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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

3. The Bill of Rights: A Selected List of Constitutional Protections
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

4. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

5. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

6. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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
Symbolic speech protected, but less completely than verbal speech
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

7. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
Freedom of Expression
The modern period: protecting free 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

8. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
Freedom of Expression
The modern period: protecting free expression
Libel and slander
Libel: publishing material that falsely damages person’s reputation
Slander: spoken words that falsely damage person’s reputation
Libel against public officials requires malicious intent
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

9. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
Freedom of Expression
The modern period: protecting free 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

10. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

11. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

12. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
The Right to Bear Arms
Widely accepted view that the 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”
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

13. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

14. Americans’ Opinions On Abortion
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

15. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

16. 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 their words could be used as evidence
Miranda warning
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

17. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

18. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

19. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

20. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

21. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

22. Incarceration Rates, by Country
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

23. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

24. 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
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

25. Opinions on the Rights of Individuals Suspected of Terrorist Acts
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.

26. © 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.
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?
© 2011, The McGraw-Hill Companies, Inc. All Rights Reserved.