Chapter 4
The Constitution: The Bill of Rights
and the Fourteenth Amendment
 Selective 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
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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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Insert Table 4-1
The Bill of Rights:
A Selected List of Constitutional Protections
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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
 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 Expression
 Obscenity
 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
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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”
 The Lemon test—conditions for acceptable government
action
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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”
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The Right of Privacy
 Griswold v. Connecticut: Americans have a “zone of
privacy” that cannot lawfully be denied
 Abortion

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
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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 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
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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 in most instances a second federal appeal
by a state prison inmate
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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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Insert Figure 4-1
Incarceration Rates, by Country
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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
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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
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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?
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