SOURCE DOCUMENT

BLOCK: CONSTITUTIONAL LAW CLASS: A

INSTRUCTOR: TIME ALLOTTED: 30 hrs.

DATE FILED: 12/15/2004 REPLACES: 03-12-1993

OBJECTIVES:

PART I – INTRODUCTION TO LEGAL BLOCKS

1. See handouts “Comparison of Two Legal Systems.”

2. a. Amendments 1 through 10 are collectively called the Bill of Rights.

b. In general terms, the Bill of Rights defines the rights guaranteed to all U.S. citizens. These are the so-called “Constitutional Rights.”

c. See handouts - “The Bill of Rights and Fourteenth Amendment to the U.S. Constitution” (green sheets - underlined sections only).

Fourth, Fifth and Sixth Amendment issues are discussed in much more detail in sections 4 – 12. First Amendment is discussed here.

First Amendment – All citizens have a right to freely express their views verbally and in symbolic acts, with some exceptions:

Obscenity – A test for obscenity was developed by the United States Supreme Court in the case of Miller v. California, 413 U.S. 15 (1973). The Supreme Court laid out a three-part test for identifying material which is obscene: a) the average person applying contemporary community standards would find that the work taken as a whole appears to the prurient interest; b) the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) the work taken as a whole lacks serious literally, artistic, political or scientific value.

Fighting words – Fighting words are not protected by the First Amendment. Fighting words are defined as words that are likely provoke a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Supreme Court defined fighting words as those that by their very utterance inflict injury or tend to insight an immediate breach of the peace. Mere insulting language does not constitute fighting words. Arguably the fighting words exception is the most significant for police officers as it is the basis for many arrests made by officers, for example, for disorderly conduct when a person provokes a fight in a crowd by verbally antagonizing his opponent.

Commercial speech – Commercial speech encompasses both the regulation of false advertising and the category of defamation of character. Although purely commercial speech is entitled to some First Amendment protection, false or misleading advertising can clearly be prohibited. Therefore, commercial speech which is misleading or deceptive or which proposes an illegal transaction is not entitled to any First Amendment protection. See In Re R.M.J., 455 U.S. 191 (1982) and Pittsburgh Press Co. v. Human Relations Commission 413 U.S. 376 (1973).

Defamation of character can be further divided into libel (written defamation) and slander (spoken defamation). In order for defamation to be actionable, the slanderous remarks or libelous writing must be published. That is, it must be conveyed to a third person, not just to the intended victim, by the slanderer or libeler.

Incendiary speech – An example of this type of speech is yelling “fire” in a crowded theater where there is no fire. Incendiary speech also encompasses speech that endangers national security or speech that advocates illegal conduct. Speech loses its protection based on its advocacy of unlawful conduct when two (2) conditions are satisfied. One, the advocacy is directed to inciting or producing imminent lawless action and two, the advocacy is also likely to insight or produce such action. (See Brandenburg v. Ohio, 395 U.S. 444 (1969)).

Time, place and manner restrictions on speech – Although the content of speech may never be the basis for its regulation, the government may regulate the time speech occurs, i.e., a person can be prohibited from creating a noise disturbance in the middle of the night; can regulate the place speech occurs, for instance, prohibitions on picketing in a residential area has been upheld; and can regulate the manner in which speech is delivered. For example, the Supreme Court has upheld a ban on amplification devices in public places that emit a loud and raucous noise. Kovacs v. Cooper, 336 U.S. 77 (1949) and Ward v. Rock Against Racism, 491 U.S. 781 (1989).

Speech regarding government and the agents of government (e.g. police officers) has been particularly well protected. Attempts to limit such speech by ordinance have been struck down. (Houston v. Hill, 482 U.S. 451 (1987), Lewis v. City of New Orleans (1974)). There is even some question on how much the “fighting words” exception stated in Chaplinsky (cited above) can be depended upon when an officer attempts to arrest on the basis that his/her peace has been disturbed by a citizens attempt to incite the officer with name-calling and obscenities. At this time, the probable best course of action is for an officer to ignore speech that does not threaten the officer or directly interfere with the officer’s duties.

3. a. The Fourteenth Amendment clearly established the primacy of the Federal government over the state governments, by establishing that no state could pass a law which took away any of the Rights guaranteed to U.S. citizens.

b. A citizen of this country is a U.S. citizen first, and a citizen of a particular state second. This means that every citizen is now (at least theoretically) guaranteed the same basic rights that every other citizen has, regardless of the state in which he or she resides.

c. The Fourteenth Amendment, in effect, makes the Bill of Rights, and especially the Fourth, Fifth and Sixth Amendments, apply to local law enforcement officers. They did not apply prior to the ratification of the Fourteenth Amendment.

4. a. See handouts - “The Three Branches of the Federal (U.S.) and Missouri Governments.”

b. The local police officer is legally considered to be part of the Executive Branch of the State whose laws he or she enforces. The work he/she produces - the suspect and evidence - is used by the Judicial Branch. These two branches of government, while sharing a common goal, have somewhat differing expectations and needs. They are also, by design, expected to keep each other in “check.” The officer often finds him/herself caught between the Executive branch’s mandate to efficiently produce suspects (and thereby control crime) and the Judicial branch’s insistence that it be done within the proper guidelines (and thereby preserve Constitutional Rights). This dual expectation often proves to be a source of frustration for even the most conscientious police officer. In fact, it is probably the most frustrating to the conscientious police officer.

5. a. See glossary definition of “right and remedy.”

b. The Exclusionary Rule is the remedy for Fourth, Fifth and Sixth Amendment Rights.