4.1: Civil Liberties and the Bill of Rights

4.1.1: The Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the US Constitution and they guarantee certain liberties.

Learning Objective

Explain how the Bill of Rights is used to protect natural rights of liberty and property.

Key Points

The Bill of Rights was introduced by James Madison to the 1st US Congress as a series of legislative articles. Without a Bill of Rights, the Constitution may not have been ratified.
Originally, the Bill of Rights implicitly and legally protected only white men, excluding American Indians, people considered to be “black” (now described as African Americans), and women.
The Bill of Rights originally only applied to the federal government, but has since been expanded to apply to the states as well.
The Bill of Rights includes protections such as freedom of the press, speech, religion, and assembly; the right to due process and fair trials; the right to personal property and other rights.

Key Terms

Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
Bill of Rights: The collective name for the first ten amendments to the United States Constitution.
amendment: An addition and/or alteration to the Constitution.

The Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the United States Constitution . These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings, and reserve some powers to the states and the public. While the amendments originally applied only to the federal government, most of their provisions have since been held to apply to the states by way of the Fourteenth Amendment.

The Bill of Rights of the United States of American

The United States Bill of Rights, which are the first 10 amendments to the US Constitution, and the core of American civil liberties.

History of the Bill of Rights

The Constitution may never have been ratified if a bill of rights had not been added . Most state constitutions adopted during the Revolution had included a clear declaration of the rights of all people, and most Americans believed that no constitution could be considered complete without such a declaration.

Signing the Constitution

This painting depicts the signing of the US Constitution. Without the addition of the Bill of Rights, it is unlikely that the Constitution would have been ratified.

The amendments that would become the Bill of Rights were introduced by James Madison as a series of legislative articles . They were adopted by the House of Representatives on August 21, 1789, and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States.

Portrait of James Madison

James Madison, “Father of the Constitution” and first author of the Bill of Rights

Congress passed twelve amendments, yet only ten were originally passed by the states. One of the two rejected amendments dealt with the size of the House of Representatives, and the other rejected amendment provided that Congress could not change the salaries of its members until after an election of representatives had been held (it was ratified 202 years later, becoming the 27^th Amendment).

Original Exclusions from the Bill of Rights

The Bill of Rights implicitly and legally only protected white land-owning men, excluding American Indians, people considered to be “black” (now described as African Americans), and women. These exclusions were not explicit in the Bill of Right’s text, but were well understood and applied. Gradually, these exclusions were lifted by subsequent interpretations or amendments, so in contemporary times, the Bill of Rights protects all classes of people.

Protected Rights

The First Amendment protects freedom of religion, speech, press, assembly and petition.
The Second Amendment protects the right of Americans to bear arms.
The Third Amendment prevents the government from quartering (housing) soldiers in civilian’s homes during peace time without the consent of the civilian.
The Fourth Amendment provides protection from unreasonable search and seizure.
The Fifth Amendment establishes rights related to due process, double jeopardy, self-incrimination, and eminent domain.
The Sixth Amendment sets out rights of the accused of a crime: a trial by jury, a speedy trial, a public trial, the right to face the accusers, and the right to counsel.
The Seventh Amendment protects the right to a trial by jury for civil trials.
The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.
The Ninth Amendment protects rights not specifically enumerated in the Constitution. Some people feared that the listing of some rights in the Bill of Rights would be interpreted to mean that other rights not listed were not protected. This amendment was adopted to prevent such a misinterpretation.
The Tenth Amendment confirms that the states or the people retain all powers not given to the national government. This amendment was adopted to reassure people that the national government would not swallow up the states.

4.1.2: Nationalizing the Bill of Rights

The Bill of Rights were included into state laws through selective incorporation, rather than through full incorporation or nationalization.

Learning Objective

Compare and contrast the difference between nationalization and selective incorporation of the Bill of Rights.

Key Points

The Bill of Rights were gradually incorporated into state law, through the Due Process Clause of the Fourteenth Amendment.
There were two opposing viewpoints that debated how the Bill of Rights should be incorporated at the state level. One argued for total incorporation, or nationalization, of the first eight amendments. Others argued for gradual and selective incorporation.
Justice Hugo Black argued for the nationalization of the Bill of Rights, but the Supreme Court eventually adopted a practice of selective incorporation.

Key Terms

selective incorporation: the process by which American courts have applied certain portions of the U.S. Bill of Rights to the states
Bill of Rights: The collective name for the first ten amendments to the United States Constitution.
Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
incorporation doctrine: The process by which American courts have applied portions of the US Bill of Rights to the states, using the Due Process Clause of the Fourteenth Amendment.

Incorporating the Bill of Rights

The incorporation of the Bill of Rights (also called the incorporation doctrine) is the process by which American courts have applied portions of the United States’ Bill of Rights to the states. According to the doctrine of incorporation, the Due Process Clause of the Fourteenth Amendment applies the Bill of Rights to the states.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court held in Barron v. Baltimore (1833) that the Bill of Rights applied only to the federal government, not to any state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

14th Amendment of the United States Constitution

The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.

Nationalization Versus Selective Incorporation

After the Fourteenth Amendment was passed, the Supreme Court debated how to incorporate the Bill of Rights into state legislation. Some argued that the Bill of Rights should be fully incorporated. This is referred to as “total” incorporation, or the “nationalization” of the Bill of Rights. On the other hand, some believed that incorporation should be selective, in that only the rights deemed fundamental (like the rights protected under the First Amendment) should be applied to the states, and it should be a gradual process. The Supreme Court eventually pursued selective incorporation.

Hugo Black: A Champion for Nationalization

Even though the Supreme Court decided on selective incorporation, there were some who advocated for a total incorporation or nationalization of the Bill of Rights. Justice Hugo Black championed this view. Black called for the nationalization of the first eight amendments of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone), and his most famous expression of this belief is found in his dissenting opinion in the Supreme Court case, Adamson v. California (1947).

Justice Hugo Black

Supreme Court Justice Hugo Black is noted for the complete nationalization of the Bill of Rights.

4.1.3: Incorporation Doctrine

The incorporation of the Bill of Rights is the process by which American courts have applied portions of the Bill of Rights to the states.

Learning Objective

Indicate how the Bill of Rights was incorporated by the the Federal government in the States

Key Points

Prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by a Supreme Court case in 1833 (Barron v. Baltimore).
The Fourteenth Amendment’s Due Process Clause has been used to apply portions of the Bill of Rights to the state through selective incorporation. This amendment is cited in US litigation more than any other amendment.
By the last half of the 20th century, nearly all of the first 8 amendments have been incorporated into state law (except the 3rd Amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th Amendments apply to the federal government, and so have not been incorporated.
Incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech.

Key Terms

Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
due process: The limits of laws and legal proceedings, so as to ensure a person fairness, justice, and liberty.
incorporation doctrine: The process by which American courts have applied portions of the US Bill of Rights to the states, using the Due Process Clause of the Fourteenth Amendment.

What is the Incorporation Doctrine?

As described, the incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.

The Fourteenth Amendment and Moving Towards Incorporation

In Barron v. Baltimore (1833), the Supreme Court declared that the Bill of Rights applied to the federal government, and not to the states. Some argue that the intention of the creator of the Fourteenth Amendment was to overturn this precedent.

The Fourteenth Amendment to the Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights .

14th Amendment of the United States Constitution

The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.

The first instance of incorporation include the case Chicago, Burlington and Quincy Railroad v. City of Chicago (1897), in which the Supreme Court required just compensation for property appropriated by state or local authorities (so this was an application of the Fifth Amendment in the Bill of Rights). More commonly, it is argued that incorporation began in the case Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.

Selective Incorporation

In Adamson v. California (1947), Supreme Court Justice Hugo Black argued in his dissent that the Supreme Court should pursue nationalization of the Bill of Rights. Despite his opinion, in the following twenty-five years, the Supreme Court employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The Fourteenth Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.

Which Amendments Have Been Incorporated?

By the latter half of the 20^th century, nearly all of the rights in the Bill of Rights had been applied to the states, under the incorporation doctrine.

All of the provisions of Amendment I and Amendment II have been incorporated against the state, while the Third Amendment has not yet been incorporated (the Third Amendment refers to the prohibition on quartering of soldiers in civilian homes).

Amendment IV, unreasonable search and seizure, has been incorporated against the states by the Supreme Court’s decision in Wolf v. Colorado (1949). The exclusion of unlawfully seized evidence has been incorporated against the states in Mapp v. Ohio (1961).

Amendment V, the right to indictment by a grand jury, has been held not to be incorporated against the states, but protection against double jeopardy and protection against self-incrimination have been incorporated against the states in Malloy v. Hogan (1964) .

Incorporating Amendment V

Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.

Amendment VI, the rights to a speedy, public, and impartial trial have been incorporated against the states, as has the right to counsel in Gideon v. Wainwright (1963) .

Incorporating Amendment VI

Amendment VI, the right to a trial by a jury and the right to counsel, was incorporated against the states in the case Gideon v. Wainwright (1963). Here, this right is exercised as an attorney asks questions during jury selection.

Amendment VII, right to a jury trial in civil cases, has been held not to be applicable to the states.

Amendment VIII, the right to jury trial in civil cases has been held not to be incorporated against the states, but protection against “cruel and unusual punishments” has been incorporated against the states.

Amendments IX and X have not been incorporated against the states, as they apply expressly to the federal government alone.

4.2: The First Amendment: The Right to Freedom of Religion, Expression, Press, and Assembly

4.2.1: The First Amendment

The First Amendment to the US Constitution is part of the Bill of Rights, and protects core American civil liberties.

Learning Objective

Compare and contrast civil rights with civil liberties with respect to the First Amendment

Key Points

The First Amendment protects Americans’ rights to religious freedom. As part of this, the US cannot establish a religion nor prevent free exercise of religion.
The First Amendment protects Americans’ rights to the freedom of speech, press, assembly, and petition.
Originally, the First Amendment applied only to the federal government. However, Gitlow v. New York (1925) used provisions found in the Fourteenth Amendment to apply the First Amendment to the states as well.
Some of the rights protected in the First Amendment have roots in other countries’ declarations of rights. In particular, the English Bill of Rights, the French Declaration of the Rights of Man and of the Citizen, and the Philippine Constitution all have similar elements to the First Amendment.
Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly.
In the 1919 case Schenck v. United States the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft.

Key Terms

French Declaration of the Rights of Man and of the Citizen: A fundamental document of the French Revolution and in the history of human rights, defining the individual and collective rights of all the estates of the realm as universal.
First Amendment: The first of ten amendments to the constitution of the United States, which protects freedom of religion, speech, assembly, and the press.
civil liberties: Civil rights and freedoms such as the freedom from enslavement, freedom from torture and right to a fair trial.

The First Amendment

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights and protects American civil liberties. The amendment prohibits the making of any law pertaining to an establishment of a federal or state religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press , interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances .

Vietnam War Protest in Washington D.C., April, 1971

The First Amendment established the right to assemble as a core American liberty, as is depicted here in a Vietnam-era assembly.

Freedom of the Press Worldwide

The First Amendment to the Constitution guarantees Americans the right to a free press. This is something that many other countries do not enjoy, as this map illustrates.

The text of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. “

Anti-war protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly. Before the twentieth century, most free speech issues involved prior restraint. Starting in the early 1900s, the Supreme Court began to consider cases in which persons were punished after speaking or publishing.

In the 1919 case Schenck v. United States the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft. The clear and present danger test was established by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I. Following Schenck v. United States, “clear and present danger” became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen’s First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a “clear and present danger.

Incorporating the First Amendment

Originally, the First Amendment applied only to laws enacted by the Congress. However, starting with Gitlow v. New York (1925), the Supreme Court has applied the First Amendment to each state. This was done through the Due Process Clause of the Fourteenth Amendment . The Court has also recognized a series of exceptions to provisions protecting the freedom of speech.

14th Amendment of the United States Constitution

The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.

Background to the First Amendment

Opposition to the ratification of the Constitution was partly based on the Constitution’s lack of adequate guarantees for civil liberties. To provide such guarantees, the First Amendment, along with the rest of the Bill of Rights, was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.

Comparing the First Amendment to Other Rights Protection Instruments

Some provisions of the United States Bill of Rights have their roots in similar documents from England, France, and the Philippines. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, the First Amendment guarantees freedom of speech to the general populace but the English Bill of Rights protected only free speech in Parliament . A French revolutionary document, the French Declaration of the Rights of Man and of the Citizen, passed just weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to those in the First Amendment. Parts of the Constitution of the Philippines, written in 1987, contain identical wording to the First Amendment regarding speech and religion. Echoing Jefferson’s famous phrase, all three constitutions, in the section on Principles, contain the sentence, “The separation of Church and State shall be inviolable”.

English Bill of Rights

The US Bill of Rights drew many of its First Amendment provisions from other countries’ bill of rights, such as the English Bill of Rights. However, the US Bill of Rights established more liberties than the English Bill of Rights.

Although the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights occasionally do. For example, The European Convention on Human Rights permits restrictions “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” Similarly, the Constitution of India allows “reasonable” restrictions upon free speech to serve “public order, security of State, decency or morality. “

Lastly, the First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights nor the French Declaration of the Rights of Man and of the Citizen contain a similar guarantee.

4.2.2: Freedom of Religion

Freedom of religion is a constitutionally guaranteed right, established in the First Amendment of the Bill of Rights.

Learning Objective

Summarize the meaning of “freedom of religion” in the U.S. constitution

Key Points

The protection of religious freedom is laid out in the First Amendment, which states that Congress cannot establish a state religion nor prohibit free exercise of religion.
The Establishment Clause prevents the U.S. from creating a state or national religion, from favoring one religion over another, or entangling the government with religion.
The Free Exercise Clause gives all Americans the right to practice their religion freely, without interference or persecution by the government.

Key Terms

Bill of Rights: The collective name for the first ten amendments to the United States Constitution.
freedom of religion: The right of citizens to hold any religious or non-religious beliefs, and to carry out any practices in accordance with those beliefs, so long as they do not interfere with another person’s legal or civil rights, or any reasonable laws, without fear of harm or prosecution.
civil liberties: Civil rights and freedoms such as the freedom from enslavement, freedom from torture and right to a fair trial.

The First Amendment

In the United States, freedom of religion is a constitutionally guaranteed right , laid out in the Bill of Rights. The following religious civil liberties are guaranteed by the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ” Thus, freedom of religion in the U.S. has two parts: the prohibition on the establishment of a state religion, and the right of all citizens to practice their religion.

Monument to the Right to Worship

This monument in Washington, DC honors the right to worship. The inscription reads, “Our liberty of worship is not a concession nor a privilege, but an inherent right. “

No U.S. State Religion

Many countries have made one religion into the established (official) church, and support it with government funds . In what is called the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”), Congress is forbidden from setting up, or in any way providing for, an established church. It has been interpreted to forbid government endorsement of, or aid to, religious doctrines. The Federal Government may not establish a national church or religion or excessively involve itself in religion, particularly to the benefit of one religion over another.

No State Religion

The Establishment Clause of the First Amendment prohibits the creation of a state religion in the U.S. Other countries have had state religions; for instance, the Church of England once dominated religious and political life (former Anglican church depicted here).

Freedom to Practice Religion

In addition to the rights afforded under the Establishment Clause, the Free Exercise Clause of the First Amendment protects the rights of citizens to practice their religions. This clause states that Congress cannot “prohibit the free exercise” of religious practices.

Incorporation of the First Amendment

The Supreme Court has interpreted the 14^th Amendment as applying the First Amendment’s provisions on the freedom of religion to states as well as to the Federal Government. Therefore, states must guarantee freedom of religion in the same way the Federal Government must. Many states have freedom of religion established in their constitution, though the exact legal consequences of this right vary for historical and cultural reasons.

Most states interpret “freedom of religion” as including the freedom of long-established religious communities to remain intact and not be destroyed. By extension, democracies interpret “freedom of religion” as the right of each individual to freely choose to convert from one religion to another, mix religions, or abandon religion altogether.

4.2.3: The Establishment Clause: Separation of Church and State

As part of the First Amendment’s religious freedom guarantees, the Establishment Clause requires a separation of church and state.

Learning Objective

Distinguish the Establishment Clause from other clauses of the First Amendment

Key Points

The Establishment Clause prohibits the creation of a national religion, and also prohibits the US government from favoring one religion over another or excessively entangling itself with religious issues or groups.
Thomas Jefferson is often cited as being the one who introduced the concept of the separation of church and state.
The Establishment Clause has been incorporated against the states via the Fourteenth Amendment. However, the process has been tricky, as it is argued that the Fourteenth Amendment speaks to individual rights, while the Establishment Clause does not.
The Supreme Court has made judgments on three main questions: can the US government give financial assistance to religious groups? Is state-sanctioned prayer in public schools acceptable? Are religious displays in government-affiliated places acceptable?
The “Lemon Test,” established by Lemon v. Kurtzman (1971) provided a three-part test for determining whether or not a law or act violates the Establishment Clause.

Key Terms

Lemon Test: a method of measuring weather a government action violates the Establishment Clause of the United States’ constitution concerning religion. To pass the test, the action must have a secular legislative purpose, must not have the primary effect of either advancing or inhibiting religion, and must not result in an “excessive government entanglement” with religion.
Thomas Jefferson: Thomas Jefferson (April 13, 1743 (April 2, 1743 O.S.) – July 4, 1826) was an American Founding Father, the principal author of the Declaration of Independence (1776) and the third President of the United States (1801–1809).
First Amendment: The first of ten amendments to the constitution of the United States, which protects freedom of religion, speech, assembly, and the press.
separation of church and state: The distance in the relationship between organized religion and the nation state.
establishment clause: a pronouncement in the First Amendment to the U.S. Constitution which prohibits both the establishment of a national religion by Congress, and the preference by the U.S. government of one religion over another

The Establishment Clause

The Establishment Clause in the First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion. ” Together with the Free Exercise Clause (“… or prohibiting the free exercise thereof”), these two clauses make up what are called the “religion clauses” of the First Amendment.

The Establishment Clause has generally been interpreted to prohibit (1) the establishment of a national religion by Congress, or (2) the preference by the U.S. government of one religion over another. The first approach is called the “separation” or “no aid” interpretation, while the second approach is called the “non-preferential” or “accommodation” interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government’s entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.

The “Wall of Separation”

Thomas Jefferson wrote that the First Amendment erected a “wall of separation between church and state”, likely borrowing the language from Roger Williams, founder of the Colony of Rhode Island . James Madison, often regarded as the “Father of the Bill of Rights”, also often wrote of the “perfect separation”, “line of separation”, and “total separation of the church from the state. “

Thomas Jefferson

Founding Father and Third President of the United States. Thomas Jefferson’s phrase “the wall of separation,” is often quoted in debates on the Establishment Clause and the separation of church and state.

Incorporation of the Establishment Clause

Incorporation of the Establishment Clause in 1947 has been tricky and subject to much more critique than incorporation of the Free Exercise Clause. The controversy surrounding Establishment Clause incorporation primarily stems from the fact that one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding.

Critics have also argued that the Due Process Clause of the Fourteenth Amendment is understood to incorporate only individual rights found in the Bill of Rights; the Establishment Clause, unlike the Free Exercise Clause (which critics readily concede protects individual rights), does not purport to protect individual rights.

Controversy Over the Establishment Clause

Controversy rages in the United States between those who wish to restrict government involvement with religious institutions and remove religious references from government institutions and property, and those who wish to loosen such prohibitions. Advocates for stronger separation of church and state emphasize the plurality of faiths and non-faiths in the country, and what they see as broad guarantees of the federal Constitution. Their opponents emphasize what they see as the largely Christian heritage and history of the nation (often citing the references to “Nature’s God” and the “Creator” of men in the Declaration of Independence).

Main Questions of the Establishment Clause

One main question of the Establishment Clause is: does government financial assistance to religious groups violate the Establishment Clause? The Supreme Court first considered this issue in Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible.

Another main question is: should state-sanctioned prayer or religion in public schools be allowed? The Supreme Court has consistently held fast to the rule of strict separation of church and state in this issue. In Engel v. Vitale (1962) the Court ruled that government-imposed nondenominational prayer in public school was unconstitutional. In Lee v. Weisman (1992), the Court ruled prayer established by a principal at a middle school graduation was also unconstitutional, and in Santa Fe Independent School Dist. v. Doe (2000) it ruled that school officials may not directly or indirectly impose student-led prayer during high school football games .

Pledge of Allegiance

In 2002, controversy centered on a California court case that struck down a law providing for the recitation of the Pledge of Allegiance (which includes the phrase “under God”) in classrooms. Congress and the Supreme Court eventually overturned the ruling, demonstrating the controversy that exists in the interpretations of the Establishment Clause.

Lastly, are religious displays in public places allowed under the Establishment Clause? The inclusion of religious symbols in public holiday displays came before the Supreme Court in Lynch v. Donnelly (1984), and again in Allegheny County v. Greater Pittsburgh ACLU (1989). In the former case, the Court upheld a public display, ruling that any benefit to religion was “indirect, remote, and incidental. ” In Allegheny County, however, the Court struck down a display that had more overt religious themes .

Religious Displays

In 2001, the Chief Justice of Alabama installed a monument to the Ten Commandments in the state judicial building (pictured here). In 2003, a court case determined that this was not allowed under the Establishment Clause.

The Lemon Test

The distinction between force of government and individual liberty is the cornerstone of such cases. Each case restricts acts by government designed to establish a religion, while affirming peoples’ individual freedom to practice their religions. The Court has therefore tried to determine a way to deal with church/state questions. In Lemon v. Kurtzman (1971), the Court created a three part test for laws dealing with religious establishment. This determined that a law related to religious practices was constitutional if it:

Had a secular purpose;
Neither advanced nor inhibited religion; and,
Did not foster an excessive government entanglement with religion.

4.2.4: The Free Exercise Clause: Freedom of Religion

The Free Exercise Clause of the First Amendment establishes the right of all Americans to freely practice their religions.

Learning Objective

Describe how the interpretation of the Free Exercise clause has changed over time.

Key Points

The Free Exercise Clause and the Establishment Clause (which essentially establishes the separation of church and state), compose the provisions on religious freedom in the First Amendment of the Bill of Rights.
The interpretation of the Free Exercise Clause has narrowed and widened throughout the past decades. In the late 1800s, the Supreme Court took the view that it acceptable for the government to pass neutral laws that may incidentally impact certain religions.
During the time of the Warren Court in the 1960s, the Supreme Court took the view that there must be a “compelling interest” in order for religious freedom to be restricted.
In the 1990s, the Supreme Court moved away from this strict interpretation of the Free Exercise Clause, and removed the idea that there had to be a “compelling interest” in order to violate religious freedom.
Jehovah Witnesses have been involved in a lot of litigation related to the Free Exercise Clause and, consequently, have helped define its limits.

Key Terms

strict scrutiny: The most stringent standard of legal review in American courts, used to evaluate the constitutionality of laws and government programs.
Warren Court: The Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, expanding civil rights, civil liberties, judicial power, and the federal power.
Jehovah’s Witnesses: A monotheistic and nontrinitarian Restoration Christian denomination founded in 1879 as a small Bible study group.
free exercise clause: the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution, which prohibits Congress from interfering with the practices of any religion

The Free Exercise Clause

The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Thus, the Establishment Clause prevents the US from establishing or advocating for a specific religion, while the Free Exercise clause is intended to ensure the rights of Americans to practice their religions without state intervention . The Supreme Court has consistently held, however, that the right to free exercise of religion is not absolute, and that it is acceptable for the government to limit free exercise in some cases.

Church and Political Socialization

Participation in organized religion or church attendance can be another important source of political socialization, as churches often teach certain political values.

Interpreting the Free Exercise Clause

The history of the Supreme Court’s interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention. Then it took on a relatively narrow view of the governmental restrictions required under the clause. The 1960s saw it grow into a much broader view and later receding again.

In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds’ conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. This case, which also revived Thomas Jefferson’s statement regarding the “wall of separation” between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.

This interpretation of the Free Exercise Clause continued into the 1960s. With the ascendancy of the Warren Court under Chief Justice Earl Warren, a new standard of “strict scrutiny” in various areas of civil rights law was applied. The Court established many requirements that had to be met for any restrictions of religious freedom. For example, in Sherbert v. Verner (1963), the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.

This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug’s use as part of a religious ritual . In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the compelling interest requirement applied in Sherbert v. Yoder. In another case in 1997, the Court struck down the provisions of the Act on the grounds that, while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.

Peyote Cactus

Native Americans used peyote (a cactus that has psychedelic effects when ingested) in spiritual rituals. In 1990, the Supreme Court banned the use of this drug, demonstrating a move away from the requirement to show “compelling interest” before limiting religious freedom.

Jehovah’s Witnesses Cases

During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah’s Witnesses . Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. For example, the first important victory came in 1938 with Lovell v. City of Griffin. The Supreme Court held that cities could not require permits for the distribution of pamphlets.

Jehovah’s Witnesses

The specific beliefs and practices (such as a belief in door-to-door proselytizing, depicted here) of the Jehovah’s Witnesses has meant that Jehovah’s Witnesses’ litigation has played a key role in defining the Free Exercise Clause of the First Amendment.

4.2.5: Freedom of Speech

The freedom of speech is a protected right under the First Amendment, and while many categories of speech are protected, there are limits.

Learning Objective

Explain how freedom of speech is protected by the United States Constitution

Key Points

The Bill of Right’s provision on the freedom of speech was incorporated against the states in Gitlow v. New York (1925).
Core political speech, expressive speech, and most types of commercial speech are protected under the First Amendment.
Certain types of speech (particularly, speech that can harm others) is not protected, such as obscenity, fighting words, true threats, child pornography, defamation, or invasion of privacy. Speech related to national security or state secrets may also not be protected.

Key Terms

defamation: Act of injuring another’s reputation by any slanderous communication, written or oral; the wrong of maliciously injuring the good name of another; slander; detraction; calumny; aspersion.
fighting words: agressive words that forseeably may lead to potentially violent confrontation; in law, often considered mitigation for otherwise sanctionable behavior (fighting)
freedom of speech: The right of citizens to speak, or otherwise communicate, without fear of harm or prosecution.
prior restraint: censorship imposed, usually by a government, on expression before the expression actually takes place
slander: a false, malicious statement (spoken or published), especially one which is injurious to a person’s reputation; the making of such a statement

Freedom of Speech

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions as well.

Protesting for Freedom of Speech

This individual is protesting for the right to speak freely. Freedom of speech is a closely guarded liberty in American society.

The freedom of speech is not absolute. The Supreme Court of the United States has recognized several categories of speech that are excluded, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.

Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted. There are exceptions to these general protections. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance.

Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence.

Incorporation of Freedom of Speech

Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court used the incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from enacting such laws.

Protected Speech

The following types of speech are protected:

Core political speech. Political speech is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.
Commercial speech. Not wholly outside the protection of the First Amendment is speech motivated by profit, or commercial speech. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state.
Expressive speech. The Supreme Court has recently taken the view that freedom of expression by non-speech means is also protected under the First Amendment. In 1968 (United States v. O’Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech.

Type of Free Speech Restrictions

The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.

Content-based restrictions. Restrictions that require examining the content of speech to be applied must pass strict scrutiny. Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court’s special exceptions.
Time, place, or manner restrictions. Time, place, or manner restrictions must withstand intermediate scrutiny. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another).
Prior restraint. If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what’s illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would “surely result in direct, immediate and irreparable damage to our Nation and its people. “

Exceptions to Free Speech

Certain exceptions to free speech exist, usually when it can be justified that restricting free speech is necessary to protect others from harm. These restrictions are controversial, and have often been litigated at all levels of the United States judiciary. These restrictions can include include the incitement to crime (such as falsely yelling “Fire! ” in a crowded movie theater); fighting words (which are words that are likely to induce the listener to get in a fight); true threats; obscenity; child pornography; defamation; invasion of privacy; intentional infliction of emotional distress; or certain kinds of commercial, government, or student speech. Speech related to national security, military secrets, inventions, nuclear secrets or weapons may also be restricted.

The flag of the United States is sometimes symbolically burned, often in protest of the policies of the American government, both within the country and abroad. The United States Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989), and reaffirmed in U.S. v. Eichman, 496 U.S. 310 (1990), has ruled that due to the First Amendment to the United States Constitution, it is unconstitutional for a government (whether federal, state, or municipality) to prohibit the desecration of a flag, due to its status as “symbolic speech. ” However, content-neutral restrictions may still be imposed to regulate the time, place, and manner of such expression.

Free Speech Zones

The government may set up time, place, or manner restrictions to free speech. This image is a picture of the free speech zone of the 2004 Democratic National Convention.

4.2.6: Freedom of the Press

The First Amendment guarantees the freedom of the press, which includes print media as well as any other source of information or opinion.

Learning Objective

Indicate the role the Freedom of the Press in the U.S. Constitution and discuss violations to and restrictions of it

Key Points

In a free press, those who own the press or the media have the right to print or say what they want, without persecution or any interference from the government.
In the late 1800’s and early 1900’s, the U.S. government violated its guarantee of a free press by prosecuting Civil War era newspapers and passing the Espionage and Sedition Acts of 1917 and 1918. The Supreme Court argued that a “clear and present danger” justified this suppression.
In recent times, controversy over free press has been related to WikiLeaks, censoring of U.S. military members’ blogs, and “obscenity” censorship of TV and radio by the FCC.

Key Terms

federal communications commission: A U.S. wireless regulatory authority. The FCC was established by the Communications Act of 1934 and is charged with regulating Interstate and International communications by radio, television, wire, satellite, and cable.
Alien and Sedition Acts: Four bills passed in 1798 in the U.S. Congress in the aftermath of the French Revolution and during an undeclared naval war with France. They granted the federal government more power in dealing with political dissidents.
WikiLeaks: WikiLeaks is an international, online, self-described not-for-profit organization that publishes submissions of secret information, news leaks, and classified media from anonymous news sources and whistleblowers.

Freedom of the Press

Freedom of the press in the United States is protected by the First Amendment to the United States Constitution . This clause is generally understood to prohibit the government from interfering with the printing and distribution of information or opinions. However, freedom of the press, like freedom of speech, is subject to some restrictions such as defamation law and copyright law .

Freedom of the Press Worldwide

The First Amendment to the Constitution guarantees Americans the right to a free press. This is something that many other countries do not enjoy, as this map illustrates.

Freedom of the Press

Freedom of the press is a primary civil liberty guaranteed in the First Amendment.

In Lovell v. City of Griffin, Chief Justice Hughes defined the press as, “every sort of publication which affords a vehicle of information and opinion. ” This includes everything from newspapers to blogs . The individuals, businesses, and organizations that own a means of publication are able to publish information and opinions without government interference. They cannot be compelled by the government to publish information and opinions that they disagree with. For example, the owner of a printing press cannot be required to print advertisements for a political opponent, even if the printer normally accepts commercial printing jobs.

Blogs and Free Press

Not just print media is protected under the freedom of the press; rather, all types of media, such as blogs, are protected.

Incorporation of the Freedom of the Press

In 1931, the U.S. Supreme Court decision in Near v. Minnesota used the 14^th Amendment to apply the freedom of the press to the states.

Violations of the Freedom of the Press in U.S. History

In 1798, not long after the adoption of the Constitution, the governing Federalist Party attempted to stifle criticism with the Alien and Sedition Acts. These restrictions on freedom of the press proved very unpopular in the end and worked against the Federalists, leading to the party’s eventual demise and a reversal of the Acts.

In 1861, four newspapers in New York City were all given a presentment by a Grand Jury of the United States Circuit Court for “frequently encouraging the rebels by expressions of sympathy and agreement. ” This started a series of federal prosecutions of newspapers throughout the northern United States during the Civil War which printed expressions of sympathy for southern causes or criticisms of the Lincoln Administration.

The Espionage Act of 1917 and the Sedition Act of 1918 imposed restrictions on free press during wartime. In Schenck v. United States (1919), the Supreme Court upheld the laws and set the “clear and present danger” standard. In other words, the Supreme Court argued that a “clear and present danger,” like wartime, justified specific free press restrictions. Congress repealed both laws in 1921. Brandenburg v. Ohio (1969) revised the “clear and present danger” test to the “imminent lawless action” test, which is less restrictive.

Regulating Press and Media Content

The courts have rarely treated content-based regulation of journalism with any sympathy. In Miami Herald Publishing Co. v. Tornillo (1974), the court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment. So, it ruled that the government may not force newspapers to publish that which they do not desire to publish.

However, content-based regulation of television and radio has been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis. In Federal Communications Commission v. Pacifica Foundation (1978), the Supreme Court upheld the Federal Communications Commission’s authority to restrict the use of “indecent” material in broadcasting.

Recent Restrictions to Freedom of the Press

Some of the recent issues in restrictions of free press include: the U.S. military censoring blogs written by military personnel; the Federal Communications Commission censoring television and radio, citing obscenity; Scientology suppressing criticism, citing freedom of religion; and censoring of WikiLeaks at the Library of Congress. There has also been some controversy over the U.S. government’s position that the media does not have the right to not reveal its sources. There are other critiques that claim the “war on terror” has been a pretext for further restrictions on free press.

4.2.7: Freedom of Assembly and Petition

The First Amendment establishes the right to assembly and the right to petition the government.

Learning Objective

Recognize the role of the Right to Petition clause in the Constitution.

Key Points

The right to assembly guarantees that Americans have the right to peaceably come together to protest, and also have the right to come together to express and pursue collective interests.
The right to petition gives citizens the right to appeal to the government to change its policies. It gives citizens the right to stand up for something they think is wrong, or support certain legislation, etc. that can help right those wrongs.
The right to petition and assembly are interconnected, as they both relate to the freedom of expression. However, the right to assembly protects citizens’ rights to come together, while the right to petition protects citizens’ rights to address the government.

Key Terms

right to petition: The right of citizens of the United States to freely petition the government to address particular grievances or for any reason.
Alien and Sedition Acts: Four bills passed in 1798 in the U.S. Congress in the aftermath of the French Revolution and during an undeclared naval war with France. They granted the federal government more power in dealing with political dissidents.
freedom of assembly: The right of citizens of the United States to freely congregate or assemble anywhere should they desire.

Right to Petition

The Petition Clause in the First Amendment states, “Congress shall make no law… abridging … the right of the people… to petition the government for a redress of grievances. ” The Petition Clause prohibits Congress from restricting the people’s right to appeal to government in favor of or against policies that affect them or about which they feel strongly, including the right to gather signatures in support of a cause and to lobby legislative bodies for or against legislation. A simplified definition of the right to petition is: the right to present requests to the government without punishment or reprisal.

Petition can be used to describe, “any nonviolent, legal means of encouraging or disapproving government action, whether directed to the judicial, executive, or legislative branch. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause.”

The right to petition grants people not only the freedom to stand up and speak out against injustices they feel are occurring, but also grants the power to help change those injustices. It is important to note that in response to a petition from a citizen or citizens, the government is not required to actually respond to or address the issue. Under the Petition Clause, the government is only required to provide a way for citizens to petition, and a method in which they will receive the petition.

Limiting the Right to Petition

In the past, Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835, the House of Representatives adopted the Gag Rule, barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws were punished—again, the Supreme Court did not rule on the matter.

Freedom of Assembly and Association

Freedom of Assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue, and defend common interests . The right to freedom of association is recognized as a human and political right, and a civil liberty. Freedom of assembly and freedom of association may be used to distinguish between the freedom to assemble in public places and the freedom of joining an association, but both are recognized as rights under the First Amendment’s provision on freedom of assembly.

Civil Rights Movement

The right to assembly protects citizens’ rights to gather together to peacefully protest. This right was frequently exercised during the Civil Rights Movement (depicted here).

Freedom of Assembly and Right to Petition

The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank (1875), the Supreme Court held that “the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States. ” Justice Waite’s opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions. The right to petition is generally concerned with expression directed to the government seeking redress of a grievance, while the right to assemble is speaking more so to the right of Americans to gather together.

4.3: The Second Amendment: The Right to Bear Arms

4.3.1: The Second Amendment

The Second Amendment gives the right to bear arms, and can arguably apply to individuals or state militias depending on interpretation.

Learning Objective

Summarize the key provision of the Second Amendment and the two rival interpretations of its application

Key Points

The Second Amendment is part of the US Bill of Rights.
It gives the right to bear arms in the US, especially for the organization of state militias.
The right to bear arms was originally seen as a check against the potential tyranny of the new Federal government as well as foreign invasion.
In the 20th and 21st centuries, there have been conflicts between collective and individual interpretations of the amendment.
Recent Supreme Court rulings have leaned towards the individual right to bear arms outside of a militia for other legal uses.

Key Term

militias: militia or irregular army is a military force composed of ordinary citizens to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service.

The Second Amendment: The Right to Bear Arms

The Second Amendment to the US constitution was adopted in 1791 as part of the US Bill of Rights. At the time that the amendment was written, there was controversy around the question of state versus federal rights. Anti-federalists were concerned that the new US government would be able to maintain a standing army, which might be temptation to abuse power. The right to bear arms was seen as a check against tyranny, both domestic and foreign, and was designed to help states easily raise organized militias.

Minute Man

Ideals that helped to inspire the Second Amendment are in part symbolized by the minutemen, civilian colonists who independently organized to form well-prepared militia companies self-trained in weaponry, tactics, and military strategies from the American colonial partisan militia during the American Revolutionary War.

In the 20^th century, the wording of Second Amendment has been the focus of controversy. The amendment reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. ” In some interpretations of the bill the right to bear arms is a collective right, exclusively or primarily given to states to arm a militia. Others interpret it as an individual right enabling people to keep and bear arms outside of any organization for other lawful uses.

Recent Supreme Court rulings, including the District of Columbia v. Heller (2008) have leaned towards the individual interpretation of the amendment. This ruling overturned Washington D.C.’s legislation that banned handguns in personal homes. In McDonald v. Chicago (2010), the Supreme Court ruled that Second Amendment rights could not be limited by state or local governments. However, in both cases the court has still ruled that governments can put some restrictions on gun ownership even if they can not ban it outright.

4.4: The Right to Privacy

4.4.1: The Right to Privacy

The Right to Privacy was an article that advocated for the protection of a citizen’s private matters.

Learning Objective

Examine the historical roots of the right to privacy as a legal concept

Key Points

The right to privacy noted that it had been found necessary to define anew the exact nature and extent of the individual’s protections of person and property. It stated that the scope of such legal rights broadened over time to now include the right to enjoy life and be let alone.
The article notes that defenses within the law of defamation, the truthfulness of the information published, or the absence of the publisher’s malice, should not be defenses.
Although the word “privacy” is actually never used in the text of the United States Constitution, there are Constitutional limits to the government’s intrusion into individuals’ right to privacy.

Key Terms

common law: A legal system that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions.
tort: A wrongful act, whether intentional or negligent, that causes an injury and can be remedied at civil law, usually through awarding damages. A delict.
law of defamation: In the United States, a comprehensive discussion of what is and is not libel or slander is difficult because the definition differs between different states. Some states codify what constitutes slander and libel together into the same set of laws.

Example

The Supreme Court recognized the 14th Amendment as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in Griswold v. Connecticut, a 1965 decision protecting a married couple’s rights to contraception. It was recognized again in 1973 Roe v. Wade, which invoked the right to privacy to protect a woman’s right to an abortion.

Background

United States privacy law embodies several different legal concepts. One is the invasion of privacy. It is a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain.

The Right to Privacy is a law review article written by Samuel Warren and Louis Brandeis. It was published in the 1890 Harvard Law Review. It is one of the most influential essays in the history of American law. The article is widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a right to be left alone. It was written primarily by Louis Brandeis although credited to both men, on a suggestion of Warren based on his deep-seated abhorrence of the invasions of social privacy. William Prosser, in writing his own influential article on the privacy torts in American law, attributed the specific incident to an intrusion by journalists on a society wedding. However, in truth it was inspired by more general coverage of intimate personal lives in society columns of newspapers.

Harvard Law Review, Right to Privacy

The Right to Privacy was published at the Harvard Law Review in 15 December, 1890.

Defining the Necessity of the Right to Privacy

The authors begin the article by noting that it has been found necessary from time to time to define anew the exact nature and extent of the individual’s protections of person and property. The article states that the scope of such legal rights broadens over time — to now include the right to enjoy life — the right to be left alone.

Then the authors point out the conflicts between technology and private life. They note that recent inventions and business methods, such as instant pictures and newspaper enterprise have invaded domestic life, and numerous mechanical devices may make it difficult to enjoy private communications.

The authors discuss a number of cases involving photography, before turning to the law of trade secrets. Finally, they conclude that the law of privacy extends beyond contractual principles or property rights. Instead, they state that it is a right against the world.

Remedies and Defenses

The authors consider the possible remedies available. They also mention the necessary limitations on the doctrine, excluding matters of public or general interest, privileged communications such as judicial testimony, oral publications in the absence of special damage, and publications of information published or consented to by the individual. They pause to note that defenses within the law of defamation — the truthfulness of the information published or the absence of the publisher’s malice — should not be defenses. Finally, they propose as remedies the availability of tort actions for damages and possible injunctive relief.

Modern Tort Law

In the United States today, “invasion of privacy” is a commonly used cause of action in legal pleadings. Modern tort law includes four categories of invasion of privacy:

Intrusion of solitude: physical or electronic intrusion into one’s private quarters
Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory
Appropriation: the unauthorized use of a person’s name or likeness to obtain some benefits.

Constitutional basis for right to privacy

The Constitution only protects against state actors. Invasions of privacy by individuals can only be remedied under previous court decisions.

The Fourth Amendment to the Constitution of the United States ensures the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The First Amendment protects the right to free assembly, broadening privacy rights. The Ninth Amendment declares the fact that if a right is not explicitly mentioned in the Constitution it does not mean that the government can infringe on that right. The Supreme Court recognized the 14^th Amendment as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in Griswold v. Connecticut, a 1965 decision protecting a married couple’s rights to contraception. It was recognized again in 1973 Roe v. Wade, which invoked the right to privacy in order to protect a woman’s right to an abortion.

4.4.2: Privacy Rights and Abortion

Abortion rights are can be determined by state courts and the Supreme Court and still continues to be a highly debated right for women.

Learning Objective

Identify the legal court cases that established abortion as a right to privacy and discuss the recent cases and policies that have challenged individuals’ legal right to abortion

Key Points

Abortion in the United States has been legal in every state since the 1973 Supreme Court decision Roe v. Wade. Prior to the ruling, the legality of abortion was decided by each state; it was illegal in 30 states and legal under certain cases in 20 states.
The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a federal law entitled the Partial-Birth Abortion Ban Act of 2003, which President George W. Bush had signed into law.
Voter opposition to these ballot initiatives has proven to be far stronger than the support, despite the fact that American citizens poll as being much more evenly divided on the issue of abortion.

Key Term

trigger laws: It is a nickname for a law that is unenforceable and irrelevant in the present, but may achieve relevance and enforceability if a key change in circumstances occurs.

Example

North Dakota HB 1572 or the Personhood of Children Act, which passed the North Dakota House of Representatives on February 18, 2009, but was later defeated in the North Dakota Senate, aimed to allocate rights to the pre-born, partially born, and if passed, would likely have been used to challenge Roe v. Wade.

Background

Abortion in the United States has been legal in every state since the 1973 Supreme Court decision Roe v. Wade. Prior to the ruling, the legality of abortion was decided by each state; it was illegal in 30 states and legal under certain cases in 20 states. Roe established that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

Before Roe v. Wade, abortion was legal in several areas of the country, but that decision imposed a uniform framework for state legislation on the subject, and established a minimal period during which abortion must be legal (under greater or lesser degrees of restriction throughout the pregnancy). That basic framework, modified in Casey, remains nominally in place, although the effective availability of abortion varies significantly from state to state. Abortion remains one of the most controversial topics in United States culture and politics.

Later judicial decisions

In the 1992 case of Planned Parenthood v. Casey, the Court abandoned Roe’s strict trimester framework. Instead adopting the standard of undue burden for evaluating state abortion restrictions, but reemphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution: “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law. ” The controlling word in the cases before us is “liberty. “

The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a federal law entitled the Partial-Birth Abortion Ban Act of 2003 , which President George W. Bush had signed into law. The law banned intact dilation and extraction, which opponents of abortion rights referred to as “partial-birth abortion,” and stipulated that anyone breaking the law would get a prison sentence up to 2.5 years. The United States Supreme Court upheld the 2003 ban by a narrow majority of 5-4, marking the first time the Court has allowed a ban on any type of abortion since 1973. Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and Chief Justice John Roberts, joined the swing vote, which came from moderate justice Anthony Kennedy.

Signing the Partial-Birth Abortion ban.

The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls “partial-birth abortion”, often referred to in medical literature as intact dilation and extraction.

State-by-state legal status

Various states have passed legislation on the subject of feticide. On March 6, 2006, South Dakota Governor Mike Rounds signed into law a pro-life statute, which made performing abortions a felony, and that law was subsequently repealed in a November 7, 2006 referendum. On February 27, 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation. Several states have enacted trigger laws, which would take effect if Roe v. Wade were overturned. North Dakota HB 1572 or the Personhood of Children Act, which passed the North Dakota House of Representatives on February 18, 2009, but was later defeated in the North Dakota Senate, aimed to allocate rights to the pre-born, partially born, and if passed, would likely have been used to challenge Roe v. Wade.

Voter opposition to these ballot initiatives has proven to be far stronger than the support, despite the fact that American citizens poll as being much more evenly divided on the issue of abortion. Other states are considering personhood amendments banning abortion, some through legislative methods and others through citizen initiative campaigns. Among these states are Florida, Ohio, Georgia, Texas, and Arkansas.

4.4.3: Privacy Rights and National Security

National security practices impact privacy rights for the well-being and domestic security of the United States.

Learning Objective

Explain the underlying tension between national security and civil liberties, identifying the historical roots and institutionalization of the concept of national security

Key Points

The U.S. National Security Act of 1947 was set up to advise the President on the integration of domestic, military and foreign policies relating to national security.
The measures adopted to maintain national security has led to ongoing dialectic on the role of authority in matters of civil and human rights.
If the exercise of national security laws is not subject to good governance, the rule of law, and strict checks and balances, national security may simply serve as a pretext for suppressing unfavorable political and social views.

Key Terms

rule of law: The doctrine that no individual is above the law and that everyone must answer to it.
dystopia: A miserable, dysfunctional state or society that has a very poor standard of living.
Orwellian: An over-controlling government that interferes in nearly every aspect of personal life. The term refers to George Orwell, the author of the fictional 1984, written in 1949, which predicted a future with a “big brother” government.

Example

In the United States, the controversial USA Patriot Act has raised two main questions – to what extent should individual rights and freedoms be restricted and can the restriction of civil rights for the sake of national security be justified?

Background

The concept of national security became an official guiding principle of foreign policy in the United States when U.S. President Harry S. Truman signed the National Security Act of 1947 on July 26, 1947.

Together with its 1949 amendment, this act stood as the precursor to the Department of Defense. It also established the National Security Council and the Central Intelligence Agency, while subordinating the military branches to the Secretary of Defense. The Act did not define national security. Its ambiguity made it a powerful phrase to invoke whenever issues threatened by other interests of the state came up for discussion and decision.

The realization that national security encompasses more than just military security was present early on. The U.S. National Security Act of 1947 was set up to advise the President on the integration of domestic, military and foreign policies relating to national security.

Rights and Freedoms Under National Security

The measures adopted to maintain national security in the face of threats to society has led to ongoing dialectic, particularly in liberal democracies, on the appropriate scale and role of authority in matters of civil and human rights.

Tension exists between preservation of rights and freedoms of individuals. Although national security measures are imposed to protect society as a whole, many such measures will restrict the rights and freedoms of all individuals in society. The concern is that where the exercise of national security laws is not subject to good governance, the rule of law, and strict checks and balances, national security may simply serve as a pretext for suppressing unfavorable political and social views. Taken to its logical conclusion, this view contends that measures like mass surveillance and censorship of mass media could ultimately lead to an Orwellian dystopia.

In the United States, the politically controversial USA Patriot Act and other government action has raised two main questions – to what extent should individual rights and freedoms be restricted and can the restriction of civil rights for the sake of national security be justified?

Bush signs USA PATRIOT Improvement and Reauthorization Act

United States President George W. Bush shakes hands with U.S. Senator Arlen Specter after signing H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005 in the East Room of the White House

4.4.4: Privacy Rights and the Right to Die

There is a wide range of public opinion about the right-to-die movement in the United States, yet It is only legal in a few states.

Learning Objective

Compare and contrast euthanasia and physician aid-in-dying

Key Points

The key difference between euthanasia and PAD is in who administers the lethal dose of medication. Euthanasia requires the physician or another third party to administer the medication.
The process of physician assisted suicide, set forth in law, includes requirements that the patient must be of sound mind when requesting assisted suicide as confirmed by a doctor and other witnesses, and the patient must be diagnosed with a terminal illness.
The Oregon Death with Dignity Act and the Washington statute modeled after it, set certain requirements and safeguards before a person may commit suicide with a doctor’s assistance. The patient must be of sound mind when they request a prescription for a lethal dose of medication.

Key Term

Euthanasia: The act of putting a person or animal to death painlessly or allowing death if suffering from an incurable and painful condition.

Example

The state of Washington voters saw Ballot Initiative 119 in 1991, the state of California placed Proposition 161 on the ballot in 1992, Oregon voters passed Measure 16 (Death with Dignity Act) in 1994, the state of Michigan included Proposal B in their ballot in 1998, and Washington’s Initiative 1000 passed in 2008.

Background

Euthanasia is illegal in all states of the United States. Physician aid-in-dying (PAD), or assisted suicide, is legal in the states of Washington, Oregon, and Montana. The key difference between euthanasia and PAD is who administers the lethal dose of medication. Euthanasia requires the physician or another third party to administer the medication, whereas PAD requires the patient to self-administer the medication and to determine whether and when to do this. Attempts to legalize PAD resulted in ballot initiatives and “legislation bills” in the United States in the last 20 years, as follows.

Voters in the state of Washington saw Ballot Initiative 119 in 1991.
The state of California placed Proposition 161 on the ballot in 1992.
Oregon voters passed Measure 16 (Death with Dignity Act) in 1994.
The state of Michigan included Proposal B in their ballot in 1998.
Washington’s Initiative 1000 passed in 2008.

Public Opinion on Euthanasia in the United States

There is a wide range of public opinion about euthanasia and the right-to-die movement in the United States, which reflects their religious and cultural diversity. During the past 30 years, public opinion research shows that views on euthanasia tend to correlate with religious affiliation and culture, though not gender.

Assisted Suicide in the United States

Physician-assisted suicide in the United States is legal in the states of Oregon, Montana, and Washington . The process is set forth in law, including the requirements that the patient must be of sound mind when requesting assisted suicide, as confirmed by a doctor and other witnesses. The patient must also be diagnosed with a terminal illness.

Map of USA highlighting euthanasia states

Map of the United States highlighting states and districts with legalized physician-assisted suicide.

The Oregon Death with Dignity Act and the Washington statute modeled after it, set certain requirements and safeguards before a person may commit suicide with a doctor’s assistance. The patient must be of sound mind when they request a prescription for a lethal dose of medication. Two doctors must confirm a diagnosis of terminal illness with no more than six months to live. Two witnesses, one non-doctor unrelated to the patient, must confirm the patient’s request, and the patient must make a second request after 15 days.

4.4.5: Privacy Rights and Sexuality

Rights to sexuality allow people in the United States to express sexual orientation without discrimination.

Learning Objective

Identify the legal cases and national legislation that protects people on the grounds of sexual orientation

Key Points

The right to sexuality, and to freedom from discrimination on the grounds of sexual orientation, is based on the universality of human rights belonging to every person by virtue of being human.
Same-sex sexual acts between consenting adults of the same sex (depending on the age of consent in each state, varying from age 16 to 21), and adolescents of a close age, have been legal nationwide in the U.S. since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas.
Hate crimes based on sexual orientation or gender identity are punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.

Key Term

sexual orientation: It describes an enduring pattern of attraction—emotional, romantic, sexual, or some combination of these—to the opposite sex, the same sex, or both sexes, and the genders that accompany them.

Example

Family and anti-discrimination laws vary by state. States had different laws on the legalization of same-sex marriage until the Supreme Court 5-4 ruling in 2015. In Obergefell v. Hodges, the court said a fundamental right to marry is guaranteed by the Equal Protection Clause of the 14th Amendment, therefore the laws banning such marriages in 14 states were unconstitutional.

Background

The right to sexuality incorporates the right to express one’s sexuality, and to be free from discrimination on the grounds of sexual orientation. It specifically refers to the protection of the rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people (although it is equally applicable to heterosexuality). The right to sexuality, and to freedom from discrimination on the grounds of sexual orientation, is based on the universality of human rights belonging to every person by virtue of being human.

Transgender Symbol

From the female and male symbols. Intersexual or transgender.

The right to sexuality does not exist explicitly in international human rights law; rather, it is found in a number of international human rights instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

LGBT Rights in the United States

Lesbian, gay, bisexual, and transgender rights in the United States have evolved over time and vary on a state-by-state basis. Sexual acts between consenting adults of the same sex (depending on the age of consent in each state, varying from age 16 to 21), and adolescents of a close age, have been legal nationwide in the U.S. since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas.

Twenty-one states plus Washington, D.C. outlaw discrimination based on sexual orientation, and sixteen states plus Washington, D.C. outlaw discrimination based on gender identity or expression. Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.

Adoption policies in regard to LGBT parents also varied greatly from state to state, but since March 2016, a federal judge in Mississippi overturned the last remaining state law that prohibited such adoptions.

4.5: The Rights of the Accused

4.5.1: The Rights of the Accused

The rights of the accused include the right to a fair trial; due process; and the right to privacy.

Learning Objective

Identify key first-generation human rights and civil and political rights

Key Points

The rights of the accused are: the right to a fair trial; due process; to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.
Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion).
Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt.

Key Terms

criminal procedure: The legal process for adjudicating claims that someone has violated criminal law.
first-generation rights: First-generation human rights, often called “blue” rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights. The idea of three levels of human rights dates to 1979 and is primarily used in European law. This term is rarely, if ever, used in the U.S.
civil and political rights: Civil and political rights are a class of rights based upon birthright into a polity or designation otherwise of human rights. They ensure a citizen’s ability to fully participate in the civil and political life of the state without discrimination or political repression, and protect the freedom of classes of persons and individuals from unwarranted infringement into those rights by governments, private organizations, and other entities.

Example

An important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have “full and equal enjoyment of … inns, public conveyances on land or water, theatres, and other places of public amusement. ” In its opinion, the Court promulgated what has since become known as the “state action doctrine,” which limits the guarantees of the equal protection clause only to acts done or otherwise “sanctioned in some way” by the state. Prohibiting blacks from attending plays or staying in inns was “simply a private wrong,” provided, of course, that the state’s law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, “I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. “

Background

The rights of the accused, include the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.

Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defendant prove that s/he is innocent; any doubt is resolved in favor of the defendant. Similarly, all such jurisdictions allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense (which is in some countries called a “court-appointed lawyer”).

First-generation human rights, often called “blue” rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from the excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights.

Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be “first-generation rights”, and the theory of negative and positive rights considers them to be generally negative rights.

Mural, Falls Road, Belfast.

The mural on the ‘International Wall’ depicts Frederick Douglass (1815-1895), a former slave who became one of the foremost leaders of the abolitionist movement which fought to end slavery within the United States in the decades prior to the Civil War. Douglass later served as an adviser to President Abraham Lincoln during the Civil War and fought for the adoption of constitutional amendments that guaranteed voting rights and other civil liberties for blacks. He is still revered today for his contributions against racial injustice.

Civil and political rights are not codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are considered to be natural rights. Thomas Jefferson wrote in his 1774 A Summary View of the Rights of British America “a free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate. “

United States Criminal Procedure

United States criminal procedure derives from several sources of law: the baseline protections of the United States Constitution, federal and state statutes, federal and state rules of criminal procedure (such as the Federal Rules of Criminal Procedure), and state and federal case law either interpreting the foregoing or deriving from inherent judicial supervisory authority.

The United States Constitution, including the United States Bill of Rights and subsequent amendments, contains provisions regarding criminal procedure. Due to the incorporation of the Bill of Rights, all of these provisions apply equally to criminal proceedings in state courts, with the exception of the Grand Jury Clause of the Fifth Amendment, the Vicinage Clause of the Sixth Amendment, and (maybe) the Excessive Bail Clause of the Eighth Amendment.

4.5.2: The Fourth Amendment and Search and Seizure

The Fourth Amendment to the U.S. Constitution is the part of the Bill of Rights guarding against unreasonable searches and seizures.

Learning Objective

Describe the the historical circumstances that generated the Fourth Amendment and the protections the Amendment affords

Key Points

The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights guarding against unreasonable searches and seizures, as well as requiring any warrant to be judicially sanctioned and supported by probable cause.
Police officers are not required to advise a suspect that he/she may refuse a search. There are also some circumstances in which a third party who has equal control, or common authority, over the property may consent to a search.
When an individual does not possess a reasonable expectation of privacy that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search subject to 4th Amendment, and a warrant is never required.

Key Terms

searches and seizures: A legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, conduct a search of a person’s property and confiscate any relevant evidence to the crime.
Bill of Rights: The collective name for the first ten amendments to the United States Constitution.

Example

In the 1946 case of Oklahoma Press Pub. Co. v. Walling, there was a distinction made between a “figurative or constructive search” and an actual search and seizure. The court held that constructive searches are limited by the Fourth Amendment, while actual searches and seizures require a warrant based on “probable cause.” In the case of a constructive search in which the records and papers sought are of corporate character, the court held that the Fourth Amendment does not apply, since corporations are not entitled to all the constitutional protections of rights created for private individuals.

Background

The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights ([fig:9477]]) guarding against unreasonable searches and seizures, as well as requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance (a type of general search warrant) in the American Revolution. The amendment also states that a search or seizure should be limited in scope according to specific information supplied by law enforcement to the issuing court. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.

The text of the Fourth Amendment states the following: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “

For instance, the owner of the property in question may consent to the search. The consent must be voluntary, but there is no clear method of determining this; rather, a court will consider the “totality of the circumstances” in assessing whether consent was voluntary. Police officers are not required to advise a suspect that he/she may refuse the search. There are also some circumstances in which a third party who has equal control, or common authority, over the property may consent to a search.

When an individual does not possess a “reasonable expectation of privacy” that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search subject to the Fourth Amendment, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, courts have held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.

Bill of Rights

175th anniversary of the Bill of Rights commemorated on 1966 US postage stamp Plate block of four.

4.5.3: The Fifth Amendment, Self-Incrimination, and Double Jeopardy

The Fifth Amendment to the U.S. Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure.

Learning Objective

Explain the key provisions of the Fifth Amendment, including self-incrimination and double jeopardy.

Key Points

The Fifth Amendment protects witnesses from being forced to incriminate themselves.
To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties, or forfeiture.
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment.

Key Term

Magna Carta: The 1215 magna carta, also called charter, required King John of England to proclaim certain liberties and accept that his will was not arbitrary. For example, no “freeman” (in the sense of non-serf) could be punished except through the law of the land. This is a right that is still in existence today.

Example

Protection against self-incrimination is implicit in the Miranda rights statement, which protects the “right to remain silent.” When a citizen has been apprehended by the police, he or she can exercise their Miranda rights. The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.”

The Fifth Amendment, Self-Incrimination, and Double Jeopardy

Background on the Fifth Amendment

The Fifth Amendment (Amendment V) to the United States Constitution, part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law, which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase “due process” (also found in the 14^th Amendment) both trace their origins to the Magna Carta.

Magna Carta

Magna Carta is one of the major documents in British history that set forth legal precedents that would later be interpreted as protecting the civil rights of English subjects

The text of the Fifth Amendment reads as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Self Incrimination

The Fifth Amendment protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties, or forfeiture.

Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.

Protection against self-incrimination is implicit in the Miranda rights statement, which protects the “right to remain silent.” The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”

Double Jeopardy

The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy “attaches” when the jury is impaneled, the first witness is sworn, or a plea is accepted.

The government is not permitted to appeal or try again after the entry of an acquittal. The prohibition extends to a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), and an “implied acquittal” via conviction of a lesser included offense.

Blockburger v. United States addresses multiple punishments, including prosecution after conviction. In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislature intends to depart from it via enacted law; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.

The rule for prosecution after mistrials depends on who sought the mistrial. If the defendant moved for a mistrial, there is no bar to retrial, unless the prosecutor acted in bad faith. For example, the prosecutor goads the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds “manifest necessity” for granting the mistrial. The same standard governs mistrials granted sua sponte.

4.5.4: The Exclusionary Rule

The exclusionary rule holds that evidence collected in violation of the defendant’s rights is sometimes inadmissible.

Learning Objective

Describe the constitutional bases of the exclusionary rule

Key Points

The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures.
The exclusionary rule is designed to provide disincentive to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment of the Bill of Rights.
The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United States v. Alvarez-Machain, 504 U.S. 655, the U.S. Supreme Court decided that property owned by aliens in a foreign country is admissible in court.

Key Terms

exclusionary rule: A legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law.
constitutional right: Rights given to citizens by the constitution.
right to counsel: When a citizen accused has the right to be legally represented by a legal defense.

Example

In 1914, the U.S. Supreme Court announced a strong version of the exclusionary rule in the case of Weeks v. United States under the Fourth Amendment prohibiting unreasonable searches and seizures. This decision, however, created the rule only on the federal level. The “Weeks Rule,” which made an exception for cases at the state level, was adopted by numerous states during prohibition.

Background

The exclusionary rule is a legal principle in the United States holding that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for criminal prosecution. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. However, in some circumstances, the exclusionary rule may also be considered to follow directly from the constitutional language. For example, the Fifth Amendment’s command that no person “shall be deprived of life, liberty or property without due process of law. “

The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide disincentive to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment of the Bill of Rights. The exclusionary rule furthermore applies to violations of the Sixth Amendment, which guarantees the right to counsel.

Most states have their own exclusionary remedies for illegally obtained evidence under their state constitutions and/or statutes. This rule is occasionally referred to as a legal technicality because it allows defendants a defense that does not address whether the crime was actually committed. In this respect, it is similar to the explicit rule in the Fifth Amendment protecting people from double jeopardy. In strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action can be thrown out from a jury.

The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors.

Limitations of the Rule

The exclusionary rule was passed in 1917, and does not apply in a civil case, a grand jury proceeding, or a parole revocation hearing.

Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments.

The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United States v. Alvarez-Machain, 504 U.S. 655, the Supreme Court decided that property owned by aliens in a foreign country is admissible in court. Prisoners, probationers, parolees and persons crossing U.S. borders are among those receiving limited protections. Corporations, by virtue of being, also have limited rights under the Fourth Amendment (see corporate personhood).

Criticism of the Rule

The exclusionary rule as it has developed in the U.S. has been long criticized, even by respected jurists and commentators. Judge Benjamin Cardozo, generally considered one of the most influential American jurists, was strongly opposed to the rule, stating that under the rule, “The criminal is to go free because the constable has blundered. “

U.S. Supreme Court Seal

The Supreme Court of the United States is the highest court in the country. It has ultimate (but largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, and original jurisdiction over a small range of cases.

4.5.5: The Sixth Amendment and the Right to Counsel

The Assistance of Counsel Clause in the Sixth Amendment allows to any person accused the right to counsel for his defense.

Learning Objective

Summarize the protections afforded an accused under the Sixth Amendment’s Assistance of Counsel Clause

Key Points

The assistance of counsel clause includes, as relevant here, five distinct rights: the right to counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself, in legal terms known as pro se.
Criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous depravation of first choice counsel is automatic reversal.
As stated in Brewer v. Williams, 1977, the right to counsel means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or accusation.
The pivotal case that established the right to counsel in State courts was Gideon v. Wainwright in 1963. Clarence Earl Gideon was convicted of breaking and entering and was imprisoned. He sent a hand-written appeal to the Supreme Court claiming a right to have counsel provided for him as he could not afford an attorney. The court, in a 9-0 decision, applied the Bill of Rights to the states and determined that indigent defendants are entitled to legal defense at public expense.

Key Terms

right to counsel: When a citizen accused has the right to be legally represented by a legal defense.
jury proceedings: The United States is the only common law jurisdiction in the world that continues to use the grand jury to screen criminal indictments.

Example

In the 2009-2010 term of the United States Supreme Court, it was handed down that a suspect’s request for legal counsel is only good for fourteen days after the suspect is released from police custody.

Background

The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”

The assistance of counsel clause includes, as relevant here, five distinct rights:

The right to counsel of choice
The right to appointed counsel
The right to conflict-free counsel
The effective assistance of counsel
The right to represent oneself pro se

As stated in Brewer v. Williams, 430 U.S. 387 (1977), the right to counsel means “at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or accusation.” Brewer goes on to conclude that once adversarial proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him and that when a defendant is arrested, “arraigned on an arrest warrant before a judge” and “committed by the court to confinement . . . there can be no doubt that judicial proceedings have been initiated.”

Individuals subject to grand jury proceedings do not have a Sixth Amendment right to counsel because grand juries are not considered by the U.S. Supreme Court to be criminal proceedings, which trigger the protections of that constitutional protection.

Grand Jury at Arcadia Hotel Fire.

A grand jury investigating the fire that destroyed the Arcadia Hotel in Boston, Massachusetts in 1913.

In the 2009-2010 term of the United States Supreme Court, it was handed down that a suspect’s request for legal counsel is only good for fourteen days after the suspect is released from police custody.

Choice of Counsel

Subject to considerations such as conflicts of interest, scheduling, counsel’s authorization to practice law in the jurisdiction, and counsel’s willingness to represent the defendant (whether pro bono or for a fee), criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous depravation of first choice counsel is automatic reversal.

Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. The general rule is that conflicts can be knowingly and intelligently waived, but some conflicts are non-waiveable.

Appointment of Counsel

In Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court ruled that “in a capital case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.” In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own. However, in Betts v. Brady, 316 U.S. 455 (1942), the Court declined to extend this requirement to the state courts under the Fourteenth Amendment unless the defendant demonstrated “special circumstances” requiring the assistance of counsel.

Ineffective Assistance of Counsel

In Strickland v. Washington (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both that the defense counsel’s performance fell below an objective standard of reasonableness (the “performance prong”) and that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the “prejudice prong”).

To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel’s deficient performance, he or she would not have plead guilty.

Pro Se Legal Representation in the United States

A criminal defendant may represent himself, unless a court deems the defendant to be incompetent to waive the right to counsel.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized the defendant’s right to pro se representation. However, under Godinez v. Moran, 509 U.S. 389 (1993), a court can require a defendant to be represented by counsel if it believes the accused less than fully competent to adequately proceed without counsel.

Some states extend the right to counsel to all matters where a defendant’s liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127 (2006) (March 2006).

4.5.6: The Sixth Amendment and Jury Trials

The Sixth Amendment U.S. Constitution is the part of the Bill of Rights, which sets forth rights related to criminal prosecutions.

Learning Objective

Summarize the rights afforded to an accused under the Sixth Amendment and describe the protocols in place to achieve the impartiality of the jury to ensure these rights

Key Points

The Sixth Amendment (Amendment VI) to the U.S. Constitution is the part of the Bill of Rights, which sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.
The right to a jury has always depended on the nature of the offense with which the defendant is charged.
The Sixth Amendment requires juries to be impartial. Impartiality has been interpreted as requiring individual jurors to be unbiased.
The jury panel must represent a fair cross-section of the community.

Key Terms

petty offenses: Criminal offenses punishable by imprisonment for not more than six months and are not covered by the jury requirement.
voir dire: The preliminary phase of a jury trial in which the jurors are examined and selected.
impartiality: The quality of being impartial; fairness.

Background

The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights, which sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.

The Sixth Amendment states the following: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Impartial Jury

The right to a jury has always depended on the nature of the offense with which the defendant is charged. Petty offenses are those punishable by imprisonment for not more than six months and are not covered by the jury requirement. Even where multiple petty offenses are concerned, the total time of imprisonment possibly exceeding six months, the right to a jury trial does not exist. Also, in the United States, except for serious offenses (such as murder), minors are usually tried in a juvenile court, which lessens the sentence allowed, but forfeits the right to a jury.

Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.

When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by “historical accident,” and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury. Although on the basis of history and precedent the Sixth Amendment mandates unanimity in a federal jury trial, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment, while requiring States to provide jury trials for serious crimes, does not incorporate all the elements of a jury trial within the meaning of the Sixth Amendment and does not require jury unanimity.

Impartiality

The Sixth Amendment requires juries to be impartial. Impartiality has been interpreted as requiring individual jurors to be unbiased. At voir dire, each side may question potential jurors to determine any bias, and challenge them if the same is found; the court determines the validity of these challenges for cause. Defendants may not challenge a conviction on the basis that a challenge for cause was denied incorrectly if they had the opportunity to use peremptory challenges.

Another factor in determining the impartiality of the jury is the nature of the panel from which the jurors are selected. The jury panel must represent a fair cross-section of the community; the defendant may establish that the requirement was violated by showing that the allegedly excluded group is a “distinctive” one in the community, that the representation of such a group in venires is unreasonable and unfair in regard to the number of persons belonging to such a group, and that the under-representation is caused by a systematic exclusion in the selection process. Thus, in Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme Court invalidated a state law that exempted women who had not made a declaration of willingness to serve from jury service, while not doing the same for men.

The Jury Panel

Great Lakes, Ill. (Dec. 23, 2008) Legalman 1st Class Christie Richardson, a trial services legalman assigned to Region Legal Service Office Midwest makes an opening statement for the prosecution to a jury during a mock trial. Richardson was part of a legal team demonstrating the legal system for 22 Navy Junior Reserve Officers Training Corps (NJROTC) cadets from Chicago-area high schools.

4.5.7: The Eighth Amendment and Cruel and Unusual Punishment

The Eight Amendment determines the provisions for cruel and unusual punishment.

Learning Objective

Summarize the sources of the Eight Amendment in British history and significance moments in American case law

Key Points

The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishment.
The Virginia Declaration of Rights of 1776 had already adopted the English Bill of Rights’ stance on cruel and unusual punishment The state later recommended that this language also be included in the Constitution.
Justice Brennan wrote that no state would violate any one of the four principles prohibiting cruel and unusual punishment. Court decisions regarding the Eighth Amendment would involve a “cumulative” analysis of the implication of each of the four principles.

Key Term

cadena temporal: A former form of punishment overturned by the Supreme Court. It mandated “hard and painful labor,” shackling for the duration of incarceration, and permanent civil disabilities.

Example

The case of Weems v. United States, (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated “hard and painful labor,” shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment

Background

The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment clause applies to states. The phrases employed originated in the English Bill of Rights of 1689.

The Eighth Amendment was adopted as part of the Bill of Rights in 1791. The provision was largely inspired by the case of Titus Oates. The Englishman was tried in 1685 for multiple acts of perjury during the ascension of King James II after a number of people whom Oates had wrongly accused of treason were executed. Oates was sentenced to imprisonment, along with an annual ordeal of whipping and time in the pillory. The Oates case became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence. Oates’s punishment involved ordinary penalties collectively imposed in an excessive and unprecedented manner. The reason Oates did not receive the death penalty may be because the punishment would have deterred even honest witnesses from testifying in later cases.

The Virginia Declaration of Rights of 1776 had already adopted the English Bill of Rights’ stance on cruel and unusual punishment The state later recommended that this language also be included in the Constitution.

According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, prohibiting other punishments that are deemed excessive when compared to the crime or the competence of the perpetrator.

Punishments Forbidden for Certain Crimes

The case of Weems v. United States, (1910) marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated “hard and painful labor,” shackling for the duration of incarceration and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written “it is hard to view Weems as announcing a constitutional requirement of proportionality. “

In Trop v. Dulles, (1958), the Supreme Court held that taking away citizenship from a natural-born citizen for a crime was unconstitutional. The punishment was considered “more primitive than torture” because it involved the “total destruction of the individual’s status in organized society. “

In Furman v. Georgia (1972), Justice Brennan wrote that there are four principles by which particular punishment is deemed cruel and unusual : Punishment should not be patently unnecessary, degrading to human dignity, inflicted in a wholly arbitrary fashion, or severe enough to be clearly rejected throughout society.

Punishment of the Paddle

This is an old form of punishment.

Justice Brennan also wrote that no state would pass a law violating any one of these principles. Court decisions regarding the Eighth Amendment would hence involve a “cumulative” analysis of the implication of each of the four principles, setting a standard in the way punishments were considered cruel and unusual.

It is up to individual states to decide if death can be considered “cruel and unusual” punishment. As of 2016, 31 states (and the federal government) had death as an acceptable form of punishment.

In California, more than 700 inmates await execution, with the last execution occurring in 2006. Because California’s death penalty was approved by voter initiative, it can only be repealed by voters and not the legislature. Prop. 62 on the Nov. 8, 2016 ballot will ask voters to do repeal its death penalty.

4.5.8: The Miranda Warning

The Miranda warning is a statement read by police to criminal suspects that asserts their right to counsel and right to remain silent.

Learning Objective

Describe the Miranda Rights and the obligations they impose on police

Key Points

The Miranda warning (also referred to as Miranda rights) is a warning given by police in the United States to criminal suspects in police custody.
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.
The Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are (1) the routine booking question exception (2) the jailhouse informant exception and (3) the public safety exception.

Key Terms

testimonial evidence: It is the proof given by the product of custodial police interrogation.
procedure rule: It is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters).

Example

In Berghuis v. Thompkins, the Court ruled that a suspect must clearly and unambiguously assert right to silence. Merely remaining silent in face of protracted questioning is insufficient to assert the right.

Background

The Miranda warning (also referred to as Miranda rights) is a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.

Incorporating Amendment V

Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.

In other words, a Miranda warning is a preventive criminal procedure rule that law enforcement is required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel.

Mirada refers to Ernesto Miranda. In 1963 Miranda was arrested in Phoenix and charged with rape, kidnapping, and robbery. Miranda was not informed of his rights prior to the police interrogation. During the two-hour interrogation, Miranda allegedly confessed to committing the crimes, which the police apparently recorded. Miranda, who had not finished ninth grade and had a history of mental instability, had no counsel present. At trial, the prosecution’s case consisted solely of his confession. Miranda was convicted of both rape and kidnapping and sentenced to 20 to 30 years in prison. Miranda appealed to the U.S. Supreme Court and won his case. The Supreme Court devised a statement that must be read to those who are arrested.

Thus in theory, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial. However, in the pragmatic interactions between police and citizens, this is rarely true. In Berghuis v. Thompkins, the court held that unless a suspect actually states that he is relying on this right, his subsequent voluntary statements can be used in court and police can continue to interact with or question him.

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. The Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.

It is important to note that immigrants who live in the United States illegally are also protected and should receive their Miranda warnings as well when being interrogated or placed under arrest. Aliens receive constitutional protections when they have come within the territory of the United States and have developed substantial connections with this country.

Assertion of Miranda Rights

If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have “scrupulously honored” the defendant’s assertion and obtain a valid waiver before resuming the interrogation. In determining whether the police “scrupulously honored” the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between the termination of the original interrogation and commencement of the second and a fresh set of Miranda warnings before resumption of interrogation.

The consequences of assertion of Fifth Amendment right to counsel are stricter. The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant contacts the police on his own volition. If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.

In Berghuis v. Thompkins, the Court ruled that a suspect must clearly and unambiguously assert right to silence. Merely remaining silent in face of protracted questioning is insufficient to assert the right.

Exceptions of Miranda Rights

The Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are (1) the routine booking question exception (2) the jailhouse informant exception and (3) the public safety exception. Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered “interrogation” under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule.

4.6: Terrorism and Security

4.6.1: The First and Fourth Amendments and Issues of Terrorism and Security

Issues on privacy created new grounds for citizens to battle the constitutionality of security policies enacted after September 11th.

Learning Objective

Describe the safeguards afforded by the Fourth Amendment

Key Points

The Fourth Amendment states that a warrant must be judicially sanctioned for a search or an arrest. It must be supported by probable cause and be limited in scope according to specific information supplied by a person who has sworn by it .
The protection of private conversations has been held to apply only to conversations where the participants have a reasonable expectation it is indeed private and no other party is listening in. In the absence of such expectation, the Fourth Amendment does not apply.
The Supreme Court stated that the First Amendment precludes liability for a media defendant for publication of illegally obtained communications if the topic involves a public controversy and the media defendant itself did nothing illegal to obtain the information.

Key Terms

whistleblower: A person who reveals classified information about an institution operating in either the private or public sector.
wiretap: A concealed device connected to a telephone or other communications system that allows a third party to listen or record conversations.
provision: A clause in a legal instrument, a law, etc., providing for a particular matter and/or stipulation.

Example

The Fourth Amendment applies to governmental searches and seizures, but not those done by private citizens or organizations that are not acting on behalf of a government. The Bill of Rights originally only restricted the federal government in the matter. However, in Mapp v. Ohio, 1961, the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain a similar provision.

Background

Since September 11, 2001, a number of high-profile incidents and security scares have occurred in Washington, D.C. In October 2001, anthrax-contaminated mail sent to members of Congress infected 31 staff members and killed two U.S. Postal Service employees. Issues in disclosing information and the surveillance of the population has created new grounds for citizens to battle the constitutionality of security policies enacted after September 11.

The Fourth Amendment and Issues on Privacy

The Fourth Amendment has been held to mean that a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause. It also must be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. The Fourth Amendment applies to governmental searches and seizures. It does not apply to searches and seizures done by private citizens or organizations not acting on behalf of a government. The Bill of Rights originally only restricted the federal government in these matters. However, in Mapp v. Ohio, 1961, the Supreme Court ruled that the Fourth Amendment applies to states by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain a similar provision.

The protection of private conversations has been held to apply only to conversations where the participants have manifested a reasonable expectation that no other party is listening in on their conversation.The Fourth Amendment does not apply in the absence of such a reasonable expectation, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in the many countries where governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad. In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States. This means no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA (Foreign Intelligence Surveillance Act) and directed the NSA to spy directly on al Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental glitch” resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.

National Security Agency

The seal of the U.S. National Security Agency. The first use was in September 1966, replacing an older seal which was used briefly.

Publication of Unclassified Information

Publicizing information as part of the First Amendment has produced legal and security repercussions between the citizens and the government. The Intelligence Community Whistleblower Protection Act of 1998 is a statutory procedure for a “whistleblower” in the intelligence community to report concerns with the propriety of a secret program . Essentially, the Act provides for disclosure to the agency Inspector General, with an appeal to the Congressional Intelligence Committees if the result of that disclosure is unsatisfactory. Former NSA official Russ Tice has asked to testify under the terms of the Act to provide information about highly classified Special Access Programs (SAPs) that were improperly carried out by both the NSA and the Defense Intelligence Agency.

It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper, 532, the Supreme Court held that the First Amendment precluded liability for publication of illegally obtained communications if the topic involves a public controversy and the information was not obtained by a media defendant illegally. The high court in Bartnicki gave the radio station in question a pass because it did nothing itself illegal to obtain the information, even though the initial broadcast of the information was illegal.

4.6.2: The Right to Due Process

Due process rights provides legal protections while a citizen is charged by the courts and other legal procedures.

Learning Objective

Summarize the protections afforded by the Due Process Clauses of the 5th and 14th Amendments

Key Points

Due process rights extends to all government proceedings that can result in an individual’s deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it.
The term substantive due process (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause.

Key Term

Judicial Review: Judicial review refers to the power of a court to review the constitutionality of a statute or treaty or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.

Example

In 1934, the United States Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. ” As construed by the courts, it includes an individual’s right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.

Background

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. The Supreme Court of the United States interprets these two clauses as providing four protections: procedural due process in civil and criminal proceedings, substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights .

Bill of Rights

This item is the enrolled original joint resolution of Congress, engrossed on parchment, proposing 12 amendments to the United States Constitution. The Federal Government’s official copy of the resolution is signed by Frederick Augustus Muhlenberg, Speaker of the House of Representatives, and John Adams, Vice President of the United States and President of the Senate.

This protection extends to all government proceedings that can result in an individual’s deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.

Procedural Due Process

At a basic level, procedural due process is essentially based on the concept of fundamental fairness. For example, in 1934, the United States Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. ” As construed by the courts, it includes an individual’s right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them. To put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that he or she be entitled to adequate notice, a hearing, and a neutral judge.

Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever.

The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.

In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.

Substantive Due Process

The term substantive due process (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term substantive due process began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions.

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene, 1938. Those three types of rights are: the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment); restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of “discrete and insular minorities.”

4.6.3: Roving Wiretaps

A roving wiretap is a wiretap specific to the United States that follows the surveillance target across his or her private communications.

Learning Objective

Discuss the claims made on behalf of increases in government surveillance and the worries voiced by critics

Key Points

A roving wiretap follows the target and defeats the target’s attempts at breaking the surveillance by changing location or communications technology.
In 2007 a United States Foreign Intelligence Surveillance court ruling required that the NSA obtain a warrant when intercepting or eavesdropping on foreign-to-foreign intelligence if it passes through any U.S. networks.
The ACLU said the language of the bill is a blank check that would cover not only the warrantless wiretapping program that the Bush administration has acknowledged, but any unconfirmed or previously unknown program.

Key Term

wiretap: A concealed device connected to a telephone or other communications system that allows a third party to listen or record conversations.

Example

The American Civil Liberties Union (ACLU) brought many legal cases challenging the constitutionality of the bill, asserting that it violates Americans’ right to free speech and privacy. They have filed lawsuits, motions, and complaints in over 27 states to oppose any legislation that encourages unchecked government surveillance.

Background

A roving wiretap is a wiretap specific to the United States that follows the surveillance target. For instance, if a target attempts to defeat surveillance by throwing away a phone and acquiring a new one, another surveillance order would usually need to be applied for. However, a roving wiretap defeats the target’s attempts at breaking the surveillance by changing location or their communications technology. It is allowed under amendments made to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Statute) in 1988 by the Electronic Communications Privacy Act and was later expanded by section 604 of the Intelligence Authorization Act for Fiscal Year 1999. On May 26, 2011, the U.S. Senate voted to extend the provisions of the 2001 USA PATRIOT Act to search business records and allow for roving wiretaps.

This Phone Is Tapped

The US Patriot Act of 2001, Section 216, permits all phone calls to be recorded without a warrant or notification.

NSA warrantless surveillance controversy

In 2007 a United States Foreign Intelligence Surveillance court ruling required that the NSA obtain a warrant when intercepting or eavesdropping on foreign-to-foreign intelligence if it passes through any U.S. networks. In response, the Bush administration passed stopgap legislation very quickly through Congress that temporarily relieved the NSA of this prior ruling. Director of National Intelligence Mike McConnell remarked to Congress that the new ruling could potentially decrease the amount of useful information they collected on groups like al-Qaeda by almost two thirds. He also stated that since applying for a warrant can run up to 90 pages, the process is exceedingly time consuming and labor intensive.

The American Civil Liberties Union (ACLU) brought many legal cases challenging the constitutionality of the bill, asserting that it violates Americans’ right to free speech and privacy. They have filed lawsuits, motions, and complaints in over 27 states to oppose any legislation that encourages unchecked government surveillance. In response to the government arguments, Caroline Fredrickson, Director of the ACLU Washington Legislative Office has said of the bill: “Where will Congress go from here? More unfettered power for an administration that has no respect for the privacy of the citizenry that elected it? “

The stopgap expired in February 2008. By then, Congress and FISA reached a compromise on the details of the bill. ACLU advocates pushed to require that the NSA provide individual warrants when Americans were involved. On the other hand, U.S. intelligence agencies and the administration wanted as few obstacles in their way of intercepting private information. Both sides have shown the possibility of accepting a bill that would require a FISA court to approve NSA’s procedures while intercepting foreign intelligence when it comes to Americans.

However, a later addition to this bill, that was insisted on by then President Bush and Mike McConnell, granted retroactive immunity to telecommunications companies for any “intelligence activity involving communications that was designed to detect or prevent a terrorist attack” or attack preparations. The Bush administration has acknowledged that intelligence agencies conducted warrantless eavesdropping on Americans with the help of Telecom companies such as Verizon, AT&T, and Qwest. All three of these Telecom companies faced multiple civil lawsuits related to their handling of phone records and the passing of this bill granted them immunity.

In favor of the bill, McConnell has stated that such immunity was necessary to prevent the telecoms from being bankrupted and to encourage them to continue to cooperate with intelligence agencies. Bush said that he would veto any intelligence bill passed that did not include such immunity. Liz Rose, spokeswoman for the Washington office of the ACLU, said the language of the bill is a blank check that would cover not only the warrantless wiretapping program that the Bush administration has acknowledged, but any unconfirmed or previously unknown program. Senator Russ Feingold from the District of Washington promised to lead a filibuster to block approval of retroactive immunity. Retroactive immunity set the terrible precedent that breaking the law is permissible and companies need not worry about the privacy of their customers, Feingold said.

Legal issues

United States Constitution

“We the People”, as it appears in an original copy of the Constitution.

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers such legal areas as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.

4.6.4: The PATRIOT and Freedom Acts

The controversial Patriot Act was enacted following September 11 to protect national security, and allows the government extensive power over surveillance.

Learning Objective

Identify the key provisions of the Patriot Act and the controversies that followed from it

Key Points

The act expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.
The USA PATRIOT Act has generated a great deal of controversy since its enactment. Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks, believing there to have been little debate.
Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.

Key Term

jurisdiction: the power, right, or authority to interpret and apply the law

Example

One prime example of a controversy of the Patriot Act is shown in the recent court case United States v. Antoine Jones. A nightclub owner was linked to a drug trafficking stash house via a law enforcement GPS tracking device that had been attached to his car.

Background of the PATRIOT Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), also commonly known as the Patriot Act, is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001. The Patriot Act came as a response to the terrorist attacks of September 11^th and included:

Patriot Act Signing

President George W. Bush signs the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Anti-Terrorism Legislation, in the East Room Oct. 26. “With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger,” the President said in his remarks.

A significant reduction of restrictions to law enforcement agencies’ gathering of intelligence within the United States
An expansion of the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities
A broadening of the discretion allowed to law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts.

The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied. On May 26, 2011, President Barack Obama used an Autopen to sign a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretaps, searches of business records (the library records provision), and conducting surveillance of lone wolves– individuals suspected of terrorist-related activities not linked to terrorist groups. Republican leaders questioned whether the use of the Autopen met the constitutional requirements for signing a bill into law.

Due to its controversial nature, a number of bills were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act, the Benjamin Franklin True Patriot Act, and the Security and Freedom Ensured Act (SAFE), none of which passed. In late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003. This highly controversial document was quickly dubbed “PATRIOT II” or “Son of PATRIOT” by the media and organizations such as the Electronic Frontier Foundation. The draft, which was circulated to ten divisions of the Department of Justice, proposed to make further extensive modifications to extend the USA PATRIOT Act. It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.

Controversy

The USA PATRIOT Act has generated a great deal of controversy since its enactment. Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks. Opponents view the Act as one that was hurried through the Senate with little change or debate before it was passed. Senators Patrick Leahy and Russell Feingold proposed amendments to modify the final revision.

It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. Through the years the case has risen to the United States Supreme Court where the conviction was overturned in favor of the defendant. The court found that increased monitoring of suspects caused by such legislation like the Patriot Act directly put the suspects Constitutional rights in jeopardy.

The USA PATRIOT Act’s expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the Electronic Frontiers Foundation (EFF). They believe that agencies will be able to shop for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, and use only those judges least likely to say no even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution. They also believe that the expansion reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court; for example a small San Francisco ISP served with such a warrant may be unlikely to have the resources to appear before the New York court that issued it. They also assert that only the communications provider will be able to challenge the warrant as only they will know about it; many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.

For a time, the USA PATRIOT Act allowed for agents to undertake “sneak and peek” searches. Critics such as the Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union (ACLU) strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed. However, supporters of the amendment such as Heather Mac Donald, a fellow at the Manhattan Institute and a contributing editor to the New York City Journal, expressed the belief that the act was necessary because the temporary delay in notification of a search order could stop terrorists from tipping off counterparts under investigation.

The USA Freedom Act

The USA FREEDOM Act (“Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act”), more commonly known as the Freedom Act, is a U.S. law that was enacted on June 2, 2015, the day after the PATRIOT Act expired. The Freedom Act modified several provisions of the Patriot Act and limited the ability of American intelligence agencies, such as the NSA, to bulk-collect telecommunications data on US citizens. It restored authorization for roving wiretaps and tracking “lone wolf” terrorists.

4.6.5: National Security Agency Surveillance

After 9/11 attacks, the United States government passed and extended policies of surveillance for public citizens.

Learning Objective

Summarize the history of the warrantless surveillance controversy and its relationship to the so-called war on terror

Key Points

The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror.
If no fair reading of Foreign Intelligence Surveillance Act can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals.
As part of the terrorist surveillance program, the NSA was authorized by executive order to monitor phone calls, Internet activity (web, e-mail, etc. ), text messaging, and other communications, all without search warrants.

Key Term

executive order: A legally enforceable order, decree, or regulation issued on the authority of the head of the executive branch of government.

Example

Corporate secrecy can be an issue. In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be “used to ‘hack’ into the AT&T network, compromising its integrity. ” [103] However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T’s trade secret and security claims were unfounded.

Background

The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program, part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (web, email, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. Critics, however, claimed that it was an attempt to silence critics of the Bush administration and their handling of several hot button issues during its tenure. Under public pressure, the Bush administration ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court. Subsequently, in 2008 Congress passed the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008, which relaxed some of the original FISA court requirements.

National Security Agency

The seal of the U.S. National Security Agency. The first use was in September 1966, replacing an older seal which was used briefly.

During the Obama Administration, the NSA has officially continued operating under the new FISA guidelines. However, in April 2009, officials at the United States Department of Justice acknowledged that the NSA had engaged in over-collection of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.

NSA Warrantless Surveillance Controversy

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al-Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental” “glitch” resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.

The exact scope of the program is not known, but the NSA is, or was, given total and unsupervised access to all fiber-optic communications going between some of the nation’s major telecommunication companies’ major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. Critics said that such “domestic” intercepts required FISA authorization under the Foreign Intelligence Surveillance Act. The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war. Additionally, they claimed that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF). FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act, or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute. This is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using, or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.

Constitutional Law Issues

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers (checks and balances). If, as discussed above, no fair reading of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.

Domestic vs. Foreign Intelligence

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent an attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad, a foreign agent residing in the U.S., and a U.S. citizen abroad. The warrantless exception was struck down when both the target and the threat were deemed domestic. The legality of targeting Americans acting as agents of a foreign power and residing in this country has not been addressed by the U.S. Supreme Court, but has occurred at least once, in the case of Aldrich Ames.