Chapter 3 – The Bill of Rights

The Bill of Rights

• Civil liberties: personal freedoms protected for all individuals
  • Restraints on government actions
• Americans protected by Bill of Rights
  • First ten amendments to Constitution
  • Broad guidelines, not specific laws
• Colonists feared a tyrannical government
• Bill of Rights added by framers to limit national government
  • In practice, shaped by judicial interpretation
  • Must balance personal freedoms with rights of all citizens
  • Early conflict over issue of limiting state government powers

The Bill of Rights and the State Governments

• Extending the Bill of Rights to state governments
  • Barron v. Baltimore
  • Most states had own bill of rights, but still subject to judicial interpretation
• Incorporation of Fourteenth Amendment
  • Incorporation theory: most Bill of Rights protections apply to state governments
  • Gitlow v. New York

Freedom of Religion

• The separation of church and state –The Establishment Clause
  • Aid to church-related schools
  • School vouchers
  • School prayer—Engel v. Vitale
  • Prayer outside the classroom
  • The Ten Commandments
  • Teaching evolution
  • Religious speech
• The Free Exercise Clause
  • What defines religious practice?
  • Oregon v. Smith
  • Religious Freedom Restoration Act (1993)
    • National, state and local governments must work to accommodate religious conduct
    • Overturned by City of Boerne v. Flores

Freedom of Expression

• Free speech and free press without government interference
• No prior restraint
  • New York Times v. U.S. (Pentagon Papers)
• WikiLeaks
• Protection of symbolic speech
• Protection of commercial speech
  • Citizens United v. FEC

• Permitted restrictions on expression
  • Clear and present danger test
  • Modifications by Supreme Court
  • Grave and probable danger rule
• Unprotected speech: obscenity
  • Definitional problems
    • “I know it when I see it”
    • Miller v. California
    • Defined by community standards
  • Protecting children
  • Pornography on the Internet
• Unprotected speech: slander
  • Public uttering of a false statement that harms reputation of another
  • Defamation of character
• Campus speech
  • Student activity fees
  • Campus speech and behavior codes

Freedom of the Press

• Defamation in writing
  • Libel
  • Public figures must meet higher standards
  • New York Times v. Sullivan (1964)
    • Actual malice must take place
    • Made it difficult to prove libel for public figures
• Free press versus a fair trial: gag orders
  • Right of a defendant to a fair trial supersedes right of public to “attend” the trial
  • Court permits press to publish factual information
• Films, radio and TV:
  • No longer limited to print media, though broadcast media do not receive identical protections

The Right to Assemble and Petition the Government

• First Amendment guarantees
• Supreme Court: state and local governments cannot bar individuals from assembling
  • Nazi Party
  • Westboro Baptist Church
  • Online assembly

More Liberties Under Scrutiny: Matters of Privacy

• No explicit Constitutional right to privacy, but is interpretation by Supreme Court
  • First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments imply “zones of privacy”
  • Griswold v. Connecticut (1965)
• Privacy rights in an information age
• Privacy rights and abortion
  • Roe v. Wade (1973)
  • Webster v. Reproductive Health Services
  • Planned Parenthood v. Casey
• The controversy continues
• Privacy rights and the “right to die”
  • Karen Ann Quinlan case
  • Living wills
  • Physician-assisted suicide

Privacy Rights and Security Issues

• Privacy rights versus security issues
  • Fourth Amendment protections
  • Increased in importance after 9/11 attacks
  • Threats to liberty may make rights “too extravagant to endure”
  • USA PATRIOT Act
  • Civil liberties concerns
  • FISA Amendments Act

The Great Balancing Act: The Rights of the Accused versus The Rights of the Society

• Extending the rights of the accused
  • Fourth Amendment
    • No unreasonable or unwarranted search or seizure
    • No arrest except on probable cause
  • Fifth Amendment
    • No coerced confessions
    • No compulsory self-incrimination

Rights of the Accused

• Rights of the accused 
  • Sixth Amendment
    • Legal counsel
    • Informed of charges
    • Speedy and public jury trial
    • Impartial jury by one’s peers
  • Eighth Amendment
    • Reasonable bail
    • No cruel or unusual punishment
• Extending rights of the accused
  • Gideon v. Wainwright
  • Miranda v. Arizona
    • Public-safety exceptions
    • Recorded interrogations
• Rights complicated for Americans outside U.S. borders

Exclusionary Rule

• Exclusionary Rule
  • Prohibits admission of illegally seized evidence
  • Mapp v. Ohio (1961)
  • Court has limited scope of exclusionary rule in recent decades

Death Penalty

• Cruel and unusual punishment?
  • Forbidden by Eighth Amendment
  • Supreme Court does NOT restrict all forms of capital punishment
  • Many states adopt bifurcated procedure
• Death penalty today
  • Allowed by 33 states
  • Carried out mostly by state governments
  • Declining in number