Ch3. Liberty Rights — Personal Freedom, Free Speech & Property

Overview of Liberty Rights

Liberty rights protect individuals from unwarranted government intrusion into areas of personal autonomy.

Categories of liberty rights:
① Personal liberty: freedom from unlawful detention and punishment
② Privacy: home, communications, personal information
③ Expressive freedoms: speech, press, assembly, religion
④ Economic freedoms: property, contract, occupational choice

Personal Liberty & Criminal Procedure

Substantive Protections

Void-for-Vagueness / Legality (5th & 14th Amendments):
- No crime without a prior, clear, and accessible law
- Ex post facto laws (Art. I §§ 9–10): retroactive criminalization prohibited
- Bills of attainder: legislative punishment of named individuals prohibited
- Double Jeopardy (5th Amendment): no second prosecution for same offense
  after acquittal or conviction
- Proportionality: 8th Amendment bars grossly disproportionate punishment

Procedural Protections

Due Process (4th, 5th, 6th, 14th Amendments):
Government may not deprive a person of liberty without
due process of law.

4th Amendment — Warrant Requirement:
- Government must obtain a judicial warrant for most
  searches and seizures
- Warrant requires: probable cause + particularity
  (specify the place to be searched and items to be seized)
- Exceptions to warrant requirement:
  → Exigent circumstances (emergency)
  → Hot pursuit
  → Consent
  → Search incident to lawful arrest
  → Plain view / plain feel

Warrantless Seizure — Emergency Exception:
- Arrest without a warrant: permitted in public if probable cause
- Emergency ("exigent circumstances"): 48-hour window to obtain
  a warrant after warrantless arrest (Cnty. of Riverside v. McLaughlin)

Habeas Corpus:
Detained person may petition a federal court to review
the legality of detention (28 U.S.C. § 2254).

Rights of Criminal Suspects and Defendants

Miranda Rights (5th & 6th Amendments):
- Before custodial interrogation: police must advise of right
  to remain silent and right to counsel
- Statements obtained without Miranda warnings = inadmissible

Right to Counsel (6th Amendment):
- Right to retain counsel
- Appointed counsel (public defender) if indigent
- Attaches upon indictment / formal charge

Presumption of Innocence:
- Government bears the burden of proving guilt beyond a
  reasonable doubt
- Defendant need not prove innocence

Privacy Rights

4th Amendment (homes, papers, effects):
Unreasonable searches and seizures of the home or
personal effects require a warrant based on probable cause.

Communications Privacy:
Wiretapping and electronic surveillance require a judicial
order (Title III / FISA for national-security surveillance).

Informational Privacy (Right to Privacy):
Recognized as a constitutional interest under the due process
liberty interest (Griswold v. Connecticut; Roe / Dobbs debate)
Right to informational self-determination against government
data collection (Carpenter v. United States — cell-site data).

Expressive Freedoms (First Amendment)

Free Speech and Press:
- The First Amendment prohibits laws abridging freedom of speech,
  press, assembly, and petition.
- Content-based restrictions: subject to strict scrutiny
- Content-neutral time-place-manner regulations: intermediate scrutiny

Prior Restraint:
- Government may NOT prohibit publication before it occurs
  (Near v. Minnesota; Pentagon Papers case)
- One of the strongest prohibitions in First Amendment law
- Post-publication liability (defamation, etc.) remains available

Prior Restraint vs. Post-Publication Review:
- A licensing or injunction system requiring approval before
  speech = prior restraint → presumptively unconstitutional
- Film ratings boards, broadcast licensing (FCC): regulatory schemes
  held not to constitute prior restraint (different from
  administrative censorship)

Freedom of Association and Assembly:
- Right to organize politically, join organizations, assemble peaceably
- Government may not compel disclosure of membership lists
  of advocacy groups (NAACP v. Alabama)

Property Rights (5th & 14th Amendments)

Takings Clause (5th Amendment):
"[N]or shall private property be taken for public use,
without just compensation."

Three-part framework:
① Legitimate public use (Penn Central; Kelo v. City of New London)
② Authorized by law (statutory or inherent governmental authority)
③ Just compensation: fair market value at the time of the taking

Types of takings:
Physical taking: direct government seizure or occupation
  → per se requires compensation (Loretto v. Teleprompter)
Regulatory taking: regulation goes "too far" → Lucas v. S.C.
  Coastal Council (wipes out all economic value = per se taking)
Penn Central balancing: economic impact + interference with
  investment-backed expectations + character of government action

Social Obligation of Property:
Government may regulate property use in the public interest
without compensation if the regulation does not go too far
(nuisance abatement, zoning, environmental regulation).

Warrant Exceptions — What Requires No Warrant ★★★★★ : Exigent circumstances, hot pursuit, consent, search incident to lawful arrest, and plain view. Warrantless arrest in public on probable cause is also permitted. Memory hook: exigency + consent + incident to arrest + plain view

Prior Restraint = Presumptively Unconstitutional ★★★★★ : Government cannot stop speech before it is uttered (Near v. Minnesota). Post-publication liability (defamation) is permissible. Memory hook: prior restraint = almost never allowed

Takings Clause — Just Compensation ★★★★☆ : Physical takings always require compensation. Regulatory takings require compensation when the regulation eliminates all economic value or fails the Penn Central balancing test. Memory hook: government takes → fair market value compensation required

Practice Questions

Q. After a warrantless emergency arrest, how quickly must the government obtain a warrant?

Under County of Riverside v. McLaughlin (1991), the government must provide a probable-cause determination before a neutral magistrate within 48 hours of a warrantless arrest. Delay beyond 48 hours is presumptively unreasonable and violates the 4th Amendment.

Q. How do courts distinguish a compensable regulatory taking from an ordinary, non-compensable regulation?

Courts apply the Penn Central Transportation Co. v. New York City (1978) balancing test: (1) the economic impact on the property owner; (2) the extent to which the regulation interferes with distinct, investment-backed expectations; and (3) the character of the governmental action. If a regulation deprives the owner of all economically beneficial use of the property, it is a per se taking requiring compensation under Lucas v. South Carolina Coastal Council (1992).