Hey, you! Do you know your rights?
Let’s find out! For each example, write 2-3 sentences.
1st Amendment: Freedom of Religion
Example A. Write/Pair/Share: Would the Church of the
Cheesehead be protected religious expression (i.e. a
legal religion entitled to tax breaks and legal
protection)? Why or why not?
Example A. Legal. The government cannot ban a
religion just b/c it is odd.
Example B. Write/Pair/Share: What if Mr. B tried to
spread this religion at school? Legal? Why or why not?
Example B. If Mr. B tried to spread any religion at
school, it would be illegal b/c he is a government
employee. “Separation of Church and State.”
Example C. Write/Pair/Share: Students praying
at school. Is it legal? Why or why not?
Example C. Individual students praying at school is
legal, but if a teacher leads the prayer, it is illegal.
(Lemon v Kurtzman, 1971)
Example D. Write/Pair/Share: Is This Protected
Religious Expression? Why or why not?.
Example D. Illegal. In most cases, you cannot use
religion as an excuse for a criminal act. A notable
exception is the use of peyote by some Native
American religious believers.
1st Amendment: Freedom of Religion
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof.”
1st Amendment: Freedom of Religion
•Establishment Clause: There can be no official, government
religion of the USA. No Church of England here!
• Everson v. Board of Education (1947) government must
maintain a wall of separation between church & state
(“separation of church and state”). Students can pray on their
own initiative and schools can provide space for religious
purposes, but official endorsement of prayer is prohibited.
Why do you think the Supreme Court decided this way?
•Lemon v. Kurtzman established a 3 prong test for any new law:
•It must have a secular purpose.
•Its primary effect should not be to advance or inhibit religion.
• It must not excessively entangle government in religion
1st Amendment: Freedom of Religion
•Free exercise clause: Prevents interference in individual
exercise of religion.
•Reynolds v. U.S. (1879) decided that it doesn’t protect
polygamy practiced by Mormons.
•W.Va. State Bd. of Ed. v. Barnette (1943) allowed Jehovah's
Witnesses to refrain from saluting the flag based on their
religious beliefs (even in war, state can’t require patriotism
if it denies religious freedom).
•The government cannot ban a religion just because it is
unpopular or strange.
•In most cases, you can’t do anything already considered
illegal in the name of religion.
1st Amendment: Freedom of Speech
Example A: Write/Pair/Share: Is this legal?
Why or why not?
Example A: Yes, it is protected political “speech.”
Texas v. Johnson, 1989. This is offensive, but it
doesn’t harm anybody. It is also an example of
“symbolic speech.”
Example B: Write/Pair/Share: This is a prank.
There is no fire. Is this legal (protected)
“speech”? Why or why not?
Example B: Not protected speech, b/c
it endangers public safety. Same as
pulling fire alarm as a prank.
Example C: Write/Pair/Share: Is this
jacket legal if he wears it in public?
Example C: It is legal (protected)
“speech” to dress like this in public.
Example D: Write/Pair/Share: If
somebody wore this to school, would
it be legal (protected) “speech”?
Example D: No. If it interferes with the functions of an institution
(school, military unit, prison) or a private business, wearing this
jacket would not be protected speech.
Example E: Freedom of the Press: A journalist
embedded with US forces in Afghanistan reports on a
planned operation to kill a Taliban leader.
Write/Pair/Share: Is this legal speech? Why or why
not?
Example E: No. Although the courts have shown
deference to the media, recognizing its role in
protecting our democracy, free speech protections
are not absolute. Reporters may not reveal secrets
that damage national security, unless in doing so,
they uncover evidence of government abuse
(whistleblowers).
Example F: A Redwood student writes a “Bark” article
alleging that Mr. B is a leading member of the Russian
mafia. The allegation gets on local TV.
Write/Pair/Share: Can Mr. B sue the student and/or
the school district for libel?
Example F: Yes. Libel (written) and slander (oral)
can lead to a civil suit if:
• Third parties are able to read or hear the
speech. A private accusation doesn’t count.
• The aggrieved party is clearly specified (i.e.
“Mr. Butkevich” not “A teacher at Redwood.”)
• The aggrieved party must actually be harmed.
The damage to Mr. B’s reputation might be
extensive enough to harm his career/future
job prospects.
1st Amendment—Freedom of Speech
• Preferred-freedoms doctrine: Speech privileged
over any other freedom (Holmes) This makes us
unique in the world, even among other
democracies.
– “Inciting ethnic or religious hatred” is illegal in several
European countries.
– Germany prohibits Nazi symbols and the sale of “Mein
Kampf.”
– France prohibits public servants from wearing a hijab or
“ostentatiously large” crosses or Stars of David.
• Balancing test: Speech must be weighed against
other democratic values (Frankfurter)
1st Amendment—Freedom of Speech
• “Speech” includes any actions that express
opinions, including writing, demonstrating, etc.
• Americans can publicly criticize the government and
each other, even if it’s offensive.
• However, “speech” that threatens individual or
public safety is still illegal.
• Defamatory speech, while hard to prove, is also
subject to civil penalties if the plaintiff can prove
that the defendant deliberately sought to damage
his/her reputation.
1st Amendment—Freedom of
Assembly
Example A: Write/Pair/Share: Is
this sign legal (protected)
assembly? Why or why not?
Example A: This is legal (protected)
assembly, as long as nobody blocks
streets, trespasses or threatens
anybody with harm.
Example B: Write/Pair/Share: Is this
legal (protected) assembly? Why or
why not?
Example B: This is not protected
assembly, because the protestor is
threatening somebody.
Example C: These people protest at funerals of
gay people and of soldiers killed in
Iraq/Afghanistan. Think/Pair/Share: Is this legal
(protected) assembly? Why or why not?
Example C: Partially protected assembly. A
federal appeals court ruled that they can rally at
funerals, but they must stay at least 300 ft.
away.
Example D: Anarchists used the Occupy Oakland
protests to attack buildings owned by big
corporations. Think/Pair/Share: Is this legal
(protected) assembly? Why or why not?
Example D: Illegal. Destruction of property is not
a protected form of assembly.
Example E: Think/Pair/Share: UC Davis during “Occupy”
protest. Was the officer’s action legal or did he violate the
right to free assembly? Why or why not?
Example E: Unclear. They were blocking the road
illegally. However, UC Davis later compensated the
protestors $1 million.
1st Amendment—Freedom of
Assembly
• The government may not regulate the content of
speech, but can regulate time, place and manner
for protests on public property.
• However, violence, inciting violence, closing streets,
or trespassing on private property are still illegal.
• “Clear and present danger” rule: Words that
endanger public safety are prohibited. The speaker
can be held responsible for any resulting damage,
even if she/he didn’t take part in any violent acts.
The 2nd Amendment
• Below is the entire amendment. In
your opinion, does it clearly allow
for individuals to own guns? What
limits should there be on this right?
• “A well regulated militia being
necessary to the security of a free
state, the right of the people to
keep and bear arms shall not be
infringed.”
Example A: Write/Pair/Share: Can
anybody in the U.S. buy a gun?
Who isn’t allowed to buy a gun?
Example A: In most states, felons, minors (under
the age of 18 in CA) and violently mentally ill
people are not allowed to buy guns. Everybody
else can.
Example B: Write/Pair/Share: Can
Americans buy any kind of guns they
want? What limits, if any, are there?
Example B: There are very few limits on the kind of
guns Americans can buy. CA and a few other states
prohibit assault rifles. Fully automatic rifles and plastic
guns are prohibited all over the U.S.
Example C: Write/Pair/Share:
Where can Americans legally carry
a gun? Is this prohibited?
Example C: Most states allow
concealed carry. Some allow open
carry too. What about CA?
Example D: Write/Pair/Share:
When and where is it legal to shoot
somebody?
Example D: 1/2 the states have an “obligation to retreat”—if
you can walk away safely, you can’t legally shoot somebody
threatening you. The other ½ have “stand your ground”
laws—if somebody threatens you, you can shoot them in selfdefense. No need to retreat. All states have “the castle
defense”—in your own home, you can immediately and
legally shoot intruders.
2nd Amendment—The Right to Bear Arms
• Some believe it only applied to Americans fighting against a
foreign invasion, back when we didn’t have an army.
• Others, such as the NRA (National Rifle Association) argue
that it gives every individual the right to own guns with
very few limits. The NRA is winning the debate. (DC v.
Heller)
Homicide rate, developed nations only.
Is this the 2nd Amendment’s fault?
What other factors might contribute to
this disparity?
The 4th Amendment: Search and Seizure
When can police enter your home? When can
they question, detain, arrest, or search you?
Example A: Write/Pair/Share: Police stop and
question Mr. B for driving “a suspicious looking
vehicle.” Mr. B was following traffic laws. They detain
him for 30 minutes, despite him asking to go several
times. Would this be a legal stop? Why or why not?
Example A: Not a legal stop. Police would need
“reasonable suspicion” that Mr. B committed a
crime, or matched the description of a suspect,
or Mr. B’s consent, to legally detain and question
him.
Example B: Write/Pair/Share: It’s midnight in a school
parking lot. Police see a man sitting in his car. Why is
he there? They ask him to open his trunk, but the
man says no. They do it anyway and find illegal drugs.
Could this evidence be used against him in court?
Example B: Probably not. Police would need either the driver’s
consent to search the car or “probable cause” that he committed
a crime (matching the description of a suspect, smelling like
drugs, acting stoned), to legally search his trunk. They can ask
him for ID, briefly question him, and glance inside his car without
opening the door/trunk, but that’s about it.
Example C: Write/Pair/Share: Police suspect that a
woman is a drug dealer, so they knock on her door
and ask to search her house. The woman says no.
Police enter anyway and find drugs, guns, scales,
Ziploc bags, and a lot of cash. Could this evidence be
used against her in court? Why or why not?
Example C: No, this was an illegal search. Police
would need either the home owner’s consent to
search the house or a warrant, signed by a judge.
Before issuing the warrant, police would have to
convince the judge that they have “probable cause”
(significant evidence) that she is a dealer.
Example D: Write/Pair/Share: Police chase a man
suspected of an assault into that same woman’s
house. She tries to stop them from entering, but they
get past her and arrest the man. They then find
drugs, guns, scales, Ziploc bags, and a lot of cash.
Could this evidence be used against her in court?
Example D: Yes. Even though she did not consent to the search,
police do not need a warrant to enter a home when they are in
“hot pursuit” of a suspect, or if there is clear evidence that a
crime is taking place inside at that very moment (for example—if
they hear a gun shot or see people taking drugs inside). If there
is evidence of criminal activity “in plain sight,” they can use it
against her.
4th Amendment—Searches and
Seizures
• Police can stop and question somebody if they
have “reasonable suspicion” of a crime.
• Police can search somebody if they have
“probable cause” to believe they are
concealing something illegal.
4th Amendment—Searches and
Seizures
• Before searching a suspect’s home, police must ask
a judge for a warrant that says who will be arrested
and/or what evidence they will search for.
• However, police may enter a home in hot pursuit of
a suspect or to stop a crime in progress.
Example A: Write/Pair/Share: A man is charged
with murder. At his trial, a judge decides that he
is guilty and sentences him to life in prison. Is
this legal under the 5th Amendment? Why or
why not?
Example A: No. The 5th Amendment guarantees
people accused of a serious crime the right to a trial
by jury. 12 randomly selected adults from the
community decide whether the person is innocent or
guilty. The judge is there only to run the trial and to
determine the sentence.
Example B: Write/Pair/Share: A man is convicted of bank
robbery, but he has a great lawyer and only serves 2 years. After
he gets out, he puts a video on YouTube with footage of him
robbing the same bank and goes on a televised rant mocking the
court. He is arrested, found guilty again, and put back into
prison, this time for 10 years. Is this legal under the 5th
Amendment? Why or why not?
Example B: No. The 5th Amendment protects us
from “Double Jeopardy.” Nobody can be tried
again for the same crime, even if the system
messed up the first time.
Example C: Write/Pair/Share: Police question a murder suspect
for 15 minutes. He tells him that he did it. At that point, the
police inform him that anything he says will be used against him
in court. He then refuses to talk anymore. Can prosecutors use
his confession in court against him? Why or why not?
Example C: No. The 5th Amendment protects us from
“Self-Incrimination” once they arrest and interrogate
a suspect. His confession cannot even be mentioned
to the jury. If the police can’t find any other evidence
against him, he must be released.
The 5th Amendment—Legal Rights
“No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury.”
What is a Grand Jury?
• Reserved for serious felonies.
• Usually made up of 16 people.
• The prosecution presents its evidence, the
defense does not.
• 12 out of 16 jurors needed to indict.
• Indictment - a formal accusation that a
person has committed a criminal offense.
• Is there enough evidence to justify a trial?
• If so, the trial takes place before a Petit Jury
(what most people call “a jury”).
The 5th Amendment—Legal Rights
“…nor shall be compelled in any criminal case to be a witness against
himself…”
Prohibits self-incrimination—police forcing people to say things that can
be used against them later (Miranda rights).
• Only applies to oral statements. Does not apply to voice samples,
finger prints, line ups.
5th Amendment—Legal Rights
“…nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb…”
• Protects against double jeopardy—being tried more than
once on the same charges.
• However, you can break both state AND federal laws, which
results in a federal case and a state case.
• Does not apply to civil cases. OJ Simpson was acquitted of
killing two people, but then found responsible for their
deaths in a civil trial.
6th Amendment—The right to a fair
trial. Interpret this image.
Example A: Write/Pair/Share: A violent gang leader is charged
with 7 murders. The judge decides that he is so dangerous, his
trial has to be held in secret. The public will not be told when
and where his trial will happen. Is the judge’s decision legal?
Why or why not?
Example A: No: The 6th Amendment prohibits secret trials,
though some evidence that reveals government secrets can be
kept from a jury. It requires public trials so that the family and
the press can make sure that the trial is fair + a speedy trial so
that the defendant doesn’t stay in jail for years waiting for
his/her day in court.
Example B: Write/Pair/Share: A drug cartel leader is put on trial
in the United States. The DA says that they have a witness who
saw the cartel leader kill somebody. The defendant’s lawyer asks
to question the witness face to face, the judge says no, because
the witness might be killed later for testifying. Is this legal? Why
or why not?
Example B: No: The 6th Amendment states that everybody has
the right to question witnesses against them in court. In some
cases, the witness may have his/her identify disguised for safety,
or be placed in witness protection, but the defendant’s lawyer
still has the right to question the witness.
Example C: Write/Pair/Share: The FBI arrests a foreign spy. They
refuse to tell him what crime he is accused of, for national
security reasons. Is the FBI required to tell him the charge? Why
or why not?
Example C: Yes. The 6th Amendment requires police to tell
suspects what they are charged with, even accused spies.
Otherwise, they will not be able to defend themselves against
that charge.
6th Amendment—Criminal Trials
• Trials must be speedy and public. No secret
trials!
• The right to know the charge.
• The right to question witnesses against you.
• The right to an attorney.
• Defendants are innocent until proven guilty.
The government, with its enormous resources,
has the burden of proof, not the defendant.
6th Amendment—Speedy Trials
In Barker v. Wingo (1972), the Supreme Court set forth four
criteria to determine if a defendant’s right to a speedy trial
was being violated. In Strunk v. US, the court found that if a
delay in trial meets these standards, the case must be
dismissed:
1. Length of Delay: A delay of a year or more from the date
of arrest or indictment, whichever first occurs, was
termed "presumptively prejudicial.”
2. Reason for the delay: The prosecution may not excessively
delay the trial for its own advantage, but a trial may be
delayed to secure the presence of an absent witness or
other practical considerations.
3. Time and manner in which the defendant has asserted
this right: If a defendant agrees to the delay when it works
to his own benefit, he cannot later claim that he has been
unduly delayed.
4. Degree of prejudice to the defendant which the delay has
caused.
7th Amendment—Civil Trials
• Establishes civil trials as a means of settling
disputes.
• Determines which civil trials can be decided
by a judge and which by a jury. Originally the
amount was over $20 = jury trial.
The 8th Amendment: “Cruel and Unusual Punishment.”
Example A: Write/Pair/Share: A man is accused of shoplifting.
This is the 5th time he has been arrested for stealing from that
store. His lawyer asks the judge for bail. The judge says, “This
man will continue to steal if he is allowed out of jail. Bail is set at
$500,000.” Is this legal? Why or why not?
Example A: No. The 8th Amendment prohibits “excessive bail”
which means that the amount of money a judge can require for a
suspect to be let out of jail pending his trial must match the
severity of the crime. However, if the defendant is a “flight risk”
high bail may be set. A wealthy defendant with a private jet
might be denied bail all together.
Example B: Write/Pair/Share: The 8th Amendment
prohibits “cruel and unusual punishment.” In your
opinion, is hanging a convicted murderer “cruel and
unusual”? Should the government be allowed to do
this?
Example B: No. Hanging convicted criminals used to be legal,
but the Supreme Court later ruled that hanging is “cruel and
unusual” and replaced it with the electric chair.
Example C: Write/Pair/Share: A serial killer is sentenced to
death. The judge orders him executed by the electric chair. Is
this “cruel and unusual” punishment and therefore illegal?
Why or why not?
Example C: Not in most states. The electric chair used
to be considered “humane” but “evolving standards of
decency” have changed the law. Most executions today
use lethal injection, which is supposed to be painless.
Do you think this is right or wrong?
8th Amendment—Bail and
Punishments
• Bail must be set at an amount of money
commensurate with the severity of the crime.
• If the defendants is a “flight risk”, or the crime
is particularly severe, bail may be denied.
• Punishments can’t be cruel or unreasonable.
That means no torture, no 99 year sentences
for shoplifting, etc.
• Some argue that the death penalty should be
banned under the 8th Amendment.
Write/Pair/Share: Does the 3 Strikes
Law Violate the 8th Amendment?