Chapter 4
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 4-2
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 4-3
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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 4-5
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 4-6
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 4-7
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 4-8
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 4-9
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 4-10
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 4-11
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 4-12
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 4-13
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 4-14
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 4-15
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 4-16
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 4-17
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 4-18
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 4-19
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 4-20
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 4-21
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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 4-23
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? 4-24