MGMT 211 Lecture 3 Outline of Last LectureI. Continue Chapter 2a. Historical context of the adoption of the Constitutionb. Constitutional Convention-Philadelphia-May 1787c. Division of authority from Constitutiond. Commerce clausee. Limitation on the Commerce Clausef. Supremacy ClauseOutline of Current LectureI. Chapter 2a. Recapb. Bill of Rightsc. Doctrine of Incorporationd. Doctrine of Reverse Incorporatione. 1st amendment: Not Absolutef. Speech in the Business Worldg. Freedom of Religionh. Search and SeizureCurrent LectureI. Chapter 2a. Recapi. Bill of Rights: first 10 amendmentsii. Adoption of the Constitution1. Read publicly; split to Federalists and Anti-Federalistsa. Federalists: wanted Constitutionb. Anti-Federalists: it went too fari. Not enough individual freedoms given back to people from governmentii. No states’ rights1. These 2 solved by Bill of Rightsb. Bill of rights i. only applied to national government1. example: under Bill of Rights, the national government had to giveyou freedom of speech, but the state of Texas didn’tii. 1897: Louisiana Case changed that1. Put 5th and 14th amendment together, nat. gov. has to give you substantive due process2. States started passing sedition lawsa. No words challenging government’s authorityiii. Gitlow v. New York1. Pro-socialist Gitlow: radical newspaper-new type of governmenta. Overthrow government and replace with new oneiv. Arrested for violating New York sedition lawv. To Supreme Court1. Gitlow:5th and 14th amendments have to be taken togethera. 5th applies to national government; they have to give you due processb. 14th required all states to give due process and equal protection of the law to anyone2. Does it mean the same thing? a. Substantive due process: it’s written; has to be capable of giving you due processb. Procedural due process: step-by-step procedures that haveto be done to give you due process3. Gitlow: argued that N.Y. sedition laws violation of Constitutional right of free speech4. N.Y. respond: that applies to national government, not us5. Gitlow: If national government has to give due process, and state has to give due process, it’s the same thinga. No way national government can give due process without freedom of speechi. Same rule applied to N.Y.ii. Sedition law prohibits free speech, so it’s unconstitutional1. Supreme Court agreedc. Document of Incorporationi. If something is in the Bill of Rights, it applies to states; equally to national government as well1. Only 2 amendments, and part of 1, don’t apply to statesa. Quartering of soldiers-2nd b. Grand jury indictment-3rd c. No right to jury in civil-part of 7th ii. 2nd amendment: right to bear arms1. The states do have to give you the right a. Meaning of that is about to change-more gun controld. Doctrine of reverse incorporationi. Equal protection also applies to national government1. If state has to give you due process and equal protection (5th), then the national government must give both (14th)e. 1st amendment: not an absolute righti. Freedom of speech can be limited by the government1. Schneck case: can’t yell fire in a crowded theaterii. Balancing of interests1. During war time, news media can be told not to report on news eventsa. Some would put out wrong information2. During Civil War, Lincoln did a lot of unconstitutional thingsa. Limited free pressb. Arrested newspaper people critical of administration3. After Civil War, sedition laws passeda. Going after communists and socialistsb. Espionage Act 1917: national law4. We don’t like censorshipa. 1971: New York Times got a hold of stolen (Ginsberg) Pentagon papers and wanted to publishi. Critical of government handling of Vietnam Warii. Papers had dealings with alliesb. Government tried to stop it, but courts said they had no right to, they could be published5. 1976: Nebraska Press Associate v. Stewarta. Heavy presumption against censorship/prior restraint, but it could be done in certain situationsi. Gag orders: no talking with press to protect defendant’s rights6. Symbolic speech: symbols used to express a. Still protected speech (Stromberg v. California 1931)i. Gave communist right to show red flagb. In schools, they can take away your freedom of speech a lot easierc. Vietnam: students couldn’t wear black sweatbands as protest to Vietnam (Tinker v. Des Moines)d. Lately, courts have been backing off of thati. “Bong Hits for Jesus” Morris v. Fredder1. Students displayed banner with this saying at an assembly-legalize marijuanaa. Roberts court said they had right to do thatiii. Speech that is NOT protected1. Hate speech: not relaxing on ita. To stir people up based on hatei. Racial-most of the time2. Defamation: false statement that destroys reputation3. Fighting words: a. Example: encourage students to bring gas and t-shirts to set place on fireb. Includes profanity-illegal to curse in Texasc. Threats, spoken or symbolicd. Obscenityi. Roth case 19571. No social importanceii. 1973 Miller v. Californiaiii. Now based on local community standard for obscenity1. What’s illegal in Houston may be normal in Bryaniv. Internet: tense subject1. You can find anything, even illegal2. If you download kiddie porn, you WILL go tojailf. Speech in the business sensei. Speak through advertising (commercial speech)1. Can be severely regulated by governments2. Almost to the point of censorshipa. Limited air spacei. Cigarettes: Clinton after print adsii. Still don’t see cigarette adsiii. Law advertising just recently legalii. Also, politically1. Obama: first administrationa. S.C. case gives businesses and labor unions the right to political speechi. They can give unlimited amounts of money to campaigns1. Congressional elections-most expensivea. Presidential 2012 most expensiveb. Political ads ran against opponent are supposed to be truei. “I approve this message”-those are regulatedii. Others run by businesses; can lie/misrepresent factsc. Can still be controlledi. Still have to be truthful, not obscene, no fighting wordsg. Freedom of religioni. Country was founded on it; not always tolerant of othersii. Roger Williams advocated separation of church and state as early as 16441. Expelled out of Mass, founded Rhode Islandiii. Thomas Jefferson and James Madison 17791. Bought Virginia because they didn’t want to fund religious establishments with state fundsiv. Constitution: no requirement of religion when running for public officev. 1st amendment1. Establishment