AP American Government
Unit 2: Bianco + Canon Ch. 4+14
Mr. Andrew Conneen
Fall 2011
aconneen@d125.org
Unit 2 Syllabus:....................................................................................................................3
Ch. 4, Pages 100-109 Assignment:.......................................................................................4
R.A.V. v. City of St. Paul.....................................................................................................6
Virginia v. Black et al...........................................................................................................7
Texas v. Johnson...................................................................................................................9
Snyder v. Phelps.................................................................................................................11
Tinker v. Des Moines Independent Community School District......................................13
Bethel School District No. 403 v. Fraser............................................................................15
Hazelwood School District v. Kuhlmeier...........................................................................17
Ch. 4, Pages 108-120 Assignment:.....................................................................................19
Employment Division, Department of Human Resources of Oregon v. Smith...............20
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah....................................................21
Wallace v. Jaffree................................................................................................................22
Lee v. Weisman...................................................................................................................23
Ch. 4, Pages 120-124 Assignment:.....................................................................................24
Ch. 4, Pages 125-139 Assignment:.....................................................................................25
Kyllo v. U.S.........................................................................................................................26
Bond v. U.S.........................................................................................................................27
Board of Education of Independent School District No. 92 of Pottawatomie County v.
Earls...................................................................................................................................28
Roper v. Simmons..............................................................................................................29
Ch. 14 Assignment:............................................................................................................31
Lawrence et al. v. Texas.....................................................................................................33
Summary of SCOTUS Civil Liberty + Civil Rights Cases..............................................35
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Unit 2 Syllabus:
Civil Liberties (Ch. 4) and Civil Rights (Ch. 14)
For Friday, September 9: Ch.4, pages 99-109 questions
For Monday, September 12: SCOTUS Case analysis-- RAV v. St. Paul; Virginia v. Black; Texas
v. Johnson; Snyder v. Phelps
For Tuesday, September 13: Ch. 4, pages 108-120 questions; SCOTUS Case analysis-- Tinker v.
Des Moines; Bethel v. Fraser
For Wednesday, September 14: Ch. 4, pages 120-124 questions; SCOTUS Case analysis-Employment Division of Oregon v. Smith; Church of Lukumi Babalu v. City of Hialeah; Wallace
v. Jaffree; Lee v. Weisman
For Thursday, September 15: Ch. 4, pages 125-139 questions; SCOTUS Case analysis-- Kyllo v.
US; Bond v. US; Pottawatemi v. Earls; Roper v. Simmons.
For Friday, September 16: Ch. 14 questions.
For Monday, September 19: SCOTUS Case analysis-- Lawrence v. Texas, Cases quiz (you may
use any notes written on the last sheet of the packet.)
For Tuesday, September 20: Test review then in-class FRQ
For Wednesday, September 21: Ch 4+14 MC Test
For Thursday, September 22: Midterm review
For Friday, September 23: Midterm
3
Ch. 4, Pages 100-109 Assignment:
Directions: Read Ch. 4, pages 100-109 in the textbook and answer on a separate sheet of paper.
(Be sure to restate the vocabulary of each question.)
(Class discussion) Identify 3 examples of reduced civil liberties of suspected terrorists
since 9/11.
1. Define civil liberties:
2. Define civil rights:
3. Summarize the difference between civil liberties and civil rights:
(Class discussion) Explain how the Supreme Court has used access to “new technology”
in its rationale to decide 4th Amendment search cases.
4. Identify the first 5 words of the Bill of Rights:
5. Summarize the impact the amendment Madison called “the most valuable of the whole
list” might have had on state governments if it had been approved.
6. Identify the USSC case (written by John Marshall) that said the Bill of Rights only applied
to the national government.
(Class discussion and notes) How could you illustrate each of the amendments in the
Bill of Rights?
7. Define 14th Amendment’s due process clause:
8. Describe how the Gitlow v. New York (1925) changed the way that the Bill of Rights applied
to state governments.
9. Define selective incorporation and explain why the word “selective” is used in this term:
10. Identify the right that each of the following cases incorporated:
Gitlow v. New York (1925)
Near v. Minnesota (1931)
Everson v. Board of Education (1947)
McDonald v. Chicago (2010)
Mapp v. Ohio (1961)
Gideon v. Wainwright (1963)
Duncan v. Louisiana (1968)
Griswold v. Connecticut (1965)
4
SCOTUS Case Analysis:
Directions: Read the USSC case decisions and annotate in the margins.
#1 for the sentences or paragraphs identifying the parties involved in the case.
#2 for the sentences or paragraphs describing the background facts.
#3 for the sentences or paragraphs describing the constitutional or legal issue to be interpreted.
#4 for the sentences or paragraphs that identify previous court cases important in this decision.
#5 for the sentences or paragraphs describing the Court’s opinion in this case.
5
SUPREME COURT OF THE UNITED STATES
R.A.V. v. City of St. Paul
CERTIORARI TO THE SUPREME COURT OF MINNESOTA
No. 90-7675 Argued: Dec. 4, 1991 --- Decided: June 22, 1992
After allegedly burning a cross on a black family's lawn, petitioner R.A.V. was charged under,
inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display
of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge
on the ground that the ordinance was substantially overbroad and impermissibly content-based,
but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase
"arouses anger, alarm or resentment in others" had been construed in earlier state cases to limit
the ordinance's reach to "fighting words" within the meaning of this Court's decision in
Chaplinsky v. New Hampshire, 315 U.S. 568, 572, a category of expression unprotected by the
First Amendment. The court also concluded that the ordinance was not impermissibly contentbased, because it was narrowly tailored to serve a compelling governmental interest in protecting
the community against bias-motivated threats to public safety and order.
Held: The ordinance is facially invalid under the First Amendment. Pp. 381-396.
...
(c) The ordinance, even as narrowly construed by the State Supreme Court, is facially
unconstitutional, because it imposes special prohibitions on those speakers who express views on
the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits
displays containing abusive invective if they are not addressed to those topics. Moreover, in its
practical operation, the ordinance goes beyond mere content, to actual viewpoint, discrimination.
Displays containing "fighting words" that do not invoke the disfavored subjects would seemingly
be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but
not by their opponents. St. Paul's desire to communicate to minority groups that it does not
condone the "group hatred" of bias-motivated speech does not justify selectively silencing
speech on the basis of its content. Pp. 391-393. ...
464 N.W.2d 507 (Minn.1991), reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY,
SOUTER, and THOMAS, JJ., joined.
6
SUPREME COURT OF THE UNITED STATES
Virginia v. Black et al.
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
No. 01—1107. Argued December 11, 2002–Decided April 7, 2003
Respondents were convicted separately of violating a Virginia statute that makes it a felony “for
any person … , with the intent of intimidating any person or group … , to burn … a cross on the
property of another, a highway or other public place,” and specifies that “[a]ny such burning …
shall be prima facie evidence of an intent to intimidate a person or group.” When respondent
Black objected on First Amendment grounds to his trial court’s jury instruction that cross burning
by itself is sufficient evidence from which the required “intent to intimidate” could be inferred,
the prosecutor responded that the instruction was taken straight out of the Virginia Model
Instructions. Respondent O’Mara pleaded guilty to charges of violating the statute, but reserved
the right to challenge its constitutionality. At respondent Elliott’s trial, the judge instructed the
jury as to what the Commonwealth had to prove, but did not give an instruction on the meaning
of the word “intimidate,” nor on the statute’s prima facie evidence provision. Consolidating all
three cases, the Virginia Supreme Court held that the cross-burning statute is unconstitutional on
its face; that it is analytically indistinguishable from the ordinance found unconstitutional in
R. A. V. v. St. Paul, 505 U.S. 377; that it discriminates on the basis of content and viewpoint since
it selectively chooses only cross burning because of its distinctive message; and that the prima
facie evidence provision renders the statute overbroad because the enhanced probability of
prosecution under the statute chills the expression of protected speech.
Held: The judgment is affirmed in part, vacated in part, and remanded.
262 Va. 764, 553 S. E. 2d 738, affirmed in part, vacated in part, and remanded.
Justice O’Connor delivered the opinion of the Court with respect to Parts I, II, and III,
concluding that a State, consistent with the First Amendment, may ban cross burning carried out
with the intent to intimidate. Pp. 6—17.
(a) Burning a cross in the United States is inextricably intertwined with the history of the
Ku Klux Klan, which, following its formation in 1866, imposed a reign of terror throughout the
South, whipping, threatening, and murdering blacks, southern whites who disagreed with the
Klan, and “carpetbagger” northern whites. The Klan has often used cross burnings as a tool of
intimidation and a threat of impending violence, although such burnings have also remained
potent symbols of shared group identity and ideology, serving as a central feature of Klan
gatherings. To this day, however, regardless of whether the message is a political one or is also
meant to intimidate, the burning of a cross is a “symbol of hate.” Capitol Square Review and
Advisory Bd. v. Pinette, 515 U.S. 753, 771. While cross burning does not inevitably convey a
message of intimidation, often the cross burner intends that the recipients of the message fear for
their lives. And when a cross burning is used to intimidate, few if any messages are more
powerful. Pp. 6—11. ...
7
(c) The First Amendment permits Virginia to outlaw cross burnings done with the intent to
intimidate because burning a cross is a particularly virulent form of intimidation. Instead of
prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating
messages in light of cross burning’s long and pernicious history as a signal of impending
violence. A ban on cross burning carried out with the intent to intimidate is fully consistent with
this Court’s holding in R. A. V. Contrary to the Virginia Supreme Court’s ruling, R. A. V. did not
hold that the First Amendment prohibits all forms of content-based discrimination within a
proscribable area of speech. Rather, the Court specifically stated that a particular type of content
discrimination does not violate the First Amendment when the basis for it consists entirely of the
very reason its entire class of speech is proscribable. 505 U.S., at 388. For example, it is
permissible to prohibit only that obscenity that is most patently offensive in its prurience–i.e.,
that which involves the most lascivious displays of sexual activity. Ibid. Similarly, Virginia’s
statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to
intimidate. Unlike the statute at issue in R. A. V., the Virginia statute does not single out for
opprobrium only that speech directed toward “one of the specified disfavored topics.” Id., at 391.
It does not matter whether an individual burns a cross with intent to intimidate because of the
victim’s race, gender, or religion, or because of the victim’s “political affiliation, union
membership, or homosexuality.” Ibid. Thus, just as a State may regulate only that obscenity
which is the most obscene due to its prurient content, so too may a State choose to prohibit only
those forms of intimidation that are most likely to inspire fear of bodily harm. Pp. 14—17.
O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court
8
Texas v. Johnson
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 88-155 Argued: March 21, 1989 --- Decided: June 21, 1989
During the 1984 Republican National Convention, respondent Johnson participated in a political
demonstration to protest the policies of the Reagan administration and some Dallas-based
corporations. After a march through the city streets, Johnson burned an American flag while
protesters chanted. No one was physically injured or threatened with injury, although several
witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a
venerated object in violation of a Texas statute, and a state court of appeals affirmed. However,
the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First
Amendment, could not punish Johnson for burning the flag in these circumstances. The court
first found that Johnson's burning of the flag was expressive conduct protected by the First
Amendment. The court concluded that the State could not criminally sanction flag desecration in
order to preserve the flag as a symbol of national unity. It also held that the statute did not meet
the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to
encompass only those flag burnings that would likely result in a serious disturbance, and since
the flag burning in this case did not threaten such a reaction. Further, it stressed that another
Texas statute prohibited breaches of the peace and could be used to prevent disturbances without
punishing this flag desecration.
Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp.
402-420.
... (b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the
suppression of expression and would therefore permit application of the test set forth in United
States v. O'Brien, 391 U.S. 367, whereby an important governmental interest in regulating
nonspeech can justify incidental limitations on First Amendment freedoms when speech and
nonspeech elements are combined in the same course of conduct. An interest in preventing
breaches of the peace is not implicated on this record. Expression may not be prohibited [p398]
on the basis that an audience that takes serious offense to the expression may disturb the peace,
since the Government cannot assume that every expression of a provocative idea will incite a
riot, but must look to the actual circumstances surrounding the expression. Johnson's expression
of dissatisfaction with the Federal Government's policies also does not fall within the class of
"fighting words" likely to be seen as a direct personal insult or an invitation to exchange
fisticuffs. This Court's holding does not forbid a State to prevent "imminent lawless action" and,
in fact, Texas has a law specifically prohibiting breaches of the peace. Texas' interest in
preserving the flag as a symbol of nationhood and national unity is related to expression in this
case and, thus, falls outside the O'Brien test. Pp. 406-410. ... 755 S.W.2d 92, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN,
SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 420.
REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined,
post, p. 421. STEVENS, J., filed a dissenting opinion, post, p. 436. [p399]
9
10
Snyder v. Phelps
certiorari to the united states court of appeals for the fourth circuit
No. 09–751. Argued October 6, 2010—Decided March 2, 2011
For the past 20 years, the congregation of the Westboro Baptist Church has picketed military
funerals to communicate its belief that God hates the United States for its tolerance of
homosexuality, particularly in America’s military. The church’s picketing has also condemned
the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and
six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the
funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty.
The picketing took place on public land approximately 1,000 feet from the church where the
funeral was held, in accordance with guidance from local law enforcement officers. The picketers
peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom
Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about
30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the
tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the
signs until watching a news broadcast later that night.
Snyder filed a diversity action against Phelps, his daughters—who participated in the
picketing—and the church (collectively Westboro) alleging, as relevant here, state tort claims of
intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury
held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro
challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground
that the First Amendment fully protected its speech. The District Court reduced the punitive
damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that
Westboro’s statements were entitled to First Amendment protection because those statements
were on matters of public concern, were not provably false, and were expressed solely through
hyperbolic rhetoric.
Held: The First Amendment shields Westboro from tort liability for its picketing in this case.
Pp. 5–15.
(a) The Free Speech Clause of the First Amendment can serve as a defense in state tort suits,
including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell ,
485 U. S. 46 . Whether the First Amendment prohibits holding Westboro liable for its speech in
this case turns largely on whether that speech is of public or private concern, as determined by all
the circumstances of the case. “[S]peech on public issues occupies the ‘ “highest rung of the
hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers ,
461 U. S. 138 . Although the boundaries of what constitutes speech on matters of public concern
are not well defined, this Court has said that speech is of public concern when it can “be fairly
considered as relating to any matter of political, social, or other concern to the community,” id.,
at 146, or when it “is a subject of general interest and of value and concern to the public,” San
Diego v. Roe , 543 U. S. 77 . A statement’s arguably “inappropriate or controversial character …
11
is irrelevant to the question whether it deals with a matter of public concern.” Rankin v.
McPherson , 483 U. S. 378 . Pp. 5–7.
To determine whether speech is of public or private concern, this Court must independently
examine the “ ‘content, form, and context,’ ” of the speech “ ‘as revealed by the whole record.’ ”
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 . In considering content, form,
and context, no factor is dispositive, and it is necessary to evaluate all aspects of the speech.
Pp. 7–8.
The “content” of Westboro’s signs plainly relates to public, rather than private, matters. The
placards highlighted issues of public import—the political and moral conduct of the United
States and its citizens, the fate of the Nation, homosexuality in the military, and scandals
involving the Catholic clergy—and Westboro conveyed its views on those issues in a manner
designed to reach as broad a public audience as possible. Even if a few of the signs were viewed
as containing messages related to a particular individual, that would not change the fact that the
dominant theme of Westboro’s demonstration spoke to broader public issues. P. 8.
The “context” of the speech—its connection with Matthew Snyder’s funeral—cannot by itself
transform the nature of Westboro’s speech. The signs reflected Westboro’s condemnation of
much in modern society, and it cannot be argued that Westboro’s use of speech on public issues
was in any way contrived to insulate a personal attack on Snyder from liability. Westboro had
been actively engaged in speaking on the subjects addressed in its picketing long before it
became aware of Matthew Snyder, and there can be no serious claim that the picketing did not
represent Westboro’s honestly held beliefs on public issues. Westboro may have chosen the
picket location to increase publicity for its views, and its speech may have been particularly
hurtful to Snyder. That does not mean that its speech should be afforded less than full First
Amendment protection under the circumstances of this case. Pp. 8–10.
...
580 F. 3d 206, affirmed.
Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas,
Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Alito,
J., filed a dissenting opinion.
12
Tinker v. Des Moines Independent Community School District
No. 21 Argued: November 12, 1968 --- Decided: February 24, 1969
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old,
attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13year-old student in junior high school.
In December, 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt
home. The group determined to publicize their objections to the hostilities in Vietnam and their
support for a truce by wearing black armbands during the holiday season and by fasting on
December 16 and New Year's Eve. Petitioners and their parents had previously engaged in
similar activities, and they decided to participate in the program.
The principals of the Des Moines schools became aware of the plan to wear armbands. On
December 14, 1965, they met and adopted a policy that any student wearing an armband to
school would be asked to remove it, and, if he refused, he would be suspended until he returned
without the armband. Petitioners were aware of the regulation that the school authorities adopted.
On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker
wore his armband the next day. They were all sent home and suspended from school until they
would come back without their armbands. They did not return to school until after the planned
period for wearing armbands had expired -- that is, until after New Year's Day.
This complaint was filed in the United States District Court by petitioners, through their fathers,
under § 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the
respondent school officials and the respondent members of the board of directors of the school
district from disciplining the petitioners, and it sought nominal damages. After an evidentiary
hearing, the District Court dismissed the complaint. It upheld [p505] the constitutionality of the
school authorities' action on the ground that it was reasonable in order to prevent disturbance of
school discipline. 258 F.Supp. 971 (1966). The court referred to, but expressly declined to follow,
the Fifth Circuit's holding in a similar case that the wearing of symbols like the armbands cannot
be prohibited unless it "materially and substantially interfere[s] with the requirements of
appropriate discipline in the operation of the school." Burnside v. Byars, 363 F.2d 744, 749
(1966). [n1]
On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court
was equally divided, and the District Court's decision was accordingly affirmed without opinion.
383 F.2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968). ...
II
The problem posed by the present case does not relate to regulation of the length of skirts or the
type of clothing, [p508] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School
13
District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538 (1923). It does
not concern aggressive, disruptive action or even group demonstrations. Our problem involves
direct, primary First Amendment rights akin to "pure speech."
The school officials banned and sought to punish petitioners for a silent, passive expression of
opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here
no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of
collision with the rights of other students to be secure and to be let alone. Accordingly, this case
does not concern speech or action that intrudes upon the work of the schools or the rights of
other students.
Only a few of the 18,000 students in the school system wore the black armbands. Only five
students were suspended for wearing them. There is no indication that the work of the schools or
any class was disrupted. Outside the classrooms, a few students made hostile remarks to the
children wearing armbands, but there were no threats or acts of violence on school premises.
The District Court concluded that the action of the school authorities was reasonable because it
was based upon their fear of a disturbance from the wearing of the armbands. But, in our system,
undifferentiated fear or apprehension of disturbance is not enough to overcome the right to
freedom of expression. Any departure from absolute regimentation may cause trouble. Any
variation from the majority's opinion may inspire fear. Any word spoken, in class, in the
lunchroom, or on the campus, that deviates from the views of another person may start an
argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v.
Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this
kind of openness -- that is [p509] the basis of our national strength and of the independence and
vigor of Americans who grow up and live in this relatively permissive, often disputatious,
society.
In order for the State in the person of school officials to justify prohibition of a particular
expression of opinion, it must be able to show that its action was caused by something more than
a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden
conduct would "materially and substantially interfere with the requirements of appropriate
discipline in the operation of the school," the prohibition cannot be sustained. Burnside v. Byars,
supra at 749.
In the present case, the District Court made no such finding, and our independent examination of
the record fails to yield evidence that the school authorities had reason to anticipate that the
wearing of the armbands would substantially interfere with the work of the school or impinge
upon the rights of other students. Even an official memorandum prepared after the suspension
that listed the reasons for the ban on wearing the armbands made no reference to the anticipation
of such disruption. [n3] [p510]
On the contrary, the action of the school authorities appears to have been based upon an urgent
wish to avoid the controversy which might result from the expression, even by the silent symbol
of armbands, of opposition to this Nation's part in the conflagration in Vietnam. [n4] It is
revealing, in this respect, that the meeting at which the school principals decided to issue the
14
contested regulation was called in response to a student's statement to the journalism teacher in
one of the schools that he wanted to write an article on Vietnam and have it published in the
school paper. (The student was dissuaded. [n5])
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols
of political or controversial significance. The record shows that students in some of the schools
wore buttons relating to national political campaigns, and some even wore the Iron Cross,
traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend
to these. Instead, a particular symbol -- black armbands worn to exhibit opposition to this
Nation's involvement [p511] in Vietnam -- was singled out for prohibition. Clearly, the
prohibition of expression of one particular opinion, at least without evidence that it is necessary
to avoid material and substantial interference with schoolwork or discipline, is not
constitutionally permissible.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do
not possess absolute authority over their students. Students in school, as well as out of school,
are "persons" under our Constitution. They are possessed of fundamental rights which the State
must respect, just as they themselves must respect their obligations to the State. In our system,
students may not be regarded as closed-circuit recipients of only that which the State chooses to
communicate. They may not be confined to the expression of those sentiments that are officially
approved. In the absence of a specific showing of constitutionally valid reasons to regulate their
speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking
for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which
they do not wish to contend." Burnside v. Byars, supra, at 749. ...
Bethel School District No. 403 v. Fraser
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 84-1667 Argued: March 3, 1986 --- Decided: July 7, 1986
Respondent public high school student (hereafter respondent) delivered a speech nominating a
fellow student for a student elective office at a voluntary assembly that was held during school
hours as part of a school-sponsored educational program in self-government, and that was
attended by approximately 600 students, many of whom were 14-year-olds. During the entire
speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual
metaphor. Some of the students at the assembly hooted and yelled during the speech, some
mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and
embarrassed. Prior to delivering the speech, respondent discussed it with several teachers, two of
whom advised him that it was inappropriate and should not be given. The morning after the
assembly, the Assistant Principal called respondent into her office and notified him that the
school considered his speech to have been a violation of the school's "disruptive conduct rule,"
which prohibited conduct that substantially interfered with the educational process, including the
use of obscene, profane language or gestures. Respondent was given copies of teacher reports of
his conduct, and was given a chance to explain his conduct. After he admitted that he deliberately
used sexual innuendo in the speech, he was informed that he would be suspended for three days,
15
and that his name would be removed from the list of candidates for graduation speaker at the
school's commencement exercises. Review of the disciplinary action through petitioner School
District's grievance procedures resulted in affirmance of the discipline, but respondent was
allowed to return to school after serving only two days of his suspension. Respondent, by his
father (also a respondent) as guardian ad litem, then filed suit in Federal District Court, alleging a
violation of his First Amendment right to freedom of speech and seeking injunctive relief and
damages under 42 U.S.C. § 1983. The court held that the school's sanctions violated the First
Amendment, that the school's disruptive conduct rule was unconstitutionally vague and
overbroad, and that the removal of respondent's name from the graduation speaker's list violated
the Due Process Clause of the Fourteenth Amendment. The court awarded respondent
monetary relief and enjoined the [p676] School District from preventing him from speaking at
the commencement ceremonies. The Court of Appeals affirmed.
Held:
1. The First Amendment did not prevent the School District from disciplining respondent for
giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503, distinguished. Under the First
Amendment, the use of an offensive form of expression may not be prohibited to adults making
what the speaker considers a political point, but it does not follow that the same latitude must be
permitted to children in a public school. It is a highly appropriate function of public school
education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the
Constitution prohibits the states from insisting that certain modes of expression are inappropriate
and subject to sanctions. The inculcation of these values is truly the work of the school, and the
determination of what manner of speech is inappropriate properly rests with the school board.
First Amendment jurisprudence recognizes an interest in protecting minors from exposure to
vulgar and offensive spoken language, FCC v. Pacifica Foundation, 438 U.S. 726, as well as
limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience
where the speech is sexually explicit and the audience may include children. Ginsberg v. New
York, 390 U.S. 629. Petitioner School District acted entirely within its permissible authority in
imposing sanctions upon respondent in response to his offensively lewd and indecent speech,
which had no claim to First Amendment protection. Pp. 680-686.
2. There is no merit to respondent's contention that the circumstances of his suspension violated
due process because he had no way of knowing that the delivery of the speech would subject him
to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for
a wide range of unanticipated conduct disruptive of the educational process, the school
disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.
The school disciplinary rule proscribing "obscene" language and the prespeech admonitions of
teachers gave adequate warning to respondent that his lewd speech could subject him to
sanctions. P. 686.
BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST,
and O'CONNOR, JJ., joined. BRENNAN J., filed an opinion concurring in the judgment, post, p.
687. BLACKMUN, J. concurred in the result. MARSHALL, J., post, p. 690, and STEVENS, J.,
post, p. 691, filed dissenting opinions. [p677]
16
Hazelwood School District v. Kuhlmeier
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 86-836 Argued: October 13, 1987 --- Decided: January 13, 1988
Respondents, former high school students who were staff members of the school's newspaper,
filed suit in Federal District Court against petitioners, the school district and school officials,
alleging that respondents' First Amendment rights were violated by the deletion from a certain
issue of the paper of two pages that included an article describing school students' experiences
with pregnancy and another article discussing the impact of divorce on students at the school.
The newspaper was written and edited by a journalism class, as part of the school's curriculum.
Pursuant to the school's practice, the teacher in charge of the paper submitted page proofs to the
school's principal, who objected to the pregnancy story because the pregnant students, although
not named, might be identified from the text, and because he believed that the article's references
to sexual activity and birth control were inappropriate for some of the younger students. The
principal objected to the divorce article because the page proofs he was furnished identified by
name (deleted by the teacher from the final version) a student who complained of her father's
conduct, and the principal believed that the student's parents should have been given an
opportunity to respond to the remarks or to consent to their publication. Believing that there was
no time to make necessary changes in the articles if the paper was to be issued before the end of
the school year, the principal directed that the pages on which they appeared be withheld from
publication even though other, unobjectionable articles were included on such pages. The District
Court held that no First Amendment violation had occurred. The Court of Appeals reversed.
Held: Respondents' First Amendment rights were not violated.
(a) First Amendment rights of students in the public schools are not automatically coextensive
with the rights of adults in other settings, and must be applied in light of the special
characteristics of the school environment. A school need not tolerate student speech that is
inconsistent with its basic educational mission, even though the government could not censor
similar speech outside the school.
(b) The school newspaper here cannot be characterized as a forum for public expression. School
facilities may be deemed to be public forums [p261] only if school authorities have, by policy or
by practice, opened the facilities for indiscriminate use by the general public, or by some
segment of the public, such as student organizations. If the facilities have instead been reserved
for other intended purposes, communicative or otherwise, then no public forum has been created,
and school officials may impose reasonable restrictions on the speech of students, teachers, and
other members of the school community. The school officials in this case did not deviate from
their policy that the newspaper's production was to be part of the educational curriculum and a
regular classroom activity under the journalism teacher's control as to almost every aspect of
publication. The officials did not evince any intent to open the paper's pages to indiscriminate use
17
by its student reporters and editors, or by the student body generally. Accordingly, school
officials were entitled to regulate the paper's contents in any reasonable manner.
(c) The standard for determining when a school may punish student expression that happens to
occur on school premises is not the standard for determining when a school may refuse to lend
its name and resources to the dissemination of student expression. Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503, distinguished. Educators do not offend the
First Amendment by exercising editorial control over the style and content of student speech in
school-sponsored expressive activities, so long as their actions are reasonably related to
legitimate pedagogical concerns.
(d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy
article, the divorce article, and the other articles that were to appear on the same pages of the
newspaper.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS,
O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL and BLACKMUN, JJ., joined, post, p. 277. [p262]
18
Ch. 4, Pages 108-120 Assignment:
Directions: Read Ch. 4, pages 108-120 in the textbook and answer on a separate sheet of paper.
(Be sure to restate the vocabulary of each question.)
(Class discussion) Identify 3 examples of reduced civil liberties of suspected terrorists
since 9/11.
1. Explain how the clear and present danger test was used to suppress even political speech.
Describe how this test was used in the Schenk v. U.S.
2. Explain how the direct incitement test would have impacted the sedition cases.
3. Define symbolic speech and describe the USSC’s majority decision inTexas v. Johnson.
4. Compare and contrast the cases involving Gregory Johnson and Joseph Federick.
5. Illustrate the Court’s decisions to allow some campaign fundraising while restricting other
types of fundraising.
(Class discussion and notes) Explain how cross burning can be banned in a
constitutional manner.
6. Explain how governments can regulate the freedom to assemble based on “time, place and
manner” regulations.
7. Define prior restraint:
(Class discussion and notes) Describe the following cases: New York Times v. U.S.
(1971)--Pentagon Papers Case; War on Terror leaks; WikiLeaks; jailing of journalists who refuse
to reveal sources.
8. Identify and describe 4 types of speech that get less constitutional protection.
19
Employment Division, Department of Human
Resources of Oregon v. Smith
CERTIORARI TO THE SUPREME COURT OF OREGON
No. 88-1213 Argued: Nov. 6, 1989 --- Decided: April 17, 1990
Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote,
a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications
for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees
discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free
exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the
judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled
substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination,
the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court
held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that
that prohibition was invalid under the Free Exercise Clause.
Held: The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny
unemployment benefits to persons discharged for such use. Pp. 876-890.
(a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to
ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause
does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the
performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious
practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.
See, e.g., Reynolds v. United States, 98 U.S. 145, 166-167. The only decisions in which this Court has held that the
First Amendment bars application of a neutral, generally applicable law to religiously motivated action are
distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction
with other constitutional [p873] protections. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 304-307; Wisconsin v.
Yoder, 406 U.S. 205. Pp. 876-882.
(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test
set forth in the line of cases following Sherbert v. Verner, 374 U.S. 398, 402-403, whereby governmental actions that
substantially burden a religious practice must be justified by a "compelling governmental interest." That test was
developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized
governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board
criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to
ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of
religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the
individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular
beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 U.S. 680, 699. Thus, although it is
constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not
constitutionally required. Pp. 882-890.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and
KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in Parts I and II of which
BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without concurring in the judgment, post, p. 891.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 907.
[p874]
20
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah
No. 91-948 Argued: Nov. 4, 1992 --- Decided: June 11, 1993
Petitioner church and its congregants practice the Santeria religion, which employs animal sacrifice as one of its
principal forms of devotion. The animals are killed by cutting their carotid arteries, and are cooked and eaten
following all Santeria rituals except healing and death rites. After the church leased land in respondent city and
announced plans to establish a house of worship and other facilities there, the city council held an emergency public
session and passed, among other enactments Resolution 87-66, which noted city residents' "concern" over religious
practices inconsistent with public morals, peace, or safety, and declared the city's "commitment" to prohibiting such
practices; Ordinance 87-40, which incorporates the Florida animal cruelty laws and broadly punishes "[w]hoever . . .
unnecessarily or cruelly . . . kills any animal," and has been interpreted to reach killings for religious reasons;
Ordinance 87-52, which defines "sacrifice" as "to unnecessarily kill . . . an animal in a . . . ritual . . . not for the
primary purpose of food consumption," and prohibits the "possess[ion], sacrifice, or slaughter" of an animal if it is
killed in "any type of ritual" and there is an intent to use it for food, but exempts "any licensed [food] establishment"
if the killing is otherwise permitted by law; Ordinance 87-71, which prohibits the sacrifice of animals, and defines
"sacrifice" in the same manner as Ordinance 87-52; and Ordinance 87-72 which defines "slaughter" as "the killing of
animals for food" and prohibits slaughter outside of areas zoned for slaughterhouses, but includes an exemption for
"small numbers of hogs and/or cattle" when exempted by state law. Petitioners filed this suit under 42 U.S.C. § 1983
alleging violations of their rights under, inter alia, the Free Exercise Clause of the First Amendment. Although
acknowledging that the foregoing ordinances are not religiously neutral, the District Court ruled for the city,
concluding, among other things, that compelling governmental interests in preventing public health risks and cruelty
to animals fully justified the absolute prohibition on ritual sacrifice accomplished by the ordinances, and that an
exception to that prohibition for religious conduct would unduly interfere with fulfillment of the governmental
interest, because any more narrow restrictions would be unenforceable as a result of the Santeria religion's secret
nature. The Court of Appeals affirmed.
Held: The judgment is reversed.
JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, IIA-1, II-A-3, II-B, III, and IV,
concluding that the laws in question were enacted contrary to free exercise principles, and they are void. Pp. ___.
(a) Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling
governmental interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of
Oregon v. Smith, 494 U.S. 872. However, where such a law is not neutral or not of general application, it must
undergo the most rigorous of scrutiny: it must be justified by a compelling governmental interest, and must be
narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy
one requirement is a likely indication that the other has not been satisfied. Pp. ___.
(b) The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression
of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by
Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and
"ritual" in Ordinances 87-40, 8752, and 87-71.
KENNEDY, J., delivered the opinion of the Court
21
Wallace v. Jaffree
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ‘ELEVENTH CIRCUIT
No. 83-812 Argued: December 4, 1984 --- Decided: June 4, 1985 [*]
In proceedings instituted in Federal District Court, appellees challenged the constitutionality of,
inter alia, a 1981 Alabama Statute (§ 16-1-20.1) authorizing a 1-minute period of silence in all
public schools "for meditation or voluntary prayer." Although finding that § 16-1-20.1 was an
effort to encourage a religious activity, the District Court ultimately held that the Establishment
Clause of the First Amendment does not prohibit a State from establishing a religion. The Court
of Appeals reversed.
Held: Section 16-1-20.1 is a law respecting the establishment of religion, and thus violates the
First Amendment. Pp. 48-61.
(a) The proposition that the several States have no greater power to restrain the individual
freedoms protected by the First Amendment than does Congress is firmly embedded in
constitutional jurisprudence. The First Amendment was adopted to curtail Congress' power to
interfere with the individual's freedom to believe, to worship, and to express himself in
accordance with the dictates of his own conscience, and the Fourteenth Amendment imposed
the same substantive limitations on the States' power to legislate. The individual's freedom to
choose his own creed is the counterpart of his right to refrain from accepting the creed
established by the majority. Moreover, the individual freedom of conscience protected by the
First Amendment embraces the right to select any religious faith or none at all. Pp. 48-55.
(b) One of the well-established criteria for determining the constitutionality of a statute under the
Establishment Clause is that the statute must have a secular legislative purpose. Lemon v.
Kurtzman, 403 U.S. 602, 612-613. The First Amendment requires that a statute must be
invalidated if it is entirely motivated by a purpose to advance religion. Pp. 55-56.
(c) The record here not only establishes that § 16-1-20.1's purpose was to endorse religion, it also
reveals that the enactment of the statute was not motivated by any clearly secular purpose. In
particular, the statements of § 16-120.1's sponsor in the legislative record and in his [p39]
testimony before the District Court indicate that the legislation was solely an "effort to return
voluntary prayer" to the public schools. Moreover, such unrebutted evidence of legislative intent
is confirmed by a consideration of the relationship between § 16-1-20.1 and two other Alabama
statutes -- one of which, enacted in 1982 as a sequel to § 16-1-20.1, authorized teachers to lead
"willing students" in a prescribed prayer, and the other of which, enacted in 1978 as § 16-1-20.
l's predecessor, authorized a period of silence "for meditation" only. The State's endorsement, by
enactment of § 16-1-20.1, of prayer activities at the beginning of each schoolday is not consistent
with the established principle that the government must pursue a course of complete neutrality
toward religion. Pp. 56-61.
STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL,
BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 62.
O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 67. BURGER, C.J., post, p.
84, WHITE, J., post, p. 90, and REHNQUIST, J., post, p. 91, filed dissenting opinions. [p40]
22
Lee v. Weisman
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 90-1014 Argued: Nov. 6, 1991 --- Decided: June 24, 1992
Principals of public middle and high schools in Providence, Rhode Island, are permitted to invite
members of the clergy to give invocations and benedictions at their schools' graduation
ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer such prayers at the
graduation ceremony for Deborah Weisman's class, gave the Rabbi a pamphlet containing
guidelines for the composition of public prayers at civic ceremonies, and advised him that the
prayers should be nonsectarian. Shortly before the ceremony, the District Court denied the
motion of respondent Weisman, Deborah's father, for a temporary restraining order to prohibit
school officials from including the prayers in the ceremony. Deborah and her family attended the
ceremony, and the prayers were recited. Subsequently, Weisman sought a permanent injunction
barring Lee and other petitioners, various Providence public school officials, from inviting clergy
to deliver invocations and benedictions at future graduations. It appears likely that such prayers
will be conducted at Deborah's high school graduation. The District Court enjoined petitioners
from continuing the practice at issue on the ground that it violated the Establishment Clause of
the First Amendment. The Court of Appeals affirmed.
Held: Including clergy who offer prayers as part of an official public school graduation
ceremony is forbidden by the Establishment Clause. Pp. 586-599.
(a) This Court need not revisit the questions of the definition and scope of the principles
governing the extent of permitted accommodation by the State for its citizens' religious beliefs
and practices, for the controlling precedents as they relate to prayer and religious exercise in
primary and secondary public schools compel the holding here. Thus, the Court will not
reconsider its decision in Lemon v. Kurtzman, 403 U.S. 602"]403 U.S. 602. The principle that
government may accommodate the free exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause, which guarantees, at a minimum, that a
government may not coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which "establishes a [p578] [state] religion or religious faith, or tends to
do so." 403 U.S. 602. The principle that government may accommodate the free exercise of
religion does not supersede the fundamental limitations imposed by the Establishment Clause,
which guarantees, at a minimum, that a government may not coerce anyone to support or
participate in religion or its exercise, or otherwise act in a way which "establishes a [p578]
[state] religion or religious faith, or tends to do so." Lynch v. Donnelly, 465 U.S. 668, 678. Pp.
586-587.
(b) State officials here direct the performance of a formal religious exercise at secondary schools'
promotional and graduation ceremonies. Lee's decision that prayers should be given and his
selection of the religious participant are choices attributable to the State. Moreover, through the
pamphlet and his advice that the prayers be nonsectarian, he directed and controlled the prayers'
content. That the directions may have been given in a good faith attempt to make the prayers
acceptable to most persons does not resolve the dilemma caused by the school's involvement,
23
since the government may not establish an official or civic religion as a means of avoiding the
establishment of a religion with more specific creeds. Pp. 587-590.
...
908 F.2d 1090 (CA1 1990), affirmed.
KENNEDY, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS,
O'CONNOR, and SOUTER, JJ., joined. BLACKMUN, J., post, p. 599, and SOUTER, J., post, p.
609, filed concurring opinions, in which STEVENS and O'CONNOR, JJ., joined. SCALIA, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined,
post, p. 631. [p580]
Ch. 4, Pages 120-124 Assignment:
Directions: Read Ch. 4, pages 120-124 in the textbook and answer on a separate sheet of paper.
(Be sure to restate the vocabulary of each question.)
1. Describe the contrast between the First Amendment’s establishment clause and the free
exercise clause:
2. Describe 3 SCOTUS cases involving public schools and the establishment clause.
Summarize the SCOTUS decision in each case.
3. Describe the 3 parts of the Lemon Test from the case of Lemon v. Kurtzman (1971)
4. Describe 3 SCOTUS cases involving the free exercise clause. Summarize the SCOTUS
decision in each case.
5. Explain how SCOTUS has changed its approach toward the 2nd Amendment’s protection
of gun rights in recent years.
24
Ch. 4, Pages 125-139 Assignment:
Directions: Read Ch. 4, pages 125-139 in the textbook and answer on a separate sheet of paper.
(Be sure to restate the vocabulary of each question.)
1. Define due process rights:
2. Describe how the USA Patriot Act 2011 impacted the federal government’s ability to
search suspected terrorists.
(Class discussion and notes)
reasonable suspicion
Describe the difference between probable cause and
3. Define the exclusionary rule:
4. Define the good faith exception to the 4th amendment:
(Class discussion and notes) Describe the expansion of the federal government’s
searches of suspected terrorists since 9/11.
5. Define Miranda rights:
6. Define double jeopardy:
7. Identify the vocabulary term that could be used to describe the government’s ability to take
private lands for public use:
8. Describe how the case of Gideon v. Wainwright changed the application of the 6th
Amendment’s right to counsel.
9. Explain how SCOTUS decisions about the 8th Amendment’s interpretation of cruel and
unusual punishment has changed in recent years.
10. Define zones of privacy from Griswold v. Connecticut (1965)
11.Explain how the zones of privacy was then applied to the SCOTUS decision in Roe v.
Wade (1973)
25
Kyllo v. U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 99—8508. Argued February 20, 2001–Decided June 11, 2001
Suspicious that marijuana was being grown in petitioner Kyllo’s home in a triplex, agents used a
thermal imaging device to scan the triplex to determine if the amount of heat emanating from it
was consistent with the high-intensity lamps typically used for indoor marijuana growth. The
scan showed that Kyllo’s garage roof and a side wall were relatively hot compared to the rest of
his home and substantially warmer than the neighboring units. Based in part on the thermal
imaging, a Federal Magistrate Judge issued a warrant to search Kyllo’s home, where the agents
found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully
moved to suppress the evidence seized from his home and then entered a conditional guilty plea.
The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo
had shown no subjective expectation of privacy because he had made no attempt to conceal the
heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable
expectation of privacy because the thermal imager did not expose any intimate details of Kyllo’s
life, only amorphous hot spots on his home’s exterior.
Held: Where, as here, the Government uses a device that is not in general public use, to explore
details of a private home that would previously have been unknowable without physical
intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable
without a warrant. Pp. 3—13. ...
(c) Based on this criterion, the information obtained by the thermal imager in this case was the
product of a search. The Court rejects the Government’s argument that the thermal imaging must
be upheld because it detected only heat radiating from the home’s external surface. Such a
mechanical interpretation of the Fourth Amendment was rejected in Katz, where the
eavesdropping device in question picked up only sound waves that reached the exterior of the
phone booth to which it was attached. Reversing that approach would leave the homeowner at
the mercy of advancing technology–including imaging technology that could discern all human
activity in the home. Also rejected is the Government’s contention that the thermal imaging was
constitutional because it did not detect “intimate details.” Such an approach would be wrong in
principle because, in the sanctity of the home, all details are intimate details. See e.g., United
States v. Karo, 468 U.S. 705; Dow Chemical, supra, at 238, distinguished. It would also be
impractical in application, failing to provide a workable accommodation between law
enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U.S. 170,
181. Pp. 7—12. ...
190 F.3d 1041, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Souter, Thomas, Ginsburg, and Breyer,
JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and
Kennedy, JJ., joined.
26
Bond v. U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98—9349. Argued February 29, 2000–Decided April 17, 2000
Border Patrol Agent Cantu boarded a bus in Texas to check the immigration status of its
passengers. As he walked off the bus, he squeezed the soft luggage which passengers had placed
in the overhead storage space. He squeezed a canvas bag above petitioner’s seat and noticed that
it contained a “brick-like” object. After petitioner admitted owning the bag and consented to its
search, Agent Cantu discovered a “brick” of methamphetamine. Petitioner was indicted on
federal drug charges. He moved to suppress the drugs, arguing that Agent Cantu conducted an
illegal search of his bag. The District Court denied the motion and found petitioner guilty. The
Fifth Circuit affirmed the denial of the motion, holding that Agent Cantu’s manipulation of the
bag was not a search under the Fourth Amendment.
Held: Agent Cantu’s physical manipulation of petitioner’s carry-on bag violated the Fourth
Amendment’s proscription against unreasonable searches. A traveler’s personal luggage is clearly
an “effect” protected by the Amendment, see United States v. Place, 462 U.S. 696, 707, and it is
undisputed that petitioner possessed a privacy interest in his bag. The Government’s assertion
that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would
not be physically manipulated is rejected. California v. Ciraolo, 476 U.S. 207, and Florida v.
Riley, 488 U.S. 445, are distinguishable, because they involved only visual, as opposed to tactile,
observation. Physically invasive inspection is simply more intrusive than purely visual
inspection. Under this Court’s Fourth Amendment analysis, a court first asks whether the
individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has
shown that “he [sought] to preserve [something] as private.” Smith v. Maryland, 442 U.S. 735,
740. Here, petitioner sought to preserve privacy by using an opaque bag and placing it directly
above his seat. Second, a court inquires whether the individual’s expectation of privacy is “one
that society is prepared to recognize as reasonable.” Ibid. Although a bus passenger clearly
expects that other passengers or bus employees may handle his bag, he does not expect that they
will feel the bag in an exploratory manner. But this is exactly what the agent did here. Pp. 2—5.
167 F.3d 225, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy,
Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion, in which Scalia,
J., joined.
27
Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 01—332. Argued March 19, 2002–Decided June 27, 2002
The Student Activities Drug Testing Policy (Policy) adopted by the Tecumseh, Oklahoma,
School District (School District) requires all middle and high school students to consent to
urinalysis testing for drugs in order to participate in any extracurricular activity. In practice, the
Policy has been applied only to competitive extracurricular activities sanctioned by the
Oklahoma Secondary Schools Activities Association (OSSAA). Respondent high school students
and their parents brought this 42 U.S. C. §1983 action for equitable relief, alleging that the
Policy violates the Fourth Amendment. Applying Vernonia School Dist. 47J v. Acton, 515 U.S.
646, in which this Court upheld the suspicionless drug testing of school athletes, the District
Court granted the School District summary judgment. The Tenth Circuit reversed, holding that
the Policy violated the Fourth Amendment. It concluded that before imposing a suspicionless
drug testing program a school must demonstrate some identifiable drug abuse problem among a
sufficient number of those tested, such that testing that group will actually redress its drug
problem. The court then held that the School District had failed to demonstrate such a problem
among Tecumseh students participating in competitive extracurricular activities.
Held: Tecumseh’s Policy is a reasonable means of furthering the School District’s important
interest in preventing and deterring drug use among its schoolchildren and does not violate the
Fourth Amendment. Pp. 4—14.
(a) Because searches by public school officials implicate Fourth Amendment interests, see e.g.,
Vernonia, 515 U.S., at 652, the Court must review the Policy for “reasonableness,” the
touchstone of constitutionality. In contrast to the criminal context, a probable cause finding is
unnecessary in the public school context because it would unduly interfere with maintenance of
the swift and informal disciplinary procedures that are needed. In the public school context, a
search may be reasonable when supported by “special needs” beyond the normal need for law
enforcement. Because the “reasonableness” inquiry cannot disregard the schools’ custodial and
tutelary responsibility for children, id., at 656, a finding of individualized suspicion may not be
necessary. In upholding the suspicionless drug testing of athletes, the Vernonia Court conducted
a fact-specific balancing of the intrusion on the children’s Fourth Amendment rights against the
promotion of legitimate governmental interests. Applying Vernonia’s principles to the somewhat
different facts of this case demonstrates that Tecumseh’s Policy is also constitutional. Pp. 4—6.
242 F.3d 1264, reversed.
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy,
and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. O’Connor, J., filed a dissenting
opinion, in which Souter, J., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens,
O’Connor, and Souter, JJ., joined.
28
Roper v. Simmons
CERTIORARI TO THE SUPREME COURT OF MISSOURI
No. 03—633.Argued October 13, 2004–Decided March 1, 2005
At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18,
he was sentenced to death. His direct appeal and subsequent petitions for state and federal
postconviction relief were rejected. This Court then held, in Atkins v. Virginia, 536 U.S. 304, that
the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits
the execution of a mentally retarded person. Simmons filed a new petition for state
postconviction relief, arguing that Atkins’ reasoning established that the Constitution prohibits
the execution of a juvenile who was under 18 when he committed his crime. The Missouri
Supreme Court agreed and set aside Simmons’ death sentence in favor of life imprisonment
without eligibility for release. It held that, although Stanford v. Kentucky, 492 U.S. 361, rejected
the proposition that the Constitution bars capital punishment for juvenile offenders younger than
18, a national consensus has developed against the execution of those offenders since Stanford.
Held: The Eighth and Fourteenth Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 when their crimes were committed. Pp. 6—25.
.... Once juveniles’ diminished culpability is recognized, it is evident that neither of the two
penological justifications for the death penalty–retribution and deterrence of capital crimes by
prospective offenders, e.g., Atkins, 536 U.S., at 319–provides adequate justification for imposing
that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many
juvenile offenders have committed, it disagrees with petitioner’s contention that, given the
Court’s own insistence on individualized consideration in capital sentencing, it is arbitrary and
unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender
under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any
particular crime would overpower mitigating arguments based on youth as a matter of course,
even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity
should require a sentence less severe than death. When a juvenile commits a heinous crime, the
State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his
life and his potential to attain a mature understanding of his own humanity. While drawing the
line at 18 is subject to the objections always raised against categorical rules, that is the point
where society draws the line for many purposes between childhood and adulthood and the age at
which the line for death eligibility ought to rest. Stanford should be deemed no longer controlling
on this issue. Pp. 14—21.
(c) The overwhelming weight of international opinion against the juvenile death penalty is not
controlling here, but provides respected and significant confirmation for the Court’s
determination that the penalty is disproportionate punishment for offenders under 18. See, e.g.,
Thompson, supra, at 830—831, and n. 31. The United States is the only country in the world that
continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the
Constitution or pride in its origins to acknowledge that the express affirmation of certain
29
fundamental rights by other nations and peoples underscores the centrality of those same rights
within our own heritage of freedom. Pp. 21—25.
112 S. W. 3d 397, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and
Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined.
O’Connor, J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist,
C. J., and Thomas, J., joined.
30
Ch. 14 Assignment:
Directions: Read Ch. 14 in the textbook and answer on a separate sheet of paper. (Be sure to
restate the vocabulary of each question.)
1. Define civil rights:
2. Identify the SCOTUS case that allowed “separate but equal” public facilities.
3. Identify the Amendment that guaranteed women the right to vote.
4. Explain how the role of the national government in the development of civil rights for
African Americans has contrasted with the role of the national government in the
development of civil rights for homosexuals.
5. Identify the major interest group that was founded in 1909 to fight for equal rights for
blacks.
6. Describe the tactic most commonly used by the civil rights movement prior to the passage
of civil rights legislation in the 1960s.
31
7. Explain how the SCOTUS decisions in Brown v. Board of Education was legally significant.
8. Explain how the concept of de jure segregation contrasts with de facto segregation.
9. Explain how Title IX was intended to impact education policy.
10.Describe the goal of most affirmative action programs.
11.Define strict scrutiny test:
12.Define the substantive due process doctrine:
32
Lawrence et al. v. Texas
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
No. 02—102. Argued March 26, 2003–Decided June 26, 2003
Responding to a reported weapons disturbance in a private residence, Houston police entered
petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging
in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual
intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in
certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the
statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment.
The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain
intimate sexual conduct violates the Due Process Clause. Pp. 3—18.
(a) Resolution of this case depends on whether petitioners were free as adults to engage in
private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the
Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s initial
substantive statement–“The issue presented is whether the Federal Constitution confers a
fundamental right upon homosexuals to engage in sodomy … ,” 478 U.S., at 190–discloses the
Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was
simply the right to engage in certain sexual conduct demeans the claim the individual put
forward, just as it would demean a married couple were it said that marriage is just about the
right to have sexual intercourse. Although the laws involved in Bowers and here purport to do
not more than prohibit a particular sexual act, their penalties and purposes have more farreaching consequences, touching upon the most private human conduct, sexual behavior, and in
the most private of places, the home. They seek to control a personal relationship that, whether or
not entitled to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals. The liberty protected by the Constitution allows homosexual
persons the right to choose to enter upon relationships in the confines of their homes and their
own private lives and still retain their dignity as free persons. Pp. 3—6.
(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that
proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted, however,
that there is no longstanding history in this country of laws directed at homosexual conduct as a
distinct matter. Early American sodomy laws were not directed at homosexuals as such but
instead sought to prohibit nonprocreative sexual activity more generally, whether between men
and women or men and men. Moreover, early sodomy laws seem not to have been enforced
against consenting adults acting in private. Instead, sodomy prosecutions often involved
predatory acts against those who could not or did not consent: relations between men and minor
girls or boys, between adults involving force, between adults implicating disparity in status, or
between men and animals. The longstanding criminal prohibition of homosexual sodomy upon
which Bowers placed such reliance is as consistent with a general condemnation of
nonprocreative sex as it is with an established tradition of prosecuting acts because of their
33
homosexual character. Far from possessing “ancient roots,” ibid., American laws targeting samesex couples did not develop until the last third of the 20th century. Even now, only nine States
have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied
upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief
Justice Burger there indicated. They are not without doubt and, at the very least, are overstated.
The Bowers Court was, of course, making the broader point that for centuries there have been
powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to
define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 850. The Nation’s laws and traditions in the past half century are
most relevant here. They show an emerging awareness that liberty gives substantial protection to
adult persons in deciding how to conduct their private lives in matters pertaining to sex. See
County of Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 6—12.
...
41 S. W. 3d 349, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and
Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a
dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a
dissenting opinion.
Dissent by Justice Clarence Thomas
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the
Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965)
(Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it.
Punishing someone for expressing his sexual preference through noncommercial consensual
conduct with another adult does not appear to be a worthy way to expend valuable law
enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help
petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the
Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can
find [neither in the Bill of Rights nor any other part of the Constitution a] general right of
privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and
more transcendent dimensions,” ante, at 1.
34
Summary of SCOTUS Civil Liberty + Civil Rights Cases
Barron v. Baltimore (1833)
First Amendment -- Speech
Schenck v. U.S. (1919)
Gitlow v. New York (1925)
Brandenburg v. Ohio (1969)
Snyder v. Phelps (2011)
First Amendment -- Symbolic Speech
Texas v. Johnson (1989)
R.A.V. v. St. Paul (1992)
Virginia v. Black (2003)
First Amendment -- Public School Speech
Tinker v. Des Moines (1969)
Bethel v. Fraser (1986)
Hazelwood v. Kuhlmeier (1988)
First Amendment -- Press
Near v. Minnesota (1931)
New York Times v. U.S. (1971)
First Amendment -- Religious Free Exercise Clause
Oregon v. Smith (1990)
Church of Lukumi Babalu v. City of Hialeah (1993)
First Amendment -- Religious Establishment Clause
Everson v. Board of Education (1947)
Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)
Wallace v. Jaffree (1985)
Lee v. Weisman (1992)
Second Amendment: McDonald v. Chicago (2010)
35
4th Amendment--Protection from unreasonable searches
Mapp v. Ohio (1961)
Terry v. Ohio (1968)
NJ v. TLO (1985)
Kyllo v. US (2001)
5th Amendment--Protection from self incrimination
Miranda v. Arizona (1966)
6th Amendment--Right to an attorney
Gideon v. Wainwright (1963)
JDB v. North Carolina (2011)
6th Amendment--Right to a jury trial
Duncan v. Louisiana (1968)
8th Amendment--Death Penalty
Atkins v. Virginia (2002)
Roper v. Simmons (2005)
9th Amendment--Right to privacy
Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Civil Rights
Plessey v. Ferguson (1896)
Brown v. Board of Education Topeka, Kansas (1954)
Heart of Atlanta Motel v. U.S. (1964)
California v. Bakke (1978)
Grutter v. Bollinger (2003)
Gratz v. Bollinger (2003)
Lawrence v. Texas (2003)
Ledbetter v. Goodyear Tire (2007)
36