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Establishment of religion
Free exercise of religion
Freedom of speech
Freedom of the press
Freedom of assembly
Right to petition government for redress of
grievances
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Restrictions on freedom of speech must be
“narrowly tailored to serve a compelling
governmental interest”
“Clear and present danger”: Schenck v. U.S.
(1919). During World War I, Schenck urged
young men not to submit to the military draft;
the Supreme Court ruled that this was not
protected speech, as it posed a clear and
present danger to society.
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Obscenity
Pornography
Slander
Libel
Causing injury to someone or his property
Corruption of public morals
Incitement to criminal activity
Threats to public safety/national security
Sedition (advocating violent overthrow of the
government)
Roth v. U.S. (1957): Obscenity is not protected by
the First Amendment. The test is whether “the
average person, applying contemporary
community standards, finds that the work taken
as a whole appeals primarily to a prurient
interest.”
Memoirs v. Massachusetts (1966): Material must be
utterly without redeeming social value in order to
be found obscene (medical documentary vs.
pornographic movie)
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Miller v. California (1973): Overturns “utterly
redeeming social value” test in favor of “whether
the work, taken as a whole, lacks serious literary,
artistic, political or scientific value.” (This is easier
to prosecute)
Ashcroft v. Free Speech Coalition (2002): Digital child
pornography that is not a picture of a real child is
permissible (there is no actual victim).
Broadcast media have stricter standards than print
or cable (CBS-owned stations were initially fined
for Janet Jackson’s “wardrobe malfunction” during
the 2004 Super Bowl)
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Political speech has a particularly high degree
of protection
Flag burning is permissible because it makes a
political statement (Texas v. Johnson, 1989)
Cross burning is not permissible because it
serves no purpose but racial intimidation
(R.A.V. v. City of St. Paul, 1992)
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Public high school students have less
protection of free speech than others (the
principal may censor the school newspaper)
Schools may have a dress code prohibiting
certain types of expression
“Hate speech” and “fighting words” may be
prohibited
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Slander: harmful statement in a transitory form
(especially spoken)
Libel: Harmful statement in a fixed form
(writing, broadcast)
New York Times Company v. Sullivan (1964):
Established the legal standard for libel of a
public official; it must be committed with
actual malice and reckless disregard for the
truth (a mistake is not libelous)
Hustler Magazine v. Falwell (1988): A parody
advertisement did not libel a public figure.
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“A well regulated Militia, being necessary to
the survival of a free State, the right of the
people to keep and bear Arms, shall not be
infringed.”
Congress can ban interstate trafficking in
weapons
Background checks are constitutional
Waiting periods for the purchase of a gun are
constitutional
Certain types of weapons may be banned or
restricted from sale to the public
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What about the “militia” clause?
Is gun ownership a “collective” right or an
individual right?
Do you have to belong to the militia to own a
gun?
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U.S. v. Miller (1934): Supreme Court ruled that the
2nd Am. applies only in the context of militia
membership, it’s constitutional to ban ownership
of a gun which is unrelated to militia service, and
there is no individual right to own a gun.
District of Columbia v. Heller (2008): Supreme Court
found DC’s almost-complete ban on handguns
unconstitutional, and that the 2nd Am. grants
individuals the right to own a gun.
McDonald v. City of Chicago (2010) extended this
right, striking down state and local prohibitions on
gun ownership.
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The government may not quarter troops in
your home without your consent. This has
never been a controversial issue.
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Fourth Amendment
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Unreasonable search and seizure
Search warrants
Mapp v. Ohio (1961): Exclusionary rule – evidence not
obtained consistent with a warrant can’t be used against
you
Fifth Amendment
Indictment required for prosecution
Protection against self-incrimination
Miranda v. Arizona (1966): You must be informed of your
rights at the time of arrest, or you can’t be prosecuted on
the basis of self-incriminating testimony
 Protection against double jeopardy
 Due process rights guaranteed
 Compensation for taking of private property for public
use (eminent domain)
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Sixth Amendment
Speedy and public jury trial
 No anonymous testimony
 Right to counsel
 Gideon v. Wainwright (1963): Right to an attorney even if
you can’t afford it
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Seventh Amendment
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Right to jury trial in civil cases (where the punishment is
a fine rather than imprisonment)
Eighth Amendment
No excessive bail or fines
 No cruel or unusual punishment
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 Capital punishment only for murder committed by a
mentally competent adult
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Gathering of evidence
Arrest
Prosecution and trial
Conviction and sentencing
Failure to comply with your due process rights
may result in your case being thrown out on a
“technicality.”
This makes it considerably harder to prosecute
crime, and much easier for guilty people to get
away with criminal activity.
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Guilty person is convicted: Justice is served.
Innocent person is set free: Justice is served.
Guilty person gets away: Justice is not served.
Innocent person wrongly imprisoned: Justice is
not served.
The process is set up this way because, if we’re
going to make a mistake, allowing a guilty
person to walk is a less serious mistake than
imprisoning an innocent person.
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Implied or unenumerated rights
The Bill of Rights is not an exhaustive list
Just because the Constitution does not specify
that you have the right to do something, does
not mean you don’t have the right to do it
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Griswold v. Connecticut (1965): Supreme Court
struck down a state law banning the sale of
contraceptives, on the grounds that a married
couple has a “right to privacy” with which the
state may not interfere.
First Amendment: Freedom of assembly
Third and Fourth Amendments: Government may
not enter your home without your consent or a
warrant
Fifth Amendment: Protection against selfincrimination
Ninth Amendment: Enumerated rights are not an
exhaustive list
These add up to an implied “right to privacy”
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Roe v. Wade (1973): The right to privacy extends
to a woman’s right to have an abortion early in
pregnancy. Subsequent cases have imposed
conditions on this right.
The right to privacy has also been held to strike
down restrictions on certain types of
consensual adult sexual activity.
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Restricts the powers of the federal government
to those enumerated in the Constitution;
everything else is reserved for state
governments and the people.