Chapter 4. The Constitution: The Bill of Rights and the Fourteenth Amendment Selective incorporation of free expression rights Fourteenth Amendment due

Chapter 4

The Constitution: The Bill of Rights and the Fourteenth AmendmentSelective 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

© 2014, McGraw-Hill Education. All Rights Reserved. 2

The Constitution: The Bill of Rights and the Fourteenth AmendmentSelective 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



Insert Table 4-1The Bill of Rights:

A Selected List of Constitutional Protections

Freedom of ExpressionThe early period: the uncertain status of the right of free

expressionSedition Act, 1798Espionage Act, 1917Schenck v. United States (1919)

Clear-and-present-danger test


Freedom of ExpressionThe modern period: protecting free expression

Early cold war—freedom of speech abridged in interest of national security; protected after 1950s

Imminent lawless action testSymbolic speech protected, but less completely than verbal

speech


Freedom of ExpressionFree 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


Freedom of ExpressionLibel 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


Freedom of ExpressionObscenity

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 ReligionThe establishment clause

Government may not favor one religion over anotherGovernment may not favor religion over no religion“Wall of separation” versus “excessive entanglement”The Lemon test—conditions for acceptable government

action


Freedom of ReligionThe 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 to Bear ArmsWidely 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”


The Right of PrivacyGriswold v. Connecticut: Americans have a “zone of

privacy” that cannot lawfully be deniedAbortion

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


Rights of Persons Accused of CrimesProcedural due process: procedures that authorities must

follow before a person can lawfully be punished for an offense

Suspicion phaseNo 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 CrimesArrest phase

Fifth Amendment protection against self-incriminationMiranda v. Arizona: no legal interrogation until suspect has

been warned his/her words could be used as evidence Miranda warning


Rights of Persons Accused of CrimesTrial 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


Rights of Persons Accused of CrimesTrial phase

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


Rights of Persons Accused of CrimesSentencing 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 CrimesAppeal: 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


Rights of Persons Accused of CrimesCrime, 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



Insert Figure 4-1Incarceration Rates, by Country

Rights and the War on TerrorismWWII detention of Japanese AmericansDetention of enemy combatants

Hamdi v. Rumsfeld (2004)Hamdan v. Rumsfeld (2006)

Surveillance of suspected terroristsUSA Patriot ActWarrantless wiretapping


The Courts and a Free SocietyAmericans embrace freedom of expression as an abstract

virtueAmericans favor limits of freedom of expression in

particular instancesJudicial system the primary protector of individuals’

rights


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?


Documents

Chapter 4. The Constitution: The Bill of Rights and the Fourteenth Amendment Selective incorporation of free expression rights Fourteenth Amendment due