The 1st and 4th Amendments
Sections 1 & 2
Chapter 13
Supreme Court Cases
Students’ Right of Expression
In the mid-1960s public opinion about the Vietnam War was divided. By 1963, protests and
demonstrations against the war began to spread, especially on college campuses. Within a couple of
years, some high school and middle school students also began to protest the Vietnam War.
The Black Armband Case
• 1965: John Tinker and others protested Vietnam War by wearing black armbands at public
school
• School board adopted policy banning wearing of armbands
• Several violated policy, wore armbands, and were suspended
• Parents sued school district claiming students’ First Amendment right to free expression
had been violated
• U.S. district court ruled in favor of school; appeals court upheld
• Case appealed directly to U.S. Supreme Court
Students’ Right of Expression {continued}
The Supreme Court Decision
• Tinkers and others argued school’s ban on armbands violated right to free speech under
First, Fourteenth Amendments—armbands symbolic speech
• School district argued ban intended to prevent classroom disruption, not suppress
expression; argued reasonable use of power to preserve order
• 1969: Tinker v. Des Moines School District reversed lower court’s ruling
• Constitutional rights not shed “at schoolhouse gate”
• Court agreed school authorities have right to maintain order, but protesters did not
interrupt activities or seek to “intrude in school affairs”
• Court said schools can regulate student speech when speech would be disruptive and
interfere with rights of other students
• Tinker test: if expression does not substantially interfere with school operation, regulating
that speech violates the Constitution’s protection of free expression
Students’ Right of Expression {continued}
After Tinker
• Tinker case remains leading case dealing with free-expression rights of public school
students
• 1980s
— Times and court membership changed
— Court gradually modified and expanded concept of school disruption
• Examples
— 1986: Bethel School District v. Fraser upheld suspension of student for giving
speech containing vulgar sexual references
— 1988: In Hazelwood School District v. Kuhlmeier justices upheld right of
school officials to censor school newspaper if school believes content
inconsistent with legitimate educational purpose
• Supreme Court has limited student expression on and off campus in recent years
Freedom of Religion
The First Amendment guarantees your right to freedom of expression, the right of citizens to hold,
explore, exchange, express, and debate ideas. “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” These two guarantees are known
as the establishment clause and the free exercise clause.
The Establishment Clause
• Jefferson called for “wall of separation”
between church, state
• Supreme Court has tried to maintain such
a wall
• Disagreement exists over how high wall
should be, or if it should exist
School Prayer
• Some of the greatest controversy
• Court has banned public enforced school
prayer, not private, voluntary school
prayer
• Private religious groups allowed
• Employees may not take part
Freedom of Religion
Religion and Instruction
•Teaching about religion and the Bible allowable
— Instruction must be done in nonreligious manner
— Cannot include teaching of religious beliefs
•1968: Epperson v. Arkansas
— Cannot include teaching of religious beliefs
•1987: Edwards v. Aguillard
— Voided Louisiana law requiring religious view known as creation science to
be taught alongside evolution
Freedom of Religion {continued}
The Free Exercise Clause
•First Amendment seems to make freedom of religious belief an absolute right
•Court has drawn distinction between right to believe and right to express beliefs through actions
•Difference noted in first case heard involving free exercise clause
— 1879: In Reynolds v. United States Court upheld conviction of George
Reynolds for practice of polygamy, having more than one wife
— Reynolds belonged to Mormon Church, which allowed polygamy
— Federal law prohibited practice of polygamy
— Court ruled free exercise clause did not protect religious practices “subversive of
good order,” even if they reflected religious beliefs
•Court developed principle into “compelling interest test”
— Requires government to have compelling reason for banning religious
practice as necessary to protect society
“Compelling Interest Test”
West Virginia State Board of Education v.
Barnette, 1943
• Court upheld students’ right to refuse to
salute flag, recite Pledge if it violated their
religious beliefs
• Making patriotic ceremonies voluntary did
no harm to society
Goldman v. Weinberger, 1986
• Upheld Air Force’s ban on wearing
nonmilitary apparel
• Jewish man could not wear yarmulke while
on duty
• Based on military need to foster unity and
group spirit
Sherbert v. Verner, 1963
• Reversed South Carolina’s denial of
unemployment benefits to woman fired for
refusing to work on Saturdays, her day of
worship
• Society’s gain did not outweigh person’s
freedom to follow beliefs
Employment Division v. Smith, 1990
• Upheld right to deny unemployment
benefits for two Native Americans fired
for ingesting peyote
• States may enforce laws that incidentally
interfere with religious practices
Freedom of Speech
“Congress shall make no law…abridging freedom of speech, or of the press…” Is speech only spoken
words, or does it include other forms of expression? Are there limits to this freedom?
Protected and Unprotected Speech
• Speech that has little or no social value
is generally not protected
• 1942: Chaplinsky v. New Hampshire,
some classes of expression not
protected
— Fighting words
— Defamatory speech
— Lewd and profane speech
Student Speech
• Court has ruled schools can regulate
time, place, content of student
expression
• Political speech—fewest limits
• Vulgar, obscene speech—not allowed
in school
• Speech codes—many schools have
adopted limits on expression
• Cyberspeech—generally same
protection as printed material
Freedom of Petition and Assembly
• First Amendment recognizes, protects right to petition government for redress of
grievances—to remove the cause of a complaint and make things right
• Freedom of petition: right to ask government to act to correct injustice without
fear of punishment for making request
• Rights of assembly and petition go hand in hand
• Right of assembly—you have right to
join, form groups, gather for any
peaceful, lawful purpose
• Must be peaceful
• May not gather on private property
without owner’s consent
• Government may reasonably regulate
time, place, behavior
• 1927: Whitney v. California upheld
conviction of woman for membership
in Communist Labor Party
• Such limits allow authorities to arrest
suspected terrorists, members of
armed groups that pose threat to
society
Freedom of Petition and Assembly {continued}
Student Assembly
• Limits that apply to public also apply to students in school
• Court has been more restrictive of student rights
• Schools have right to control time, place, manner of gatherings, set restrictions on school
clubs, have right to deny some clubs permission to form
Equal Access Act of 1984
• Prohibits schools from discriminating against
clubs because of religious or philosophical
viewpoint
• Students may distribute religious and
political literature, but school officials may
regulate activity
Illegal Activity
• Schools do not have to allow organizations
that preach hate or violence, engage in
illegal activity
• Cannot restrict students from forming
clubs just because clubs might be
controversial
The Right to Privacy
Should authorities be able to search a car or home with “sniffer” dogs, or an electronic sensor?
Neither method requires authorities to enter the car or building, so are these really searches?
When, if ever, should they be legal?
Caballes Pulled Over
• 1998: Roy Caballes clocked by state trooper
driving 71 mph in a 65 mph zone
• Caballes pulled over for speeding
• Warrant check revealed no outstanding
warrants, but that Caballes had been
arrested twice for selling drugs
• Second trooper with drug-sniffing dog
arrived at scene
A Canine Alert
• Dog walked around Caballes’s car, barked
at trunk
• Troopers opened trunk, found large
quantity of marijuana
• Caballes arrested for drug trafficking
• Lawyer claimed drugs found as product of
illegal search
• Caballes convicted, sentenced to 12 years
in prison
The Right to Privacy {continued}
The Court Hears Illinois v. Caballes
• 2003, Illinois Supreme Court reversed Caballes’s conviction, said drug-sniffing dog at routine
traffic stop violated Fourth Amendment rights
• State appealed ruling to Supreme Court
• 2004, Supreme Court hears Illinois v. Caballes
— Government argued dog sniff not search, does not violate privacy
— Justice Souter agreed not full-blown search but asked if it were
constitutional, what would prevent police from walking dogs around
every private home just to see if they get a “sniff of something”
— Justice Scalia noted Court had ruled Fourth Amendment rights violated
when police used thermal-imaging devices to see if people were growing
marijuana in homes
— Caballes’s attorney argued sniff was search, like scanner revealed
something hidden from view; police had no reasonable suspicion to search car
The Caballes Decision
• 2005, Illinois v. Caballes: 6–2 decision—
Court reversed Illinois Supreme Court,
upheld Caballes’s conviction
• Majority opinion: person has no legitimate
privacy interest in possessing drugs or
contraband
• Government action indicating possession
of contraband does not violate
4th Amendment privacy interests
• Court agreed with state’s argument that
dog sniff not a search
• If traffic stop lawful, police had right to use
sniffer dog
• Dissenting opinions: dogs can be wrong as
result of poor training, errors by handler,
dog’s limited ability
• Dog’s bark not probable cause
• Justice Ginsburg: “every traffic stop could
become an occasion to call in the dogs”
• Worried Court decision could clear way for
police with dogs to be stationed at long
traffic lights, circling cars waiting for green
lights
Understanding Search and Seizure
The Fourth Amendment states that “the right of the people to be secure in their persons, homes,
papers and effects, against unreasonable search and seizure, shall not be violated.” This guarantee
applies only to searches and seizures made by the government; it does not protect against
unreasonable searches and seizures by private organizations or citizens. It did not apply to state
governments until 1949, and the Supreme Court did not apply the exclusionary rule to state courts
until 1961.
Searches
• Definition of search—any action by
government to find evidence of criminal
activity—very broad
• Includes searching property, listening to
phone conversations, stopping suspiciouslooking persons and frisking for weapons
Seizures
• Seizure occurs when authorities keep
something—an object, person
• Police might seize item from home as
evidence in a murder
• Might take drugs or weapon from person
stopped and frisked
Probable Cause and Warrants
To obtain a warrant—a court order to search for something or seize someone—there must be
probable cause to believe the search will produce evidence of a crime, or that the person seized
committed a crime.
Unreasonable Searches
• 4th Amendment bans unreasonable search
and seizure
• What is reasonable?
• 1967: Katz v. United States, searchers must
respect person’s right to privacy
• Search warrant needed to look inside
something
• Must state what is being searched, what
authorities are looking for
Warrantless Searches
• Some instances where warrant not
required
• Plain view doctrine: if object is in plain
view, law assumes owner does not
consider it private
• Example—if police have warrant to search
home for illegal drugs and drug
paraphernalia is in plain view, it can be
seized even though items not listed on
warrant
The Fourth Amendment and Privacy
• Katz v. United States: Fourth Amendment
protects people, not just places
• Wherever a person is, his/her right to
privacy protected if he/she has exhibited
reasonable expectation of privacy
• Level of privacy depends in part on where
person is
• Not as much privacy expected in coffee
shop as in home
• No matter where person is, he/she has no
expectation of privacy if in possession of
illegal drugs
• Court has said search or seizure lawful
when it begins can violate Fourth
Amendment if way search carried out
unreasonably infringes upon interests
protected by Constitution
• United States v. Jacobson, 1984
The Court has used all of these principles to decide when and how far protections under the Fourth
Amendment apply.
Searches of Homes
• Court applies highest expectation of
privacy to people’s homes
• Warrant required in most cases to search
homes
• 1998, Minnesota v. Carter: no reasonable
expectation of privacy when illegal drugs
involved
• 1988, California v. Greenwood: garbage cans
may be searched without warrant; no
expectation of privacy for items thrown
away
• 1986, California v. Ciraolo: arrest allowed
after marijuana spotted from police plane
• 2001, Kyllo v. United States: Court drew line
at use of devices to look through walls of
homes from outside
• Overturned arrest of man because thermal
scan of home revealed marijuana growing
inside
• Thermal scan reveals information normally
available only with actual intrusion into
house, requiring warrant
• Authorities did not have warrant, therefore
seizure of evidence, arrest unconstitutional
Personal Privacy
• Fourth Amendment provides people will be secure in persons from unreasonable search,
seizure
• Court has interpreted guarantee in variety of ways, applied differently in number of
circumstances
Stop and Frisk
• Generally police do not have right to stop people randomly and search them
• 1968, Terry v. Ohio: police can stop people who seem to be acting suspiciously, pat down
for weapons
• Neither warrant nor probable cause needed for what now is called Terry stop
• Public safety outweighs individual’s privacy right
Intrusive Searches
• First Amendment seems to make freedom of religious belief an absolute right
• Questions considered in deciding if search reasonable
— What is legal status of person being searched
— Does search serve safety, security need for society—this standard called
special needs test
• Examples
— Strip searches of prisoners permissible
— Fingerprinting arrested persons allowable
— Fingerprinting persons not under arrest requires probable cause
— Blood or DNA testing more invasive, requires search warrant
— Blood testing of arrested person requires only probable cause
Drug Testing
•
•
•
•
•
Drug tests require blood, urine samples
Considered intrusive searches
In most cases require warrant, at least probable cause
Court has removed requirement for certain groups of people
Government can require workers in jobs where public safety important to be tested
without probable cause or suspicion
• 1995, Vernonia School District v. Acton: schools may require random drug testing of athletes
even if no one suspected of drug use
• “Deterring drug use by our nation’s school-children is at least as important as…deterring
drug use by engineers and trainmen”
Students’ Fourth Amendment Rights
• Court has generally limited students’ Fourth Amendment rights
— Reasoning same as limiting students’ First Amendment rights
— Students’ rights may be restricted in order to preserve proper learning
environment in schools
• 1985, New Jersey v. T.L.O.
— Probable cause not needed for school officials to search students if
circumstances make search reasonable
— T.L.O.: teacher found girl smoking in restroom
— Girl denied smoking to vice principal
— Search of purse revealed cigarettes, marijuana
— Court: search not unreasonable under circumstances
• After T.L.O., most student search cases decided at state level
• Any search by police officers still requires warrant
Private Communication
• 1967, Katz v. United States: landmark Supreme Court decision on wiretapping, other forms of
electronic surveillance
• Since Katz, use of computers, cell phones, personal digital assistants, other wireless devices has
created new kinds of searches, applications of Fourth Amendment
• Cases involving cyber-surveillance have yet to reach Supreme Court
The 4th Amendment Since 9/11
• USA PATRIOT Act greatly relaxed
privacy protections, controls on
searches, seizures
• Government allowed to search variety
of information—phone company
records, Internet service providers,
libraries, bookstores
NSL
• National Security Letter—issued by
FBI and others; authorizes search
without warrant
• PATRIOT Act also contains gag
order—recipient of NSL prohibited
from disclosing that letter was ever
issued
Wireless “Searches”
•
•
•
•
•
Many of today’s communications devices use wireless communication
Anyone with scanner tuned to proper frequencies can intercept signals
Such interception illegal, except for law enforcement agencies
Warrant must be obtained to monitor wireless communications
PATRIOT Act—some standards for obtaining warrants relaxed, eliminated
National Security and the Courts
• Several 4th Amendment challenges to government surveillance programs now before
federal courts
• 2006, United States v. Arnold: case of search of laptop contents at airport
• 2006, class-action suit accusing AT&T of turning over phone records of millions of
Americans to the National Security Agency
• Government argues that actions necessary to protect national security
• Supreme Court likely to be asked to decide these issues, other similar cases
Vocabulary
Freedom of Expression
The right of citizens to hold, explore,
exchange, express, and debate ideas
Redress of Grievances
To remove the cause of a complaint and
make things right
Right of Assembly
The right to form and join groups to
gather for any peaceful and lawful
purpose
Search
Any action by government to find
evidence of criminal activity
Seizure
When authorities keep something found
during a search
Plain View Doctrine
An assumption under the law that if an
object is in plain view, the
owner does not consider it private
Terry Stop
When the police stop a person and pat
down him or her down for weapons due
to the fact that he or she is acting
suspiciously and may be a threat to the
public interest
Vocabulary
Special Needs Test
Standard to determine whether a search
serves some safety or security
need for society
Cyber-Surveillance
Searches of wireless communications
National Security Letter
A document signed, issued and used by
the Federal Bureau of Investigation and
other agencies to search for information
about a person