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Unit 2 – U.S. Constitution. Section 2.1 – History of the U.S. Constitution Section 2.2 – Basic Principles of the Constitution Section 2.3 – The Bill of Rights Section 2.4 – Due Process and Equal Protection. Section 2.3 – The Bill of Rights. Objective:

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unit 2 u s constitution

Unit 2 – U.S. Constitution

Section 2.1 – History of the U.S. Constitution

Section 2.2 – Basic Principles of the Constitution

Section 2.3 – The Bill of Rights

Section 2.4 – Due Process and Equal Protection

section 2 3 the bill of rights
Section 2.3 – The Bill of Rights

Objective:

Students will be able to list and explain the basic rights guaranteed under the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments

section 2 3 the bill of rights1
Section 2.3 – The Bill of Rights

The First Amendment – Freedom of Speech, Part I

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Section 2.3 – The Bill of Rights

“Congress shall make no law…abridging the freedom of speech…”

The “freedom of speech” clause of the First Amendment guarantees the right to express and receive information and ideas

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Section 2.3 – The Bill of Rights

The most important value of free expression is “not free thought for those who agree with us, but freedom for the thought we hate.”

  • Oliver Wendell Holmes

What do you think Justice Holmes meant by this statement? Do you agree? Disagree? Why?

section 2 3 the bill of rights4
Section 2.3 – The Bill of Rights

Why did the Frames believe so strongly in the freedom of speech?

  • Freedom of speech is central to an open and democratic society
  • The Framers believed in a “marketplace of ideas” – that in the presence of diverse opinions the “truth” will emerge
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Section 2.3 – The Bill of Rights
  • The freedom of speech protects all forms of communication: verbal communication, books, art, newspapers, television, radio, and other media
  • The freedom of speech protects not only the person making the communication but also the person receiving it
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Section 2.3 – The Bill of Rights
  • Like all constitutional rights, however, the freedom of speech is NOT absolute

What kinds of ideas should be protected, popular or unpopular, or both? Why?

The F.A. was designed to protect unpopular ideas

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Section 2.3 – The Bill of Rights

What makes an idea popular or unpopular?

  • If an idea is already popular, why would that expression need protection
  • It is the unpopular speech that might be suppressed
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Section 2.3 – The Bill of Rights

Does the F.A. protect verbal or nonverbal communication? Or Both?

What exactly is non-verbal communication?

Actions that communicate a message

Non-verbal communication is known as “symbolic speech” and is protected by the First Amendment

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Section 2.3 – The Bill of Rights

What is protected by the F.A.,

  • the “what” is being communicated or
  • the “where, when, and how” it is being communicated

The F.A. offers the most protection to the content of speech (the “what”)

section 2 3 the bill of rights10
Section 2.3 – The Bill of Rights

What is protected by the F.A.,

  • the “what” is being communicated or
  • the “where, when, and how” it is being communicated

The F.A. offers the most protection to the content of speech (the “what”)

section 2 3 the bill of rights11
Section 2.3 – The Bill of Rights

The Framers were concerned with protecting political messages (especially those which criticize the government)

The protection of the F.A. applies to the “message” even if most people disagree with the message or the message is unpopular

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Section 2.3 – The Bill of Rights

Because many people have different “messages” and those messages often reflect their values, issues involving the F.A. often involve a clash of opposing viewpoints, and ultimately, values

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Section 2.3 – The Bill of Rights

If the “message” is what is protected, and the “message” is the content….

Can the government ever regulate or restrict content?

What should be the deciding factors?

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Section 2.3 – The Bill of Rights

Does the government have the right to regulate the speech of the KKK or the American Nazi Party because their words are offensive to most people?

  • What is the value of hearing opinions you dislike?
  • What is the danger of suppressing unpopular thought?
section 2 3 the bill of rights15
Section 2.3 – The Bill of Rights

The Case of the St. Patrick’s Day Parade

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Section 2.3 – The Bill of Rights

Can the content of someone’s speech ever be regulated by the government?

Yes, in limited circumstances

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Section 2.3 – The Bill of Rights

The F.A. offers the “highest” protection to the content of speech

UNLESS that speech falls into one of these categories:

  • Obscenity
  • Defamation
  • False or Misleading Commercial Speech
  • Fighting Words
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Section 2.3 – The Bill of Rights

In determining whether the content of speech should be regulated, the Supreme Court uses a “balancing test” approach:

What is the potential harm to the community (what interest should the govt. protect?

What right is the individual seeking to exercise?

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Section 2.3 – The Bill of Rights

In other instances, the courts develop and apply more specific “tests” to determine how the language of the Constitution should be interpreted and thus how far a particular right or protection should be extended

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Section 2.3 – The Bill of Rights

Lesson 11 – The First Amendment – Freedom of Speech, Part II

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Section 2.3 – The Bill of Rights

Content NOT given full F.A. protection:

1. Obscenity – anything that treats sex or nudity in an offensive or lewd manner and generally exceeds recognized standards of decency

section 2 3 the bill of rights22
Section 2.3 – The Bill of Rights

Courts over the years struggled with finding a definition that could be consistently applied

In 1957, Justice Stewart commented on the difficulty of a definition by stating that he could not define it but “I know it when I see it”

section 2 3 the bill of rights23
Section 2.3 – The Bill of Rights

The Supreme Court finally came up with a definition in 1973 when they decided Miller v. California

This “Miller Test” has three parts:

1. Would the average person applying contemporary community standards find that the material, taken as a whole, appeals to the prurient interest

section 2 3 the bill of rights24
Section 2.3 – The Bill of Rights

The “Miller Test”

2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically outlawed by state law

3. Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value

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Section 2.3 – The Bill of Rights
  • The test was designed to lend consistency to a definition for obscenity for F.A. purposes
  • If the speech is obscene under the Miller test, then that speech is NOT protected by the F.A. and the government has the right to restrict or regulate that speech
section 2 3 the bill of rights26
Section 2.3 – The Bill of Rights
  • State and local government have become “creative” when dealing with obscenity
  • In order to avoid a F.A. issue, many state and local government have used these other arguments to restrict sexually explicit material

A. argue that works that degrade women as a form of discrimination

section 2 3 the bill of rights27
Section 2.3 – The Bill of Rights

B. solve the adult “movie theaters” and “bookstore” problem by modifying the local zoning laws – these types of businesses are permitted only in a specific zone (like industrial) which tend to be located at the “fringes” of a community

C. Restrict access to minors (behind the counter and “shielding”)

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Section 2.3 – The Bill of Rights

Content NOT given full F.A. protection:

2. Defamation – Defamation can be either written (libel) or spoken (slander). To be defamatory, the speech must: (a) be false; and (b) damage the reputation of the subject in the community

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Section 2.3 – The Bill of Rights

Content NOT given full F.A. protection:

3. Commercial Speech – commonly known as advertising. Commercial speech may be regulated to protect the public from false or misleading advertisements. (exercise of the police power)

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Section 2.3 – The Bill of Rights

Content NOT given full F.A. protection:

4. “Fighting Words” – this exception is used rarely today. The idea is that the government has an interest in protecting the public from speech which might be “dangerous.”

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Section 2.3 – The Bill of Rights

Content NOT given full F.A. protection:

4. “Fighting Words” – the Supreme Court defines fighting words as face-to-face speech which is likely to cause an imminent breach of the peace between the speaker and listener

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Section 2.3 – The Bill of Rights

Content NOT given full F.A. protection:

4. “Fighting Words” – Courts have struggled with a definition for this doctrine

During the 1950s they used the “clear and present danger” and “balancing test”

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Section 2.3 – The Bill of Rights

Incitement test:

  • Speech must be directed toward inciting or producing immediate and lawless behavior; AND
  • The speech must be likely to produce the behavior within a short period of time
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Section 2.3 – The Bill of Rights

** Special Issue **

“Hate Speech”

Any speech motivated by bigotry and racism

- State and local governments have passed laws that punish those who express “hate speech”

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Section 2.3 – The Bill of Rights

** Special Issue **

“Hate Speech”

The problem that states have is that the First Amendment protects speech, even if offensive to some people (laws disfavoring content are generally unconstitutional)

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Section 2.3 – The Bill of Rights

** Special Issue **

“Hate Speech”

Solution: States have “upped” the level of punishment for crimes motivated by bigotry, racism, or intimidation (e.g. raising the “level” of the crime – 2nd degree felony to 1st degree felony)

section 2 3 the bill of rights37
Section 2.3 – The Bill of Rights

The Case of the Offensive Speaker

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