Download Optional Chapter 4 Charts Civil Liberties

Chapter 4
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Overview
 Bill of Rights and the Fourteenth Amendment
 Freedoms of expression and religion
 Right to bear arms
 Rights of privacy
 Rights of the accused
 Rights and the war on terrorism
 Role of the courts in a free society
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Overview
 Freedom of expression most basic of democratic rights
 People not free unless they can freely express their views
 Free expression may conflict with the nation’s security
 1st Amendment free expression in the areas of speech,
press, and religion
 2nd Amendment right to bear arms
 Right of privacy established, which in some areas, such as
abortion, remains a source of controversy and judicial
action.
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Definitions
 civil liberties: The fundamental individual rights of a free
society, such as freedom of speech and the right to a jury
trial, which in the United States are protected by the Bill
of Rights.
 Bill of Rights: The first ten amendments to the
Constitution, which set forth basic protections for
individual rights of free expression, fair trial, and property.
 due process clause (of the Fourteenth Amendment):
The clause of the Constitution that has been used by the
judiciary to apply the Bill of Rights to the actions of state
governments.
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Definitions
 selective incorporation: The process by which certain of
the rights (for example, freedom of speech) contained in
the Bill of Rights become applicable through the
Fourteenth Amendment to actions by the state
governments.
 freedom of expression: Americans’ freedom to
communicate their views, the foundation of which is the
First Amendment rights of freedom of conscience, speech,
press, assembly, and petition.
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Definitions
 clear-and-present-danger test: A test devised by the
Supreme Court in 1919 in order to define the limits of free
speech in the context of national security. According to the
test, government cannot abridge political expression
unless it presents a clear and present danger to the nation’s
security.
 imminent lawless action test: A legal test that says
government cannot lawfully suppress advocacy that
promotes lawless action unless such advocacy is aimed at
producing, and is likely to produce, imminent lawless
action.
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Definitions
 symbolic speech: Action (for example, the waving or
burning of a flag) for the purpose of expressing a political
opinion.
 prior restraint: Government prohibition of speech or
publication before the fact, which is presumed by the
courts to be unconstitutional unless the justification for it
is overwhelming.
 libel: Publication of material that falsely damages a
person’s reputation.
 slander: Spoken words that falsely damage a person’s
reputation.
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Definitions
 establishment clause: The First Amendment provision
stating that government may not favor one religion over
another or favor religion over no religion, and prohibiting
Congress from passing laws respecting the establishment
of religion.
 free-exercise clause: A First Amendment provision that
prohibits the government from interfering with the
practice of religion or prohibiting the free exercise of
religion.
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Definitions
 lemon test : A three-part test to determine whether a law
relating to religion is valid under the religious
establishment clause. To be valid, a law must have a
secure purpose, serve neither to advance nor inhibit
religion, and avoid excessive government entanglement
with religion.
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Definitions
 right of privacy: A right implied by the freedoms in the
Bill of Rights that grants individuals a degree of personal
privacy upon which government cannot lawfully intrude.
The right gives individuals a level of free choice in areas
such as reproduction and intimate relations.
 procedural due process: The constitutional requirement
that government must follow proper legal procedures
before a person can be legitimately punished for an
alleged offense.
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Definitions
 exclusionary rule: The legal principle that government is
prohibited from using in trials evidence that was obtained
by unconstitutional means (for example, illegal search and
seizure).
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The Constitution: The Bill of Rights
and the Fourteenth Amendment
 Constitution did not provide for individual rights
 At first the Bill of Rights applied only to the national
government
 Through Selective Incorporation the due process clause of
the Fourteenth Amendment has been invoked by the
Supreme Court to prevent the states from abridging most
Bill of Rights protections.
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The Constitution: The Bill of Rights
and the Fourteenth Amendment
 The Constitution states only one command twice. The
Fifth Amendment says to the federal government that no
one shall be "deprived of life, liberty or property without
due process of law." The Fourteenth Amendment, ratified
in 1868, uses the same eleven words, called the Due
Process Clause, to describe a legal obligation of all states.
These words have as their central promise an assurance
that all levels of American government must operate
within the law ("legality") and provide fair procedures.
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The Constitution: The Bill of Rights
and the Fourteenth Amendment
 Constitution did not provide for individual rights
 At first the Bill of Rights applied only to the national
government
 Through Selective Incorporation the due process clause of
the Fourteenth Amendment has been invoked by the
Supreme Court to prevent the states from abridging most
Bill of Rights protections.
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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
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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
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2nd Amendment
A well regulated Militia being
necessary to the security of a
free State, the right of the
people to keep and bear Arms
shall not be infringed.
 No definitive resolution by the courts of just what right the
Second Amendment protects.
 “individual rights” thesis whereby individuals are protected in
ownership, possession, and transportation
 “states’ rights” thesis whereby it is said the purpose of the
clause is to protect the States in their authority to maintain
formal, organized militia units.
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Freedom of Expression
 Freedom of expression is the right of individual
Americans to hold and communicate thoughts of their
choosing.
 Though freedom of expression is not an absolute right, it
has received broad protection from the courts in recent
decades.
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Freedom of Expression
 Free political expression has not always been valued as
highly as it is today.
 The early period: the uncertain status of the right of free
expression
 Sedition Act, 1798 (first time that the national government
restricted free expression)
 Espionage Act, 1917
 Schenck v. United States (1919)

Clear-and-present-danger test
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Freedom of Expression
 The Alien and Sedition Acts were four bills passed in
1798 by the Federalists in the 5th United States Congress
in the aftermath of the French Revolution and during an
undeclared naval war with France, later known as the
Quasi-War.
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Freedom of Expression
 Espionage Act (1917)
 To "utter, print, write, or publish any disloyal, profane,
scurrilous, or abusive language about the form of
government of the United States, or the Constitution of the
United States, or the military or naval forces of the United
States, or the flag … or the uniform of the Army or Navy
of the United States, or any language intended to bring the
form of government … or the Constitution … or the
military or naval forces … or the flag … of the United
States into contempt, scorn, contumely, or disrepute";
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Freedom of Expression
 During World War I, Schenck mailed circulars to draftees.
The circulars suggested that the draft was a monstrous
wrong motivated by the capitalist system. The circulars
urged "Do not submit to intimidation" but advised only
peaceful action such as petitioning to repeal the
Conscription Act. Schenck was charged with conspiracy to
violate the Espionage Act by attempting to cause
insubordination in the military and to obstruct recruitment.
 During wartime, utterances tolerable in peacetime can be
punished.
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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 test
 Justice Holmes’s clear-and-present-danger test stipulates
that political expression can be restricted only if it poses a
clear and present danger to the nation’s security or to others.
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Freedom of Expression
 The courts have protected the right to free assembly and
the right to symbolic speech, though some reasonable
restrictions are allowed. Symbolic speech or assembly
deemed to be dangerous to the public or national security
can be limited. Symbolic speech has been given some
protection by the Court, though not as much protection as
verbal speech receives.
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Freedom of 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
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Freedom of Expression
 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
 There shall be no prior restraint on freedom of the press,
though the press can be held accountable for what it
publishes, particularly with respect to private citizens.
National security concerns are often used to justify
restriction of expression or of the press, though federal
judges have not always concurred.
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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
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Freedom of 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
 The difficulty of defining obscenity was memorably
summarized by Justice Potter Stewart in a concurring
opinion when he said: "I know it when I see it."
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Freedom of Expression
 Odious (hateful) speech protected
 Westboro Baptist Church
 Neo Nazi March through Jewish neighborhood
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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
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Freedom of Religion
 The Supreme Court has allowed some establishment
activities but disallowed others. In an important ruling in
2002 involving Ohio law, the justices allowed some
students in Cleveland to receive tax-supported vouchers to
attend private or parochial schools.
 Since the 1960s, the Supreme Court has consistently
reaffirmed the ban on state-sponsored prayer.
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Freedom of Religion
 Monday, January 7, 2008 - Texas schoolchildren will
continue to observe a daily minute of silence to pray or
meditate after a federal court threw out a challenge to the
state law as unconstitutional.
 The 2003 law allows children to “reflect, pray, meditate or
engage in any other silent activities” for one minute after
the American and Texas pledges at the beginning of each
school day.
 The law permits children to use the minute as they wish.
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Freedom of Religion
 A Texas court judge ruled last year that the signs displayed
by high school cheerleaders quoting biblical verses were
"constitutionally permissible," and that the Kountze High
School cheerleaders could continue to display them at the
school's football games.
 In his ruling, State District Judge Steve Thomas said that
no law "prohibits cheerleaders from using religiousthemed banners at school sporting events.
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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
 But, use of drugs in religious rites not generally protected.
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Freedom of Religion
 Even though Americans can believe in any religion they
so desire, they are not always free to act on their beliefs.
 The Supreme Court tries to balance any potential conflict
between the free-exercise and establishment clauses,
though sometimes one must yield to the other.
 Use of drugs in religious rites not generally protected.
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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” (invalidated the District of
Columbia’s ban on individual ownership of handguns).
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The Right to Bear Arms
 Because the District of Columbia is a federal territory,
questions remain about whether or not this interpretation
can or would be enforced in the states.
 State legislators were forced by a federal appeals court in
July to adopt a law allowing residents to carry concealed
weapons in Illinois, the only state that still banned the
practice.
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The Right of Privacy
 The right of privacy is not specifically set forth in the Bill of
Rights; rather, it was enunciated in the 1965 case of
Griswold v. Connecticut.
 Struck down state law prohibiting use of birth control.
 According to the Supreme Court in Griswold , the right of
privacy underlies other American individual protections and
is thus as old as the Bill of Rights.
 There are zones of privacy upon which the government
cannot infringe.
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The Right of Privacy
 The right of privacy was the constitutional basis of the
Roe v. Wade decision, which gave women the right to
choose an abortion and overturned criminal abortion
statutes.
 Roe has not been overturned, but the public remains
divided on abortion.
 Webster v. Reproductive Health Services (1989),
Planned Parenthood v. Casey (1992), and Gonzales v.
Carhart (2007) have placed some restrictions on
abortion.
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The Right of Privacy
 Webster: Missouri ban on abortions in publically
funded facilities ruled constitutional.
 Planned Parenthood: Pennsylvania law requiring
minor to obtain parental consent for abortion held
constitutional
 Gonzales: Ban on partial-birth abortion found to be
constitutional
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The Right of Privacy
 Sexual relations among consenting adults

Anti-sodomy laws in states struck down by Supreme Court in
2003 in Lawrence v. Texas
 Some social conservatives fear this decision opens the door
to same sex marriage.
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Rights of Persons Accused of Crimes
 Due process of law is rooted in the idea of ensuring
justice for all, especially persons accused of crime.
Procedural due process refers to procedures that must
be followed before the accused can legitimately be
punished for an offense.
 The Fourth through Eighth amendments specify a set
of procedural safeguards such as protection from
unreasonable searches and seizures, selfincrimination, and unfair trials and punishments.
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Rights of Persons Accused of Crimes
 Suspicion phase
 No police search unless probable cause that crime occurred
(Fourth Amendment)
 Not a blanket protection; some warrantless searches allowed
based on situation
 Person caught in act of committing crime may be searched
without warrant
 2012 decision overturned conviction when tracking device
used without warrant
 What about stop and frisk?
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Rights of Persons Accused of Crimes
 Arrest phase
 Fifth Amendment protection against self-incrimination
 Miranda v. Arizona (1966): no legal interrogation until
suspect has been warned his/her words could be used as
evidence

Miranda warning
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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
Not incorporated under 14th Amendment, thus states not required
to use grand juries
Sixth Amendment: right to legal counsel before and during trial;
Supreme Court extended to state felony trials in Gideon v.
Wainwright
Right to speedy trial (6th Amendment)
Right to impartial jury (6th Amendment)
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Rights of Persons Accused of Crimes
 Trial phase
 The exclusionary rule
 The exclusionary rule prevents evidence obtained illegally
from being used against a defendant (Weeks v. US) (1914)
 Rule greatly expanded in 1960s so that almost any
evidence illegally obtained was inadmissible
 Rule weakened beginning in the 1980s


Good faith exception
Inevitable discovery exception
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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



Death penalty banned for mentally retarded
No death penalty for juveniles for crimes other than murder
Life without parole banned for juveniles in non-murder cases
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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
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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
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Rights and the War on Terrorism
 When the nation is at war, courts typically allow
government to exercise authority that would not be
permitted in peacetime.
 WWII detention of Japanese Americans; Supreme Court
upheld this policy as constitutional.
 Detention of enemy combatants after 9/11
 Hamdi v. Rumsfeld (2004)

US citizen detainee had right to be heard in court system
 Hamdan v. Rumsfeld (2006)

Military tribunals unlawful
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Rights and the War on Terrorism
 Surveillance of suspected terrorists
 President Bush received greater surveillance powers from
Congress with the passage of the USA Patriot Act
 President Obama has not released any information about
these activities for fear of damage to national security
 USA Patriot Act
 Warrantless wiretapping
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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
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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?
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