Civil Liberties: Protecting

Individual Rights

Chapter 4

Freedom of Expression

Public safety vs. personal freedom

Civil liberties

14th amendment

Freedom of expression

Rights:

Conscience

Speech

Press

Assembly

Petition

© 2009 McGraw-Hill Higher Education. All rights reserved. 2

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

© 2009 McGraw-Hill Higher Education. All rights reserved. 3

Freedom of Expression

The modern period: protecting free expression

Free speech and assembly: government prohibited from

restricting free speech or assembling of citizens

Protection of symbolic speech

Texas v. Johnson

Press freedom and prior restraint

Pentagon Papers

New York Times Co. v. United States (1971)

Prior restraint

Censor journalists on the battlefield, CIA agents

© 2009 McGraw-Hill Higher Education. All rights reserved. 4

Freedom of Expression

Free expression and state governments

Due process clause (Fourteenth Amendment)

Gitlow v. New York

Selective incorporation: putting parts of the Bill of Rights

into Fourteenth Amendment

Near v. Minnesota

Supreme Court rulings limit authority of states in

restricting expression: imminent lawless action

Brandenburg v. Ohio

Skokie case

Time, place, and manner

© 2009 McGraw-Hill Higher Education. All rights reserved. 5

Freedom of 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

New York Times Co. v. Sullivan

© 2009 McGraw-Hill Higher Education. All rights reserved. 6

Freedom of Expression

Obscenity

Material must lack “redeeming social value”

Material must be “particularly offensive”

“Reasonable person” to be judge of “community

standards”

Miller v. California

Obscenity in public vs. home

© 2009 McGraw-Hill Higher Education. All rights reserved. 7

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”

Engle. Vitale

Private schools and Faith based organizations

© 2009 McGraw-Hill Higher Education. All rights reserved. 8

Freedom of Religion

The free-exercise clause

Government prohibited from interfering with the

practice of religion, unless in pursuit of an

overriding social goal

Government may not prohibit free exercise of

religion

Blood transfusion

Amish

creationism

© 2009 McGraw-Hill Higher Education. All rights reserved. 9

The Right to Bear Arms

Does the amendment give individuals the right

to possess weapons outside their use in

military service?

In District of Columbia v. Heller (2008) the

Court ruled that “the Second Amendment

protects an individual right to possess a

firearm”

Not selectively incorporated

© 2009 McGraw-Hill Higher Education. All rights reserved. 10

The Right of Privacy

9th amendment – right to privacy

Griswold v. Connecticut: Americans have a “zone of

privacy” that cannot lawfully be denied

Privacy rights

Abortion – Roe v. Wade, Planned Parenthood v. Casey

Birth control

Assisted suicide

Same-sex adults – Lawrence v. Texas

© 2009 McGraw-Hill Higher Education. All rights reserved. 11

Rights of Persons Accused of Crimes

Procedural due process – procedures that

authorities must follow

Article 1 Section 9 – writ of habeas corpus

No police search unless probable cause that crime

occurred (Fourth Amendment)

Protection against double jeopardy, self-

incrimination, and the enactment of punitive

measures without due process (Fifth Amendment)

© 2009 McGraw-Hill Higher Education. All rights reserved. 12

Rights of Persons Accused of Crimes

Right to legal counsel, to confront witnesses, to

speedy trial by jury (Sixth Amendment)

Protection against excessive bail or fines, infliction

of cruel and unusual punishment (Eighth

Amendment)

© 2009 McGraw-Hill Higher Education. All rights reserved. 13

Rights of Persons Accused of Crimes

Selective incorporation of procedural rights

States must allow same procedural rights as

national government (14th amendment)

Mapp v. Ohio

Right to attorney

Miranda warning

Gideon v. Wainwright

Miranda v. Arizona

© 2009 McGraw-Hill Higher Education. All rights reserved. 14

Rights of Persons Accused of Crimes

Limits on defendants’ rights

Police check points

Drug testing in schools

Exclusionary rule

Bars evidence acquired by unconstitutional means

Weakened in recent years

Habeas corpus appeals

Grants defendants access to federal courts to appeal

state court decisions

Restricted in recent years

© 2009 McGraw-Hill Higher Education. All rights reserved. 15

Rights of Persons Accused of Crimes

Crime, punishment, and police practices

Racial profiling

Cruel and unusual punishment

Inmates cannot sue over inadequate prison conditions

Outlawed death penalty for mentally retarded

Banned death penalty for juveniles and for crimes in

which the victim was not killed

Lethal injection is constitutional

Juries must make determination of death penalty, not

judge

© 2009 McGraw-Hill Higher Education. All rights reserved. 16

Mandatory sentencing – laws passed by elected

officials to enact stiffer penalties and limiting the

ability of judges to reduce sentences

US has largest prison population in world

Nonviolent drug offenders

Minorities and poor receive harsher sentences

© 2009 McGraw-Hill Higher Education. All rights reserved. 17

Rights and the War on Terrorism

Detention of enemy combatants – detained without

access to lawyers or family members or held in secret

Enemy combatants vs. prisoners of war

Hamdi v. Rumsfeld (2004) – US citizens had a right to be

heard in US courts

Hamdan v. Rumsfeld (2006) – military tribunals were

unlawful

Surveillance of suspected terrorists

USA PATRIOT Act

Warrantless wiretapping – medical, financial and student

records © 2009 McGraw-Hill Higher Education. All rights reserved. 18