COMM LAW (SCOTUS interpretation of 1st+2nd amendment)

Wisconsin v Yoder

• Amish taking their kids out of school in 8th grade

• State law said the had to stay until 10th

• SCOTUS ruled: no compelling interest to force the kids to attend school

Burvell v. Hobby Lobby

• Obamacare required employers insurance to cover contraception

• STRICT SCRUITNY

• SCOTUS ruled there was a compelling interest to protect reproductive rigjts but the law was not narrow enough in obamacare, that there were less restrictive means, and that the law could make an expections for religious for-profits becasue they already did for religious non-profits

Freedom of speech created because

Criticism of the government should be allowed/fighting words

Restrictions of freedom of speech

1. Federal Alien & sedition act: made it a crime to say anything false, scandalous, or malicious about the government

2. Federal sedition act: illegal to make false statements during war or to say bad stuff about the military

3. Federal alien and Registration Act (smith act): made it a crime to advocate the overthrow of the U.S. government

Schenck vs. U.S

• Arrested for handing out anti-war leaflets

• SCOTUS rules: 1st amendment is not an absolute right and it can be infringed upon

  • Laws can infringe on an individual’s 1st amendment if it involves a clear and present danger

When can the 1st amendment rights be infringed upon

• If speech creates a clear an present danger

• wartime: when we are at war, laws change

Dennis vs U.S

• Communist members distribute commie leaflets and are arrested

• SCOTUS ruled: the nature of the global situation + nature of the communist party made their acts more than expression

• Did pose a clear and present danger due to the time period

Yates vs U.S

• Members of communist party were arrested for handing out leaflets

• SCOTUS: ruled that the Smith Act did not prohibit simple advocacy

Bradernburg vs. Ohio

• KKK leader advocated crime and violence against blacks and jews and was arrested

• SCOTUS ruled: speech advocating for illegal conduct (hate speech) is protected under 1st Amendment unless that speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

• BASICALLY: Hate speech is ok because he didn’t say when he would do the crim

RAV vs. City of St. Paul

• Minnesota law prohibited the display of symbols that arouse anger, alarm, or resentment on the basis of race, color, creed etc

• teens burned cross on black neighbor lawn

• SCOTUS ruled: the law was unconstitutional because it prohibited speech based on its content

  • Govt can ONLY regulate the time/place/manner or speech, not the content

Snyder vs. Philips

• Westboro baptist church picketed military funerals saying it was “divine punishment”

• father of a soldier won a lawsuit

• SCOTUS ruled: as a nation, we’ve chosen to protect even hateful speech to ensure we don’t stifle public debate

U.S vs O’brian (symbolic speech)

• 1948 law requiring selective service draft. Amended to include punishment for burning draft cards in protest and o brian was arrested

• SCOTUS ruled: when a law prohibits conduct that combines speech and non speech elements, if there is a sufficiently important govt interest in regulating the non speech component—This can justify any limitations incidental on 1st amendment freedoms

Cohen vs California (symbolic speech)

• Guy wearing “f the draft” jacket arrested

• SCOTUS ruled: the arrest was unconstitutional, free speech!

Texas vs. Johnson

• Texas law banned flag burning

• Communists arrested for flag burning

• SCOTUS ruled: burning flag was constitutional/symbolic speech. Their conviction was overturned

Federal flag protection act

• made it a federal crime to burn flag

• came after texas vs johnson

U.S vs Eichman

SCOTUS ru;ed: it is constitutional to burn the flag

• essentially nullified flag protection act

What don’t we have 1st amendment right protections for

1. Fighting words which incite imminent lawless action

2. Defamation

3. Child p*rn

4. Perjury

5. Blackmail

2nd amendement confusion

If it protected the right to be in a well regulated militia or the right to bear arms

• If just militia, then restrictions possible

U.S vs Cruikshank (2nd amendment)

• Illinois state law made it a felony for 2 or more people to conspire to deprive anyone of constitutional rights

• White mob prevented Blacks from getting weapons

• SCOTUS ruled: 2nd amendment does not apply to states

Presser vs. Illinois (2nd amendment)

• SCOTUS ruled: 2nd amendment does not apply to states

• there was a state law against forming a military

U.S vs. Miller (2nd amendment)

• Miller convicted for transporting a sawed-off shotfun

• SCOTUS ruled:there is no need to have a sawed off shotgun to be part of a well regulated militia

• Asserted that 2nd amendment was still about a militia

D.C vs Heller (Landmark 2nd amendment)

• Established fundamental right to own a weapon for home self-defense

• Scalia: 2nd amendment guarantees right to bear arms unconnected to service in a militia

McDonald versus Chicago (2nd amendment)

• Use the fact of fundamental right meaning state laws can’t restrict owning

• If everyone has that right, it also applies to the states

• Owning a handgun is a fundamental right

  • Second amendment was incorporated through the 14th amendment due process rights

Due process

• from the 5th and 14th amendment

• “ right to rights”

Incorporation doctrine

• The first 10 amendments of the constitution are made applicable through the due process clause of the 14th amendment

New York state rifle and pistol association vs Bruen

• expanded the right to carry a weapon outside the home for self-defense

• The New York restriction was ruled unconstitutional

What does the amendment say about due process?

• no person shall be deprived of life, liberty, property without due process of law

• Applies only to the federal government

What does the 14th amendment say about due process?

• nor shall any state, deprive any person of life, liberty, or property, without due process of law

Two types of due process

• substantive

• Procedural

Substantive due process

• The more controversial of due process rights

• It means there are certain rights even if they aren’t explicitly stated in the constitution that are so fundamental, the government cannot infringe upon them, unless they have a compelling reason

• Ex: right to gay marriage, right to contraception

Procedural due process

Refers to the process the government must follow before it deprive an individual of his/her life, liberty, or property

• Individuals have the right to be left alone

4th amendment provision

• A lawn Forssman officer must be able to prove probable cause that a crime has been committed, or is being committed, and this officer then swears under oath, in order to obtain a warrant to search a person, or property, or a warrant for arrest

Probable cause

Enough evidence to charge someone with a crime

Historic probable cause versus now

• historically, a warrant had zero requirements, very general

• In order to get a warrant now one must have

  • The exact identity of promises to enter / search

  • Who you want to search

  • What do you want to seize

Exceptions to the fourth amendment

• Things in plain view

• Places or things that the arrested person could touch or reach or are otherwise in the person's "immediate control"

• Property where there is strong suspicion that a person could be in immediate danger

• When police are in hot pursuit of a suspect

• When necessary to prevent destruction of evidence

• During sobriety roadblocks

• When needed for airport security

• During work-related drug tests

• When needed for public school students and prisoners

• “exigent” circumstance (HIGHLY CONTESTED)

• When police act in good faith even though a warrant is faulty

Plain view doctrine cases

• California vs Ciraolo

• Kyllo v U.S

California vs Ciraolo

• Guy growing pot in backyard

• Officers flu plain to see pot in his backyard

• SCOTUS: His arrest constitutional because backyard is considered Plain view

Kyllo v U.S

• Anonymous tips about pot in covered greenhouse

• Police got thermal imaging machine defined excessive heat to show pot

• SCOTUS: arrest ruled unconstitutional, use of thermal imaging is not plain view

Consent exception to 4th amendment

• The third party (ex:roommate) can give consent to search property/areas that are common

• Consent can be withdrawn ANY time

Ohio v Terry (stop and frisk, 4th amendment exception)

• men in front of a jewelry store

• Legal issue: whether a police officer can stop and frisk a person without arresting them first, and without a warrant, or even probable cause to believe a crime has been committed

• Court created: Terry stop=vTemporary Detention

Why did SCOTUS allow stop and frisk?

• allowed to stop and frisk without probable cause or warrant if the officer has a reasonable suspicion that the person has committed, is committing, is about to commit a crime, and the police officer has a reasonable belief that the person may be armed and dangerous

“Reasonable suspicion”

Means more than a hunch

• not probable cause

• “Reasonable” means whatever the jury or the judge says it is

No-knock warrants (4th amendment exception.)

• requested so defendant, can’t run

• Congress looked at federal law to bed, no knock warrant, but it did not pass

• Banned by some states, including Virginia

Weeks vs U.S

Historically, even a Police did illegal search, they could use evidence in court

• created exclusionary rule: prohibits courts from considering evidence illegally obtained

• Federal case, only apply to federal courts

Mapp v Ohio

SCOTUS extended the exclusionary rule to apply to states

Wong sun vs U.S

• established “fruits of poisonous tree”

• Court said in illegal arrest/illegal search any evidence that comes from the original illegal evidence is OUT

What is the due process right of the 5th amendment?

• right to plead the fifth

Miranda vs Arizona (5th amendment)

• people held without lawyers for hours, leads to confession

• SCOTUS: without proper safeguards, the process of person suspected of a crime contains inherently compelling pressures, which worked undermine the individuals well to resist, and it compels them to speak were they would not otherwise do so freely

  • People must be warned of interrogation, right to remain silent, anything you say, can Ore will be used against you in a court of law + you have the right to an attorney

Salinas vs Texas

• Salinas willingly answered all questions except if he did it

• SCOTUS: if you’re talking to the police and want to use your fifth amendment right, you have to tell the police officer you are using the fifth amendment

Grand jury indictment

• Here’s only the prosecutors case

• Sole function: determine if there is probable cause

• Do NOT determine guilt or innocence

Double Jeopardy

“ Nor shall any person be subject for the same offense to be twice, put in jeopardy of life or limb”

• Applies to criminal cases only

• No person can be prosecuted twice for the same criminal offense. If you’re found “ not guilty”, there’s no going back.

• You can still bring a civil case

Blueford v Arkansas (mistrial)

• Guy had multiple accounts and was found guilty on 1/4

• He appealed the fraud account, the court, said if it’s an appeal, it’s NOT double Jeopardy to try the other counts again!