Term Limits
The rules for eligibility for Congressional office are set forth in the Constitution, but there are no rules that determine term limits for these offices. The case U.S. Term Limits Inc. V. Thornton argues the constitutionality of States determining such limits themselves. Arkansas adopted Amendment 73 to their state Constitution in 1993, which limited Arkansas Representatives to three terms of office and Arkansas Senators to two terms. Supporters of the Amendment argued that the determination of term limits fell under the reserved powers in the Tenth Amendment of the U.S. Constitution and the States’ power to regulate the “Times, Places and Manner of Holding Elections”. However, in the Opinion of the Court, delivered by Justice Stevens, it was pointed out that term limitation does not fall under the reserved powers of the Tenth Amendment because these powers were not held by the States before the Federal Government was created and the Constitution was ratified. The States could not claim this power was “reserved” for them because no representatives were ever formally needed before the centralization of government and therefore no rules existed regarding such representatives. Justice Stevens also argued that even though the States’ do reserve the right to determine the “Times, Places and Manner of Holding Elections”, they cannot decide rules on elections if it goes against the Constitution.
In the previous case of Powell V. McCormack, the Court decided against term limits because the powers to determine eligibility for election are enumerated in the Constitution and should not be further determined. Justice Stevens cited the difference between Powell and U.S. Term Limits was that Powell dealt with nation wide term limits whereas U.S. Term Limits dealt with state-by-state term limits. The case of U.S. Term Limits is more severe because differing term limits for Federal elections in each State threatens the unity of the Federal Government, “Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people.... Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.....” Essentially, allowing individual states to determine term limits threatens the unity of the Federal Government. If the rules governing the government are not uniform, how can we expect them to govern effectively as one entity? Stevens argued that such dissention was unconstitutional because, even though term limits might allow for the influx of fresh ideas and change, it could effectively alter the rules of the government without going through the Amendment process.
In 1996, Arkansas did try to get Congressional Term Limits passed as an Amendment, by passing Article VIII of their state constitution. The case of Cook v. Gralike brought the constitutionally of Article VIII into question. The Article was intended to coerce Arkansas Representatives and Senators to pass a term limiting constitutional Amendment by providing those who did not support such an Amendment “an unfavorable ballot designation” by printing statements like “Disregarded Voters’ Instruction on Term Limits” or “Declined to Pledge Support Term Limits” next to the candidates names on the ballot. Ultimately the Court decided that a state could not use congressional election ballots to pressure representatives into following the principles of the state government effectively hindering their 1st Amendment right to free speech.
Each of these cases demonstrates the Court’s opinion that term limits are not constitutional.
Electoral College
The rules concerning the Electoral College are hazy and the controversy over the 2000 election showed that to the American public. It started because George W. Bush won the election in Florida by a margin of 1,784 votes, which was less than .5 % of the total votes cast and so an automatic machine recount was ordered. This first recount resulted in a smaller margin of victory for Bush so his opponent Al Gore used his right to request a manual recount in Volusia, Palm Beach, Broward, and Miami-Dade counties. The Florida District Court ruled that a 7 day deadline would be put in place, Volusia county could amend its numbers at a later date, and that the Secretary of State of Florida “after ‘considering all attendant facts and circumstances,’ could exercise her discretion in deciding whether to include the late amended returns in the statewide certification.” The Secretary later asked the counties to submit requests to permit late filing of these recounts but she deemed that none of the four counties’ requests were valid. Gore immediately filed an emergency motion in the state court, arguing that the Secretary acted subjectively, but the court denied the motion. Gore appealed to the First District Court of Appeal and then the case passed on to the Florida State Supreme Court, which ordered that the Secretary would halt declaring a winner of the election until further notice from the court. The court ruled on two issues in the court, stating that a difference in sample manual recount and (or a recount only involving a few counties out of the whole state) and a machine count due to the manner in which a ballot was punched was sufficient reason to request a full manual recount, and that because of the Florida Election code which stated that the Secretary “may” ignore late ballot counts it would not rewrite that code but instead extend the deadline for submission on November 26th 2000 and order the Secretary to accept any manual recounts submitted prior to that deadline (effectively extending the original 7 day deadline by 12 days). In the case of Bush V. Palm Beach County Canvassing Board, which was the first of the two major court cases regarding the election, the Supreme Court overturned the decision made by the Florida State Supreme Court and subsequently requested clarifications on the decision, stating that, “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities.
However, Gore did not give up his quest to obtain Florida recounts, which resulted in the case of Bush V. Gore. On November 26th 2000 the results of the election were declared and George W. Bush was the winner of Florida’s 25 electoral votes. The following day Gore filed suit under Section 102.168 of the Florida State Constitution, which states that receiving illegal votes or rejection of legal votes in order to change the results of an election is reason for challenge of the election results. Though the Circuit Court ruled there was insufficient evidence to support Gore’s claim, he soon appealed to the First District Court of Appeals and the case moved on to the Florida Supreme Court and then the Supreme Court. The ruling was that Gore did not have sufficient evidence that 3,300 ballots were supposedly not legal, but that he did have sufficient evidence that 9,000 ballots failed to count the votes for president when counted by the machine. As a result of the recount 383 votes were added to Gore’s total count. The recount ordered by the Florida Supreme Court because the ruling violated the Florida Election Code by remedying a violation of the safe-harbor provision, which allows the states to choose their own electors by a specified deadline without Congressional interference.
These two cases caused a lot of controversy over the 2000 election, especially because they delayed the declaration of a winner and showed the problems with punch hole ballots.
-Christie
Thursday, March 5, 2009
Monday, March 2, 2009
Student Searches
The constitutionality of student searches in public schools has been hotly contested since at least 1985, when the US Supreme Court adopted an “unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards” in response to the case of New Jersey v T. L. O. As Justice Brennan warned, this did indeed seem to “portend a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens.” Subsequent cases, those of Vernonia School District v Wayne Acton of 1995 and Board of Education of Pottawatomie County v Lindsay Earls et Al. of 2002, showed that this was indeed correct, in that the interpretation of the T. L. O. case became gradually more lenient, allowing for greater restriction of students’ right to privacy.
New Jersey v T. L. O concerned the search of a student’s purse. T. L. O. had been discovered smoking in the bathroom and denied not only that she had been smoking but also claimed she did not smoke at all to the Assistant Vice Principal Theodore Choplick. In response, Mr. Choplick proceeded to search her bag. He found cigarettes and removed them, despite the fact that possession of cigarettes was not against school rules, merely smoking. When he took out the cigarettes, he saw wrapping papers in T. L. O.’s purse, and expecting to find marijuana, searched her purse in greater detail, including a zippered pocket. Mr. Choplick found not only marijuana but also evidence that she was selling it to other students, and this evidence was turned over to her mother and the police. When she was prosecuted in juvenile court, T. L. O. moved to suppress the evidence, which she said “was tainted by the allegedly unlawful search” under the Fourth Amendment. The New Jersey Supreme Court upheld that Mr. Choplick’s search of T. L. O.’s purse was indeed a violation of her Fourth Amendment, and moved to suppress the evidence.
While the Supreme Court ruled that “the Fourteenth Amendment protects the rights of students against encroachment by public school officials,” it also created a new test to judge the “reasonableness” of a search, which it said “depends on the context within which a search takes place.” This test of reasonableness entirely discarded the previous precedents of the necessity to either obtain a warrant for the search or to prove “probable cause to believe that a violation of the law has occurred.” This reasonableness test required only that the test was based on a suspicion that the test would turn up evidence that the student was violating either school rules or laws, and that the test was not “excessively intrusive.” By this test, the Supreme Court stated that the initial search for cigarettes in T. L. O.’s purse was reasonable, and that upon committing the “natural reaction to finding them”–that of picking them up–his suspicion that the rolling papers had to do with marijuana was enough to justify the second search. Thus the Court overturned New Jersey’s previous decision. The dissent argued that this new “reasonableness” test was too vague for officials to interpret, that the right to privacy was not given sufficient weight in the decision, and the subsequent search of T. L. O.’s purse for marijuana was unconstitutional.
In Veronia School District v Wayne Acton, the policy under discussion was that of the athletics programs. All students that wished to participate in school athletics were required to undergo urine testing for drugs before they started, at random times during their participation, and under suspicion of drug-related behavior. Any student that refused was not allowed to play, as in the case of Wayne Acton, a seventh grader at the time. The administration testified that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion.” Thus, the problem was widespread and demonstrated “a compelling need for the program.”
The Supreme Court found that “special needs made the warrant and probable-cause requirement impracticable.” Since students participating in athletics already experienced a lessening of privacy, especially in the locker room, the addition of a urine-testing program was “negligible.” Also, T. L. O. emphasized that school officials acted, in essence, as the children’s parents, “permitting a degree of supervision and control that could not be exercised over free adults.” They found that the “risk of immediate physical harm” to a drug-user playing sports was “particularly high,” as were the harmful “physical, psychological, and addictive effects” of drug use during school years. As children’s safety was one of the school officials’ responsibilities, any policy that could curb the use of drugs would be at least partially justified. The Court did take care to include the caveat that suspicionless drug testing would “pass constitutional muster in other contexts.” They remanded the case to the Court of Appeals for “further proceedings consistent with this opinion.”
The dissent made sure to point out that blanket searches, “because they can involve ‘thousands or millions’ of searches, ‘pose a greater threat to liberty’ than do suspicion-based ones.” Justice O’Connor states that since a suspicion-based search would not necessarily be ineffectual, the Court has no right to declare blanket searches as a viable alternative. Only once suspicion-based searches were declared unviable could other alternatives be approved. The dissent also feels that the concern for abuse with such a program has been overblown, seeing that “schools already have adversarial, disciplinary schemes to investigate student wrongdoing.” Justice O’Connor also points out that most of the evidence used to demonstrate the need for a drug-testing program would seem to give rise to “reasonable suspicion” that could then be used as reason to test specific students for drug use. While the suspicion-based scheme “may not be as effective,” “there is nothing new in the realization that Fourth Amendment protections come with a price.” Finally, the dissent would overturn the decision against Acton, especially seeing as there was “virtually no evidence” of a drug problem in the grade school Acton attended, only within the district high schools.
The most recent case, decided in 2002, was that of Board of Education of Independent School District No. 92 of Pottawatomie County et al. v Lindsay Earls et al. This case was similar to that of Vernonia, except that the mandatory testing was extended to all participants of extracurricular activities, not just sports. Also, it was argued that there was no “special need for testing students” because the “drug testing policy neither addressed a proven problem nor promised to bring any benefit.”
Applying “the principles of Vernonia to the somewhat different facts of this case,” the Supreme Court concluded that “Tecumseh’s policy is also constitutional.” Students supposedly were subject to rules under their extracurricular activities that were different from those of the regular school, and so had “a limited expectation of privacy.” Also, the collection of urine was again deemed to be a “negligible intrusion” upon students’ privacy. Finally, the Court “had not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing.” In this vein, the policy of Tecumseh “effectively serves the School District’s interest in protecting the health and safety of its students.”
This creates a dangerous precedent. By this justification, practically any search could be justified as “protecting the health and safety of students,” even if the privacy of those students is unequivocally compromised. The dissent stated this well: “many children, like many adults engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities.” While they uphold the Vernonia decision, they state that the voluntary nature of athletics, combined with the increased danger of drug-use related injuries, were the only things that created “risks that schools have a duty to mitigate.” Finally, if there was “no concrete danger, evidence of a particular problem, or increased risk,” the need revealed was not “special.”
Beginning with the creation of the test of “reasonableness,” the individual rights of students to privacy deteriorated over time. Gradually, the need for the safety of the students gained increased precedence over the right to privacy. This interpreted reading of the Fourth Amendment did away entirely for the need for a warrant or “probable cause” before a search. Students were left with very little, except that the cases still only apply to mandatory testing for voluntary programs. It is not difficult, however, to see how the growing precedent could be applied favorably towards mandatory blanket testing for all public school students.
-Ellen
New Jersey v T. L. O concerned the search of a student’s purse. T. L. O. had been discovered smoking in the bathroom and denied not only that she had been smoking but also claimed she did not smoke at all to the Assistant Vice Principal Theodore Choplick. In response, Mr. Choplick proceeded to search her bag. He found cigarettes and removed them, despite the fact that possession of cigarettes was not against school rules, merely smoking. When he took out the cigarettes, he saw wrapping papers in T. L. O.’s purse, and expecting to find marijuana, searched her purse in greater detail, including a zippered pocket. Mr. Choplick found not only marijuana but also evidence that she was selling it to other students, and this evidence was turned over to her mother and the police. When she was prosecuted in juvenile court, T. L. O. moved to suppress the evidence, which she said “was tainted by the allegedly unlawful search” under the Fourth Amendment. The New Jersey Supreme Court upheld that Mr. Choplick’s search of T. L. O.’s purse was indeed a violation of her Fourth Amendment, and moved to suppress the evidence.
While the Supreme Court ruled that “the Fourteenth Amendment protects the rights of students against encroachment by public school officials,” it also created a new test to judge the “reasonableness” of a search, which it said “depends on the context within which a search takes place.” This test of reasonableness entirely discarded the previous precedents of the necessity to either obtain a warrant for the search or to prove “probable cause to believe that a violation of the law has occurred.” This reasonableness test required only that the test was based on a suspicion that the test would turn up evidence that the student was violating either school rules or laws, and that the test was not “excessively intrusive.” By this test, the Supreme Court stated that the initial search for cigarettes in T. L. O.’s purse was reasonable, and that upon committing the “natural reaction to finding them”–that of picking them up–his suspicion that the rolling papers had to do with marijuana was enough to justify the second search. Thus the Court overturned New Jersey’s previous decision. The dissent argued that this new “reasonableness” test was too vague for officials to interpret, that the right to privacy was not given sufficient weight in the decision, and the subsequent search of T. L. O.’s purse for marijuana was unconstitutional.
In Veronia School District v Wayne Acton, the policy under discussion was that of the athletics programs. All students that wished to participate in school athletics were required to undergo urine testing for drugs before they started, at random times during their participation, and under suspicion of drug-related behavior. Any student that refused was not allowed to play, as in the case of Wayne Acton, a seventh grader at the time. The administration testified that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion.” Thus, the problem was widespread and demonstrated “a compelling need for the program.”
The Supreme Court found that “special needs made the warrant and probable-cause requirement impracticable.” Since students participating in athletics already experienced a lessening of privacy, especially in the locker room, the addition of a urine-testing program was “negligible.” Also, T. L. O. emphasized that school officials acted, in essence, as the children’s parents, “permitting a degree of supervision and control that could not be exercised over free adults.” They found that the “risk of immediate physical harm” to a drug-user playing sports was “particularly high,” as were the harmful “physical, psychological, and addictive effects” of drug use during school years. As children’s safety was one of the school officials’ responsibilities, any policy that could curb the use of drugs would be at least partially justified. The Court did take care to include the caveat that suspicionless drug testing would “pass constitutional muster in other contexts.” They remanded the case to the Court of Appeals for “further proceedings consistent with this opinion.”
The dissent made sure to point out that blanket searches, “because they can involve ‘thousands or millions’ of searches, ‘pose a greater threat to liberty’ than do suspicion-based ones.” Justice O’Connor states that since a suspicion-based search would not necessarily be ineffectual, the Court has no right to declare blanket searches as a viable alternative. Only once suspicion-based searches were declared unviable could other alternatives be approved. The dissent also feels that the concern for abuse with such a program has been overblown, seeing that “schools already have adversarial, disciplinary schemes to investigate student wrongdoing.” Justice O’Connor also points out that most of the evidence used to demonstrate the need for a drug-testing program would seem to give rise to “reasonable suspicion” that could then be used as reason to test specific students for drug use. While the suspicion-based scheme “may not be as effective,” “there is nothing new in the realization that Fourth Amendment protections come with a price.” Finally, the dissent would overturn the decision against Acton, especially seeing as there was “virtually no evidence” of a drug problem in the grade school Acton attended, only within the district high schools.
The most recent case, decided in 2002, was that of Board of Education of Independent School District No. 92 of Pottawatomie County et al. v Lindsay Earls et al. This case was similar to that of Vernonia, except that the mandatory testing was extended to all participants of extracurricular activities, not just sports. Also, it was argued that there was no “special need for testing students” because the “drug testing policy neither addressed a proven problem nor promised to bring any benefit.”
Applying “the principles of Vernonia to the somewhat different facts of this case,” the Supreme Court concluded that “Tecumseh’s policy is also constitutional.” Students supposedly were subject to rules under their extracurricular activities that were different from those of the regular school, and so had “a limited expectation of privacy.” Also, the collection of urine was again deemed to be a “negligible intrusion” upon students’ privacy. Finally, the Court “had not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing.” In this vein, the policy of Tecumseh “effectively serves the School District’s interest in protecting the health and safety of its students.”
This creates a dangerous precedent. By this justification, practically any search could be justified as “protecting the health and safety of students,” even if the privacy of those students is unequivocally compromised. The dissent stated this well: “many children, like many adults engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities.” While they uphold the Vernonia decision, they state that the voluntary nature of athletics, combined with the increased danger of drug-use related injuries, were the only things that created “risks that schools have a duty to mitigate.” Finally, if there was “no concrete danger, evidence of a particular problem, or increased risk,” the need revealed was not “special.”
Beginning with the creation of the test of “reasonableness,” the individual rights of students to privacy deteriorated over time. Gradually, the need for the safety of the students gained increased precedence over the right to privacy. This interpreted reading of the Fourth Amendment did away entirely for the need for a warrant or “probable cause” before a search. Students were left with very little, except that the cases still only apply to mandatory testing for voluntary programs. It is not difficult, however, to see how the growing precedent could be applied favorably towards mandatory blanket testing for all public school students.
-Ellen
If you don't get pregnant you won't have to worry about this:abortion
Privacy has always been an important right that Americans have enjoyed since the formation of this country, and the ratification of the constitution. While not stated in the constitution as a full fledge right like freedom of speech or right to bear arms, many of the amendments of the Bill of Rights have created “ Zones of Privacy”. In addition to that the 14th Amendment’s Due Process Clause says, “that no State shall deprive any persons of life, liberty, or property, without due process of law”. So it is no surprise when there have been many cases in the Supreme Court that have said that certain laws have violate their right to privacy, especially on the issues of contraceptives and abortion. While this country has prided itself as a democracy allowing people to choose what they do, for a time in the 19th century there were a of statues that forbade people from doing certain things.
For the longest time in Connecticut, people were not allowed to use contraceptives. General Statutes of Connecticut (1958 rev) 53-32 said “ Any person who uses any drug, medicinal article or instrument for the propose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days not more than on year or both fined and imprisoned”. To go along with that statue 54-196 said, “Any person who assists, abets, counsels, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender”. Griswold v. Connecticut (1965) involves the state, and Appellant Griswold (the Executive Director of Planned Parenthood League of Connecticut) and Appellant Buxton (a license physician and a professor at Yale Medical School). Both of these people were arrested because they gave information, instruction, and medical advice to married persons on how to prevent conception violating the statues of the state. When this case was taken to the Supreme Court a number of justifications were used to prove that these statues were not constitutional.
Things such as association of people, and the right to educated a child in a school of the parents choice, although not in The Constitution was argued to be construed by the First Amendment. By using the pervious cases such as Meyer v Nebraska or NAACP v. Alabama, the first amendment is said to have a Penumbra that “privacy is protective from government intrusion” The Fourth and Fifth Amendment are protection against the government invasions of a man’s home and private life. With all these amendments claiming privacy as one of things that come bundled, arresting these people for wanting, and teaching ways to prevent contraceptives becomes unconstitutional because it violates the private relationship that they have. Eventually, the court said that what goes on in marriage is between the two in the relationship, and it would repulsive to allow police to search marital bedrooms”. All of these penumbras that were found in the Amendments that formed the “zones of privacy” created this new right that before was never outline in the Constitution. Griswold v. Connecticut as result became the bases for which Roe v. Wade made its argument.
Roe Vs Wade takes this notion of privacy to another level because it deals with a woman’s right to do to her body behind close doors. In Texas during the time there were State Penal Codes numbered 1191-1194 and 1196 Jane Roe, whom was a single pregnant woman (who used this name as a pseudo name) living in Dallas County, Texas was denied legal abortion because she her life was not in danger if she continued the pregnancy. Because of this, Roe claimed that the Texas statues were unconstitutionally vague and they like in the case of Griswold v. Connecticut abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteen Amendments (which is includes the Due Process Clause). Two other groups of people also involved minorly in this case: Dr. James Hubert Hallford and John and Mary Doe. Dr. Hallford stated that he felt that is allegations that he violated the Texas Abortion Statues were unfair because he felt that the statues of Texas were too vague for him to determine if they were in or outside the terms stated by Article 1196. As a result Hallford claimed that his privacy in the doctor patient relationship and his own right to practice medicine were violated that were what he claimed protected by the same Amendments as Roe claimed she got violated. The Does on the other hand had the same issues with the Texas abortion laws as Roe. However the main focus in the case was still on Roe and her claim that the right to have an abortion is in the concept of personal “Liberty” in the Fourteen Amendment’s Due Process clause, and the personal martial, familial, and sexual privacy said to be protected by the Bill or Right, and its penumbras.
In addition to having these rights, it was claimed that the laws that were in place, were not “ancient or common law” but instead the latter half of the 19th century. Common law according to the court was said to believe that abortion before the animation of the fetus in the utero was not a bad offense, and before that time the embryo was part of the mother. It was not until the mid to late 19th century that when the time of animation could not been determine was there a law made that no abortion was to be performed unless it was to save the life of the mother. However, an interesting point was made, that at the time of the adoption of The Constitution abortions were okay, and that a person was not defined in the constitution, making it seem that the founding fathers made it seem okay that it was okay to get an abortion. In the end, the court said that pregnancy was not really private as martial issues and involves the interest of the state, but it is ultimately the woman’s decision to make the decision whether or not to have an abortion, and would deem it okay for a woman in any state to have one with in the 1st trimester with out any state regulation. In the 2nd trimester the states can regulate abortions as long as the it is seen "in ways that are reasonably related to maternal health" but ultimately giving the decisions to the mothers in states that chose not to regulate, and that in the 3rd trimester abortions can only be gotten if it affects the mothers health.
Many years later, the Supreme Court listened to the case Planned Parent hood of Southeastern Pennsylvania v. Robert P. Casey, which is a direct issue of Roe V. Wade.This case was spurred when the Pennsylvania Abortion Control Act(1989) was found to go against the clauses in Roe v.Wade. This act made abortions harder to get because of 5 of its provisions: informed consent, which required doctors to give information about the health risks and complications that could occur with getting an abortion, spousal consent, which required the woman to give their husband notice before having an abortion, parental consent, which required minors to ask permission from their parents before having the abortion, a 24 waiting period for a women to think about getting an abortion, and the placement of a certain reporting requirements on places that provide abortion services. Five abortion clinics and one doctor brought this up to the court because they saw that this piece of legislation was unconstitutional.
This was seen as an attempt to keep the interest of the potential life at hand. All provisions but the spousal consent was deem constitutional because it not violate the 14th Amendment’s Due Process Clause because all of the other provisions still allowed the woman to get an abortion. In addition to this the court said that it had to “draw the line at viability” for a woman to decide to terminate her pregnancy rather than using the trimester system because of stare decisis, and that like in Roe, there is a time after viability that the unborn child can live outside the womb, and that makes it “the object of the states protection that now overrides the rights of the woman”.
While it does give the woman to have an abortion before the unborn child has reach viability, which would be considered the 1st trimester because the state“ important and legitimate interest” in potential life. But in this current state of the United States’ Economy how sincere is the state in its interest in potential life when a potential human being is known to have a mental disease and suppose the mother did not know she was pregnant until it was too late, and would have to go on state programs in order to survive? It is easy for the state to say they have an interest in potential life, but at this current time states such as Arizona do not have interest in educating human life that is already born.
In a time where there is genetic testing for diseases, and mental diseases it seems that it would be in the states best interest to insure the productivity of the state, to tide down the potential liabilities that can occur with children whom are know to be disable. All abortions seem to be okay throughout all this cases if it protects the health of the mother, but one thing that seems to be overlooked is the health of the child. While there are test now, that can tell if the child is going to have a deficiency, how about if the mother does not make up her mind about the abortion until after the point of viability? Is it fair to bring a child into this world, who may not get the benefit of a normal life? And back to the health of the mother, does having a child whom has a problem protect the mental health of the mother? This of course is not limited to health problems, but social economic problems as well. If there are a lot of kids born into poverty, and has a slim chance of getting out, is that in that kids and the states interest? There are all these things that are overlooked by ideology about protecting life, but it is not worth it if the life already living. Ultimately, it is important to let the women have the privacy to make the decision to have an abortion because only she knows what kind of environment that child will be raised in.
—Angelo
For the longest time in Connecticut, people were not allowed to use contraceptives. General Statutes of Connecticut (1958 rev) 53-32 said “ Any person who uses any drug, medicinal article or instrument for the propose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days not more than on year or both fined and imprisoned”. To go along with that statue 54-196 said, “Any person who assists, abets, counsels, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender”. Griswold v. Connecticut (1965) involves the state, and Appellant Griswold (the Executive Director of Planned Parenthood League of Connecticut) and Appellant Buxton (a license physician and a professor at Yale Medical School). Both of these people were arrested because they gave information, instruction, and medical advice to married persons on how to prevent conception violating the statues of the state. When this case was taken to the Supreme Court a number of justifications were used to prove that these statues were not constitutional.
Things such as association of people, and the right to educated a child in a school of the parents choice, although not in The Constitution was argued to be construed by the First Amendment. By using the pervious cases such as Meyer v Nebraska or NAACP v. Alabama, the first amendment is said to have a Penumbra that “privacy is protective from government intrusion” The Fourth and Fifth Amendment are protection against the government invasions of a man’s home and private life. With all these amendments claiming privacy as one of things that come bundled, arresting these people for wanting, and teaching ways to prevent contraceptives becomes unconstitutional because it violates the private relationship that they have. Eventually, the court said that what goes on in marriage is between the two in the relationship, and it would repulsive to allow police to search marital bedrooms”. All of these penumbras that were found in the Amendments that formed the “zones of privacy” created this new right that before was never outline in the Constitution. Griswold v. Connecticut as result became the bases for which Roe v. Wade made its argument.
Roe Vs Wade takes this notion of privacy to another level because it deals with a woman’s right to do to her body behind close doors. In Texas during the time there were State Penal Codes numbered 1191-1194 and 1196 Jane Roe, whom was a single pregnant woman (who used this name as a pseudo name) living in Dallas County, Texas was denied legal abortion because she her life was not in danger if she continued the pregnancy. Because of this, Roe claimed that the Texas statues were unconstitutionally vague and they like in the case of Griswold v. Connecticut abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteen Amendments (which is includes the Due Process Clause). Two other groups of people also involved minorly in this case: Dr. James Hubert Hallford and John and Mary Doe. Dr. Hallford stated that he felt that is allegations that he violated the Texas Abortion Statues were unfair because he felt that the statues of Texas were too vague for him to determine if they were in or outside the terms stated by Article 1196. As a result Hallford claimed that his privacy in the doctor patient relationship and his own right to practice medicine were violated that were what he claimed protected by the same Amendments as Roe claimed she got violated. The Does on the other hand had the same issues with the Texas abortion laws as Roe. However the main focus in the case was still on Roe and her claim that the right to have an abortion is in the concept of personal “Liberty” in the Fourteen Amendment’s Due Process clause, and the personal martial, familial, and sexual privacy said to be protected by the Bill or Right, and its penumbras.
In addition to having these rights, it was claimed that the laws that were in place, were not “ancient or common law” but instead the latter half of the 19th century. Common law according to the court was said to believe that abortion before the animation of the fetus in the utero was not a bad offense, and before that time the embryo was part of the mother. It was not until the mid to late 19th century that when the time of animation could not been determine was there a law made that no abortion was to be performed unless it was to save the life of the mother. However, an interesting point was made, that at the time of the adoption of The Constitution abortions were okay, and that a person was not defined in the constitution, making it seem that the founding fathers made it seem okay that it was okay to get an abortion. In the end, the court said that pregnancy was not really private as martial issues and involves the interest of the state, but it is ultimately the woman’s decision to make the decision whether or not to have an abortion, and would deem it okay for a woman in any state to have one with in the 1st trimester with out any state regulation. In the 2nd trimester the states can regulate abortions as long as the it is seen "in ways that are reasonably related to maternal health" but ultimately giving the decisions to the mothers in states that chose not to regulate, and that in the 3rd trimester abortions can only be gotten if it affects the mothers health.
Many years later, the Supreme Court listened to the case Planned Parent hood of Southeastern Pennsylvania v. Robert P. Casey, which is a direct issue of Roe V. Wade.This case was spurred when the Pennsylvania Abortion Control Act(1989) was found to go against the clauses in Roe v.Wade. This act made abortions harder to get because of 5 of its provisions: informed consent, which required doctors to give information about the health risks and complications that could occur with getting an abortion, spousal consent, which required the woman to give their husband notice before having an abortion, parental consent, which required minors to ask permission from their parents before having the abortion, a 24 waiting period for a women to think about getting an abortion, and the placement of a certain reporting requirements on places that provide abortion services. Five abortion clinics and one doctor brought this up to the court because they saw that this piece of legislation was unconstitutional.
This was seen as an attempt to keep the interest of the potential life at hand. All provisions but the spousal consent was deem constitutional because it not violate the 14th Amendment’s Due Process Clause because all of the other provisions still allowed the woman to get an abortion. In addition to this the court said that it had to “draw the line at viability” for a woman to decide to terminate her pregnancy rather than using the trimester system because of stare decisis, and that like in Roe, there is a time after viability that the unborn child can live outside the womb, and that makes it “the object of the states protection that now overrides the rights of the woman”.
While it does give the woman to have an abortion before the unborn child has reach viability, which would be considered the 1st trimester because the state“ important and legitimate interest” in potential life. But in this current state of the United States’ Economy how sincere is the state in its interest in potential life when a potential human being is known to have a mental disease and suppose the mother did not know she was pregnant until it was too late, and would have to go on state programs in order to survive? It is easy for the state to say they have an interest in potential life, but at this current time states such as Arizona do not have interest in educating human life that is already born.
In a time where there is genetic testing for diseases, and mental diseases it seems that it would be in the states best interest to insure the productivity of the state, to tide down the potential liabilities that can occur with children whom are know to be disable. All abortions seem to be okay throughout all this cases if it protects the health of the mother, but one thing that seems to be overlooked is the health of the child. While there are test now, that can tell if the child is going to have a deficiency, how about if the mother does not make up her mind about the abortion until after the point of viability? Is it fair to bring a child into this world, who may not get the benefit of a normal life? And back to the health of the mother, does having a child whom has a problem protect the mental health of the mother? This of course is not limited to health problems, but social economic problems as well. If there are a lot of kids born into poverty, and has a slim chance of getting out, is that in that kids and the states interest? There are all these things that are overlooked by ideology about protecting life, but it is not worth it if the life already living. Ultimately, it is important to let the women have the privacy to make the decision to have an abortion because only she knows what kind of environment that child will be raised in.
—Angelo
Saturday, February 28, 2009
Term Limits/ Electoral College
Term Limits
Is it constitutional for states to change the term limits from what is stated in the Constitution? The Supreme Court case of U.S. Term Limits Inc. v. Thorton set a standard for States being able to limit terms of representatives in office. The Supreme Court case of Cook v. Gralike then followed as a response. Both of these cases were deemed unconstitutional because of the changes from the Constitution. These two court cases show an example for other cases to follow.
The case of U.S. Term Limits Inc. v. Thorton argues the constitutionality of the Arkansas Constitution. Amendment 73 of the Arkansas Constitution says that, “Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas. Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas.” This amendment goes against the qualifications for office set forth in the Constitution. The only qualifications in Article I of the Constitution are “No person shall be a representative who shall not have attained the age of 25 years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." The reason that Amendment 73 might be unconstitutional is because it adds to what is said in the Constitution.
The Constitution does not say anything about States being able to States being able to set their own term limits, this is where the question of constitutionality comes in. Even though the Constitution does not talk about the States, it should be assumed that they have to stick with the term limits in the Constitution.
On November 13, 1992 respondent Robbie Hill filed a complaint in the Circuit Court of Arkansas saying that Amendment 73 of the Arkansas Constitution is unconstitutional because it sets limits that are not stated in the Constitution. Arkansas Supreme Court decided that the Constitutionality depends on two things. The first is whether the Constitution prohibits States from adding or altering the Constitution limits and the second is if the Constitution does forbid alters, whether Amendment 73 is formulated as restriction to be on the ballot or outright disqualification from running.
The U.S. Supreme Court decided by a vote of 5 to 4 that it is unconstitutional for States to alter the qualifications set forth in the Constitution. In order for the court to make this decision they looked back at the case of Powell v. McCormick (1969). This case dealt with Qualification Clauses in the exclusion of a Member of Congress. The conclusion of this case was the Congress cannot add or alter the qualifications set in the Constitution. These two cases set a clear ruling for adding or altering to the Constitution.
In 1996, as a response to the Supreme Court’s decision of the case U.S. Term Limits, Inc. v. Thorton, Missouri voters adopted an amendment to Article VIII of their Constitution. This amendment would “instruct” each member of Missouri’s congressional delegation “to use all of his or her delegated powers to pass the Congressional Term Limits Amendment.” The amendment would limit the House of Representatives term limit to three terms and two terms in the Senate. The Amendment also directs the Missouri Secretary of State to determine whether a statement on a candidate’s term limits should be placed by his or her name on the election ballot.
Don Gralike brought the issue to court to stop the Secretary from implementing the amendment. The District Court agreed with Gralike and found that Article VIII went against what was previously stated in the Constitution. This was because the court decided it added additional qualifications that burdened a candidates first amendment rights to speak freely on the issue of term limits.
Both cases show a clear example of what the Supreme Court sees as Constitutional when it comes to term limits. These two cases were very similar and the outcomes were also the same.
Electoral College
The cases of George W. Bush v. Palm Beach and George W. Bush v. Albert Gore were both surrounding the 2000 election and the recount. In a short period of time two cases arose arguing the recount of Florida. The second case, George W. Bush v. Albert Gore, is a reaction to the decision made in the first case.
The 2000 election caused many complications in Florida. George W. Bush v. Palm Beach surrounds the issue of recount in Florida. On November 8, 2000, the day after the election, the votes in Florida were 2,909,135 for Bush and 2,907,351 for Gore. Bush won by 1,784 votes, but because this was less than one half percent of the votes cast, an automatic recount occurred. After the recount the margin by which Bush had won was much smaller. As a reaction to this, Gore requested a recount in four counties: Volusia, Palm Beach, Broward, and Miami- Dade. The two parties than had conflicting views on the recount because of the Florida Election Code. Then on November 14th, as an action brought on from Volusia and joined by Palm Beach, Gore, and the Florida Democratic Party, the Florida Circuit Court decided that a seven day deadline was mandatory, but Volusia could turn theirs in at a later date. It was also decided that the Secretary of State could use her discretion to decide whether to include the late amended returns in a state-wide certification.
At this point all of the rulings from the District Court seem to make sense, but the power that was given to the Secretary of State. If one of the counties were to turn in their recount after the seven day deadline it is possible that those votes are not going to count. But if you are missing a section of votes, then the state is not representing all of their citizens.
With the decision that the Secretary was given she set a criteria which would decide what to do with late recounts. The Secretary said that by 2 pm on November 15th, any county that wants to turn in late recounts must submit a written statement of the facts and circumstances as to why the recount is late. Four counties then submitted late recounts and the Secretary decided that none of them seemed to need an extension. Then on November 16th as a reaction to the Secretary’s decision, the Florida Democratic Party and Gore filed a motion in the State Court, “arguing that the Secretary had acted arbitrarily and in contempt of the court’ s earlier ruling.” The next day the court denied this motion, saying that the Secretary had not acted out of line and had used the earlier ruling of the court. They then appealed to the First District Court of Appeal which sent the issue to the Florida Supreme Court. The Court said that a final count could not be declared until order from the Court.
People around the country were growing anxious as the decision was continuing to be put off. The issue of each county having to recount their votes had grown into much bigger deal. Finally on November 21st the Supreme Court made a decision. In the court’s mind there were two principle questions: “whether a discrepancy between an original machine return and a sample manual recount resulting from the way a ballot has been marked or punched is an “error in vote tabulation” justifying a full manual recount; and how to reconcile what it spoke of as two conflicts in Florida’ s election laws.” For the first issue the court decided that a discrepancy between a sample manual recount and machine count due to the way in which the ballot was marked does not constitute an error in tabulation sufficient for a manual recount. When it came to the second issue the court decided that the voting laws are contradictory. The court said that what the Secretary was ok because of what was said in the Declaration Rights of the State of Florida Constitution, but the court stated, “Because of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy.” The court set a deadline of November 26th at 5 pm for the recounts. The court also directed the Secretary to accept manual counts submitted prior to the deadline.
The decision made by the Supreme Court of Florida allowed all of the counties to have time to finish their votes. The court acted both constitutionally and democratically when it came to their decision. This case was not the end of the 2000 election. After the Supreme Court made these decisions the case of George W. Bush v. Albert Gore opened, and the recounting continued.
The court case of George W. Bush v. Albert Gore is continuing from the earlier case in November. On November 26th the results of the election were in and declared Bush the winner of Florida’s 25 electoral votes. The next day Gore filed a complaint in Leon County Circuit Court. Gore’s argument was against Section 102.168 of the Florida Constitution. This section says that, “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election'' shall be grounds for a contest.” Gore was trying to find the small fraction of votes that he had lost the election with. The court decided that Gore did not have enough evidence for this to be a true argument. Gore then appealed to the First district Court of Appeal, which then sent the issue to the Florida Supreme Court. The Florida Supreme Court agreed with the decision of the Circuit Court. The Supreme Court decided that Gore did not have enough proof for Nassau County and Palm Beach County. Gore claimed that 3,300 ballots from those counties were not “legal” votes. The Supreme Court did decide that Gore had reason to challenge Miami-Dade because there was 9,000 ballots that failed to count votes for President when done by the machine. During this time many new votes were found that were not first accounted for. A gain of 215 votes and 168 legal votes were added to Gore’s total vote. These votes were then added to the total count.
At the Supreme Court seven of the justices agreed that there are constitutional issues with the recount ordered by the Florida Supreme Court. The unconstitutionality came from the remedy ordered by the Florida Supreme Court. The Florida Supreme Court said that Florida legislature intended to obtain safe-harbor benefits, which is a violation of the Florida Election Code.
A lot of controversy for this election came from the ballot cards. Florida used ballot cards in which you have to punch a hole and this is thought to be part of the reason for the recount. These two cases resolve around the same issue and Gore’s want to be President. Gore continued to push the recount and found different reasons for recounts.
-Christen
Is it constitutional for states to change the term limits from what is stated in the Constitution? The Supreme Court case of U.S. Term Limits Inc. v. Thorton set a standard for States being able to limit terms of representatives in office. The Supreme Court case of Cook v. Gralike then followed as a response. Both of these cases were deemed unconstitutional because of the changes from the Constitution. These two court cases show an example for other cases to follow.
The case of U.S. Term Limits Inc. v. Thorton argues the constitutionality of the Arkansas Constitution. Amendment 73 of the Arkansas Constitution says that, “Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas. Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas.” This amendment goes against the qualifications for office set forth in the Constitution. The only qualifications in Article I of the Constitution are “No person shall be a representative who shall not have attained the age of 25 years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." The reason that Amendment 73 might be unconstitutional is because it adds to what is said in the Constitution.
The Constitution does not say anything about States being able to States being able to set their own term limits, this is where the question of constitutionality comes in. Even though the Constitution does not talk about the States, it should be assumed that they have to stick with the term limits in the Constitution.
On November 13, 1992 respondent Robbie Hill filed a complaint in the Circuit Court of Arkansas saying that Amendment 73 of the Arkansas Constitution is unconstitutional because it sets limits that are not stated in the Constitution. Arkansas Supreme Court decided that the Constitutionality depends on two things. The first is whether the Constitution prohibits States from adding or altering the Constitution limits and the second is if the Constitution does forbid alters, whether Amendment 73 is formulated as restriction to be on the ballot or outright disqualification from running.
The U.S. Supreme Court decided by a vote of 5 to 4 that it is unconstitutional for States to alter the qualifications set forth in the Constitution. In order for the court to make this decision they looked back at the case of Powell v. McCormick (1969). This case dealt with Qualification Clauses in the exclusion of a Member of Congress. The conclusion of this case was the Congress cannot add or alter the qualifications set in the Constitution. These two cases set a clear ruling for adding or altering to the Constitution.
In 1996, as a response to the Supreme Court’s decision of the case U.S. Term Limits, Inc. v. Thorton, Missouri voters adopted an amendment to Article VIII of their Constitution. This amendment would “instruct” each member of Missouri’s congressional delegation “to use all of his or her delegated powers to pass the Congressional Term Limits Amendment.” The amendment would limit the House of Representatives term limit to three terms and two terms in the Senate. The Amendment also directs the Missouri Secretary of State to determine whether a statement on a candidate’s term limits should be placed by his or her name on the election ballot.
Don Gralike brought the issue to court to stop the Secretary from implementing the amendment. The District Court agreed with Gralike and found that Article VIII went against what was previously stated in the Constitution. This was because the court decided it added additional qualifications that burdened a candidates first amendment rights to speak freely on the issue of term limits.
Both cases show a clear example of what the Supreme Court sees as Constitutional when it comes to term limits. These two cases were very similar and the outcomes were also the same.
Electoral College
The cases of George W. Bush v. Palm Beach and George W. Bush v. Albert Gore were both surrounding the 2000 election and the recount. In a short period of time two cases arose arguing the recount of Florida. The second case, George W. Bush v. Albert Gore, is a reaction to the decision made in the first case.
The 2000 election caused many complications in Florida. George W. Bush v. Palm Beach surrounds the issue of recount in Florida. On November 8, 2000, the day after the election, the votes in Florida were 2,909,135 for Bush and 2,907,351 for Gore. Bush won by 1,784 votes, but because this was less than one half percent of the votes cast, an automatic recount occurred. After the recount the margin by which Bush had won was much smaller. As a reaction to this, Gore requested a recount in four counties: Volusia, Palm Beach, Broward, and Miami- Dade. The two parties than had conflicting views on the recount because of the Florida Election Code. Then on November 14th, as an action brought on from Volusia and joined by Palm Beach, Gore, and the Florida Democratic Party, the Florida Circuit Court decided that a seven day deadline was mandatory, but Volusia could turn theirs in at a later date. It was also decided that the Secretary of State could use her discretion to decide whether to include the late amended returns in a state-wide certification.
At this point all of the rulings from the District Court seem to make sense, but the power that was given to the Secretary of State. If one of the counties were to turn in their recount after the seven day deadline it is possible that those votes are not going to count. But if you are missing a section of votes, then the state is not representing all of their citizens.
With the decision that the Secretary was given she set a criteria which would decide what to do with late recounts. The Secretary said that by 2 pm on November 15th, any county that wants to turn in late recounts must submit a written statement of the facts and circumstances as to why the recount is late. Four counties then submitted late recounts and the Secretary decided that none of them seemed to need an extension. Then on November 16th as a reaction to the Secretary’s decision, the Florida Democratic Party and Gore filed a motion in the State Court, “arguing that the Secretary had acted arbitrarily and in contempt of the court’ s earlier ruling.” The next day the court denied this motion, saying that the Secretary had not acted out of line and had used the earlier ruling of the court. They then appealed to the First District Court of Appeal which sent the issue to the Florida Supreme Court. The Court said that a final count could not be declared until order from the Court.
People around the country were growing anxious as the decision was continuing to be put off. The issue of each county having to recount their votes had grown into much bigger deal. Finally on November 21st the Supreme Court made a decision. In the court’s mind there were two principle questions: “whether a discrepancy between an original machine return and a sample manual recount resulting from the way a ballot has been marked or punched is an “error in vote tabulation” justifying a full manual recount; and how to reconcile what it spoke of as two conflicts in Florida’ s election laws.” For the first issue the court decided that a discrepancy between a sample manual recount and machine count due to the way in which the ballot was marked does not constitute an error in tabulation sufficient for a manual recount. When it came to the second issue the court decided that the voting laws are contradictory. The court said that what the Secretary was ok because of what was said in the Declaration Rights of the State of Florida Constitution, but the court stated, “Because of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy.” The court set a deadline of November 26th at 5 pm for the recounts. The court also directed the Secretary to accept manual counts submitted prior to the deadline.
The decision made by the Supreme Court of Florida allowed all of the counties to have time to finish their votes. The court acted both constitutionally and democratically when it came to their decision. This case was not the end of the 2000 election. After the Supreme Court made these decisions the case of George W. Bush v. Albert Gore opened, and the recounting continued.
The court case of George W. Bush v. Albert Gore is continuing from the earlier case in November. On November 26th the results of the election were in and declared Bush the winner of Florida’s 25 electoral votes. The next day Gore filed a complaint in Leon County Circuit Court. Gore’s argument was against Section 102.168 of the Florida Constitution. This section says that, “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election'' shall be grounds for a contest.” Gore was trying to find the small fraction of votes that he had lost the election with. The court decided that Gore did not have enough evidence for this to be a true argument. Gore then appealed to the First district Court of Appeal, which then sent the issue to the Florida Supreme Court. The Florida Supreme Court agreed with the decision of the Circuit Court. The Supreme Court decided that Gore did not have enough proof for Nassau County and Palm Beach County. Gore claimed that 3,300 ballots from those counties were not “legal” votes. The Supreme Court did decide that Gore had reason to challenge Miami-Dade because there was 9,000 ballots that failed to count votes for President when done by the machine. During this time many new votes were found that were not first accounted for. A gain of 215 votes and 168 legal votes were added to Gore’s total vote. These votes were then added to the total count.
At the Supreme Court seven of the justices agreed that there are constitutional issues with the recount ordered by the Florida Supreme Court. The unconstitutionality came from the remedy ordered by the Florida Supreme Court. The Florida Supreme Court said that Florida legislature intended to obtain safe-harbor benefits, which is a violation of the Florida Election Code.
A lot of controversy for this election came from the ballot cards. Florida used ballot cards in which you have to punch a hole and this is thought to be part of the reason for the recount. These two cases resolve around the same issue and Gore’s want to be President. Gore continued to push the recount and found different reasons for recounts.
-Christen
Monday, February 23, 2009
Student Speech
Student speech rights are ones that often are over-looked. In many educational systems students are expected to give up certain constitutional rights when attending school. At our own school one could argue student speech is an issue. There are many circumstances of censorship, unreasonable punishment, vocal restrictions, and other limits of freedom, which one could argue our school enacts against the constitution.
Supreme court judges often use previous cases on similar topics to help them make their decisions. So, it is important to discuss those on student speech in order of occurrence as judges continuously reference previous cases to prove their points. So the first case is Tinker v Des Moins Independent Community School District. The petitioners in this case were John Tinker who was 15 and Christopher Eckhard who was 16, both boys attending high schools in Des Moines. Also was petitioner Mary Beth Tinker who was 13 and at junior high school. The respondent was the Des Moins Independent School District.
In December 1965, at the Eckhard home some students and adults met in Des Moins to talk about the Vietnam War and possible forms of protest. They decided to wear black armbands in support of a truce throughout the holiday season. When the Des Moins schools heard of this they made a policy that stated any student wearing a black armband would be suspended until they choose to take it off. So, when the three petitioners arrived at school with their armbands they were suspended and didn’t go back to school until after New Years as that was when they stopped wearing the armbands. They filed a complaint but the district court decided the school acted constitutionally. On appeal the court was split and the case went to the Supreme Court. At the Supreme Court they found it was a violation of the students 1st and 14th amendments. The court decided that the decision to suspend and not allow students to peacefully, silently, voice their opinions is against the 1st amendment, and as it was a specifically targeted group of protesters rather than including all groups which wore something to symbolize a cause, it violated the 14th amendment.
One statement made by Justice Fortas, which is used in many cases to come is, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The issue at hand was not a simple school violation by a student, but the school violated the student’s right to pure speech. The only time in a school situation that the 1st amendment can be slightly put aside is if the act disrupts class, or the learning process, or has a direct negative affect on the school’s ability to teach. There was no proof, however, that the wearing of the armbands disrupted any class or instigated any unruly behavior. The school banned the wearing of something that served as a silent expression of ones opinions, and in no way created disturbance or infringed on other student’s rights. Also, the school district made the decision based on their fear that there would be disturbance of the school if the armbands were allowed; however, because they had to legitimate proof or reason to think so it does not justify it. Our Constitution protects taking the risk of allowing those students to wear t he armbands to voice their opinions, especially when those opinions are political as that is what our country is based on. Our Constitutional rights are meant to follow us despite our location, or age. Although it is true that adults have greater constitutional rights than students, as long as the use of the 1st amendment does not greatly cause conflict within a school or deprive other students of their rights and access to learning then it is not excusable to punish these students. And thus the Supreme Court found in favor of the petitioner.
The next case occurred in 1986, BETHEL SCHOOL DISTRICT NO. 403 v. Fraser. In 1983 Matthew N. Fraser gave a speech to nominate a friend for the elective office. This speech was given in front of around 600 students including freshman who would have been 14 years old. The issue, however, is that the speech itself was a large sexual metaphor with explicit description. Many teachers and students were upset by the speech and the principal suspended Fraser as he violated the rule of the school, which stated, “Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." Fraser’s father, the technical respondent (as Matthew Fraser the actual respondent is a minor) brought it to the district court as a violation of his son’s 1st amendment right and the court agreed, then at the Court of Appeals they also agreed that it was a violation of Fraser’s first amendment right and the court used the Tinker example to make their judgment. Then the school, the petitioner took it to the Supreme Court where the ruling was reversed.
The Supreme Court recognized this case as very different from Tinker. The main difference is that in Tinker it was students who were peacefully expressing their political opinions, in Fraser it is a student using sexual and obscene language and causing a disruption in the education process at the school. In response to the Tinker case the court’s main argument is that the speech of Fraser hindered the schools ability to teach. The language used was deemed offensive to many people, and in violation of clear school rules. Many teachers had to take time from their classes to talk about the speech and what it meant. Fraser argued that there was no way of knowing he would be suspended as the school rules are not defined. In response to this the court stated that it is the school’s responsibility to protect against many possible violations and thus the rules are intentionally vague, but it is the school’s responsibility to declare what they believe to be disruptive and vulgur. The speech did nothing to further the education of his peers or to contribute to the school and thus the court found in favor of the respondent.
A few years later was HAZELWOOD SCHOOL DISTRICT v. Kuhlmeier in 1988. This case was about the issue of censorship in a school newspaper. The respondents, three Hazelwood East students from the staff of the school newspaper Spectrum, believe their 1st amendment rights were violated when two articles were not published in the newspaper. Two articles had been written, one on pregnancy within the school, and one on divorce. These two articles seemed to the petitioner Emerson, as well as petitioner Reynolds, to be inappropriate. Emerson was afraid that the articles were not anonymous enough and that students would be identified, also Emerson thought it unfair that the boyfriends and parents mentioned in these articles did not have the chance to defend themselves or the statements made against them. Also, the content of the articles about sex, contraceptives etc could be inappropriate for some students. Reynolds, the president of the school, was under the impression that there was no time for the articles to be edited to fix these issues and thus decided they should be deleted from the newspaper. The respondents then brought it to the district court who ruled it was not a violation of the 1st amendment, but the court of appeals ruled it was. Then the Supreme Court took the case and reversed the court of appeals decision.
The main argument the court made was that because it was a journalism class, that received grades and needed to follow certain guidelines the freedom of expression is slightly limited. Also, because it is the name and expenses of the school that go in to the paper they have more right to edit what goes in to it. If it were a student run magazine, or paper the situation would be different. The court explained the difference between this case and Tinker is that with Tinker the school is determining when to tolerate a student’s particular speech, but with this case the school is just determining whether to promote the particular speech by giving its name and resources. It can be argued that the articles would have interfered with school policy and education and were not following instruction for the journalism class and therefore it is not a violation of the student’s 1st amendment rights. So, the court found in favor of the petitioner.
The last case we have about student speech is Morse v. Frederick in 2007. In January 2002 when the Olympic Torch relay passed through Juneau, Alaska Juneau –Douglas High School allowed the students to take a small “field-trip” and watch as the relay passed by school. The respondent, Joseph Frederick a senior at JDHS came to school late that day. When the cameras and relay passed by he stood at the across the school with some friends, as he had not checked in to school yet, and held up a large banner that said “BONG HiTS 4 JESUS.” The entire school that went to watch the relay, as well as some news cameras, saw this banner. Principal Morse demanded Frederick to go to her office, and she then suspended him as he was suggesting and promoting the use of illegal drugs among his peers. This was a school violation and the sign was displayed during school hours at a school sanctioned event. The case was brought to the district court in which they used the Fraser decision to say the principal acted correctly as the banner intrudes upon the work of the school. The Supreme Court then had to see whether Frederick had a constitutional right to show the banner, and whether is he did if the principle was liable for charges. The Supreme Court found that Frederick had no such right.
The basis for this decision is that the sign held up directly had a negative effect on the school and its educational abilities, and caused disruption. Also, the banner promotes the use of illegal drugs which is a school violation and the school therefore has the right to punish that behavior. Frederick tried to argue that the banner was just nonsense and had no drug reference, but because of the vague and multiple interpretations it is still recognized as drug reference. In Tinker it was determined that student expression can only be suppressed if the expression disrupts the school. In Fraser, the difference is that Tinker was used for a political message and Fraser was of sexual innuendo, but Frederick adds a new element in as it has drug reference. It would be a different story if Frederick declared the sign had political or religious meaning, but because he does not there is no political debate or message he is trying to get across by revealing this banner. So because the banner did nothing other than disrupt the school, and violate a school rule about illegal drug implications the Supreme Court found in favor of Morse.
-Isabella
Supreme court judges often use previous cases on similar topics to help them make their decisions. So, it is important to discuss those on student speech in order of occurrence as judges continuously reference previous cases to prove their points. So the first case is Tinker v Des Moins Independent Community School District. The petitioners in this case were John Tinker who was 15 and Christopher Eckhard who was 16, both boys attending high schools in Des Moines. Also was petitioner Mary Beth Tinker who was 13 and at junior high school. The respondent was the Des Moins Independent School District.
In December 1965, at the Eckhard home some students and adults met in Des Moins to talk about the Vietnam War and possible forms of protest. They decided to wear black armbands in support of a truce throughout the holiday season. When the Des Moins schools heard of this they made a policy that stated any student wearing a black armband would be suspended until they choose to take it off. So, when the three petitioners arrived at school with their armbands they were suspended and didn’t go back to school until after New Years as that was when they stopped wearing the armbands. They filed a complaint but the district court decided the school acted constitutionally. On appeal the court was split and the case went to the Supreme Court. At the Supreme Court they found it was a violation of the students 1st and 14th amendments. The court decided that the decision to suspend and not allow students to peacefully, silently, voice their opinions is against the 1st amendment, and as it was a specifically targeted group of protesters rather than including all groups which wore something to symbolize a cause, it violated the 14th amendment.
One statement made by Justice Fortas, which is used in many cases to come is, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The issue at hand was not a simple school violation by a student, but the school violated the student’s right to pure speech. The only time in a school situation that the 1st amendment can be slightly put aside is if the act disrupts class, or the learning process, or has a direct negative affect on the school’s ability to teach. There was no proof, however, that the wearing of the armbands disrupted any class or instigated any unruly behavior. The school banned the wearing of something that served as a silent expression of ones opinions, and in no way created disturbance or infringed on other student’s rights. Also, the school district made the decision based on their fear that there would be disturbance of the school if the armbands were allowed; however, because they had to legitimate proof or reason to think so it does not justify it. Our Constitution protects taking the risk of allowing those students to wear t he armbands to voice their opinions, especially when those opinions are political as that is what our country is based on. Our Constitutional rights are meant to follow us despite our location, or age. Although it is true that adults have greater constitutional rights than students, as long as the use of the 1st amendment does not greatly cause conflict within a school or deprive other students of their rights and access to learning then it is not excusable to punish these students. And thus the Supreme Court found in favor of the petitioner.
The next case occurred in 1986, BETHEL SCHOOL DISTRICT NO. 403 v. Fraser. In 1983 Matthew N. Fraser gave a speech to nominate a friend for the elective office. This speech was given in front of around 600 students including freshman who would have been 14 years old. The issue, however, is that the speech itself was a large sexual metaphor with explicit description. Many teachers and students were upset by the speech and the principal suspended Fraser as he violated the rule of the school, which stated, “Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." Fraser’s father, the technical respondent (as Matthew Fraser the actual respondent is a minor) brought it to the district court as a violation of his son’s 1st amendment right and the court agreed, then at the Court of Appeals they also agreed that it was a violation of Fraser’s first amendment right and the court used the Tinker example to make their judgment. Then the school, the petitioner took it to the Supreme Court where the ruling was reversed.
The Supreme Court recognized this case as very different from Tinker. The main difference is that in Tinker it was students who were peacefully expressing their political opinions, in Fraser it is a student using sexual and obscene language and causing a disruption in the education process at the school. In response to the Tinker case the court’s main argument is that the speech of Fraser hindered the schools ability to teach. The language used was deemed offensive to many people, and in violation of clear school rules. Many teachers had to take time from their classes to talk about the speech and what it meant. Fraser argued that there was no way of knowing he would be suspended as the school rules are not defined. In response to this the court stated that it is the school’s responsibility to protect against many possible violations and thus the rules are intentionally vague, but it is the school’s responsibility to declare what they believe to be disruptive and vulgur. The speech did nothing to further the education of his peers or to contribute to the school and thus the court found in favor of the respondent.
A few years later was HAZELWOOD SCHOOL DISTRICT v. Kuhlmeier in 1988. This case was about the issue of censorship in a school newspaper. The respondents, three Hazelwood East students from the staff of the school newspaper Spectrum, believe their 1st amendment rights were violated when two articles were not published in the newspaper. Two articles had been written, one on pregnancy within the school, and one on divorce. These two articles seemed to the petitioner Emerson, as well as petitioner Reynolds, to be inappropriate. Emerson was afraid that the articles were not anonymous enough and that students would be identified, also Emerson thought it unfair that the boyfriends and parents mentioned in these articles did not have the chance to defend themselves or the statements made against them. Also, the content of the articles about sex, contraceptives etc could be inappropriate for some students. Reynolds, the president of the school, was under the impression that there was no time for the articles to be edited to fix these issues and thus decided they should be deleted from the newspaper. The respondents then brought it to the district court who ruled it was not a violation of the 1st amendment, but the court of appeals ruled it was. Then the Supreme Court took the case and reversed the court of appeals decision.
The main argument the court made was that because it was a journalism class, that received grades and needed to follow certain guidelines the freedom of expression is slightly limited. Also, because it is the name and expenses of the school that go in to the paper they have more right to edit what goes in to it. If it were a student run magazine, or paper the situation would be different. The court explained the difference between this case and Tinker is that with Tinker the school is determining when to tolerate a student’s particular speech, but with this case the school is just determining whether to promote the particular speech by giving its name and resources. It can be argued that the articles would have interfered with school policy and education and were not following instruction for the journalism class and therefore it is not a violation of the student’s 1st amendment rights. So, the court found in favor of the petitioner.
The last case we have about student speech is Morse v. Frederick in 2007. In January 2002 when the Olympic Torch relay passed through Juneau, Alaska Juneau –Douglas High School allowed the students to take a small “field-trip” and watch as the relay passed by school. The respondent, Joseph Frederick a senior at JDHS came to school late that day. When the cameras and relay passed by he stood at the across the school with some friends, as he had not checked in to school yet, and held up a large banner that said “BONG HiTS 4 JESUS.” The entire school that went to watch the relay, as well as some news cameras, saw this banner. Principal Morse demanded Frederick to go to her office, and she then suspended him as he was suggesting and promoting the use of illegal drugs among his peers. This was a school violation and the sign was displayed during school hours at a school sanctioned event. The case was brought to the district court in which they used the Fraser decision to say the principal acted correctly as the banner intrudes upon the work of the school. The Supreme Court then had to see whether Frederick had a constitutional right to show the banner, and whether is he did if the principle was liable for charges. The Supreme Court found that Frederick had no such right.
The basis for this decision is that the sign held up directly had a negative effect on the school and its educational abilities, and caused disruption. Also, the banner promotes the use of illegal drugs which is a school violation and the school therefore has the right to punish that behavior. Frederick tried to argue that the banner was just nonsense and had no drug reference, but because of the vague and multiple interpretations it is still recognized as drug reference. In Tinker it was determined that student expression can only be suppressed if the expression disrupts the school. In Fraser, the difference is that Tinker was used for a political message and Fraser was of sexual innuendo, but Frederick adds a new element in as it has drug reference. It would be a different story if Frederick declared the sign had political or religious meaning, but because he does not there is no political debate or message he is trying to get across by revealing this banner. So because the banner did nothing other than disrupt the school, and violate a school rule about illegal drug implications the Supreme Court found in favor of Morse.
-Isabella
Sunday, February 22, 2009
Hate Seech
HATE SPEECH
The First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.” In the historical examination of hate speech, the First Amendment is immediately called into question and, in particular, (as you could probably deduce) the tidbit about “prohibiting abridging the freedom of speech”. Throughout history, various cases have arisen which have served to define the Supreme Court’s views and the constitutionality of hate speech. The decisions in recent cases such as Hustler Magazine v. Falwell (1988), American Booksellers v. Hudnut (1986), Wisconsin v. Mitchell (1993), and Virginia v. Black (2003) have enacted certiorari that is based upon the Court’s interpretations of the extent to which the expression of hate compromises free speech.
Hustler Magazine v. Falwell represents a decision which regards the compensation of damages initially rewarded to public figure. Initially Jerry Falwell, a nationally known and respected minister who was also a frequently active political commentator, sued Hustler Magazine for a slanderous ad-parody in one of the issues that damaged the minister’s public reputation. Falwell was rewarded with 200,000 dollars in damages, yet Larry Flynt, head of Hustler Magazine, appealed the decision which then ended up in the Supreme Court. So in this particular Supreme Court analysis, Hustler Magazine is the petitioner and Jerry Falwell (hot-shot minister) is the respondent. The specific ad that caused all the commotion revolved around Campari Liqueur. Campari, a popular drink back in the day, utilized an ad campaign that featured the double entendre of the “first time”. Essentially, these ads would depict famous movie stars discussing their “first time” in what appeared sexually motivated, but in reality was actually depicting their first time drinking Campari (those gosh darn, sneaky ad execs). Well, Hustler Magazine capitalized on this campaign and fashioned their own parody of these ads which depicted Falwell incestuously talking about his first time with his mother in some outhouse while disguising it as a Campari ad, but this time the double entendre was reversed. Comical yet slanderous and downright wrong remarks such as, “Mom looked better than a Baptist whore with a $100 donation.” At the bottom of the page though, “ad parody—not to be taken seriously” appeared. This case introduces a fundamental argument about the First Amendment limitations in protecting a citizen from intentional emotional distress. Yet the loophole in this argument that forced the examination of its constitutionality results from the concept of a public figure. Jerry Falwell is indeed a public figure and the reason this is important is succinctly summed up by Justice Frankfurter who said, “One of the prerogatives of American citizenship is the right to criticize public men and measures.” Thus the ensuing argument of does our prerogative as American citizens to criticize public figures outweigh the reaches of the First Amendment? And should the fame of an individual force them to withstand vicious ridicule and slander? Ultimately, the “court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with the knowledge of its falsehood or with reckless disregard for the truth of the statement.” Since the ad parody was both false and, at the same time, made no attempt to verify the false statement being made, the court reversed the decision. Thus, Flynt didn’t have to pay the 200,000 grand to Jerry Falwell on the grounds that Falwell was a public figure and that ad parody was falsely false.
American Booksellers vs. Hudnut features the respondent William H. Hudnut (the mayor of Indianapolis) and the petitioner American Booksellers. This case revolves around the controversial issue of pornography and the constitutionality of these so called “skin flicks” (and all other forms). The constitutionality was called into question because of the distinctions between “obscenity” and “pornography”. “Obscene” defined by the Miller v. California case in 1973 means “a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no serious literary, artistic, political, or scientific value.” The Indianapolis statute under question states that pornography is "the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:
(1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display."
(use of men, children, and transsexuals are can be replaced with women in any of the paragraphs).
Yet the problem here is that this ordinance refrains from commenting on having lustful interests, offensiveness, and the standards of a community.
In the case Wisconsin v. Todd Mitchell, the Supreme Court rules on the constitutionality of offensive thought. The background here is that Wisconsin has a Penalty-Enhancement Provision which enhances the penalty of a crime if the defendant “intentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . .”. Todd Mitchell (an African American) was charged with aggravated assault on a white boy, but once it was found out that Mitchell had selected a white person in advance to beat up, the maximum sentence was bumped up significantly. The overwhelming constitutionality that is introduced with this case surrounds the interpretation of words. Under the precedent of R.A.V v. St. Paul (1992), “Wisconsin legislature cannot criminalize bigoted thought with which it disagrees....” The reasoning is that the term “bigoted” is entirely too subjective, meaning bigotry is difficult to classify. Mitchell argued that since the penalty enhancement provision referred to bigoted thought rather than merely “conduct” it is unconstitutional in terms of the First Amendment. Furthermore, Mitchell argued that this provision provides a “chilling effect” on free speech in that people everywhere would avoid all association with bigotry in fear that it would enhance the punishment of some un-related crime. While the Wisconsin Supreme Court overruled Mitchell’s punishment, the Supreme Court remanded the case back to lower courts stating that bias motivated crimes lead to negative side-effects. In addition, the Supreme Court deemed Mitchell stances on bigoted thoughts and chilling effects far too speculative to be considerable.
Finally, Virginia v. Black features hate expression in terms of cross-burning. The respondent, Barry Elton Black, a Klu Klux Klan member was convicted of violating Virginia’s cross-burning statute that reads, “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.” Additionally, “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” The constitutionality in this case is based upon the “prima facie” or immediate evidence provision of this statute. In 2003, Black held a Klan gathering in Virginia 350 yards away from a highway road. This gathering concluded with the group burning a 25 foot cross. Sheriffs saw this demonstration and arrested Black on the spot on charges of cross-burning. Black appealed his conviction by stating, “the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint.” His stance was that the symbolism of cross-burning demonstrates a shared ideology among Klan members, rather than an act of intimidation. Therefore, since cross burning can be identified as a shared ideology, then cross-burning must not be prima facie. The Supreme Court made a ruling that upheld the unconstitutionality of cross-burning in general, but also deemed the Virginia statue unconstitutional which reversed Black’s sentence. Their mentality was that cross-burning is a criminal offense, but only if intimidation is proven. Therefore, in the state of Virginia, cross-burning is not prima facie and intent must be proven.
Bennett
The First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.” In the historical examination of hate speech, the First Amendment is immediately called into question and, in particular, (as you could probably deduce) the tidbit about “prohibiting abridging the freedom of speech”. Throughout history, various cases have arisen which have served to define the Supreme Court’s views and the constitutionality of hate speech. The decisions in recent cases such as Hustler Magazine v. Falwell (1988), American Booksellers v. Hudnut (1986), Wisconsin v. Mitchell (1993), and Virginia v. Black (2003) have enacted certiorari that is based upon the Court’s interpretations of the extent to which the expression of hate compromises free speech.
Hustler Magazine v. Falwell represents a decision which regards the compensation of damages initially rewarded to public figure. Initially Jerry Falwell, a nationally known and respected minister who was also a frequently active political commentator, sued Hustler Magazine for a slanderous ad-parody in one of the issues that damaged the minister’s public reputation. Falwell was rewarded with 200,000 dollars in damages, yet Larry Flynt, head of Hustler Magazine, appealed the decision which then ended up in the Supreme Court. So in this particular Supreme Court analysis, Hustler Magazine is the petitioner and Jerry Falwell (hot-shot minister) is the respondent. The specific ad that caused all the commotion revolved around Campari Liqueur. Campari, a popular drink back in the day, utilized an ad campaign that featured the double entendre of the “first time”. Essentially, these ads would depict famous movie stars discussing their “first time” in what appeared sexually motivated, but in reality was actually depicting their first time drinking Campari (those gosh darn, sneaky ad execs). Well, Hustler Magazine capitalized on this campaign and fashioned their own parody of these ads which depicted Falwell incestuously talking about his first time with his mother in some outhouse while disguising it as a Campari ad, but this time the double entendre was reversed. Comical yet slanderous and downright wrong remarks such as, “Mom looked better than a Baptist whore with a $100 donation.” At the bottom of the page though, “ad parody—not to be taken seriously” appeared. This case introduces a fundamental argument about the First Amendment limitations in protecting a citizen from intentional emotional distress. Yet the loophole in this argument that forced the examination of its constitutionality results from the concept of a public figure. Jerry Falwell is indeed a public figure and the reason this is important is succinctly summed up by Justice Frankfurter who said, “One of the prerogatives of American citizenship is the right to criticize public men and measures.” Thus the ensuing argument of does our prerogative as American citizens to criticize public figures outweigh the reaches of the First Amendment? And should the fame of an individual force them to withstand vicious ridicule and slander? Ultimately, the “court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with the knowledge of its falsehood or with reckless disregard for the truth of the statement.” Since the ad parody was both false and, at the same time, made no attempt to verify the false statement being made, the court reversed the decision. Thus, Flynt didn’t have to pay the 200,000 grand to Jerry Falwell on the grounds that Falwell was a public figure and that ad parody was falsely false.
American Booksellers vs. Hudnut features the respondent William H. Hudnut (the mayor of Indianapolis) and the petitioner American Booksellers. This case revolves around the controversial issue of pornography and the constitutionality of these so called “skin flicks” (and all other forms). The constitutionality was called into question because of the distinctions between “obscenity” and “pornography”. “Obscene” defined by the Miller v. California case in 1973 means “a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no serious literary, artistic, political, or scientific value.” The Indianapolis statute under question states that pornography is "the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:
(1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display."
(use of men, children, and transsexuals are can be replaced with women in any of the paragraphs).
Yet the problem here is that this ordinance refrains from commenting on having lustful interests, offensiveness, and the standards of a community.
In the case Wisconsin v. Todd Mitchell, the Supreme Court rules on the constitutionality of offensive thought. The background here is that Wisconsin has a Penalty-Enhancement Provision which enhances the penalty of a crime if the defendant “intentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . .”. Todd Mitchell (an African American) was charged with aggravated assault on a white boy, but once it was found out that Mitchell had selected a white person in advance to beat up, the maximum sentence was bumped up significantly. The overwhelming constitutionality that is introduced with this case surrounds the interpretation of words. Under the precedent of R.A.V v. St. Paul (1992), “Wisconsin legislature cannot criminalize bigoted thought with which it disagrees....” The reasoning is that the term “bigoted” is entirely too subjective, meaning bigotry is difficult to classify. Mitchell argued that since the penalty enhancement provision referred to bigoted thought rather than merely “conduct” it is unconstitutional in terms of the First Amendment. Furthermore, Mitchell argued that this provision provides a “chilling effect” on free speech in that people everywhere would avoid all association with bigotry in fear that it would enhance the punishment of some un-related crime. While the Wisconsin Supreme Court overruled Mitchell’s punishment, the Supreme Court remanded the case back to lower courts stating that bias motivated crimes lead to negative side-effects. In addition, the Supreme Court deemed Mitchell stances on bigoted thoughts and chilling effects far too speculative to be considerable.
Finally, Virginia v. Black features hate expression in terms of cross-burning. The respondent, Barry Elton Black, a Klu Klux Klan member was convicted of violating Virginia’s cross-burning statute that reads, “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.” Additionally, “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” The constitutionality in this case is based upon the “prima facie” or immediate evidence provision of this statute. In 2003, Black held a Klan gathering in Virginia 350 yards away from a highway road. This gathering concluded with the group burning a 25 foot cross. Sheriffs saw this demonstration and arrested Black on the spot on charges of cross-burning. Black appealed his conviction by stating, “the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint.” His stance was that the symbolism of cross-burning demonstrates a shared ideology among Klan members, rather than an act of intimidation. Therefore, since cross burning can be identified as a shared ideology, then cross-burning must not be prima facie. The Supreme Court made a ruling that upheld the unconstitutionality of cross-burning in general, but also deemed the Virginia statue unconstitutional which reversed Black’s sentence. Their mentality was that cross-burning is a criminal offense, but only if intimidation is proven. Therefore, in the state of Virginia, cross-burning is not prima facie and intent must be proven.
Bennett
Symbolic Expression is Freedom of Speech
After taking a look at four cases that have occurred over the years, it was evident that the First amendment, which protects American’s rights to freedom of speech, freedom of religion, freedom of press along with other rights is not always upheld. In certain situations, an America citizen will speak out against a government policy exercising their right to freedom of speech, when doing this they should be protected under the first amendment and shouldn’t be in fear of the law for expressing their thoughts.
In the first incident regarding free speech and the first amendment, a man named David Paul O’Brien burned his selective service certificate along with three others on the court house steps in Boston. There was a crowd who witnessed the event and soon members of the crowd began attacking O’Brien and he was arrested and brought into the courthouse where he was then charged with violating the 1965 Amendment that prohibited the destruction or mutilation of selective service certificates arguing that it was unconstitutional to deface them.
O’Brien was taken to court on these charges and he had never denied doing it. O’Brien who was the respondent in this case, defended his argument by saying that he was merely trying to make his feeling about the Vietnam War public. He wanted his anti-war beliefs to be known to others. O’Brien argued that it was unconstitutional for him to be charged with breaking the 1965 Amendment because his freedom of speech, which is granted in the first amendment were not being recognized. He believed that the 1965 Amendment served no real purpose and had no legal legitimacy. The constitutional question now at stake is whether or not the first amendment protects O’Brien’s rights to freedom of speech when there are no words actually spoken but an idea is being expressed.
O’Brien’s arguments were rejected and the jury deemed that they could not inquire on Congress’s motives when the 1965 Amendment was created. Most importantly though, it was stated that part of Congress’s powers include the right to raise armies. Their right to raise armies is protected under the necessary and proper clause and because of this Congress has the right to administer the selective service certificates and administer the draft during times of war making the action O’Brien took illegal.
The argument continued with O’Brien saying that Congress was not made to suppress freedom. He argued that by burning the certificate it represented his opposition to the Vietnam War and was therefore represented free speech. This created O’Brien’s main argument: symbolic acts of speech should be protected under the first amendment. O’Brien’s argument was not heard though and he was still convicted and from there on the precedent was set, Congress has the right to declare war and the draft and limit freedom of speech if they deem it “necessary and proper”.
The US government acted as the petitioner in the case of 1968 with O’Brien and set the precedent for the cases to follow. In 1970, Daniel Jay Schact was indicted by the US District Court for the violating a law stating that it is a crime for any person to wear a military uniform without authority. Schact was tried and convicted in February of 1968 and charged with a fine of two hundred and fifty dollars and up to six months in prison. Schact rebutted the case. He admitted that he had worn parts of a uniform but said that he was wearing the uniform as an actor. He claimed that he was doing a street skit and was acting. He had intended to do an anti-war demonstration in which the American presence in Vietnam was displayed as “evil.” The government decided that what Schact was doing was not a theatrical performance and so Schact could not claim that he was being an actor. The idea of the time became clear, the first amendment protected free speech when people were praising the war, but when people spoke out against the war, the constitution was not protecting them.
These same ideas were continued in the Spence v Washington case in 1974. The appellant had displayed his own US flag from his apartment window but he had taped a large peace symbol on it. Three Seattle police officers came up to his apartment and arrested him. Spence was being charged on “improper use,” which stated that the American flag could not be altered, marked or changed in anyway and could not be displayed in such a manner.
Spence was tried and convicted with a ninety-day confinement sentence. The case was reviewed again and Spence stuck to his case. He stated that he had put the peace symbol on the flag as a protest against the Cambodian invasion and the Kent State University killings. He wanted to associate the American flag with peace, “I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace,”(Spence v Washington). He wanted to make it clear what his purpose was and that he made a temporary change to the flag, it was tape. Regardless of his testimony, the jury convicted him as guilty and he received ten days in jail and a seventy-five dollar fine.
There were additional factors taken into consideration though. The flag was privately owned and did not belong to the government. The flag was also displayed on private property and was not in a public area. Putting up the flag was not meant to cause violence. An important part of this case was the fact that what he displayed was a flag, “In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas,” (Spence v Washington). If the flag was therefore considered an expression and a form of speech then the first amendment was being violating.
The next case brought up was in 1989 between Texas and Gregory Lee Johnson. Gregory Lee Johnson was charged for desecrating the American flag and violating Texas Law during a public protest. There was a political demonstration to protest polices of the Reagan administration and the protest ended up in front of the Dallas City Hall. Johnson unveiled the flag and set it on fire. About a hundred protestors were chanting against America and only Johnson was convicted. He was tried and convicted with one year in prison and a two thousand dollar fine.
His conviction was said to be the flag burning and not the insulting words he used. The question then became whether or not Johnson could use the first amendment to help his case. The first amendment protected free speech and that could include more than just spoken words. During his case Johnson argued that he burned the flag as an expression of speech, “Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication, ‘to implicate the First Amendment’,”(Texas v Johnson). Texas then argued that Johnson was convicted because his expression was turning violent and they were trying to subdue the violence. Justice Stevens then took much time and deliberation on the case and decided that the flag deserves protection from desecration because it symbolizes the ideals of America.
In the case US v O’Brien, Congress asserted their power in a situation that they felt it was necessary. Although the case was about the defiance of the 1965 Amendment it all came back to the first amendment and being able to express freely. The same happened in the case with Shact. He defied the law but it was brought back to the constitutional idea of being able to have the freedom to express one’s self regardless of what they are saying even if they are speaking out against the government. In the Spence v Washington case, Spence was trying to express his views on American and how it should be more peaceful. His views should have been allowed to be expressed because even though he was “defying” American property by taping a peace sign onto the flag, he was trying to show his views and express them symbolically which should be protected under the first amendment. These same ideas followed all the way to the case of Texas v Johnson where he burned the American flag publically. He was arrested for disturbing the peace and defacing the American flag. The ruling should allow him to express his political beliefs regardless of what they are.
In all four cases the government has charged these people on different issues but the main issue behind each case is whether or not symbolic expression should be considered freedom of speech. If symbolic freedom is considered freedom of speech then it must be protected under the first amendment of the constitution.
In the first incident regarding free speech and the first amendment, a man named David Paul O’Brien burned his selective service certificate along with three others on the court house steps in Boston. There was a crowd who witnessed the event and soon members of the crowd began attacking O’Brien and he was arrested and brought into the courthouse where he was then charged with violating the 1965 Amendment that prohibited the destruction or mutilation of selective service certificates arguing that it was unconstitutional to deface them.
O’Brien was taken to court on these charges and he had never denied doing it. O’Brien who was the respondent in this case, defended his argument by saying that he was merely trying to make his feeling about the Vietnam War public. He wanted his anti-war beliefs to be known to others. O’Brien argued that it was unconstitutional for him to be charged with breaking the 1965 Amendment because his freedom of speech, which is granted in the first amendment were not being recognized. He believed that the 1965 Amendment served no real purpose and had no legal legitimacy. The constitutional question now at stake is whether or not the first amendment protects O’Brien’s rights to freedom of speech when there are no words actually spoken but an idea is being expressed.
O’Brien’s arguments were rejected and the jury deemed that they could not inquire on Congress’s motives when the 1965 Amendment was created. Most importantly though, it was stated that part of Congress’s powers include the right to raise armies. Their right to raise armies is protected under the necessary and proper clause and because of this Congress has the right to administer the selective service certificates and administer the draft during times of war making the action O’Brien took illegal.
The argument continued with O’Brien saying that Congress was not made to suppress freedom. He argued that by burning the certificate it represented his opposition to the Vietnam War and was therefore represented free speech. This created O’Brien’s main argument: symbolic acts of speech should be protected under the first amendment. O’Brien’s argument was not heard though and he was still convicted and from there on the precedent was set, Congress has the right to declare war and the draft and limit freedom of speech if they deem it “necessary and proper”.
The US government acted as the petitioner in the case of 1968 with O’Brien and set the precedent for the cases to follow. In 1970, Daniel Jay Schact was indicted by the US District Court for the violating a law stating that it is a crime for any person to wear a military uniform without authority. Schact was tried and convicted in February of 1968 and charged with a fine of two hundred and fifty dollars and up to six months in prison. Schact rebutted the case. He admitted that he had worn parts of a uniform but said that he was wearing the uniform as an actor. He claimed that he was doing a street skit and was acting. He had intended to do an anti-war demonstration in which the American presence in Vietnam was displayed as “evil.” The government decided that what Schact was doing was not a theatrical performance and so Schact could not claim that he was being an actor. The idea of the time became clear, the first amendment protected free speech when people were praising the war, but when people spoke out against the war, the constitution was not protecting them.
These same ideas were continued in the Spence v Washington case in 1974. The appellant had displayed his own US flag from his apartment window but he had taped a large peace symbol on it. Three Seattle police officers came up to his apartment and arrested him. Spence was being charged on “improper use,” which stated that the American flag could not be altered, marked or changed in anyway and could not be displayed in such a manner.
Spence was tried and convicted with a ninety-day confinement sentence. The case was reviewed again and Spence stuck to his case. He stated that he had put the peace symbol on the flag as a protest against the Cambodian invasion and the Kent State University killings. He wanted to associate the American flag with peace, “I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace,”(Spence v Washington). He wanted to make it clear what his purpose was and that he made a temporary change to the flag, it was tape. Regardless of his testimony, the jury convicted him as guilty and he received ten days in jail and a seventy-five dollar fine.
There were additional factors taken into consideration though. The flag was privately owned and did not belong to the government. The flag was also displayed on private property and was not in a public area. Putting up the flag was not meant to cause violence. An important part of this case was the fact that what he displayed was a flag, “In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas,” (Spence v Washington). If the flag was therefore considered an expression and a form of speech then the first amendment was being violating.
The next case brought up was in 1989 between Texas and Gregory Lee Johnson. Gregory Lee Johnson was charged for desecrating the American flag and violating Texas Law during a public protest. There was a political demonstration to protest polices of the Reagan administration and the protest ended up in front of the Dallas City Hall. Johnson unveiled the flag and set it on fire. About a hundred protestors were chanting against America and only Johnson was convicted. He was tried and convicted with one year in prison and a two thousand dollar fine.
His conviction was said to be the flag burning and not the insulting words he used. The question then became whether or not Johnson could use the first amendment to help his case. The first amendment protected free speech and that could include more than just spoken words. During his case Johnson argued that he burned the flag as an expression of speech, “Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication, ‘to implicate the First Amendment’,”(Texas v Johnson). Texas then argued that Johnson was convicted because his expression was turning violent and they were trying to subdue the violence. Justice Stevens then took much time and deliberation on the case and decided that the flag deserves protection from desecration because it symbolizes the ideals of America.
In the case US v O’Brien, Congress asserted their power in a situation that they felt it was necessary. Although the case was about the defiance of the 1965 Amendment it all came back to the first amendment and being able to express freely. The same happened in the case with Shact. He defied the law but it was brought back to the constitutional idea of being able to have the freedom to express one’s self regardless of what they are saying even if they are speaking out against the government. In the Spence v Washington case, Spence was trying to express his views on American and how it should be more peaceful. His views should have been allowed to be expressed because even though he was “defying” American property by taping a peace sign onto the flag, he was trying to show his views and express them symbolically which should be protected under the first amendment. These same ideas followed all the way to the case of Texas v Johnson where he burned the American flag publically. He was arrested for disturbing the peace and defacing the American flag. The ruling should allow him to express his political beliefs regardless of what they are.
In all four cases the government has charged these people on different issues but the main issue behind each case is whether or not symbolic expression should be considered freedom of speech. If symbolic freedom is considered freedom of speech then it must be protected under the first amendment of the constitution.
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