How the U.S. Differs: Civil Liberties

How the U.S. Differs: Civil Liberties

• Freedom House ranks the United States among the “most free” nations in civil liberties on a 7-point scale. The slide references a chart of selected countries on this 7-point ranking system.

• Accessibility note: there is a text alternative to the slide image.

The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation

• Civil liberties: specific individual rights, such as the right to a fair trial, that are constitutionally protected against government infringement.

• Bill of Rights: the ten amendments that list the rights the federal government is obliged to protect.

• The Fourteenth Amendment’s due process clause prevents the states from abridging individual rights.

• The Supreme Court has engaged in selective incorporation—invoking the Fourteenth Amendment to apply the Bill of Rights to the states.

Selective Incorporation and Court Change

• The Supreme Court initially resisted invoking selective incorporation to protect the rights of the accused in the states.

• In the 1960s, the Court began to assert and protect the rights of the accused.

Table 4-1: First Amendment Protections (Summaries)

• Speech: You are free to say almost anything except that which is obscene, slanders another person, or has a high probability of inciting others to take imminent lawless action.

• Press: You are free to write or publish almost anything except that which is obscene, libels another person, seriously endangers military action or national security, or has a high probability of inciting others to take imminent lawless action.

• Assembly: You are free to assemble, although government may regulate the time and place for reasons of public convenience and safety, provided such regulations are applied evenhandedly to all groups.

• Religion: You are protected from having the religious beliefs of others imposed on you, and you are free to believe what you like.

Freedom of Expression

• Freedom of expression is the most basic democratic right, but like all rights, it is not unlimited.

• Historically, the status of free expression was uncertain (e.g., the Sedition Act of 1798).

• Today, free expression is vigorously protected by the courts, but it can be denied if it endangers national security, wrongly damages others’ reputations, or deprives others of their rights.

Free Speech: Twentieth-Century Challenges

• Espionage Act (1917) and Schenck v. United States (1919) tested limits on speech during national security concerns early in the Cold War.

• Tests of government actions to limit speech include the clear-and-present-danger test and the imminent lawless action test.

• Hate speech is protected in many contexts, but hate crimes can be punished differently.

• Example: Westboro Baptist Church protests.

• Symbolic speech (action) is protected, but not always as fully as verbal speech.

Free Assembly

• Some restrictions are allowed based on national security or disruptions to daily life.

• Government can place time, place, and manner restrictions, provided they are content-neutral and applied evenhandedly.

Press Freedom and Libel Law

• New York Times Co. v. United States (1971) and the Pentagon Papers case: prior restraint is a constitutional barrier to government prohibition of speech/publication before it occurs, with an extreme burden of proof on the government.

• 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 actual malice—a knowing or reckless disregard for the truth.

Freedom of Religion

• The First Amendment protects religious freedom alongside political expression:

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The Establishment Clause

• Establishment Clause: government may not favor one religion over another or support religion over no religion.

• Doctrines of wall of separation and accommodation.

• The Lemon test is frequently applied to assess government policies:

  • The policy must have a nonreligious purpose.

  • The policy’s principal or primary effect must be to neither advance nor inhibit religion.

  • The policy must not foster an excessive government entanglement with religion.

The Free-Exercise Clause

• Free-exercise clause: government is prohibited from interfering with the practice of religion.

• Government interference is permitted when the exercise of religious beliefs conflicts with otherwise valid law.

• Controversial cases mentioned:

  • Burwell v. Hobby Lobby Stores (2014).

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

  • Debates over creationism taught alongside evolution in public schools.

The Right to Bear Arms

• Widely accepted view: the Second Amendment blocks the federal government from abolishing state militias.

• District of Columbia v. Heller (2008): the Court ruled that the Second Amendment protects an individual right to possess a firearm.

• McDonald v. Chicago (2010): extended the 2008 decision to apply to all state and local governments.

The Right of Privacy

• Griswold v. Connecticut (1965): Americans have a “zone of privacy” that government cannot lawfully invade.

• Abortion was protected as a right of privacy in Roe v. Wade (1973).

• Subsequent cases: Webster v. Reproductive Health Services (1989); Planned Parenthood v. Casey (1992); Gonzales v. Carhart (2007) established some restrictions.

• Lawrence v. Texas (2003): Consensual sexual relations among same-sex adults were protected by the same right of privacy.

Conflicting Ideas: Pro-Life vs Pro-Choice

• Roe v. Wade (1973) established a constitutional right to choose abortion, creating ongoing partisan divides.

• Source cited: Pew Research Center for the People and the Press, 2019.

Rights of Persons Accused of Crimes

• Procedural due process: procedures that authorities must follow before a person can be punished for an offense.

• The U.S. Constitution offers procedural safeguards designed to protect a person from wrongful arrest, conviction, and punishment.

Table 4-2: Bill of Rights – Due Process Protections (Selected Provisions)

• Fourth Amendment: Search and seizure

  • Protected from unreasonable searches and seizures, though the right may be waived knowingly.

• Arrest: You are protected from arrest unless authorities have probable cause to believe you have committed a crime.

• Fifth Amendment: Self-incrimination; you have the right to remain silent; protected against coercion by law enforcement.

  • Double jeopardy: you cannot be tried twice for the same crime if the first trial results in acquittal.

  • Due process: cannot be deprived of life, liberty, or property without proper legal proceedings.

• Sixth Amendment: Counsel; you have the right to an attorney and to speak with an attorney before answering questions.

  • Prompt and reasonable proceedings: right to be arraigned promptly, to be informed of charges, to confront witnesses, and to have a speedy and open trial by an impartial jury.

• Eighth Amendment: Bail and cruel and unusual punishment

  • Bail: protected from excessive bail or fines.

  • Cruel and unusual punishment: protected, though this does not guarantee freedom from the death penalty or long prison terms for minor offenses.

Suspicion Phase: Unreasonable Search and Seizure

• No police search is allowed without probable cause; warrants are generally required.

• Warrant requirement upheld in cases involving cell phones and similar electronic devices.

• Warrantless searches are allowed in some circumstances:

  • School administrators searching for drugs and weapons.

  • Police roadblocks to check for intoxication, provided the action is systematic and not arbitrary.

Arrest Phase: Protection Against Self-Incrimination

• Fifth Amendment protection against self-incrimination: a person cannot be compelled to testify against themselves.

• Miranda v. Arizona (1966): no legal interrogation until the suspect has been warned that words could be used as evidence, leading to the “Miranda warning.”

Trial Phase: The Right to a Fair Trial 1

• Fifth Amendment: a suspect cannot be tried for a federal crime unless indicted by a grand jury (federal cases).

• States are not required to use grand juries.

• Sixth Amendment: right to legal counsel before and during trial; right to a speedy trial and to confront witnesses against them.

• At the federal level and sometimes at the state level, defendants have a right to a jury trial to be heard by an impartial jury.

Trial Phase: The Right to a Fair Trial 2 (Exclusionary Rule and Exceptions)

• Exclusionary rule: evidence obtained in violation of the defendant’s rights cannot be used.

• Expansion in the 1960s by a liberal-dominated Court.

• As the Court shifted to more conservative members, exceptions were created:

  • Good faith exception: admission if police believed they were following proper procedures.

  • Inevitable discovery exception: admission if other evidence would have led to the same discovery.

  • Plain view exception: admission if found in plain sight.

Sentencing Phase: Cruel and Unusual Punishment

• The Eighth Amendment prohibits “cruel and unusual punishment.”

• Tests consider whether punishment is disproportionate to the offense, violates fundamental standards of good conscience and fairness, or is unnecessarily cruel.

• The Supreme Court generally allows states to decide punishments but has limited some aspects:

  • Banned death penalty for minors and the mentally ill.

  • Banned life-without-parole for juveniles; extended this protection to juveniles convicted before the ban was implemented.

Appeal

• There is usually no constitutional guarantee of an appeal; however, the federal government and the states all allow at least one appeal.

• Federal law bars a second federal appeal by a state prison inmate in most instances.

Crime, Punishment, and Police Practices

• Supreme Court rulings have affected police practices.

• Miranda v. Arizona (1966) established constitutional rights during interrogations.

• Constitutional rights are often applied unevenly.

• Racial profiling: the targeting of individuals from minority groups.

• Minorities are more likely to be victims of police violence.

• Tough sentencing policies are popular with voters, but prison overcrowding is an issue.

How the 50 States Differ: Incarceration Rates

• Most crimes in the United States are governed by state law rather than federal law; states differ widely in their crime rates and sentencing practices.

• Source: Office of Justice Statistics, U.S. Department of Justice, 2020.

Figure 4-1: Incarceration Rates, by Country (Text Alternative)

• The United States is the world leader in incarceration rates; more than half of prisoners were convicted of nonviolent offenses (e.g., drug use or property theft).

• Source: International Centre for Prison Studies, 2020.

• Incarceration rates per 100,000 residents (text alt data): US 666; Cuba 510; Russia 410; Iran 287; Mexico 169; Great Britain 135; China 118; Canada 114; France 101; Japan 44.

Rights and the War on Terrorism

• In times of war, the Courts have upheld policies that would not otherwise be permitted.

• Historical example: WWII detention of Japanese Americans, supported by Congress and upheld in Korematsu v. United States (1944).

Detention of Enemy Combatants

• After 9/11, the Bush administration detained “enemy combatants.” Supreme Court ruled detainees have the right to challenge their Guantánamo Bay detention in U.S. courts.

• Hamdan v. Rumsfeld (2006).

Surveillance of Suspected Terrorists

• The USA PATRIOT Act gave the government additional tools for combating terrorism.

• The NSA engaged in warrantless wiretapping; the program was leaked by Edward Snowden in 2013.

• A federal appellate court ruled the NSA program unlawful.

• Congress passed revised legislation to authorize a more limited surveillance program with greater oversight.

The Courts and a Free Society

• Americans value freedom of expression as an abstract virtue.

• Americans also support limits to freedom of expression in particular contexts.

• The judicial system has been the primary protector of individuals’ rights.

Critical Thinking 1

• Distinguish between the establishment clause and the free-exercise clause of the First Amendment.

• To which one does the Lemon test apply, and what are the components of that test?

• Assume an arrest and trial: identify procedural due process rights at each step; how might the exclusionary rule affect the outcome?

Critical Thinking 2

• What is the process of selective incorporation, and why is it important to the rights Americans have today?

Notes

• This set of notes mirrors the content in the transcript slides, capturing major concepts, case names, constitutional clauses, tests, and empirical data presented.

• For examination purposes, focus on:

  • The concept and mechanisms of selective incorporation.

  • The Lemon test components and its historical application.

  • The different First Amendment protections (speech, press, assembly, religion) and notable limitations (e.g., obscenity, libel, incitement, imminent lawless action).

  • The due process protections across Fourth, Fifth, Sixth, and Eighth Amendments, including notable exceptions to exclusionary rules.

  • Landmark cases and their implications for rights during wartime (e.g., Schenck, Hamdi, Rasul, etc., as referenced).

  • The balance between national security and individual rights in post-9/11 surveillance and detention programs.