The document discusses several Supreme Court cases related to freedom of speech and incorporation of rights under the 14th Amendment. It summarizes key cases like Gitlow v. New York, which established that the First Amendment applies to states, and Near v. Minnesota, which established that prior restraint of publication is unconstitutional. It also discusses obscenity cases like Roth v. United States and challenges defining obscenity. Additional cases covered include Bethel School District v. Fraser, Morse v. Frederick on student speech rights, and Zurcher v. Stanford Daily on searches of newsrooms. The document examines how rights like free speech and expression can conflict with other values and how the Court seeks to balance such rights.

4. Rights in Conflict We know people support rights in theory but their support may disappear when it comes time to put those rights into practice - ex: demands of American Nazi Party in 1977 to march through a Jewish neighborhood in Skokie, Ill

7. Establishment Clause Debate has been especially intense over school prayer Engel v Vitale School District of Abington Township, Pennsylvania v Schempp What 2 court cases?

8. Establishment Clause States prohibiting religious practices? Employment Division v Smith SC ruled states can prohibit certain religious practices but not religion itself What court case?

9. Establishment Clause Aid to church-related schools? Lemon v Kurtzman SC ruled aid ok if secular, doesn’t favor particular religion, and doesn’t entangle gov’t w/ religion 2002 Zelman v Simmons-Harris upheld program where some families in Cleveland, OH can use state issued vouchers to pay tuition at religious schools What court case?

11. Free Exercise of Religion http://upress.kent.edu/books/images/covers/o_r/Odell_Scott-mr.jpg Guarantee of free exercise is more complicated than it seems. The free exercise of religous beliefs often clash with society’s other values.

12. Free Exercise of Religion Amish refused to send their children to public schools. SC consitently maintains that people have an absolute right to believe what they want, but the courts have been more cautious about the right to practice a belief. But - in Wisconsin v Yoder, 1972, the Court did allow Amish parents to take their children out of school after 8th grade.

13. Freedom of Expression http://www.whereistheoutrage.net/wordpress/wp-content/uploads/2007/09/bong-hits-4-jesus.jpg

27. Defining Obscenity and Freedom of Speech filipspagnoli.wordpress.com/.../

28. Defining Obscenity and Freedom of Speech SC says, “Obscenity is not within the area of constitutionality protected speech and press” still it has been difficult to define

29. Defining Obscenity and Freedom of Speech 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? Conclusion: 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). Roth v United States 1957 The Oyez Project, Roth v. United States , 354 U.S. 476 (1957) available at: ( http://oyez.org/cases/1950-1959/1956/1956_582 ) (last visited Sunday, October 18, 2009)

30. Defining Obscenity and Freedom of Speech Chief Justice Warren Burger wrote that materials were obscene if, taken as a whole, they appealed “to a prudient interest in sex” showed “patently offensive” sexual conduct that was specifically defined by an obscenity law, and taken as a whole, laced “serious literary, artistic, political, or scientific value” Miller v California 1973 But what now? Internet?

33. Libel and Slander Private persons only need to show that statements about them were defamatory falsehoods and that the author was negligent

34. Libel. Slander. Freedom of Expression Textbook points out that libel is a freedom of expression that involves competing values. If public debate is not free there can be not democracy; but with free public debate, some reputations will be unfairly damaged. Consider the way courts distinguish b/w public persons and private persons - Is it fair (or appropriate) to use this distinction. Would the public lose its ability to evaluate candidates for public office if candidates could sue for libel or slander as readily as persons who are not in the public eye? What rights of privacy should public figures maintain?

35. Libel. Slander. Freedom of Expression New York v Sullivan 1964 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? Conclusion: 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. The Oyez Project, New York Times v. Sullivan , 376 U.S. 254 (1964) available at: ( http://oyez.org/cases/1960-1969/1963/1963_39 ) (last visited Sunday, October 18, 2009).

37. Flag Burning. Freedom of Expression http://www.eatonvillenews.net/images/Bob/AMERICAN%20LEGION%20FLAG%20BURNING%20FLAGS%20IN%20FLAME%20%28OP%202%29%20JUNE%2014,%202005%20040.jpg

38. Flag Burning. Freedom of Expression Texas v Johnson 1989 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? Conclusion: 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 actions fell into the category of expressive conduct and had a distinctively political 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 "[i]f there is a bedrock principle 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." The Oyez Project, Texas v. Johnson , 491 U.S. 397 (1989) available at: ( http://oyez.org/cases/1980-1989/1988/1988_88_155 ) (last visited Sunday, October 18, 2009).

40. Commercial Speech http://images.intomobile.com/wp-content/uploads/2009/04/howard-stern.jpg

41. Commercial Speech http://usefularts.us/wp-content/uploads/2008/12/lifestyle_lift.jpg Commercial Speech like ads are more restricted. Radio and TV restricted more than print media Federal Trade Commission (FTC) attempts to ensure there are no false claims Federal Communications Commission (FCC) regulates content, nature, and very existence of radio and tv- they, unlike newspapers, need licenses to operate

42. Commercial Speech Miami Herald Publish. Co v Tornillo 1974 Florida passed a law requiring newspaper to provide space for candidates to reply to newspaper criticisms. SC, without hesitation, voided this law Red Lion Broadcasting Co. v FCC 1969 SC it’s ok to say radio and tv have to allow space for rebuttal by politicians (b/c there are only limited number of radio and tv stations)

43. Freedom of Assembly http://www.elcivics.com/images/rights-freedom-of-assembly.jpg

44. Freedom of Assembly http://www.elcivics.com/images/rights-freedom-of-assembly.jpg Two points to freedom of assembly: 1) right to assemble 2) right to associate SC generally upheld right of any group to peacefully assemble on public property http://www.nickryan.net/images/kkk.jpg

45. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif

46. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif Most of Bill of Rights concerns rights of people accussed of crimes Originally meant more for political arrests and trials but now.... 4th, 5th, 6th, 8th Amendments are used in criminal cases. Don’t forget incorporation....

47. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 4th- forbides unreasonable search and seizures No court can issue a search warrent unless probable cause exists to believe a crime has occurred or is about to occur Warrents have to describe area to be searched and material sought in the search Since 1914 exclusionary rule prevents illegally seized evidence from being introduced in the courtroom.

48. Defendent Rights 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?) Conclusion: The Court brushed aside the First Amendment issue and declared that "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 . http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 4th- forbides unreasonable search and seizures 1961 Mapp v Ohio

49. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 4th- forbides unreasonable search and seizures (Warren) Burger Court made exceptions to the exclusionary rule http://upload.wikimedia.org/wikipedia/commons/8/83/US_Chief_Justice_Warren_Burger_-_1971_official_portrait.jpg

50. Defendent Rights 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 in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause? Conclusion: 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. http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif Good faith exception United States v Leon 1984 http://upload.wikimedia.org/wikipedia/commons/8/83/US_Chief_Justice_Warren_Burger_-_1971_official_portrait.jpg

51. Defendent Rights http://www.libertyagain.org/img/patriot_act.jpg http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif USA Patriot Act Gave gov’t broad powers of surveillance. Fed gov’t has the power to examine a terrorist suspect’s records held by a third party such as drs, librarians, Internet providers. Allowed searches of private property without probable caus and without notice to the owner until after the search had been executed.

52. Patriot Act http://radio.weblogs.com/0110445/images/2002/12/19/antipat6.gif

53. Defendent Rights Burden of proof rests on police and prosecutors not the defendant Miranda v Arizona 1966 http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 5th- prohibits forced self-incrimination establ. guidelines for questioning of suspects Rehnquist Court made some exceptions to the Miranda rulings but court in Dickerson v US 2000 made it clear it continued to support the Miranda ruling

54. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 6th- ensured right to counsel in federal courts, this right wasn’t incorporated to state courts until recently Powell v Alabama 1932 SC ordered states to provide an attorney for indigent defendants accused of a capitol crime Gideon v Wainwright 1962 SC extended same right to everyone accused of a felony

55. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 6th- ensured right to counsel in federal courts, this right wasn’t incorporated to state courts until recently Argersinger v Hamlin 1972 SC lawyer must be provided for accued whenever imprisonment could be imposed

56. Defendent Rights http://www.freedomsphoenix.com/Uploads/Graphics/004-0422210603-judge.gif 6th- ensured right to speedy trial and an impartial jury. * Most cases are settled through plea bargaining rather than jury.

57. Eight Amendment http://fineartamerica.com/images-medium/eight-amendment-tony-zupancic-a5605.jpg http://www.jaxsurety.com/images/JSAJail.jpg

58. Eight Amendment http://fineartamerica.com/images-medium/eight-amendment-tony-zupancic-a5605.jpg http://www.jaxsurety.com/images/JSAJail.jpg 8th-forbids cruel and unusual punishment but does not define the phrase. Most debate has been over death penalty

59. Eight Amendment http://fineartamerica.com/images-medium/eight-amendment-tony-zupancic-a5605.jpg Facts of the Case: Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death (Two other death penalty cases were decided along with Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of the death sentence for rape and murder convictions, respectively). Question: Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments? Conclusion: Yes. The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. In over two hundred pages of concurrence and dissents, the justices articulated their views on this controversial subject. Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner. http://www.jaxsurety.com/images/JSAJail.jpg Furman v Georgia 1972

63. Eight Amendment http://wwwimage.cbsnews.com/images/2008/04/17/image4022407x.jpg DNA testing

64. Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg

66. 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 counselling, 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? Conclusion: 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. Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg Griswold v Connecticut 1965 The Oyez Project, Griswold v. Connecticut , 381 U.S. 479 (1965) available at: ( http://oyez.org/cases/1960-1969/1964/1964_496 ) (last visited Monday, October 19, 2009).

67. 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? Conclusion : 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. Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg Roe v Wade 1973 The Oyez Project, Roe v. Wade , 410 U.S. 113 (1973) available at: ( http://oyez.org/cases/1970-1979/1971/1971_70_18 ) (last visited Monday, October 19, 2009).

68. Facts of the Case: 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; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. Question: Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment? Conclusion: In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional. First, the Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question. Second, the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. Third, the Court found that no case or controversy existed in relation to the counseling provisionsof the law. Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade. Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg Webster v Reproductive Health Services 1989 State funds do not have to be used for abortions

69. SC 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 Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg Planned Parenthood v Casey 1992

70. SC held 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 hte mother was at risk. Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg Sternberg v Carhart 2000

71. Beginning in 1994, the SC strengthened women’s access to health clinics, while Congress passed the Freedom of Access to Clinic Entrances Act , which made it a federal crime to intimidate abortion providers or women seeking abortions Right to Privacy http://openlearn.open.ac.uk/file.php/3472/W100_6_I001i.jpg