FREE SPEECH

SCHENCK V. U.S. (1919)• HISTORY: • Schenck: Socialist; Pamphlets to avoid draft• Violates Espionage Act 1917

• SCOTUS:• Act is Constitutional

• DECISION:• CLEAR AND PRESENT DANGER TEST• Govt. can regulate when the words pose a “clear and present

danger” to society.

BRANDENBURG V. OHIO (1969)• HISTORY: • KKK leader arrested• Anti-black, anti-Jewish

• SCOTUS:• Pro-Brandenburg

• DECISION:• Reversed the decision• Abstract teaching• Not inciting “imminent lawless action.”

U.S. V. O’BRIEN (1968)• HISTORY:• Burned his draft card• “Symbolic Speech”• Violated Selective Service Act

• SCOTUS:• Pro-US

• OPINION:• “Sufficiently Important Reason?”• Draft: Constitutional Right to raise an army.

TEXAS V. JOHNSON (1989)• HISTORY:• Flag Burning• Texas Flag Desecration Law

• SCOTUS:• Pro-Johnson

• OPINION:• Tx. must prove: “Sufficiently Important Reason”

• Purpose of law:• Breach of peace• Preserve symbolism

• Neither is sufficiently important

TESTS FOR FREE SPEECHPure Speech

• Government must prove that the words pose a “Clear and Present Danger” to regulate the speech.

Symbolic Speech

• Government must prove that it has a “Sufficiently Important Reason” to regulate the speech.

TINKER V. DESMOINES (1969)• HISTORY:• Vietnam War• Students wore black armbands• “Symbolic Speech”

• SCOTUS:• Pro-Tinker

COURT’S OPINION• School can regulate action when it:• Disrupts the order of the school day.• Disrespects the rights of other students.• Is not in keeping with the mission of the school.

• Armbands did none of the above.

BETHEL SCHOOL DISTRICT V. FRASER (1986)

• HISTORY:• Fraser suspended from school• Lewd speech at school assembly

• SCOTUS:• Pro-School District

• OPINION:• Violates all three parts of Tinker precedent.

MELTON V. YOUNG (1972)COURT OF APPEALS

HISTORY: Student suspended for wearing Confederate flag patch

(Tennessee) Symbolic speech

SCOTUS: Pro-Young (School Board)

DECISION: Tinker precedent

Disrupted the school day (Racial Tensions) Unmindful of rights of other students

KARR V. SCHMIDT (1972)COURT OF APPEALS

HISTORY: Student suspended for

long hair Symbolic speech?

SCOTUS: Pro-Schmidt (School)

OPINION: Tinker: armband was akin to

pure speech. Long hair: not related to pure

speech (no communicative content)

Student’s long hair not considered symbolic speech.

FREE PRESSNEAR V. MINNESOTA (1931)

• Prior Restraint– • Governmental prohibition on expression (esp. by

publication) before the expression actually takes place.

• Near owned Saturday Press • Anti-semitic

• Minnesota Law– Prohibited sale of future editions.

• USSC Ruling:• Minnesota Law is Unconstitutional• Prior Restraint very rarely allowed

NY TIMES V. SULLIVAN (1964) Sullivan, commissioner of Montgomery, Ala., took offense to

a civil rights ad. Sued for libel.

SCOTUS: Pro-Times

OPINION: “New York Times Test” PUBLIC OFFICIALS must prove statement was:

False, damaging, and made with actual malice. “Knowledge that it was false, or with reckless disregard of whether it was false

or not.”

Court lenient towards press. Must be able to be critical of public officials.

• NON-PUBLIC OFFICIALS: Only need to prove a statement was:• False• Damaging

NY TIMES TEST

• Public Official/Figure

• False• Damaging• Actual Malice

• Not a Public Official/Figure

• False• Damaging

WHO IS A PUBLIC FIGURE?

WHO IS A PUBLIC FIGURE?

WHO IS A PUBLIC FIGURE?

WHO IS A PUBLIC FIGURE?

SCOTUS

• Public Official/ Figure:

• Elected officials• Those who, by reason of fame, shape

events in areas of concern to society at large.• Those who occupy a position of

“persuasive power and influence” in society.• Those who have “thrust themselves to the

forefront of a particular public controversy.”

HUSTLER V. FALWELL (1988)

• Facts of the Case • A lead story in the November 1983 issue of Hustler

Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed.

HUSTLER V. FALWELL (1988) HISTORY

Ad parody: Falwell, while drunk, committed incest with his mom.

SCOTUS: Pro-Hustler

OPINION: “Freedom of expression needs breathing space.” Political cartoons, satirists, and parodies are

protected. Means to criticize public officials. No “actual malice.”

OBSCENITY

• NOT protected by the 1st Amendment.

•How do you define “obscenity?"

MILLER STANDARD (1973)

• Miller v. California

• Whether the average person, applying contemporary community standards, thinks the work taken as a whole:

• Describes sexual conduct in a patently offensive way.

• AND whether the work lacks serious literary, artistic, political, or scientific value.

QUIZ• Match the court cases with the proper

descriptions:1. Mapp v. Ohio

2. Illinois v. Cabelles

3.New Jersey v. TLO

4. Chimel v. California

5. Terry v. Ohio

6. Cupp v. Murphy

A. Man had his fingernails scraped and blood was admitted as evidence; upheld.

B. Man had his car searched and weed found in trunk.

C. Woman had her house illegally searched in suspicion of withholding a fugitive, evidence was excluded

D. Student had her purse searched, weed and drug paraphernalia found; search was constitutional

E. Police went to man’s house to arrest him, asked to search his home, he refused, they did anyway. Found coins to use as evidence against him.

F. Officer frisked men he suspected of planning a robbery, found illegally concealed weapons on them.

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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• “One evening a student left a campus party, carrying a bottle of gin. A university officer spotted the student outside a dorm, arrested him for possessing liquor, and asked to see his identification. The student asked the officer to wait while he retrieved his wallet from his dorm room. The officer, however, insisted on accompanying the student to his dorm room, where he leaned against the door jamb and the student went in. From the doorway, the officer thought he saw some marijuana and paraphernalia typically associated with drug use. Without the student’s consent, and without a warrant, the officer entered the room seized the material, and arrested the student for drug possession.”

• Epstein and Epstein. Constitutional Law for a Changing America.

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, an no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

REASONABLE SEARCHES AND SEIZURES

1. Searches based on a warrant2. Searches incident to an arrest3. Searches to insure that evidence is not lost.4. Searches based on consent.5. Searches to ensure the safety of the law

official.6. Searches that are a minimal invasion of

privacy.7. Seizing contraband in plain view.8. Searches in places that merit low levels of

constitutional protection.

During a routine traffic stop a Wyoming Highway Patrol officer noticed a hypodermic needle in the driver’s shirt pocket. The driver admitted using the needle to take illegal drugs. The officer then searched the passenger compartment for contraband, removing and searching the purse of a passenger. The officer found drugs in her purse and arrested her, too. The passenger asked the trial court to suppress all evidence found in her purse, arguing that it was illegal to search the purse of a passenger for whom the police had no independent probable cause.

• Law enforcement officers may lawfully search the belongings of all passengers in a car where there is probable cause to believe there is evidence of criminal activity

• Wyoming v. Houghton, 526 U.S. 295 (1999).• In Wyoming v. Houghton, the Supreme Court held that

when an officer has probable cause to search a car, this inspection also includes the belongings of passengers in the car because they may contain the suspected items the officer has reason to believe are in the car. Without any distinction carved out as to ownership, the Court in Ross concluded that “when there is probable cause to search for contraband in a car, it is reasonable for police officers…to examine packages and containers without a showing of individualized probable cause for each one.” The Court also stated that there is a reduced expectation of privacy with passengers and their belongings when they transport them in the public.

CHIMEL V. CALIFORNIA (1969)

• Warrantless search incident to an arrest

• History: Chimel arrested at home• Police searched entire house

• USSC: Unconstitutional S & S• “Area of Immediate Control”• Preserve evidence• Safety• Prevent escape

CUPP V. MURPHY (1973)

• HISTORY: Warrantless Seizure of fingernail scrapings.

• USSC: S & S is constitutional• Chimel precedent• Preserve evidence

TOUGH ON CRIME V. RIGHT TO PRIVACY

• The Plain View Doctrine• Officer is lawfully present• May seize contraband in “plain view.”• Expands police powers

• The Exclusionary Rule• Evidence obtained during an illegal search is inadmissible

in court.• Limits police powers

TERRY V. OHIO (1968)

• HISTORY: Warrantless stop and frisk

• USSC: S & S is constitutional• Concern for officer’s safety• Minimal invasion of privacy

ILLINOIS V. CABALLES (2005)“ Illinois State Trooper Daniel Gillette stopped

respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.”

ILLINOIS V. CABALLES

Arguments for police Arguments for Caballes

• “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

• This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity–in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s (Caballes) hopes or expectations concerning the non-detection of contraband in the trunk of his car.

MAPP V. OHIO (1961)

• HISTORY: House unconstitutionally searched with no warrant.

• USSC:• Exclusionary Rule: Evidence obtained from an illegal

search is inadmissible in court.

U.S. V. ROSS (1982)

• HISTORY: Reliable tip– cop stops a car.• Searches trunk; opens a bag; finds drugs• All with no warrant

• USSC: Constitutional S & S• Reliable Tip=Probable cause• Police have probable cause to believe

contraband is in the car, they can search in all locations where contraband might be found.

NEW JERSEY V. TLO (1985)• HISTORY: • TLO caught smoking in the bathroom.• Purse searched by administrator• Discovered drug paraphernalia

• USSC: Constitutional S & S• School needs “reasonable suspicion” to search.• Scope of search must be “reasonable” based on situation.• Need to maintain discipline

VERONIA SCHOOL V. ACTON (1995)• Drug testing student-athletes

• USSC: Constitutional S and S

1. Athletes: Right to Privacy reduced• Agreed to regulations of team

2. Minimal invasion of privacy

3. Important need for search• Deter drug use• Safety of athletes

ARRAIGNMENT• Charges are formally read to a defendant.• The defendant would enter a plea.• Bail would be set.