Chapter 3Chapter 3

Constitutional Limitations on Constitutional Limitations on the Prohibition of Criminal the Prohibition of Criminal

ConductConduct

Importance of Judicial ReviewImportance of Judicial Review►Judicial ReviewJudicial Review – power of courts of – power of courts of

law to review governmental acts and law to review governmental acts and declare them null and void if they are declare them null and void if they are found to be unconstitutional.found to be unconstitutional.

►Unconstitutional Per SeUnconstitutional Per Se – statute – statute that is unconstitutional under any that is unconstitutional under any given circumstances.given circumstances.

►Unconstitutional as AppliedUnconstitutional as Applied – – declaration by a court of law that a declaration by a court of law that a statute is invalid insofar as it is statute is invalid insofar as it is enforced in some particular context.enforced in some particular context.

Bills of Attainder and Ex Post Bills of Attainder and Ex Post Facto LawsFacto Laws

►Bill of AttainderBill of Attainder – legislative act – legislative act inflicting punishment on an individual or inflicting punishment on an individual or a group of easily identifiable individuals.a group of easily identifiable individuals.

►Ex Post Facto LawEx Post Facto Law – retroactively – retroactively Makes an innocent act illegalMakes an innocent act illegal Increases the punishment for a criminal actIncreases the punishment for a criminal act Decreases the standard of proof required to Decreases the standard of proof required to

convict a defendant of a crime.convict a defendant of a crime.

The Fourteenth AmendmentThe Fourteenth Amendment

Application of the Bill of Rights to Application of the Bill of Rights to State and Local LawsState and Local Laws Doctrine of incorporationDoctrine of incorporation – provisions – provisions

of the Bill of Rights are held to be of the Bill of Rights are held to be incorporated within the Due Process incorporated within the Due Process Clause of the 14Clause of the 14thth Amendment and are Amendment and are made applicable to actions of the state made applicable to actions of the state and local governments.and local governments.

The First Amendment Freedoms The First Amendment Freedoms of Expression and Assemblyof Expression and Assembly

The First Amendment has never been The First Amendment has never been thought to give absolute protection to thought to give absolute protection to every individual to speak whenever or every individual to speak whenever or wherever he pleases, or to use any wherever he pleases, or to use any form of address in any circumstances form of address in any circumstances that he chooses.that he chooses.

Restrictions on SpeechRestrictions on Speech

Speech that is not protected by the 1Speech that is not protected by the 1stst Amendment includes Amendment includes

► ObscenityObscenity► Child PornographyChild Pornography► Fighting WordsFighting Words► ThreatsThreats► Incitement to violenceIncitement to violence

ObscenityObscenity

►Roth v. United States 354 US 476 Roth v. United States 354 US 476 (1957)(1957)

►Samuel RothSamuel Roth, who ran a literary , who ran a literary business in New York, was convicted business in New York, was convicted under a federal statute criminalizing under a federal statute criminalizing the sending of "obscene, lewd, the sending of "obscene, lewd, lascivious or filthy" materials through lascivious or filthy" materials through the mail for advertising and selling a the mail for advertising and selling a publication called American Aphrodite, publication called American Aphrodite,

Roth v. United StatesRoth v. United States

►The Court repudiated the Hicklin test The Court repudiated the Hicklin test and defined obscenity more strictly, as and defined obscenity more strictly, as material whose "dominant theme material whose "dominant theme taken as a whole appeals to the taken as a whole appeals to the prurient interest" to the "average prurient interest" to the "average person, applying contemporary person, applying contemporary community standards." community standards."

Miller v. CaliforniaMiller v. California

Miller v. California, 413 US 15, 93 S. Miller v. California, 413 US 15, 93 S. Ct. 2607, 37 L. Ed. 2d 1498 (1973)Ct. 2607, 37 L. Ed. 2d 1498 (1973)

►ObscenityObscenity – explicit sexual material – explicit sexual material that isthat is Patently offensivePatently offensive appeals to the prurient interestappeals to the prurient interest and lacks serious scientific, artistic, or and lacks serious scientific, artistic, or

literary content.literary content.

Fighting WordsFighting Words

►Chaplinsky v. New Hampshire, 315 US Chaplinsky v. New Hampshire, 315 US 568 (1942)568 (1942) Called the sheriff “a God damned Called the sheriff “a God damned

racketeer”racketeer” Conviction upheldConviction upheld

Clarified in later decisionsClarified in later decisions Police officers should be “thick skinned”Police officers should be “thick skinned”

Fighting WordsFighting Words

►Two elementsTwo elements The words used are derogatory, abusive The words used are derogatory, abusive

or insultingor insulting The address to another in a face to face to The address to another in a face to face to

face confrontation that, as a matter of face confrontation that, as a matter of common knowledge, are inherently likely common knowledge, are inherently likely to provoke the other into an immediate to provoke the other into an immediate violent reactionviolent reaction

ThreatsThreats

►Watts v. US 394 US 705 (1969)Watts v. US 394 US 705 (1969) They always holler at us to get an They always holler at us to get an

education. And now I have already education. And now I have already received my draft classification as 1-A and received my draft classification as 1-A and I have got to report for my physical this I have got to report for my physical this Monday morning. I am not going. If they Monday morning. I am not going. If they ever make me carry a rifle, the first man ever make me carry a rifle, the first man to get in my sights is L.B.J. They are not to get in my sights is L.B.J. They are not going to make me kill my black brothers.”going to make me kill my black brothers.”

Incitement to ViolenceIncitement to Violence

Advocacy of Unlawful ConductAdvocacy of Unlawful Conduct► Clear and present danger doctrineClear and present danger doctrine – 1 – 1stst

Amendment does not protect those forms Amendment does not protect those forms of expression that pose a clear and present of expression that pose a clear and present danger of bringing about some evil that danger of bringing about some evil that government has a right to prevent.government has a right to prevent.

► Imminent lawless actionImminent lawless action – unlawful – unlawful conduct that is about to take place and is conduct that is about to take place and is inevitable unless there is intervention by inevitable unless there is intervention by the authorities.the authorities.

Symbolic Speech and Expressive Symbolic Speech and Expressive ConductConduct

► Symbolic speechSymbolic speech – expressions by – expressions by symbols and gestures.symbols and gestures.

The First Amendment Freedoms The First Amendment Freedoms of Expression and Assemblyof Expression and Assembly

Free Expression v. Maintenance of Free Expression v. Maintenance of the Public Orderthe Public Order

►Fighting wordsFighting words – – words that are words that are likely to provoke a violent response likely to provoke a violent response from audience.from audience.

Hate SpeechHate Speech

Partially Protected SpeechPartially Protected Speech

►Hate speechHate speech – hateful expression – hateful expression based on racial, ethnic or religious based on racial, ethnic or religious prejudice. Generally protected by the prejudice. Generally protected by the Constitution.Constitution.

Allowable LimitationsAllowable Limitations

Freedom of AssemblyFreedom of Assembly►Public forumPublic forum – public space generally – public space generally

acknowledged as appropriate for public acknowledged as appropriate for public assemblies or expressions of views.assemblies or expressions of views.

►Time, place, and manner Time, place, and manner regulationsregulations – government limitations – government limitations on the time, place, and manner of on the time, place, and manner of expressive activities.expressive activities.

Free Exercise of ReligionFree Exercise of Religion

First Amendment right to exercise one’s religion.First Amendment right to exercise one’s religion.

Courts seldom allow freedom of religion as a Courts seldom allow freedom of religion as a defense to a criminal charge stemming from a defense to a criminal charge stemming from a situation in which parents refused to seek or situation in which parents refused to seek or allow medical treatment for their children.allow medical treatment for their children.

The courts have recognized the right of a The courts have recognized the right of a competent adult to refuse medical treatment competent adult to refuse medical treatment on religious grounds, even if the refusal results on religious grounds, even if the refusal results in death.in death.

The Right to Keep and Bear The Right to Keep and Bear ArmsArms

Second Amendment, a well regulated Second Amendment, a well regulated Militia, being necessary to the security Militia, being necessary to the security of a free state, the right of the people of a free state, the right of the people to keep and bear arms shall not be to keep and bear arms shall not be infringed.infringed.

The Doctrines of Vagueness and The Doctrines of Vagueness and OverbreadthOverbreadth

The Fifth Amendment to the U.S. The Fifth Amendment to the U.S. Constitution provides that no person Constitution provides that no person shall be deprived of life, liberty or shall be deprived of life, liberty or property without due process of law.property without due process of law.

The two fundamental aspects of due The two fundamental aspects of due process are Fair Notice and Fair process are Fair Notice and Fair Hearing.Hearing.

The Doctrines of Vagueness and The Doctrines of Vagueness and OverbreadthOverbreadth

►Vagueness DoctrineVagueness Doctrine – doctrine of – doctrine of constitutional law holding constitutional law holding unconstitutional legislation that fails to unconstitutional legislation that fails to clearly inform the person what is clearly inform the person what is required or proscribed.required or proscribed.

►Doctrine of OverbreadthDoctrine of Overbreadth – enables a – enables a person to make a facial challenge to a person to make a facial challenge to a law on the ground that the law might be law on the ground that the law might be applied in the future against activities applied in the future against activities protected by the First Amendment.protected by the First Amendment.

The Constitutional Right of The Constitutional Right of PrivacyPrivacy

►Right of PrivacyRight of Privacy – constitutional right – constitutional right to engage in intimate personal conduct to engage in intimate personal conduct or make fundamental life decisions or make fundamental life decisions without interference by the state.without interference by the state.

AbortionAbortion Roe v. WadeRoe v. Wade – in – in RoeRoe, the Court held that , the Court held that

the right of privacy was broad enough to the right of privacy was broad enough to include a woman’s decision to terminate include a woman’s decision to terminate her pregnancy.her pregnancy.