Government Chapter 16

FIRST

AMENDMENT

FREEDOMS

1ST Amendment

• The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

1ST Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Clear & present danger

• Clear and present danger is a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States,[1] concerning the ability of the government to regulate speech against the draft during World War I:

Clear & present danger

• The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent.

Clear & present danger

• It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

Clear & present danger

• Cannot yell fire in a crowded movie theater

• Getting to an Air- plane or train-joke about

• Hijack, bomb, injure passengers

• Danger to many people in 1 area

Establishment Clause

• The establishment clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference of one religion over another. The first approach is called the "separation" or "no aid" interpretation, while the second approach is called the "non-preferential" or "accommodation" interpretation.

Establishment Clause

• The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government's entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.

Free Exercise Clause.

• The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:

• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Free Exercise Clause.

• 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Mr. Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice.

Free Exercise Clause.

• The Court said (at page 162): "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."

.

Balancing Test

• Principle basic to the justice system of weighing both sides of an issue. Examining the pros and cons. The ultimate goal is to seek equality or evenhandedness (a perfect balance). Constitutionally, it involves individual rights guaranteed by the Constitution weighed against state rights in such areas as equal protection and freedom of speech and press.

Balancing Test

• balancing of interests involves constitutional principles. The Individual versus the State. Often involved in issues of interstate commerce.

• Trademark infringement occurs when a third party uses a mark in a way that infringes upon a trademark owner’s exclusive right and use of a trademark. Often, the third party will use a similar mark in a way that confuses consumers as to the source of the goods and services. For example, a fast food restaurant named “Wendi’s” would likely cause confusion with “Wendy’s.” ;

Due process clause

• An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

DUE PROCESS

• The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person's basic rights to 'life, liberty or property, without due process of law.' Courts have issued numerous rulings about what this means in particular cases.

Balancing Test

• Principle basic to the justice system of weighing both sides of an issue. Examining the pros and cons. The ultimate goal is to seek equality or evenhandedness (a perfect balance). Constitutionally, it involves individual rights guaranteed by the Constitution weighed against state rights in such areas as equal protection and freedom of speech and press.

Balancing Test

• In the U.S., any commercial transaction or traffic that crosses state boundaries or that involves more than one state. Government regulation of interstate commerce is founded on the commerce clause of the Constitution (Article I, section 8), which authorizes Congress "To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes." The Interstate Commerce Commission, established in 1887, was originally intended to regulate the railroad industry

BILL OF RIGHTS

• The Bill of Rights is the name by which the first ten amendments to the United States Constitution are known.[1] They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had been ratified by three-fourths of the States.

BILL OF RIGHTS

• An agreement to create the Bill of Rights helped to secure ratification of the Constitution itself.[2] Thomas Jefferson was a supporter of the Bill of Rights.[3

BILL OF RIGHTS

• 1-Freedom of Speech, Press, Religion and Petition

• 2-Right to keep and bear arms

• 3-Conditions for quarters of soldiers

• 4-Right of search and seizure regulated

• 5-Provisons concerning prosecution

BILL OF RIGHTS

• 6-Right to a speedy trial, witnesses, etc.

• 7-Right to a trial by jury

• 8-Excessive bail, cruel punishment

• 9-Rule of construction of Constitution

• 10-Rights of the States under Constitution

PENTAGON PAPERS

• The Pentagon Papers, officially titled United States–Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, was a top-secret United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967.

PENTAGON PAPERS

• The papers were first brought to the attention of the public on the front page of the New York Times in 1971.[1] A 1996 article in the New York Times said that the Pentagon Papers "demonstrated, among other things, that the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance".[2]

2ND Amendment

• The Second Amendment (Amendment II) to the United States Constitution is the part of the United States Bill of Rights that protects the right to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.

2ND Amendment

• Two U.S. Supreme Court rulings in 2008 and 2010 clarified the meaning of the Second Amendment. In District of Columbia v. Heller, the Court ruled that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia,[1][2] and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Sheppard v Maxwell

• Sheppard v. Maxwell, 384 U.S. 333 (1966), was a United States Supreme Court case that examined the rights of freedom of the press as outlined in the 1st Amendment when weighed against a defendant's right to a fair trial as required by the 6th Amendment.

Sheppard v Maxwell

• In particular, the court sought to determine whether or not defendant was denied fair trial for the second-degree murder of his wife, of which he was convicted, because of the trial judge's failure to protect Sheppard sufficiently from the massive, pervasive, and prejudicial publicity that attended his prosecution.

Brown v Board of Education

• Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),[1] was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students and denying black children equal educational opportunities unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which permitted segregation.

US V MILLER

• United States v. Miller, 307 U.S. 174 (1939), was the first Supreme Court of the United States decision to directly address the Second Amendment to the United States Constitution. Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their position.

US V MILLER

• An indictment in the District Court, Western District Arkansas, charged that Jack Miller and Frank Layton

• did unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce

United States v. Miller

• United States v. Miller involved a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine's Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barreled rifles and shotguns)

United States v. Miller

• to be registered with the Miscellaneous Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) of the Bureau of Internal Revenue

UNIVERSITY OF CALIFORNIA V BAKKE

• Regents of the University of California v. Bakke, 438 U.S. 265 (1978) was a landmark decision of the Supreme Court of the United States on the permissible scopefactors in an admissions program, but only for the purpose of improving the learning environment through diversity in accordance with the university's constitutionally protected First Amendment right to Academic Freedom

UNIVERSITY OF CALIFORNIA V BAKKE

• The "diversity in the classroom" justification for considering race as "one" of the factors in admissions policies was different from the original purpose stated by UC Davis Medical School, whose special admissions program under review was designed to ensure admissions of discriminated against minorities. UC Davis Medical School originally developed the program to (i) reduce the historic deficit of traditionally disfavored minorities in medical schools

UNIVERSITY OF CALIFORNIA V BAKKE

• and the medical profession, (ii) counter the effects of societal discrimination, (iii) increase the number of physicians who will practice in communities currently undeserved, and (iv) obtain the educational benefits that flow from an ethnically diverse student body.

UNIVERSITY OF CALIFORNIA V BAKKE

• Regents of the University of California v. Bakke, case decided in 1978 by the U.S. Supreme Court. The Court held in a closely divided decision that race could be one of the factors considered in choosing a diverse student body in university admissions decisions. The Court also held, however, that the use of quotas in such affirmative action programs was not permissible; thus the Univ. of California, Davis, medical school had, by maintaining a 16% minority quota, discriminated against Allan Bakke,. 1940–, a white applicant.Read more:

SCHNECK V US

• Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft..

SCHNECK V US

• These leaflets contained statements such as; "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." Ultimately, the case served as the founding of the "clear and present danger" rule

SCHNECK V US

• The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."

Miranda v Arizona

• Miranda v. Arizona 384 U.S. 436 (1966), was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them.

Miranda v Arizona

• On March 13, 1963, Ernesto Arturo Miranda was arrested based on circumstantial evidence linking him to the kidnapping and rape of an 18-year-old woman 10 days earlier.[1] After two hours of interrogation by police officers, Miranda signed a confession to the rape charge on forms that included the typed statement "I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me."[2]

Miranda v Arizona

• However, at no time was Miranda told of his right to counsel, and he was not advised of his right to remain silent or that his statements would be used against him during the interrogation before being presented with the form on which he was asked to write out the confession he had already given orally.

Miranda v Arizona

• (1) the right to remain silent; (2) that anything the suspect says can be used against him; (3) that the suspect has the right to have an attorney present before and during the questioning and

Miranda v Arizona

• (4) the suspect has the right to have a "free" attorney appointed to represent them before and during the questioning if the suspect cannot afford to hire an attorney.[34]