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Due Process

Due Process. 14th Amendment Incorporation of the Bill of Rights The Doctrine of Incorporation holds that a liberty or property interest is applied to the states using the Due Process Clause of the 14th Amendment.

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Due Process

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  1. Due Process • 14th Amendment • Incorporation of the Bill of Rights • The Doctrine of Incorporation holds that a liberty or property interest is applied to the states using the Due Process Clause of the 14th Amendment. • The Doctrine of Incorporation is the mechanism whereby the Bill of Rights is applied to the states. The Supreme Court has incorporated the Bill of Rights into the 14th Amendment’s Due Process Clause in a “piecemeal” fashion (Selective), rather than all at once (Total).

  2. Fundamental Rights Test • What to incorporate? • Palkov. Connecticut (1937) • Fundamental Rights Test • Is the right implicit in the concept of an order liberty? • Is the right deeply rooted in our history and traditions?

  3. Freedom of Expression • Content-based regulation • Protected Speech – all speech is presumed to be protected by the First amendment • The standard of review applied to all content-based regulation is Strict Scrutiny (Fundamental Right)

  4. Freedom of Expression • Unprotected Speech • Advocacy of Imminent Unlawful Conduct • inciting a riot

  5. Freedom of Expression • Unprotected Speech • Schenckv. US (1919) – The Clear and Present Danger Test • Socialist party’s printing of anti-draft leaflets • Dennis v. US (1951)– Clear and Probable Danger

  6. Freedom of Expression • Unprotected Speech • Advocacy of Imminent Unlawful Conduct • Brandenbergv. Ohio (1969) – Imminent Danger test • Advocated racial strife during a televised KKK rally • This test protects the advocacy of lawlessness except in unusual circumstances

  7. Freedom of Expression • Unprotected Speech ii. Fighting Words – words with a direct tendency to cause acts of violence • Gov’t’s interest in keeping peace outweighs free speech interest

  8. Freedom of Expression • Unprotected Speech ii. Fighting Words • Chaplinskyv. New Hampshire (1942) – Fighting words • Chaplinsky called a cop a “Racketeer” and a “Fascist”

  9. Freedom of Expression • Unprotected Speech iii. Obscenity – What’s obscene? Miller v. California (1973) Miller test – • Does it appeal to a prurient interest? • Does it lack literary, artistic, political, or scientific value? • Does it violate Contemporary Community Standards?

  10. Freedom of Expression • Defamation – injury to reputation or privacy • New York Times Test – public officials or figures may not recover damages for defamation unless the statement was made with actual malice • Media use of info – press can release the name of a rape victim inadvertently released by police

  11. Freedom of Expression • False Advertising – Not protected • can prohibit advertising illegal conduct • Partially protected Speech i. Commercial speech – cigarette ads, hard liquor ads

  12. Freedom of Expression • Disclosure of Factual info (exposing CIA) • Threats to High public officials • Slander – false and malicious public statement • Libel – false and malicious printed statement

  13. Important Free Speech Cases • Cohen v. California (1971) – applies Brandenburg to Chaplinsky • Cohen wore a coat with “F the Draft” in large letters on the back to the courthouse • Buckley v. Valeo (1976) – Campaign expenditures are a form of free speech • Texas v. Johnson (1989) – Flag burning • R.A.V. v. St. Paul (1992) – Hate Speech • Virginia v. Black (2003) – VA cross burning law OK

  14. Freedom of Expression • Content-neutral regulation – Time, Place, and Manner

  15. Freedom of Expression – Time, Place, and Manner • Public Forum • A type or kind of public property – sidewalks, streets, public parks, designated meeting held • Limits on regulation • Must be content neutral • Narrowly tailored • Significantgov’t interest (noise control, safety) • Alternative channels available – can’t close off only channel for communication

  16. Freedom of Expression – Time, Place, and Manner • Nonpublic Forum • Most public property is NOT a public forum • Schools – Not ii. Limits on Regulation • Viewpoint Neutral – different from content • Reasonably related government purpose

  17. Freedom of Expression – Time, Place, and Manner • Private Forum – No state actors, but door/door solicitors can be regulated • Right NOT to speak – Boston St. Pat’s day Parade • Public accommodation law

  18. Important Free Speech Cases • Freedom of Expression in Schools • W.V. state Bd. Of Ed. v. Barnette (1943) • Jehovah’s Witnesses right NOT to salute the flag • Tinker v. Des Moines (1969) – the wearing of black armbands to protest the Vietnam War • • Students do NOT shed their right to the freedom of expression at the schoolhouse door • Bethel School District no.403 v. Fraser (1986) – Content of a speech at school can be controlled • Morse v. Frederick (2007)

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