Bill of Rights

Key Issues & Court Cases

First Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of Speech: Dress Code

• Tinker v. Des Moines Independent Community School District (1969). Supreme Court ruled that students wearing black armbands to protest the Vietnam War is a form of freedom of speech which is protected by the first amendment, as long as it does not cause any disruptions.

• Implications: “Tinker Standard” Will a particular garment cause a disruption? Can school officials institute a dress code or uniform?

Dress Code Cases Continued

• U.S. v. O’Brien, (1968) Creates a Constitutional test for school dress codes.

• Is authorized under state law. • Advances an important government interest. • Is not related to the suppression of free

expression. • Only incidentally restricts free expression in a

minimal fashion• (http://www.firstamendmentcenter.org/Speech/studentexpression/topic.aspx?

topic=clothing_dress_codes_uniforms)

School Dress Code Continued

• Bivens v. Albuquerque Public Schools (1999) • “Sagging is not necessarily associated with any

single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States.” Therefore, it isn’t covered by the first amendment.

• The judge said that even if sagging somehow constituted a message, the student failed to establish that reasonable observers would understand any message coming from the wearing of sagging pants. (Firstamendmentcenter.org)

The Pledge of Allegiance

• West Virginia Board of Education v. Barnette (1943) No one can be forced to say the pledge of allegiance

• Holloman v. Walker County Board of Education. (2004) It was clearly established that students cannot be forced to recite the Pledge of Allegiance.

• Lane v. Owens (2004) “Any person not wishing to participate in the recitation of the Pledge of Allegiance shall be exempt from reciting the Pledge of Allegiance and need not participate.”

"The pledge of allegiance is obedience training" 

Flag Burning

• Texas v. Johnson (1988) Supreme Court ruled that flag burning is protected by the first amendment. Congress reacted by passing the Flag Protection Act of 1989

• United States v. Eichman (1990) Supreme Court ruled that flag burning is protected by the first amendment again

Flag Burning Laws

• Although the U.S. Supreme Court has twice invalidated state flag laws, 47 states still have on the books laws, many modeled after the Uniform Flag Law of 1917, that prohibit the desecration of the flag or its use for advertising and publicity purposes

• CaliforniaThe State of California makes it a misdemeanor for anyone to cast contempt on any flag by mutilating, defacing, defiling, burning or trampling upon it. [Cal. Mil. & Vet. Code Sec. 614]

Altering the Flag

• Spence v. Washington (1974) The Court ruled that one can alter or change the flag to express themselves is protected by the first amendment.

• “One has the free speech right to at least temporarily ‘deface’ the American flag was established.”

Second Amendment & Cases

• “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.”

• United States v. Cruikshank (1876) [5] - The Ku Klux Klan would not let freed African-Americans carry weapons. The Supreme Court ruled that state must protect the rights of all citizens

Second Amendment Cases

• Presser v. Illinois (1886), Individuals have a right to bear arms, but not form militias or any other type of paramilitary organizations

• United States v. Miller (1939) Confusing & controversial. Opinion #1 opened the door for gun control. Opinion #2 supports the “right to bear arms”

Fourth Amendment & Cases

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Mapp v. Ohio (1961)All evidence obtained by searches and seizures in violation of the Constitution is inadmissible in court; this is the “exclusionary rule”

Fourth Amendment Cases

• Terry v. Ohio (1968)The Court found that a “stop and frisk” is a “search and seizure” under the Fourth Amendment and, under certain circumstances, is a reasonable crime prevention practice. Seized evidence may be admissible

• Board of Education of Pottawatomie County v. Earls (2002)School district requirements of drug tests for all students participating in any extra-curricular activities were upheld by the Court. The testing is a “reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren.”

• http://www.billofrightsinstitute.org/Instructional/Resources/LandMarkSupremeCourtCases/index.htm

Fourth Amendment Cases

• Carroll v. United States 1925 that vehicles may be searched without warrants if the officer undertaking the search has probable cause to believe that the vehicle contains contraband.

• New Jersey v. T.L.O. 1980 School searches, school officials are “surrogate parents” & “agents of the state” all searches must be “reasonable”, have “probable cause”

Fifth Amendment

• No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment Key Points

• Indictment by a Grand Jury: Can not go to trial for a serious crime, except in a military setting, without first being indicted by a grand jury.

• Double Jeopardy: The Fifth Amendment also mandates that defendants, once acquitted on a charge, may not be tried again for the same offense

• Property Rights and the Takings Clause: protects basic property rights; under this clause, referred to as the takings clause, the government can't simply claim eminent domain and take a citizen's property.

Fifth Amendment Key Points:

• Pleading the Fifth No self-incrimination• The Miranda Rule:

1. You have the right to remain silent.

2. Anything you say can be used against you in a court of law.

3. You have the right to have an attorney present now and during any future questioning.

4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.

Fifth Amendment Cases

• Escobedo v. Illinois (1964): Supreme Court ruled that a confession could not be used as evidence if the suspect’s “fifth amendment rights” were ignored.

• Miranda v. Arizona (1966): Supreme Court ruled that a confession could not be admitted as evidence, if the suspect was never read his/her rights. This established the "Miranda" rights of persons accused of crimes.

Fifth Amendment Cases

• Kelo v City of New London (2005) Supreme Court ruled that the government may take control of private property if the proposed project will benefit the community as a whole. Ex. 105 freeway, proposed 710 expansion, LAX expansion, etc

Sixth Amendment

• In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Sixth Amendment Key Points:

• The Right to a Speedy Trial: • The Right to a Public Trial • The Right to an Impartial Jury • (*Juvenile defendants are not entitled to a

jury trial under the Sixth Amendment.)• To Be Confronted with Witnesses • To confront one’s Accuser (s)• Assistance of Counsel

Sixth Amendment Cases

• Powell v. Alabama (1932) The Supreme Court ruled that defendants are entitled to an attorney, fair & public trial

• Gideon v. Wainwright (1963) Supreme Court ruled that all defendants are entitled to an attorney, even they can not afford one. This case expanded the role of public defenders/legal aid

7th Amendment

• In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Seventh Amendment

• The Seventh Amendment requires jury trials in civil lawsuits where ordinary damages (money) are sought.

• A jury is not required in family law cases (such as divorce and custody cases).

• A simple majority is enough to make a decision• Does not protect against deportation, suits

against the federal government• No state right to a trial by jury in civil cases

Seventh Amendment Cases

• Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, (1990) The Supreme Court ruled that union members have a right to a jury trial.

• Felter v Columbia Pictures (1998) Supreme Court ruled that copyright infringement cases demanding compensation can be heard & decided by a jury

Eighth Amendment

• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Eighth Amendment Cases

• Furman v. Georgia (1972), the U.S. Supreme Court ruled that death penalty , which was being applied according was “ cruel & unusual”. "These death penalties are cruel and unusual," Justice Potter Stewart wrote in the majority opinion, "in the same way that being struck by lightning is cruel and unusual."

Eighth Amendment Cases

• United States v. Salerno, 481 U.S. 739 (1989) Supreme Court ruled that a “particularly” dangerous arrestee may held without out bail doe not violate the the 5th & 8th Amendments.

• Three strikes laws The Supreme ruled that incarcerating people, who have been convicted for serious crimes on three or more separate occasions is “unusual”, but “cruel”