1. Civil Liberties: Protecting Individual Rights
Chapter 4

2. The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation
Selective incorporation of free expression rights
Fourteenth Amendment due process clause prevents states from abridging individual rights
Supreme Court engaged in selective incorporation—invoking the Fourteenth Amendment to apply the Bill of Rights to the states

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

4. Civil Liberties Rankings
105

5. 107 table 4-1

6. 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

7. 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

8. Freedom of Expression Free assembly Press freedom and prior restraint
Some restrictions allowed, based on national security or disruption of daily life
Government can place time, place, and manner restrictions
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

9. 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

10. 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”

11. Freedom of Religion
The establishment clause often involves the Lemon test
The policy must have a nonreligious purpose
The policy’s primary effect must be one that neither advances nor inhibits religion
The policy must not foster “an excessive entanglement of government with religion

12. 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

13. 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”
In McDonald v. Chicago (2010), the Court further extended the 2008 decision to apply to all state and local governments

14. The Right of Privacy
Griswold v. Connecticut (1965): Americans have a “zone of privacy” that cannot lawfully be denied
Abortion
Protected as a right of privacy in Roe v. Wade (1973)
Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), and Gonzales v. Carhart (2007) have placed some restrictions on abortion.
Sexual relations among consenting adults
Anti-sodomy laws in states struck down by Supreme Court in 2003, overturning the 1986 Bowers v. Hardwick ruling

15. Pro-Life vs. Pro-Choice
120

16. 123 table 4-2

17. 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 a crime occurred (Fourth Amendment)
Not a blanket protection; some warrantless searches allowed based on situation

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

19. 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

20. Rights of Persons Accused of Crimes
Trial phase
The exclusionary rule
No admission of illegally obtained evidence
1960s expansion of exclusionary rule
Exceptions: inevitable discovery; good faith

21. 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 and punishments of minors

22. 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 a second federal appeal by a state prison inmate in most instances

23. 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

24. 130 incarceration rate

25. 133 fig 4-1

26. 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
Snowden leaks about NSA communications surveillance

27. 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