Chapter 5 Civil Libertiesp. 98

1st, 4th, 5th.6th, 8th, and 9th Amendments

I. Due Process of law

A. Procedural due process: Rules the gov’t must follow when dealing with you such as speedy trial, right to a lawyer, no self-incrimination, miranda warning

Rochin vs. Calif., 1952 was forced incrimination when stomach was pumped to see if he swallowed illegal drugs

Due Process

B. Substantive due process: the law itself must be constitutional.

Can the No Child Left Behind Act set rules for schools under the 10th Amendment?

II. 14th AmendmentA. Two phrases in 14th Amendment that protects us 1. No state can deny any person the right to life, liberty or property without DUE PROCESS 2. No state can deny any person within its jurisdiction EQUAL PROTECTION of the laws.

B. INCORPORATION CLAUSE

Applies Bill of Rights to the States under the “due process clause” and “no state shall pass any laws that takes away due process of law”.

C. Selective Incorporation of Bill of Rights 1. Not all federal rights listed are applied to states 2. Examples: (p. 101)

Police power

Reserved powers found in 10th amendment gives states the right to protect and promote your health, safety, morals and general welfare.

III. Freedom of Speech

A. Guarantees of free press and speech serve two purposes

1. a full range discussion of ideas and public affairs.

2. each person has a right to freely express themselves .

B. Limits on free expression

1. National Security a. “Utterances can

be punished after made. It would be censorship if before

b. NYT v. U.S. – Pentagon Papers

2. Clear-and-present danger test: If words create an immediate threat then speech can be stopped. ( Yelling fire in a theatre)

a. Examples: Schenck vs. U.S. (p. 103)

Facts: b. Brandenberg vs. U.S. c. Nationalist Socialist

Party vs. Skokie (p.105)

D3. Obscenity: What is

considered obscene? Miller vs. California a. Does it go against community standards? b. Does it have any literary, artistic, scientific, or literary value? c. Does it appeal to purely prurient interests?

4. Some symbolic speech a. Definition: Making a political statement through signs or symbols. b. Examples: burning a flag. You cannot do something that is illegal to make a political point.

5. Libel/Slander: Intentionally saying or writing falsehoods that do damage. Truth is the defense to libel/slander

6. Freedom of Assembly and Petition Limits

A. Right to PEACEABLY assemble – You cannot incite, block public streets, close a

school, endanger life, property, or public order. Gov’t cannot regulate content but can regulate:

1. Time: example 2. Place: example 3. Manner: example

B. Right to assemble also means right to associate with whom you wish. P. 572 (558)

ex: Boy Scouts of America vs. Dale, 2000 1. Facts:

2. Court’s Decision:

III. Rights of the accusedA. The Fourth Amendment: only protects against

UNREASONABLE SEARCHES. 1. What must be on a legal search warrant?

2. Which searches are legal without a warrant?

a. Those “incident to the arrest”. Police can search those arrested and any area under their control.

b. Cars: The police can search anything in a car if they can prove probable cause. A traffic stop allows a search if the police can articulate suspicion that the car is involved in illegal activity (contraband)

c. Anything in plain view: backyards, motor homes on wheels, your car.

d. Consent: The police may ask if they can search your car, etc. You do not have to consent.

e. Hot pursuit: The police can pursue you in and out of buildings or apartments.

f. Airports

3. What happens to evidence that is illegally seized by police?

a. In most countries, the evidence is used and the police are punished or fined later. In U.S. the evidence is thrown out.

b. Mapp v. Ohio: applied the exclusionary rule to the states.

B. 5th Amendment1. Protection against self-incrimination: Miranda

warning says:

2. No double jeopardy: you cannot be tried twice for same crime. Keeps government from trying you over and over again until it gets it right.

3. Right to a grand jury: Group of citizens who hear the evidence to decide whether or not there should be a trial.

C. Sixth AmendmentRights during a trial

1. Right to a speedy trial: Speedy Trial Act says you must be tried within 100 days so you don’t rot in jail.

2. Right to a public trial so that the judge and prosecutor follow the rules.

3. Right to a jury that is impartial. What does that mean?

4. Must be tried where the crime was committed. Why?

a. So that the community can see justice done

b. To have a fair trial c. Convenience of witnesses5. Must be told of the charges

against you so you can build your defense.

6. Must be able to see and hear those witnesses against you so that you can find the loopholes in their testimony.

7. Must be able to call your own witnesses (subpoena power) to build your defense.

8. Right to a lawyer. When must that lawyer be provided?

D. Eight Amendment

1. No excessive bails or fines. They must fit the crime.

2. No “cruel and unusual punishments”.

Lethal injection: Is it cruel and unusual?

E. Ninth Amendment