Lecture 3
The nature of the federal system, and the ruling of the Supreme
Court in Barron v. Baltimore established the concept that the Bill of Rights
does not apply to the states. Citizens were only protected from the national
government by the Bill of Rights, not protected from state governments.
Citizens were supposed to be protected by the guarantees of the state constitutions,
but these usually did not apply to unpopular or minority groups.
Constitutionally speaking, the 14th Amendment (1868),
which says in part, "No state (shall) deny to any person within its jurisdiction
the equal protection of the laws", seemed to make the Bill of Rights apply
to the states. It took the Supreme Court a number of years to legally confirm
this concept with a case by case decision. The concept of applying the
Bill of Rights to state government is called Incorporation. The cases by
case means of implementing Incorporation is called selected Incorporation.
See the text page 106-107. The first rights in the Bill of Rights
to be incorporated were the first amendment rights, beginning in 1925.
The due process rights of individuals accused of crimes are not incorporated
until the 1960's.
Key cases are:
Freedom of Speech
Gitlow v. New York
1925
Freedom of Press
Near v. Minnesota
1931
Freedom of Assembly
DeJonge v. Oregon
1937
Freedom of Religion
Cantwell v. Connecticut
1940
Separation of church
Everson v. Board of
Education 1947
Right to a lawyer, Death Penalty Powell
v. Alabama
1932
Right to a public trial
In re Oliver
1948
No unreasonable search
Wolf
v. Colorado, 338 U.S. 25 (1949)
1949
Exclusionary rule
Mapp v. Ohio
1961
No Cruel and unusual
Robinson v. California
1962
Right to attorney, trial
Gideon v. Wainwright
1963
The first amendment rights consist of freedom of religion,
freedom of speech, freedom of press, and freedom of assembly. Each of these
rights will be examined in some detail, with basic concepts established
by Supreme Court cases presented.
Freedom of Religion consists to two major concepts, separation
of church and state, the no establishment clause, and freedom of religion,
the free exercise clause.
The separation of church and state or wall of separation
as Jefferson put it was clearly defined in the case of Everson
v. Board of Education page 108.
Engle v. Vitale (1962)- prohibited official prayer
in schools.
Lemon v Kurtzman (1971)- created Lemon test for establishment
cases.
Cantwell v. Connecticut (1940)-incorporated free
exercise of religion.
West Virginia Board of Education v. Barnette (1943)-
Pledge of allegiance case.
Church of Lukumi Babalu Aye v. Hialeah (1993)-animal
sacrifice case.
Freedom of speech consists of a number of concepts, which
have developed over the years. Speech concepts can be divided into protected
speech, and unprotected speech. The following cases best illustrate
these concepts.
Permitted restrictions on speech
Schenck v. United States (1919)-"clear and present
danger".
Gitlow v. New York (1925)-"bad-tendency", incorporated
free speech.
Protected speech
Near v. Minnesota (1931)-incorporated free press,
"no prior restraint".
N.Y. Times v. U.S. (1971)-"no prior restraint", Pentagon
Papers case.
Texas v. Johnson (1989)-"symbolic speech" is protected.
Commercial speech (advertising) is protected.
Unprotected speech
Miller v. California (1973)-obscenity is not protected.
Four part test.
Slander-speaking untruth that damages a reputation
is not protected. See libel.
Chaplinsky v. New Hampshire (1942)-fighting words
are not protected.
Freedom of press can be viewed as printed speech, and has
already been discussed under no prior restraint. Libel is printed slander,
and will be discussed here.
Libel
New York Times Co. v. Sullivan (1964)- public figures
can only sue for libel if statements were made with actual malice.
Gag Orders
Nebraska Press Association v. Stuart (1976)- upheld
some gag orders.
Confidentiality of news sources
Zurcher v. Stanford Daily (1978)- sources are not
confidental.
Freedom of Assembly is the right of people to peacefully
assembly to petition the government for a redress of grievances.
Smith v. Collin (1978)- Nazi's have a right to assemble.
New constitutional rights have emerged since the 1960's based
on an interpretation of the shadows casted by a number of the amendments
in the Bill of Rights. These rights center around the concept of right
to privacy.
Griswold v. Connecticut (1965)- The 1st, 3rd, 4th,
5th, and 9th amendments create the right to privacy.
Sexual freedom
Griswold- right to birth control
Abortion rights
Roe v. Wade-(1973) right to abortion based on trimester.
Right to die
Cruzan v. Missouri (1990)
3. The fourth, fifth, sixth, and eighth amendments contain
the rights of individuals accused of crimes. We can divide these rights
into three areas; limits on police officers and prosecutors, pretrial rights,
and trial rights.
Limits on police officers and prosecutors
Wolf
v. Colorado, 338 U.S. 25 (1949 - Incorporated
4th amendment.
Mapp v. Ohio (1961)- Incorporated the exclusionary
rule.
Miranda v. Arizona (1966)- Right to be informed of
rights
Pretrial rights
Writ of Habeas Corpus
Miranda-right to an attorney, right to remain silent.
Reasonable bail
Trial rights
Gideon v. Wainwright (1963)- right to attorney for
trial.
Furman v. Georgia (1972)- death penalty is cruel
and unusual.
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