L3: In-class test correction

Correction L3 in-class exam (Nov. 2014)

I.

While the free exercise clause establishes that government does not infringe on the citizens’ right to practice their own religion freely, the establishment clause guarantees that no government may promote one religion at the expense of others or discriminate against one particular faith or religious belief.

In Palko v. Connecticut (1937), the USSC established the selective incorporation doctrine (/ established selective incorporation) according to which provisions of the U.S. Bill of Rights (1791) should be incorporated to the states on a case-by-case basis.

Since Warden v. Hayden (1967), the Fourth Amendment has been understood as protecting people’s privacy as much as people’s property against unreasonable searches and seizures, that is to say, searches conducted without a valid warrant.

Unlike witnesses, that are required to tell the truth and may only abstain from testifying when their statement might incriminate them, the defendant may choose either to testify and waive his Fifth Amendment privilege against forced self-incrimination or to keep silent and plead the fifth, (in which case his silence may not be interpreted as evidence of guilt).

Unless they have obtained a warrant based on probable cause, the police may not carry out / conduct a search and seize incriminating evidence.

In McDonald v. Chicago (2010), the USSC incorporated to the states its decision in D.C. v. Heller (2008), according to which / in which it had ruled that the Second Amendment to the US Constitution guarantees an individual right to keep a gun at home for traditionally lawful purposes such as self-defence.

Since the 14^th amendment was passed in 1968, provisions of the Bill of Rights (1791) have been made applicable to the states, although to this day, not all the Bill of Right has been incorporated / some amendments still have not been incorporated.

Pursuant to the exclusionary rule of the Fourth Amendment to the US Constitution, evidence obtained without a valid warrant will be held inadmissible in court / at trial, unless it may be established that the police officers were in good faith and genuinely believed in the validity of the warrant when they conducted the search. 

Once a defendant has been acquitted he may not be tried again on the same charge in the same jurisdiction as he enjoys Fifth Amendment protection against double jeopardy / as he is covered by the Fifth Amendment protection against double jeopardy.

The principle of selective incorporation established by the USSC in Palko v. Connecticut (1937), provides that only fundamental liberties enshrined in the Bill of Rights should be incorporated to the states thanks to the Fourteenth Amendment to the US Constitution (1868).

Since District of Columbia v Heller (2008), the Second Amendment to the US Constitution has been understood to guarantee an individual right to keep a gun at home for traditionally lawful purposes such as self-defence.

According to New York Times v Sullivan (1964), to recover damages a plaintiff must establish on a balance of probabilities that the defendant (who may be either a journalist or a writer for instance) published libelous allegations about him either recklessly or with deliberate malice.

Pursuant to the protection against forced self-incrimination enshrined in the Fifth Amendment, a defendant may plead the Fifth and refuse to testify in court, with the knowledge that his silence will not be interpreted as evidence of his guilt.

As long as a regulation is not “content-based” that is to say that it does not intend to ban speech because of the message it conveys, it is bound to be held constitutional / it is bound to pass constitutional muster / it is bound to be upheld by the USSC.

According to the “Lemon” test established in Lemon v. Kurtzman (1971), to be constitutional a law / a statute must not foster an excessive entanglement with religion, its legislative purpose must be secular and its primary effect must be religiously neutral.

In Terry v. Ohio (1968), the USSC ruled that police officers do not need a warrant to conduct a stop and frisk search as long as they have reasonable suspicion that criminal activity is under way.

Voc: To have reasonable suspicion

Although in Miranda v. Arizona the USSC held that a suspect remanded in custody should be notified of his Fifth and Sixth Amendments’ rights to remain silent and to be assisted by a lawyer prior to interrogation / before being interrogated, the Court also established in Salinas v. Texas (2013) that the police have no such duty as long as the suspect is not under arrest.

To notify someone of something

As opposed to total incorporation, the selective incorporation doctrine established by the USSC in Palko v. Connecticut (1937) provides that the incorporation of Bill of Rights’ provisions to the states should be made on a case-by-case basis.

Unless a warrant based on probable cause that criminal activity is under way / in progress is delivered by a judge, the police may not perform a search (as evidence obtained without a warrant is held inadmissible in court, in accordance with the fruit of the poisonous tree doctrine).

II.

Text: Thornton v. U.S.

1. Thornton filed a motion to suppress the evidence against him because he claims that since he had already exited his car when the officer decided to search it, the police should have obtained a warrant. Thornton argues that the police officers had no probable cause that incriminating evidence could be found when they stopped him. Only once they had found drugs on Thornton, did the officers decide to search the car. Pursuant to “the search incident to a lawful arrest” exception to the warrant requirement, Thornton’s immediate surroundings could be searched but, in his view, not his car since he had already stepped out of it.

2. The Supreme Court did not follow Thornton’s argument and ruled that the search was constitutional. It considered that requiring the suspect to have noticed the policemen while still his the car to make the search constitution is too subjective a criterion. On top of this, weapons stored in a car being just as easily accessible, whether the suspect be inside or outside the car, justifies the necessity to authorise police officers to search a suspect’s vehicle in the context of a search incident to a lawful address, even though the suspect has been arrested while outside his vehicle.

3. See booklet.

Text: Supreme Court Rules in Ohio Prison Case

1. The issue at stake in Cutter v. Wilkinson is whether a federal law that requires that prisons make sure that every inmate has the possibility to practice his / her religion freely is constitutional or not.

Indeed, if the purpose of the law is to uphold the free exercise clause of the First Amendment of the U.S Constitution, the establishment clause also forbids government to promote religion, which according to the State of Ohio, the law precisely infringes.

2. According to the arguments put forward by the State of Ohio, inmates desirous to practice their religion avail of prison facilities and enjoy special treatment such as the possibility to gather for religious services. On top of facilitating criminal activity, such measures, Ohio claims, encourage convicts to embrace religion since such concessions significantly improve their prison conditions. Consequently, Ohio considers federal law infringes the establishment clause.

3. The majority of the U.S.S.C. upheld the law, ruling that it serves the free exercise clause without infringing the establishment clause of the First Amendment.

4. See booklet.

Text: Schooling the Supreme Court on Rap Music

1 & 2: The question raised by Elonis v. United States is whether Elonis’s threatening posts on facebook should be protected by the First Amendment right to free speech. Elonis, who is serving a prison sentence for having issued death threats against his wife, argues that when considering the nature of his messages the court should focus on his real intention, and not on his wife’s interpretation of these messages.

By doing so, Elonis further contends, the court would not see these posts as true threats (which are not protected by the First Amendment), but as artistic texts drawing on rap and blues music traditions.

The case is heard by the USSC because it raises a constitutional issue of public importance, but also because in a similar case where the petitioner raised a defence similar to Elonis’s, a Federal Court of Appeal issued a decision that gives credit to Elonis’s argument.

3. Students’ own answers:

Students may discuss what makes the specificity of art, and what may contribute to distinguishing explicit lyrics of artistic value from true threats.

For instance, students may mention Eminem’s song entitled “Kim” in which the rapper narrates the vicious killing of his wife, and note that the realistic depiction of the murder is all the more disturbing that Eminem enhances the autobiographical nature of the song by giving the victim in the song the same name as his former wife.

To justify the distinction between Eminem and Elonis, however / However, to argue in favour of Eminem’s case and to condemn Elonis, students may also stress that if the rap song and Elonis’s theats are both disturbing, Elonis’s messages fundamentally lack Eminem’s stylistic quality in terms of riming or rhythmic patterns as well as the rapper’s use of various rhetorical devices (metaphor, paronomasia…) similar to those found in poetry (or “slam poetry” for example). Despite its unpleasant content, such devices may contribute to giving the song some kind of artistic value. 

Lastly, students may also discuss Elonis’s statement that art is about pushing limits. Students may, for instance, argue that Eminem does not necessarily pushes limits by ambiguously blurring the boundaries between fiction and autobiography, but by challenging some of the codes of rap music itself, and more specifically by describing the plight or the distressing living conditions of underprivileged white American folks.