Chapter Outline

Freedom of Expression

1. This freedom allows citizens to influence government and act to protect their other rights.
2. Though freedom of expression is not an absolute right, it has received broad protection from the courts in recent decades.

In earlier historical periods, Americans were less free to express their political views.

1. The Sedition Act of 1798 made it a crime to print false or malicious newspaper stories about the president or other national officials.
2. During the American Civil War era as well as the "red scares" of the 1920s and 1950s, limits on free expression were imposed.

In the modern period, free expression has been protected by the Supreme Court's development of standards regarding when the government could infringe on political expression.

1. The clear-and-present-danger test stipulated that political expression could be restricted only if speech was "of such a nature as to create a clear and present danger" to the nation's security.
2. The Dennis decision restricted the speech of the U.S. Communist Party that was advocating the forceful overthrow of the U.S. government.
3. The "preferred position" doctrine of Justice Stone states that First Amendment rights should have a preferred position for protection in a democratic society.
4. Supreme Court distinctions between verbal speech and "symbolic speech" mean that the government can prohibit actions that threaten a legitimate public interest as long as the main purpose is not to inhibit free expression (pertained to draft card burning).
5. The Court held that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable (pertained to burning or defacing the U.S. flag).
6. Under free speech protections the Court has rejected limits on campaign spending.
7. The courts have held that prior restraint, or prohibition of expression before the fact, is generally unconstitutional. The exception to this is coverage of military operations.
8. Even though the Bill of Rights did not originally apply to the states, it has since been applied to state action by use of the Fourteenth Amendment and the doctrine of selective incorporation.

Since the 1930s, the Supreme Court has broadly protected freedom of expression from action by the states and by local governments.

1. States cannot restrict free expression except when such expression is almost certain to result in imminent lawlessness.
2. The right of free expression takes precedence over the mere possibility that exercising the right may have undesirable consequences.
3. The Court has broadly held that while "hate speech" cannot be silenced, hate crimes can be prosecuted.
4. The time, place and conditions of public assembly can be regulated.
5. Any government effort to regulate the content of a message is highly suspect.
6. Libel, slander and obscenity are not protected as free expression.

Freedom of Religion

1. The Supreme Court maintains that a "wall of separation" must be maintained between church and state.
2. State aid for educational purposes given to church-affiliated schools must primarily serve secular educational objectives.
3. The Court has consistently reaffirmed the ban on state-sponsored prayer.

The free-exercise of religion clause stipulates that Americans are free to hold any religious belief they choose.

1. The Court is reluctant to restrict the practice of religion though it may do so if the practice endangers the public health, morals, or safety.
2. When possible, the Supreme Court tries to balance any potential conflict between the "free exercise" and "establishment" clauses, though sometimes one must yield to the other.

The Right of Privacy

1. Freedoms in the Bill of Rights imply an underlying right of privacy.
2. The right of privacy was the basis for the Roe v.Wade decision regarding a woman's ability to terminate her pregnancy.
3. The Courts have ruled that states may regulate abortion as long as they do not impose an "undue burden" on women seeking abortion.
4. The Court's decisions have not resolved public conflict over the issue of terminating a pregnancy.
5. The court has been reluctant to extend the right of privacy to issues of sexual orientation and physician-assisted suicide.

Rights of Persons Accused of Crimes

1. "Due process" refers to legal protections that have been established to preserve the rights of individuals.
2. Procedural due process refers primarily to procedures that authorities must follow before a person can legitimately be punished for an offense.
3. Specific procedural protections for the accused are spelled out in the Fourth, Fifth, Sixth, and Eighth amendments.
4. Beginning in the 1960s the Supreme Court extended procedural protections for the accused through selective incorporation in state courts. The Miranda decision is a significant example of this.
5. The exclusionary rule, which bars the use in trials of evidence obtained in violation of the Fourth Amendment's protection against "unreasonable searches and seizure," was extended to state trial proceedings in the Mapp case while the exclusionary rule was weakened in the more recent Whren case. The Court did not want to give police unbridled discretion.
6. The Supreme Court has recently restricted habeas corpus appeals to federal courts by individuals who have been convicted of crimes in state courts and shifted the burden of proof for appeals to the prisoner.

Issues of crime and punishment in America still center around infringements on individual rights, especially those of minorities and the poor.

1. One issue of justice is whether adherence to proper legal procedures produces reasonable outcomes.
2. States still maintain considerable latitude in the area of capital punishment.
3. Both the courts and the public favor taking a tougher stance on crime.

The Courts and a Free Society

1. Popular majorities are often tempted to diminish the freedom of those who hold minority views, have unconventional lifestyles or simply "look different."
2. Greater support for individual rights exists among the political elite.
3. The courts try to balance society's demand for safety and order against the rights of the individual.
4. The protection of individual rights depends not only upon the judiciary, but also upon enlightened representatives and a tolerant citizenry.