The Creighton Case and "warrantless" searches (FBI)
The Fourth Amendment's protection from "unreasonable" searches
The chapter's main points:
Freedom of expression is not unlimited
"Due process of law" refers to procedural safeguards
The civil liberties of Americans have been expanded during the last fifty years
Individual rights are weighed against the demands of majorities and society's needs
Freedom of Expression
Introduction
The First Amendment provides the foundation for free expression
Freedom of expression is not absolute
Expression can be denied if it harms national security
Private thoughts are free, but words and actions may not be
Today, free expression has broader judicial protection than in the early days of the U.S.
The Early Period: The Uncertain Status of the Right of Free Expression
The Sedition Act of 1798 (crime to print false stories about the president)
Jefferson pardoned those convicted under Act
"Clear-and-present-danger test" in Schenckv.United States (1919)
The Modern Period: Protecting Free Expression
Introduction
Until World War I, free expression was not a pressing dilemma for U.S.
The country's great size and ocean barriers provided protection from potential enemies, minimizing concerns of internal subversion
Since World War II, American's rights of free expression have been defined largely in the context of national security concerns
Free Speech and Assembly
Court allowed government to place substantial limits on free expression due to fear of communist subversion during cold war
Modified by Justice Stone's argument against speech restrictions
Government cannot prohibit free expression without justification
"Symbolic speech" less protected than verbal speech
Court ruled that burning the American flag was constitutionally protected
Press Freedom and Prior Restraint
New York Times Co. vs. United States (Pentagon papers case)
Prior restraint is unacceptable (government stopping publication in advance)
Exceptions
Free Expression and State Governments
Introduction
In 1790 Congress rejected a proposed amendment to the Constitution that would have applied the Bill of Rights to the states
Not until the twentieth century did the Supreme Court begin to protect individual rights from infringement by state and local governments
The vehicle for this change was the "due process clause" of the 14th Amendment
The Fourteenth Amendment and Selective Incorporation
Gitlow v. New York, (1925): states not completely free to limit expression
Selective Incorporation: Process through which Bill of Rights was applied to state governments using Fourteenth Amendment
Nearv.Minnesota (1931)-state could not censor newspaper
Limiting the Authority of States to Restrict Expression
Brandenburg v. Ohio (1969); 1977 Skokie case
Court has ruled that "hate speech" cannot be silenced
The Court has held that public officials can regulate the time, place, and conditions of public assembly, provided that these regulations are reasonable
Public officials cannot "discriminate" against lawful group assembly
Libel and Slander
Libel is false, written statements that harm reputations; slander is spoken
New York Times Co. v.Sullivan (1964): proof of "actual malice"
Press has less protection against a "private" person than against a "public" official
Obscenity
Mapplethorpe-Helms controversy over art and NEA funding
Supreme Court: difficult to define obscenity
Roth v. United States (1957): Court defined obscenity as material that "taken as a whole" appealed to "prurient interest" and had no "redeeming social significance.
Miller v.California (1973): contemporary community standards
Attempts to protect children from pornography: cable television, Internet
Court struck down Communications Decency Act of 1996 as too broad
Freedom of Religion
Introduction
Religious expression is the precursor of free political expression
Locke: Legitimate government could not inhibit free expression
First Amendment: Congress shall make no law respecting anestablishment of religion or prohibiting its free exercise
The Establishment Clause
Government may not favor one religion or support religion
Court: A "wall of separation" between church and state
"Excessive entanglement" forbidden, although some actions are allowed (e.g., secular texts for church-related schools)
Court has banned state-sponsored prayer in public schools
Good News Club v. Milford Central School (2001): schools must allow after-school religious groups to access school facilities."
The Free-Exercise Clause
Americans are free to hold any religious belief they choose
Some restrictions: children receiving medical treatment, yarmulke case
1997 decision: struck down the Religious Freedom Restoration Act
1972 decision: Amish do not have to send children to school beyond eighth grade
1987 decision: Louisiana law requiring creationism was ruled religious doctrine
The Right of Privacy
Griswoldv.Connecticut (1965): right of privacy to married couples
Roev.Wade (1973): gave women freedom to choose abortion during first trimester
Some restrictions on abortion
Webster case (1989): Supreme Court upheld law prohibiting abortions in public hospitals
Planned Parenthood v.Casey (1992): "essential holding" of Roe v. Wade upheld
Public sharply divided on issue of abortion; violent acts at abortion clinics
Court has declined to establish right of privacy in other areas: homosexual acts, physician-assisted suicide
Privacy questions are among the most contentious in American politics because of the moral and ethical issues they raise
Rights of Persons Accused of Crimes
Procedural Due Process
Authorities must follow certain procedures before a person can be punished
Writ of habeas corpus, Fourth, Fifth, Sixth, Eighth Amendments
Government must provide a lawyer if individual is unable to afford one
Selective Incorporation of Procedural Rights
Palko v.Connecticut (1937): Fourteenth Amendment does not apply all rights in Bill of Rights to the states
Mappv.Ohio (1961): unreasonable search and seizure; decision began process of selective incorporation
Gideon v.Wainwright (1963): free counsel to the poor in state felony trials
Miranda v.Arizona (1966): rights read to suspects at time of arrest
Local/state law enforcement and judicial officials: do not always uphold rights
Limits on Defendants' Rights
The Fourth Amendment does not provide blanket protection against searches
Indianapolis v. Edmund (2001): the Court held that narcotics roadblocks violate the Fourth Amendment
The Fourth Amendment does not only protect people in their homes and in their vehicles, it also protects them personally
Ferguson v. Charleston (2001)
The Exclusionary Rule
The Rule bars use of improperly obtained evidence
In 1980s, Court placed restrictions on rule's application
Police granted wider discretion in handling of criminal suspects
Whren v. United States (1996): upheld conviction of an individual who had been found with drug packet in front seat of car, while being
Chicago v. Morales (1999): the Court invalidated an anti-loitering ordinance, concluding it gave the police too much leeway to arrest or harass innocent persons.
Habeas Corpus Appeals
Recently, the Court placed restrictions on appeals from convicted criminals
Through 1990's decisions, the Court has sought to prevent frivolous and multiple federal court appeals
Crime, Punishment, and Police Practices
The theory and practice of procedural guarantees are often two quite different things
Racial profiling
The Eighth Amendment prohibits "cruel and unusual punishment"
Prison official must show "deliberate indifference"
The U.S. has a high incarceration rate, compared to other countries
The Courts and a Free Society
A free and democratic nation has a vital stake in maintaining individual freedoms.
Post September 11th (2001) sentiments
Greater support for individual rights exists among the political elite.
The courts balance society's demand for safety and order against the rights of the individual
A civil society rests also on enlightened representatives and a tolerant citiznery
