Chapter 5 The Constitution September 30th 2014 5 3 Business and the Bill of Rights Learning Objectives Learn how the Constitution protects the civil liberties of business entitles Explore how the First Amendment protects a company s right to speak Discuss how the due process clause protects companies from arbitrary government action Learn how the equal protection clause protects companies from government discrimination Bill of Rights Observations about civil liberties o There are no absolute rights in spite of the wording of any specific amendment o The Bill of Rights exists to protect the minority not the majority Except the right to vote the civil liberties protected by the Constitution extended to all persons physically present on U S soil o Extent of civil liberties protections vary from time to time o Major portions of the Bill of Rights apply equally to the states as they do the federal government o Incorporation Doctrine by which certain provisions of the Bill of Rights are applied against the states First Amendment Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the Government for a redress of grievances First Amendment and the Bill of Rights Contains clauses pertaining to speech and religion o Establishment Clause Section of the First Amendment prohibiting government from establishing a religion o Free Exercise Clause Section of the First Amendment prohibiting government from preventing the free exercise of religion Wall of separation Coined by Thomas Jefferson a Deist to describe the Establishment Clause o Free Exercise Clause must be subservient to the Establishment Clause which would prohibit public displays of religious life o DEISM The Belief that God gave us reason and not religion Christian groups have campaigned hard to de emphasize teaching evolution in public high schools replacing it with a theory called intelligent design o Intelligent Design Alternate theory on the origin of life that states the universe is too complex to o be explained by science alone o Challenge began with Darwin s Origin of the Species and his discussion of evolution Never sought to explain the origin of life Are we hardwired ID or soft wired evolution o Protects the right to freedom of speech Type of speech dries the level of protection afforded it under the First Amendment Political Speech Any speech dealing with politics or political figures o Deserves protected speech as recognized by courts o Symbolic Speech Not uttered or printed but displayed or performed instead Speech that incites a panic deserves no protection under the First Amendment o Defamation False statements that impugn or damage someone s character or credibility Libel Written forms of defamation Slander Spoken forms of defamation o Public officials and public figures given less protection Has to do with people s rights to know Obscene Legal standard that if met means the work in question has no protection under the First Amendment o Defined by using Miller Test includes the following criteria 1 Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to prurient interest 2 Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined byt eh applicable state law 3 Whether the work taken as a whole lacks serious literary artistic political or scientific value Obscene and defamatory speech is subject to the doctrine of prior restraint o Prior Restraint Doctrine that prevents the government from restricting or punishing speech before it is uttered or published in case the speaker changes his or her mind before proceeding Pentagon Papers Attempts to shut down the speech before it is uttered are considered unconstitutional o What about state secrets Fox News chief Washington correspondent James Rosen had his emails read by the Obama DOJ which accused him of being a co conspirator in a criminal leak case DOJ made the allegation in order to get a search warrant Commercial Speech Made by nonhuman entities o Supreme Court held that corporations are persons and therefore entitled to engage in political speech o Foreign corporations operating in the United States are entitled to the same protections and can also spend freely to influence U S elections Protected Commercial Speech 4 Prong Test 1 If it dose not accurately inform the public about lawful activity it can be suppressed 2 The State must assert a substantial interest to be achieved by restrictions on commercial speech 3 The regulation must directly advance the governmental interest 4 If the government interest could be served as well by a more restriction on commercial speech achieving a more reasonable fit between means and ends with the means narrowly tailored to achieve the desire objective Over breadth and Due Process Government is permitted to place reasonable time place and manner restrictions on speech to maintain important governmental functions o Over breadth or overly broad restriction law that covers legal conduct as well as illegal conduct o Due Process Fundamental fairness and decency Appears in the 5th Amendment and the 14th Amendment Clause applies only to government action Business and Due Process Clause Components of the due process clause o Procedural due process Government must use fair procedures notice and opportunity to defend o Substantive due process Legislation must be fair Right of privacy is an example of a fundamental right of the people although it is not specifically stated in the Constitution ObamaCare s requirement that everyone purchase health insurance Businesses have used the substantive due process clause to limit the award of punitive damages in tort cases o Punitive damages Awarded to plaintiffs not to compensate them for harm caused but to prevent similar conduct by the defendants in the future Equal Protection Clause Portion of the 14th Amendment requiring states to provide the equal protection of laws to persons within their jurisdiction o Incorporates Constitutional protections against the states and the federal government o Implicated to scrutinize government sponsored discrimination Standards of review established by the Supreme Court to establish a guideline for courts to use in answering equal protection cases o Minimal Scrutiny Standard of review in