Section 1: The First Amendment: Your Freedom of Expression

2. Section 1:The First Amendment: Your Freedom of Expression Section 2:The Fourth Amendment: Your Right to Be Secure Section 3:Due Process and the Fourteenth Amendment Section 4:Federalism and the Supreme Court Chapter 13: Supreme Court Cases

3. Section 1 at a Glance • The First Amendment: Your Freedom of Expression • Students’ Right of Expression Do students who are not being disruptive lose their constitutional right to freedom of speech or expression when they enter the schoolhouse door? • Learn about the fundamental freedoms guaranteed by the First Amendment to the Constitution. • The Play’s the Thing Use your knowledge to prepare and argue a case in federal district court alleging a violation of freedom of speech. Your arguments must be guided by both the First Amendment and Supreme Court decisions on this subject.

4. The First Amendment: Your Freedom of Expression Reading Focus Your freedom of expression—the right to practice your religious beliefs; to hold, express, and publish ideas and opinions; to gather with others; and to ask the government to correct its mistakes—is the cornerstone of our democracy. Through its power to interpret the Constitution, the Supreme Court can expand—or limit—your rights.

5. 1965: John Tinker and others protested Vietnam War by wearing black armbands at public school • School board adopted policy banning wearing of armbands • Several violated policy, wore armbands, and were suspended • Parents sued school district claiming students’ First Amendment right to free expression had been violated • U.S. district court ruled in favor of school; appeals court upheld • Case appealed directly to U.S. Supreme Court The Black Armband Case Students’ Right of Expression In the mid-1960s public opinion about the Vietnam War was divided. By 1963, protests and demonstrations against the war began to spread, especially on college campuses. Within a couple of years, some high school and middle school students also began to protest the Vietnam War.

6. Students’ Right of Expression (cont’d.) • The Supreme Court Decision • Tinkers and others argued school’s ban on armbands violated right to free speech under First, Fourteenth Amendments—armbands symbolic speech • School district argued ban intended to prevent classroom disruption, not suppress expression; argued reasonable use of power to preserve order • 1969: Tinker v. Des Moines School District reversed lower court’s ruling • Constitutional rights not shed “at schoolhouse gate” • Court agreed school authorities have right to maintain order, but protesters did not interrupt activities or seek to “intrude in school affairs” • Court said schools can regulate student speech when speech would be disruptive and interfere with rights of other students • Tinker test: if expression does not substantially interfere with school operation, regulating that speech violates the Constitution’s protection of free expression

7. Students’ Right of Expression (cont’d.) • After Tinker • Tinker case remains leading case dealing with free-expression rights of public school students • 1980s • Times and court membership changed • Court gradually modified and expanded concept of school disruption • Examples • 1986: Bethel School District v. Fraser upheld suspension of student for giving speech containing vulgar sexual references • 1988: In Hazelwood School District v. Kuhlmeier justices upheld right of school officials to censor school newspaper if school believes content inconsistent with legitimate educational purpose • Supreme Court has limited student expression on and off campus in recent years

9. WHAT DO YOU THINK? 1.Are protests like Tinker’s disruptive of school activities? Explain your point of view. 2.Should school authorities have the right to censor student speeches or newspapers? Why or why not? 3.Is the Tinker test an adequate way to handle issues related to students’ freedom of expression? Why or why not?

11. School Prayer The Establishment Clause • Some of the greatest controversy • Court has banned public enforced school prayer, not private, voluntary school prayer • Private religious groups allowed • Employees may not take part • Jefferson called for “wall of separation” between church, state • Supreme Court has tried to maintain such a wall • Disagreement exists over how high wall should be, or if it should exist Freedom of Religion The First Amendment guarantees your right to freedom of expression, the right of citizens to hold, explore, exchange, express, and debate ideas. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two guarantees are known as the establishment clause and the free exercise clause.

13. Freedom of Religion • Religion and Instruction • Teaching about religion and the Bible allowable • Instruction must be done in nonreligious manner • Cannot include teaching of religious beliefs • 1968: Epperson v. Arkansas • Overturned law that prohibited teaching of evolution • 1987: Edwards v. Aguillard • Voided Louisiana law requiring religious view known as creation science to be taught alongside evolution

14. Freedom of Religion (cont’d.) • The Free Exercise Clause • First Amendment seems to make freedom of religious belief an absolute right • Court has drawn distinction between right to believe and right to express beliefs through actions • Difference noted in first case heard involving free exercise clause • 1879: In Reynolds v. United States Court upheld conviction of George Reynolds for practice of polygamy, having more than one wife • Reynolds belonged to Mormon Church, which allowed polygamy • Federal law prohibited practice of polygamy • Court ruled free exercise clause did not protect religious practices “subversive of good order,” even if they reflected religious beliefs • Court developed principle into “compelling interest test” • Requires government to have compelling reason for banning religious practice as necessary to protect society

15. “Compelling Interest Test” • West Virginia State Board of Education v. Barnette, 1943 • Court upheld students’ right to refuse to salute flag, recite Pledge if it violated their religious beliefs • Making patriotic ceremonies voluntary did no harm to society • Sherbert v. Verner, 1963 • Reversed South Carolina’s denial of unemployment benefits to woman fired for refusing to work on Saturdays, her day of worship • Society’s gain did not outweigh person’s freedom to follow beliefs • Goldman v. Weinberger, 1986 • Upheld Air Force’s ban on wearing nonmilitary apparel • Jewish man could not wear yarmulke while on duty • Based on military need to foster unity and group spirit • Employment Division v. Smith, 1990 • Upheld right to deny unemployment benefits for two Native Americans fired for ingesting peyote • States may enforce laws that incidentally interfere with religious practices

16. Contrasting How did the Court’s position on religious expression in Sherbert v. Vernerdiffer from its position in the Smith case? Answer(s):In Sherbert v. Verner the Court extended freedom of religious expression rights; in the Smith case the Court limited religious rights.

17. Student Speech • Court has ruled schools can regulate time, place, content of student expression • Political speech—fewest limits • Vulgar, obscene speech—not allowed in school • Speech codes—many schools have adopted limits on expression • Cyberspeech—generally same protection as printed material Protected and Unprotected Speech • Speech that has little or no social value is generally not protected • 1942: Chaplinsky v. New Hampshire, some classes of expression not protected— • — Fighting words • — Defamatory speech • — Lewd and profane speech Freedom of Speech “Congress shall make no law…abridging freedom of speech, or of the press…” Is speech only spoken words, or does it include other forms of expression? Are there limits to this freedom?

19. Summarizing What limits are placed on student speech? Answer(s):Students are prohibited from speech that disrupts the school’s learning environment and that violates the boundaries of socially accepted behavior.

20. Right of assembly—you have right to join, form groups, gather for any peaceful, lawful purpose • Must be peaceful • May not gather on private property without owner’s consent • Government may reasonably regulate time, place, behavior • 1927: Whitney v. California upheld conviction of woman for membership in Communist Labor Party • Such limits allow authorities to arrest suspected terrorists, members of armed groups that pose threat to society Freedom of Petition and Assembly • First Amendment recognizes, protects right to petition government for redress of grievances—to remove the cause of a complaint and make things right • Freedom of petition: right to ask government to act to correct injustice without fear of punishment for making request • Rights of assembly and petition go hand in hand

22. Drawing Conclusions How do the freedoms of petition and assembly support a republican form of government? Answer(s):Those freedoms increase citizen participation in government.

23. Equal Access Act of 1984 Illegal Activity • Prohibits schools from discriminating against clubs because of religious or philosophical viewpoint • Students may distribute religious and political literature, but school officials may regulate activity • Schools do not have to allow organizations that preach hate or violence, engage in illegal activity • Cannot restrict students from forming clubs just because clubs might be controversial Freedom of Petition and Assembly (cont’d.) • Student Assembly • Limits that apply to public also apply to students in school • Court has been more restrictive of student rights • Schools have right to control time, place, manner of gatherings, set restrictions on school clubs, have right to deny some clubs permission to form

24. Making Generalizations What kinds of school clubs are not protected by the right of assembly? Answer(s):clubs that preach hate or violence, or that engage in illegal activity

25. SimulationThe Play’s the Thing Will students from Home City High School be allowed to stage their play? Issues of student free speech can take many forms, including plays performed by student drama groups. Using what you have learned in Section 1, complete the simulation about a fictional lawsuit seeking permission to perform a student play.

26. Simulation (cont’d.) • Roles • Federal judge • Jurors • Plaintiffs’ attorneys • Defendants’ attorneys • Attorney for Civil Liberties Association (CLA) • Attorney for Center for Free Student Press (CFSP) • Attorney for Association of United Churches (AUC) • Attorney for Association of School Administrators (ASA) • Drama club members • School principal • School newspaper editor • Other witnesses

27. Simulation (cont’d.) • The Situation • Drama club wants to stage play on life, teachings, impact of historical founder of Eastern religion • Permission to present play to all-school assembly denied • Offer to present play during lunch with voluntary attendance also denied • Student started petition to demand presentation of play • Petition seized, student responsible for petition suspended • School newspaper prepared story on controversy • School officials refused to allow story to be published • Students filed lawsuit in federal court

28. Simulation (cont’d.) • The Trial • Attorneys for plaintiffs, defendants will present case • Plaintiff case presented first, followed by defense • Each side calls witnesses, including expert testimony • Organizations present arguments at conclusion of appropriate side’s case • Jury renders verdict for plaintiffs or defendants after each side’s case heard

29. Simulation (cont’d.) Debriefing After the jury has reached its verdict, discuss the jury’s findings as a class. Assess whether the jury, the attorneys, and expert witnesses for each side correctly applied the First Amendment and case law to the facts in this trial. Then write a one-page summary explaining whether you agree with the verdict and why or why not.

30. Section 2 at a Glance • The Fourth Amendment: Your Right To Be Secure • The Right to Privacy Learn about a 2005 case in which the police used a “sniffer” dog to search for illegal drugs during a routine traffic stop. • Learn about the privacy protections the Fourth Amendment provides and the circumstances under which the government can infringe upon your right of privacy. • Have You Been Seized? Use your knowledge to argue a case involving an alleged search and seizure violation.

31. The Fourth Amendment: Your Right To Be Secure Reading Focus The Fourth Amendment guarantees your right to be secure against unreasonable searches and seizures—in other words, it guarantees that you have rights to some sorts of privacy. As with First Amendment rights, Fourth Amendment rights are not absolute and are subject to judicial interpretation. In this cyber age, protection of these rights is perhaps more important than ever.

33. Caballes Pulled Over A Canine Alert • 1998: Roy Caballes clocked by state trooper driving 71 mph in a 65 mph zone • Caballes pulled over for speeding • Warrant check revealed no outstanding warrants, but that Caballes had been arrested twice for selling drugs • Second trooper with drug-sniffing dog arrived at scene • Dog walked around Caballes’s car, barked at trunk • Troopers opened trunk, found large quantity of marijuana • Caballes arrested for drug trafficking • Lawyer claimed drugs found as product of illegal search • Caballes convicted, sentenced to 12 years in prison The Right to Privacy Should authorities be able to search a car or home with “sniffer” dogs, or an electronic sensor? Neither method requires authorities to enter the car or building, so are these really searches? When, if ever, should they be legal?

34. The Right to Privacy (cont’d.) • The Court Hears Illinois v. Caballes • 2003, Illinois Supreme Court reversed Caballes’s conviction, said drug-sniffing dog at routine traffic stop violated Fourth Amendment rights • State appealed ruling to Supreme Court • 2004, Supreme Court hears Illinois v. Caballes • Government argued dog sniff not search, does not violate privacy • Justice Souter agreed not full-blown search but asked if it were constitutional, what would prevent police from walking dogs around every private home just to see if they get a “sniff of something” • Justice Scalia noted Court had ruled Fourth Amendment rights violated when police used thermal-imaging devices to see if people were growing marijuana in homes • Caballes’s attorney argued sniff was search, like scanner revealed something hidden from view; police had no reasonable suspicion to search car

36. The Caballes Decision • 2005, Illinois v. Caballes: 6–2 decision—Court reversed Illinois Supreme Court, upheld Caballes’s conviction • Majority opinion: person has no legitimate privacy interest in possessing drugs or contraband • Government action indicating possession of contraband does not violate 4th Amendment privacy interests • Court agreed with state’s argument that dog sniff not a search • If traffic stop lawful, police had right to use sniffer dog • Dissenting opinions: dogs can be wrong as result of poor training, errors by handler, dog’s limited ability • Dog’s bark not probable cause • Justice Ginsburg: “every traffic stop could become an occasion to call in the dogs” • Worried Court decision could clear way for police with dogs to be stationed at long traffic lights, circling cars waiting for green lights

37. WHAT DO YOU THINK? 1.Is a trained dog’s sniff of someone or something a search of that person or thing? Explain why or why not. 2.Do you agree with the majority of the Court in the Caballes case or with the dissenting opinions? Explain why. 3.Would your opinion in the Caballes case be different if it had involved a bomb-sniffing dog instead? Explain why or why not.

38. Searches Seizures • Definition of search—any action by government to find evidence of criminal activity—very broad • Includes searching property, listening to phone conversations, stopping suspicious-looking persons and frisking for weapons • Seizure occurs when authorities keep something—an object, person • Police might seize item from home as evidence in a murder • Might take drugs or weapon from person stopped and frisked Understanding Search and Seizure The Fourth Amendment states that “the right of the people to be secure in their persons, homes, papers and effects, against unreasonable search and seizure, shall not be violated.” This guarantee applies only to searches and seizures made by the government; it does not protect against unreasonable searches and seizures by private organizations or citizens. It did not apply to state governments until 1949, and the Supreme Court did not apply the exclusionary rule to state courts until 1961.

39. Unreasonable Searches Warrantless Searches • 4th Amendment bans unreasonable search and seizure • What is reasonable? • 1967: Katz v. United States, searchers must respect person’s right to privacy • Search warrant needed to look inside something • Must state what is being searched, what authorities are looking for • Some instances where warrant not required • Plain view doctrine: if object is in plain view, law assumes owner does not consider it private • Example—if police have warrant to search home for illegal drugs and drug paraphernalia is in plain view, it can be seized even though items not listed on warrant Probable Cause and Warrants To obtain a warrant—a court order to search for something or seize someone—there must be probable cause to believe the search will produce evidence of a crime, or that the person seized committed a crime.

42. Summarizing How are search and seizure related? Answer(s):Authorities conduct searches for evidence of illegal activity, and if they find such evidence, they seize it for evidence.

43. The Fourth Amendment and Privacy • Katz v. United States: Fourth Amendment protects people, not just places • Wherever a person is, his/her right to privacy protected if he/she has exhibited reasonable expectation of privacy • Level of privacy depends in part on where person is • Not as much privacy expected in coffee shop as in home • No matter where person is, he/she has no expectation of privacy if in possession of illegal drugs • Court has said search or seizure lawful when it begins can violate Fourth Amendment if way search carried out unreasonably infringes upon interests protected by Constitution • United States v. Jacobson, 1984 The Court has used all of these principles to decide when and how far protections under the Fourth Amendment apply.

44. Searches of Homes • Court applies highest expectation of privacy to people’s homes • Warrant required in most cases to search homes • 1998, Minnesota v. Carter: no reasonable expectation of privacy when illegal drugs involved • 1988, California v. Greenwood: garbage cans may be searched without warrant; no expectation of privacy for items thrown away • 1986, California v. Ciraolo: arrest allowed after marijuana spotted from police plane • 2001, Kyllo v. United States: Court drew line at use of devices to look through walls of homes from outside • Overturned arrest of man because thermal scan of home revealed marijuana growing inside • Thermal scan reveals information normally available only with actual intrusion into house, requiring warrant • Authorities did not have warrant, therefore seizure of evidence, arrest unconstitutional

45. Personal Privacy • Fourth Amendment provides people will be secure in persons from unreasonable search, seizure • Court has interpreted guarantee in variety of ways, applied differently in number of circumstances • Stop and Frisk • Generally police do not have right to stop people randomly and search them • 1968, Terry v. Ohio: police can stop people who seem to be acting suspiciously, pat down for weapons • Neither warrant nor probable cause needed for what now is called Terry stop • Public safety outweighs individual’s privacy right

47. Intrusive Searches • Degree to which authorities may go in searching person’s body depends on situation • Three questions considered in deciding if search reasonable • What is legal status of person being searched • How invasive is search • Does search serve safety, security need for society—this standard called special needs test • Examples • Strip searches of prisoners permissible • Fingerprinting arrested persons allowable • Fingerprinting persons not under arrest requires probable cause • Blood or DNA testing more invasive, requires search warrant • Blood testing of arrested person requires only probable cause

48. Drug Testing • Drug tests require blood, urine samples • Considered intrusive searches • In most cases require warrant, at least probable cause • Court has removed requirement for certain groups of people • Government can require workers in jobs where public safety important to be tested without probable cause or suspicion • 1995, Vernonia School District v. Acton: schools may require random drug testing of athletes even if no one suspected of drug use • “Deterring drug use by our nation’s school-children is at least as important as…deterring drug use by engineers and trainmen”

49. Students’ Fourth Amendment Rights • Court has generally limited students’ Fourth Amendment rights • Reasoning same as limiting students’ First Amendment rights • Students’ rights may be restricted in order to preserve proper learning environment in schools • 1985, New Jersey v. T.L.O. • Probable cause not needed for school officials to search students if circumstances make search reasonable • T.L.O.: teacher found girl smoking in restroom • Girl denied smoking to vice principal • Search of purse revealed cigarettes, marijuana • Court: search not unreasonable under circumstances • After T.L.O., most student search cases decided at state level • Any search by police officers still requires warrant

50. The 4th Amendment Since 9/11 NSL • USA PATRIOT Act greatly relaxed privacy protections, controls on searches, seizures • Government allowed to search variety of information—phone company records, Internet service providers, libraries, bookstores • National Security Letter—issued by FBI and others; authorizes search without warrant • PATRIOT Act also contains gag order—recipient of NSL prohibited from disclosing that letter was ever issued Private Communication • 1967, Katz v. United States: landmark Supreme Court decision on wiretapping, other forms of electronic surveillance • Since Katz, use of computers, cell phones, personal digital assistants, other wireless devices has created new kinds of searches, applications of Fourth Amendment • Cases involving cyber-surveillance have yet to reach Supreme Court