First Amendment Legal Precedents - Essay Example

 First Amendment Legal Precedents In light of established First Amendment legal precedents, do you think that the Fremont Street Experience should be considered a public forum where free speech must be allowed or private property from which protestors can be banned? The Fremont Street Experience is a public forum. When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the U.S. Supreme Court examines whether the regulation restricts the content of the speech or merely regulates the time, manner, and place in which the speech is delivered. Here, Las Vegas is attempting to assert that a public street is a private place and the notion flies in the face of the first amendment. If the city of Las Vegas regulates the content of the expression, there must be a compelling state interest and must be narrowly written to achieve that interest. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). Restrictions on speech in a public forum will likely also be upheld if the expressive activity being regulated is a type that is not entitled to full First Amendment protection, such as obscenity. Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression. It is not necessary that a content-neutral law be the least restrictive alternative, but only that the government's interest would be achieved less effectively without it. Ward v. Rock against Racism, 491 U.S. 781, (1989). A distinction is drawn between public premises that serve as traditional public forums and those that constitute limited public forums. For example, state fair grounds are public premises that have not traditionally served as public forums. The government is allowed to impose more restrictions on free speech in limited public forums than in traditional public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds. Here there is nothing to indicate that the grounds are private and as such the protest should be allowed subject to any limitations set forth by Heffron v. International Society for Krishna Consciousness. 2. 10 points - Harvey Case- information attached Do you think Judge Ross’s ruling that William Harvey’s arrest was a legitimate exercise of government power was a sound legal decision ? Or do you agree with the New York Civil Liberties Union’s director that the ruling violated Harvey’s First Amendment rights? Explain your answer citing the legal rules that apply to free speech and explaining how you believe they apply to the particular facts surrounding William Harvey’s arrest. One of the freedoms that we as Americans enjoy is the freedom of speech and with any freedom, comes the drawbacks. Setting aside the sickening notion that America in any way deserved the tragic events that occurred on September 11, 2001, the fact remains that everyone is entitled to express their opinions. Laws that limit inciting or provocative speech, often called fighting words, or offensive expressions such as pornography, are subject to what the United States Supreme Court has determined as a strict scrutiny test. The government may impose content regulations on certain categories of expression that do not merit First Amendment protection. For example, the Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, (1942),"There are certain defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems." One would hope that “America bashing” would be one of them. Unfortunately that is not the case and the police would be incorrect in arresting Harvey. Since the 1980s, a number of laws have been passed that attempt to regulate or ban "hate speech," Hate speech is mostly defined as utterances, displays, or expressions of racial, religious, or sexual bias. R.A.V. v. City of St. Paul, 505 U.S. 377, (1992). The U.S. Supreme Court has generally invalidated such local laws on the ground that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, the Court invalidated the city of St. Paul's hate-crime ordinance, ruling that it unconstitutionally infringed free speech. The defendant in that case had been prosecuted for burning a cross on the lawn of an African-American family's residence. Based upon that Supreme Court ruling, Harvey’s arrest was a violation of his First Amendment rights. 3. 15 points. Freedom of Religion Case- information attached If you were a Supreme Court justice, how would you rule in this case? Explain how your arrived at your decision by explaining the legal rules that apply to the First Amendment’s establishment clause and free exercise clause and applying them to the facts of the case. The First Amendment to the United States Constitution declares that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. In Lemon v. Kurtzman, the Supreme Court composed a three-part test to be employed by courts in determining whether the government's actions in a particular case violated the Establishment Clause. At issue in the case were the laws of two states, Rhode Island and Pennsylvania. The laws in these states provided financial support for nonpublic, religious elementary and secondary schools. In each case, the court found that state support for teachers' salaries, textbooks and materials were justified because funding was provided only for the teaching of secular subjects taught in public schools. The laws of both states were challenged on the grounds that they "established" religion in violation of the First Amendment. The Supreme Court reasoned that it is not the quality of the education provided by private schools or their efficiency that matters, but whether state aid to religious schools can be "squared with the dictate of the Religion Clauses." The Court stated: “Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and church excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.” From that time forward, there have been lines drawn which have established that acceptable forms of state aid are Free Bus Transportation (if provided for both public and private school students); Nondenominational Textbooks; Aid for Buildings at Colleges & Universities. Unacceptable aid according to caselaw is: Supplementing teacher salaries; Tuition payments or rebates for elementary or secondary schools and Money for equipment or supplies. Here the State is correct in arguing that its ban on providing money for religious study reflected the U.S. Constitution's First Amendment ban on establishing religion as interpreted by the U.S. Supreme Court. Accordingly, judgment is entered in favor of the state. 4. 10 points Homeland Security Exception? case - information attached. If you were the judge in this case, would you suppress the evidence of drunken driving on the grounds that the stop violated the 4th Amendment or allow it on the grounds that protecting homeland security justified the stop? Explain the legal reasoning for your decision. It is interesting that this scenario is part of this exam because a case called U.S. v. Bell, just came down from the U.S. Court of Appeals for the Sixth Circuit, on February 17, 2009. The question for consideration is how long, during the stop (which was authorized pursuant to homeland security statutes) did it take for the officers to realize that the man was intoxicated? In Bell, court found that “to detain a motorist any longer than is reasonably necessary to issue a traffic citation, the officer must have reasonable suspicion that the individual engaged in more extensive criminal conduct. Thus, the Fourth Amendment does not require reasonable suspicion to justify using a drug-detection dog as long as the traffic stop and detention are not unlawful or improperly extended.”. Here, so long as the original reason for the stop was legal, which it was, then so long as the officers learned that the man was intoxicated as they were doing their security check, the arrest is legal as well. Presumably, as the officers were talking to the defendant, he spoke back and they were struck by the smell of alcohol. This is enough to produce a reasonable suspicion which will justify the arrest of the man. Accordingly, the evidence should not be suppressed because the original premise for the stop was legal, and it doesn’t take much to realize that someone is clearly intoxicated. 5. 15 points Groh v. Ramirez – information attached If you were a Supreme Court justice, how would you vote on the legal questions in this case? a.Was the search legal under the “good faith exception’ even though the warrant was invalid? b. Should Groh be liable for damages? The Fourth Amendment requires that for a warrant to be valid, it must "particularly describ[e] the place to be searched, and the persons or things to be seized." This particularity requirement makes "general searches under [a warrant] impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, (1927). The Fourth Amendment to the U.S. Constitution provides a right against “unreasonable searches and seizures.” To deter the federal and state governments from violating this right, courts have developed an “exclusionary rule,” which requires that evidence obtained as a result of an invalid search or seizure be excluded from use at trial. The Supreme Court has narrowed the scope of the exclusionary rule in several cases since the late 1970s. In United States v. Leon, the Court created the “good-faith” exception to the exclusionary rule. The good-faith exception applies when officers conduct a search or seizure with “objectively reasonable reliance” on, for example, a warrant that is not obviously invalid but that a judicial magistrate should not have signed. In Hudson v. Michigan, the Supreme Court had applied the good-faith exception only in cases in which the error creating the constitutional violation was caused by judicial or legislative actors, rather than by the police themselves. In Hudson, the Court applied the exception to a case in which police officers had violated the “knock and announce” rule by entering a home without waiting a sufficient period of time. In Herring v. United States, a 2009 decision, the Supreme Court for the first time applied the good-faith exception to bar application of the exclusionary rule in a case involving police error regarding a warrant. A police officer in the case mistakenly identified an arrest warrant for the defendant. The Court held that evidence discovered after the subsequent arrest was admissible at trial because the officer’s error was not “deliberate” and the officers involved were not “culpable. Based upon the foregoing, the court would likely rule that Groh’s mistake was a good faith error and that it was actually the judges mistake, since Groh’s affidavit clearly stated what he wanted searched. Accordingly, there is no liability for damages either. 6. 10 points :Discuss the problem of coerced confessions taking into account: Why they occur Police and prosecutors’ motives and actions Legal and social consequences Potential remedies According to the Innocence Project, since 1982 there have been 156 exonerations of which 37 (24%) “confessed.” Tremendous pressure is put on the police to solve the crime, and this, in turn I believe, leads the police to put tremendous pressure on suspects in the interrogation proceeding. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court blatantly admitted the effectiveness of psychological coercion: “Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, “Since Chambers v. Florida, 309 U.S. 227, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206 (1960). Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gapping our knowledge as to what in fact goes on in the interrogation rooms…the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact.” Simply stated, the pressure to solve a crime, due to its’ nature makes society put undue pressure on law enforcement which, too many times, as demonstrated by the innocence project, results in a wrongful conviction. The only remedy available to a wronged defendant is a lawsuit. 7. 10 points- Effectiveness of counsel case - information attached. Legal question presented: did the defendant receive effective assistance of counsel according to the established precedents that apply to the Sixth Amendment right of assistance of counsel? A criminal defendant is in a situation where his life or liberty is on the line, because he is often facing a prison sentence and in the most extreme case, execution. It is in this forum where counsel's duty to represent more important than when the client's life is at stake. "A criminal defendant not only has a lot more at stake than a civil plaintiff or defendant, but is also much less likely to have chosen his own counsel." In Strickland v. Washington, the Court articulated a general test for ineffective assistance of counsel in criminal trials and in capital sentencing proceedings. This test commonly known as the Strickland test is two pronged. Firstly, the conduct of the attorney must rise to “deficient attorney performance and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question”. In Strickland, the court concluded that “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strategic choices made after thorough investigation of relevant law and facts are “virtually unchallengeable,” as are “reasonable” decisions making investigation unnecessary. In order to establish prejudice resulting from attorney error, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” In Strickland, neither part of the test was satisfied. The attorney’s decision to forego character and psychological evidence in the capital sentencing proceeding in order to avoid evidence of the defendant’s criminal history was deemed “the result of reasonable professional judgment,” and prejudice could not be shown because “the overwhelming aggravating factors” outweighed whatever evidence of good character could have been presented. In Hill v. Lockhart, the Court applied the Strickland test to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty. There are times when prejudice may be presumed. For example, there can be “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” These situations include actual or constructive denial of counsel, and denial of such basics as the right to effective cross–examination. However, “[a]part from circumstances of that magnitude. . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show prejudice.” Applying the law to this fact pattern, the claim of ineffective counsel is based on the lawyer not having the defendant testify about the alleged police abuse. The lawyer said he thought his case was going well and he didn't need to put his client on the stand and that he didn't want to give the prosecution an opportunity to ask him about previous gang activity. It is difficult to understand how a conviction was achieved where there was no was no physical evidence linking the defendant to the crime. Fingerprints found at the crime scene did not match his and later disappeared. There is no indication that he defense attorney requested a negative inference jury instruction either. While there may have been some police brutality involved during questioning, I do not believe that the police brutality is the main issue here. I think that the accused shows prejudice in that there is no record of the defense putting on a case, objecting to evidence or any of the other obligations that defense counsel has. As to the defendant testifying to police brutality, I think that without more, it is not enough to show ineffective assistance of counsel. I cannot say that the court would rule that this conviction would have come out otherwise. Accordingly, my answer stands thus: 1. The Court will find ineffective assistance of counsel in looking at the totality of the case, which would be part of the appellate record. 2. If the defendant simply offers the police brutality as the reason why there was ineffective assistance of counsel, they will not win. 3. In his appellate brief, defendant is well advised to allege a general allegation of ineffective assistance of counsel and allow the court to make its own conclusions. If you were an Illinois Supreme Court justice, how would you rule in this case? Explain how your arrived at your decision by explaining the applicable legal rules and how you would apply them to the facts of the case. In Wade v. Franzen et al., Willie Wade was convicted of murder by a jury in an Illinois state court and sentenced to 50 to 100 years in prison. The Illinois Appellate Court affirmed his conviction. Wade brought a writ of habeus corpus in the federal district court alleging ineffective of counsel. The court in that case noted “Making every allowance for the fact that more skillful counsel would have shaped the record to be less adverse to Wade, and correcting for all of the lawyer's blunders and hence assuming that Wade's confession had been suppressed, along with the statement "I just shot the nigger" and the speculations about possible hiding places for the gun and possible uses of the blanket, we have the impression that the remaining evidence of guilt-Denise's eyewitness testimony, the blood on the trousers, and much else besides-was overwhelming. But we have not read the trial record. The district court must do so and it must decide, in the first instance at least, whether, if Wade was denied effective assistance of counsel because of the many blunders that his lawyer made, it still is clear beyond a reasonable doubt that he would have been convicted of Hill's murder.” Likewise here. Here , it certainly is not clear beyond a reasonable doubt that the defendant would have been convicted of murder and sentenced to death and therefore, the conviction would be vacated by an Illinois Supreme court judge. Read More