1. Civil Liberties: Protecting Individual Rights
Chapter 4

2. 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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3. 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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4. The accompanying chart shows how the United States compares with selected other countries on the Freedom House index.
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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
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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
Symbolic speech protected, but less completely than verbal speech
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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
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
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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 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
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13. Establishment or Free Exercise?
Political Thinking
Establishment or Free Exercise?
The Supreme Court ruled in 1987 that creationism (the biblical account of the world’s creation) cannot be taught in public school science courses. The Court held that creationism is a religious doctrine rather than a scientific theory and that teaching it as an alternative to evolutionary theory violates the First Amendment’s establishment clause. Opponents of the ruling claim that it violates the First Amendment’s free-exercise clause because some students are forced to study a version of creation—the theory of evolution—that contradicts their religious beliefs. How would you have ruled in this case? What argument would you have made.
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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”
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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
Legalized Marriage among Same-Sex Adults 2015
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16. 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
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18. 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 his/her words could be used as evidence
Miranda warning
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Shown here is a reproduction of the Miranda Warning card carried by FBI agents. They are required in most instances to read suspects their rights before interrogating them. The Miranda warnings include the Fifth Amendment right to remain silent and the Sixth Amendment right to have an attorney.
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20. 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; states not required to precisely define
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21. Rights of Persons Accused of Crimes
Trial phase
The exclusionary rule
No admission of illegally obtained evidence
1960s expansion of exclusionary rule
Weakening of the exclusionary rule
Exceptions: good faith exception; inevitable discovery exception; plain view exception
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22. 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
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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. As a result, there is wide variation in the size of state prison populations.
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24. 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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25. 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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The United States is the world leader in terms of the number of people it places behind bars. More than half of the people in U.S. prisons were convicted of nonviolent offenses, such as drug use or property theft. Source: International Centre for Prison Studies, 2016
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27. 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
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28. 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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