Before we start, you need to know this word!

1. Before we start, you need to know this word! • Precedent(say it: PRESS-a-dent) • Earlier action or decision that is an example or guide for future similar situations.

2. Constitutional Law:Individual rights and responsibilities

3. The Constitution • Basic framework of the government • Adopted in 1787 • Bill of Rights (1st ten amendments) ratified in 1791 • Establishes the 3 branches of government • Lists gov’t powers and limits • Lists people’s freedoms that can’t be taken by the gov’t

4. Constitution protects people from government actions, not other private citizens (that’s what other laws are for) Guarantees Americans certain basic rights, BUT Doesn’t contain ALL of our rights…laws are another way to guarantee our rights. Constitutional rights are NOT absolute ex: no one has freedom of speech in every situation What the Constitution does & does NOT do:

5. Supremacy Clause • Says the Constitution and federal (national) laws are the “supreme law of the land” • States are not supposed to make laws that go against the Constitution or federal laws “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Art. 6, Clause 2

6. Changing the Constitution • Amendment: any change or addition to the Constitution • Only 27—it’s difficult to change the Constitution on purpose • Process: • Proposed by 2/3 of both houses of Congress • Ratified by ¾ of the states

7. Principles of the Constitution

8. Republicanism • This meant representative democracy to the founding fathers • The people express their will through elected representatives

9. Popular Sovereignty • The people (or public) have the right to rule • People elect their leaders & can reject/replace ones that serve poorly

10. Limited Government & Rule of Law • The government can only do what the people allow (Const. lists what they may/may not do) • Law applies to everyone, even the leaders

11. Separation of Power • The division of authority into 3 branches: legislative, executive & judicial • Idea from philosophe, Montesquieu

12. Checks & Balances • To keep any one branch from becoming too powerful, each has ways to check (limit) and balance (even out) the powers of the others.

13. Federalism • Power is shared by the levels of government (federal, state & local) Enumerated / Expressed Powers Reserved Powers • Powers not given to the Federal government are kept by the states • Ex. Conduct elections, provide education • Specifically given to the National Government • Ex. Coin money, declare war Concurrent Powers • Shared powers • Ex. Taxing, enforcing laws

14. Established by the case Marbury v. Madison Although this power is not stated in the Constitution, it is VERY important Set the precedent (example): Supreme Court has the authority to determine if a law is constitutional or unconstitutional Judicial Review

15. The Bill of Rights • Introduced by James Madison • Proposed by Congress in 1789 & came into effect in 1791 • Added by the Federalists persuade Anti-Federalists to ratify the Constitution. • The first 10 amendments to the Constitution • Protect people’s personal freedoms & rights from the government • Reserves some powers to the states • Originally applied only to the federal government; now applies to states through the 14th Amendment.

16. Used by judges to determine which interest is most important (freedom of speech to yell fire OR the interest of all the people in the theater?) Balancing Test

17. Allows citizens to be exposed to different points of view People are protected by the 1st amendment even if others do not agree with what they are saying Cases are difficult for courts to resolve But, the government can limit speech based four qualities: Obscenity, defamation, commercial speech, and fighting words Freedom of Speech/Expression

18. Anything relating to nudity/sex in an very indecent, offensive or shocking way Miller v. California (1973): Developed a 3 part test to determine if a work is obscene. Would the average person find the work inappropriate when applying contemporary standards? Does the work depict sex in an offensive way? Does the work, as a whole, lack literary, artistic, political, or scientific value? Ex: Anatomy book v. pornography Obscenity

19. Defamation: a false expression about a person that damages a person’s reputation Slander: when defamation is spoken Libel: when defamation is written Defamation

20. Speech that is directed at buying or selling of goods and services (advertising) Government is allowed to ban adverting that is false, misleading or provides info about illegal products Commercial Speech

21. Fighting Words: words spoken face to face that are so abusive that they are likely to cause a fight between the speaker and person being spoken to. Clear and Present Danger Test: used by courts to restrict speech when the government thinks the speech will cause danger (used in the 1950’s) The right of the speaker v. the harm the speaker proposed Fighting Words, Offensive Speakers, and Hostile Audiences

22. Used by the courts to determine whether to restrict or punish expression based on its potential to cause unlawful behavior (gives the speaker greater protection than the clear present danger test) Incitement Test

23. Bigoted speech attacking a social or ethnic group or member of the group Supporters of punishment for hate speech argue… It has lasting impacts for victims Can amount to fighting words and cause violence Those against punishment for hate speech argue… It allows government censorship No matter how unpopular what someone is saying is; they still have the right to say it Hate Speech

24. There are laws that regulate when, where, and how a speech is allowed EX: Do you need a permit? Have to be in a public place? Limit where posters can be displayed? Public Forum: any place, such as a park or street, where people are generally open to freedom of expression Time, Place, and Manner Restrictions

25. Actions that express an idea or opinion (sit ins, demonstrations, flag waving, posters, clothing) without saying a word. To punish someone for symbolic speech the government must show good reason, not just that they didn’t agree Symbolic Speech

26. Laws governing free speech must be clear and specific Vagueness: not clear or specific Over inclusive: laws must be narrowly written to address ONLY the goal of the government Vagueness and Overinclusive Laws

27. Precedent-setting speech cases • Extensions • West Virginia Board of Education v. Barnette • Don’t have to say the pledge • Tinker v. Des Moines • Students still have freedom of speech as long as it’ doesn’t interfere with education/safety • Cohen v. California • To use certain offensive words • Buckley v. Valeo • To give money to political campaigns • Virginia Board of Pharmacy v. Virginia Consumer Council • To advertise commercial products and professional services • Texas v. Johnson • To burn the flag (symbolic speech)

28. Precedent-setting speech cases • Limits • Schenck v. United States • To incite actions that would harm others • Roth v. United States • To make or distribute obscene materials • United States v. O’Brien • To burn draft cards as an anti-war protest • Hazelwood School District v. Kuhlmeier • To permit students to print articles in a school newspaper over the objections of the school administration. • Bethel School District #43 v. Fraser • Of students to make an obscene speech at a school-sponsored event • Morse v. Frederick • Of students to advocate illegal drug use at a school-sponsored event

29. Guaranteed by 1st amend., often considered part of freedom of speech. Protects us from government censorship: when the gov’t prohibits publications it finds offensive Complete “The Case of the Gag Order” and be prepared to discuss. Freedom of the Press

30. Prior Restraint: Government stopping a publication before it is released Only allowed when… Publication would cause harm No lesser means would prevent the harm The prior restraint would be effective in avoiding harm http://www.youtube.com/watch?v=w0bIOMQIAKs http://wikileaks.org/ Prohibiting Publication

31. Requires federal agencies to release info in their files to the public Unless it affects national defense, foreign policy, etc... States have similar laws that give access to state records. Freedom of Information Act (1966)

32. Do reporters have the right to keep information from the government? Ex. a confidential witness gives info to a reporter…does the reporter have to tell the government? Shield Laws: Protect journalists from being subpoenaed and forced to release their sources 49 states and D.C. have one Federal gov’t does not currently have one Requiring the Press to Disclose Information

33. In schools Students DO have the right to expression: Tinker v. Des Moines, WV State Board of Education v. Barnette But it can’t be obscene, inappropriate or advocate for illegal activities: Bethel v. Fraser, Hazelwood v. Kuhlmeier, Morse v. Frederick In the military People in the armed forces can’t publish info or make statements which would put the unit or its cause in danger In prisons If a law interferes with someone’s rights, the law is upheld as long as it supports the corrective process. Limited expression in special places

34. Protected by two clauses in the 1st Amendment Freedom of Religion “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ”

35. Forbids the government from creating an official religion Are the church and government separate? Example of how they ARE and how they ARE NOT? “Separation of church and state” Not in the Constitution, but explains how the founding fathers felt about state-sponsored religion The Establishment Clause

36. Exercise = Practice Protects the rights of individuals to worship or believe as they choose Includes right to NOT practice While religious belief is protected, religious action can be restricted. The Free Exercise Clause

37. Three part test started by Lemon v. Kurtzman (1971) to evaluated challenges to the Establishment Clause. In order for whatever the “state” (government) did to be considered valid (NOT violated the 1st amendment Establishment Clause) it has to pass all three parts of the test. Lemon Test

38. Purpose: the action has to have a legitimate purpose (other than promoting/discouraging a religion) Effect: the principle or primary effect cannot advance (promote) or inhibit (discourage) religion Entanglement: there must be no excessive government entanglement with religion Lemon Test

39. Due Process of Law • Idea of legal fairness • Part of the 5th and 14th Amendments • 5th: limits the power of the federal government • 14th: limits the power of state and local governments

40. Two Types • Procedural Due Process • Citizen’s right to fair access & treatment in the legal system • Substantive Due Process • Protects basic freedoms by making sure the gov’t does not violate a fundamental right without good reason

41. Procedural Due Process • Fair procedures to prevent unreasonable gov’t actions • Doesn’t mean citizens have to like the gov’t action • At the minimum it means… • Citizens affected by a government decision must be given notice of what the government plans to do • Citizen must have a chance to comment on the action before it occurs

42. Due Process procedures may include: • A hearing before an impartial person • Representation by an attorney • Calling witnesses • Cross-examining witnesses • Written decision with reasons • Transcript of proceedings • An opportunity to appeal

43. Proving a procedural due process violation • Show that the government deprived you of a non-trivial protected interest (listed above) • Show that your loss of the process outweighs the government's interests in not giving you the  process in question. • Procedures required depend on: • The seriousness of the harm to the citizen • Risk of an error without the procedure • Cost to the gov’t for carrying out the procedure

44. Substantive Due Process • When laws affect fundamental rights, the gov’t must show a compelling (very strong) interest in limiting it • Fundamental rights such as marriage, have & raise kids, travel, privacy etc. • Example of a compelling interest: • Citizens have the right to have children • But children can be removed from abusive parents because the gov’t has a VERY STRONG interest in protecting children

45. Right to Privacy • The Constitution doesn’t outright guarantee privacy • Instead it creates “zones of privacy”: • Freedoms of speech and association (1st) • Freedom not to quarter soldiers (3rd) • Freedom from unreasonable searches and seizures (4th) • The right to remain silent (5th) • Unspecified people’s rights (9th)

46. Right to Privacy • Deciding a constitutional right to privacy involves weighing competing private interests and government interests • Ex: The right to privacy of sex offenders v. the public’s right to know and to protect children • http://sexoffender.ncdoj.gov/

47. Privacy in the Home • People have a reasonable amount of privacy in their homes • Need a search warrant to search a person’s home • Unwarranted searches are permitted in houses with consent, if it’s in plain view, if the police are in hot pursuit or it’s an emergency situation. • (more on that in our upcoming criminal unit)

48. Privacy at School • Students’ right to privacy is very limited at school. • Schools do not need a warrant or probable cause • They just need a “reasonable suspicion.” • Family Educational Rights and Privacy Act (FERPA): parents can inspect their child’s records and the school cannot release records without the parent’s permission

49. Information Gathering and Privacy • Computers & the internet allow businesses and organizations to collect and store detailed information about people. • Sometimes people’s information is sold to other businesses and other organizations.

50. The Privacy Act of 1974 • Prevents the government from releasing most information about an individual without that person’s written consent (medical, financial, criminal, and employment records) • Ex: Banks are required to keep copies of all checks written or deposited by customers. However, customers must be notified if their records are requested for an investigation.