The first amendment has two distinct protections contained within in it: the free exercise clause and the establishment clause. The Free Exercise Clause guarantees freedom to practice one’s religion without government interference as long as those practices do not harm other individuals or society. The Establishment Clause guarantees freedom of religion by providing a basis for Supreme Court decisions limiting government support for and endorsement of particular religions. There are two competing views respecting the freedom of religion. Strict separation views government as needing to avoid contacts with religion, especially those that lead to government support or endorsement of religious activities. Conversely, accommodationists would permit the government to provide support for religion and associated activities, as long as preference is not given to one religion over another. Both Engel and Abington represent strict separationist views, in that the Court ended official government sponsorship of prayer in school as a violation of the establishment clause. In the case of Lemon , the Court faced the issue of establishment. Here, the Court established a three-prong test, requiring that the purpose of a state’s law must be secular, that it neither advance nor inhibit religion, or excessively entangle the government with religion.
In Engel v. Vitale (1962), the Court found a violation of the establishment clause in the common public school practice of beginning each day with a teacher-led prayer. A second decision barred public schools from reading the Lord’s Prayer and Bible verses over their public address systems ( School District of Abington Township, Pennsylvania v. Schempp, 1963) Lemon test established in Lemon v. Kurtzman (1971) wherein the Court examines government policy to determine whether there is a secular, legislative purpose; whether the effect or intent either advances or inhibits religion; and whether or not it creates excessive entanglement between religion and government.
In the case of West Virginia v. Barnette , the court reversed an earlier ruling that individuals cannot be compelled to salute or say the pledge if their religious beliefs were in conflict. Further, in Wisconsin, the Court ruled that compulsory school attendance, when in conflict with a religion’s tenants, could not be enforced. These examples illustrate the Court’s application of strict scrutiny where the free exercise of religion is concerned. Strict scrutiny (or the compelling government interest test), places the burden on the government to demonstrate the necessity of a specific law in order to outweigh an individual’s desire to engage in a religious practice.
The First Amendment differentiates between types of speech, and the Court has placed limits on some kinds of speech. For example, commercial speech that is deceptive, and threatening or terroristic speech are not protected. Conversely, intellectual property is under copyright law. The Chaplinsky Doctrine , established in Chaplinsky v. New Hampshire (1942), does not protect include ”lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
The Court began to move in a new direction by declaring that the First Amendment right to free speech is included in the protections of the Fourteenth Amendment due process clause. In the case of Schenck , the Court established the “clear and present danger” test for speech. The clear and present danger test created a test for permissible speech that allows government regulation of some expressions. In Gitlow, the Court determined that individuals enjoy the right to freedom of speech against actions and laws by state and local governments. Brandenburg established the standard that government may not interfere in speech unless it presents an “imminent harm” which was a narrowing of the “clear and present danger” test. Not all speech involves the act of using your voice. Symbolic speech is an action (such as wearing a black armband as in the Tinker case, or flag burning as in the Johnson case) designed to communicate an idea. Tinker established the concept of “symbolic speech” and further, articulated that those rights extended to children in public schools. The Johnson case simply extended this form of symbolic speech to include flag burning as a form of political protest.
Prior restraint is the government’s attempt to prevent certain information or viewpoints from being published. This does not prevent authors and publishers from later being sued for the publication of false or misleading information that harms people’s reputations. Such civil lawsuits are for defamation , false, harmful statements either through spoken words ( slander ) or through written words ( libel ). Press Shield Law refers to a statute enacted by a legislature establishing a reporter’s privilege to protect the confidentiality of sources. The NY Times came into possession of information associated with alternative plans to the Viet Nam conflict known as the Pentagon Papers . The Nixon administration attempted to keep the Times from publishing this information as a threat to national security. The Court determined “prior restraint” was not appropriate.
In Roth, the Court had to face the thorny issue of obscenity, creating “utterly without redeeming social importance” but would review the issue again in 1973, in Miller v. California . Reporter’s privilege is the right of news agencies to decline to provide information requested by the government. Although some states have enacted press shield laws which protect reporters in state justice processes, the federal courts have refused to recognize a constitutional privilege to protect reporters nationwide. In the case of Miller , the court tackled obscenity again, and while determining obscenity is not protected, they developed a three-prong test to separate protected speech from the former. The test is referred to as the SLAPS test. The work must be taken as a whole, and based upon the perception of an average person, applying contemporary community standards, determines the work to be appealing to prurient interests, or lacks serious, literary, artistic, political or scientific value.
The exclusionary rule was established in 1914 in Weeks v. United States. The exclusionary rule states that evidence obtained improperly by the police cannot be used to prosecute someone accused of a crime. This rule was incorporated to the states in Mapp v. Ohio . A warrant is a judicial order authorizing a search or an arrest. Under the Fourth Amendment, police and prosecutors must present sufficient evidence to constitute “probable cause” in order to obtain a warrant from a judge. Probable cause is generally understood to mean that reliable information shows it is more likely than not that specific items that provide evidence of criminal activity will be found in a certain location ( search warrant ) or that a specific individual committed a crime ( arrest warrant ). Right to counsel is extended to state criminal offenses where the defendant’s freedom from jail is in jeopardy Miranda v. Arizona (1966) the Court’s decision that requires police officers, before questioning a suspect in custody, to inform that suspect about the right to remain silent and to have a lawyer present during custodial questioning. The requirement that once detained in a situation wherein a citizen is being treated as a suspect, the police must inform the suspect of their rights afforded under the Fifth and Sixth Amendments. Extends to defendants, a right to a trial by jury. Roper prohibits the imposition of the death penalty on minors.
Double jeopardy refers to the protection against being tried twice for the same crime by the same level of government. Self-incrimination does not mean that a suspect cannot confess, but cannot be he cannot be compelled to provide statements that will be used against them. The statements must be made voluntarily.
Duncan v. Louisiana, incorporated the right to a trial by jury to the states. Powell v. Alabama incorporated the right to counsel when the charges could result in the death penalty Furman temporarily halted the death penalty when the Court determined that as applied, it amounted to arbitrary and capricious punishment. Four years later, in Gregg v. Georgia, the Court ruled that the procedure passed constitutional muster when a bifurcated trial/penalty stage was instituted. In Atkins v. Virginia , the Supreme Court prohibit the execution of mentally retarded individuals. In Roper v. Simmons the Supreme Court ruled the execution of murderers who commit crimes while they are under the age of 1eighteen is “cruel and unusual punishment.”
Trial by Jury requires that criminal guilt decided by a body of citizens drawn from the community. Bench trials in which the verdict is determined by a judge without a jury are an alternative and defendants may request bench trials because they are afraid that jurors may be biased and emotional, especially if there are controversial charges involving sex offenses, guns, or drugs. Confrontation and compulsory process are considered essential to providing fair trials for criminal defendants. The right to confrontation permits the defendant to be present in the courtroom when the victim and other witnesses provide testimony about the defendant’s alleged guilt. The entitlement to compulsory process permits the defendant to use the power of the court to require witnesses to appear at court and to obtain needed documents that might be relevant to the case. Speedy and public trials provides important protections for criminal defendants in that it ensures that the government cannot hold secret proceedings that prevent citizens from knowing whether evidence exists to prove a defendant’s guilt. Further, prevents the government from ruining a person’s life by holding charges over his or her head for an indefinite period of time. Most criminal convictions are obtained through plea bargaining, a process approved by the Supreme Court in which prosecutors and defense attorneys negotiate a guilty plea in exchange for a less-than-maximum number of charges or a less severe sentence.
Capital Punishment is a criminal punishment, otherwise known as the death penalty, in which a person is subject to execution after conviction. Reserved for the most serious offenses.
How might political values explain the relatively large number of executions in southern states and the small number of executions in California, a large state with many murders?
The right to privacy is the constitutional right created and expanded in U.S. Supreme Court decisions concerning access to contraceptives, abortion, private sexual behavior, and other matters, even though the word privacy does not appear in the Constitution.
In Griswold , the Court recognized that within the penumbra of rights afforded citizens, there existed an implied right to privacy and established this in their first ruling in 1968. Five years later in Roe v. Wade , this was expanded. Roe v. Wade was the controversial U.S. Supreme Court decision that declared women have a constitutional right to choose to terminate a pregnancy in the first six months following conception by creating a ‘sliding’ right to privacy. In Lawrence v. Texas , the Court overturned the long-standing precedent established in Bowers v. Hardwick , which criminalized homosexual conduct.