1. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. Chapter 4

2. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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 4-2

3. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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 1 st Amendment free expression in the areas of speech, press, and religion 2 nd Amendment right to bear arms Right of privacy established, which in some areas, such as abortion, remains a source of controversy and judicial action. 4-3

4. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-4

5. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-5

6. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-6

7. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-7

8. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-8

9. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-9

10. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-10

11. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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). 4-11

12. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-12 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.

13. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-13 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. Fifth AmendmentFourteenth Amendment

14. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-14 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.

15. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-15 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

16. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-16 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

17. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-17

18. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 2 nd Amendment 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. 4-18 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.

19. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-19 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.

20. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-20 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

21. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-21 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.Federalists5th United States CongressFrench Revolution Quasi-War

22. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-22 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";

23. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-23 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.

24. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-24 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.

25. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-25 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.

26. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-26 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

27. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 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. 4-27

28. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-28 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

29. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-29 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."

30. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-30 Freedom of Expression Odious (hateful) speech protected Westboro Baptist Church Neo Nazi March through Jewish neighborhood

31. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-31 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

32. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-32 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.

33. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-33 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.

34. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-34 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 religious- themed banners at school sporting events.

35. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-35 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.

36. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-36 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.

37. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-37 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).

38. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-38 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.

39. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-39 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.

40. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-40 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.

41. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-41 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

42. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-42 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.

43. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-43 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, self- incrimination, and unfair trials and punishments.

44. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-44 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?

45. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-45 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

46. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-46 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 14 th 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 (6 th Amendment) Right to impartial jury (6 th Amendment)

47. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-47 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

48. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-48 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

49. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-49 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

50. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-50 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

51. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-51

52. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-52 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

53. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-53 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

54. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-54 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

55. © 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4-55 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?