Constitutional law

Introduction of Constitutional Law Amendments-additions to the constitution Protect us against overuse of power by the federal government Ensured that constitution could be changed2/3 vote of both houses of congress National convention called by congress at the request of the legislature in 2/3 of states Proposed ratified (3/4 of states or by special ratifying conventions in ¾ of states

Bill of rights First 10 amendments 5 th amendment Due process Gives certain rights to accused people, protection from self incrimination. 6 th -right to a lawyer, impartial jury and speedy trial 7 th -jury trial in a civil case 8 th -cruel and unusual punishment, excessive bail and fines

Basic constitutional principals Three ideas 1.Rights are not and cannot be absolute Freedom of speech, press, vote Balancing test-weigh the danger to the public against the benefit to the individual of being able to choose 2.Constitution protects citizens from certain actions by the government 3.Enforcing one’s rights can be time consuming and expensive

Universal Human rights No gov’t can take away rights in constitution but can grant additional rights -sexual discrimination Universal Declaration of Human Rights – Social and economic rights that are not in the constitution – Right to adequate housing, an adequate standard of living, housing, health care, and education

Freedom of speech Protects speeches, books, art, newspapers, television, radio and other media receiving it Right to see, hear and read different ideas ***Not absolute Protects person making the communication but also person

Importance of freedom of speech Important to enabling people to obtain information from a variety of sources Key to democratic society “marketplace of ideas” truth emerges from diverse opinions

Obscenity Anything that treats sex or nudity in an offensive or lewd manner, lacks serious literary, artistic, political or scientific value Test – Would the average person applying community standards find the material appeals to an unwholesome or unusual interest in sex – Does the work depict or describe in an offensive way sexual conduct specifically outlawed – Does the work lack literary, artistic, political or scientific value

defamation False expression about a person that damages that persons reputation – Slander-spoken defamation – Libel-written defamation Person tells others that the doctor killed his patients

Commercial speech Advertising Does not receive the same protection as individual speech False or misleading Information about illegal activities

Freedom of speech continued Fighting words – Abusive and threatening words – Face to face – Imminent breach of peace between speaker and listener – Don’t contribute to marketplace of ideas – Rarely used today

Freedom of speech Tests Clear and present danger test – Used prior to 1950 – Examined circumstances under speech was made and determined whether clear and present danger of unlawful existed – If danger exists, government can punish speaker – Dennis v. United states

Freedom of Speech tests Incitement test – 1960’s – Gov’t can punish when it is directed toward inciting or producing immediate lawless action – Different from Clear and present danger b/c incitement requires that unlawful action likely to occur within a short period of time – Gives speaker great protection

Freedom of Speech continued Hate speech Motivated by bigotry and racism Emotional and psychological impact Fighting words=does not qaulify for protection??

Freedom of Speech continued Regulate speech in two ways Based on content-what a speaker is allowed to say Regulate the time, place, and manner-when where and how -permits, where posters can be put, time that you can use loud speakers

Freedom of speech Symbolic Speech-conduct that expresses an idea Sit ins, flag waving, demonstrations Does the speaker intend to convey a particular message and whether it is likely that the message was understood by viewer To be punished must show it is important reason, not just they disapprove

Freedom of speech continued Laws that are not clear and specific can be struck down based on vagueness Laws msut be narrowly drafted to prohibit only as much as is necessary to achieve the governments goals Overinclusive-laws that prohibit both protected and unprotected expression