Power in the Criminal Justice System

2 Constitutional Limitations

Test Your Knowledge: True/False

1. Bills of attainder prohibit punishing an individual for an act that was not criminal at the time it was committed.

2. One purpose of statutory clarity is to ensure that individuals know what acts are prohibited by a law.

3. Laws that distinguish between individuals based on race or based on gender, in most instances, are held to be constitutional by courts.

4. The courts do not recognize any limitations on expression under the First Amendment.

5. The U.S. Constitution explicitly provides for a right to privacy. 6. The Second Amendment right to bear arms does not protect individuals’ right to

keep firearms within the home.

Check your answers on page 39.

Was the defendant discriminated against based on gender?

Defendant Johnson Lake allegedly assaulted his wife, Melissa Barker-Lake. . . . Melissa Barker- Lake immediately contacted the . . . police who arrested Defendant later that day for . . . “binding his wife’s right hand inwards.” . . . Defendant contends that 14 V.I.C. § 298(5) heightens the six month misdemeanor offense of simple assault and battery to the one year . . . offense of aggravated assault and battery in instances where the complaining witness is female and the accused is an adult male. However, there is no reciprocal enhancement where the complaining witness is an adult male and the accused is female. This paragraph clearly articulates Defendant’s contention that he is subject to a different legal standard because of his gender in violation of the Equal Protection Clause.

Introduction In the American democratic system, various constitutional provisions limit the power of the federal and state governments to enact criminal statutes. For instance, a statute prohibiting students from criticizing the government during a classroom discussion would likely violate the First Amendment to the U.S. Constitution. A law punishing individuals engaging in “unprotected” sexual activity, however socially desirable, may

unconstitutionally violate the right to privacy.

Why did the framers create a constitutional democracy, a system of government based on a constitution that limits the powers of the government? The Founding Fathers were profoundly influenced by the harshness of British colonial rule and drafted a constitution designed to protect the rights of the individual against the tyrannical tendencies of government. They wanted to ensure that the police could not freely break down doors and search homes. The framers were also sufficiently wise to realize that individuals required constitutional safeguards against the political passions and intolerance of democratic majorities.

The limitations on government power reflect the framers’ belief that individuals possess natural and inalienable rights, and that these rights may be restricted only when absolutely necessary to ensure social order and stability. The stress on individual freedom was also practical. The framers believed that the fledgling new American democracy would prosper and develop by freeing individuals to passionately pursue their hopes and dreams.

At the same time, the framers were not wide-eyed idealists. They fully appreciated that individual rights and liberties must be balanced against the need for social order and stability. The striking of this delicate balance is not a scientific process. A review of the historical record indicates that the emphasis has been placed at times on the control of crime and at other times on individual rights.

Chapter 2 describes the core constitutional limits on criminal law and examines the balance between order and individual rights. Consider the costs and benefits of constitutionally limiting the government’s authority to enact criminal statutes. Do you believe that greater importance should be placed on guaranteeing order or on protecting rights? You should keep the constitutional limitations discussed in this chapter in mind as you read the cases in subsequent chapters. The topics covered in the chapter are as follows:

The first principle of American jurisprudence is the rule of legality. Constitutional constraints include the following:

Bills of attainder and ex post facto laws Statutory clarity Equal protection Freedom of speech Privacy The right to bear arms

We will discuss an additional constitutional constraint, the Eighth Amendment prohibition on cruel and unusual punishment, in Chapter 3.

The Rule of Legality The rule of legality has been characterized as “the first principle of American criminal law and jurisprudence.”1 This principle was developed by common law judges and is interpreted today to mean that an individual may not be criminally punished for an act that was not clearly condemned in a statute prior to the time that the individual committed the act.2 The doctrine of legality is nicely summarized in the Latin expression nullum crimen sine lege, nulla poena sine legenullum crimen sine lege, nulla poena sine lege, meaning “no crime without law, no punishment without law.” The doctrine of legality is reflected in two constitutional principles governing criminal statutes:

the constitutional prohibition on bills of attainder and ex post facto laws and the constitutional requirement of statutory clarity.

Bills of Attainder and Ex Post FactoEx Post Facto Laws Article I, Sections 9 and 10 of the U.S. Constitution prohibit state and federal legislatures from passing bills of attainder and ex post facto lawsex post facto laws. James Madison characterized these provisions as a “bulwark in favor of personal security and personal rights.”3

Bills of Attainder A bill of attainder is a legislative act that punishes an individual or a group of persons without the benefit of a trial. The constitutional prohibition of bills of attainder was intended to safeguard Americans from the type of arbitrary punishments that the English Parliament directed against opponents of the Crown. The Parliament disregarded the legal process and directly ordered that dissidents should be imprisoned, executed, or banished and forfeit their property.4 The prohibition of a bill of attainder was successfully invoked in 1946 by members of the American Communist Party, who were excluded by Congress from working for the federal government.5

Ex Post FactoEx Post Facto Laws

Alexander Hamilton explained that the constitutional prohibition on ex post facto laws was vital because “subjecting of men to punishment for things which, when they were done were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instrument of tyranny.”6 In 1798, Supreme Court Justice Samuel Chase in Calder v. Bull listed four categories of ex post facto laws:7

Every law that makes an action, done before the passing of the law, and was innocent when done, criminal; and punishes such action. Every law that aggravates a crime, or makes it greater than it was, when committed. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

The constitutional rule against ex post facto laws is based on the familiar interests in providing individuals notice of criminal conduct and protecting individuals against retroactive “after the fact” statutes. Supreme Court Justice John Paul Stevens noted that all four of Justice Chase’s categories are “mirror images of one another. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction.”8

In summary, the prohibition on ex post facto laws prevents legislation being applied to acts committed before the statute went into effect. The legislature is free to declare that in the future a previously innocent act will be a crime. Keep in mind that the prohibition on ex post facto laws is directed against enactments that disadvantage defendants; legislatures are free to retroactively assist defendants by reducing the punishment for a criminal act.

The distinction between bills of attainder and ex post facto laws is summarized as follows:

A bill of attainder punishes a specific individual or specific individuals. An ex post facto law criminalizes an act that was legal at the time the act was committed. A bill of attainder is not limited to criminal punishment and may involve any disadvantage imposed on an individual; ex post facto laws are limited to criminal punishment. A bill of attainder imposes punishment on an individual without trial. An ex post

facto law is enforced in a criminal trial.

The Supreme Court and Ex Post FactoEx Post Facto Laws Determining whether a retroactive application of the law violates the prohibition on ex post facto laws has proven more difficult than might be imagined given the seemingly straightforward nature of this constitutional ban.

In Stogner v. California, the Supreme Court ruled that a California law authorizing the prosecution of allegations of child abuse that previously were barred by a three-year statute of limitations constituted a prohibited ex post facto law.9 This law was challenged by Marion Stogner, who found himself indicted for child abuse after having lived the past 19 years without fear of criminal prosecution for an act committed 22 years prior. Justice Stephen Breyer ruled that California acted in an “unfair” and “dishonest” fashion in subjecting Stogner to prosecution many years after the state had assured him that he would not stand trial. Judge Anthony Kennedy argued in dissent that California merely reinstated a prosecution that was previously barred by the three-year statute of limitations. The penalty attached to the crime of child abuse remained unchanged. What is your view?

We now turn our attention to the requirement of statutory clarity.

Statutory Clarity The Fifth and Fourteenth Amendments of the U.S. Constitution prohibit depriving individuals of “life, liberty or property without due process of law.” Due process requires that criminal statutes should be drafted in a clear and understandable fashion. A statute that fails to meet this standard is unconstitutional on the grounds that it is void for vagueness.

Due process requires that individuals receive notice of criminal conduct. Statutes are required to define criminal offenses with sufficient clarity so that ordinary individuals are able to understand what conduct is prohibited. Due process requires that the police, prosecutors, judges, and jurors are provided with a reasonably clear statement of prohibited behavior. The requirement of definite standards ensures the uniform and nondiscriminatory enforcement of the law.

In summary, due process ensures clarity in criminal statutes. It guards against

individuals being deprived of life (the death penalty), liberty (imprisonment), or property (fines) without due process of law.

Clarity Would a statute that punishes individuals for being a member of a gang satisfy the test of statutory clarity? The U.S. Supreme Court, in Grayned v. Rockford, ruled that a law was void for vagueness that punished an individual “known to be a member of any gang consisting of two or more persons.” The Court observed that “no one may be required at peril of life, liberty or property to speculate as to the meaning of [the term gang in] penal statutes.”10

In another example, the Supreme Court ruled in Coates v. Cincinnati that an ordinance was unconstitutionally void for vagueness that declared that it was a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” The Court held that the statute failed to provide individuals with reasonably clear guidance because “conduct that annoys some people does not annoy others,” and that an individual’s arrest may depend on whether he or she happens to “annoy” a “police officer or other person who should happen to pass by.” This did not mean that Cincinnati was helpless to maintain the city sidewalks; the city was free to prohibit people from “blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct.”11

Definite Standards for Law Enforcement Edward Lawson was detained or arrested on roughly 15 occasions between March and July 1977. Lawson certainly stood out; he was distinguished by his long dreadlocks and habit of wandering the streets of San Diego at all hours. Lawson did not carry any identification, and each of his arrests was undertaken pursuant to a statute that required that an individual detained for investigation by a police officer present “credible and reliable” identification that carries a “reasonable assurance” of its authenticity and that provides “means for later getting in touch with the person who has identified himself.”12

The U.S. Supreme Court explained in Kolender v. Lawson that the void-for-vagueness doctrine was aimed at ensuring that statutes clearly inform citizens of prohibited acts and simultaneously provide definite standards for the enforcement of the law. The California statute was clearly void for vagueness, because no standards were provided

for determining what constituted “credible and reliable” identification, and “complete discretion” was vested in the police to determine whether a suspect violated the statute. Was a library or credit card or student identification “credible and reliable” identification? A police officer explained at trial that a jogger who was not carrying identification might satisfy the statute by providing his or her running route or name and address. Did this constitute “credible and reliable” identification? The Court was clearly concerned that a lack of definite standards opened the door to the police using the California statute to arrest individuals based on their race, gender, or appearance.

Due process does not require “impossible standards” of clarity, and the Supreme Court stressed that this was not a case in which “further precision” was “either impossible or impractical.” There seemed to be little reason why the legislature could not specify the documents that would satisfy the statutory standard and avoid vesting complete discretion in the “moment-to-moment judgment” of a police officer on the street. Laws were to be made by the legislature and enforced by the police: “To let a policeman’s command become equivalent to a criminal statute comes dangerously near to making our government one of men rather than laws.”13

The Supreme Court has stressed that the lack of standards presents the danger that a law will be applied in a discriminatory fashion against minorities and the poor. In Papachristou v. City of Jacksonville, the U.S. Supreme Court expressed the concern that a broadly worded vagrancy statute punishing “rogues and vagabonds”; “lewd, wanton and lascivious persons”; “common railers and brawlers”; and “habitual loafers” failed to provide standards for law enforcement and risked that the poor, minorities, and nonconformists would be targeted for arrest based on the belief that they posed a threat to public safety.14 The Court humorously noted that middle-class individuals who frequented the local country club were unlikely to be arrested, although they might be guilty under the ordinance of “neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served.”15

Broadly worded statutes are a particular threat in a democracy in which we are committed to protecting even the most extreme nonconformist from governmental harassment. The U.S. Supreme Court, in Coates v. Cincinnati, expressed concern that the lack of clear standards in the local ordinance might lead to the arrest of individuals who were exercising their constitutionally protected rights. Under the Cincinnati statute, association and assembly on the public streets would be “continually subject” to whether the demonstrators’ “ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.”16

Void for Vagueness Judges are aware that language cannot achieve the precision of a mathematical formula. Legislatures are also unable to anticipate every possible act that may threaten society, and understandably they resort to broad language. Consider the obvious lack of clarity of a statute punishing a “crime against nature.” In Horn v. State, the defendant claimed that a law punishing a “crime against nature” was vague and indefinite and failed to inform him that he was violating the law in raping a 10-year-old boy. An Alabama court ruled that the definition of a “crime against nature” was widely discussed in legal history and was “too disgusting and well known” to require further details or description.17 Do you agree?

Judges appreciate the difficulty of clearly drafting statutes and typically limit the application of the void-for-vagueness doctrine to cases in which the constitutionally protected rights and liberties of people to meet, greet, congregate in groups, move about, and express themselves are threatened.

A devil’s advocate may persuasively contend that the void-for-vagueness doctrine provides undeserved protection to “wrongdoers.” In Nebraska v. Metzger, a neighbor spotted Metzger standing naked with his arms at his sides in the large window of his garden apartment for roughly five seconds.18 The neighbor testified that he saw Metzger’s body from “his thighs on up.” The police were called and observed Metzger standing within a foot of the window eating a bowl of cereal and noted that “his nude body, from the mid-thigh on up, was visible.” The ordinance under which Metzger was charged and convicted made it unlawful to commit an “indecent, immodest or filthy act within the presence of any person, or in such a situation that persons passing might ordinarily see the same.” The Nebraska Supreme Court ruled that this language provided little advance notice as to what is lawful and what is unlawful and could be employed by the police to arrest individuals for entirely lawful acts that some might consider immodest, including holding hands, kissing in public, or wearing a revealing swimsuit. Could Metzger possibly believe that there was no legal prohibition on his standing nude in his window? Keep these points in mind as you read the first case in the textbook, State v. Stanko.

Did the defendant know that he was driving at an excessive rate of speed? State v. Stanko, 974 P.2d 1132 (Mont. 1998). Opinion by Trieweiler, J

Facts

Kenneth Breidenbach is a member of the Montana Highway Patrol who, at the time of trial and the time of the incident that formed the basis for Stanko’s arrest, was stationed in Jordan, Montana. On March 10, 1996, he was on duty patrolling Montana State Highway 24 and proceeding south from Fort Peck toward Flowing Wells in “extremely light” traffic at about 8 a.m. on a Sunday morning when he observed another vehicle approaching him from behind.

He stopped or slowed, made a right-hand turn, and proceeded west on Highway 200. About one- half mile from that intersection, in the first passing zone, the vehicle that had been approaching him from behind passed him. He caught up to the vehicle and trailed the vehicle at a constant speed for a distance of approximately eight miles while observing what he referred to as the two- or three-second rule. . . . He testified that he clocked the vehicle ahead of him at a steady 85 miles per hour during the time that he followed it. At that speed, the distance between the two vehicles was from 249 to 374 feet. . . . Officer Breidenbach signaled him to pull over and issued him a ticket for violating Section 61-8-303(1), Montana Code Annotated (MCA). The basis for the ticket was the fact that Stanko had been operating his vehicle at a speed of 85 miles per hour at a location where Officer Breidenbach concluded it was unsafe to do so.

The officer testified that the road at that location was narrow, had no shoulders, and was broken up by an occasional frost heave. He also testified that the portion of the road over which he clocked Stanko included curves and hills that obscured vision of the roadway ahead. However, he acknowledged that at a distance of from 249 to 374 feet behind Stanko, he had never lost sight of Stanko’s vehicle. The roadway itself was bare and dry, there were no adverse weather conditions, and the incident occurred during daylight hours. Officer Breidenbach apparently did not inspect the brakes on Stanko’s vehicle or make any observation regarding its weight. The only inspection he conducted was of the tires, which appeared to be brand new. He also observed that it was a 1996 Camaro, which was a sports car, and that it had a suspension system designed so that the vehicle could be operated at high speeds. He also testified that while he and Stanko were on Highway 24 there were no other vehicles that he observed, that during the time that he clocked Stanko . . . they approached no other vehicles going in their direction, and that he observed a couple of vehicles approach them in the opposite direction during that eight-mile stretch of highway.

Although Officer Breidenbach expressed the opinion that 85 miles per hour was unreasonable at that location, he gave no opinion about what would have been a reasonable speed, nor did he identify anything about Stanko’s operation of his vehicle, other than the speed at which he was traveling, which he considered to be unsafe. Stanko testified that on the date he was arrested he was driving a 1996 Chevrolet Camaro that he had just purchased one to two months earlier and that had been driven fewer than 10,000 miles. He stated that the brakes, tires, and steering were all in perfect operating condition, the highway conditions were perfect, and he felt that he was operating his vehicle in a safe manner. He conceded that after passing Officer Breidenbach’s vehicle, he drove at a speed of 85 miles per hour but testified that because he was aware of the officer’s presence he was extra careful about the manner in which he operated his vehicle. He felt that he would have had no problem avoiding any collision at the speed that he was traveling. Stanko testified that he was fifty years old at the time of trial, drives an average of 50,000 miles a year, and has never had an accident.

Issue

Is Section 61-8-303(1), MCA, so vague that it violates the Due Process Clause found at article 2 section 17 of the Montana Constitution? . . . Stanko contends that Section 61-8-303(1), MCA, is unconstitutionally vague because it fails to give a motorist of ordinary intelligence fair notice of the speed at which he or she violates the law, and because it delegates an important public policy matter, such as the appropriate speed on Montana’s highways, to policemen, judges, and juries for resolution on a case-by-case basis. Section 61-8-303(1), MCA, provides as follows:

A person operating or driving a vehicle of any character on a public highway of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to the view ahead. The person operating or driving the vehicle shall drive the vehicle so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.

The question is whether a statute that regulates speed in the terms set forth above gave Stanko reasonable notice of the speed at which his conduct would violate the law.

Reasoning In Montana, we have established the following test for whether a statute is void on its face for vagueness: “A statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” . . . No person should be required to speculate as to whether his contemplated course of action may be subject to criminal penalties. We conclude that, as a speed limit, Section 61-8-303(1), MCA, does not meet these requirements of the Due Process Clause of article 2 section 17 of the Montana Constitution, nor does it further the values that the void-for-vagueness doctrine is intended to protect.

For example, while it was the opinion of Officer Breidenbach that 85 miles per hour was an unreasonable speed at the time and place where Stanko was arrested, he offered no opinion regarding what a reasonable speed at that time and place would have been. Neither was the attorney general, the chief law enforcement officer for the state, able to specify a speed that would have been reasonable for Stanko at the time and place where he was arrested. . . .

The difficulty that Section 61-8-303(1), MCA, presents as a statute to regulate speed on Montana’s highways, especially as it concerns those interests that the void-for-vagueness doctrine is intended to protect, was further evident from the following discussion with the attorney general during the argument of this case:

Q. Well how many highway patrol men and women are there in the State of Montana?

A. There are 212 authorized members of the patrol. Of that number, about 190 are officers and on the road.

Q. And I understand there are no specific guidelines provided to them to enable them to know at what point, exact point, a person’s speed is a violation of the basic rule?

A. That’s correct, your honor, because that’s not what the statute requires. We do not have a numerical limit. We have a basic rule statute that requires the officer to take into account whether or not the driver is driving in a careful and prudent manner, using the speed.

Q. And it’s up to each of their individual judgments to enforce the law?

A. It is, your honor, using their judgment applying the standard set forth in the statute. . . .

It is evident from the testimony in this case and the arguments to the court that the average motorist in Montana would have no idea of the speed at which he or she could operate his or her motor vehicle on this state’s highways without violating Montana’s “basic rule” based simply on the speed at which he or she is traveling. Furthermore, the basic rule not only permits, but requires the kind of arbitrary and discriminatory enforcement that the Due Process Clause in general, and the void-for-vagueness doctrine in particular, are designed to prevent. It impermissibly delegates the basic public policy of how fast is too fast on Montana’s highways to “policemen, judges, and juries for resolution on an ad hoc and subjective basis.”

. . . For example, the statute requires that a motor vehicle operator and Montana’s law enforcement personnel take into consideration the amount of traffic at the location in question, the condition of the vehicle’s brakes, the vehicle’s weight, the grade and width of the highway, the condition of its surface, and its freedom from obstruction to the view ahead. However, there is no specification of how these various factors are to be weighted, or whether priority should be given to some factors as opposed to others. This case is a good example of the problems inherent in trying to consistently apply all of these variables in a way that gives motorists notice of the speed at which the operation of their vehicles becomes a violation of the law. . . .

Holding We do not, however, mean to imply that motorists who lose control of their vehicles or endanger the life, limb, or property of others by the operation of their vehicles on a street or highway cannot be punished for that conduct pursuant to other statutes. . . . We simply hold that Montanans cannot be charged, prosecuted, and punished for speed alone without notifying them of the speed at which their conduct violates the law. . . . The judgment of the district court is reversed. . . .

Dissenting, Turnage, C.J.Turnage, C.J. This important traffic regulation has remained unchanged as the law of Montana . . . since 1955. . . . Apparently for the past forty-three years, other citizens driving upon our highways had no problem in understanding this statutory provision. Section 61-8-303(1), MCA, is not vague and most particularly is not unconstitutional as a denial of due process. . . .

Dissenting, Regnier, J.Regnier, J. The arresting officer described in detail the roadway where Stanko was operating his vehicle at 85 miles per hour. The roadway was very narrow with no shoulders. There were frost heaves on the road that caused the officer’s vehicle to bounce. The highway had steep hills, sharp curves,

and multiple no-passing zones. There were numerous ranch and field access roads in the area, which ranchers use for bringing hay to their cattle. The officer testified that at 85 miles per hour, there was no way for Stanko to stop in the event there had been an obstruction on the road beyond the crest of a hill. In the officer’s judgment, driving a vehicle at the speed of 85 miles per hour on the stretch of road in question posed a danger to the rest of the driving public. In my view, Stanko’s speed on the roadway where he was arrested clearly falls within the behavior proscribed by the statute. . . .

Questions for Discussion 1. What were the facts the police officer relied on in arresting Stanko for speeding? Contrast

these with the facts recited by Stanko in insisting that he was driving at a reasonable speed.

2. The statute employs a “reasonable person” standard and lists a number of factors to be taken into consideration in determining whether a motorist is driving at a proper rate of speed. Was the decision of the Montana Supreme Court based on the lack of notice provided to motorists concerning a reasonable speed or based on the failure to provide law enforcement officers with clear standards for enforcement?

3. Why does Chief Justice Turnage refer to Section 61-8-303(1), MCA, as an “important traffic regulation” and stress that this has been the law for 43 years? Can you speculate as to why Montana failed to post speed limits on highways?

4. Do you agree with the majority opinion or with the dissenting judges? 5. The Montana state legislature reacted by establishing speed limits of “75 mph at all times

on Federal . . . interstate highways outside an urban area” . . . and “70 mph during the daytime and 65 mph during the nighttime on any other public highway.” Why did the legislature believe that this statute solved the void-for-vagueness issue?

Cases and Comments

S t a n k o ’s S u b s e q u e n t A r re s t s .S t a n k o ’s S u b s e q u e n t A r re s t s . Stanko was arrested for reckless driving on August 13, 1996, and again on October 1, 1996. He was charged on both occasions with operating a vehicle with “willful or wanton disregard for the safety of persons or property.” Two officers cited the fact that Stanko was driving between 117 and 120 miles per hour on narrow, hilly highways with the risk of encountering farm, ranch, tourist, and recreational vehicles and wildlife and placing emergency personnel at risk. Stanko possessed extraordinary confidence in his driving ability and dismissed the suggestion that he was driving in a wanton and reckless fashion.

He pointed out that he drove roughly 6,000 miles a month without an accident and that he had won several stock-car races in Oregon almost 20 years previously. The Montana Supreme Court unanimously ruled that Stanko should have reasonably understood that the manner in which he was driving posed a risk to other motorists who “do not assume the risk of driving in racetrack conditions.” The Montana Supreme Court stressed that Stanko’s conviction was not “based on speed alone” and dismissed his claim that the reckless driving law was unconstitutionally vague. See State v. Stanko, 974 P.2d 1139 (Mont. 1998).

Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e :Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e : State v. Houston, State v. Metzger, a n da n d State

v. Wright, http://edge.sagepub.com/lippmanccl5e.

You Decide 2.1

David C. Bryan was involved in a relationship with a young woman during the fall semester of 1994 at the University of Kansas. The relationship ended and Bryan allegedly repeatedly contacted the young woman, including personally approaching her in a university building. Bryan subsequently was charged under the Kansas stalking statute. The Kansas statute at the time prohibited an “intentional and malicious following or course of conduct when such following or course of conduct seriously alarms, annoys or harasses the person.” The statute failed to specify whether a “following” that “alarms, annoys or harasses” was to be measured by the standard of a “reasonable person.” Bryan contends that the statute is unconstitutionally vague. How should the judge rule? Could you suggest how the state legislature could clarify the law? Consider the perspectives of a female victim and male defendant. See State v. Bryan, 910 P.2d 212 (Kan. 1996). Another Kansas case on stalking is State v. Rucker, 987 P.2d 1080 (Kan. 1999).

Yo u c a n fin d t h e a n s w e r a tYo u c a n fin d t h e a n s w e r a t http://edge.sagepub.com/lippmanccl5e.

Equal Protection The U.S. Constitution originally did not provide for the equal protection of the laws. Professor Erwin Chemerinsky observes that this is not surprising, given that African Americans were enslaved and women were subject to discrimination. Slavery, in fact, was formally embedded in the legal system. Article I, Section 2 of the U.S. Constitution provides for the apportionment of the House of Representatives based on the “whole number of free persons” as well as three fifths of the slaves. This was reinforced by Article IV, Section 2, the Fugitive Slave Clause, which requires the return of a slave escaping into a state that does not recognize slavery.19

Immediately following the Civil War in 1865, Congress enacted and the states ratified the Thirteenth Amendment, which prohibits slavery and involuntary servitude. Discrimination against African Americans nevertheless continued, and Congress responded by approving the Fourteenth Amendment in 1868. Section 1 provides that “no state shall deprive any person of life, liberty or property without due process of law, or deny any person equal protection of the law.” The Supreme Court declared in 1954 that the Fifth Amendment Due Process Clause imposes an identical obligation to ensure the equal protection of the law on the federal government.20

The Equal Protection Clause was rarely invoked for almost 100 years. Justice Oliver Wendell Holmes Jr., writing in 1927, typified the lack of regard for the Equal Protection Clause when he referred to the amendment as “the last resort of constitutional

argument.”21 The famous 1954 Supreme Court decision in Brown v. Board of Education ordering the desegregation of public schools with “all deliberate speed” ushered in a period of intense litigation over the requirements of the clause.22

Three Levels of Scrutiny Criminal statutes typically make distinctions based on various factors, including the age of victims and the seriousness of the offense. For instance, a crime committed with a dangerous weapon may be punished more harshly than a crime committed without a weapon. Courts generally accept the judgment of state legislatures in making differentiations so long as a law is rationally related to a legitimate government purpose. Legitimate government purposes generally include public safety, health, morality, peace and quiet, and law and order. There is a strong presumption that a law is constitutional under this rational basis test or minimum level of scrutiny test.23

In Westbrook v. Alaska, 19-year-old Nicole M. Westbrook contested her conviction for consuming alcoholic beverages when under the age of 21. Westbrook argued that there was no basis for distinguishing between a 21-year-old and an individual who was slightly younger. The Alaska Supreme Court recognized that there may be some individuals younger than 21 who possess the judgment and maturity to handle alcoholic beverages and that some individuals over 21 may fail to meet this standard. The court observed that states have established the drinking age at various points and that setting the age between 19 and 21 years of age seemed to be rationally related to the objective of ensuring responsible drinking. As a result, the court concluded that “even if we assume that Westbrook is an exceptionally mature 19-year-old, it is still constitutional for the legislature to require her to wait until she turns 21 before she drinks alcoholic beverages.”24

In contrast, the courts apply a strict scrutiny test in examining distinctions based on race and national origin. Racial discrimination is the very evil that the Fourteenth Amendment was intended to prevent, and the history of racism in the United States raises the strong probability that such classifications reflect a discriminatory purpose. In Strauder v. West Virginia, the U.S. Supreme Court struck down a West Virginia statute as unconstitutional that limited juries to “white male persons who are twenty-one years of age.”25

Courts are particularly sensitive to racial classifications in criminal statutes and have ruled that such laws are unconstitutional in almost every instance. The Supreme Court observed that “in this context . . . the power of the State weighs most heavily upon the

individual or the group.”26 In Loving v. Virginia, in 1967, Mildred Jeter, an African American, and Richard Loving, a Caucasian, pled guilty to violating Virginia’s ban on interracial marriages and were sentenced to 25 years in prison, a sentence that was suspended on the condition that the Lovings leave Virginia. The Supreme Court stressed that laws containing racial classifications must be subjected to the “most rigid scrutiny” and determined that the statute violated the Equal Protection Clause. The Court failed to find any “legitimate overriding purpose independent of invidious racial discrimination” behind the law. The fact that Virginia “prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their justification, as measures designed to maintain White Supremacy. . . . There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”27 The strict scrutiny test also is used when a law limits the exercise of “fundamental rights” (such as freedom of speech).

The Supreme Court has adopted a third, intermediate level of scrutiny for classifications based on gender. The decision to apply this standard rather than strict scrutiny is based on the consideration that although women historically have confronted discrimination, the biological differences between men and women make it more likely that gender classifications are justified. Women, according to the Court, also possess a degree of political power and resources that are generally not found in “isolated and insular minority groups.” Intermediate scrutiny demands that the state provide some meaningful justification for the different treatment of men and women and not rely on stereotypes or classifications that have no basis in fact. Justice Ruth Ginsburg applied intermediate scrutiny in ordering that the Virginia Military Institute admit women and ruled that gender-based government action must be based on “an exceedingly persuasive justification. . . . The burden of justification is demanding and it rests entirely on the State.”28

In Michael M. v. Superior Court, the U.S. Supreme Court upheld the constitutionality of California’s “statutory rape law” that punished “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.”29 Is it constitutional to limit criminal liability to males?

The Supreme Court noted that California possessed a “strong interest” in preventing illegitimate teenage pregnancies. The Court explained that imposing criminal sanctions solely on males roughly “equalized the deterrents on the sexes,” because young men did not face the prospects of pregnancy and child rearing. The Court also deferred to the judgment of the California legislature that extending liability to females would likely

make young women reluctant to report violations of the law.30

In summary, there are three different levels of analysis under the Equal Protection Clause:

Rational Basis Test. A classification is presumed valid so long as it is rationally related to a constitutionally permissible state interest. An individual challenging the statute must demonstrate that there is no rational basis for the classification. This test is used in regard to the “nonsuspect” categories of the poor, the elderly, and the mentally challenged and to distinctions based on age. Strict Scrutiny Test. A law singling out a racial or ethnic minority must be strictly necessary, and there must be no alternative approach to advancing a compelling state interest. This test is also used when a law limits fundamental rights. Intermediate Scrutiny. Distinctions on the grounds of gender must be substantially related to an important government objective. A law singling out women must be based on factual differences and must not rest on overbroad generalizations.

The next case in the textbook, People of the Virgin Islands v. Lake, asks you to consider whether the defendant was prosecuted and convicted under a statutory provision that reflects an outdated view of women. Is this a case of gender discrimination against the male defendant?

Did the domestic violence statute discriminate on the basis of gender? P e o p l e o f t h e Vi rg i n I s l a n d s v. L a k eP e o p l e o f t h e Vi rg i n I s l a n d s v. L a k e, 5 9 V. I . 1 7 8 ( S u p e r. C t . 2 0 1 3 ) . O p i n i o n b y B r a d y, J .5 9 V. I . 1 7 8 ( S u p e r. C t . 2 0 1 3 ) . O p i n i o n b y B r a d y, J .

Issue Under 14 V.I.C. § 298, aggravated assault and battery is punishable by up to one year incarceration, whereas simple assault is punishable by incarceration only for up to six months. The question is whether 14 V.I.C. § 298(5) establishes gender classifications that fail the intermediate scrutiny review prescribed by the United States Supreme Court and thereby violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Has the People demonstrated that this gender-based provision is substantially related to the achievement of an important governmental purpose?

Facts Defendant Johnson Lake allegedly assaulted his wife, Melissa Barker-Lake, and his minor daughter, identified only as J.L., on or about June 12, 2011. Melissa Barker-Lake immediately contacted the Virgin Islands police who arrested Defendant later that day for “kicking his sixteen year old daughter in her stomach and bending his wife’s right hand inwards.” At the time,

Defendant had a medium build, weighed 192 pounds, and stood 5ʹ9ʺ tall. He was sober and unarmed.

Defendant was charged with two counts of aggravated assault and battery as acts of domestic violence, in violation of 14 V.I.C. § 298(5). Count One of the Information charges that Defendant committed an aggravated assault and battery against his wife, “a female”; and Count Two charges the same crime against Defendant’s daughter, “a female.” Defendant does not challenge Count Two of the Information charging aggravated assault on his minor daughter. Since an assault by any adult gives rise to aggravated assault regardless of the offender’s gender under the provisions of 14 V.I.C. § 298(5), Count Two does not present a constitutional question.

Reasoning Defendant contends that 14 V.I.C. § 298(5) heightens the six month misdemeanor offense of simple assault and battery to the one year misdemeanor offense of aggravated assault and battery in instances where the complaining witness is female and the accused is an adult male. However, there is no reciprocal enhancement where the complaining witness is an adult male and the accused is female. This paragraph clearly articulates Defendant’s contention that he is subject to a different legal standard because of his gender in violation of the Equal Protection Clause.

[T]he People argues that “the purpose of section 298(5) is to address size disparities among the aggressor and victim and to prevent serious injury to the victim.” The People contends that because “it is a well-known fact that an adult male is larger than both an adult woman and a child and that an adult female is larger than a child,” this statute is about size not gender disparities. The statute’s purpose, it contends, is to protect smaller individuals from the aggression of larger individuals more likely to inflict harm because of these size differences.

To adopt the People’s position would be to ignore the “plain and unambiguous meaning” of section 298(5). Under this statute, a man who assaults a woman is guilty of aggravated assault; however a woman who assaults a man is not guilty of aggravated assault. While section 298(5) also makes it aggravated assault for either a man or a woman to assault a child, this does not abrogate the gender distinction set out in the first ten words of section 298(5): “being an adult male, upon the person of a female. . . .”

The statute does not mention the weight or size of the offender, but simply differentiates based upon the offender’s gender. The Supreme Court requires that our inquiry cease if a statute’s language is “unambiguous.” With reference to an assault and battery committed by one adult against another adult, section 298(5) clearly and without any equivocation draws a distinction based solely upon the offender’s gender. . . . No further inquiry or statutory interpretation is required because it is the plain and unambiguous meaning of section 298(5) to differentiate between male and female offenders solely based upon gender.

“The function of the Equal Protection Clause . . . is simply to measure the validity of classifications created by state [and territorial] laws.” “‘Equal protection’ . . . emphasizes disparity in treatment by a [government] between classes of individuals whose situations are arguably indistinguishable.” Statutes which establish classifications of persons and openly discriminate between them based upon gender are subject to a heightened level of scrutiny under the Equal Protection Clause. While statutory classifications based upon gender are not subject to

the “strict scrutiny” afforded to classifications distinguishing between racial and ethnic groups, explicit gender distinctions are subject to an intermediate level of scrutiny. The fact that a statute “discriminates against males rather than females does not exempt it from scrutiny or reduce the standard of review.”

To pass constitutional muster, the People must demonstrate that the statute’s gender classification “serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” The Supreme Court held that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The Supreme Court has since reaffirmed that intermediate scrutiny standard-of-review for classifications based on gender. Importantly, the intermediate standard of review is that same regardless of whether women or men are disadvantaged by the classification.

The People argues that men and women are not similarly situated when it comes to being victims of domestic or other physical violence. “[M]aking aggravated-assault domestic violence a felony is substantially related to the government interest of protecting women against acts of domestic violence. Women are disproportionally victims of domestic violence.” The People claims, without support, that men assault women nine times more than women assault men. Citing biological factors, such as strength and stature, the People claims that “in 2011, only a small number of women were even charged by the Attorney General’s office with simple assault- domestic violence where the victim was a male.” The Equal Protection Clause, it argues, “does not command that all persons be treated alike but, rather, ‘direct[s] that all persons similarly situated should be treated alike.’” The People contends that because men and women are not similarly situated in terms of being victims of sexual abuse, the law does not have to treat them as if they were similarly situated. For the reasons that follow, the People’s argument is unpersuasive. . . .

The Supreme Court has concluded that statutes which are remedial in nature, seeking to “remedy some part of the effect of past discrimination” are substantially related to an important governmental purpose. Additionally, statutes which operate purely on the scientific, non- stereotypical grounds that men and women are not similarly situated are permissible in limited circumstances. . . .

However, certain statutes can mistakenly categorize women as sufficiently dissimilar from men to warrant impermissible disparate treatment. Such statutes are often based on “reinforcing the stereotypes about . . . women and their need for special protection,” make unscientific assumptions about the perceived differences between the sexes, and are not substantially related to an important governmental purpose. In examining section 298(5), it is clear that this statute is based on stereotypes, blanket generalizations, unsupported data and unscientific assumptions. “[D]omestic violence remains a difficult and disturbing social problem that must be eradicated. But as [the Defendant] correctly pointed out, ‘[d]omestic violence is a problem for everybody— men, women, children.’”

Without any support in the record, the People claims that “[w]omen are disproportionally victims of domestic violence” and that men assault women nine times more than women assault men. “[T]he research is now overwhelming that women are as likely to abuse.” “Section 298(5) perpetuates this problem . . . . The evil is violence not gender. . . .” The goal of domestic violence laws is to prevent domestic violence in all circumstances and in all forms. Justice Désirée

Bernard, the first female judge to sit on the Caribbean Court of Justice, . . . discussed the gender- neutrality of domestic violence: “[w]hen one considers the whole issue of gender-based violence one immediately conjures up in one’s mind violence against women despite the gender-neutral term . . . .” Domestic violence, she explained, “include[s] the all-pervasive scourge of violence committed against both male and female victims.” Section 298(5) stands in direct contradiction to the gender-neutral goals of domestic violence laws. In fact, section 298(5) assumes that males are the problem. This is exactly the type of discrimination that the Supreme Court has determined violates the Equal Protection Clause and is, therefore, unconstitutional.

As articulated by Justice Désirée Bernard, domestic assaults involving male victims are on the rise. The unsupported and stereotypic assumption of the People that men are larger and stronger than women ignores the plain reality that the assumption is untrue as to a statistically significant percentage of the adult population of this Territory. The People’s stubborn insistence that section 298(5) can survive this constitutional analysis is based, in essence, on the premise that women are the weaker sex requiring protection through statutory inequality. Without any proof in the record by statistical analysis or otherwise of the differing physical characteristics of the sexes, or of the predominance of assaults by men against women, this Court cannot accept that the facial discrimination set out by the words of the statute is justifiable based upon outmoded stereotypes and unscientific assumptions.

For purposes of section 298(5) women are similarly situated to men and it cannot be said that the disparity between different classifications of person in the statute is substantially related to the government’s purpose of deterring domestic and other physical violence. . . . There is absolutely no reason that a gender-neutral statute cannot be crafted to address these important governmental purposes.

Holding The statute violates the Equal Protection Clause of the United States Constitution. . . . While protecting everyone from domestic assault is an important governmental purpose, the Court cannot find that this or any other important governmental interest is served by the disparate treatment afforded men and women accused of committing assault and battery. . . . As written, section 298(5) reinforces stereotypes and makes unscientific assumptions concerning the need to protect women through inequality under law. To the contrary, for the purposes of section 298(5), men and women are similarly situated and, as such, section 298(5) . . . is unconstitutional in denying equal protection to men and women under the laws of the United States and the Virgin Islands.

Questions for Discussion 1. What are the facts in Lake? 2. Why does Lake argue that he is being prosecuted under an unconstitutional law? 3. How does the prosecution respond to this argument? 4. What is the legal test that the Virgin Islands court used to evaluate Lake’s claim that the

law is unconstitutional? 5. Why does the court conclude that the Virgin Island statute violates the Equal Protection

Clause?

6. Explain why the court concludes that men and women are similarly situated in terms of the need for protection from domestic violence. Do you agree that the Virgin Islands statute reinforces outdated stereotypes and therefore is unconstitutional?

7. How would you draft a domestic violence statute that the court would find constitutional? 8. In State v. Houston, Brian Houston was convicted of an assault upon Amy Stocks. At the

sentencing hearing, the judge sentenced Houston to 10 days in jail, in part based on the defendant’s lack of remorse and the unprovoked nature of the attack. The judge also stated, “I generally give a short jail sentence when men are convicted of beating women or hitting women because I take a very dim view of men hitting women” and ordered jail time so that Houston would know that he “can’t go around hitting women.” Did Houston’s sentence violate the Equal Protection Clause of the U.S. Constitution? See State v. Houston, 534 A.2d 1293 (Me. 1987).

9. Note that the South Carolina Supreme Court in State v. Wright, 563 S.E.2d 311 (S.C. 2000), and appellate courts in North Carolina and California have found statutes similar to the statute in Webster v. People of the Virgin Islands to be constitutional because of the differential physical size and strength of males and females. As a result, an assault by a male is likely to cause greater harm than an assault by a female. The judges reason that although there are exceptions to this generalization, a statute is not required to adjust the law because of a situation that does not fit the overwhelming number of cases. Do you agree with the decision in State v. Wright?

Cases and Comments

D e t e n t i o n o f J a p a n e s e A m e r i c a n s D u r i n g Wo r l d Wa r I I .D e t e n t i o n o f J a p a n e s e A m e r i c a n s D u r i n g Wo r l d Wa r I I . In Korematsu v. United States, the U.S. Supreme Court upheld the conviction of Fred Korematsu, an American citizen of Japanese descent, for remaining in San Leandro, California, in defiance of Civilian Exclusion Order No. 34 issued by the commanding general of the Western Command, U.S. Army. This prosecution was undertaken pursuant to an act of Congress of March 21, 1942, that declared it was a criminal offense punishable by a fine not to exceed $5,000 or by imprisonment for not more than a year for a person of Japanese ancestry to remain in “any military area or military zone” established by the president, the secretary of defense, or a military commander. Japanese Americans who were ordered to leave their homes were detained in remote relocation camps. Exclusion Order No. 34 was one of a number of orders and proclamations issued under the authority of President Franklin Delano Roosevelt; it stated that “successful prosecution of the war [World War II] requires every possible protection against espionage and against sabotage to national defense material, national defense premises and national-defense utilities.” Justice Hugo Black recognized that legal restrictions that “curtail the civil rights of a single racial group are immediately suspect” and that individuals excluded from the military zone would be subject to relocation and detention without trial in a camp far removed from the West Coast. The Supreme Court nevertheless affirmed the constitutionality of the order by a vote of six to three. The majority concluded the following:

Korematsu was not excluded from the Military Area because of hostility to him or to his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt

constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders, . . . determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot —by availing ourselves of the calm perspective of hindsight—say that at that time these actions were unjustified.

Justice Frank Murphy questioned the constitutionality of this order, which he contended unconstitutionally excluded both citizens and noncitizens of Japanese ancestry from the Pacific Coast. He concluded that the “exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.” Was this a case of racial discrimination or an effort to safeguard the United States from an attack by Japan? What is the standard of review? Would such a law be ruled constitutional today? See Korematsu v. United States, 323 U.S. 214 (1944).

Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e :Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e : State v. Houston, State v. Wright, a n da n d Webster v. People of the Virgin Islands, http://edge.sagepub.com/lippmanccl5e.

You Decide 2.2

Around 4:30 a.m., Indianapolis Police Officer Jerry Durham responded to a report of three females exposing themselves to the occupants of other vehicles. Durham observed 16-year-old C.T. and another woman “pulling their bra[s] and their shirt[s] down over their exposed breast[s]. Indiana punishes an individual who knowingly or intentionally appear[ed] in a public place in a state of nudity with the intent to be seen by another person.” Indiana Code section 35-45-4-1(d) (2008) defines nudity as “the showing of the female breast with less than a fully opaque covering of any part of the nipple[.]” Officer Durham at trial testified that he had seen C.T.’s nipple during the incident. The juvenile court found that C.T. had “committed what would be public nudity if committed by an adult and discharged her to her mother.” C.T. claims that her conviction violated equal protection under law because the display of male breasts does not constitute a criminal offense. Do you agree? See C.T. v. State, 939 N.E.2d 626 (Ind. Ct. App. 2010).

Yo u c a n fin d t h e a n s w e r a tYo u c a n fin d t h e a n s w e r a t http://edge.sagepub.com/lippmanccl5e.

Freedom of Speech The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The U.S. Supreme Court extended this prohibition to the states in a 1925 decision in which the Court proclaimed that “freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected under the Due Process Clause of

the Fourteenth Amendment from impairment by the States.”31

The Fourteenth Amendment to the Constitution applies to the states and was adopted following the Civil War in order to protect African Americans against the deprivation of “life, liberty and property without due process” as well as to guarantee former slaves “equal protection of the law.” The Supreme Court has held that the Due Process Clause incorporates various fundamental freedoms that generally correspond to the provisions of the Bill of Rights (the first 10 amendments to the U.S. Constitution that create rights against the federal government). This incorporation theory has resulted in a fairly uniform national system of individual rights that includes freedom of expression.

The famous, and now deceased, First Amendment scholar Thomas I. Emerson identified four functions central to democracy performed by freedom of expression under the First Amendment:32

Freedom of expression contributes to individual self-fulfillment by encouraging individuals to express their ideas and creativity. Freedom of expression ensures a vigorous “marketplace of ideas” in which a diversity of views are expressed and considered in reaching a decision. Freedom of expression promotes social stability by providing individuals the opportunity to be heard and to influence the political and policy-making process. This promotes the acceptance of decisions and discourages the resort to violence. Freedom of expression ensures that there is a steady stream of innovative ideas and enables the government to identify and address newly arising issues.

The First Amendment is vital to the United States’ free, open, and democratic society. Justice William Douglas wrote in Terminiello v. Chicago33 that speech

may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with the conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

Justice Robert H. Jackson, reflecting on his experience as a prosecutor during the Nuremberg trials of Nazi war criminals, cautioned Justice Douglas that the

choice is not between order and liberty. It is between liberty with order and

anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Justice Jackson is clearly correct that there must be some limit to freedom of speech. But where should the line be drawn? The Supreme Court articulated these limits in Chaplinsky v. New Hampshire and observed that there are “certain well-recognized categories of speech which may be permissibly limited under the First Amendment.” The Supreme Court explained that these “utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”34 The main categories of speech for which content is not protected by the First Amendment and that may result in the imposition of criminal punishment are as follows:

Fighting Words. Words directed to another individual or individuals that an ordinary and reasonable person should be aware are likely to cause a fight or breach of the peace are prohibited under the fighting words doctrine. In Chaplinsky v. New Hampshire, the Supreme Court upheld the conviction of a member of the Jehovah’s Witnesses who, when distributing religious pamphlets, attacked a local marshal with the accusation that “you are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Incitement to Violent Action. A speaker, when addressing an audience, is prohibited from incitement to violent action. In Feiner v. New York, Feiner addressed a racially mixed crowd of 75 or 80 people. He was described as “endeavoring to arouse” the African Americans in the crowd “against the whites, urging that they rise up in arms and fight for equal rights.” The Supreme Court ruled that “when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.”35 On the other hand, in Terminiello v. Chicago, the Supreme Court stressed that a speaker could not be punished for speech that merely “stirs to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”36 Threat. A developing body of law prohibits threats of bodily harm directed at individuals. Judges must weigh and balance a range of factors in determining whether a statement constitutes a political exaggeration or a true threat. In Watts v. United States, the defendant proclaimed to a small gathering following a public rally on the grounds of the Washington Monument that if inducted into the army

and forced to carry a rifle, “the first man I want to get in my sights is L.B.J. [President Lyndon Johnson]. . . . They are not going to make me kill my black brothers.” The onlookers greeted this statement with laughter. Watts’s conviction was overturned by the U.S. Supreme Court, which ruled that the government had failed to demonstrate that Watts had articulated a true threat and that these types of bold statements were to be expected in a dynamic and democratic society divided over the Vietnam War.37 Obscenity. Obscene materials are considered to lack “redeeming social importance” and are not accorded constitutional protection. Drawing the line between obscenity and protected speech has proven problematic. The Supreme Court conceded that obscenity cannot be defined with “God-like precision,” and Justice Potter Stewart went so far as to pronounce in frustration that the only viable test seemed to be that he “knew obscenity when he saw it.”38 The U.S. Supreme Court was finally able to agree on a test for obscenity in Miller v. California. The Supreme Court declared that obscenity was limited to works that when taken as a whole, in light of contemporary community standards, appeal to the prurient interest in sex; are patently offensive; and lack serious literary, artistic, political, or scientific value. This qualification for scientific works means that a medical textbook portraying individuals engaged in “ultimate sexual acts” likely would not constitute obscenity.39 Child pornography may be limited despite the fact that it does not satisfy the Miller standard.40 (Obscenity and pornography are discussed in Chapter 15.) Libel. You should remain aware that the other major limitation on speech, libel, is a civil law rather than a criminal action. This enables individuals to recover damages for injury to their reputations. In New York Times v. Sullivan, the U.S. Supreme Court severely limited the circumstances in which public officials could recover damages and held that a public official may not recover damages for a defamatory falsehood relating to his or her official conduct “unless . . . the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”41 The Court later clarified that this “reckless disregard” or actual knowledge standard applied only to “public figures” and that states were free to apply a more relaxed, simple negligence (lack of reasonable care in verifying the facts) standard in suits for libel brought by private individuals.42 Speech lacking First Amendment protection shares several common characteristics:

The expression lacks social value. The expression directly causes social harm or injury. The expression is narrowly defined in order to avoid discouraging and deterring individuals from engaging in free and open debate.

Keep in mind that these are narrowly drawn exceptions to the First Amendment’s commitment to a lively and vigorous societal debate. The general rule is that the government may neither require nor substantially interfere with individual expression. The Supreme Court held in West Virginia v. Barnette that a student may not be compelled to pledge allegiance to the American flag. The Supreme Court observed that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or action their faith therein.” This commitment to a free “marketplace of ideas” is based on the belief that delegating the decision as to what “views shall be voiced largely into the hands of each of us” will “ultimately produce a more capable citizenry and more perfect polity and . . . that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”43

Overbreadth The doctrine of overbreadth is an important aspect of First Amendment protection. This provides that a statute is unconstitutional that is so broadly and imprecisely drafted that it encompasses and prohibits a substantial amount of protected speech relative to the coverage of the statute. In New York v. Ferber, the U.S. Supreme Court upheld a New York child pornography statute that criminally punished an individual for promoting a “performance which includes sexual conduct by a child less than sixteen years of age.” Sexual conduct was defined to include “lewd exhibition of the genitals.” Justice Byron White was impatient with the concern that although the law was directed at hard-core child pornography, “[s]ome protected expression ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute.” White doubted whether these applications of the statute to protected speech constituted more than a “tiny fraction of the materials” that would be affected by the law, and he expressed confidence that prosecutors would not bring actions against these types of publications. This, in short, is the “paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications.”44

Hate Speech Hate speech is one of the central challenges confronting the First Amendment. This is defined as speech that denigrates, humiliates, and attacks individuals on account of race, religion, ethnicity, nationality, gender, sexual preference, or other personal characteristics and preferences. Hate speech should be distinguished from hate crimes or

penal offenses that are directed against an individual who is a member of one of these “protected groups.”

The United States is an increasingly diverse society in which people inevitably collide, clash, and compete over jobs, housing, and education. Racial, religious, and other insults and denunciations are hurtful, increase social tensions and divisions, and possess limited social value. This type of expression also has little place in a diverse society based on respect and regard for individuals of every race, religion, ethnicity, and nationality.

Regulating this expression, on the other hand, runs the risk that artistic and literary depictions of racial, religious, and ethnic themes may be deterred and denigrated. In addition, there is the consideration that debate on issues of diversity, affirmative action, and public policy may be discouraged. Society benefits when views are forced out of the shadows and compete in the sunlight of public debate.

The most important U.S. Supreme Court ruling on hate speech is R.A.V. v. St. Paul. In R.A.V., several Caucasian juveniles burned a cross inside the fenced-in yard of an African American family. The young people were charged under two statutes, including the St. Paul Bias Motivated Crime Ordinance (St. Paul Minn. Legis. Code § 292.02), which provided that “whoever places on public or private property a symbol, object, . . . including and not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment . . . on the basis of race, color, creed, religion or gender commits disorderly conduct . . . shall be guilty of a misdemeanor.”45 The Supreme Court noted that St. Paul punishes certain fighting words, yet permits other equally harmful expressions. This discriminates against speech based on the content of ideas. For instance, what about symbolic attacks against a greedy real estate developer?

A year later, in Wisconsin v. Mitchell, in 1993, the Supreme Court ruled that a Wisconsin statute that enhanced the punishment of individuals convicted of hate crimes did not violate the defendant’s First Amendment rights. Todd Mitchell challenged a group of other young African American males by asking whether they were “hyped up to move on white people.” As a young Caucasian male approached the group, Mitchell exclaimed, “There goes a white boy; go get him,” and led a collective assault on the victim. The Wisconsin court increased Mitchell’s prison sentence for aggravated assault from a maximum of two years to a term of four years based on his intentional selection of the person against “whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.”46 Mitchell creatively claimed that he was being punished more severely for harboring and acting on racially discriminatory views in violation of the First

Amendment. The Supreme Court, however, ruled that Mitchell was being punished for his harmful act rather than for the fact that his act was motivated by racist views. The enhancement of Mitchell’s sentence was recognition that acts based on discriminatory motives are likely “to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.” Mitchell also pointed out that the prosecution was free to introduce a defendant’s prior racist comments at trial to prove a discriminatory motive or intent and that this would “chill” racist speech. The Supreme Court held that it was unlikely that a citizen would limit the expression of his or her racist views based on the fear that these statements would be introduced one day against him or her at a prosecution for a hate crime.

In 2003, in Virginia v. Black, the U.S. Supreme Court held unconstitutional a Virginia law prohibiting cross burning with “an intent to intimidate a person or group of persons.”47 This law, unlike the St. Paul statute, did not discriminate on the basis of the content of the speech. The Court, however, determined that the statute’s provision that the jury is authorized to infer an intent to intimidate from the act of burning a cross without any additional evidence “permits a jury to convict in every cross burning case in which defendants exercise their constitutional right not to put on a defense.” This provision also makes “it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case.” The Virginia law failed to distinguish between cross burning intended to intimidate individuals and cross burning intended to make a political statement by groups such as the Ku Klux Klan that view the flaming cross as a symbolic representation of their political point of view.

In the next case in the text, State v. Douglas D., the Wisconsin Supreme Court was asked to determine whether a student who threatened a teacher is guilty of making a criminal threat. Do you agree with the court’s judgment?

Did Douglas D. threaten his English teacher? State v. Douglas D., 626 N.W.2d., 725 (Wis. 2001). Opinion by Wilcox, J.

Issue The circuit court found that the content of an eighth-grade creative writing assignment authored by the petitioner, Douglas D. (Douglas), a minor, constituted a threat against Douglas’s English teacher. Based on this finding, the court adjudicated Douglas delinquent.

Facts

This case arises from events that occurred while Douglas was an eighth-grade student at an Oconto County public school. On October 7, 1998, Douglas’s English teacher, who commonly referred to herself in class as “Mrs. C,” gave Douglas a creative writing assignment to complete during class. Mrs. C instructed Douglas to begin writing a story, which later would be passed on to a series of three other students, each adding to Douglas’s work. But other than entitling the assignment “Top Secret,” Mrs. C provided no limit regarding the topic on which Douglas was to write.

Rather than beginning his assignment, Douglas visited with some friends and disrupted the class. Therefore, Mrs. C sent Douglas into the hall to complete his assignment. At the end of the period, Douglas returned to class and handed his work to Mrs. C. A few minutes later, Mrs. C read what Douglas had written:

There one lived an old ugly woman her name was Mrs. C that stood for crab. She was a mean old woman that would beat children sencless. I guess that’s why she became a teacher.

Well one day she kick a student out of her class & he din’t like it. That student was named Dick.

The next morning Dick came to class & in his coat he conseled a machedy. When the teacher told him to shut up he whiped it out & cut her head off.

When the sub came 2 days later she needed a paperclipp so she opened the droor. Ahh she screamed as she found Mrs. C.’s head in the droor.

Mrs. C believed this story to be a threat that if she disciplined Douglas again, Douglas intended to harm her. As a result, she became frightened and, after dismissing Douglas’s class as scheduled, notified the school assistant principal of the incident.

Upon learning of the incident and observing that Mrs. C was very upset, the assistant principal called Douglas into his office. Douglas apologized for the story, stating that he did not intend it to be interpreted as a threat. The assistant principal then imposed on Douglas an in-school suspension. After Douglas served his suspension, the school readmitted him to class-albeit with a different English teacher. However, on November 19, 1998, the police filed a delinquency petition against Douglas, alleging that by submitting a “death threat” to Mrs. C, Douglas had engaged in “abusive conduct under circumstances in which the conduct tends to cause a disturbance,” thus violating the disorderly conduct statute.

On March 11, 1999, the circuit court held a fact-finding hearing regarding the delinquency petition. . . . [T]he court ruled that Douglas was guilty of a criminal threat. Accordingly, it ordered that he be placed on formal supervision for one year. . . . The court of appeals rejected Douglas’s arguments and affirmed the circuit court ruling.

Reasoning To be sure, “the First Amendment generally prevents government from proscribing speech . . .

because of disapproval of the ideas expressed.” However, “it is well understood that the right of free speech is not absolute at all times and under all circumstances.” Some categories of speech are “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” These categories include: “fighting words,” speech that incites others into imminent lawless action, obscenity, libel and defamatory speech, and “true threats.” As the United States Supreme Court has explained, such speech “constitutes ‘no essential part of any exposition of ideas.’” Despite its verbal character, this speech essentially is a “nonspeech element of communication.” In this sense, it is analogous “to a noisy sound truck: Each is . . . a mode of speech . . . ; both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment.” Accordingly, states can regulate, consistent with the First Amendment, these unprotected categories of speech.

School violence is all too prevalent in our schools today. . . . Our children . . . often must learn in an environment of fear, in which education suffers: “Violence in schools makes teaching difficult and inhibits student learning. In addition, unsafe school environments expose students who may already be at risk for school failure to other failure-related factors such as physical and emotional harm.” For these reasons, the public has become increasingly concerned with serious student threats of violence. With this in mind, we cannot imagine how a student threatening a teacher could not be deemed conduct that tends to menace, disrupt, or destroy public order. . . .

We thus must determine whether Douglas’s story constitutes a true threat. [A] true threat is a statement that, in light of all the surrounding circumstances, a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat.

Some factors that courts and juries should consider when applying this test include, but are not limited to: how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether [the threat] was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

In the present case, Douglas argues that his story was not a true threat because it did not express an “unequivocal, unconditional and specific expression[s] of intention immediately to inflict injury.” He contends that his story is a fictional, third-person creative writing assignment, which should receive full protection under the First Amendment.

Conversely, the State contends that Douglas’s story is a true threat. According to the State’s argument, the first two paragraphs of Douglas’s story closely parallel the events that had taken place immediately before Douglas began his assignment: a teacher named Mrs. C removed a male student from her class. The next two paragraphs, the State contends, convey the threat: when the teacher disciplined the student the following day, the student used a machete to cut off the teacher’s head. Further, the State attributes great weight to the fact that Douglas handed his story directly to Mrs. C—the subject of his threat—rather than, for example, reading it in jest to his friends. In light of these circumstances, the State argues that Douglas’s threat to Mrs. C is direct and clear: If she disciplines him again, he intends to injure her. Thus, the State argues that Douglas’s story expresses a true threat.

[W]hile we believe that Douglas’s story is crude and repugnant, we nonetheless must reject the State’s argument. To be sure, Mrs. C testified that Douglas’s story frightened her. Further, Douglas conveyed his message directly to Mrs. C, the alleged victim of the threat. However, there is no evidence that Douglas had threatened Mrs. C in the past or that Mrs. C believed Douglas had a propensity to engage in violence.

Moreover, Douglas wrote his story, pursuant to Mrs. C’s request, in the context of a creative writing class. In such a class, teachers and students alike should expect and allow more creative license—be it for better or, as in this case, for worse—than in other circumstances. Had Douglas penned the same story in a math class, for example, where such a tale likely would be grossly outside the scope of his assigned work, we would have a different case before us.

But in the context of a creative writing class, Douglas’s story does not amount to a true threat. First, the story does not contain any language directly addressed from Douglas to Mrs. C. Rather, it is written in the third person, with no mention of Douglas. Second, Douglas’s story contains hyperbole and attempts at jest. It jokes that the “C” in “Mrs. C” is short for “crab.” In addition, it suggests that Mrs. C is so mean that she beats children and speculates that, for this reason, she became a teacher. Third, Mrs. C explained to Douglas that in this particular assignment, he merely was to begin writing a story that other children would complete. Thus, Douglas could have expected another student to end his grisly tale as a dream or otherwise imagined event. Under these specific circumstances, Douglas’s story is protected by the First Amendment.

We do not doubt that the story was a result of Douglas’s anger at having been removed from class. Further, we sympathize with Mrs. C; she was justified in feeling offended. And we firmly believe that the school took appropriate disciplinary action against Douglas. However, a thirteen- year-old boy’s impetuous writings do not necessarily fall from First Amendment protection due to their offensive nature.

[W]e conclude that Douglas’s story, although we find it to be offensive and distasteful, unquestionably is protected by the First Amendment. Our feelings of offense and distaste do not allow us to set aside the Constitution. By no means should schools interpret this holding as undermining their authority to utilize their internal disciplinary procedures to punish speech such as Douglas’s story. Although the First Amendment prohibits law enforcement officials from prosecuting protected speech, it does not necessarily follow that schools may not discipline students for such speech.

While the “fundamental values of ‘habits and manners of civility’ essential to a democratic society must, of course, include tolerance of divergent . . . views, . . . they also include society’s countervailing interest in teaching our children the boundaries of socially acceptable methods of discourse. Hence, under some circumstances, schools may discipline conduct even where law enforcement officials may not.

Holding In sum, we reemphasize that we share the public’s concern regarding threats of school violence. Society need not tolerate true threats. . . . However, under the particular facts of this case, the speech at issue fails to rise to the level of a true threat. Douglas’s story, though repugnant and insulting, falls within the protection of the First Amendment. As such, it may not be punished as

disorderly conduct. [W]e also recognize that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Thus, although we hold that Douglas’s story is not a true threat and, therefore, cannot be criminally punished . . . we nonetheless believe that the school properly disciplined Douglas. . . . This case reinforces our belief that while some student conduct may warrant punishment by both law enforcement officials and school authorities, school discipline generally should remain the prerogative of our schools, not our juvenile justice system. Accordingly, we reverse the decision of the court of appeals.

Dissenting, Prosser, J.Prosser, J. This case comes to the court against a disturbing backdrop of school violence. Over the past eight years, American education has endured an unprecedented outbreak of shooting incidents and other violence at schools across the United States. . . . Teachers and students are now encouraged to report all threats so that they can be evaluated, because the ability to act on early warning signs has repeatedly headed off additional tragedy.

The question . . . [is] whether a speaker or writer in Douglas’s position, a 13-year-old boy, already an adjudicated delinquent, who had clashed with his teacher about discipline matters in the past and who was angry because his teacher had sent him out into the hall during an English class would reasonably foresee that a listener or reader in the teacher’s position: a new teacher, beginning her first full year of teaching in a public school, in a national environment of apprehension about school violence, who is handed a crude piece of fiction that insults teachers, names and criticizes her thinly-veiled fictional equivalent, draws a parallel to a disciplinary incident in which the teacher was involved moments before, and then implies that the student will cut off her head with a machete because he is angry at her discipline would reasonably interpret the writing as a serious expression of a purpose to inflict harm . . . as opposed to hyperbole and exaggeration or jest that would make a person smile at the student’s imagination and cleverness. . . .

Questions for Discussion 1. Summarize the facts in Douglas D. 2. What is the legal standard for a true threat in Wisconsin? 3. Why does Douglas argue that his essay did not constitute a “true threat” against the

teacher? How does the prosecution respond to this argument? 4. Explain the decision of the Wisconsin Supreme Court? What are some other factors that

the court seemingly found important in reaching a decision in Douglas? 5. Why does Justice Prosser reach a different result than the other justices on the Wisconsin

Supreme Court? Do you agree with Justice Prosser that the teacher reasonably viewed the writing as a threat?

6. As a prosecutor, would you have brought this case or would you have relied on the school to discipline Douglas D.?

Cases and Comments

1. F a c e b o o k .F a c e b o o k . In 2015, in Elonis v. United States, Anthony Douglas Elonis adopted the online name “Tone Dougie” and posted vicious and violent rap lyrics on Facebook against a former employer, his soon-to-be ex-wife, a kindergarten class, and an FBI agent. Elonis was convicted under a federal statute that prohibits the transmission in interstate commerce of any “threat . . . to injure another.” The Supreme Court held that Elonis could not be convicted based solely on the reaction of a reasonable person to his posts and that the government was required to establish a criminal intent. Elonis claimed he was acting under his online persona and lacked a specific intent to threaten individuals. The Supreme Court asked the lower court to decide whether it was sufficient for a conviction under the federal law that Elonis may have been reckless. See Elonis v. United States, ___ U.S. ___ , 135 S. Ct. 2001 (2015).

2. F l a g B u r n i n g .F l a g B u r n i n g . In Texas v. Johnson, the U.S. Supreme Court addressed the constitutionality of Texas Penal Code Annotated section 42.09 (1989), which punished the intentional or knowing desecration of a “state or national flag.” Desecration under the statute was interpreted as to “efface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”

Johnson participated in a political demonstration during the Republican National Convention in Dallas in 1984. The purpose was to protest the policies of the Reagan administration and certain Dallas-based corporations and to dramatize the consequences of nuclear war. The demonstrators gathered in front of Dallas City Hall, where Johnson unfurled an American flag, doused the flag with kerosene, and set it on fire. The demonstrators chanted, “America, the red, white, and blue, we spit on you,” as the flag burned. None of the participants were injured or threatened retribution.

Justice Brennan observed that the Supreme Court had recognized that conduct may be protected under the First Amendment where there is an intent to convey a particularized message and there is a strong likelihood that this message will be understood by observers. Justice Brennan observed that the circumstances surrounding Johnson’s burning of the flag resulted in his message being “both intentional and overwhelmingly apparent.” In those instances in which an act contains both communicative and noncommunicative elements, the standard in judging the constitutionality of governmental regulation of symbolic speech is whether the government has a substantial interest in limiting the nonspeech element (the burning).

The Supreme Court rejected Texas’s argument that the statute was a justified effort to preserve the flag as a symbol of nationhood and national unity. This would permit Texas to “prescribe what is orthodox by saying that one may burn the flag . . . only if one does not endanger the flag’s representation of nationhood and national unity.” In the view of the majority, Johnson was being unconstitutionally punished based on the ideas he communicated when he burned the flag. See Texas v. Johnson, 491 U.S. 397 (1989).

In 1989, the U.S. Congress adopted the Flag Protection Act, 19 U.S.C. § 700. The act provided that anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a U.S. flag shall be subject to both a fine and imprisonment for not more than one year. This law exempted the disposal of a worn or soiled flag. The U.S. government asserted an interest in preserving the flag as “emblematic of the Nation as a sovereign entity.” In United States v. Eichman, Justice Brennan failed to find that this law was significantly different from the Texas statute in Johnson and ruled that the law “suppresses expression out of concern for its likely communicative impact.” Justice Stevens, in a dissent

joined by Justices Rehnquist, White, and O’Connor, argued that the government may protect the symbolic value of the flag and that this does not interfere with the speaker’s freedom to express his or her ideas by other means. He noted that various types of expression are subject to regulation. For example, an individual would not be free to draw attention to a cause through a “gigantic fireworks display or a parade of nude models in a public park.” See United States v. Eichman, 496 U.S. 310 (1990).

3. P i c k e t i n g M i l i t a r y F u n e r a l s .P i c k e t i n g M i l i t a r y F u n e r a l s . The American embrace of freedom of speech was tested in the 2011 case of Snyder v. Phelps, where the U.S. Supreme Court overturned a judgment against the Westboro Baptist Church for the civil tort of the intentional infliction of emotional distress. The case was brought by Al Snyder, the father of Lance Corporal Matthew Snyder who had been killed in the line of duty in Iraq.

Members of the Westboro Baptist Church picketed Corporal Snyder’s funeral on public land adjacent to the burial site. The picketing was designed to call attention to the belief of church members that the United States had angered God by tolerating homosexuality and that God had retaliated by allowing the killing of American soldiers. The church had picketed more than 600 military funerals over the last six years. Chief Justice John Roberts, writing for the eight-judge majority, overturned the verdict against Westboro Baptist Church, reasoning that the members of the congregation

[had] addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech . . . did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course— to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Snyder v. Phelps, ___ U.S. ___, 131 S. Ct. 1207 (2011).

In reaction to the picketing of military funerals, the U.S. Congress passed the Respect for America’s Fallen Heroes Act (RAFHA). Roughly 29 states have adopted antipicketing statutes or have broadened their laws to impose restrictions on the picketing of funerals. These laws regulate the time, place, and manner of demonstrations at funerals and do not restrict the content of the demonstration.

4. S e x O f f e n d e r s a n d S o c i a l M e d i a .S e x O f f e n d e r s a n d S o c i a l M e d i a . In Packingham v. North Carolina, ___ U.S. ___, 137 S. Ct. 1730 (2017), the issue before the Supreme Court was whether the North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. In 2002, Lester Gerard Packingham—then a 21-year-old college student—had sex with a 13-year-old female. He pled guilty to taking indecent liberties with a child, and he was required to register as a sex offender. As a registered sex offender, under North Carolina law, Packingham was barred from

gaining access to commercial social networking sites.

Justice Anthony Kennedy, writing for the Supreme Court majority, held that the North Carolina law was unconstitutional that made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N.C. Gen. Stat. Ann. §§ 14–202.5(a), (e) (2015). The law did not extend to websites that “[p]rovid[e] only one of the following services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform.” The law also did not encompass websites that have as their “primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.” The North Carolina statute applied to roughly 20,000 individuals, and an estimated 1,000 individuals had thus far been prosecuted for violating the law.

Justice Kennedy noted that social media is the most important place for the exchange of ideas and information in modern society. “North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Seven in 10 American adults use at least one Internet social networking service. One of the most popular of these sites is Facebook, the site used by Packingham, which was the basis of his criminal conviction. Justice Kennedy clarified that North Carolina would be justified in enacting a narrowly drafted law that prohibited sex offenders from engaging in conduct that may be the first step in a sexual crime, like contacting a minor or using a website to gather information regarding a minor.

Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e :Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e : Snyder v. Phelps, Virginia v. Black, People v. Rokicki, In re Rickey T., Stevens v. United States, State of California v. George T., a n da n d In re Ryan M., http://edge.sagepub.com/lippmanccl5e.

You Decide 2.3

Lori MacPhail, a peace officer in Chico, California, assigned to a high school, observed Ryan D. with some other students off campus during school hours. She conducted a pat down, discovered that Ryan possessed marijuana, and issued him a citation.

Roughly a month later, Ryan turned in an art project for a painting class at the high school. The projects generally are displayed in the classroom for as long as two weeks. Ryan’s painting pictured an individual who appeared to be a juvenile wearing a green hooded sweatshirt discharging a handgun at the back of the head of a female peace officer with badge No. 67 (Officer MacPhail’s number) and the initials CPD (Chico Police Department). The officer had blood on her hair, and pieces of her flesh and face were blown away. An art teacher saw the painting and found it to be “disturbing” and “scary,” and an administrator at the school informed Officer MacPhail.

An assistant principal confronted Ryan, who stated the picture depicted his “anger at police officers” and that he was angry with MacPhail and agreed that it was “reasonable to expect that Officer MacPhail would eventually see the picture.” Ryan was charged with a violation of section 422 and brought before juvenile court.

How would you rule? See In re Ryan D., 123 Cal. Rptr. 2d 193 (Cal. Ct. App. 2002).

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Privacy The idea that there should be a legal right to privacy was first expressed in an 1890 article in the Harvard Law Review written by Samuel D. Warren and Louis D. Brandeis, who was later appointed to the U.S. Supreme Court. The two authors argued that the threats to privacy associated with the dawning of the 20th century could be combated through recognition of a civil action (legal suit for damages) against individuals who intrude into others’ personal affairs.48

In 1905, the Supreme Court of Georgia became the first court to recognize an individual’s right to privacy when it ruled that the New England Life Insurance Company illegally used the image of artist Paolo Pavesich in an advertisement that falsely claimed that Pavesich endorsed the company.49 This decision served as a precedent for the recognition of privacy by courts in other states.

The Constitutional Right to Privacy A constitutional right to privacy was first recognized in Griswold v. Connecticut in 1965. The U.S. Supreme Court proclaimed that although privacy was not explicitly mentioned in the U.S. Constitution, it was implicitly incorporated into the text. The case arose when Griswold, along with Professor Buxton of Yale Medical School, provided advice to married couples on the prevention of procreation through contraceptives. Griswold was convicted of being an accessory to the violation of a Connecticut law that provided that any person who uses a contraceptive shall be fined not less than $50 or imprisoned not less than 60 days or more than one year or be both fined and imprisoned.50

Justice William Douglas noted that although the right to privacy was not explicitly set forth in the Constitution, this right was “created by several fundamental constitutional guarantees.” According to Justice Douglas, these fundamental rights create a “zone of privacy” for individuals. In a famous phrase, Justice Douglas noted that the various provisions of the Bill of Rights possess “penumbras, formed by emanations from those guarantees . . . [that] create zones of privacy.” Justice Douglas cited a number of constitutional provisions that together create the right to privacy.

The right of association contained in the penumbra of the First Amendment is one; the

Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment’s Self-Incrimination Clause “enables the citizen to create a zone of privacy that Government may not force him to surrender to his detriment.” The Ninth Amendment provides that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

In contrast, Justice Arthur Goldberg argued that privacy was found within the Ninth Amendment, and Justice Harlan contended that privacy is a fundamental aspect of individual “liberty” within the Fourteenth Amendment.

We nevertheless should take note of Justice Hugo Black’s dissent in Griswold questioning whether the Constitution provides a right to privacy, a view that continues to attract significant support. Justice Black observed that “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade [my privacy] unless prohibited by some specific constitutional provision.”

The right to privacy recognized in Griswold guarantees that we are free to make the day- to-day decisions that define our unique personality: what we eat, read, and watch; where we live and how we spend our time, dress, and act; and with whom we associate and work. In a totalitarian society, these choices are made by the government, but in the U.S. democracy, these choices are made by the individual. The courts have held that the right to privacy protects several core concerns:

Sanctity of the Home. Freedom of the home and other personal spaces from arbitrary governmental intrusion Intimate Activities. Freedom to make choices concerning personal lifestyle and an individual’s body and reproduction Information. The right to prevent the collection and disclosure of intimate or incriminating information to private industry, the public, and governmental authorities Public Portrayal. The right to prevent your picture or endorsement from being used in an advertisement without permission or to prevent the details of your life from being falsely portrayed in the media51

In short, as noted by Supreme Court Justice Louis Brandeis, “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They conferred as against the Government, the right to be let alone—the most

comprehensive of rights and the right most valued by civilized men.”52

There are several key Supreme Court decisions on privacy.

In Eisenstadt v. Baird, in 1972, the Supreme Court extended Griswold and ruled that a Massachusetts statute that punished individuals who provided contraceptives to unmarried individuals violated the right to privacy. Justice William Brennan wrote that “if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”53

The Supreme Court, in Carey v. Population Services International, next declared a New York law unconstitutional that made it a crime to provide contraceptives to minors and for anyone other than a licensed pharmacist to distribute contraceptives to persons over 15. Justice Brennan noted that this imposed a significant burden on access to contraceptives and impeded the “decision whether or not to beget or bear a child” that was at the “very heart” of the “right to privacy.”54

In 1973, in Roe v. Wade, the U.S. Supreme Court ruled unconstitutional a Texas statute that made it a crime to “procure an abortion.” Justice Blackmun wrote that the “right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”55 The Supreme Court later ruled that Pennsylvania’s requirement that a woman obtain her husband’s consent unduly interfered with her access to an abortion.56

The zone of privacy also was extended to an individual’s intellectual life in the home in 1969 in Stanley v. Georgia. A search of Stanley’s home for bookmaking paraphernalia led to the seizure of three reels of film portraying obscene scenes. Justice Marshall concluded that “whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.”57

You Decide 2.4

The plaintiffs allege that the Florida law requiring motorcyclists to wear helmets violates their right to privacy under the U.S. Constitution. Are they correct? See Picou v. Gillum, 874 F.2d 1519 (11th Cir. 1989).

Yo u c a n fin d t h e a n s w e r a t h t t pYo u c a n fin d t h e a n s w e r a t h t t p://edge.sagepub.com/lippmanccl5e

The Constitutional Right to Privacy and Same-Sex Relations Between Consenting Adults in the Home Privacy, however appealing, lacks a clear meaning. Precisely what activities are within the right of privacy in the home? In answering this question, we must balance the freedom to be let alone against the need for law and order. The issue of sodomy confronted judges with the question of whether laws upholding sexual morality must yield to the demands of sexual freedom within the home.

In 1986, in Bowers v. Hardwick, the Supreme Court affirmed Hardwick’s sodomy conviction under a Georgia statute. Justice White failed to find a fundamental right deeply rooted in the nation’s history and tradition to engage in acts of consensual sodomy, even when committed in the privacy of the home. He pointed out that sodomy was prohibited by all 13 colonies at the time the Constitution was ratified, and 25 states and the District of Columbia continued to criminally condemn this conduct.58

Bowers v. Hardwick was reconsidered in 2003, in Lawrence v. Texas. In Lawrence, the Supreme Court called in doubt the historical analysis in Bowers and noted that only 13 states currently prohibited sodomy and that in these states, there is a “pattern of nonenforcement with respect to consenting adults in private.” The Court held that the right to privacy includes the fundamental right of two consenting males to engage in sodomy within the privacy of the home.59

You can find Lawrence v. Texas at the study site: http://edge.sagepub.com/lippmanccl5e.

Cases and Comments

Vo y e u r i s mVo y e u r i s m. On April 26, 1999, Sean Glas used a camera to take pictures underneath the skirts of two women working at the Valley Mall in Union Gap, Washington. In one instance, Inez Mosier was working in the women’s department at Sears and saw a light flash out of the corner of her eye. She turned around to discover Glas squatting on the floor a few feet behind her. She noticed a small, silver camera in his hand. The police later confiscated the film and discovered photos of the undergarments of Mosier and another woman. Richard Sorrells, in a separate case, was apprehended after using a video camera to film the undergarments of women and young girls

at the Bite of Seattle food festival at the Seattle Center. Both Glas and Sorrells were convicted of voyeurism for taking photos underneath women’s skirts (“upskirt” voyeurism). The Washington voyeurism statute (Wash. Rev. Code § 9A.44.115(2)(a)) reads,

A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films: another person without that person’s knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy.

The statute defines a place in which a person would have a reasonable expectation of privacy as a place where a “reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being filmed by another,” or as a “place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance.” The Washington Supreme Court interpreted a location where an individual may “disrobe in privacy” to include the bedroom, bathroom, dressing room, or tanning salon. A location in which an individual may reasonably expect to be safe from intrusion or surveillance includes the other rooms in an individual’s home as well as locations where someone would not normally disrobe, but would not expect others to intrude, such as a private suite or office.

The court acquitted the two defendants, ruling that although Glas and Sorrells engaged in “disgusting and reprehensible behavior,” Washington’s voyeurism statute “does not apply to actions taken in purely public places and hence does not prohibit the ‘upskirt’ photographs” taken by Glas and Sorrells. Do you agree that the women had no expectation of privacy? See Washington v. Glas, 54 P.3d 147 (Wash. 2002).

Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e :Yo u c a n fin d m o re c a s e s o n t h e s t u d y s i t e : People v. Piznarski a n da n d Utah v. Holm, http://edge.sagepub.com/lippmanccl5e.

The Right to Bear Arms The American people historically have considered the handgun to be the quintessential self-defense weapon. Handguns are easily accessible in an emergency and require only a modest degree of physical strength to use and cannot easily be wrestled away by an attacker. In the past several decades, various cities and suburbs have placed restrictions on the right of Americans to possess handguns, even for self-defense. The constitutionality of these limitations on the possession of handguns was addressed by two recent U.S. Supreme Court decisions.

The Second Amendment to the U.S. Constitution provides that “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.”

The meaning of the Second Amendment has been the topic of considerable debate. Courts historically focused on the first clause of the amendment that recognizes the importance of a “well regulated Militia” and held that the amendment protects the right of individuals to possess arms in conjunction with service in an organized government militia. In 1939 in United States v. Miller, the U.S. Supreme Court upheld the constitutionality of a federal law prohibiting the interstate shipment of sawed-off shotguns, reasoning that the Second Amendment protections are limited to gun ownership that has “some reasonable relationship to the preservation or efficiency of a well regulated militia.”60

Gun rights activists contended that the Second Amendment protection of the “right of the people to keep and bear Arms” is not limited to members of the militia. They argued that the Second Amendment also protects individuals’ right to possess firearms “unconnected” with service in a militia. The Founding Fathers, according to gun activists, viewed gun ownership as essential to the preservation of individual liberty. A state or federal government could abolish the state national guard and leave citizens unarmed and vulnerable. The framers concluded that the best way to safeguard and to protect the people was to guarantee individuals’ right to bear arms.

In 2008, in District of Columbia v. Heller, the U.S. Supreme Court adopted the view of gun rights activists. The Court majority held that the Second Amendment protects the right of individuals to possess firearms.61 Dick Heller, a special police officer, was authorized to carry a handgun while on duty at the federal courthouse in the District of Columbia (D.C.) and applied for a registration certificate from the D.C. government for a handgun that he planned to keep at home for self-defense. A D.C. ordinance prohibited the possession of handguns and declared that it was a crime to carry an unregistered firearm. A separate portion of the D.C. ordinance authorized the chief of police to issue licenses for one-year periods. Lawfully registered handguns were required to be kept “unloaded and dissembled or bound by a trigger lock or similar device” when not “located” in a place of business or used for lawful recreational activities.

Justice Antonin Scalia, writing for a five-judge majority, held that the D.C. ordinance was unconstitutional because the regulations interfered with the ability of law-abiding citizens to use a firearm for self-defense in the home, the “core lawful purpose” of the right to bear arms. “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

The Court decision noted that while D.C. could not constitutionally ban the possession of firearms in the home, the right to bear arms is subject to limitations. The Court did not limit the ability of states to prohibit possession of firearms by felons and the mentally challenged, to prohibit the carrying of firearms in “sensitive places” such as schools and government buildings, to regulate the commercial sale of arms, to ban the possession of dangerous and unusual weapons, or to require the safe storage of weapons.

Heller, although important for defining the meaning of the Second Amendment, applied only to D.C. and to other federal jurisdictions. In 2010, in McDonald v. Chicago, residents of Chicago, Illinois, and the Chicago suburb of Oak Park, Illinois, challenged local ordinances that were almost identical to the law that the Court struck down as unconstitutional in the federal enclave of Washington, D.C. The Supreme Court addressed whether the Second Amendment right of individuals to bear arms extended to state as well as to the federal government.62

The Fourteenth Amendment had been adopted following the Civil War to ensure former African American slaves’ equal rights, and the Supreme Court in a series of cases had ruled that most of the Bill of Rights was applicable to the states and protected individuals against the state as well as the federal government. The Second Amendment was one of the few amendments in the Bill of Rights that had not been incorporated into the Fourteenth Amendment and made applicable to the states. The result was that even after Heller, the right to possess firearms was not considered a fundamental right protected by the Fourteenth Amendment, and state governments were free to restrict or even to prohibit the possession of firearms.

The Fourteenth Amendment prohibits a state from denying an individual life, liberty, or property without due process of law. The question in McDonald v. Chicago was whether the right to keep and to bear arms was a liberty interest protected under the Due Process Clause of the Fourteenth Amendment. Justice Samuel Alito wrote that self-defense is a “basic right, recognized by many legal systems from ancient times to the present day.” He concluded that the Second Amendment right to possess firearms in the home for the purpose of self-defense is incorporated into the Fourteenth Amendment and is applicable to the states. The right to keep and bear arms for purposes of self-defense is “among the fundamental rights necessary to our system of ordered liberty,” which is “deeply rooted in this Nation’s history and tradition.” A number of state constitutions already protected the right to own and to carry arms. The incorporation of the Second Amendment into the Fourteenth Amendment clearly established that the right to bear arms for the purpose of self-defense is a fundamental right that may not be infringed by state governments.

In 2016, the U.S. Supreme Court in Caetano v. Massachusetts held that the Second Amendment protects Tasers and held that the protection of the Second Amendment is not limited to weapons in existence at the time the Second Amendment was drafted and is not restricted to “weapons of war.”63

The precise meaning of the decisions in Heller and McDonald will not be clear until various state gun control laws are reviewed by the courts. There have been over one thousand state and federal court decisions addressing the Second Amendment since the decision in Heller. State and federal courts in accordance with Heller have upheld laws prohibiting the possession of firearms by juveniles, by undocumented individuals, by “dangerous persons” including individuals convicted of felonies and of domestic violence, and by individuals who have been involuntarily committed to mental institutions. Laws also have been held constitutional that prohibit individuals from possessing firearms in “sensitive places” such as schools and government buildings; and courts also have affirmed the right of private institutions such as churches and businesses to prohibit the possession of firearms on their property. In addition, laws have been affirmed that prohibit the possession of machine guns, assault weapons, and large- capacity ammunition magazines. A number of states either require that an applicant for a handgun permit demonstrate competence in handling firearms, on the grounds that a person who is not well trained in the use of firearms is a menace to himself and to others, and/or require a waiting period before completing the sale of a firearm. Other statutes require that individuals in homes with children take precautions to prevent juveniles from gaining access to the weapons. Several states impose taxes on the commercial sale of firearms and ammunition.

In 2013, in Moore v. Madigan, the Seventh Circuit Court of Appeals held unconstitutional an Illinois flat ban on carrying a loaded firearm within accessible reach outside the home. The only exceptions to this prohibition under Illinois law were police officers and other security personnel, hunters, and members of target shooting clubs. The Seventh Circuit Court of Appeals stated that although both Heller and McDonald held that “‘the need for defense of self, family, and property is most acute’ in the home,” this does not mean “it is not acute outside the home.” The court pointed out that Heller recognized a broader Second Amendment right than the right to have a gun in one’s home when the decision noted that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Confrontations are not limited to the home, and the Illinois law therefore is in violation of individuals’ Second Amendment rights. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2013). In July 2013, the Illinois legislature passed a statute permitting individuals to obtain a license to carry a loaded or unloaded concealed weapon on his or her person or within a vehicle (430 ILCS 66).

You Decide 2.5

George Mason University (GMU) prohibited the possession or carrying of any weapon by any person except a police officer on university property in academic buildings, administrative office buildings, student residence buildings, or dining facilities or while attending sporting, entertainment, or educational events. Rudolph DiGiacinto was not a student at GMU, although he made use of university resources, including the libraries. He argued that his inability to carry a firearm onto university property violated his Second Amendment right to carry a firearm. What is your view? Note that eight states—either as a result of state law or as a result of judicial decision—have “Campus Carry” laws that authorize individuals to carry concealed firearms on some or all areas of college and university campuses. Twenty-one states, in effect, leave this decision to the governing bodies of colleges and universities in the state or leave this decision to individual campuses. See DiGiacinto v. Rector and Visitors of George Mason University, 704 S.E.2d 365 (Va. 2011).

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New York has one of the most restrictive laws and limits possession of firearms outside the home to individuals with a “proper cause.” A “proper cause” includes individuals in specific professions, those in specific locations such as a bank guard, and those desiring a firearm for target practice or hunting or self-defense. Individuals desiring a weapon for self-defense are required to demonstrate a “special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” In other words, only individuals with a real and approved reason to possess handguns may bring a firearm into the “public sphere.” Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012).

In 2017, the United States Court of Appeals for the District of Columbia held a District of Columbia Code provision unconstitutional that required applicants for a concealed carry permit for handguns to demonstrate a “good reason to fear injury to their person or property” or to demonstrate “any other proper reason for carrying a pistol” such as transporting cash or valuables as part of their job. Judge Thomas Griffith writing for a two-judge majority held that the requirements of the District of Columbia law by “the law’s very design” made it impossible for most residents to exercise their Second Amendment rights. “In this way, the District’s regulation completely prohibits most residents from exercising the constitutional rights to bear arms. . . . The good-reason law is necessarily a total ban on exercise of [the Second Amendment] for most D.C. residents.”64

The Supreme Court in the past has declined to rule on the constitutionality of “good reason” concealed carry laws. What is your view of whether the requirement that individuals demonstrate a “good reason” for the concealed carry of firearms is a violation of the Second Amendment?

State laws on open carry of firearms is yet another area of continued disagreement. The laws on open carry are complicated, and the following is a general account of state laws.

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Hand guns. Five states and the District of Columbia prohibit the open carry of handguns in public areas. Thirty states allow the open carry of handguns without a license, although in some instances the gun is required to be unloaded. Fifteen states require a license or permit to openly carry a handgun.

Long guns. Forty-four states allow open carry of long guns. A majority of these states require a license, and three require that the long gun is unloaded.

Another area of continued controversy are assault rifles, which are prohibited in roughly seven states. A number of states following the February 2018 Florida school shootings adopted “extreme risk” or “red flag” laws, which allow the removal of guns from people considered an extreme risk to themselves or to others.

Chapter Summary

The United States is a constitutional democracy. The government’s power to enact laws is constrained by the Constitution. These limits are intended to safeguard the individual against the passions of the majority and the tyrannical tendencies of government. The restrictions on government also are designed to maximize individual freedom, which is the foundation of an energetic and creative society and dynamic economy. Individual freedom, of course, must be balanced against the need for social order and stability. We all have been reminded that “you cannot yell ‘fire’ in a crowded theater.” This chapter challenges you to locate the proper balances among freedom, order, and stability.

The rule of legality requires that individuals receive notice of prohibited acts. The ability to live your life without fear of unpredictable criminal punishment is fundamental to a free society. The rule of legality provides the philosophical basis for the constitutional prohibition on bills of attainder and ex post facto laws. Bills of attainder prohibit the legislative punishment of individuals without trial. Ex post facto laws prevent the government from criminally punishing

acts that were innocent when committed. The constitutional provision for due process ensures that individuals are informed of acts that are criminally condemned and that definite standards are established that limit the discretion of the police. An additional restriction on criminal statutes is the Equal Protection Clause. This prevents the government from creating classifications that unjustifiably disadvantage or discriminate against individuals; a particularly heavy burden is imposed on the government to justify distinctions based on race or ethnicity. Classifications on gender are subject to intermediate scrutiny. Other differentiations are required only to meet a rational basis test.

Freedom of expression is of vital importance in American democracy, and the Constitution protects speech that some may view as offensive and disruptive. Courts may limit speech only in isolated situations that threaten social harm and instability. The right to privacy protects individuals from governmental intrusion into the intimate aspects of life and creates “space” for individuality and social diversity to flourish. The U.S. Supreme Court has held that the Second Amendment protects the right of individuals to possess handguns for the purpose of self-defense in the home. Federal appellate courts have extended this right to bear arms beyond the home in certain circumstances. The full extent of the Second Amendment “right to bear arms” has yet to be determined.

This chapter provided you with the constitutional foundation of American criminal law. Keep this material in mind as you read about criminal offenses and defenses in the remainder of the textbook. We will look at the Eighth Amendment prohibition on cruel and unusual punishment in Chapter 3.

Chapter Review Questions 1. Explain the philosophy underlying the United States’ constitutional democracy. What are the

reasons for limiting the powers of state and federal government to enact criminal legislation? Are there costs as well as benefits in restricting governmental powers?

2. Define the rule of legality. What is the reason for this rule? 3. Define and compare bills of attainder and ex post facto laws. List the various types of ex post

facto laws. What is the reason that the U.S. Constitution prohibits retroactive legislation? 4. Explain void for vagueness and the significance of this concept. 5. Why does the U.S. Constitution protect freedom of expression? Is this freedom subject to any

limitations? 6. What is the difference between the “rational basis,” “intermediate scrutiny,” and “strict

scrutiny” tests under the Equal Protection Clause? 7. Where is the right to privacy found in the U.S. Constitution? What activities are protected

within this right? 8. Write a short essay on the constitutional restrictions on the drafting and enforcement of

criminal statutes. 9. As a final exercise, consider life in a country that does not provide safeguards for civil

liberties. How would your life be changed?

Legal Terminology bills of attainder 14 Bill of Rights 25 constitutional democracy 13 equal protection 20 ex post facto laws 14 fighting words 26 First Amendment 25 hate speech 27 incitement to violent action 26 incorporation theory 25 intermediate level of scrutiny 21 libel 27 minimum level of scrutiny test 20 nullum crimen sine lege, nulla poena sine lege 14 overbreadth 27 privacy 33 rational basis test 20 rule of legality 14 strict scrutiny test 21 true threat 26 void for vagueness 15

TEST YOUR KNOWLEDGE ANSWERS

1. False. 2. True. 3. False. 4. False. 5. False. 6. False.

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