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Transcript of Patterson ch04
© 2015 The McGraw-Hill Companies, Inc. All rights reserved.
Chapter 4
© 2015 The McGraw-Hill Companies, Inc. All rights reserved. 4-2
The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation
Selective incorporation of free expression rightsFourteenth Amendment due process clause prevents states
from abridging individual rightsSupreme 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 rightsInitial 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
© 2015 The McGraw-Hill Companies, Inc. All rights reserved.
Civil Liberties Rankings
4-4
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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
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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
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Freedom of ExpressionFree 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 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
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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”
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Freedom of ReligionThe 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 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
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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”
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 PrivacyGriswold v. Connecticut (1965): Americans have a “zone
of privacy” that cannot lawfully be deniedAbortion
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 adultsAnti-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 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 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 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 evidenceMiranda warning
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Rights of Persons Accused of CrimesTrial phase
Legal counsel and impartial juryFifth 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 CrimesTrial phase
The exclusionary ruleNo admission of illegally obtained evidence1960s expansion of exclusionary ruleExceptions: inevitable discovery; good faith
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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 and punishments of minors
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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 a second federal appeal by a state prison inmate in most instances
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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
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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 wiretappingSnowden leaks about NSA communications surveillance
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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