendment 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

10. F REEDOM OF R ELIGION The Establishment Clause Government may not favor one religion over another Government may not favor religion over no religion Engel v. Vitale (1962) No prayer in public school “Wall of separation” versus “excessive entanglement” The Lemon test—conditions for acceptable government action Secular purpose Neither advances nor inhibits religion Avoids excessive government entanglement 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

11. T HE R IGHT OF P RIVACY The Supreme Court has reasoned that the right of privacy is provided by a reasonable interpretation of other constitutional protections in the Bill of Rights Griswold v. Connecticut : Americans have a “zone of privacy” that cannot lawfully be denied Abortion Roe v. Wade (1973) Right to privacy Planned Parenthood v. Casey (1992) Reaffirmed the essential aspects of Roe v. Wade Sexual Relations Among Consenting Adults Lawrence and Garner v. Texas (2003)

12. T HE R IGHT TO B EAR A RMS 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”

13. R IGHTS OF P ERSONS A CCUSED OF C RIMES 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

14. R IGHTS OF P ERSONS A CCUSED OF C RIMES 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

15. R IGHTS OF P ERSONS A CCUSED OF C RIMES 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 The exclusionary rule No admission of illegally obtained evidence 1960s expansion of exclusionary rule Exceptions: inevitable discovery; good faith

16. R IGHTS OF P ERSONS A CCUSED OF C RIMES 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

17. R IGHTS OF P ERSONS A CCUSED OF C RIMES Appeal: one chance, usually No constitutional guarantee of appeal; but federal law and states allow at least one appeal Federal law bars in most instances a second federal appeal by a state prison inmate

18. R IGHTS OF P ERSONS A CCUSED OF C RIMES Procedural due process The Fourth Amendment No unreasonable searches… The Fifth Amendment Due process, no double jeopardy or self-incrimination, property… The Sixth Amendment Speedy public trial by jury w/ council… The Eighth Amendment No excessive fines, bails, or cruel & unusual punishment… The Fourteenth Amendment No state shall deny equal protection of the law or due process…

19. R IGHTS OF P ERSONS A CCUSED OF C RIMES 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

20. R IGHTS OF P ERSONS A CCUSED OF C RIMES Selective Incorporation of Procedural Rights Miranda v. Arizona (1966) Miranda Warning- “You have the right to remain silent…” Search and Seizure The Exclusionary Rule Evidence obtained in an illegal search is inadmissible in court Habeas Corpus Appeals

23. R IGHTS AND THE W AR ON T ERRORISM Detention of Enemy Combatants Prisoners captured in Afghanistan Hamdi v. Rumsfeld (2004) Citizens accused of terrorist acts are entitled to the right to a judicial hearing Surveillance of Suspected Terrorists USA Patriot Act Enacted in response to 9/11 attacks New powers of surveillance and search Intelligence agencies have the authority to share crime-related info with law enforcement

24. T HE C OURTS AND A F REE S OCIETY Courts are not isolated from public moods Courts must balance society’s need for safety against the rights of the individual The test of a truly free society is its willingness to tolerate distasteful ideas The greatest threat to individual rights is a determined majority backed by elected leaders eager to carry out its rule The judiciary is the institution most partial to the protection of civil liberties

25. S TATES IN THE N ATION