Chapter 4: Civil Liberties & Public Policy (pp 94- 133)

A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference. ~Thomas Jefferson Earl Warren (10/5/53-6/23/69); Warren Burger (6/23/69-9/26/86); William Rehnquist (9/26/86-9/3/05); John Roberts (9/3/05-present)

Incorporation Denied Case Name: Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833) [x3] Issues: Bill of Rights, Federalism, Fifth Amendment, Incorporation Facts of the Case: John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters, which had been the key to his successful business. He sued the city to recover a portion of his financial losses. Question: Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner? Finding: No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

Freedom of Religion

Case Name: Abington School District v. Schempp, 374 U.S. 203 (1963) [x3] Issues: First Amendment, Establishment of Religion, Education, Freedom of Religion Facts of the Case: The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case -- Murray v. Curlett -- a Baltimore statute required Bible- reading or the recitation of the Lord's Prayer at open exercises in public schools. Murray and his mother, professed atheists -- challenged the prayer requirement.

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Question: Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments? Finding: The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so." Furthermore, argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from violating the Establishment Clause.

Case Name: Edwards v. Aguillard, 482 U.S. 578 (1987) [x3] Issues: First Amendment, Parochiaid, Freedom of Religion Facts of the Case: A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution- Science in Public School Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be addressed, evolution or creation, teachers were obligated to discuss the other as well. Question: Did the Louisiana law, which mandated the teaching of "creation science" along with the theory of evolution, violate the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment? Finding: Yes. The Court held that the law violated the Constitution. Using the three-pronged test that the Court had developed in Lemon v. Kurtzman (1971) to evaluate potential violations of the Establishment Clause, Justice Brennan argued that Louisiana's law failed on all three prongs of the test. First, it was not enacted to further a clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a "supernatural being created humankind," a doctrine central to the dogmas of certain religious denominations. Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial support of government to achieve a religious purpose."

Case Name: Elk Grove Unified School District v. Nedow, 524 U.S. 1 (2004) Issues: Standing to Sue, First Amendment, Establishment of Religion, Education, Freedom of Religion Facts of the Case: Michael Newdow's daughter attended public school in the Elk Grove Unified School District in California. Elk Grove teachers began school days by leading students in a voluntary recitation of the Pledge of Allegiance, including the words "under God" added by a 1954 Congressional act. Newdow sued in federal district court in California, arguing that making students listen - even if they choose not to participate - to the words "under God" violates the establishment clause of the U.S. Constitution's First Amendment. The district court dismissed Newdow's complaint for lack of standing, because he and the mother of his daughter are divorced and he does not have custody. The U.S. Ninth Circuit Court of Appeals reversed, holding that Newdow did have standing "to challenge a practice that interferes with his right to direct the religious education of his daughter." The Ninth Circuit ruled that Congress's 1954 act adding the words "under God" to the Pledge and the school district policy requiring it be recited both violated the First Amendment's establishment clause. Question: Does Michael Newdow have standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance? Does a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violate the Establishment D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 3 of 46

Clause of the First Amendment? Finding: In an opinion authored by Justice John Paul Stevens, the Supreme Court found that Newdow did not have standing to bring suit because he did not have sufficient custody over his daugther. "When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law," Justice Stevens wrote. Because it found that Newdow did not have standing, the Court failed to reach the constitutional question. Chief Justice Renquist and Justices Sandra Day O'Connor and Clarence Thomas all wrote seperate concurrences, saying that requiring teachers to lead the Pledge is constitutional.

Case Name: Engel v. Vitale, 370 U.S. 421 (1962) [x3] Issues: First Amendment, Establishment of Religion, Education, Freedom of Religion Facts of the Case: The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Question: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Finding: Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans.

Case Name: Epperson v. Arkansas, 393 U.S. 97 (1968) Issues: First Amendment, Establishment of Religion, Education, Freedom of Religion, Freedom of Speech Facts of the Case: The Arkansas legislature passed a law prohibiting teachers in public or state-supported schools from teaching, or using textbooks that teach, human evolution. Epperson, a public school teacher, sued, claiming the law violated her First Amendment right to free speech as well as the Establishment Clause. The State Chancery Court ruled that it violated his free speech rights; the State Supreme Court reversed. Question: Does a law forbidding the teaching of evolution violate either the free speech rights of teachers or the Establishment clause of the First Amendment? Finding: Yes. Seven members of the Court held that the statute violated the Establishment clause. Writing for the Court, Justice Abe Fortas stated that the law had been based solely on the beliefs of fundamentalist Christians, who felt that evolutionary theories directly contradicted the biblical account of Creation. This use of state power to prohibit the teaching of material objectionable to a particular sect amounted to an unconstitutional Establishment of religion. Justice Fortas wrote, "The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." The two other members of the Court concurred in the result, writing that it violated either the Due Process clause of the 14th Amendment (because it was unconstitutionally vague) or the Free Speech clause of the First Amendment.

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Case Name: Lee v. Weisman, 505 U.S. 577 (1992) [x3] Issues: First Amendment, Education, Establishment of Religion, Freedom of Religion Facts of the Case: In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restraining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari. Question: Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment? Finding: Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government.

Case Name: Lemon v. Kurtzman, 403 U.S. 602 (1971) [x3] Issues: First Amendment, Parochiaid, Education, Establishment of Religion, Freedom of Religion Facts of the Case: This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Question: Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"? Finding: Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools.

Case Name: Lynch v. Donnelly, 465 U.S. 668 (1984) [x3] Issues: First Amendment, Establishment of Religion, Freedom of Religion Facts of the Case: The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene. The crèche had been included in the display for over 40 years. Daniel Donnelly objected to the display and took action against Dennis Lynch, the Mayor of Pawtucket. D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 5 of 46

Question: Did the inclusion of a nativity scene in the city's display violate the Establishment Clause of the First Amendment? Finding: No. In a 5-to-4 decision, the Court held that notwithstanding the religious significance of the crèche, the city had not violated the Establishment Clause. The Court found that the display, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes." The Court held that the symbols posed no danger of establishing a state church and that it was "far too late in the day to impose a crabbed reading of the [Establishment] Clause on the country."

Case Name: Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) Issues: First Amendment, Establishment of Religion, Education, Freedom of Religion Facts of the Case: Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer, described as overtly Christian, over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause of the First Amendment. The District Court enjoined the public Santa Fe Independent School District (the District) from implementing its policy as it stood. While the suit was pending, the District adopted a new policy, which permitted, but did not require, student-initiated and student-led prayer at all the home games and which authorized two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. After the students authorized such prayers and selected a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. The District petitioned for a writ of certiorari, claiming its policy did not violate the Establishment Clause because the football game messages were private student speech, not public speech. Question: Does the Santa Fe Independent School District's policy permitting student-led, student- initiated prayer at football games violate the Establishment Clause of the First Amendment? Finding: Yes. In a 6-3 opinion the Court held that the District's policy permitting student-led, student- initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristle[d] with hostility to all things religious in public life."

Case Name: Wallace v. Jaffree, 472 U.S. 38 (1985) Issues: First Amendment, Parochiaid, Establishment of Religion, Freedom of Religion Facts of the Case: An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three of Jaffree's children attended public schools in Mobile. Question: Did Alabama law violate the First Amendment's Establishment Clause? Finding: Yes. The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 6 of 46

religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause.

Case Name: Westside School District v. Mergens, 496 U.S. 226 (1990) Issues: First Amendment, Parochiaid, Freedom of Association, Freedom of Religion, Freedom of Speech Facts of the Case: The school administration at Westside High School denied permission to a group of students to form a Christian club with the same privileges and meeting terms as other Westside after-school student clubs. In addition to citing the Establishment Clause, Westside refused the club's formation because it lacked a faculty sponsor. When the school board upheld the administration's denial, Mergens and several other students sued. The students alleged that Westside's refusal violated the Equal Access Act, which requiremes that schools in receipt of federal funds provide "equal access" to student groups seeking to express "religious, political, philosophical, or other content" messages. On appeal from an adverse District Court ruling, the Court of Appeals found in favor of the students. The Supreme Court granted Westside certiorari. Question: Was Westside's prohibition against the formation of a Christian club consistent with the Establishment Clause, thereby rendering the Equal Access Act unconstitutional? Finding: No. In distinguishing between "curriculum" and "noncurriculum student groups," the Court held that since Westside permitted other noncurricular clubs, it was prohibited under the Equal Access Act from denying equal access to any after-school club based on the content of its speech. The proposed Christian club would be a noncurriculum group since no other course required students to become its members, its subject matter would not actually be taught in classes, it did not concern the school's cumulative body of courses, and its members would not receive academic credit for their participation. The Court added that the Equal Access Act was constitutional because it served an overriding secular purpose by prohibiting discrimination on the basis of philosophical, political, or other types of speech. As such, the Act protected the Christian club's formation even if its members engaged in religious discussions.

Case Name: Zelman v. Simmons-Harris, 536 U.S. 639 (2002) Issues: First Amendment, Parochiaid, Education, Establishment Clause, Freedom of Religion Facts of the Case: Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82 percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on the ground that it violated the Establishment Clause. The District Court granted them summary judgment, and the Court of Appeals affirmed. Question: Does Ohio's school voucher program violate the Establishment Clause? Finding: No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of

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numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."

Case Name: Zorach v. Clauson, 343 U.S. 306 (1952) Issues: Education, Establishment Clause, First Amendment, Freedom of Religion Facts of the Case: In the aftermath of the Supreme Court's decision in McCollum v. Board of Education, New York City began a program in which students in public schools could be dismissed from classroom activities for certain periods to participate in religious instruction elsewhere. In McCollum, the Court disallowed an Illinois program in which representatives of religious groups came to public schools and taught classes during the school day. New York's "released time" program was upheld by the New York Court of Appeals. Question: Did the New York program violate the Establishment Clause of the First Amendment? Finding: In a 6-to-3 decision, the Court held that the "released time" program neither constituted the establishment of religion nor interfered with the free exercise of religion. The Court noted that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Writing for the majority, Justice Douglas argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."

Freedom of Speech

[not likely] Case Name: Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217 (2000) Issue: First Amendment, Free Speech Facts of the Case: The University of Wisconsin, a public university, requires students to pay an activity fee. The fee supports various campus services and extracurricular student activities including the Future Financial Gurus of America; the International Socialist Organization; the College Democrats and Republicans; and the American Civil Liberties Union Campus Chapter. Scott Harold Southworth filed suit against the University, alleging that the fee violated his rights of free speech, free association, and free exercise under the First Amendment. Southworth argued that the University must grant him the choice not to fund registered student organizations (RSO) that engage in political and ideological expression offensive to his personal beliefs. In granting Southworth judgment, the Federal District Court concluded that the fee program compelled students to support political and ideological activities with which they disagree in violation of their First Amendment rights to freedom of speech and association. The court declared the fee program invalid and enjoined the University from using the fees to fund any RSO engaging in political or ideological speech. In affirming, the Court of Appeals concluded that the fee program was "not germane to the University's mission, did not further a vital University policy, and imposed too much of a burden on [Southworth's] free speech rights."

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Question: May public universities and colleges subsidize campus groups by means of a mandatory student activity fee without violating the First Amendment rights of students who find some campus groups objectionable? Finding: Yes. In a unanimous opinion delivered by Justice Anthony M. Kennedy, the Court held that the "First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral." Justice Kennedy wrote for the Court that, "[w]hen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others." Justice David H. Souter, in an opinion joined by Justices John Paul Stevens and Stephen G. Breyer, concurred in the judgment only.

Case Name: Brandenburg v. Ohio, 395 U.S. 444 (1969) [x3] Issues: Criminal, First Amendment, Freedom of Speech, Freedom of Press Facts of the Case: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Finding: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

Case Name: Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) [x3] Issues: Criminal, Fighting Words, First Amendment, Freedom of Speech Facts of the Case: Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace. Question: Does the application of the statute violate Chaplinsky's freedom of speech protected by the First Amendment? Finding: No. Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."

Case Name: Gitlow v. New York, 268 U.S. 652 (1925) [x3] Categories: Criminal, Federalism, First Amendment, Freedom of Speech, Freedom of Press, Incorporation, National Security, Police Power Facts of the Case: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow

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was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Question: Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? Finding: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

Case Name: Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) [x3] Categories: First Amendment, Education, Freedom of Speech Facts of the Case: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. Question: Did the principal's deletion of the articles violate the students' rights under the First Amendment? Finding: No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test.

Case Name: McConnell v. Federal Election Commission, 540 U.S. 93 (2003) Issues: First Amendment, Campaign Spending, Standing to Sue, Freedom of Speech, Freedom of the Press Facts of the Case: In early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent during--political campaigns culminated in the passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill). Its key provisions were a) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or well-healed individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures"). The campaign finance reform bill contained an unusual provision providing for an early federal trial and a direct appeal to the Supreme Court of the United States, by-passing the typical D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 10 of 46

federal judicial process. In May a special three-judge panel struck down portions of the Campaign Finance Reform Act's ban on soft-money donations but upheld some of the Act's restrictions on the kind of advertising that parties can engage in. The ruling was stayed until the Supreme Court could hear and decide the resulting appeals. Question: 1. Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or violate the First Amendment's protection of the freedom to speak? 2. Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause? Finding: With a few exceptions, the Court answered "no" to both questions in a 5-to-4 decision written by Justices Sandra Day O'Connor and John Paul Stevens. Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption" that might result from those contributions. In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections.

Case Name: Miller v. California, 413 U.S. 15 (1973) [x3] Issues: First Amendment, Obscenity, Freedom of Speech Facts of the Case: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Finding: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.

Case Name: Near v. Minnesota, 283 U.S. 697 (1931) [x3] Issues: First Amendment, Censorship, Freedom of Speech, Freedom of Press D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 11 of 46

Facts of the Case: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Finding: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

Case Name: New York Times v. Sullivan, 376 U.S. 254 (1964) [x3] Issues: First Amendment, Libel, Defamation, Commercial Speech, Freedom of Speech, Freedom of the Press Facts of the Case: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Finding: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

Case Name: New York Times Co v. United States, 403 U.S. 713 (1971) [x3] Issues: First Amendment, Freedom of Speech, Freedom of the Press, National Security, Presidency Facts of the Case: In what became known as the “Pentagon Papers Case,” the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of the United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Question: Did the Nixon administration’s efforts to prevent the publication of what it termed “classified information” violate the First Amendment? Finding: Yes. In its per curiam opinion the Court held that the government did not overcome the “heavy presumption against” prior restraint of the press in this case. Justices Black and Douglas argued that the vague word “security” should not be used “to abrogate the fundamental law embodied in the First Amendment.” Justice Brennan reasoned that since publication would D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 12 of 46

not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Case Name: R.A.V. v. St. Paul, 505 U.S. 377 (1992) Issues: First Amendment, Protest Demonstrations, Race Discrimination, Freedom of Speech Facts of the Case: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? Finding: Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are motherfuckers but not that all Jews are motherfuckers. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."

Case Name: Reno v. ACLU, 521 U.S. 844 (1997) [x3] Issues: First Amendment, Obscenity, Fifth Amendment, Internet, Freedom of Speech Facts of the Case: Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions. Question: Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized? Finding: Yes. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact on adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues.

Case Name: Roth v. United States, 354 U.S. 476 (1957) Issues: First Amendment, Obscenity, Commercial Speech, Freedom of Speech D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 13 of 46

Facts of the Case: Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? Finding: In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).

Case Name: Schenck v. United States, 249 U.S. 47 (1919) [x3] Issues: First Amendment, Freedom of Speech, Freedom of Press, Searches and Seizures Facts of the Case: During WWI, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged “Do not submit to intimidation” but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Question: Are Schenck’s actions (words, expression) protected by the free speech clause of the First Amendment? Finding: The court concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” During wartime, utterances tolerable in peacetime can be punished.

Case Name: Texas v. Johnson, 491 U.S. 397 (1989) [x3] Issues: First Amendment, Protest Demonstrations, Flag Desecration, Freedom of Speech Facts of the Case: In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Finding: In a 5-to-4 decision, the Court held that Johnson’s burning of a flag was protected expression under the First Amendment. The Court found that Johnson’s action fell into the category of expressive conduct and had a distinctively policital nature. The fact that an audience takes offense to certain ideas or expression, the Court found does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that “if there is a bedrock principle

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underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Case Name: Tinker v. Des Moines, 393 U.S. 503 (1969) [x3] Issues: First Amendment, Education, Freedom of Speech, Symbolic Speech Facts of the Case: John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? Finding: The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.

Case Name: United States v. O’Brien, 391 U.S. 367 (1968) Issues: First Amendment, Protest Demonstrations, Criminal, Freedom of Speech, Symbolic Speech Facts of the Case: David O’Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Question: Was the law an unconstitutional infringement of O’Brien’s freedom of speech? Finding: No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government’s interest. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is not greater than is essential to the furtherance of that interest.”

Case Name: Virginia v. Black, 538 U.S. 343 (2003) Issues: First Amendment, Protest Demonstrations, Free Speech Facts of the Case:Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a felony "for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," and specifies that "any such burning...shall be prima facie evidence of an intent to intimidate a person or group." At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred. He was found guilty. O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. In Elliott's trial, the judge did not give an instruction on the statute's prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 15 of 46

unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech. Question: Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment? Finding: Yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia left the latter portion of the Court's conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O'Mara, so that that court could have an opportunity to construe the cross-burning statute's prima-facie- evidence provision. Justice David H. Souter, joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court's judgment insofar as it affirmed the invalidation of Black's conviction. Justice Clarence Thomas dissented.

Freedom of Assembly

Case Name: DeJonge v. Oregon, 299 U.S. 353 (1937) [x3] Issues: Incorporation, First Amendment, Freedom of Assembly, Freedom of Association, Freedom of Speech Facts of the Case: On July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the audience regarding jail conditions in the county and a maritime strike in progress in Portland. While the meeting was in progress, police raided it. De Jonge was arrested and charged with violating the State's criminal syndicalism statute. The law defines criminal syndicalism as "the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution." After being convicted, De Jonge moved for an acquittal, arguing that the evidence was insufficient to warrant his conviction. Disagreeing, the State Supreme Court distinguished that the indictment did not charge De Jonge with criminal syndicalism, but rather that he presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group called by the Communist Party, which was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage. Question: Does Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth Amendment? Finding: Yes. The Court ruled that the Fourteenth Amendment’s due process clause applies to freedom of assembly and free speech. The Court found that DeJonge had the right to organize a Communist Party and speak at its meetings even though the party advocated “industrial or political change or revolution.” After reviewing the record, the Court determined that De Jonge's sole offense was assisting in a public meeting held under the auspices of the Communist Party. The Court reasoned that to preserve the rights of free speech and peaceable assembly - principles embodied in the Fourteenth Amendment - not the auspices under which a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the bounds of freedom of speech must be examined, which had not

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occurred in De Jonge's case.

Case Name: Cox v. New Hamphsire, *** U.S. *** (1941) Issues: First Amendment Facts of the Case: *** Question: ** Finding: The Court approved advance notice and a permit for a demonstration on public property. The right of individuals to petition on private property such as shopping centers has been restricted much more than on public property.

Case Name: Coates v. Cincinnati, 402 U.S. 611 (1971) Issues: First Amendment Facts of the Case: *** Question: ** Finding: The Court ruled that a Cincinnati ordinance that made it a criminal offense for three or more persons to assemble on a sidewalk and annoy passerby with their conduct was unconstitutional.

Case Name: Collins v. Smith, *** U.S. *** (1978) Issues: First Amendment Facts of the Case: *** Question: ** Finding: This decision is known as the Skokie case. The Supreme Court let a lower court decision stand allowing the Nazi Party to march through the predominantly Jewish section of Skokie, Illinois.

Case Name: Chicago v. Morales, 527 U.S. 41 (1999) Issues: First Amendment, Freedom to Assemble, Due Process, Incorporation, Fourteenth Amendment Facts of the Case: Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. If a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. A violation of the ordinance arises when anyone does not promptly obey a dispersal order. An officer's discretion was purportedly limited by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas. In 1993, Jesus Morales was arrested and found guilty under the ordinance for loitering in a Chicago neighborhood after he ignored police orders to disperse. Ultimately, after Morales challenged his arrest, the Illinois Supreme Court held that the ordinance violated due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties. Question: Does Chicago's Gang Congregation Ordinance, which prohibits "criminal street gang members" from loitering in public places, violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution?

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Finding: Yes. In a plurality ruling, the Court held that Chicago's Gang Congregation Ordinance was unconstitutionally vague and provided law enforcement officials too much discretion to decide what activities constitute loitering. Justice Stevens wrote for the majority that the ordinance's definition of loitering as "to remain in any one place with no apparent purpose" does not give people adequate notice of what is prohibited and what is permitted, even if a person does not violate the law until he refuses to disperse. "'[A] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits,'" noted Justice Stevens, "[i]f the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty."

Case Name: Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) Issues: First Amendment, Privacy, Right to Assemble Facts of the Case: This action was filed by the Pro-Choice Network of Western New York (PCN), on behalf of health care providers, to enjoin Schenck and others from continuously staging blockades and other disruptive illegal activities in front of abortion clinics. After its restraining order proved ineffective, a District Court issued a preliminary injunction creating "fixed buffer zones" which prohibited demonstrations within fifteen feet of entrances to abortion clinics, parking lots, or driveways. The court also created "floating buffer zones" prohibiting demonstrators from coming within fifteen feet of people or vehicles seeking access to the clinics. Following the Appellate Court's decision to uphold the District Court's ruling that the "buffer zones" were constitutional, the Supreme Court granted Schenck certiorari. Question: Did either or both types of "buffer zones" violate Schenck's First Amendment right to freedom of speech. Finding: The Court held that while the "fixed buffer zones" were constitutional, the "floating buffer zones" were not. It distinguished between the two types of "buffer zones." The Court supported the "fixed buffer zones" because they protected the government's interest in public safety, by preventing protesters from engaging in unlawful conduct (i.e. spitting on and shouting in clinic users' faces, blocking doorways), while still allowing them to be heard from a short distance. "Floating buffer zones," by contrast, were struck down by the Court since they imposed a greater burden on free speech than was required to protect the government's interest in public safety and free traffic flow. The Court found that forcing demonstrators to remain at least 15 feet away from the people they wished to communicate with would create an inordinate amount of dangerous confusion and congestion.

Right to Bear Arms (2nd Amendment)

Case Name: District of Columbia v. Heller, 554 U.S. ___ (2008) Issues: Second Amendment Facts of the Case: For the first time in seventy years, the Court will hear a case regarding the central meaning of the Second Amendment and its relation to gun control laws. After the District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked, a group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The federal trial court in Washington D.C. refused to grant the plaintiffs relief, holding that the Second Amendment applies only to militias, such as the National Guard, and not to private gun ownership.

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The U.S. Court of Appeals for the District of Columbia Circuit disagreed, voting two to one that the Second Amendment does in fact protect private gun owners such as plaintiffs. Petitioners agree with the trial court's decision that the Second Amendment applies only to militias, and further argue that (a) the Second Amendment should not apply to D.C. because it is a federal enclave rather than a state, and (b) that the D.C. legislation merely regulates, rather than prohibits, gun ownership. Respondents, although disagreeing on the merits, have also urged the Court to review the case in order to clearly define the relationship between federal gun control laws and the Second Amendment. Question: Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? Finding: Yes. In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment. Justice Antonin Scalia delivered the opinion of the Court. Justices John Paul Stevens and Stephen Breyer filed dissenting opinions, each joined by the other as well as Justices David Souter and Ruth Bader Ginsburg. Justice Stevens argued that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful. Justice Breyer agreed with Stevens' argument but also stated that even if possession were to be allowed for other reasons, any law regulating the use of firearms would have to be "unreasonable or inappropriate" to violate the Second Amendment. In Breyer's view, the D.C. laws at issue in this case were both reasonable and appropriate.

Right of Privacy (3rd, 4th, 9th Amendments)

Case Name: Board of Education v. Earls, 536 U.S. 822 (2002) Issues: Fourth Amendment, Privacy Facts of the Case: The Student Activities Drug Testing Policy adopted by the Tecumseh, Oklahoma School District (School District) requires all middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity. Two Tecumseh High School students and their parents brought suit, alleging that the policy violates the Fourth Amendment. The District Court granted the School District summary judgment. In reversing, the Court of Appeals held that the policy violated the Fourth Amendment. The appellate court concluded that before imposing a suspicionless drug-testing program a school must demonstrate some identifiable drug abuse problem among a sufficient number of those tested, such that testing that group will actually redress its drug problem, which the School District had failed to demonstrate. Question: Is the Student Activities Drug Testing Policy, which requires all students who participate in competitive extracurricular activities to submit to drug testing, consistent with the Fourth Amendment? Finding: Yes. In a 5-4 opinion, the Court held that because the policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, it is constitutional. The Court reasoned that the Board of Education's general regulation of extracurricular activities diminished the expectation of privacy among students and that the

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Board's method of obtaining urine samples and maintaining test results was minimally intrusive on the students' limited privacy interest. "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren," wrote Justice Thomas.

Case Name: Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990) Issues: Privacy, Right to Die, Ninth Amendment Facts of the Case: In 1983, Nancy Beth Cruzan was involved in an automobile accident, which left her in a "persistent vegetative state." She was sustained for several weeks by artificial feedings through an implanted gastronomy tube. When Cruzan's parents attempted to terminate the life-support system, state hospital officials refused to do so without court approval. The Missouri Supreme Court ruled in favor of the state's policy over Cruzan's right to refuse treatment. Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their vegitated daughter's behalf? Finding: In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements. However, the Court did rule that a “living will” is a legitimate document that can be used to direct a hospital to “pull the plug” of a patient.

Case Name: Griswold v. Connecticut, 381 U.S. 479 (1965) [x2] Issues: Fourth Amendment, Judicial Power, Standing to Sue, Contraception, Ninth Amendment, Privacy Facts of the Case: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. Question: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Finding: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

Case Name: Katz v. United States, 389 U.S. 347 (1967) Issues: Search and Seizure, Wiretapping, Fourth Amendment Facts of the Case: Acting on a suspicion that Katz was transmitting gambling information over the phone to D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 20 of 46

clients in other states, Federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challanged his conviction arguing that the recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting the absence of a physical intrusion into the phone booth itself. The Court granted certiorari. Question: Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone? Finding: Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart for the Court. A concurring opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth Amendment protection.

Case Name: Mapp v. Ohio, 367 U.S. 643 (1961) [x3] Issues: Incorporation, Fourth Amendment, Search and Seizure Facts of the Case: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) Finding: The Court brushed aside the First Amendment issue and declared "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. The exclusionary rule determined that police may obtain only that evidence available through a legitimate search warrant.

Case Name: Nix v. Williams, 467 U.S. 431 (1984) [x3] Issues: Right to Counsel Facts of the Case: Williams was arrested for the murder of a ten-year-old girl who's body he disposed of along a gravel road. State law enforcement officials engaged in a massive search for the child's body. During the search, after responding to an officer's appeal for assistance, Williams made statements to the police (without an attorney present) which helped lead the searchers to the child's body. The defendant's Miranda rights were only read to him after his arrest. Question: Should evidence resulting in an arrest be excluded from trial because it was improperly obtained? Finding: No. The Court relied on the "inevitable discovery doctrine," as it held that the exclusionary rule did not apply to the child's body as evidence since it was clear that the volunteer search teams would have discovered the body even absent Williams's statements.

Case Name: Owasso Independent School District v. Falvo, 534 U.S. 426 (2002) D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 21 of 46

Issues: Privacy, Facts of the Case: Kristja J. Falvo asked the Owasso Independent School District to ban peer grading, or the practice of allowing students to score each other's tests, papers, and assignments as the teachers explain the correct answers to the entire class, because it embarrassed her children. When the school district declined, Falvo filed an action against the school district, claiming that such peer grading violates the Family Educational Rights and Privacy Act of 1974 (FERPA). FERPA authorizes federal funds to be withheld from school districts that permit students' "education records (or personally identifiable information contained therein)" to be released without their parents' written consent and defines education records as "records, files, documents, and other materials" containing information directly related to a student, which "are maintained by an educational agency or institution or by a person acting for such agency or institution." Disagreeing with Falvo, the District Court held that grades put on papers by another student are not "education records." In reversing, the Court of Appeals found that grades marked by students on each other's work are "education records," such that the very act of grading is an impermissible release of information to the student grader. Question: Does the practice of peer grading violate the Family Educational Rights and Privacy Act of 1974? Finding: No. In a unanimous opinion, the Court held that Peer grading does not violate FERPA. The Court reasoned that peer-graded items did not constitute education records protected by FERPA until a teacher collected the grades on the students' papers or other items and recorded the grades in the teacher's grade book. In reaching its conclusion, the Court noted that peer-graded items were not "maintained" within in the meaning of FERPA, as the student graders only handled the items for a few moments. Moreover, the Court stated that each student grader, by grading assignments, did not constitute a person acting for an educational institution within FERPA.

Case Name: Planned Parenthood v. Casey, 505 U.S. 833 (1992) Issues: Privacy, Fourth Amendment, Privacy Facts of the Case: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. Question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade? Finding: In a 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions requiring minors to wait 24 hours after receiving parental approval before getting an abortion. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.

Case Name: Printz v. United States, 521 U.S. 898 (1997) Issues: Tenth Amendment, Federalism, Supremacy Clause

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Facts of the Case: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose. County sheriffs Jay Printz and Richard Mack, separately challenged the constitutionality of this interim provision of the Brady Bill on behalf of CLEOs in Montana and Arizona respectively. In both cases District Courts found the background-checks unconstitutional, but ruled that since this requirement was severable from the rest of the Brady Bill a voluntary background-check system could remain. On appeal from the Ninth Circuit's ruling that the interim background-check provisions were constitutional, the Supreme Court granted certiorari and consolidated the two cases deciding this one along with Mack v. United States. Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks? Finding: No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun- application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them.

Case Name: Roe v. Wade, 410 U.S. 113 (1973) [x2] Issues: Privacy, Abortion, Ninth Amendment, Fourteenth Amendment, Fourth Amendment Facts of the Case: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall. Question: Does the Constitution embrace a woman's right to terminate her pregnancy by abortion? Finding: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. It banned states from abortion during the third trimester unless the mother’s or baby’s life was endangered.

Case Name: Stenberg v. Carhart, 530 U.S. 914 (2000) Issues: Privacy, Fourth Amendment, Abortion Facts of the Case: A Nebraska law prohibited any "partial birth abortion" unless that procedure was necessary to save the mother's life. It defined "partial birth abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the... child," and defined the latter phrase to mean "intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the... child and does kill the... child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice

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medicine. Leroy Carhart, a Nebraska physician who performs abortions in a clinical setting, brought suit seeking a declaration that the statute violates the U.S. Constitution, claiming the law was unconstitutionally vague and placed an undue burden on himself and female patients seeking abortions. The District Court held the statute unconstitutional. The Court of Appeals affirmed. Question: Does the Nebraska statute, which makes the performance of a "partial birth abortions" a crime, violate the liberty protected by due process of the Fourteenth Amendment in the U.S. Constitution? Finding: Yes. In a complicated 5-4 decision, the Court held that "Nebraska's statute criminalizing the performance of "partial birth abortion[s]" violates the U.S. Constitution, as interpreted in Casey and Roe." The sharply divided Court struck down the statute because it placed an undue burden on a woman's right to have an abortion and did not allow for exception in cases of threatened health. "All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," that results in "an undue burden upon a woman's right to make an abortion decision," wrote Justice Breyer for the Court. Justice Antonin Scalia's dissent concluded that "[t]he notion that the Constitution of the United States... prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."

Case Name: United States v. Leon, 468 U.S. 897 (1984) [x3] Issues: Search and Seizure, Fourth Amendment Facts of the Case: The exclusionary rule requires that evidence illegally seized must be excluded from criminal trials. Leon was the target of police surveillance based on an anonymous informant's tip. The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that the affidavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial. Question: Is there a "good faith" exception to the exclusionary rule? Finding: Yes, there is such an exception. The Court created a “good faith” exception to the exclusionary rule, allowing the introduction of illegally obtained evidence where police can prove that the evidence was obtained without violating the core principles of Mapp v. Ohio. The exclusionary rule is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

Case Name: United States v. Lopez, 514 U.S. 549 (1995) Issues: Tenth Amendment, Federalism, Commerce Clause Facts of the Case: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 24 of 46

in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause? Finding: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.

Defendant’s Rights (5th, 6th, 7th Amendments)

Case Name: Dickerson v. United States, *** U.S. *** (2000) Issues: First Amendment Facts of the Case: *** Question: ** Finding: The Court upheld Miranda and struck down a 1968 congressional act that permitted local law enforcement officials to accept voluntary confessions made before the accused was read his Miranda rights.

Case Name: Escobedo v. Illinois, 378 U.S. 478 (1964) [x3] Issues: Criminal Procedure, Right to Counsel, Sixth Amendment, Fifth Amendment Facts of the Case: Danny Escobedo was arrested and taken to a police station for questioning. Over several hours, the police refused his repeated requests to see his lawyer. Escobedo's lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder. Question: Was Escobedo denied the right to counsel as guaranteed by the Sixth Amendment? Finding: Yes. Justice Goldberg spoke for the first time of "an absolute right to remain silent." Escobedo had not been adequately informed of his constitutional right to remain silent rather than to be forced to incriminate himself. The Supreme Court extended the exclusionary rule to illegal confessions in state court cases. The Court stated that persons have the right to an attorney when an investigation begins “to focus on a particular suspect.” If the suspect has been arrested, has requested an attorney, and has not been warned of his or her right to remain silent, the suspect has been ‘denied council in violation of the Sixth Amendment.’

Case Name: Gideon v. Wainwright, 372 U.S. 335 (1963) [x3] Issues: Incorporation, Criminal Procedure, Right to Counsel, Sixth Amendment, Due Process Facts of the Case: Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison. Question: Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments? Finding: In a unanimous opinion, the Court held that Gideon had a right to be represented by a court- appointed attorney. In this case the Court found that the Sixth Amendment's guarantee of

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counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries."

Case Name: Hamdi v. Rumsfeld, 542 U.S. 507 (2004) Issues: Due Process Facts of the Case: In the fall of 2001, Yaser Hamdi, an American citizen, was arrested by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant," and transfered to a military prison in Virginia. Frank Dunham, Jr., a defense attorney in Virginia, filed a petition for a writ of certiorari in federal district court there, first on his own and then for Hamdi's father, in an attempt to have Hamdi's detention declared unconstitutional. He argued that the government had violated Hamdi's Fifth Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system. The district court ruled for Hamdi, telling the government to release him. On appeal, a Fourth Circuit Court of Appeals panel reversed, finding that the separation of powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not." The panel therefore found that it should defer to the Executive Branch's "enemy combatant" determination. Question: Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"? Finding: Yes and no. Although Congress authorized Hamdi's detention, the Court ruled that the Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decision maker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.

Case Name: Miranda v. Arizona, 384 U.S. 436 (1966) Issues: Criminal Procedure, Miranda Warnings, Right to Counsel, Self-Incrimination, Fifth Amendment Facts of the Case: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." In Vignera v. New York, the petitioner was questioned by police, made oral admissions, and signed an inculpatory statement all without being notified of his right to counsel. Similarly, in Westover v. United States, the petitioner was arrested by the FBI, interrogated, and made to sign statements without being notified of his right to counsel. Lastly, in California v. Stewart, local police held and interrogated the

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defendant for five days without notification of his right to counsel. In all these cases, suspects were questioned by police officers, detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In none of the cases were suspects given warnings of their rights at the outset of their interrogation. Question: Does the police practice of interrogating individuals without notifiying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? Finding: The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." The Court noted that "the modern practice of in-custody interrogation is psychologically rather than physically oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations.

Case Name: New York v. Quarles, 467 U.S. 649 (1984) Issues: Miranda Warning Facts of the Case: After receiving the description of Quarles, an alleged assailant, a police officer entered a supermarket, spotted him, and ordered him to stop. Quarles stopped and was frisked by the officer. Upon detecting an empty shoulder holster, the officer asked Quarles where his gun was. Quarles responded. The officer then formally arrested Quarles and read him his Miranda rights. Question: Should the Court suppress Quarles's statement about the gun and the gun itself because the officer had failed at the time to read Quarles his Miranda rights? Finding: No. The Court created a ‘public safety’ exception to the Miranda warnings allowing the police to arrest an accused criminal without reciting the Miranda rights where public safety is threatened. Since the police officer's request for the location of the gun was prompted by an immediate interest in assuring that it did not injure an innocent bystander or fall into the hands of a potential accomplice to Quarles, his failure to read the Miranda warning did not violate the Constitution.

Case Name: Pointer v. Texas, 380 U.S. 400 (1965) Issues: Incorporation, Criminal Procedure, Right to Confront Witness, Sixth Amendment Facts of the Case: The case arose when a defendant’s attorney objected to the introduction of a transcript of testimony of a robbery victim who had moved out of state between the time he had testified at a preliminary hearing and the trial: in this transcribed testimony the victim identified Pointer as the offender, and Pointer was convicted largely upon the basis of this testimony. Question: Does the Sixth Amendment providing the accused to confront the witness against him apply to state law? Finding: In a unanimous decision, the Court ruled that the Sixth Amendment guarantee was applicable to the states via the Due Process Clause of the Fourteenth Amendment. The underlying reason for the rule is to give defendants charged with crimes an opportunity to cross-examine witnesses against them. However, even as the Court embraced a sweeping interpretation of the right, it acknowledged some practical limits, noting for instance that declarations of dying persons and testimony of deceased witnesses who had testified at former trials could still be admissible despite the impossibility of confrontation.

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Issues: Habeas Corpus Facts of the Case: Four British and Australian citizens were captured by the American military in Pakistan or Afghanistan during the United States' War on Terror. The four men were transported to the American military base in Guantanamo Bay, Cuba. When their families learned of the arrests, they filed suit in federal district court seeking a writ of habeas corpus that would declare the detention unconstitutional. They claimed that the government's decision to deny the men access to attorneys and to hold them indefinitely without access to a court violated the Fifth Amendment's Due Process clause. The government countered that the federal courts had no jurisdiction to hear the case because the prisoners were not American citizens and were being held in territory over which the United States did not have sovereignty (the Guantanamo Bay base was leased from Cuba indefinitely in 1903, and Cuba retains "ultimate sovereignty"). The district court agreed with the government, dismissing the case because it found that it did not have jurisdiction. The U.S. Court of Appeals for the District of Columbia affirmed the district court's decision. Question: Do United States courts have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the United States military in Guantanamo Bay Naval Base, Cuba? Finding: Yes. In a 6-to-3 the Court found that the degree of control exercised by the United States over the Guantanamo Bay base was sufficient to trigger the application of habeas corpus rights. Stevens, using a list of precedents stretching back to mid-17th Century English Common Law cases, found that the right to habeas corpus can be exercised in "all ... dominions under the sovereign's control." Because the United States exercised "complete jurisdiction and control" over the base, the fact that ultimate sovereignty remained with Cuba was irrelevant. Further, Stevens wrote that the right to habeas corpus is not dependent on citizenship status. The detainees were therefore free to bring suit challenging their detention as unconstitutional.

Cruel & Unusual Punishment (8th Amendments)

Case Name: Atkins v. Virginia, 536 U.S. 304 (2002) Issues: Eighth Amendment and Fourteenth Amendment Facts of the Case: Daryl Renard Atkins was convicted of abduction, armed robbery, and capital murder. In the penalty phase of Atkins' trial, the defense relied on one witness, a forensic psychologist, who testified that Atkins was mildly mentally retarded. The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. During resentencing the same forensic psychologist testified, but this time the State rebutted Atkins' intelligence. The jury again sentenced Atkins to death. In affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, in rejecting Atkins' contention that he could not be sentenced to death because he is mentally retarded. Question: Is the execution of mentally retarded persons "cruel and unusual punishment" prohibited by the Eighth Amendment? Finding: Yes. In a 6-3 opinion the Court held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Since it last confronted the issue, the Court reasoned that a significant number of States have concluded that death is not a suitable punishment for a mentally retarded criminal. Moreover, the Court concluded that there was serious concern whether either justification underpinning the death penalty - retribution and deterrence of capital crimes - applies to mentally retarded offenders, due to their lessened culpability. "Construing and applying the Eighth Amendment in the light of our D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 28 of 46

'evolving standards of decency,' we therefore conclude that such punishment is excessive and that the Constitution 'places a substantive restriction on the State's power to take the life' of a mentally retarded offender," wrote Justice Stevens. Chief Justice William H. Rehnquist and Justice Antonin Scalia filed dissenting opinions. Justice Clarence Thomas joined both. "This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game," argued Justice Scalia.

Case Name: Gregg v. Georgia, 428 U.S. 153 (1976) [x3] Issues: Eighth Amendment, Cruel and Unusual Punishment, Death Penalty, Fourteenth Amenedment Facts of the Case: A jury found Gregg guilty of armed robbery and murder and sentenced him to death. On appeal, the Georgia Supreme Court affirmed the death sentence except as to its imposition for the robbery conviction. Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and unusual" punishment that violated the Eighth and Fourteenth Amendments. Question: Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment? Finding: No. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed. Georgia's death penalty statute assures the judicious and careful use of the death penalty by requiring a bifurcated proceeding where the trial and sentencing are conducted separately, specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence's circumstances with other similar cases. Moreover, the Court was not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.

Case Name: Harmelin v. Michigan, 501 U.S. 957 (1991) Issues: Eighth Amendment, Cruel and Unusual Punishment, Non-Death Penalty, Fourteenth Amendment Facts of the Case: Following his conviction under Michigan law for possession of over 650 grams of cocaine, Ronald Harmelin was sentenced to life in prison without possibility of parole. Harmelin challenged his sentence as cruel and unusual, claiming it was disproportionate to the crime he committed and was statutorily mandated without consideration for the fact that he had no prior felony convictions. On appeal from an affirmance by the Michigan Court of Appeals, the Supreme Court granted certiorari. Question: Is a statutorily mandated sentence that does not allow for consideration of mitigating factors a violation of the Eighth Amendment's protection against cruel and unusual punishments? Finding: The Supreme Court upheld a life sentence imposed on the defendant for cocaine possession as a first-time offender, ruling that the state law imposing the sentence was not a violation of the Eighth Amendment. No. The Court, in a 5-to-4 decision, held that since the Eighth Amendment does not contain a proportionality guarantee, the determination of whether a punishment is "cruel and unusual" is not made with reference to the particular offense. Moreover, the Cruel and Unusual Punishment Clause protects against unusual methods of punishment, not necessarily cruel ones. As such, while Harmelin's life sentence may have been cruel, it was not constitutionally unusual or unprecedented.

Case Name: Stack v. Boyle, *** U.S. *** (1951) D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 29 of 46

Issues: Eighth Amendment Facts of the Case: *** Question: ** Finding: Deals with federal cases and establishes clearly that any bail set that goes beyond what is reasonable to guarantee that the accused will appear at a trial is excessive under the Eighth Amendment. States determine their own standards of reasonableness under their own criminal justice statutes.

I. The Bill of Rights – Then and Now (pp. 94-98) A. Civil Liberties are individual legal and constitutional protections against the government. They are essential to democracy because they concern the basic rights and freedoms that are guaranteed – either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers. 1. The original Constitution mentions specific rights considered to be fundamental freedoms by the founding fathers. a. Writ of Habeas Corpus – you must be brought before the court and informed of charges against you. b. No Bills of Attainder – You cannot be punished without a trial. c. No Ex Post Facto laws – Laws applied to acts committed before the laws’ passage are unconstitutional. 2. Americans’ civil liberties are set down in the Bill of Rights (the first 10 Amendments), but the courts are the arbiters of these liberties because they determine what the Constitution means in the cases that they decide. a. Although the original Constitution had no bill of rights, the states made it clear that adding one was a condition of ratification. b. The Bill of Rights was passed (ratified in 1791) at a period of history when British abuses of the colonists’ civil liberties were still a recent and bitter memory. 3. The rights guaranteed by the First Amendment are essential to democracy. 4. The rights guaranteed by the Fourth, Fifth, Sixth and Eighth Amendments protect all Americans but they also make it harder to punish criminals (a.k.a. Defendants’ Rights). 5. Political scientists have found that people are supporters of rights in theory, but their support often falters when it comes time to put those rights into practice. Conservatives’ Viewpoint (pp. 95) Liberals’ Viewpoint (pp. 95) Advocate narrowing the scope of Typically support a broader scope of government. government D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 30 of 46

Strongly support government-imposed limits Desire limiting government’s role in on abortion. prohibiting abortion. Strongly support government-sanctioned Desire limiting government’s encouragement prayers in public schools. of religious activities Desire government to be less hindered by the Support greater constraints on government’s concern for defendants’ rights. freedom of action in the criminal justice system.

B. The Bill of Rights was written to restrict the powers of the new central government (every state constitution had its own bill of rights). 1. In Barron v. Baltimore (1833), the Court ruled that the Bill of Rights restrained only the national government, not states and cities. 2. The Fourteenth Amendment (ratified in 1868) included guarantees of privileges and immunities of citizens, due process of law, and equal protection of the law, and explicitly applied these guarantees against the states. “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment) 3. Incorporation Doctrine provides the rationale for the process by which fundamental freedoms have been applied against state action through interpretation of the Fourteenth Amendment. a. It was not until 1925 that the court relied on the Fourteenth Amendment to find that a state government must respect some First Amendment rights (Gitlow v. New York). b. The Supreme Court explained the Incorporation Doctrine in the landmark case of Gideon v. Wainwright (1963), whereby the Court described the Fourteenth Amendment as embracing those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” c. At the present time, only the Third, and Seventh Amendments, the grand jury requirement of the Fifth Amendment, and the prohibition against excessive fines and bail in the Eighth Amendment have not been applied specifically to the states.

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4. Not everyone agrees that the Fourteenth Amendment incorporated parts of the Bill of Rights into state laws; in 1985, Edwin Meese (then U.S. Attorney General) strongly criticized Gitlow and called for “disincorporation” of the Bill of Rights.

II. Freedom of Religion “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (First Amendment)

A. The First Amendment includes two statements about religion and government, commonly referred to as the establishment clause and the free exercise clause.

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B. The establishment clause states that “Congress shall make no law respecting an establishment of religion.” (pp. 98-102) 1. This clause clearly prohibits an establishment of a national church in the United States (a reaction to the religious persecutions that had convinced many colonists to move to America). 2. Debate still continues over what else the First Congress may have intended for the establishment clause. a. Thomas Jefferson argued that the First Amendment created a “wall of separation” between church and state, which would prohibit not only favoritism but any support for religion at all. b. Proponents of aid to parochial schools (known as parochiaid) argue that it does not favor any particular religion; opponents claim that the Roman Catholic church gets most of the aid. 3. In Lemon v. Kurtzman (1971), the Supreme Court declared that aid to church-related schools must have a secular purpose, cannot be used to advance or inhibit religion, and should avoid excessive government “entanglement” with religion. a. Public funds cannot be used to pay teacher salaries or to provide transportation for students on field trips. b. Public funds can be used for school buildings, textbooks, computers, lunches, and transportation to and from school. 4. In a landmark decision in Zelman v. Simmons-Harris (2002), the Court upheld a program that provided some families in Cleveland, Ohio, state-funded vouchers that could be used to pay tuition at religious schools. 5. In the Equal Access Act of 1984, Congress made it unlawful for any public high school receiving federal funds to keep student groups from using school facilities for religious worship if the school opens its facilities for other student meetings. [The act was extended to elementary schools in 2001.] 6. School prayer is possibly the most controversial religious issue with a majority of the public not in favor of the Court’s decisions. a. In Abington School District v. Schempp (1963), the Court ruled that requiring public school students to participate in classroom religious activities violated the Free Exercise and Establishment clauses. b. In Engel v. Vitale (1962), the Court ruled that a nondenominational prayer at the start of the school day violated the Establishment clause. c. In Engle and Abington, the Court observed that “the place of religion in our society is an exalted one, but in the relationship

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between man and religion, the State is firmly committed to a position of neutrality.” 7. The Supreme Court rejected attempts to legalize school prayer by making it voluntary (Wallace v. Jaffree, 1985). 8. The Court ruled that Louisiana could not force public schools that taught evolution to also teach creationism (Edwards v. Aguillard, 1987). 9. Recent Supreme Court rulings brought some lowering of the “wall of separation,” as when the Court upheld the right of governmental entities to celebrate the Christmas holiday with Christmas displays that might include nativity scenes, if secular displays are also sufficiently included (Lynch v. Donnelly, 1984).

C. The Free Exercise Clause prohibits the abridgment of citizens’ freedom to worship, or not to worship, as they please. (pp. 102-103) 1. In Reynolds v. United States (1879), the Court upheld the federal law prohibiting polygamy even though Reynolds, a Mormon from Utah, claimed that the law limited his religious freedom. 2. In Wisconsin v. Yoder, 1972, the Court ruled that Wisconsin could not require Amish parents to send their children to public school beyond the eighth grade because it would violate long-held religious beliefs. 3. In Employment Division of Oregon v. Smith (1988), The Court ruled that Oregon could deny employment benefits to workers fired for using drugs (peyote) as part of their religious ceremony. 4. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), the Court ruled that governments that permit other forms of killing of animals may not then ban sacrifices or ritual killings. 5. In the Religious Freedom Restoration Act of 1993 Congress attempted to give people the right to practice religious activities unless prohibited by laws that are narrowly tailed and the government can show a “compelling interest.” However, in Boerne v. Flores (1997), the Courts ruled the Act unconstitutional.

III. Freedom of Expression (pp. 103-115)

“The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.” ~1984 Supreme Court A. Does “no law” in the First Amendment really mean “no law”? The courts have frequently wrestled with the question of whether freedom of expression (the right of individual Americans to hold and communicate views of their D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 34 of 46

choosing) like freedom of conscience (the right to believe whatever you want) is an absolute. 1. Supreme Court Justice Hugo Black believed that the words no law literally meant that Congress shall make no laws abridging the fundamental rights of the First Amendment. 2. The courts have often ruled that there are instances when speech needs to be controlled, especially when the First Amendment conflicts with other rights (as when Justice Oliver Wendall Holmes wrote in 1919 that “the most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theater and causing panic”. 3. In their attempts to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order, national security, and the right to a fair trial. 4. There are several types of speech: a. Pure Speech – the most common form of speech, verbal speech; given the most protection by the courts. b. Speech Plus – verbal and symbolic speech used together, such as a rally and then picketing; may also be limited. c. Symbolic Speech – Using actions and symbols to convey an idea rather than words (burning a draft card or flag, wearing an armband in protest); may be subject to government restrictions if it endangers public safety.

B. Advocates of regulating Hate Speech, forcefully argue that racial insults, like fighting words, are “undeserving of the First Amendment protection because the perpetrator’s intent is not to discover the truth or invite dialogue, but to injure the victim.” (Stanford Law Professor Charles R. Lawrence) 1. In Chaplinsky v. New York (1942), the Court ruled that the first amendment did not protect “fighting words.” 2. In R.A.V. v. St. Paul (1992), the Supreme Court ruled that the legislatures and universities may not single out racial, religious, or sexual insults or threats for prosecution as “hate speech” or “bias crimes” (although states may impose longer prison terms on people convicted of “hate crimes” without violating their rights to free speech).

C. Freedom of Press and Prior Restraint (pp. 106-107) 1. Prior restraint – a government’s actions that prevent material from being published; CENSORSHIP. 2. The Supreme Court has generally struck down prior restraint of speech and press (Near v. Minnesota, 1931), although the writer or speaker

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could be punished for violating a law or someone’s rights after publication. 3. School Newspapers are not a “public forum” and could be regulated in any “reasonable manner” by school officials (Hazelwood School District v. Kuhlmeier, 1988). 4. There are exceptions to the general doctrine that prohibits prior restraint. a. Wartime often brings censorship to protect classified information. b. Prior restraint has been demanded and secured by the national government for books written by former government personnel 5. New York Times v. United States (1971), established that even arguments of national security (albeit the Pentagon Papers) may not allow for prior restraint.

D. Free Speech and Public Order (pp. 107-109) 1. War often brings government efforts to enforce censorship. a. In Schenck v. United States (1919), Justice Oliver Wendall Holmes declared that government can limit speech if it provokes a clear and present danger of “substantive evils that Congress has a right to prevent.” b. The Smith Act of 1940 forbade the advocacy of violent overthrow of the American government. c. In Dennis v. United States (1951), the Court upheld prison sentences for several Communist Party leaders for conspiring to advocate the violent overthrow of the government. d. In Yates v. United States (1957) and Brandenburg v. Ohio (1969), the Court has found that it is permissible to advocate the violent overthrow of the government in the abstract, but not actually to incite anyone to imminent lawless action. e. Free speech advocates did little to stem the relentless persecution known as McCarthyism during the “cold war” of the 1950s, when Senator Joseph McCarthy’s unproven accusations that many public officials were Communists created an atmosphere in which broad restrictions were placed on freedom of expression. f. By the 1960s, the political climate had changed and the Court narrowed the interpretation of the Smith Act so that the government could no longer use it to prosecute dissenters. 2. Today, courts are very supportive of the right to protest, pass out leaflets, or gather signatures on petitions (as long as it is done in public places) but not supportive of inciting others to imminent lawless action.

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E. Free Press Versus Free Trial (pp. 109-111) 1. The Bill of Rights is a source of potential conflicts between different types of freedoms: the Constitution clearly meant to guarantee the right to a fair trial as well as the right to a free press, but a trial may not be fair if pretrial press coverage makes it impossible to select an impartial jury. 2. Journalists seek full freedom to cover all trials: they argue that the public has a right to know. a. Although reporters want trials to be open to them, they sometimes defend their right to keep some of their own files secret in order to protect a confidential source. b. A few states have passed shield laws to protect reporters in situations where they need to protect a confidential source; but in most states, reporters have no more rights than other citizens once a case has come to trial. c. The Supreme Court has ruled that (in the absence of shield laws) the right to a fair trail preempts the report’s right to protect sources (Branzburg v. Hayes, 1972) and has sustained the rights of police to obtain a search warrant to search the files of a student newspaper (Zurcher v. Stanford Daily, 1976).

F. Obscenity – efforts to define have perplexed the courts for years. (pp. 111- 113) 1. Work that some call “obscene” may be “art” to others. 2. The newest issue in the obscenity controversy involves the claim of some women’s groups that pornography degrades and dehumanizes women. 3. The courts have consistently ruled that states may protect children from obscenity (Osborne v. Ohio, 1991); adults often have legal access to the same material. 4. Although the Supreme Court has held that “obscenity is not within the are of constitutionally protected speech or press” (Roth v. United States, 1957), it has proven difficult to determine just what is obscene. 5. In Miller v. California (1973), the Court tried to clarify what could be classified as obscene, and therefore outside First Amendment protection a. Chief Justice Warren Burger wrote that materials were obscene if the work, taken as a whole, appealed to a “prurient interest” in sex; and if it showed “patently offensive sexual contact”; and if it “lacked serious artistic, literary, political, or scientific merit.” b. In Miller, the Court also ruled that decisions should be made to reflect the standards of local (not national) communities. c. In 2002, the Supreme Court overturned a law banning virtual child D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 37 of 46

pornography, suggesting that the Court views the Internet similarly to print media, with similar protections against government regulation.

G. Libel (the publication of statements known to be false that tend to damage a person’s reputation) and slander (spoken defamation) are not protected by the First Amendment. (pg. 114) 1. Libel and slander involve freedom of expression issues that involve competing values. a. If public debate is not free, there can be no democracy. b. Conversely, some reputations will be unfairly damaged in the process. 2. The Court has held that statements about public figures are libelous only if made with malice and reckless disregard for the truth (New York Times v. Sullivan, 1964). a. The right to criticize the government (which the Supreme Court termed “the central meaning of the First Amendment”) is not libel or slander. b. In 1984, General William Westmoreland dropped his suit against CBS in return for a mild apology; he realized that it would be impossible to prove that the network had been intentionally malicious, even though he was able to show that CBS had knowingly made factual errors. 3. Private persons only need to show that statements about them were defamatory falsehoods and that the author was negligent.

H. Symbolic Speech refers to actions that do not consist of speaking or writing but that express an opinion. (pp. 114-115) 1. Broadly interpreted, freedom of speech is a guarantee of freedom of expression, as seen in Tinker v. Des Moines Independent School District (1969) when the Court ruled that wearing black armbands in protest of the Vietnam War was symbolic speech, protected by the First Amendment. 2. The doctrine of symbolic speech is not precise: burning a flag is protected speech (Texas v. Johnson, 1989), but burning a draft card is not (U.S. v. O’Brien, 1968). 3. Fraud and incitement to violence are considered action rather than speech (and action can be limited more easily by the government than speech).

I. Commercial speech (such as advertising) is more restricted than are D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 38 of 46

expressions of opinion on religious, political or other matters. (pp. 115-118) 1. The Federal Trade Commission (FTC) decides what kinds of materials may be advertised on radio and television, and regulates the content of advertising. a. FTC attempts to ensure that advertisers do not make false claims for their products, but “truth” in advertising does not prevent misleading promises. b. Although commercial speech is regulated more rigidly than the other types of speech, the courts have been broadening its protection under the Constitution; in recent years, the courts have struck down many restrictions (including restraints against advertising for professional services and for certain products such as condoms) as violations of freedom of speech. 2. The Federal Communication Commission (FCC) regulates the content and nature (and the very existence) of radio and television broadcasting – the public airwaves. a. Radio and television stations are subject to more restrictions than the print media (justified by the fact that only a limited number of broadcast frequencies are available). b. A licensed station must comply with regulations that include provisions for a certain percentage of broadcast time for public service, news, children’s programming, political candidates, or views other than those its owners support. c. In light of new technology, the line becomes blurred between the private communications through cable and satellite versus that of the public airwaves. 3. In Miami Herald Publishing Company v. Tornillo (1974), the Supreme Court held that a state could not force a newspaper to print replies from candidates it had criticized, illustrating the limited power of government to restrict the print media. 4. In Red Lion Broadcasting Company v. Federal Communications Commission (1969), the Court upheld restrictions on radio and television broadcasting demonstrating that there are much tighter restrictions on broadcast media than those on print media. 5. The Telecommunications Act of 1996 requires cable television operators providing channels “primarily dedicated to sexually-oriented programming” either to fully scramble or otherwise fully block” those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as between 10PM and 6AM. 6. In 2000 in United States v. Playboy Entertainment Group, the D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 39 of 46

Supreme Court concluded that targeted blocking, in which subscribers can ask their cable companies to block a signal to their homes, is less restrictive than banning and is a feasible and effective means of furthering its compelling interests.

IV. Freedom of Assembly – “Congress shall make no law respecting…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – the basis for forming interest groups and political parties, for picketing and protesting in groups. (pp. 116-118)

A. Right to Assemble – the right to gather together in order to make a statement. 1. Within reasonable limits (called time, place, and manner restrictions), freedom of assembly includes the rights to parade, picket, and protest. 2. The Supreme Court has generally upheld the right of any group – no matter how controversial or offensive – to peaceably assemble on public property (Dejonge v. Oregon, 1937). 3. The balance between freedom and order is tested when protest verges on harassment (as illustrated by the dispute over protesters lined up outside abortion clinics). B. Right to Associate – Freedom to associate with people who share a common interest. 1. The right to associate includes the right to meet with people who want to create political change. 2. In 1958, the Court found Alabama’s attempt to require the NAACP to turn over its membership list to be an unconstitutional restriction of freedom of association (NAACP v. Alabama).

V. Right to Keep and Bear Arms (2nd Amendment) - “The right of the people to keep and bear arms, shall not be infringed.”

A. Although the historical intent of the Second Amendment was the right of each state to maintain an armed militia, it has been interpreted as the right of individuals to won weapons. 1. The National Rifle Association has become a primary interest group in supporting the gun enthusiast and hunter’s right to purchase and use arms. 2. With the issue of crime and violence a significant concern of society, laws have been proposed restricting the availability, use, and kinds of weapons.

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B. Until June, 2008, United States v. Miller was the only case to be heard by the Supreme Court regarding the 2nd Amendment. The case determined that a section of the National Firearms Act of 1934, which made it a crime to ship certain kinds of weapons across states lines unless they were registered, was constitutional because it did not have any link to a state militia. C. The 1993 Brady Bill (named after President Reagan’s press secretary who was seriously injured by a handgun in the attempted assassination of the president) placed restrictions on handgun registration, setting up a minimum waiting period before purchase. 1. Many states had to change their laws based on this legislation. 2. In 1997, the Supreme Court struck down the part of the law forcing local officials to perform instant checks. 3. The National Rifle Association lobbied against its passage, insisting that it would not stop criminals from obtaining weapons. They used the same rationale in arguing against the passage of an assault weapons ban that was part of the Crime Bill (1994).

VI. Right of Privacy - the Constitution does not specifically mention right to privacy. The Supreme Court has furled that the First, Third, Fourth, Ninth, and Fourteenth Amendments created “zones of privacy” and enhanced the concept of enumerated rights. (pp. 126-129)

A. Quartering of soldiers “in time of peace” shall be illegal “without the consent of the owner.” (3rd Amendment) 1. The only time the Third Amendment has been used by the government was during the Civil War when the North quartered troops in Southern mansions. 2. There have been NO Supreme Court cases involving the Third Amendment.

B. “ 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…” (4th Amendment) 1. No court may issue a search warrant (a written authorization from a court specifying the area to be searched and what the police are searching for) unless probable cause (when the police have reason to believe that a person should be arrested) exists. 2. An exception to the probable cause component is the “plain view” characteristic. It allows police to obtain evidence that is in sight of the investigators.

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3. Warrantless searches are valid if probable cause exists, if the search is necessary to protect an officer’s safety (Terry v. Ohio, 1968), or if the search is limited to material relevant to the suspected crime or within the suspect’s immediate control. 4. Since 1914, the courts have used the exclusionary rule to prevent illegally seized evidence from being introduced in the courtroom. a. The rule that evidence, no matter how incriminating, cannot be introduced into a trial if it was not constitutionally obtained. b. In Mapp v. Ohio (1961), the Supreme Court incorporated the exclusionary rule within the rights that restrict the states as well as the federal government. c. Critics of the exclusionary rule argue that its strict application may permit guilty persons to go free because of police carelessness or innocent errors (or “technicalities”). d. Supporters of the exclusionary rule respond that the Constitution is not a technicality; defendants’ rights protect the accused in a system whereby everyone is presumed to be innocent until proven guilty. 5. Nix v. Williams (1984), the Court established the inevitable discovery rule, allowing evidence discovered as the result of an illegal search to be introduced if it can be shown that the evidence would have been found anyway. 6. Court established the good-faith exception to allow evidence seized by the police mistakenly while believing they were under a constitutionally valid warrant ( United States v. Leon ).

C. The Supreme Court first referred to the idea that the constitution guarantees a right to privacy in Griswold v. Connecticut (1965) involving a Connecticut law that forbade contraceptives. The Court found that various portions of the Bill of Rights cast “penumbra” (or shadows) – unstated liberties implied by the explicitly stated rights – that protected a right to privacy, including a right to family planning between husband and wife.

D. The most important application of privacy rights came in the area of abortion. (pp. 127-129) 1. Supreme Court Justice Harry Blackmun’s opinion in Roe v. Wade (1973) followed that of medical authorities in dividing pregnancy into three equal trimesters. a. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. [Right to Privacy] D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 42 of 46

b. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c. For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 2. A clinic in St. Louis challenged the constitutionality of a Missouri law that forbade the use of state funds or state employees to perform abortions, but the Court upheld the law in Webster v. Reproductive Health Services (1989). 3. The Court has also upheld laws requiring minors to obtain the permission of one or both parents or a judge before obtaining an abortion; and in Rust v. Sullivan (1991), the Court upheld a Department of Health and Human Services ruling that provided that family planning services that received federal funds could not provide women with any counseling regarding abortions. (President Clinton lifted the ban on abortion counseling on his third day in office.) 4. In 1992, the Court changed its standard for evaluating restriction on abortion from one of “strict scrutiny” of any restraints on a “fundamental right” to one of “undue burden” that permits considerably more regulation (Planned Parenthood v. Casey). 5. In 1997, the Court also upheld a 15-foot buffer zone around a clinic to protect against the harassment of protestors. In another case, the Court decided that abortion clinics can invoke the federal racketeering law to sue violent anti-abortion protest groups for damages. 6. In 2000, the Court held in Sternberg v. Carhart that Nebraska’s prohibition of “partial birth” abortions was unconstitutional because it placed an undue burden on women seeking an abortion by limiting their options to less safe procedures and because the law provided no exception for cases where the health of the mother was at risk.

VII. Fifth Amendment

“ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offense to be twice put in jeopardy…nor shall

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be compelled…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.”

A. Self-incrimination - Suspects cannot be compelled to provide evidence that can be used against them; no person “shall be compelled to be a witness against himself.” (pp. 121-122) 1. The burden of proof rests on the police and the prosecutors, not the defendant. 2. This right applies to congressional hearings and police stations, as well as to courtrooms. 3. Suspects must testify if the government guarantees immunity from prosecution. B. Miranda v. Arizona (1966) set guidelines for police questioning of suspects. 1. Suspects must be informed of their constitutional right to remain silent. 2. Suspects must be warned that what they say can be used against hem in a court of law. 3. Suspects must be told that they have a right to have a lawyer present during questioning, and that a lawyer will be provided if the accused cannot afford one. C. In 1991, the Court held that a coerced confession is “harmless error” if other evidence is sufficient for conviction ( Arizona v. Fulminate ). D. Entrapment - If law enforcement officials encourage persons to commit crimes (such as accepting bribes or purchasing illicit drugs) that they otherwise would not commit, convictions for these crimes will be overturned by the courts. E. Double Jeopardy means that once a verdict is handed down, you cannot be tried twice for the same crime. That does not mean that if you are found innocent of state charges, you cannot be tried for a federal offense dealing with the same issue. (i.e., Rodney King) F. Eminent Domain allows the government to take property for public use but also requires that government provide just compensation for that property.

VIII. Right to Counsel “ In all criminal prosecutions, the accused shall enjoy the right to a speedy ad public trial…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have…process for obtaining D:\Docs\2017-07-19\046afd68408fc18b823b487d41023ce5.doc4/11/12 12:23 PM Chapter 4 Notes Page 44 of 46

witnesses…and to have the Assistance of Counsel for his defense.” (Sixth Amendment) (pp. 122-123)

A. Although the Sixth Amendment has always ensured the right to counsel in federal courts, this right was not extended (incorporated) to state courts until the 1960s. B. In 1932, the Supreme Court ordered states to provide an attorney for indigent (poor) defendants accused of a capital crime (Powell v. Alabama). C. In 1963, the Court extended the same right to everyone accused of a felony (Gideon v. Wainwright, which was heard by the Court only after Clarence Gideon wrote a pauper’s petition with the help of the prison’s law books). D. The Court later ruled that a lawyer must be provided for the accused whenever imprisonment could be imposed (Argersinger v. Hamlin, 1972).

IX. Trial by Jury - “…the right of trial by jury shall be preserved…” (Sixth Amendment) (pp. 123-124)

A. The Sixth Amendment ensures the right to a speedy trial and an impartial jury. B. Most cases (90 percent) are settled through plea bargaining rather than through trial by jury. 1. In plea bargaining, an agreement is made between a defendant’s lawyer and a prosecutor to the effect that a defendant will plead guilty to a lesser crime or to fewer crimes and often results in greatly reduced punishment. 2. Critics believe that plea bargaining permits many criminals to avoid deserved punishment; however, it also saves the state time and money. C. The Constitution does not specify the size of a jury; tradition has set jury size at twelve, but six jurors are sometimes used in petty cases. D. Juries traditionally had to be unanimous in order to convict, but the Burger Court permitted states to use fewer than twelve jurors and to convict with less than a unanimous vote. Federal courts still employ juries of twelve persons and require unanimous votes for a criminal conviction.

X. Cruel and Unusual Punishment - “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Eighth Amendment) (pp. 124- 126)

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1. As part of the procedural due process, an accused has the right to post bail, an amount of money set by the court as a guarantee that the person will return to stand trial. This amount may not be excessive and is imposed based on the nature of the crime and the history of the accused. Critics of the system raise the issue that if the accused cannot afford the bail, even if it is not excessive, then the person is unduly punished prior to the trial. 2. Most of the constitutional debate over cruel and unusual punishment has centered on the death penalty. a. Witherspoon v. Illinois (1968) – overturned a death sentence because opponents of the death penalty had been excluded from the jury at sentencing. b. Furman v. Georgia (1972) – overturned Georgia’s death penalty law because its imposition was “freakish” and “random” in the way it was arbitrarily applied (particularly with regard to factors such as race and income). c. Woodson v. North Carolina (1976) – ruled against mandatory death penalties. d. Gregg v. Georgia (1976) – found that the death penalty is “an extreme sanction, suitable to the most extreme of crimes.” e. McCleskey v. Kemp (1987) – upheld the constitutionality of the death penalty against charges that it violated the Fourteenth Amendment because minority defendants were more likely to receive the death penalty than were white defendants. 3. The Supreme Court has recently held that it was constitutionally acceptable to execute 16 or 17 year olds. 4. The Court has made it more difficult for death row inmates to force legal delays through habeas corpus petitions; and has allowed “victim impact” statements detailing the character of murder victims and their families’ suffering to be used against a defendant. 5. In 2002, however, the Court prohibited executing mentally retarded persons and required that a jury, not just a judge, find an aggravating circumstance necessary for imposition of the death penalty.

XI. Individual Rights - “The enumeration in the Constitution, of certain rights, shall not be construed to deny…others retained by the people.” (9th Amendment)

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B. Such issues as abortion and the “right to die” have come under the umbrella of this amendment.

XII. Individual Rights under the States (10th Amendment)

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (10th Amendment)

A. Extends to the states the right to create laws for the best interests of their people. B. It is the basis of federalism, and when this amendment comes into conflict with the other amendments of the Bill of Rights and the Fourteenth Amendment, the outcome of the dispute further defines the changing nature of federalism. C. The more the Supreme Court nationalized the Bill of Rights through the application of the Fourteenth Amendment, the more judicial federalism made the Bill of Rights apply directly to the states.

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