Metro Government J-Term: 2012

Hi Everyone!

To stay in the spirit of our visit to the Ohio Supreme Court Mr. Frase and I are asking you to look at 3 controversial Supreme Court Decisions. We would like you to answer the questions and respond to fellow students as usual. I hope you enjoy reading about these important cases. Again, answers due Sunday with responses due the following Tuesday.

Case #1 Mapp V. Ohio

Ms. Dollree Mapp and her daughter lived in Cleveland, Ohio. After receiving information that an individual wanted in connection with a recent bombing was hiding in Mapp's house, the Cleveland police knocked on her door and demanded entrance. Mapp called her attorney and subsequently refused to let the police in when they failed to produce a search warrant. After several hours of surveillance and the arrival of more officers, the police again sought entrance to the house. Although Mapp did not allow them to enter, they gained access by forcibly opening at least one door. Once the police were inside the house, Mapp confronted them and demanded to see their warrant. One of the officers held up a piece of paper claiming it was a search warrant. Mapp grabbed the paper but an officer recovered it and handcuffed Mapp "because she had been belligerent". Dragging Mapp upstairs, officers proceeded to search not only her room, but also her daughter's bedroom, the kitchen, dinette, living room, and basement.

In the course of the basement search, police found a trunk containing "lewd and lascivious" books, pictures, and photographs. As a result, Mapp was arrested for violating Ohio's criminal law prohibiting the possession of obscene materials. At trial, the court found her guilty of the violation based on the evidence presented by the police. When Mapp's attorney questioned the officers about the alleged warrant and asked for it to be produced, the police were unable or unwilling to do so. Nonetheless, Mapp was found guilty and sentenced to 1 to 7 years in the Ohio Women's Reformatory.

Upon her conviction, Mapp appealed her case to the Supreme Court of Ohio. Her attorney argued that she should never have been brought to trial because the material evidence resulted from an illegal, warrantless search. Because the search was unlawful, he maintained, the evidence was illegally obtained and must also be excluded. In its ruling, the Supreme Court of Ohio recognized that "a reasonable argument" could be made that the conviction should be reversed "because the 'methods' employed to obtain the [evidence]. . . were such as to 'offend' a sense of justice." But the Court also stated that the materials were admissible evidence. The Court explained its ruling by differentiating between evidence that was peacefully seized from an inanimate object (the trunk) rather than forcibly seized from an individual. Based on this decision, Mapp's appeal was denied and her conviction upheld.

Mapp appealed again to the Supreme Court of the United States. The case came down to this fundamental question: may evidence obtained through a search in violation of the Fourth Amendment be admissible in state criminal proceedings? The Fourth Amendment states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment, however, does not define when a search or seizure is "unreasonable" nor does it specify how evidence obtained from an "unreasonable" search should be treated.

While never previously addressing the specific question presented by Mapp's case, the Supreme Court of the United States had made attempts to determine what constitutes a reasonable search and what evidence can be used in court. It first wrestled with these issues in Boyd v. United States(1886) when the Court declared that "any forcible and compulsory extortion of a man's own . . . private papers to be used as evidence to convict him of a crime . . . is within the condemnation of . . . [the Fourth Amendment]. Later, in Weeks v. United States (1914), the Court ruled that the Fourth Amendment "put the courts of the United States and federal officials . . . under limitations . . . and forever secure[d] the people, their persons, houses, papers and effects against all unreasonable searches and seizures. . . ." By including only United States and federal officials in its ruling, however, the Court still left open the question of whether evidence unlawfully seized could be used in a state criminal court proceeding. In Wolf v. Colorado (1949) the Court for the first time discussed the effect of the Fourth Amendment on the states. It concluded that the Due Process Clause of the Fourteenth Amendment incorporated, or made applicable to the states, the Fourth Amendment to the Constitution. However, the ruling in Wolf also made clear that "in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure." In other words, the exclusionary rule did not apply to the states.

Some states, including Ohio, felt that they should be able to make their own determination regarding the admissibility of illegally obtained evidence. Nevertheless, in 1960 the Supreme Court of the United States agreed to hear Mapp's case and reconsider the decision it had reached in Wolf by determining whether the U.S. Constitution prohibited state officials from using evidence obtained in violation of the Fourth Amendment. The decision inMapp v. Ohio was handed down in 1961.

In your opinion, was Dollree Mapp justified in denying the police entrance to her house? Explain your reasoning.
The Fourth Amendment states "The right of the people to be secure . . . against unreasonable searches and seizures shall not be violated . . . " If you were a justice for the Supreme Court of Ohio what, if anything, would you find unreasonable in the search of Mapp's house? Explain.
Why didn't the Court's decision in Wolf protect Mapp?
The Supreme Court of the United States has to balance the protection of the rights of individuals against the protection of society. If the police had not searched Mapp's house they would never have found the trunk containing "lewd and lascivious books". With this in mind, do you think the rights of Mapp or society should have been given more weight? Why?

Case #2 Texas V. Johnson

Gregory Lee Johnson participated in a political demonstration during the Republican National Convention in Dallas, Texas, in 1984. The purpose of the demonstration was to protest policies of the Reagan Administration and of certain corporations based in Dallas. Demonstrators marched through the streets, chanted slogans, and held protests outside the offices of several corporations. At one point, another demonstrator handed Johnson an American flag.

When the demonstrators reached Dallas City Hall, Johnson doused the flag with kerosene and set it on fire. During the burning of the flag, the demonstrators shouted, "America, the red, white, and blue, we spit on you." No one was hurt or threatened with injury, but some witnesses to the flag burning said they were seriously offended. One witness picked up the flag's charred remains and buried them in his backyard.

Johnson was charged with the desecration of a venerated object, in violation of the Texas Penal Code. He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Court of Appeals for the Fifth District of Texas, which let his conviction stand. He then appealed to the Texas Court of Criminal Appeals, which is the highest court in Texas that hears criminal cases. That court overturned his conviction saying that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances.

The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. Therefore in order for a state to criminalize or regulate such conduct it would have to serve a compelling state interest that would outweigh the protection of the First Amendment. The court concluded that criminally sanctioning flag desecration in order to preserve the flag as a symbol of national unity was not a compelling enough interest to survive the constitutional challenge. It also held that while preventing breaches of the peace qualified as a compelling state interest the statute was not drawn narrowly enough to only punish those flag burnings that would likely result in a serious disturbance. Further, it stressed that another Texas statute prohibited breaches of the peace and could serve the same purpose of preventing disturbances without punishing this flag desecration.

The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms . . . a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol. . . . " The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace.

The State of Texas filed a petition for a writ of certiorari and, in 1988, the Supreme Court of the United States agreed to hear the case. In 1989, the Court handed down its decision.

Read the First Amendment to the U.S. Constitution. What part of the Amendment is relevant to this case?
What do you think is meant by "symbolic speech"? What are some other examples?
What argument could you make that flag burning threatens to cause violence and therefore should be against the law?
What arguments could you make that the First Amendment should protect flag burning?
How should the Supreme Court of the United States decide this case? Why?

Case #3 Tinker V. DesMoines

John and Mary Beth Tinker were public school students in Des Moines, Iowa in December of 1965. As part of a group against American involvement in the Vietnam War, they decided to publicize their opposition by wearing black armbands to school. Having heard of the students' plans, the principals of the public schools in Des Moines adopted and informed students of a new policy concerning armbands. This policy stated that any student who wore an armband to school would be asked immediately to remove it. A student who refused to take off his or her armband would be suspended until agreeing to return to school without the band.

Two days later and aware of the school policy, the Tinker children and a friend decided to wear armbands to school. Upon arriving at school, the children were asked to remove their armbands. They did not remove the armbands and were subsequently suspended until they returned to school without their armbands.

The children returned to school without armbands after January 1, 1966, the date scheduled for the end of their protest. However, their fathers filed suit in U.S. District Court. This suit asked the court for a small amount of money for damages and an injunction to restrain school officials from enforcing their armband policy. Although the District Court recognized the children's First Amendment right to free speech, the court refused to issue an injunction, claiming that the school officials' actions were reasonable in light of potential disruptions from the students' protest. The Tinkers appealed their case to the U.S. Court of Appeals but were disappointed when a tie vote in that court allowed the District Court's ruling stand. As a result they decided to appeal the case to the Supreme Court of the United States.

The case came down to this fundamental question: Do the First Amendment rights of free speech extend to symbolic speech by students in public schools? And, if so, in what circumstances is that symbolic speech protected? The First Amendment states "Congress shall make no law . . . abridging the freedom of speech." The Fourteenth Amendment extends this rule to state governments as well, of which school systems are a part. The First Amendment, however, does not identify which kinds of speech are protected. For example, it is not clear whether hate speech against an individual or group is protected. Neither does the First Amendment specify what types of expressive actions should be considered as speech.

The Supreme Court of the United States has made many attempts to determine what types of symbolic speech are protected under the First Amendment. In 1919, the Court decided in Schenck v. United States that an individual could be punished for distributing anti-World War I pamphlets urging non-compliance with the draft because the pamphlets "create[ed] a clear and present danger that they will bring about [a] substantive evil[ . . .] Congress has a right to prevent"—draft obstruction. The Court wrestled with the issue of the right to symbolic speech again in the case of Thornhill v.Alabama (1940) when the Court ruled that picketing was a form of symbolic speech protected by the First Amendment because no clear and present danger of destruction of life or property or of breach of the peace was inherent in the action. Three years later in West Virginia v. Barnette (1943), the Court extended the First Amendment protection of symbolic speech to students in public schools. In Barnette, the Court held "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . ."

In 1968 the Supreme Court of the United States agreed to hear Tinker's case and consider the constitutionality of the Des Moines principals' anti-armband policy. The Court's decision in Tinker v. Des Moines was handed down in 1969.

Do you think that the school policy banning armbands was fair? Why or why not?
The students knew they would be suspended if they wore armbands to school and chose to do so anyway. Why do you think they ignored the rule?
The First Amendment says "Congress shall make no law . . . abridging the freedom of speech." Why do you think the Supreme Court of the United States has ruled that certain actions should have the same protection as verbal speech? Are these reasons valid?
In both Schenck and Thornhill, the Court seemed to make a rule that certain actions were guaranteed protection under the First Amendment's freedom of speech clause as long as those actions did not . . . What rule or test did the Court seem to make?
Pretend that students in your school wanted to protest the school-wide ban on smoking. Should they legally be allowed to protest by wearing T-shirts that read "Up with 'Butts'!"? Why or why not?

This is your second Blog Assignment for this course. This blog assignment should help you with your Constitutional Mastery Assignment

Once again, answers to the questions are due on Sunday 1/15
Responses to other students are due Tuesday 1/17

Most students did an excellent job on the last blog assignment.

Lets see that same type of intelligent discourse in this assignment!!

Please watch the video "One Man Changes the Constitution" on this link:

http://www.annenbergclassroom.org/page/key-constitutional-concepts

The section of the video we need begins at 22.59 minutes

Please respond to these questions:

1. If you are accused of a crime, do you need an attorney? Please explain why.

2. List 2 advantages and 2 disadvantages of having a lawyer

3. Sixth Amendment to the United States Constitution
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence.

List the 7 rights contained in this Amendment

4. Do you think Clarence Gideon was guilty based on the evidence
presented at his first trial and his past history?
ƒ
5. Based on his past history, why might Gideon not receive a fair
trial?

6. What does it mean to be presumed innocent until proven guilty?

7. Do you think the evidence is strong enough to convict Gideon?
Why or why not?

8. What is circumstantial evidence?

9. Was Clarence Gideon right in his assertion that the court must provide a
lawyer for him? Why or why not?

10. What was an attorney able to do for Gideon in the second trial that
he was not able to do for himself in the first?

11. If you are charged with a crime, why is it important to have a
lawyer?

12. What did Supreme Court Justice Hugo Black think about Gideon’s
appeal?

13. How was the Fourteenth Amendment applied in this case?

14. How do those detained by the police or arrested for a crime know about their
right to an attorney?

15. What happens if the police do not inform the person of their rights?

16. Review Handout #2, Important Court Cases Regarding the Right to Counsel.
Encourage students to use the Justice Learning website to complete the handout.

Handout #2
Important Court Cases Regarding Right to Counsel

Case Notes

Powell v. Alabama (1932) The Supreme Court determined that
defendants in capital cases are entitled to
an attorney.

Betts v. Brady (1942)

Gideon v. Wainwright (1963)

Miranda v. Arizona (1966)

17. Using the information collected about the court cases and the Constitution as
supporting evidence, answer the following question:

a. Was the Florida court justified when it denied Gideon a court-appointed lawyer?
ƒ If you answered no, then explain why the Supreme Court overturned the
Florida court’s decision and their reasoning for doing so.

ƒ If you answered yes, then explain how the Gideon case departed from
earlier Supreme Court decisions.