Chapter 3

1. Chapter 3 Constitutional Limitations on the Prohibition of Criminal Conduct

2. Importance of Judicial Review • Judicial Review – power of courts of law to review governmental acts and declare them null and void if they are found to be unconstitutional. • Unconstitutional Per Se – statute that is unconstitutional under any given circumstances. • Unconstitutional as Applied – declaration by a court of law that a statute is invalid insofar as it is enforced in some particular context.

3. Bills of Attainder and Ex Post Facto Laws • Bill of Attainder – legislative act inflicting punishment on an individual or a group of easily identifiable individuals. • Ex Post Facto Law – retroactively • Makes an innocent act illegal • Increases the punishment for a criminal act • Decreases the standard of proof required to convict a defendant of a crime.

4. The Fourteenth Amendment Application of the Bill of Rights to State and Local Laws • Doctrine of incorporation – provisions of the Bill of Rights are held to be incorporated within the Due Process Clause of the 14th Amendment and are made applicable to actions of the state and local governments.

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

6. Restrictions on Speech Speech that is not protected by the 1st Amendment includes • Obscenity • Child Pornography • Fighting Words • Threats • Incitement to violence

7. Obscenity • Roth v. United States 354 US 476 (1957) • Samuel Roth, who ran a literary business in New York, was convicted under a federal statute criminalizing the sending of "obscene, lewd, lascivious or filthy" materials through the mail for advertising and selling a publication called American Aphrodite,

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

9. Miller v. California Miller v. California, 413 US 15, 93 S. Ct. 2607, 37 L. Ed. 2d 1498 (1973) • Obscenity – explicit sexual material that is • Patently offensive • appeals to the prurient interest • and lacks serious scientific, artistic, or literary content.

10. Fighting Words • Chaplinsky v. New Hampshire, 315 US 568 (1942) • Called the sheriff “a God damned racketeer” • Conviction upheld • Clarified in later decisions • Police officers should be “thick skinned”

11. Fighting Words • Two elements • The words used are derogatory, abusive or insulting • The address to another in a face to face to face confrontation that, as a matter of common knowledge, are inherently likely to provoke the other into an immediate violent reaction

12. Threats • Watts v. US 394 US 705 (1969) • They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle, the first man to get in my sights is L.B.J. They are not going to make me kill my black brothers.”

13. Incitement to Violence Advocacy of Unlawful Conduct • Clear and present danger doctrine – 1st Amendment does not protect those forms of expression that pose a clear and present danger of bringing about some evil that government has a right to prevent. • Imminent lawless action – unlawful conduct that is about to take place and is inevitable unless there is intervention by the authorities. Symbolic Speech and Expressive Conduct • Symbolic speech – expressions by symbols and gestures.

14. The First Amendment Freedoms of Expression and Assembly Free Expression v. Maintenance of the Public Order • Fighting words – words that are likely to provoke a violent response from audience. Hate Speech

15. Partially Protected Speech • Hate speech – hateful expression based on racial, ethnic or religious prejudice. Generally protected by the Constitution.

16. Allowable Limitations Freedom of Assembly • Public forum – public space generally acknowledged as appropriate for public assemblies or expressions of views. • Time, place, and manner regulations – government limitations on the time, place, and manner of expressive activities.

17. Free Exercise of Religion First Amendment right to exercise one’s religion. Courts seldom allow freedom of religion as a defense to a criminal charge stemming from a situation in which parents refused to seek or allow medical treatment for their children. The courts have recognized the right of a competent adult to refuse medical treatment on religious grounds, even if the refusal results in death.

18. The Right to Keep and Bear Arms Second Amendment, 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.

19. The Doctrines of Vagueness and Overbreadth The Fifth Amendment to the U.S. Constitution provides that no person shall be deprived of life, liberty or property without due process of law. The two fundamental aspects of due process are Fair Notice and Fair Hearing.

20. The Doctrines of Vagueness and Overbreadth • Vagueness Doctrine – doctrine of constitutional law holding unconstitutional legislation that fails to clearly inform the person what is required or proscribed. • Doctrine of Overbreadth – enables a person to make a facial challenge to a law on the ground that the law might be applied in the future against activities protected by the First Amendment.

21. The Constitutional Right of Privacy • Right of Privacy – constitutional right to engage in intimate personal conduct or make fundamental life decisions without interference by the state. Abortion • Roe v. Wade – in Roe, the Court held that the right of privacy was broad enough to include a woman’s decision to terminate her pregnancy.