| Basic Constitutional Law Principles Three Basic Ideas: a. The rights guarenteed in the Constitution are not absolute. Courts have designed several 'tests' to determine how cases should be decided. Ex. The balancing test - weighs the danger to the public against the benefit to the individual. b. Constitution protects citizens from certain actions by the government. c. Enforcing your rights can be time-consuming and expensive. Freedom of Speech Free speech is at the heart of an open, democratic society. It enables the truth to emerge from diverse opinions. Freedom of speech however, may at times be limited by government action. Not all speech is fully protected. Forms of speech: i. Obscenity: anything that treats sex or nudity in an offensive manner exceeds recognized standards of decency, and lacks serious literary, artistic, political, or scientifc value. In 1973 in the case of Miller v. California, the supreme court set out the following three part guideline: 1. Would the average person applying contemporary standards find that the material appeals to unwholesome interests. 2. Does the work depict or describe in an offensive way, sexual conduct specifically outlawed by applicable state law. 3. Does the work lack serious literary, artistic, political, or scientific value. ii. Defamation: a false expression about a person that damages that person's reputation. a. slander -spoken b. libel - written iii. Commercial (advertising): In general, courts will allow the government to ban commercial speech that is false or misleading or that provides information about illegal products. iv. Fighting words: words spoken face to face that are likely to cause an imminent breach of the peace. Incitement test - requires the unlawful action occur within a short period of time. v. Hate: In most states the law provides that enhanced sentencing where the defendant 'intentionally selects the person against whom the crime is committed because of race, religion, color, disability, sexual orientation...' vi. Time, Place, Manner Restrictions: these restriction regulate when, where, and how speech is allowed. Laws must be viewpoint neutral. vii. Sympolic: conduct that expresses an idea. Test - courts ask whether the speaker intended to convey a particular message and whether it is likely that the message was understood by those who viewed it. |