Korematsu vs. United States (1944)

Civil Liberties
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Civil Liberties—protections against government that
guarantee the safety of persons, opinions, and
property from the arbitrary acts of government
Civil rights—positive acts of government that seek
to make constitutional guarantees a reality
Civil liberties are relative—you cannot infringe on
the rights of others. The commitment to personal
liberty stems from colonial times
Bill of Rights was the original set of civil liberties
The Bill of Rights apply only against the national
government—NOT THE STATES
Sometimes rights conflict—ex. Sheppard trial
Sheppard v. Maxwell (1966)
Dr. Sam Sheppard was tried for
murdering his wife
 Trial received extensive media coverage
 Sheppard appealed; sensationalism
made a fair trial impossible
 Appeals court agreed; new trial granted
 Gag orders now common; juries can
also be sequestered
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Role of the 9th Amendment
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Ninth Amendment provides for
unenumerated rights. These include:
Right of people not be tried using
evidence obtained illegally
 Abortion rights (?) –continually
challenged
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Who is guaranteed these
rights?
Constitution covers aliens as well as
citizens
 At the same time, Constitution does not
apply until you enter the U.S. or its
territorial waters.
 Article IV, Section 2, Clause 1 and the
14th Amendment contain privileges and
immunities clauses
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Korematsu v. United States (1944)
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n120,000 Japanese living on U.S. Pacific
coast were relocated to internment camps
inland following 12/7/41. Isei and Nisei
interned.
Korematsu sued to terminate policy.
Supreme court upheld the evacuation as a
reasonable wartime emergency measure
This was despite the fact that the Court ruled
the same day that once the loyalty of any
citizen had been established, internment had
to end for that citizen (Ex parte Endo)
In 1988, Congress offered an official apology
and $20,000 to each internee still alive.
The Role of Federalism
Federalism complicates the protection
of individual rights—but this is a good
thing
 Bill of Rights only applied to the
National Government originally.
 Supreme Court affirmed this in
Barron v. Baltimore, 1833.
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Barron v. Baltimore (1833)
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City of Baltimore, while paving streets,
diverted some streams
As a result Barron’s wharf dried up and was
unusable.
Barron sued, citing 5th Amendment protection
of eminent domain
SC decided that Bill of Rights was not
applicable to states; states had ample
opportunity to guarantee such rights if they
chose to
Barron loses, as SC cannot take case for lack
of federal question.
After Barron……
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Barron seems to suggest that states
can deny rights willy-nilly.
 Two reasons, however, prevent this
occurrence: First, states have their own
Bills of Rights in Constitutions, and the
14th Amendment guarantees that most
of the Bill of Rights must be observed
by the states.
14th Amendment (1868)
Contains Due Process Clause: “No state
shall…deprive any person of life, liberty, or
property, without due process of law.”
 Procedural and Substantive Due Process
 Due process= Government must act fairly and
in accord with established rules.
 Procedural--government must follow legal
procedures for putting you on trial, etc.
 Substantive-- laws must be fair themselves
 Supreme Court has nationalized parts of the Bill
of Rights--NOT #2, #3, #7,#9, and #10. Why
those?
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Weeks v. United States (1914)
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Weeks was charged with the use of the mails for the
purpose of transporting lottery tickets
Evidence was seized without a warrant
Normally searches require a warrant based on
probable cause
Weeks was still convicted in federal court
On appeal, the Supreme Court threw out conviction.
SC developed exclusionary rule: Evidence obtained
illegally may not be used against a defendant in
Court
But what about STATE courts using evidence
obtained unlawfully??
Wolf v. Colorado (1949)
Wolf was convicted of conspiracy to commit abortion.
The evidence used against him consisted of his clinic
appointment book and interviews of witnesses whose
names were in the book. No search warrant was
acquired prior to the raid.
 Wolf was convicted in Colorado, then appealed,
arguing that his 4th Amendment right to be exempt
from unreasonable searches and seizure was violated
 Court ruled that states do not have to give suspects
the same protection that federal courts must.
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Mapp v. Ohio (1963)
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One night, seven police officers broke into and searched
Dollree Mapp's home in Cleveland, Ohio. The search was
prompted by an informant telling them that a suspect in a
bombing was there.
No sign of the suspect was found; however, police did find
some literature deemed obscene.
Although the police claimed to have a search warrant, none
was produced. In court, their search was upheld and Mapp
was convicted of the possession of obscene material.
The Supreme Court overturned this conviction on the
grounds that the search was illegal. The Mapp case
incorporated the 4th amendment into the Due Process
clause of the 14th amendment and created the "exclusionary
rule," which prevents the use of evidence gained by these
so-called illegal searches.
Opponents of the exclusionary rule argue "the criminal is to
go free because the constable has blundered," to which
Justice Clark answered "The criminal goes free if he must,
but it is the law that sets him free."
Search and Seizure Summary
When can reasonable searches of individuals be made?
a) With a properly obtained search warrant based on
probable cause)
b) Incident to an arrest
 2. What can the police search, incident to a lawful arrest?
a) The individual being arrested
b) Things in plain view
c) Things under the immediate control of the individual
 3. What about an arrest of someone in a car?
a) Answer changes almost yearly and recent cases have
allowed the police to do more searching
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1.
Terrorism and Civil Liberties:
Provisions in the USA Patriot Act
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Government may tap any telephone used by a suspect, after receiving a
court order. Previously, a separate court order was required for each
telephone.
Government may tap, with a court order, internet connections.
Government may seize, with a court order, voicemail.
Investigators can share information learned in grand jury proceedings.
Any non-citizen may be held as a security risk for seven days, longer if
certified to be a security risk.
Federal government can track money across U.S. borders and among banks.
Statute of limitations on terrorist crimes eliminated; penalties increased.
By Executive order: A non-citizen believed to be a terrorist, or to have
harbored a terrorist, will be tried by a military court.
* Tried before a commission of military officers.
* Two-thirds vote of the commission to find the accused guilty.
* Appeal to the Secretary or Defense or the President only
1st Amendment Nationalizations
All 5 sections of the first amendment
have been nationalized.
 Freedom of Religion
 Freedom of Assembly
 Freedom of Petition
 Freedom of Speech
 Freedom of the Press
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Zenger Trial (1735)
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Peter Zenger printed some disparaging
comments in a newspaper about the King’s
appointee, Governor William Cosby.
Comments were TRUE!
This was a prohibited act, however, and
Zenger was arrested.
Andrew Hamilton represented Zenger in what
seemed a hopeless case
Jury, however found him not guilty because
of sympathy
We call that “Jury nullification.”
Gitlow v. New York (1925)
Benjamin Gitlow, a Communist, was
convicted in NY state courts of criminal
anarchy after he published a pamphlet
encouraging violent overthrow of the
government
 Supreme Court upheld Gitlow’s conviction
BUT stated that the due process clause of the
14th Amendment REQUIRES states to protect
freedom of speech and the press.
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Near v. Minnesota (1931)
A newspaper published malicious material
about the members of a grand jury. Near, the
publisher, was convicted under a state statute
which authorized restraint of a newspaper
publication. He challenged on First and
Fourteenth Amendment grounds.
 The Supreme Court found the statute
unconstitutional. "The fact that the liberty of
the press may be abused by miscreant
purveyors of scandal does not make any the
less necessary the immunity of the press from
previous restraint in dealing with official
misconduct. Subsequent punishment for such
abuses as may exist is the appropriate remedy,
consistent with constitutional privilege."
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NY Times v. Sullivan (1964)
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Facts: 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.
Issue/Key Q: Did Alabama’s libel law violate the 1st Amendment?
Decision: 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.
NY Times v. United States (1971)
"Pentagon Papers" Case
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Facts: 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 United
States activities in Vietnam. The President argued
that prior restraint was necessary to protect national
security.
Issues: Is prior restraint permissible in a bona fide
case of national security?
Majority Opinion (Brennan): The injunctions were
unconstitutional prior restraints and that the
government had not met the heavy burden of proof
required for prior restraint. 6-3 decision
DeJonge v. Oregon (1937)
DeJonge was indicted under a state Criminal
Syndicalism Law. He merely spoke at a
Communist Party meeting.
 The Supreme Court reversed the conviction
because he was not indicted for participating in
its organization, or for joining it, or for
soliciting members, or for distributing its
literature, but merely speaking at the meeting.
 SC: "Freedom of speech and of the press are
fundamental rights which are safeguarded by
the due process clause of the Fourteenth
Amendment of the Federal Constitution.... The
right of peaceable assembly is a right cognate
to those of free speech and free press.”
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Cantwell v. Connecticut (1940)
Facts: Newton Cantwell and others, members of the
Jehovah's Witnesses, went from house to house in New
Haven, Ct., selling books. They were equipped with a
record player that described the books. They asked
each householder for permission to play the record
before doing so.
 They were convicted under a statute that said that no
person could solicit money for alleged religious
purposes from someone not of their sect unless they
have first secured a permit from the Secretary of the
Public Welfare Council.
 Issue: Does this statute deprive the appellants of their
liberty and freedom of religion in violation of the First
Amendment as guaranteed by the Fourteenth
Amendment?
 Decision: YES
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Hazelwood v. Kuhlmeier (1988)
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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?
Conclusion: 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.
Other Nationalizations
4th Amendment’s ban on illegal searches and seizures,
exclusionary rule, Mapp v. Ohio
 5th Amendment’s ban on self-incrimination and double
jeopardy, Malloy v. Hogan and Benton v. Maryland
 6th Amendment’s guarantee of right to counsel,
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Gideon v. Wainwright
6th Amendment’s right of persons to confront
witnesses, Pointer v. Texas
 6th Amendment guarantee of right to compel
testimony, Washington v. Texas
 6th Amendment guarantee of right to a speedy trial,
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Klopfer v. North Carolina
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8th Amendment’s ban on cruel and unusual
punishment, Robinson v. California
Gideon v. Wainwright (1963)
Court did not follow stare decisis
 Betts v. Brady (1942) held that only defendants in
capital cases must receive legal representation
 Clarence Earl Gideon was arrested for attempting to
break into and enter a poolroom with intent to commit
a misdemeanor. Under Florida law, this was a felony.
 Gideon, who was illiterate and had no money to hire a
competent attorney, requested council be appointed.
The trial judge ruled that Gideon was competent
enough to handle his own defense.
 Gideon was convicted and sent to prison, where he filed
a habeas corpus petition in the Supreme Court. The
Court agreed to hear his case and council was
appointed. The Supreme Court found in favor of Gideon.
 In doing so, it declared that all defendants in felony
cases had the right to an attorney. Gideon was given a
new trial with a lawyer and the jury acquitted him.
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Malloy v. Hogan, 378 U.S. 1
(1964).
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The petitioner, who had been arrested and pleaded
guilty to a gambling charge, refused to testify
before the state court conducting an inquiry into
alleged gambling and other criminal activities.
The Court held that the states may not compel
incriminating testimony.
Thus the Fifth Amendment provision against selfincrimination applies to the states by way of the
due process clause of the Fourteenth Amendment.
This case overrules Adamson v. California (1947).
Benton v. Maryland (1969)
Benton tried twice for larceny, convicted second
time-conviction overturned
 Justice Marshall, writing for the Court, describes the
protection against double jeopardy as "a
fundamental ideal in our constitutional heritage"
 Although it reverses the particular decision by Justice
Cardozo in Palko, the Court still adheres to his
concept of "ordered liberty" as an overall criterion for
the incorporation doctrine
 Justice Cardozo had proposed a standard for
selective or partial incorporation of rights that are of
the "very essence of a scheme of ordered liberty."
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Robinson v. California
(1962)
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The defendant was charged under a statue which made
addiction to the use of narcotics a crime. All the
prosecution under this statue had to show was that the
defendant had physical marks which suggested that he
was a drug user.
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Legal Reasoning: The court ruled that this statue
made the "status" of drug addiction a criminal offense.
The court stated that drug addiction can be considered a
disease and that makes this statue similar to a statue
punishing people for being mentally sick. The court ruled
that this statue was unconstitutional due to its cruel and
unusual nature under the Eighth and Fourteenth
Amendments.
Duncan v. Louisiana (1968)
Prior to his trial for battery, Duncan was
denied a request for a jury trial.
 State law allowed a jury trial only for
capital crimes or cases in which
punishment could include hard labor.
 Petitioner challenged on Fourteenth
Amendment due process grounds.
 The Supreme Court reversed the
conviction.
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Pointer v. Texas (1965)
Pointer and 1 other person were arrested and brought
before a state judge for preliminary hearing on a
robbery charge. The complaining witness testified but
petitioner, who had no counsel, did not crossexamine. Pointer was later indicted and tried. The
witness had moved to another State, and the
transcript of his testimony at the hearing was
introduced over petitioner's objections that he was
denied the right of confrontation. He was convicted
and the highest state court affirmed.
 SC: Evidence not introducible. The right granted to an
accused by the Sixth Amendment to confront the
witnesses against him, which includes the right of
cross-examination, is a fundamental right.
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Klopfer v. North Carolina (1967)
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Klopfer was tried on a North Carolina criminal trespass
indictment ended with a declaration of a mistrial when
the jury failed to reach a verdict. After the case had
been postponed for two terms, Klopfer filed a motion
with the trial court to ascertain when the State
intended to bring him to trial.
The State's prosecutor moved for permission to take a "
nolle prosequi with leave," a procedural device whereby
the accused is discharged from custody but remains
subject to prosecution at any time in the future
Klopfer objected order would violate his federal right to
a speedy trial, but the trial court granted the motion.
SC: The State denied Klopfer the right to a speedy trial
guaranteed to him by the Sixth and Fourteenth
Amendments of the Federal Constitution.
Washington v. Texas (1967)
Washington was charged with a fatal shooting. His
alleged coparticipant was tried first and convicted of
murder. Washington sought to secure his
coparticipant's testimony for his defense.
 Two Texas statutes prevented a participant accused
of a crime from testifying for his coparticipant (but
not for the prosecution), so the judge sustained the
State's objection to the coparticipant's testimony.
 Washington was found guilty and the conviction was
upheld on appeal.
 SC: The right under the Sixth Amendment of a
defendant in a criminal case to have compulsory
process for obtaining witnesses in his favor applies
to the States through the 6th and 14th Amendments
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Freedom of Religion
Establishment Clause—Government may not
establish an “official” religion.
 Government, however, has undertaken a
number of practices that support religion—
churches tax-free, oaths include God,nat’l
anthem, coins have God in them
 Free Exercise Clause—Government may not
place restrictions on the practice of religion
(although in may inhibit certain practices)
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Pierce v. Society of Sisters
(1925)
Oregon law required parents to send
children to public schools
 Law clearly intended to undermine
parochial education
 SC found the law to be an unreasonable
restriction in conflict with the 14th
Amendment’s Due Process Clause
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Everson v. Board of Education (1947)
(A.K.A. NJ School Bus Case)
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A New Jersey statute authorized local school
districts to contract for the transportation of
children to schools. Ewing Township authorized a
reimbursement to taxpayers using the public bus
system in the township to transport their children.
Reimbursement was also made to the parents of
Catholic school children going to and from
parochial schools. A taxpayer challenged the right
of the board to reimburse parents of parochial
school students.
Critics: Law was tacit support of religion
Issue: Does the statute violate the Fourteenth
Amendment and the First Amendment?
Decision: No. (vote 5-4) Busing was “safety” decision.
Released Time
Allows public schools to release students from school to attend
religious classes
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McCollum v. Board
of Education (1948)
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Zorach v. Clauson
(1948)
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SC struck down
released time
program in
Champaign, IL
because it used
public facilities
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Court upheld NYC
program because it
required that
religion classes must
be held in private
places
Prayers and the Bible in School
Engel v. Vitale (1962): SC outlawed even
prayers that are voluntary in school.
 Abington School District v. Schempp (1963):
Outlawed PA law that required that each
school day begin with readings from the
Bible and reciting the Lord’s Prayer
 Murray v. Curlett (1963): erased Baltimore
law
 Stone v. Graham (1980): no 10
commandments
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Engel v. Vitale (1962)
Supreme Court struck down a law approved by
the New York Board of Regents requiring
students to recite daily a nonsectarian prayer:
 "Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers
and our Country."
 Justice Black's opinion for the Court said that
"it is no part of the business of government to
compose official prayers for any group of the
American people to recite as a part of a
religious program carried on by government.
Nor was the prayer saved because individual
students were allowed to remain silent or be
excused from the room.
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Stone v. Graham (1980)
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Stone was one of a group of parents who
challenged a Kentucky law requiring the posting of
the Ten Commandments in each public school
classroom.
At the bottom of the 16”x20” copies was a
notation which read “secular application of the
Ten Commandments is clearly seen in its adoption
as the fundamental legal code of Western
civilization and the Common Law of the United
States.”
The copies of the Ten Commandments were
purchased with money from private contributions.
SC voted 5-4 that KY law was unconstitutional
Dissent: Justice Rehnquist: laws based on 10 C.
Wallace v. Jaffree (1985)
An Alabama law required that each school day begin
with a moment of “silent meditation or voluntary
prayer”.
 A student’s parent sued claiming that the law
violated the Establishment Clause by compelling
students to pray. It exposed students to
indoctrination.
 The District Court allowed the practice; Court of
Appeals found the practice unconstitutional
 This decision illustrates the scrutiny the Supreme
Court is willing to use. The intentions of the
legislature that passed it was enough to
demonstrate its unconstitutionality.
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Lee v. Weisman (1992)
A Jewish parent in Providence, Rhode Island
challenged the local school district's policy of including
a prayer in its graduation ceremonies. At the disputed
graduation, a Rabbi thanked God for “keeping us
alive, sustaining us and allowing us to reach this
special, happy occasion."
 The Bush administration agreed with the school board
which argued that the prayer did not demonstrate a
religious endorsement.
 By a 5-4 vote, SC declared prayer unconstitutional at
HS graduations
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Student Religious Groups
Equal Access Act of 1984: Any public HS
receiving funds must allow student religious
groups to meet like any other group would be
permitted to
 Upheld in Westside Community Schools v.
Mergens (1990): HS denied a “Christian Club”
permission to form, SC said that was a
violation of Establishment Clause
 Same deal for public universities,
Rosenberger v. Univ. of Virginia (1995)
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Evolution
Scopes Trial (1925) upheld Tennessee’s
law on teaching evolution
 SC re-examined issue in 1968 with
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Epperson v. Arkansas
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Also struck down a Louisiana law that
required equal instruction in creation
science if evolution is taught Edwards v.
Aguillard (1987)
Seasonal Displays by Gov’t
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Lynch v. Donnelly (1984): Pawtucket,
RI could include religious displays in its
secular-religious mix of a display
 County of Allegheny v. ACLU (1989):
County seasonal display of a religious
symbol alone is unacceptable, since it
endorsed Christian doctrine.
Chaplains in Congress/State Leg
Daily sessions of Congress and most
state leg. Begin with PRAYER
 In Marsh v. Chambers (1983), SC
allowed these prayers since:
 1) Adults are not susceptible to
indoctrination
 2) Prayers have always been there
historically
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Tax Exemptions
Walz v. NYC Tax Commission (1970)
Churches normally receive tax exemptions
 Tacit support of religion, since it increases the
property tax burden of all
 SC decided that it was merely “benevolent
neutrality” towards religion
 Even so, church schools that practice racial
discrimination can be denied tax-exempt status,
Bob Jones v. United States (1983)
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Lemon v. Kurtzman (1971)
Supreme Court struck down a PA law that
provided for reimbursements to private
schools to cover teacher salaries, textbooks,
and materials, required close state
supervision
 Three part test: 1) Aid must be secular
purposes 2) Action must not advance or
inhibit religion 3) Must avoid “excessive
entanglement” of government and religion
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Lemon-Related Cases
States can use public funds to laon textbooks
to parochial schools, Meek v. Pittinger (1975)
BUT…………..
 Tax monies cannot be used to pay any part of
the salaries of teachers in parochial schools,
even if those teachers teach all secular courses.
Why? SC stated in Grand Rapids SD v. Ball
(1985) that books can be checked for content,
but the way a teacher handles a class cannot.
 Several cases permit states to offer tax breaks
to parents who take their children to religious
schools
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Zelman v. Simmons-Harris
(2002)
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Cleveland schools some of the worst performing in the nation
Introduce voucher system where parents can take children to any
private school and receive money
82% of schools receiving money parochial.
SC: Still Constitutional.
Under the Private Choice Test developed by the court, for a voucher
program to be constitutional it must meet all of the following criteria:
 the program must have a valid secular purpose,
 aid must go to parents and not to the schools,
 a broad class of beneficiaries must be covered,
 the program must be neutral with respect to religion, and
 there must be adequate nonreligious options.
The Free-Exercise Clause Cases
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Reynolds v. United States (1879):
Morman practicing polygamy was
convicted, appealed, SC stated that he
had to abide by federal law.
 Jacobson v. Massachusetts (1905):
Schoolchildren may be required to have
vaccinations
 McGowan v. Maryland (1961): Blue laws
declared legal; businesses may be
closed/restricted on Sunday
More Free Exercise Clause….
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Oregon v. Smith (1990): Native American was
fired from job because he used peyote, and
was denied state of Oregon employment
benefits; sued because he used it in religious
ceremony.
 SC: Not an acceptable reason for violating the
law.
 Several cases have prompted the Supreme
Court to state that you cannot be fired or
denied unemployment benefits because you
quit a job based on your religious beliefs.
The Free Exercise of Religion
Following Oregon v. Smith, Congress
passed the Religious Freedom
Restoration Act of 1993 (RFRA)
 RFRA required the restoration of the
compelling government interest test to
sustain legislative burdens on religious
practices
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City of Boerne v. Flores (1997)
St. Peter Catholic Church wanted a
building permit to expand its building;
local zoning boards rejected the
application because of a statute that
prohibited historic building alterations
 Archbishop appealed, citing RFRA
 RFRA declared unconstitutional
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Different Religions and Free Exercise
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AMISH
Wisconsin v. Yoder
(1972): Amish can
pull children out of
school after 8th
grade.
 Amish, however,
must pay SS taxes,
U.S. v. Lee (1982)
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JEHOVAH’S WITNESSES
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May legally refuse to
salute the flag, Barnette
v. West Virginia (1943)
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Another decision where
stare decisis was
disregarded
The Military and Free Exercise
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Welsh v. United States (1970): Welsh sought
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Goldman v. Weinberger (1986): Gov’t can ban a
conscientious objector status but did not base it
on any religious beliefs. Welsh asserted his
moral opposition to conflict in which people are
being killed. The Universal Military Training and
Service Act allowed only those people whose
opposition to the war was based on religious
beliefs to be declared conscientious objectors.
SC agreed with Walsh, broadened law. Even so,
Court reasserted that the United States
government can draft those who have religious
objections to military service.
Jew from wearing a yarmulke while on duty
Obscenity
 1st
and 14th Amendments protect
speech, but not obscenity
 Obscene materials cannot be sent
across state lines
 Obscene places can be required to stay
a certain distance from schools,
churches, parks, etc.
Miller v. California (1973)




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Three-part test for obscenity:
1st: Average person, applying “contemporary
community standards,” finds that the work is
prurient
2nd: Work depicts or describes sexual conduct
expressly prohibited by law
3rd: The work lacks serious literary, artistic,
political, or scientific value
Must meet all three to be deemed obscene
Reno v. ACLU (1997)
1996 Communications Decency Act had 2
provisions that sought to protect minors from
harmful material on the Internet; must protect
obscene materials from those under 18
 The Court determined that the World Wide
Web is analogous to a library or a shopping
mall, rejecting the government's argument
that it could be viewed as more akin to a
broadcast medium
 Hence, the CDA is unconstitutional

Confidentiality
Many reporters and news organizations insist
that they must have the right to refuse to
testify and the right to protect the anonymity
of their sources
 Reporters claim that if there is no protection,
sources will be less likely to reveal
information, and the quality of news will
suffer
 Courts, of course, may require reporters to
reveal their sources while investigating crimes
 So who is right?

Branzburg v. Hayes (1972)






Branzburg published an article with photographs
concerning the production of hashish by local
residents.
A federal grand jury subpoenaed him to appear to
disclose the identities of those who produced the
hashish. He refused.
Supreme Court decided that reporters, like any
other citizen, must respond to all valid questions
asked during a trial or grand jury proceeding
Special exemptions from the media must come
from either Congress or the State legislatures
Congress has not acted on this suggestion
30 state legislatures have passed “Shield laws” that
give some exemptions
Motion Pictures

Mutual Film Corporation v. Ohio, 1915:
Upheld OH law that banned the showing of
immoral films, since film was considered a
BUSINESS
 For a while, many municipalities had “movie
review” boards.
 But SC overruled itself in Burtsyn v. Wilson
(1952): Movies may be considered expression
 Teital Film Corporation v. Cusack, 1968:
States can still ban films, but there must be a
fair judicial hearing.
Radio and Television
Generally, radio and TV are subject to greater
control than newspapers
 In fact, they have no right to broadcast without
public permission in the form of a license, NBC v.
United States (1943)
 Federal Communications Commission (FCC) can
take into account indecent language and refuse to
renew a license, FCC v. Pacifica Foundation (1978)
 Cable more leniently controlled, Wilkinson v. Jones
(1987) permitted cable stations to show indecent
material

Symbolic Speech
People also communicate ideas by conduct
(ex: American flag on lapel)
 Not all conduct is excusable as symbolic
speech; otherwise robbery could be
considered protected “speech”
 Picketing, or the patrolling of a business site
by workers who are on strike, is legally
protected by the 1st and 14th Amendments IF
IT IS PEACEFUL.

Texas v. Johnson
During the 1984 Republican National
Convention in Dallas, Texas, respondent
Johnson participated in a political
demonstration to protest the policies of the
Reagan administration. After a march through
the city streets, Johnson burned an American
flag while protesters chanted.
 Conviction reversed by TX Supreme Court
 US Supreme Court affirmed.

Tinker v. Des Moines School
District (1969)



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Students threaten to wear armbands to
protest Vietnam War
Administration preemptively warns students
not to participate
Mary Beth and Christopher Tinker choose to
disregard administration
Students suspended and sent home
SC agreed than ban violated the Constitution
Even so, dangerous “gang” clothing may be
banned in school
Buckley v. Valeo (1976)






1974 Campaign Finance Reform law provided for
campaign contribution limits
$1000 limit per candidate per campaign:
Constitutional, because it limits small groups from
amplifying their voice, which was kind of the original
goal of freedom of expression
Limit on independent spending: Not Constitutional;
limits free speech. Corruption fears not good
enough.
Limits on personal spending: Unconstitutional
Limits on overall campaign expenditures:
Unconstitutional
Disclosure requirements: Ok, because they serve
compelling state interest to stop bribery
United States v. O’Brien (1968)
4 men burned their draft cards to protest the
Vietnam War; federal crime
 SC: Not protected speech
 Acts of dissent may be punished if:
1) the object of the protest is within
government’s constitutional powers
2) Restrictions of freedom not excessive
3) Government’s real interest is not merely
to eliminate dissent

Commercial Speech
Government can ban false/misleading
advertisements
 Government may also ban the advertising of
certain products like tobacco on radio and
television (1970)
 Wooley v. Maynard (1977)—people cannot be
used as “billboards”. NH Jehovah Witnesses
were permitted to cover up state motto, “live
free or die” on license plates

National Security and Free Speech
Espionage—spying for a foreign power
 Sabotage—an act of destruction intended to
harm a nation’s war effort or defenses
 Treason—”levying war against U.S.”
 Sedition—Incitement of resistance to lawful
authority; much dicier
 Government can punish espionage, sabotage,
and treason

Alien and Sedition Acts of 1798
Gave President power to deport undesirable
aliens and made any “false, scandalous, and
malicious” criticism of the government a
crime
 President could also deport any undesirable
aliens
 Almost undoubtedly unconstitutional, but
never tested
 Expired before Jefferson took office, and the
25 that were sentenced under it were
pardoned

Espionage Act of 1917
During WWI, law passed that made it a crime
to encourage disloyalty, interfere with the
draft, obstruct recruiting, incite subordination,
or hinder the sale of war bonds
 More than 2,000 people prosecuted under the
Act
 Tested in Schenck v. United States (1919):
Schenck sent anti-draft leaflets out to drafted
men. SC upheld the conviction, stating that
“Words can be weapons.”

Sedition in Peacetime
Clear and Present Danger Rule applies to
speech during peacetime
 Smith Act of 1940: Makes it illegal for anyone
to teach or advocate for the violent overthrow
of government
 McCarran Internal Security Act of 1954:
Required Communist organizations to register,
created Subversive Activities Board. Basically
dead today because of court cases and the
changing U.S.-Russia relationship

Brandenburg v. Ohio (1969)





Brandenburg telephoned a reporter on the staff
of a Cincinnati television station and invited
him to come to a Ku Klux Klan "rally" ]
The reporter attended the meeting and filmed.
Portions of the films were later broadcast on a
national network. A scene showed the
appellant, in Klan regalia, speaking, “We're not
a revengent organization, but if our President,
our Congress, our Supreme Court, continues to
suppress the white, Caucasian race, it's possible
that there might have to be some revengeance
taken.”
Brandenburg sentenced to 10 yrs in jail
SC: Reversed conviction, speech didn’t present
Freedom of Assembly and Petition
Government may regulate the time, place
and manner of assemblies.
 Schools and courthouses, for example, are
protected from demonstrations that threaten
to disrupt or influence proceedings
 Rules and procedures must be clearly
established and fairly administered, Coates v.
Cincinnati (1971)—”three or more persons”
ordinance unconstitutional

Demonstrations on Public Property

Cox v. New Hampshire (1941): Laws that
require advance notice and permits for
demonstrations are constitutional
 Gregory v. Chicago (1969):
 Dick Gregory and others protested to end
segregation; bystanders started riot, Gregory et
al. arrested
 Supreme Court held that demonstrators who
act peacefully cannot be held criminally liable
 Madsen v. Women’s Health Services (1994):
Protestors can’t block access to an abortion
clinic
Demonstrations: Private Property
You may not trespass on private property
 Lloyd Corporation v. Tanner (1972):On November 14,
1968, the respondents in this case distributed within
the Center handbill invitations to a meeting of the
"Resistance Community" to protest the draft and the
Vietnam War. Lloyd Corporation (the owner of the
shopping mall) asked them to cease.
 SC stated that the mall was not a public place;
therefore the distribution of literature could be
prevented
 However, states were given the prerogative to declare
that owners of shopping centers must allow the
exercise of free speech. That interpretation is up to
State Courts.

Freedom of Association
You have the right to associate with
others for political, social, or economic
reasons, as long as those reasons are
legal. Privacy can be protected.
 NAACP v. Alabama (1958): Alabama
requested the NAACP to turn over list of
members. NAACP refused and was
fined. SC: No legitimate reason for
Alabama to have that list.

Right to “Privacy”
Privacy not explicitly guaranteed in
Constitution
 Privacy rights are assumed from
the 1st, 4th, 5th, 9th, and 14th
Amendments

Griswold v. Connecticut (1965)
Connecticut state law banned
contraceptives.
 Griswold gave information, instruction,
and medical advice to married persons as
to the means of preventing conception.
 He was convicted of this and appealed
 Supreme Court threw out conviction
based on substantive due process and the
right to privacy
 Bill of Rights has “penumbras”

Roe v. Wade (1973)
 Roe
v. Wade legalized abortion and is at the center
of the current controversy between “pro-life” and
“pro-choice” advocates.
 The Court ruled that a woman has the right to an
abortion without interference from the government
in the first trimester of pregnancy, contending that
it is part of her “right to privacy.”
 The Court maintained that right to privacy is not
absolute, however, and granted states the right to
intervene in the second and third trimesters of
pregnancy. In the second trimester, the procedure
can be controlled; in the third, it can be prevented
Webster v. Reproductive Health
Services (1989)

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Facts: In 1986, the state of Missouri enacted legislation that placed a
number of restrictions on abortions.
The statute's preamble indicated that "[t]he life of each human being begins
at conception," and the law codified the following restrictions:
Public employees and public facilities were not to be used in performing or
assisting abortions unnecessary to save the mother's life
Encouragement and counseling to have abortions was prohibited
Physicians were to perform viability tests upon women in their twentieth
week or later
Issues: Does this law infringe on decision in Roe?
In a controversial and highly fractured decision, the Court held that none of
the challenged provisions of the Missouri legislation were unconstitutional
Planned Parenthood v. Casey (1992)

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Tested 5 parts of the PA Abortion Control Act of 1982
§ 3205, which requires that a woman seeking an abortion give her
informed consent prior to the procedure, and specifies that she be
provided with certain information at least 24 hours before the
abortion is performed
§ 3206, which mandates the informed consent of one parent for a
minor, but provides judicial bypass
§ 3209, which commands that, unless certain exceptions apply, a
married woman seeking an abortion must sign a statement
indicating that she has notified her husband
§ 3203, which defines a "medical emergency" that will excuse
compliance with the foregoing requirements
§ 3207(b), 3214(a), and 3214(f), which impose certain reporting
requirements on facilities providing abortions
SC: Threw out Roe framework; all parts unconstitutional except
informed consent and 24 hour wait. New standard: cannot impose
“undue burden.” Decision reaffirmed the core holding of Roe: a
woman has a constitutional right to choose abortion before
viability and thereafter if her life or health is at stake.
Stenberg v. Carhart (2000)
Nebraska law banned “partial birth abortions”
 Supreme Court: Unconstitutional.
 The Nebraska statute lacks the requisite exception “for the
preservation of the … health of the mother.” Casey, supra, at
879 (joint opinion).
 The State may promote but not endanger a woman’s health
when it regulates the methods of abortion.
 Possible re-introduction in several states with exceptions

Escobedo v. Illinois (1964)


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Escobedo was arrested in connection with a murder and
brought to the police station. He repeatedly asked to
see his lawyer, but was never allowed out of the
interrogation room.
His lawyer was denied access.
Escobedo then confessed while under interrogation to
firing the shot that killed the victim. As a result, he was
soon convicted.
Escobedo appealed to the Supreme Court; it overturned
the conviction. The Court extended the "exclusionary
rule" to illegal confessions and ruled that Escobedo's
confession should not have been allowed as evidence.
The Court also defined the "Escobedo Rule" which holds
that individuals have the right to an attorney when an
"investigation is no longer a general inquiry...but has
begun to focus on a particular suspect..."
Miranda v. Arizona (1966)
Miranda was arrested in Phoenix and taken directly to
the police station. He had a low IQ.
 A victim of rape and kidnapping identified him as the
perpetrator. The police then brought Miranda into the
interrogation room, questioned him for two hours, and
received a signed confession.
 The police had never advised Miranda of his right to an
attorney or the fact that anything he said could be used
against him in a court of law.
 Although Miranda's treatment was actually quite mild,
compared to some of the other methods used at the
time, the Supreme Court still found in favor of him,
holding that "the defendant's confession was
inadmissible because he was not in any way [informed]
of his right to council nor was his privilege against selfincrimination effectively protected in any other

Miranda Rights

You have the right to remain silent; If
you choose to speak, anything you say
may be used against you in Court

You have the right to an attorney
before and during interrogation; if you
cannot afford one, one will be
appointed for you

You may end the questioning at any
time
Miranda Warning Card
Katz v. United States (1967)

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Katz was arrested for illegal gambling after using a
public phone to transmit "gambling information."
The FBI had attached an electronic listening/recording
device onto the outside of the public phone booth that
Katz habitually used. They argued that this constituted
a legal action since they never actually entered the
phone booth.
The Court, however, ruled in favor of Katz, stating the
Fourth Amendment allowed for the protection of a
person and not just a person's property against illegal
searches.
Whatever a citizen "seeks to preserve as private, even
in an area accessible to the public, may be
constitutionally protected."
Chimel v. California (1969)


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Chimel had been burglarizing a specific area for quite
some time. The police knew this and swore out an
arrest warrant.
Upon arresting him, they searched his apartment and
discovered evidence that implicated him.
The search was done without a search warrant. The
police argued that they had merely followed the law
which allowed them to search within the vicinity of an
arrest in order to prevent escape, destruction of
evidence, or the acquisition of a weapon.
The Court upheld the search, arguing "the area in which
an arrestee might reach in order to grab a weapon or
evidentiary items must, of course, be governed by a like
rule. There is ample justification, therefore, for a search
of the arrestee's person and the area 'within his
immediate control.'"
U.S. v. Leon (1984)



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Burbank Police Dep’t obtained warrant to search Leon’s house on
suspicion of drug trafficking.A large quantity of drugs were seized.
Leon was charged with federal drug-trafficking.
At trial, the court granted Leon’s suppression motion because the
warrant was not issued on probable cause. Specifically, the court
found that the warrant contained allegations of an untested
informant and limited corroboration by the police.
The court of appeals refused to accept a good faith exception to
the exclusionary rule.
LEGAL ISSUE: Should the 4th Amendment's exclusionary rule be
modified so as not to bar the use of evidence obtained by officers
acting in reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be
unsupported by probable cause?
Decision: The 4th Amendment's exclusionary rule should be
modified to permit the introduction of evidence obtained in the
reasonable good-faith belief that a search or seizure was in accord
with the 4th Amendment.
Cruel/Unusual Punishment
Cases

Louisiana v. Resweber (1947)—electric
chair failed to work, court sentenced
man to another execution
 Rummel v. Estelle (1980)—upheld “3
time loser law” in Texas
 But what about the death penalty?
Isn’t that “cruel” and/or “unusual?”
Death Penalty Cases






Furman v. Georgia (1972): Struck down all death
penalty statutes; gave too much discretion to judges
or juries
Gregg v. Georgia (1976): Two-step process is
Constitutional
Coker v. Georgia (1977): Death can only be imposed
when victim dies
Thompson v. Oklahoma (1988): 15 yr old too young
to get death penalty
Wilkins v. Missouri (1989): 16 yr. old is old enough to
get death penalty
Roper v. Simmons (2005): all executions under 18
banned
Chapter 18 Learning Objectives


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
After reading and reviewing the material in this chapter, the student should be able
to do each of the following:
1.
Discuss the relationship of the Bill of Rights to the concept of majority rule, and
give examples of tension between majority rule and minority rights.
2.
Explain how the civil liberties may at times be a matter of majoritarian politics
and offer several examples.
3.
Explain how the structure of the federal system affects the application of the
Bill of Rights.
4.
Describe how the Supreme Court has used the Fourteenth Amendment to
expand coverage in the federal system. Discuss changing conceptions of the due
process clause of the Fourteenth Amendment.
5.
List the categories under which the Supreme Court may classify “speech.”
Explain the distinction between “protected” and “unprotected” speech and name the
various forms of expression that are not protected under the First Amendment.
Describe the test used by the Court to decide the circumstances under which
freedom of expression may be qualified.
6.
State what the Supreme Court decided in Miranda v. Arizona, and explain why
that case illustrates how the Court operates in most such due process cases.

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