4: Civil Liberties Protecting Individual Rights

Civil Liberties According to Freedom House, an independent organization that tracks civil liberties, the United States is among the “most free” nations. Freedom House bases its rankings on four areas: free expression, organizational rights, rule of law, and personal autonomy.

The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation Civil liberties: specific individual rights, such as the right to a fair trial, that are constitutionally protected against infringement by government Bill of Rights: the ten amendments that list the rights the federal government must protect Fourteenth Amendment’s due process clause prevents the 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 Bill of Rights, the Fourteenth Amendment, and Selective Incorporation (2) Supreme Court initially resisted invoking selective incorporation to protect the rights of the accused in the states Changed in the 1960s, when the Court began to assert and protect the rights of the accused

Table 4-1 Bill of Rights: A Selected List of First Amendment Protections Speech: You are free to say almost anything except that which is obscene, slanders another person, or has a high probability of inciting others to take imminent lawless action. Press: You are free to write or publish almost anything except that which is obscene, libels another person, seriously endangers military action or national security, or has a high probability of inciting others to take imminent lawless action. Assembly: You are free to assemble, although government may regulate the time and place for reasons of public convenience and safety, provided such regulations are applied evenhandedly to all groups. Religion: You are protected from having the religious beliefs of others imposed on you, and you are free to believe what you like.

Freedom of Expression Freedom of expression is the most basic of democratic rights, but like all rights, it is not unlimited Initially the status of the right of free expression was uncertain Sedition Act of 1798 Today free expression is vigorously protected by the courts; but it can be denied if it endangers national security, wrongly damages others’ reputations, or deprives others of their rights

Freedom of Speech Twentieth-century challenges: Espionage Act (1917) and Schenck v. United States (1919) National security needs early in the cold war; and a change in the Court’s position in the late 1950s Tests of government actions to limit speech: clear-and-present-danger test, and imminent lawless action Hate speech protected, but not hate crimes Westboro Baptist Church protests Symbolic speech is protected, but less completely than verbal speech

Free Assembly Some restrictions are allowed based on national security or disruptions to daily life Government can place time, place, and manner restrictions

Press Freedom and Libel Law New York Times Co. v. United States (1971) and publication of the “Pentagon Papers” Prior restraint: government prohibition of speech or publication before it occurs Extreme burden of proof on government 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 Along with political expression, the First Amendment protects religious freedom “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

The Establishment Clause Establishment clause: government may not favor one religion over another or support religion over no religion Doctrines of wall of separation and accommodation Court has frequently applied the Lemon test Policy must have a nonreligious purpose Policy’s primary effect must be one that neither advances nor inhibits religion Policy must not foster “an excessive government entanglement with religion”

The Free-Exercise Clause Government is prohibited from interfering with the practice of religion Government interference is allowed when the exercise of religious beliefs conflicts with otherwise valid law

The Right to Bear Arms Widely accepted view: 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 was protected as a right of privacy in Roe v. Wade (1973) Subsequent Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), and Gonzales v. Carhart (2007) established some restrictions Consensual sexual relations among same-sex adults were eventually protected by the same right of privacy in Lawrence v. Texas (2003)

Pro-Life versus Pro-Choice A sharp divide continues to exist between Democratic and Republican voters regarding the ruling in Roe v. Wade (1973). Source: Pew Research Center for the People and the Press, 2013.

Rights of Persons Accused of Crimes Procedural due process: procedures that authorities must follow before a person can lawfully be punished for an offense U.S. Constitution offers procedural safeguards designed to protect a person from wrongful arrest, conviction, and punishment

Table 4-2 Bill of Rights: A Selected List of Due Process Protections Amendment Due Process Protection Fourth Search and seizure: You are protected from unreasonable searches and seizures, although you forfeit that right if you knowingly waive it. Arrest: You are protected from arrest unless authorities have probable cause to believe that you have committed a crime. Fifth Self-incrimination: You are protected against self-incrimination, which means that you have the right to remain silent and to be protected against coercion by law enforcement officials. Double jeopardy: You cannot be tried twice for the same crime if the first trial results in a verdict of innocence. Due process: You cannot be deprived of life, liberty, or property without proper legal proceedings. Sixth Counsel: You have a right to be represented by an attorney and can demand to speak first with an attorney before responding to questions from law enforcement officials. Prompt and reasonable proceedings: You have a right to be arraigned promptly, to be informed of the charges, to confront witnesses, and to have a speedy and open trial by an impartial jury. Eighth Bail: You are protected against excessive bail or fines. Cruel and unusual punishment: You are protected from cruel and unusual punishment, although this provision does not protect you from the death penalty or from a long prison term for a minor offense.

Suspicion Phase: Unreasonable Search and Seizure No police search is allowed unless there is probable cause that a crime occurred (Fourth Amendment) Not a blanket protection; some warrantless searches are allowed, based specific situations

Arrest Phase: Protection against Self-Incrimination Fifth Amendment protection against self-incrimination: an individual cannot “be compelled in any criminal case to be a witness against himself” Miranda v. Arizona (1966): no legal interrogation until the suspect has been warned that his or her words could be used as evidence Led to formulation of the “Miranda warning”

Trial Phase: The Right to a Fair Trial Fifth Amendment: a suspect cannot be tried for a federal crime unless indicted by a grand jury States are not required to use grand juries Sixth Amendment: a right to legal counsel before and during trial Criminal defendants also have the right to a speedy trial and to confront witnesses against them At the federal level and sometimes the state level, defendants have a right to a jury trial to be heard by an “impartial jury”

Trial Phase: The Right to a Fair Trial (2) Exclusionary rule: evidence obtained in violation of the defendant’s rights cannot be used Rule expanded in the 1960s by a liberal-dominated court With the appointment of more conservative justices, exceptions were created Good faith exception: admission if police believed they were following proper procedures Inevitable discovery exception: admission if other evidence would have led to the same discovery Plain view exception: admission if found in plain sight

Sentencing Phase: Cruel and Unusual Punishment Eighth Amendment prohibits “cruel and unusual punishment” Tests consider whether it is “disproportionate to the offense”; violates “fundamental standards of good conscience and fairness”; and is “unnecessarily cruel” Supreme Court generally allows states to decide punishments, but has limited some aspects Banned death penalty for minors and the mentally ill Banned life-without-parole for juveniles; and extended this protection to juveniles convicted before the ban was put in place

Appeal: Once Chance, Usually There is no constitutional guarantee of appeal; but the federal government and the states all allow at least one appeal Federal law bars a second federal appeal by a state prison inmate in most instances

Crime, Punishment, and Police Practices Supreme Court rulings have affected police practices Miranda v. Arizona (1966) Constitutional rights are often applied unevenly Racial profiling: the targeting of individuals from minority groups Minorities are also more likely to be victims of police violence Tough sentencing policies are popular with voters, but prison overcrowding is an issue

Figure 4-1 Incarceration Rates by Country The United States is the world leader in terms of the number of people it places behind bars, with 698 inmates per 100,000 residents. More than half were convicted of nonviolent offenses, such as drug use or property theft. Source: International Centre for Prison Studies, 2016.

How the 50 States Differ: Incarceration Rates Most crimes in the United States are governed by state law rather than federal law, and states differ widely in their crime rates and sentencing practices. Jump to long image description Source: Office of Justice Statistics, U.S. Department of Justice, 2016.

Rights and the War on Terrorism In times of war, the courts have upheld policies that would not otherwise be permitted Example: WWII detention of Japanese Americans, supported by Congress and upheld in Korematsu v. United States (1944)

Detention of Enemy Combatants After the attacks of 9/11, the Bush administration announced a policy of detaining “enemy combatants” Supreme Court ruled detainees have the right to challenge their Guantanamo Bay detention in U.S. courts Hamdi v. Rumsfeld (2004) Hamdan v. Rumsfeld (2006)

Surveillance of Suspected Terrorists USA Patriot Act gave the government additional tools for combating terrorism National Security Agency (NSA) engaged in warrantless wiretapping Program was leaked by Edward Snowden in 2013 A federal appellate court ruled the NSA program unlawful Congress passed revised legislation to authorize a more limited surveillance program with greater oversight

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

Critical Thinking Distinguish between the establishment clause and the free-exercise clause of the First Amendment. To which one does the Lemon test apply, and what are the components of that test? Assume that an individual has been arrested and is eventually brought to trial. Identify the procedural due process rights that the individual has at each step in the legal process. How might the exclusionary rule affect the outcome?

Critical Thinking (2) What is the process of selective incorporation, and why is it important to the rights Americans have today?

Long image descriptions Appendix A

How the 50 States Differ: Incarceration Rates Appendix States with 1,000 or more inmates for every 100,000 residents include Alabama, Arizona, Arkansas, Georgia, Louisiana, Mississippi, Oklahoma, Texas, and Virginia. States with 800–999 inmates for every 100,000 residents include Alaska, Delaware, Florida, Idaho, Indiana, Kentucky, Missouri, Nevada, New Mexico, Pennsylvania, South Carolina, South Dakota, Tennessee, and Wyoming. States with 600–799 inmates for every 100,000 residents include California, Colorado, Illinois, Kansas, Maryland, Michigan, Montana, Nebraska, North Carolina, Ohio, Oregon, Utah, West Virginia, and Wisconsin. States with fewer than 599 inmates for every 100,000 residents include Connecticut, Hawaii, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, North Dakota, Rhode Island, Vermont, and Washington. Jump back to slide containing original image