Andy Wilson

Constitutional Law

Test #3

November 21, 2005

1. There are three approaches to First Amendment Analysis, the absolutist approach,

categorical approach and balancing approach. Of these three the balancing approach

would be the best because it looks each individual’s interests and weigh them against the

government’s interests in limiting speech. This approach would be advantageous

because it places the government and the accused on a more even playing field. Each

case is no longer thrown into a certain category or lumped into a broad grouping; instead

they are individually reviewed and weighed with regards to the extent of each case. The

disadvantage of this method would be that there would be a large amount of

interpretation in regards to whose interest are more important, the individual or the

government. A person with a greater deference to the government would be more willing

to rule in favor of the government, while a more skeptical person would rule in favor of

the individual.

The advantages and disadvantages of the absolutist and categorical approaches are

as follows. An advantage of the absolutist approach would be that it has the broadest

definition as to what is speech. Under the absolutist all speech is protected except that

which could be injurious towards another person. The disadvantage with this approach is

that it leaves out such things as libel which would hurt a person’s character and it does

not condemn speech that would be detrimental to national security.

 The advantage of the categorical approach is that it is a step up from the absolutist

in that it narrows the scope of what is and is not free speech by creating categories and

placing different kinds of speech in these categories. Instead of allowing all kinds of

speech except those that are immediately dangerous, the categorical approach creates

more things that are outside the First Amendment and capable of governmental review.

The disadvantage of the categorical approach would be that it places things in black and

white categories with little grey area. There is little room for individual interpretation of

each case in the categorical approach.

2. Freedom of Speech is one of the most sacred American rights. There are

numerous values that can be obtained by upholding and supporting the First Amendment

which are ultimately beneficial to our society. Of those values, checking the abuse of

government power and promoting tolerance are the most important in my opinion.

The benefit of a governmental checking of powers is quite evident considering the

role the media has played in the history of American politics. Watergate, Irangate and

Clintongate all brought to light the misdoings of our government; and without the brave

reporters of the New York Times, the American people may have never found out why so

many of their loved ones perished in the Vietnam Conflict. A free media ensures that the

government is honest to the American people and does not extend beyond its powers.

Promoting tolerance is also served by the protection of freedom of speech. In the

United States there are many distinct groups with widely different views. Not all of these

groups see eye to eye on every subject and in some instances many groups openly hate

each other. By allowing these groups to express their views, even if they are considered

wrong by the mainstream, Americans are building a much needed tolerance towards each
other that is crucial to the survival of our multi-cultural society. By allowing people of

different beliefs to challenge each other verbally the chance of them challenging each

other with violence becomes diminished.

Even with the values that can be obtained by protecting free speech there are also

costs. Criticizing the government undermines it authority and sometimes makes it unable

to carry through its responsibility be they good or bad. Some would say that by allowing

a dangerous or subversive element within our country to express itself, we allow their

hateful or even violent message to spread and influence people leading to a brake down

in society. Freedom of Speech also allows the spread and viewing of materials which

some would consider damaging to children such as pornography and explicitly violent

films.

Of these three costs the last one is the least important because it is not the duty of

the government to determine what children should and should not see that is the job of

the parents. I believe that there is a marginal threat in criticizing the government in

regards to national security but not enough of a threat to warrant a change in the First

Amendment. There is also a threat posed by different groups within the U.S. but by

allowing them to speak freely we create tolerance and blunt their attack by discussion and

the spread of ideas.

3. In the case of Porn King there are two First Amendment issues to be dealt with.

First one most examine the matter of obscenity and whether or not Porn King is outside

the realm of the First Amendment. In the case of Miller v. California the Supreme Court

ruled that states have a “legitimate interest in prohibiting dissemination or exhibition of

obscene material when the mode of dissemination carries with it a significant danger of
offending the sensibilities of unwilling recipients or of exposure to juveniles.” But Porn

King did not offend the sensibilities of unwilling recipients or minors. No one under 21

was allowed in the shop and every attempt was made to not offend anyone. In order to be

arraigned for the selling of “obscene and pornographic material” the defense will need to

prove that the material Porn King is selling is without “serious value.” If the people of

Allen are upset with Porn Kings products they have every right to picket the store and in

fact take the picture of any person entering the store; but since there is not mention of any

statute in Allen prohibiting the sell of pornography, Porn King has every right to sell his

products.

The second matter to be dealt is that of the libel case brought against the reporter

by Porn King. Even though Porn King was raided by the police and he was charged with

selling obscene and pornographic material he can not sue the reporter for libel. In the

case of Hustler Magazine v. Falwell the Supreme Court ruled that speech can only be

considered libel when it is knowingly false. The article calling Porn King “smut king,” is

not a case for libel because it is in fact not fallacious; smut is simply a derogatory term

used to describe pornography and therefore the matter is not one of truth but of

interpretation.

4. In the case of X and Y there is really only one First Amendment issue. Since title

40 U.S.C Section 13k stated that absolutely no groups of any party, organization, or

movement could display any kind of banner on the grounds of the Supreme Court

building there was legitimate reason to remove X and Y since the grounds were not

public forums. In the case of Rosenberger v. University of Virginia the court ruled that

since the University of Virginia had created a fund that would cover the cost of
publications by eligible student groups; they had created a public forum and could not

refuse funding to a specific group because of beliefs. If other groups had been allowed to

protest on the grounds of the Supreme Court but X and Y were refused, the arrest would

not be constitutional because it would be discriminatory. Since no groups of any kind are

allowed to protest on the grounds of the Supreme Court; the arrest of X and Y is

legitimate.

5. On the road to the Miranda case the Supreme Court ruled on many cases

involving procedural fairness with respect to interrogation. Prior to 1936 there were very

few protections for those accused of a crime. For many federal officials the preferred

method of interrogation was simply torture. Any kind of confession, whether it was

beaten out of the defendant or coerced by other means of torture, was acceptable and

could be used as legal means in order to charge someone. In 1884 case of Hopt v. Utah,

the Supreme Court ruled that federal agents could not use statements that were coerced

out of someone being brutally interrogated. Later, in the 1936 case of Brown v.

Mississippi, the court applied the same standards to state officials stating that

“It would be more difficult to conceive of methods more revolting to the

sense of justice than those taken to procure the confessions of these

petitioners, and the use of the confessions thus obtained as the basis for

conviction and sentence was a clear denial of due process.”

Between 1936 and the Miranda case the Court inched its way towards a due

process model of criminal justice, which focused on the rights of the accused, instead of

crime control, which focused on limiting criminal activity. The cases of Ashcraft v.

Tennessee and Watts v. Indiana both dealt with interrogation and coerced confessions.
McNabb v. U.S. and Mallory v. U.S. focused not on interrogation but on the unreasonable

delay of the defendants while in custody; and Massiah v. U.S. and Escobedo v. Illinois

made it a mandatory for a defendant to have a lawyer during his interrogation. In the

case of Miranda v. Arizona, the Court ruled that federal and state officials must give

suspects warnings before interrogating them. Without the warnings statements made are

inadmissible.

Sine1966 there have been over 60 Miranda related cases that have appeared

before the Supreme Court. One of the most controversial cases since Miranda was that of

Dickerson v. U.S. In Dickerson, a section of the Omnibus Crime Control and Safe Street

Act of 1968, which attempted to overrule Miranda and return the court to a standard of

voluntariness in place of Miranda’s specific warnings, was resurrected when the Court of

Appeals for the Fourth Circuit held that statements which a suspect had given to officers

before being warned of his rights were admissible in court because they had been

voluntarily rendered. The question before the Court was whether Miranda was

constitutionally grounded and therefore safe Congressional overrule. Many thought that

the Dickerson case spelled the end for Miranda warnings but in a surprise decision

Miranda not only survived but it was reaffirmed. Dickerson not only saved Miranda

warnings but it also strengthened due process in the criminal justice system.

6. When dealing with the legality of the law of search, one must ask two questions.

First, is there a Fourth Amendment Right? This question is then divided into two sub-

criteria which must be met. Those criteria are, is the person doing the searching a

government official and is there an expectation of privacy. The first sub-question is easy

to understand since common citizens have no right to invade the privacy of others; it is
the job of the government to investigate any illegal activity. The other sub-question in

regards to the Fourth Amendment is whether there is an expectation of privacy. In the

United States a citizen has the right to an expectation of privacy, in other words a person

has the right to not be unlawfully spied upon or have their belongs seized in the comfort

of their own home or other places where privacy might be a concern. By searching a

persons property without a warrant constitutes an illegal search and therefore the

evidence is admissible but there are in fact exceptions to this rule such as the open fields

doctrine, public exposure doctrine and abandoned property. These three are legitimate

exceptions to the right of privacy because in each case there is a removal of the

previously mentioned right and it is therefore open for investigation. If a case passes

these two requirements it then goes to the next question.

The second question to ask in regards to the law of search is whether or not the

search was reasonable. In most cases of investigation the officials conducting the search

need to have a warrant in order to investigate the citizen’s property. A warrant can only

be obtained from a judge who is presented with an affidavit stating that there is probable

cause (facts that would lead a reasonable person to believe there are seize able goods on a

person or place) for the search. The warrant that is issued must contain certain

information such as what is going to be searched and what places are to be searched. If

these criteria are attained then a search is valid. There are instances when a search can be

conducted without a warrant these are stop and frisk, consent, auto exception, plain view,

exigent circumstances, and incident to arrest. In stop and frisk an officer must have

reasonable suspicion to both stop and frisk a pedestrian, there is not a need for a search

warrant. In consent searches the person voluntarily consents to being searched. The auto
exception allows for the car and any containers in the car to be searched as long as there

is reasonable suspicion. Plain view allows for anything which is in plain view to be

searched by an officer. Exigent circumstances are instances where there is not time to

obtain a warrant because a suspect is either fleeing or evidence is being destroyed.

Incident to an arrest is the final warrantless search. If an officer feels that there may be

weapons which a defendant may use or if there is another person in a building an officer

may search the building and the area within arms length of the suspect.

With the law of arrest there must be probable cause that the crime was committed

and the defendant committed the crime. In public an arrest can be made if there is

probable cause for the arrest but in private residences police must have a warrant in order

to arrest someone. If entering a person home police must knock on the door and

announce their identity and purpose before forced entry. A forced entry can only be

executed when there is a threat of escape by the suspect or the destruction of evidence.

For misdemeanors the police may arrest without a warrant only if the criminal behavior

occurs in their presence. Eve n then the officer does not have to take the offender into

custody

7. In the eyes of many there are indeed sound policy reasons for not funding

religious specific student publications with state dollars. Since the money that is being

used by the university is given by the state and therefore subject to the same restrictions

as the other government agencies; some would say that the money should be used for

non-religious purposes in accordance with the First Amendment. Yet In the case of

Rosenberger v. University of Virginia, the Supreme Court ruled that since the

governmental program that gave the money to the University was neutral toward religion
the Establishment Clause attack by the University is invalid. By not directly giving

money to a specific religious group and instead giving it evenly to all groups there is not

the threat of establishment.

If indeed the University of Virginia did not wish to have a religious newspaper on

campus there would only be one option open for them. The university had created an

open forum for student discussion on a wide range of subjects, which did not exclude all

religious discussion. In Rosenberger, the Court ruled that the University of Virginia had

committed viewpoint discrimination (“discrimination because of the speaker’s specific

motivating ideology, opinion, or perspective”) by refusing funding for Wide Awake while

at the same time allowing other religious content in the University. The Court ruled that

if the university had practiced content discrimination (“discrimination against speech

because of its subject matter”) and had allowed no religious content or discussion of

metaphysical matters in the university community then they could have denied support to

the Wide Awake publication. But denying the discussion of these fields leaves broad

field of studies that are crucial to the collegiate learning system, such as philosophy,

ethics, and to some extent law, completely out of the lecture hall.

8. The United States should not adopt an anti-flag burning amendment to the

Constitution because even though the flag is a very emotional and respected symbol of

our country, it is not outside the realm of free expression. In the case of Texas v. Johnson,

Justice Brennan delivers a compelling argument for the right to flag burning. He states

that if there is one thing that the First Amendment stands for, it is that the government can

not “prohibit the expression of an idea simply because society finds the idea offensive of

disagreeable.” If society were to prohibit all material that the majority of the U.S. found
offensive we would be without pornography as well as certain types of motion pictures

and music. Burning the flag, even though it offends many people, only harms their

sensibilities and nothing else. Justice Brennan states “we have not recognized an

exception to this principle even where our flag has been involved...we have never held

that the government may ensure that a symbol be used to express only one view of that

symbol or its referents…” By allowing flag burning to be illegal the court would open up

a Pandora’s box concerning what government symbols can be or cannot be desecrated,

which symbols are more important than others. In doing this the justices would be forced

to exercise a large amount of interpretation. Who will decide which symbol can or

cannot be desecrated?

The reason that the burning of the flag provokes such an emotional reaction is

because many people have deeply seeded feelings in regard to it. For many American

veterans the flag symbolizes what they were fighting for. For many immigrants it

represents a new life. For most Americans it represents the freedom and liberty that we

as Americans enjoy. Of course because burning of the flag is such a touchy topic, it often

times creates breaches of the peace where demonstrators burning the flag are assaulted by

those who are against it. Even though burning the flag may be intended to be simply

peaceful protesting, it often turns violent when those who are abhor flag burning lose

control of their emotions and react violently to burners.

9. The ruling in Ashcroft v. ACLU is a sound ruling because it creates a safeguard

that protects juveniles from exposure to explicit pornography while at the same time

allowing for the First Amendment right to viewing materials by adults. The courts

decision in Miller v. California placed the decision of decency in the hands of the
communities. In Ashcroft v. ACLU, the court placed the decision into the hands of the

smallest community in the U.S.; the family. By placing filtering material into the hands

of parents and not the government the court is placing responsibility where it should be.

It is the job of the parents of juveniles to decide what their children should and should not

see. Filtering software protects the rights of adult citizens to view pornographic material

while at the same time protecting juveniles. Pornography is an area where less restrictive

measures are better than censorship.

10. In Atkins v. Virginia and Roper v. Simmons the Supreme Court made sound

constitutional decisions. In each case the Court examined the criteria determined by

other cases as defining who is and is not eligible for the death penalty. In the Atkins case

as well as Roper the Court examined the two main points for administering the death

penalty, deterrence and retribution. In the case of Atkins the death penalty was deemed

inadmissible due to the fact that since a mentally retarded person was not capable of fully

knowing the consequences of their actions, therefore not being as depraved as an average

adult, and because mentally retarded people lacked the capacity for premeditation and

would therefore not be deterred from committing more crimes, they were not deserving

of the death penalty. In Roper the court ruled along the same lines as those in the Atkins

case stating that a juvenile did not fall into the same two qualifications for the death

penalty, retribution and deterrence.

The criteria used in both cases for defining those who are deserving of the death

penalty was indeed sound because they looked at the mental condition of each offender

and then weighed it against the penalty. In each case the Court examined whether or not

the punishment would in some way benefit society or at least be a deterrent and in each
case they found that by executing juveniles and the mentally retard, society would not be

bettered and in fact they would be doing a grave disservice to those who would be

executed. A juvenile or a mentally retarded person who unknowingly or naively

commits a crime would with equal obliviousness be executed, and therefore not fulfill

any of the goals of execution.

A main point that played its way into the Roper case was international laws

pertaining to the execution of a juvenile. During the Roper case the Justices examined

laws from other countries in order to make a sound decision in the case. By examining

the laws of other countries the Supreme Court reached out for ideas in order to make the

best decision for the U.S. We as Americans should not think that we have a monopoly on

ideas and that our Constitution is the best law on Earth. It is far better for us to expand

our horizons and examine what other nations view to right and wrong, and in the process

discover what we as Americans believe is right and wrong. The international community

is a treasure trove of ideas that we as Americans need to investigate more often.

11. Of the four theories concerning incorporation selective incorporation plus and

total incorporation plus are the preferred theories. Total incorporation is not as appealing

a decision because it quashes the individual rights of the states to make laws for their own

people by forcing them to accept the federal Bill of Rights. Historically selective

incorporation has achieved nearly the same goal as total incorporation except that it

arrived there through a case by case method. Incorporation has created a minimal

standard in regards to the Bill of Rights which the states have to follow. With selective

incorporation plus and total incorporation plus, the state governments, instead of simply

conforming to the Bill of Rights, can change their own constitutions, in most instances
creating new laws which are more protective and broader than those of the federal

government. This allows for a greater amount of individual freedom and expression

which would not be present if there was simply a total incorporation of the Bill of Rights.

With the ability to modify those rights which have been forced upon them by the national

government, the states are maintaining a little of their own autonomy as well as

preserving the separation of powers.

In regards to the idea incorporation in general, the idea is indeed a good one

which has greatly benefited our country. Before the Due Process revolution the Bill of

Rights was without any authority in regards to the states. The Supreme Court recognized

that the state governments, not the federal government, were the ones who were abusing

the rights of their citizens. Most of what was said in the Bill of Rights did not apply to

the states, which in lead to restrictions or the lack there of of many rights which today are

seen as essential such as aspects of a speedy trial, protection against unreasonable

searches and seizures as well as cruel and unusual punishment. Historically

incorporation has been a god-send to the American people because it created minimal

requirements in regards to the rights of individuals, protecting them from abuse by the

states.

12. The decisions in Vernonia v. Acton and Board of Education v. Earls are correct.

In each case there was a special need for the random drug tests based on the fact that by

using drugs the students were a threat not only to themselves but to other students. In the

case of Vernonia v. Acton there was also a special need for drug screenings because there

was a large drug problem among the student population. The efforts by the school district

were an attempt to stifle the already rampant drug problem in the school. By randomly
screening, the schools in each case hoped to protect the health and safety of their students

while at the same time deterring further use illicit drugs. There was also the fear of drug

use among athletes in the school system, which are seen as role models by their peers.

By testing athletes and others extracurricular, there was an attempt made by the schools

to send the right message to their students by eliminating bad influences.

A school submitting all of its students to a drug test would be constitutional.

Since there would be a special need to protect the health and safety of young

impressionable minors from the adverse affects of drug abuse, the school would be

constitutionally allowed to drug test all of its students. In high schools there is an

atmosphere of discipline, which must obtained in order to achieve a functioning

intellectual community. The use of drugs disrupts that atmosphere and therefore there is

a special need by the administration to drug test in order to deter further use and create a

healthy environment for the student.

In regards to the age of students one must look at the point when peer pressure

becomes a common place activity and curiosity with drugs and alcohol occur. In normal

circumstances the conditions for these two conditions occurs during junior high when

social status becomes more important and often drugs and alcohol are linked with social

status. Screening children in K-6 grade would be a waste of time and resources because

there are not the social pressures for children in these age groups to try drugs and alcohol.

It would therefore be an intelligent idea to screen all students who are in junior high and

high school. These students are more influenced by their peers and therefore more likely

to experiment with drugs and alcohol. Testing at the high school level would be a

desirable and effective means in combating drug abuse among juveniles.

 It is very unlikely that a university would be allowed to do drug screenings of

their students because a university would lack the special need of a high school. A

university does not have the social pressures to conform that are present in a high school

atmosphere. College students tend to be more accepting of the preferences of others and

are therefore less likely to pressure a peer into using drugs. A university also does not

have the disciplinary atmosphere of a high school nor does it need one to operate. A high

school is mandatory because it requires attendance a cooperation where as a university is

voluntary due to the fact that the student has voluntarily decided to attend the university.

Therefore the university student is there of their own free will and not the responsibility

of the university. Also if a university student chooses to abuse drugs they run less of a

chance of hurting fellow students, the only person they injury is themselves. Testing of

university students would not be supported due to the fact that there is not the special

need that is present in a high school situation.