Patterson ch04

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Chapter 4

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The Bill of Rights, the Fourteenth
Amendment, and Selective Incorporation
Selective incorporation of free expression rights
Fourteenth Amendment due process clause prevents states
from abridging individual rights
Supreme Court engaged in selective incorporation—
invoking the Fourteenth Amendment to apply the Bill of
Rights to the states

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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

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Civil Liberties Rankings
4-4

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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

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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

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Freedom of Expression
Free assembly
Some restrictions allowed, based on national security or
disruption of daily life
Government can place time, place, and manner restrictions
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

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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

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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”

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Freedom of Religion
The establishment clause often involves the Lemon test
1. The policy must have a nonreligious purpose
2. The policy’s primary effect must be one that neither
advances nor inhibits religion
3. The policy must not foster “an excessive entanglement of
government with religion

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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

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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”
In McDonald v. Chicago (2010), the Court further
extended the 2008 decision to apply to all state and local
governments

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The Right of Privacy
Griswold v. Connecticut (1965): Americans have a “zone
of privacy” that cannot lawfully be denied
Abortion
Protected as a right of privacy in Roe v. Wade (1973)
Webster v. Reproductive Health Services (1989), Planned
Parenthood v. Casey (1992), and Gonzales v. Carhart
(2007) have placed some restrictions on abortion.
 Sexual relations among consenting adults
Anti-sodomy laws in states struck down by Supreme Court
in 2003, overturning the 1986 Bowers v. Hardwick ruling

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Pro-Life vs. Pro-Choice
4-15

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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 a crime
occurred (Fourth Amendment)
Not a blanket protection; some warrantless searches allowed
based on situation

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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

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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

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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

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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 and
punishments of minors

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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 a second federal appeal by a state prison
inmate in most instances

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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

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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
Snowden leaks about NSA communications surveillance

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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