Case Law

2. Case Law Landmark cases and their effect on our rights and liberties

3. Freedom of Speech Not just the use of words…. Anything from books and movies, to flag burning as well as t-shirts and pornography are covered by free speech

4. Seditious Speech • Schenck. v. U.S., 1919 “Clear and Present Danger Rule” • Gitlow v. NY, 1925: upheld Schenck against communists • Brandenburg v. Ohio, 1969 KKK and violent speech

5. Symbolic Speech • Tinker v. Des Moines School District, 1969 • Students wearing armbands to protest the Vietnam War • Applies to other types of t-shirts as well

6. Flag Burning is symbolic speech • Texas V. Johnson, 1989 • U.S. v. Eichman, 1990 • Allows the burning of U.S. flags as protest

7. Commercial Speech • Wooley v. Maynard, 1977: New Hampshire “Live Free or Die” Motto on license plates • JN36TN • 2010 2nd Circuit allowed saying states ban on religious plates had been unevenly applied: “Genesis”

8. Obscenity Laws fall under 1st Amendment Freedom of Expression • Many different community standards; Courts have decided that cities may decide what is deemed obscene.

9. Obscenity Cases • Roth v. U.S., 1957 defined obscenity strictly; "dominant theme taken as a whole appeals to the prurient interest" • Memoirs v. Mass.,1966 the court viewed porn to decide what was and was not obscene!! • Stanley v. Georgia, 1969Prohibited making mere private possession of obscene material a crime. Overturned Roth, kind of 

10. Miller v. California, 1973 • Overturned Roth • local standards may apply over a national definition • HOWEVER: Obscenity isn’t always protected. • But we do have a right to privacy

11. The most famous case that came from these “privacy” decisions: • Roe v. Wade, 1973 • “Jane Roe” (Norma McCorvey) • Tragic figure?

12. 14th AmendmentSection 1 All persons born or naturalized in the U.S. and subject to the jurisdiction of the U.S. are citizens of the U.S. and their state NO STATE shall deprive any person of life, liberty or property without due process; nor deny any person equal protection of the law

13. Roe v. Wade, 1973 • Does the term “person” as used in the 14th apply to the unborn? Court said: • NO • Does the right to privacy include a woman’s choice to have an abortion? • YES

14. Law in regards to abortions: • #1 First trimester the state cannot intervene • #2 Second trimester, the state can make reasonable restrictions • #3 Third trimester CAN be outlawed • OHIO: Ohio has a ban against abortions after a fetus has become viable. (20-24 weeks?)

15. Freedom of Religion “separation of church and state” John Locke Phrase not in our Constitution Jefferson’s letter to the Danbury Baptists: “Wall of separation” Used by the court as original intent of the 1st amendment

16. Freedom of Religion “Establishment Clause” and the “Free Exercise Clause”

17. Establishment Clause • “separation of church and state” • Most establishment cases deal with religion and education • Everson v. Board of Education, 1947: busing and catholic schools

18. The “Lemon” Test • Lemon v. Kurtzman, 1971 #1 Purpose of public money must be secular (worldly, non-religious) #2 $ must not hurt or help religion #3 $ must avoid “excessive entanglement” between gov’t and religion

19. A lot of recent cases involving the 10 Commandments and “manger scenes” on public property

20. Free Exercise Clause • Not always free! • Reynolds v. U.S., 1879: Polygamy • My personal fav….Church of Lukumi Babalu Aye: marijuana & sacrifices

21. Sometimes it IS Free Exercise • Wisconsin v. Yoder, 1972: Amish children and the 8th grade • W. Virginia Board of Education v. Barnette, 1943: Mandatory flag salute unconstitutional (speech though, not religion)

22. Assembly and Petition • “Right of Association”: • Boy Scouts v. Dale, 2000: Homosexuals do not have the right to be admitted to private organizations if it stops the organization from spreading their “message”

23. New Topic: Cases Involving Protection from Cops and Courts

24. 4th Amendment – The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated……. • Exclusionary Rule: Illegally obtained evidence cannot be used Weeks v. U.S, 1914 (lottery tix) • )

25. OF COURSE: • Minnesota v. Carter, 1999 “Plain View”

26. Mapp v. Ohio, 1961 • 4th Amendmentapplied to all state officials, such as state and local police (INCORPORATION)

27. Other Exclusionary Rule Cases • Nix v. Williams, 1984: evidence can be used if it would have turned up eventually (body) • Maryland v. Garrison, 1987: “honest mistakes” (two apts) • Arizona v. Evans, 1995: “Good Faith” (wrong name on warrant)

28. Does Drug Testing violate 4th Amendment? • Various cases have allowed random drug testing in certain cases • Veronia School District v. Acton, 1995: Student athletes • BOE v. Earls, 2002 ALL Students in extra-curricular activities

29. 5th Amendment Cases • Grand Jury not incorporated

30. 6th Amendment Cases • Gideon v. Wainwright, 1963 • Miranda v. Arizona, 1966 However…Illinois v. Perkins, 1990 : Undercover cops

31. Ohio’s Speedy Trials • In Jail = 90 days • Out of Jail = 270 days • Defendant can always waive their right to a speedy trial by signing a form

32. Death Penalty Cruel and Unusual? • Furman v. Georgia, 1972(race) • Gregg v. Georgia, 1976 ruled the two part cases constitutional • Atkins v. Virginia, 2002 death cannot be imposed on mentally challenged • Roper v. Simmons, 2005 cannot be imposed on minors

33. PINK - no capital punishment Darker ORANGE - minimum age of 18 MEDIUM ORANGE - minimum age of 17 YELLOW - minimum age of 16

34. Death Penalty Cruel and Unusual? • Kennedy v. Louisiana,2008 – rape of child (Coker v. Georgia, 1977 – rape of an adult) death penalty only for those who kill (except Treason)

35. New Topic: Cases Involving States’ Rights

36. 10th Amendment – Rights not given the Federal government, nor denied the states, are given to the states (reserved powers we discussed these earlier in the year)

37. Notable States’ Rights Cases • Cohens v. Virginia, 1821State laws in opposition to national laws are void. • South Dakota v. Dole, 1987Congress may attach reasonable conditions to funds disbursed without running afoul of the 10th Amendment.

38. New Topic: Recent Notable Gun Cases

39. 2nd Amendment • Recently Incorporated McDonald v. Chicago, 2010 District of Columbia v Heller, 2008

40. Civil “Liberties”vs.Civil “Rights”

41. Civil liberties are freedoms guaranteed to the individual. They declare what the government cannot do. Sometimes called “Negative Rights.”

42. Civil rights are powers and privileges guaranteed to the individual and protected against arbitrary removal. They declare what the government must do or provide. “Positive Rights.” The BOR contains both Rights and Liberties

43. Most of our Liberties are contained in the… Bill of Rights 1st Ten Amendments to the U.S. Constitution (1791)

44. Pre-Bill of Rights Liberties • Habeas Corpus • No Bills of Attainders • No Ex Post Facto laws • Citizens of all states treated equally • No religious qualifications for seeking political office

45. Rights are Relative, not Absolute!

46. “Incorporation” • The Bill of Rights was written to protect citizens from the Federal government. • QUESTION: Do (did) these apply to STATE governments?

47. Most Cases involved incorporating an amendment OR a violation of the 14th amendment was claimed. Today, with (almost) all amendments incorporated, we see 14th amendment violations

48. 14th AmendmentSection 1 All persons born or naturalized in the U.S. and subject to the jurisdiction of the U.S. are citizens of the U.S. and their state NO STATE shall deprive any person of life, liberty or property without due process; nor deny any person equal protection of the law

49. The Two Most Important Parts of the 14th: #1 Due Process Procedural – gov’t acts fairly Substantive – actual law must be reasonable

50. #2 Equal Protection under the law