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American Government 4/e Thomas E. Patterson | |||||
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CHAPTER OUTLINE
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 broad judicial protection
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 Schenck v. United States (1919)
The Modern Period: Protecting Free Expression
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
Congress and Bush reacted strongly against decision
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: News coverage of criminal proceedings, military operations
Free Expression and State Governments
The Fourteenth Amendment and Selective Incorporation
In 1925, Gitlow v. New York, states not completely free to limit expression
Selective Incorporation: Process through which Bill of Rights was applied to state governments using Fourteenth Amendment
Near v. 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
But protection of violent speech doesn’t extend to crimes of violence
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
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
Religious expression is the precursor of free political expression
Locke: Legitimate government could not inhibit free expression
First Amendment: No establishment 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)
Three-point test: (a) aid must be secular, not religious; (b) aid must not promote one religion or religion per se; (c) aid must not excessively involve government in religion
Court has banned state-sponsored prayer in public schools
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
1987 decision: La. law requiring creationism was religious doctrine
1972 decision: Amish do not have to send children to school beyond eighth grade
The Right of Privacy
Griswold v. Connecticut (1965)—right of privacy to married couples
Roe v. Wade (1973)—gave women freedom to choose abortion during first trimester
Some restrictions on abortion—Webster case (1989); 24-hour waiting period in
Planned Parenthood v. Casey (1992)
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
Rights of Persons Accused of Crimes
Procedural Due Process (Authorities must follow 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
Mapp v. 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
Restricting Defendants’ Rights
The Exclusionary 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
Habeas Corpus Appeals
Rehnquist Court placed restrictions on appeals from convicted criminals
Crime and Punishment
Amnesty International: United States treats accused fairly well
Death penalty continues to be controversial
Recently, legislators have taken tougher stance toward crime
U.S. prison population is second largest in the world on a per capita basis
The Courts and a Free Society
Americans support rights in abstract more than they do in concrete situations
Especially true in area of criminal rights
Greater support for individual rights found among political elites
Courts must balance societal safety against individual rights
Government exists to protect civil liberties—these rights are above government
Individuals have increasingly turned to the courts for protection
A civil society rests on enlightened representatives and a tolerant citizenry
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