Hey, you! Do you know your rights?

Let’s find out! For each example, write 2-3 sentences.

1st Amendment: Freedom of Religion

Example A. Write/Pair/Share: Would the Church of the Cheesehead be protected religious expression (i.e. a

legal religion entitled to tax breaks and legal protection)? Why or why not?

Example A. Legal. The government cannot ban a religion just b/c it is odd.

Example B. Write/Pair/Share: What if Mr. B tried to spread this religion at school? Legal? Why or why not?

Example B. If Mr. B tried to spread any religion at school, it would be illegal b/c he is a government

employee. “Separation of Church and State.”

Example C. Write/Pair/Share: Students praying at school. Is it legal? Why or why not?

Example C. Individual students praying at school is legal, but if a teacher leads the prayer, it is illegal. (Lemon v Kurtzman, 1971)

Example D. Write/Pair/Share: Is This Protected Religious Expression? Why or why not?.

Example D. Illegal. In most cases, you cannot use religion as an excuse for a criminal act. A notable exception is the use of peyote

by some Native American religious believers.

1st Amendment: Freedom of Religion

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

1st Amendment: Freedom of Religion

•Establishment Clause: There can be no official, government religion of the USA. No Church of England here! • Everson v. Board of Education (1947) government must maintain a wall of separation between church & state (“separation of church and state”). Students can pray on their own initiative and schools can provide space for religious purposes, but official endorsement of prayer is prohibited. Why do you think the Supreme Court decided this way?•Lemon v. Kurtzman established a 3 prong test for any new law:

•It must have a secular purpose.•Its primary effect should not be to advance or inhibit religion.• It must not excessively entangle government in religion

1st Amendment: Freedom of Religion

•Free exercise clause: Prevents interference in individual exercise of religion. •Reynolds v. U.S. (1879) decided that it doesn’t protect polygamy practiced by Mormons. •W.Va. State Bd. of Ed. v. Barnette (1943) allowed Jehovah's Witnesses to refrain from saluting the flag based on their religious beliefs (even in war, state can’t require patriotism if it denies religious freedom). •The government cannot ban a religion just because it is unpopular or strange. •In most cases, you can’t do anything already considered illegal in the name of religion.

1st Amendment: Freedom of Speech

Example A: Write/Pair/Share: Is this legal? Why or why not?

Example A: Yes, it is protected political “speech.” Texas v. Johnson, 1989. This is offensive, but it doesn’t harm anybody. It is also an example of “symbolic speech.”

Example B: Write/Pair/Share: This is a prank. There is no fire. Is this legal (protected)

“speech”? Why or why not?

Example B: Not protected speech, b/c it endangers public safety. Same

as pulling fire alarm as a prank.

Example C: Write/Pair/Share: Is this jacket legal if he wears it in public?

Example C: It is legal (protected) “speech” to dress like this in public.

Example D: Write/Pair/Share: If somebody wore this to school, would it be legal (protected) “speech”?

Example D: No. If it interferes with the functions of an institution (school, military unit, prison) or a private business, wearing this

jacket would not be protected speech.

Example E: Freedom of the Press: A journalist embedded with US forces in Afghanistan reports on

a planned operation to kill a Taliban leader. Write/Pair/Share: Is this legal speech? Why or why

not?

Example E: No. Although the courts have shown deference to the media, recognizing its role in protecting

our democracy, free speech protections are not absolute. Reporters may not reveal secrets that damage

national security, unless in doing so, they uncover evidence of government abuse (whistleblowers).

Example F: A Redwood student writes a “Bark” article alleging that Mr. B is a leading member of the

Russian mafia. The allegation gets on local TV. Write/Pair/Share: Can Mr. B sue the student and/or

the school district for libel?

Example F: Yes. Libel (written) and slander (oral) can lead to a civil suit if:

• Third parties are able to read or hear the speech. A private accusation doesn’t count.

• The aggrieved party is clearly specified (i.e. “Mr. Butkevich” not “A teacher at Redwood.”)

• The aggrieved party must actually be harmed. The damage to Mr. B’s reputation might be extensive enough to harm his career/future job prospects.

1st Amendment—Freedom of Speech

• Preferred-freedoms doctrine: Speech privileged over any other freedom (Holmes) This makes us unique in the world, even among other democracies. – “Inciting ethnic or religious hatred” is illegal in several

European countries. – Germany prohibits Nazi symbols and the sale of “Mein

Kampf.” – France prohibits public servants from wearing a hijab or

“ostentatiously large” crosses or Stars of David. • Balancing test: Speech must be weighed against

other democratic values (Frankfurter)

1st Amendment—Freedom of Speech

• “Speech” includes any actions that express opinions, including writing, demonstrating, etc.

• Americans can publicly criticize the government and each other, even if it’s offensive.

• However, “speech” that threatens individual or public safety is still illegal.

• Defamatory speech, while hard to prove, is also subject to civil penalties if the plaintiff can prove that the defendant deliberately sought to damage his/her reputation.

1st Amendment—Freedom of Assembly

Example A: Write/Pair/Share: Is this sign legal (protected)

assembly? Why or why not?

Example A: This is legal (protected) assembly, as long as nobody blocks

streets, trespasses or threatens anybody with harm.

Example B: Write/Pair/Share: Is this legal (protected) assembly?

Why or why not?

Example B: This is not protected assembly, because the protestor is

threatening somebody.

Example C: These people protest at funerals of gay people and of soldiers killed in

Iraq/Afghanistan. Think/Pair/Share: Is this legal (protected) assembly? Why or why not?

Example C: Partially protected assembly. A federal appeals court ruled that they can rally at funerals, but they must stay at least 300 ft. away.

Example D: Anarchists used the Occupy Oakland protests to attack buildings owned by big

corporations. Think/Pair/Share: Is this legal (protected) assembly? Why or why not?

Example D: Illegal. Destruction of property is not a protected form of assembly.

Example E: Think/Pair/Share: UC Davis during “Occupy” protest. Was the officer’s action legal or did he violate the

right to free assembly? Why or why not?

Example E: Unclear. They were blocking the road illegally. However, UC Davis later compensated the protestors $1 million.

1st Amendment—Freedom of Assembly

• The government may not regulate the content of speech, but can regulate time, place and manner for protests on public property.

• However, violence, inciting violence, closing streets, or trespassing on private property are still illegal.

• “Clear and present danger” rule: Words that endanger public safety are prohibited. The speaker can be held responsible for any resulting damage, even if she/he didn’t take part in any violent acts.

The 2nd Amendment

• Below is the entire amendment. In your opinion, does it clearly allow for individuals to own guns? What limits should there be on this right?• “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.”

Example A: Write/Pair/Share: Can anybody in the U.S. buy a gun?

Who isn’t allowed to buy a gun?

Example A: In most states, felons, minors (under the age of 18 in CA) and violently mentally ill

people are not allowed to buy guns. Everybody else can.

Example B: Write/Pair/Share: Can Americans buy any kind of guns they want? What limits, if any, are there?

Example B: There are very few limits on the kind of guns Americans can buy. CA and a few other states

prohibit assault rifles. Fully automatic rifles and plastic guns are prohibited all over the U.S.

Example C: Write/Pair/Share: Where can Americans legally carry

a gun? Is this prohibited?

Example C: Most states allow concealed carry. Some allow open

carry too. What about CA?

Example D: Write/Pair/Share: When and where is it legal to shoot

somebody?

Example D: 1/2 the states have an “obligation to retreat”—if you can walk away safely, you can’t legally shoot somebody threatening you. The other ½ have “stand your ground” laws

—if somebody threatens you, you can shoot them in self-defense. No need to retreat. All states have “the castle

defense”—in your own home, you can immediately and legally shoot intruders.

2nd Amendment—The Right to Bear Arms• Some believe it only applied to Americans fighting against a

foreign invasion, back when we didn’t have an army. • Others, such as the NRA (National Rifle Association) argue

that it gives every individual the right to own guns with very few limits. The NRA is winning the debate. (DC v. Heller)

Homicide rate, developed nations only. Is this the 2nd Amendment’s fault? What other factors might contribute to this disparity?

The 4th Amendment: Search and SeizureWhen can police enter your home? When can they question, detain, arrest, or search you?

Example A: Write/Pair/Share: Police stop and question Mr. B for driving “a suspicious looking

vehicle.” Mr. B was following traffic laws. They detain him for 30 minutes, despite him asking to go several times. Would this be a legal stop? Why or why not?

Example A: Not a legal stop. Police would need “reasonable suspicion” that Mr. B committed a crime, or matched the description of a suspect,

or Mr. B’s consent, to legally detain and question him.

Example B: Write/Pair/Share: It’s midnight in a school parking lot. Police see a man sitting in his car. Why is

he there? They ask him to open his trunk, but the man says no. They do it anyway and find illegal drugs.

Could this evidence be used against him in court?

Example B: Probably not. Police would need either the driver’s consent to search the car or “probable cause” that he committed

a crime (matching the description of a suspect, smelling like drugs, acting stoned), to legally search his trunk. They can ask

him for ID, briefly question him, and glance inside his car without opening the door/trunk, but that’s about it.

Example C: Write/Pair/Share: Police suspect that a woman is a drug dealer, so they knock on her door and

ask to search her house. The woman says no. Police enter anyway and find drugs, guns, scales, Ziploc bags, and a lot of cash. Could this evidence be used against her in

court? Why or why not?

Example C: No, this was an illegal search. Police would need either the home owner’s consent to search the house or a warrant, signed by a judge. Before issuing the warrant, police would have to

convince the judge that they have “probable cause” (significant evidence) that she is a dealer.

Example D: Write/Pair/Share: Police chase a man suspected of an assault into that same woman’s house. She tries to stop them from entering, but they get past

her and arrest the man. They then find drugs, guns, scales, Ziploc bags, and a lot of cash. Could this evidence

be used against her in court?

Example D: Yes. Even though she did not consent to the search, police do not need a warrant to enter a home when they are in

“hot pursuit” of a suspect, or if there is clear evidence that a crime is taking place inside at that very moment (for example—if they hear a gun shot or see people taking drugs inside). If there

is evidence of criminal activity “in plain sight,” they can use it against her.

4th Amendment—Searches and Seizures

• Police can stop and question somebody if they have “reasonable suspicion” of a crime.

• Police can search somebody if they have “probable cause” to believe they are concealing something illegal.

4th Amendment—Searches and Seizures

• Before searching a suspect’s home, police must ask a judge for a warrant that says who will be arrested and/or what evidence they will search for.

• However, police may enter a home in hot pursuit of a suspect or to stop a crime in progress.

Example A: Write/Pair/Share: A man is charged with murder. At his trial, a judge decides that he

is guilty and sentences him to life in prison. Is this legal under the 5th Amendment? Why or

why not?

Example A: No. The 5th Amendment guarantees people accused of a serious crime the right to a trial

by jury. 12 randomly selected adults from the community decide whether the person is innocent or guilty. The judge is there only to run the trial and

to determine the sentence.

Example B: Write/Pair/Share: A man is convicted of bank robbery, but he has a great lawyer and only serves 2 years. After

he gets out, he puts a video on YouTube with footage of him robbing the same bank and goes on a televised rant mocking the

court. He is arrested, found guilty again, and put back into prison, this time for 10 years. Is this legal under the 5th

Amendment? Why or why not?

Example B: No. The 5th Amendment protects us from “Double Jeopardy.” Nobody can be tried again for the same crime, even if the system

messed up the first time.

Example C: Write/Pair/Share: Police question a murder suspect for 15 minutes. He tells him that he did it. At that point, the

police inform him that anything he says will be used against him in court. He then refuses to talk anymore. Can prosecutors use

his confession in court against him? Why or why not?

Example C: No. The 5th Amendment protects us from “Self-Incrimination” once they arrest and

interrogate a suspect. His confession cannot even be mentioned to the jury. If the police can’t find any

other evidence against him, he must be released.

The 5th Amendment—Legal Rights“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

What is a Grand Jury?• Reserved for serious felonies.• Usually made up of 16 people.• The prosecution presents its evidence, the

defense does not.• 12 out of 16 jurors needed to indict.• Indictment - a formal accusation that a person

has committed a criminal offense.• Is there enough evidence to justify a trial?• If so, the trial takes place before a Petit Jury

(what most people call “a jury”).

The 5th Amendment—Legal Rights“…nor shall be compelled in any criminal case to be a witness against himself…” Prohibits self-incrimination—police forcing people to say things that can be used against them later (Miranda rights).• Only applies to oral statements. Does not apply to voice samples,

finger prints, line ups.

5th Amendment—Legal Rights“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”• Protects against double jeopardy—being tried more than

once on the same charges.• However, you can break both state AND federal laws, which

results in a federal case and a state case. • Does not apply to civil cases. OJ Simpson was acquitted of

killing two people, but then found responsible for their deaths in a civil trial.

6th Amendment—The right to a fair trial. Interpret this image.

Example A: Write/Pair/Share: A violent gang leader is charged with 7 murders. The judge decides that he is so dangerous, his trial has to be held in secret. The public will not be told when and where his trial will happen. Is the judge’s decision legal?

Why or why not?

Example A: No: The 6th Amendment prohibits secret trials, though some evidence that reveals government secrets can be kept from a jury. It requires public trials so that the family and the press can make sure that the trial is fair + a speedy trial so

that the defendant doesn’t stay in jail for years waiting for his/her day in court.

Example B: Write/Pair/Share: A drug cartel leader is put on trial in the United States. The DA says that they have a witness who

saw the cartel leader kill somebody. The defendant’s lawyer asks to question the witness face to face, the judge says no, because the witness might be killed later for testifying. Is this legal? Why

or why not?

Example B: No: The 6th Amendment states that everybody has the right to question witnesses against them in court. In some

cases, the witness may have his/her identify disguised for safety, or be placed in witness protection, but the defendant’s lawyer

still has the right to question the witness.

Example C: Write/Pair/Share: The FBI arrests a foreign spy. They refuse to tell him what crime he is accused of, for national

security reasons. Is the FBI required to tell him the charge? Why or why not?

Example C: Yes. The 6th Amendment requires police to tell suspects what they are charged with, even accused spies.

Otherwise, they will not be able to defend themselves against that charge.

6th Amendment—Criminal Trials• Trials must be speedy and public. No secret

trials!• The right to know the charge.• The right to question witnesses against you.• The right to an attorney.• Defendants are innocent until proven guilty.

The government, with its enormous resources, has the burden of proof, not the defendant.

6th Amendment—Speedy TrialsIn Barker v. Wingo (1972), the Supreme Court set forth four criteria to determine if a defendant’s right to a speedy trial was being violated. In Strunk v. US, the court found that if a delay in trial meets these standards, the case must be dismissed:1. Length of Delay: A delay of a year or more from the date of

arrest or indictment, whichever first occurs, was termed "presumptively prejudicial.”

2. Reason for the delay: The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.

3. Time and manner in which the defendant has asserted this right: If a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.

4. Degree of prejudice to the defendant which the delay has caused.

7th Amendment—Civil Trials• Establishes civil trials as a means of settling

disputes.• Determines which civil trials can be decided by

a judge and which by a jury. Originally the amount was over $20 = jury trial.

The 8th Amendment: “Cruel and Unusual Punishment.”

Example A: Write/Pair/Share: A man is accused of shoplifting. This is the 5th time he has been arrested for stealing from that store. His lawyer asks the judge for bail. The judge says, “This

man will continue to steal if he is allowed out of jail. Bail is set at $500,000.” Is this legal? Why or why not?

Example A: No. The 8th Amendment prohibits “excessive bail” which means that the amount of money a judge can require for a

suspect to be let out of jail pending his trial must match the severity of the crime. However, if the defendant is a “flight risk”

high bail may be set. A wealthy defendant with a private jet might be denied bail all together.

Example B: Write/Pair/Share: The 8th Amendment prohibits “cruel and unusual punishment.” In your

opinion, is hanging a convicted murderer “cruel and unusual”? Should the government be allowed to do

this?

Example B: No. Hanging convicted criminals used to be legal, but the Supreme Court later ruled that hanging is

“cruel and unusual” and replaced it with the electric chair.

Example C: Write/Pair/Share: A serial killer is sentenced to death. The judge orders him executed by the electric

chair. Is this “cruel and unusual” punishment and therefore illegal? Why or why not?

Example C: Not in most states. The electric chair used to be considered “humane” but “evolving standards of decency” have changed the law. Most executions today use lethal injection, which is supposed to be painless.

Do you think this is right or wrong?

8th Amendment—Bail and Punishments

• Bail must be set at an amount of money commensurate with the severity of the crime.

• If the defendants is a “flight risk”, or the crime is particularly severe, bail may be denied.

• Punishments can’t be cruel or unreasonable. That means no torture, no 99 year sentences for shoplifting, etc.

• Some argue that the death penalty should be banned under the 8th Amendment.

Write/Pair/Share: Does the 3 Strikes Law Violate the 8th Amendment?