Presentation by Eric Miller, Blinn College, Bryan, Texas.

CHAPTER 4Civil Liberties: Protecting Individual Rights

THOMAS JEFFERSON

A bill of rights is what the people are entitled to against every government on earth, general or particular, and

what no just government should refuse, or rest on inference.

Civil Liberties= liberties that are constitutionally protected from infringement by government

FREEDOM OF EXPRESSION The Early Period: The Uncertain Status of the

Right of Free Expression Sedition Act of 1798 - prohibited false or

malicious newspaper stories about the president or other national officials

Clear-and-Present-Danger test Justice Oliver Wendell Holmes- government can restrict

speech that threatens national security Falsely yelling “Fire!” in a crowded theater All civil liberties are NOT absolute

FREEDOM OF EXPRESSION

The Modern Period: Protecting Free Expression Freedom of expression is the most fundamental to the

maintenance of a democratic society Free Speech and Assembly

Gov can prevent a rally from taking place when it can demonstrate that a “non-preventable evil” will result if the rally is held

Press Freedom and Prior Restraint “Pentagon Papers”- New York Times Co. v. United States (1971) Press can be held accountable for what they have already

published but NOT by restricting what can be published Prior restraint should only apply in rare circumstances ONLY if

government can clearly justify the restriction 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

FREEDOM OF EXPRESSION

Free Expression and State Governments Due Process clause The Fourteenth Amendment and Selective

Incorporation Selective Incorporation- absorption of certain provisions of

the Bill of Rights into the 14th Amendment so that these rights are protected from infringements by state governments

Gitlow v. New York (1925) The 14th Amendment applies to state (& local) action in the area

of freedom of expression

Limiting the Authority of States to Restrict Expression Imminent lawless action test

Gov. cannot lawfully suppress advocacy unless it can be proven that it promotes and is likely to result in “imminent lawless action”

FREEDOM OF EXPRESSION Libel and Slander

Slander- spoken words that are known to be false and harmful to a person’s reputation

Libel- Printed lies… Public people (less protection) vs. private people (more

protection) Obscenity

Obscenity is NOT protected by the 1st Amendment 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

FREEDOM OF RELIGION

The Establishment Clause Government may not favor one religion over another Government may not favor religion over no religion Engel v. Vitale (1962)

No prayer in public school “Wall of separation” versus “excessive entanglement” The Lemon test—conditions for acceptable government action

Secular purpose Neither advances nor inhibits religion Avoids excessive government entanglement

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

THE RIGHT OF PRIVACY

The Supreme Court has reasoned that the right of privacy is provided by a reasonable interpretation of other constitutional protections in the Bill of RightsGriswold v. Connecticut: Americans have a “zone

of privacy” that cannot lawfully be denied Abortion

Roe v. Wade (1973) Right to privacy

Planned Parenthood v. Casey (1992) Reaffirmed the essential aspects of Roe v. Wade

Sexual Relations Among Consenting Adults Lawrence and Garner v. Texas (2003)

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”

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

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

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 The exclusionary rule

No admission of illegally obtained evidence 1960s expansion of exclusionary rule Exceptions: inevitable discovery; good faith

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

RIGHTS OF PERSONS ACCUSED OF CRIMES

Appeal: one chance, usually No constitutional guarantee of appeal; but

federal law and states allow at least one appeal Federal law bars in most instances a second

federal appeal by a state prison inmate

RIGHTS OF PERSONS ACCUSED OF CRIMES Procedural due process

The Fourth Amendment No unreasonable searches…

The Fifth Amendment Due process, no double jeopardy or self-incrimination,

property…The Sixth Amendment

Speedy public trial by jury w/ council…The Eighth Amendment

No excessive fines, bails, or cruel & unusual punishment…

The Fourteenth Amendment No state shall deny equal protection of the law or due

process…

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

RIGHTS OF PERSONS ACCUSED OF CRIMES Selective Incorporation of Procedural

RightsMiranda v. Arizona (1966)

Miranda Warning- “You have the right to remain silent…”

Search and SeizureThe Exclusionary Rule

Evidence obtained in an illegal search is inadmissible in court

Habeas Corpus Appeals

RIGHTS AND THE WAR ON TERRORISM Detention of Enemy Combatants

Prisoners captured in AfghanistanHamdi v. Rumsfeld (2004)

Citizens accused of terrorist acts are entitled to the right to a judicial hearing

Surveillance of Suspected Terrorists USA Patriot Act

Enacted in response to 9/11 attacksNew powers of surveillance and search Intelligence agencies have the authority to

share crime-related info with law enforcement

THE COURTS AND A FREE SOCIETY Courts are not isolated from public moods Courts must balance society’s need for safety

against the rights of the individual The test of a truly free society is its willingness to

tolerate distasteful ideas The greatest threat to individual rights is a

determined majority backed by elected leaders eager to carry out its rule

The judiciary is the institution most partial to the protection of civil liberties

STATES IN THE NATION