CHAPTER 4 CIVIL LIBERTIES: PROTECTION INDIVIAUL RIGHTS

In
United States v. Jones
, five of the justices said the 4th
amendments protection of
persons, house, paper, and effects reasonably extends to private property such as
automobile
The 4th
amendment protects Americans not from all searches but from unreasonable
searches
Civil libertiesspecific individual rights that are constitutionally protected against
infringement by government
Civil liberties refer to specific individual rights, such as protection against
self-incrimination; civil rights have to do with whether members of differing
groupsracial, sexual, religious, and the likeare treated equally by government and, in
some cases, by private parties
THE CONSTITUTION: THE BILL OF RIGHTS AND THE 14TH
AMENDMENT

Constitutions failure to ensure peoples rights

Bill of Rights (rights of life, liberty,

and property)

Supreme Court has assumed responsibility for defining what the Bill of Rights
guarantees will mean in practice

Originally the Bill of Rights applied only to the actions of the national government

When the Bill of Rights was challenged in

Barron v. Baltimore
, the Supreme Court
upheld it, saying the first ten amendments contain no expression indicating an
intention to apply them to the state governments.

Little meaning in the daily lives of ordinary Americans because state governments
have authority over most of the activities

Selective Incorporation of Freedom Expression Rights

Bill of Rights are protected from action by the state government
After the civil war, southern states deny newly freed slaves the rights held by
whites
Congress passed the Reconstruction Act, putting the southern states under
military rule until they ratified the 14th
Amendment
14th
Amendment includes a due process clause that says no state
shalldeprive any person of life, liberty, or property, with due process of law.
In
Gitlow v. New York,
the
supreme court upheld a New
York law that made it illegal
to advocate the violent
overthrow of the US
government
Court held that the states do
not have complete authority
over what their residents
can say and write
The Court positioned itself
to broaden the protection to

include all 1st

Amendment
rights
Restricting expression in the areas of speech (
Fiske v. Kansas)
, press
(Near v.
Minnesota)
, religion
(Hamilton v. Regents, University of California)
, and
assembly and petition (
Dejonge v. Oregon)
Selective incorporationthe process by which certain of the rights contained
in the Bill of Rights become applicable through the 14th
Amendment to actions
by the state government

Its called selective because the Supreme Court has chose to protect some
rights (17th
Amendment to a jury trial in civil cases is not binding on the states)

Selective Incorporation of Fair Trial Rights

The Court claimed that free-expression rights were more deserving of federal
protection
Except capital punishment cases, holding that states had to provide legal
counsel to defendants
Powell v. Alabama
Advances in public education and communication had made Americans more
aware of their rights, and the civil rights movement dramatized the poor and
minorities had fewer rights in practice
Protect the rights of the accused from action by the states
Selective incorporation process began with
Mapp v. Ohio
Court ruled that defendants in state criminal proceedings must be

Provided a lawyer in felony cases if they cannot afford to hire one

Cannot be compelled to testify against themselves

Have the right to remain silent and to have legal counsel at the time of
arrest

Have the right to confront witnesses who testify against them

Must be granted a speedy trial

Have the right to a jury trial in criminal proceedings

Cannot be subjected to double jeopardy

FREEDOM OF EXPRESSION

Most basic of individual rights

1st
Amendment provides for freedom of expressionthe right of individual
Americans to hold and communicate thoughts of their choosing

If it endangers national security, wrongly damages the reputation of others, or

deprives others of their basic right

The Early Period: The Uncertain Status of the Right of Free Expression
The first attempt by the US government to restrict free expression was the
Sedition Act of 1798, which made it a crime to print harshly critical newspaper
stories about the president or other national officials
The Sedition Act was not tested in a Supreme Court case, which left open the
question of whether Congress had the power to regulate free expression
Congress passed legislation barring the Court from
hearing appeals of free expression cases, and the
Court accepted the limitation
The Court finally ruled on a free-expression case
(1917 Espionage Act)
Schenck v. United States
The Court said the Congress could restrict speech that
was of such a nature as to create a clear and present
danger to the nations security
Although the Schenck decision upheld a law that
limited free expression, it also established a
constitution standardthe clear-and-present-danger
testfor determining when government could legally do so

The Modern Period: Protecting Free Expression

Free Speech

After WWII, many Americans believed that the USSR was bent on
destroying the US, and they Supreme Court allowed government to limit

subversive expression

National security must be endangered before government can lawfully

prohibit citizens from speaking out

Supreme Court in the 1920s moved to protect speech from actions by the
States

Brandenburg v. Ohio

KKK said revenge might have to be taken if the national government

continues to suppress the white Caucasian race.

Supreme Court reversed the conviction, saying a state cannot prohibit

speech that advocates the unlawful use of force; the speech must be
directed at inciting or producing imminent lawless action and must be
likely to produce such action.

This testImminent lawless actionis a refinement of the

clear-and-present-danger test that allows individuals more latitude in
what they say

Hate speech arouses anger or alarm on the basis of race, color, creed,
religion or gender

1st
Amendment prohibits government from silencing speech on the basis
of its content

Hate crimes

Free to express themselves; (

Snyder v. Phelps)

Fag troops and Thank God for dead soldiers

Sued WBC for emotional distress

Supreme Court overturned the award; WBCs protest, although harmful,

was protected by the 1st

Amendment

Supreme Court has held the government attempt to regulate the content
of a message is suspect
Free Assembly

Upheld a lower-court ruling against local ordinances of Skokiem Illinois,

that had been invoked to prevent a parade there by the American Nazi
Party

Supreme Court held that the right of free expression takes precedence
over the mere possibility that the exercise of that right have undesirable
consequences

Before the government can prevent a speech of rally it must demonstrate

that it will likely cause harm and it lacks an alternative way to prevent the
harm from happening

The Court allows public officials to regulate the time, place, and
conditions of pubic assembly
Press Freedom and Prior Restraint

New York Times Co. v. United States

Pentagon Papers could not be blocked by the government, which claend

that publican would harm the war effort

Court ruled that any system of prior restraints on the press is

unconstitutional unless the government can clearly justify the restriction

The unacceptability of prior restraintgovernment prohibition of speech

or publication before it occursis basic to the current doctrine of free
expression

One exception is wartime reporting

Libel and Slander

Not a legal license to avoid responsibility for the consequences of what is

said or written

Slander and libel laws in the US are based on the assumption that society
has an interest in encouraging citizens and news organizations to express
themselves freely

Court held that true statements disseminated by the media have full
constitutional protection

If the facts are correct, no matter how damaging they might be to a public
officials career or reputation, are a protected form of expression

New York Times Co. v. Sullivan

Obscenity

Difficult to develop a legal test for distinguishing obscene material from

sexual oriented material that adults have a right to see or posses

In
Miller v. California,
Court held that for material to be judged obscene, it
had to meet a three-part test

Depict sexual conduct in a patently offensive way

Taken as a whole must appeal to prurient interest

No redeeming social value

Material cannot be judged obscene simply because the average local

resident might object to it

Community standards were to be judged in the context of a reasonable

personsomeone with a broad enough outlook to evaluate the material
on its overall merit rather than its most objectionable feature

The Supreme Court has distinguished between obscene materials in

public places and those in the home

Purchase of such material encourages producers to use children in the

making of pornographic materials

Offers to provide or requests to obtain child pornography are

categorically excluded from the 1st

Amendment

Congress has enacted legislation that would restrict the transmission of

sexually explicit material that children might see
FREEDOM OF RELIGION

1st
Amendment reads: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.

The Establishment Clause

Interpreted by the courts to mean that government may not favor one religion
over another or support religion over no religion
Engel v. Vitale,
led to establishment causes prohibits the reciting of prayers in
public schools
Supreme Court banned religions displays on public property when the purpose
is overtly religious and lacks a historical context
In
Van Orden v. Perry
, the Supreme Court rejected a suit asking for the
dismantling of a display of the Ten Commandments on a monument at the
Texas State Capitol (installed nearly a half-century earlier)
In
McCreary County v. American Civil Liberties Union
, struck down displease of
the Ten Commandments on the walls of two Kentucky courthouses (recent)
In
Lemon v. Kurtzman,
state funding of the salaries of religious schools
instructors
Court articulated a three-point test, that has to become know as the Lemon test

Statute must have a secular legislative purpose

Its principal or primary effect must be one that neither advances nor
inhibits religion

The statute must not foster an excessive government entanglement with

religion

The Free-Exercise Clause

The free-exercise clause has been interpreted to mean that Americans are free
to hold any religions belief of their choosing
Employment Division v. Smith
Free exercise of religion clashed with the prohibition on the establishment of
religion
THE RIGHT TO BEAR ARMS

2nd
Amendment: A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed.

DC v. Heller, the court said that the 2nd

amendment protects an individual right to
posses a firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home

The enshrinement of constitutional rights necessarily takes certain policy choices

off the table, These include the absolute prohibition of handguns held and used for
self-defense in the home

When each word in the text is given full effect, the Amendment is most naturally
read to secure to the people a right to use and possess arms in conjunction with
service in a well-regulated militia. So far as it appears, no more than that was
contemplated by its crafters or is encompassed within its terms

in
McDonald v. Chicago,
the Court struck down a Chicago ordinance that banned
handgun possession, saying that the right to keep and bear arms is
constitutionally protected from infringement by state and local officials

Court did not explicitly list the set of allowable restrictions, leaving the issue to be
decided tin future cases
THE RIGHT TO PRIVACY

The Court held that individuals have a zone of [personal] privacy that government
cannot lawfully invade

Abortion
In
Roe v. Wade,
which gave women full freedom to choose abortion during the
first three months of pregnancy
The right of privacy is broad enough to encompass a womans decision
whether or not to terminate her pregnancy
Congress passed a law that makes it illegal to block the entrance to abortion
clinics or otherwise prevent people from entering
Antiabortion persuaded the Missouri legislature to pass a law that prohibited
abortions from being performed in the states publicly funded medical
facilities, a policy that the Supreme Court upheld in
Webster v. Reproductive
Health Services
The Supreme Court upheld a constitutional right to abortion, concluding that
the essential holding of
Roe v. Wade
should be retained and once again
reaffirmed
In
Gonzales v. Carbart
, the Supreme Court for the first time upheld a ban on the
use of a particular type of abortion
The law provides for a fine and prison term for physicians who perform an
abortion during the birth process even if the mothers life or heath is
endangered
Stenberg v. Carbart

Consensual Sexual Relations among Same-Sex Adults

Bowers v. Hardwick, the Supreme Court held that the right of privacy did not

extend to consensual sexual relations among adults of same sex

In Lawrence v. Texas,
the Court concluded that Texass sodomy law violated
the right or privacy implied by the grant of liberty in the 14th
Amendments
due process clause
The petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their density by making their private sexual
conduct a crime
RIGHTS OF PERONS ACCUSED OF CRIMES

Procedural due process: refers to primarily to procedures that authorizes must

follow before a person can lawfully be punished for an offense

The history of liberty has largely been the history of the observance of procedural
guarantees

Suspicion Phase: Unreasonable

Search and Seizure
The 4th
Amendment does not
provide blanket protection, yet it
does provide protection against
speculative or arbitrary police
action
Standard police must meet to
lawfully search a person
The court ruled that police must
have a substantial basis for
believe that an individual had committed a crime before they could stop,
apprehend, and search the person
In Whren v. United States, the Court upheld the conviction of an individual who
had been found with drugs sitting in plain view in the front seat of his car
The Supreme Court allows warrantless searches in some circumstances
The Court does not allow police roadblocks to check for drugs
Indianapolis v. Edmund,
the court held that narcotics roadblocks serve a
general law enforcement purpose rather than one specific to highway safety
and therefore violated the 4th
Amendments requirement that police have
suspicion of wrongdoing before they can search an individuals auto
In
Ferguson v. Charleston, the court held that patients in public hospitals
cannot be forced to take a test for illegal drugs if the purpose is to report to
police those patients who test positive
The Court held that law enforcement officials can even strip search anyone
arrested of a crime, even it its a minor infraction and even if they do not have
reason to believe the individual is hiding a weapon or contraband

Arrest Phase: Protection against Self-Incrimination

Individual cannot be compelled in any criminal case to be a witness against
himself
Police cannot legally begin their interrogation until the suspect has been
warned that his or her words can he used as evidence
The court had held that suspects must knowingly and intelligently waive
their rights before they can be questioned

Trial Phase: The Right to a Fair Trial

Legal Counsel and Impartial Jury

5th
Amendment, suspects charged with a federal crime cannot be tried
unless indicted by a grand jury

states are not required to use grand juries, although roughly half of them

do so

the prosecutor usually decides whether to proceed with a trial

6th
Amendment provides a right to legal counsel before and during trial

In Johnson v. Zervst, the Supreme Court held that criminal defendants in

federal cases must be provided a lawyer at government expense if they
cannot afford legal counsel

The Court has ruled that a jurys impartiality can be compromised if the
prosecution stacks a jury by race or ethnicity
Exclusionary Rule

As in some trials is the admissibility of evidence obtained in violation of

the defendants rights

The Exclusionary rule bars the use of such evidence in some

circumstances

Supreme Court decision and was devised to deter police from violating
peoples rights

Weeks V. United States

Supreme Court expanded the exclusionary rule to the point where almost
any illegally obtained evidence was inadmissible in federal or state court

United States v. Leon

The good faith exception holds that otherwise excludable evidence can be
admitted in trial if police believed they were following prophet
procedures

The Court has sought to weaken the exclusionary rule without going so
far as to allow police to do whatever they please
Sentencing Phase: Cruel and Unusual Punishment
Most issues of criminal justice involve procedural due process
The Supreme Court has applied several tests in determining whether
punishment is cruel and unusual, including whether it is disproportionate to
the offence, violates fundamental standards of good conscience and fairness,
and is unnecessarily cruel.
Supreme Court has typically let Congress and the state legislatures determine
the appropriate penalties for crime
Supreme Court has recently employed the 8th
Amendment to narrow the use of
the death penalty
Supreme Court broadened the ban on extreme punishment of juveniles to
include life without parole in no homicide cases
Courts have applied the 8th
Amendment to officials to relieve inmate
overcrowding and improve prison facilities
Appeal: One Chance, Usually
The Constitution does not guarantee an appeal after conviction, but the federal
government and all states permit at least one appeal
Supreme Court has ruled the appeal process cannot discriminate against poor
defendants
Government must provide indigent convicts with the legal resources to file a
first appeal
It is fair to ask inmate to first pursue their options in state courts and then to
confine themselves to a single federal appeal
Crime, Punishment, and Police Practices
There has not been a return to the lower procedural standards that prevailed
the prior to the 1960s
Most of the police department require their officers to read suspects the

Miranda warning before questioning them

Being tough on crime is popular with some voters, and most state
legislatures during the past two decades have enacted stiffer penalties for
crime while also limiting the ability of judges to reduce sentences, even for
nonviolent crime when the perpetrator has no prior criminal record
Supreme Court gave judges the authority to reduce crack-cocaine sentences
below the federal guidelines to bring them closer into with powder-cocaine
sentences
RIGHTS AND THE WAR ON TERRORISM

In times of war, the courts have upheld government polices

Detention of Enemy Combatants

Enemy combatantsindividuals judged to be engaged in, or in support of,
hostile military actions against US military forces
Supreme Court issued its first ruling on these practices holding that the
Guantanamo Bay detainees had the right to challenge their detention in court
The laws and Constitution are designed to survived, and remain in force, in
extraordinary times

Surveillance of Suspected Terrorists

THE COURTS AND A FREE SOCIETY