LS 305
Midterm Essay Questions
Question 1: Describe at least three kinds of speech that are not protected speech under the First Amendment. Provide examples, and explain the impact of not having these types of speech protected under the First Amendment. The First Amendment protects advocacy of illegal action except when imminent action is intended and probable. Justice Oliver Wendell Holmes, Jr. gave the example of, “falsely shouting fire in a theatre causing panic” (http://www.firstamendmentcenter.org/not-many-exceptions-to-free-speech-guarantee). This is not protected because it presents a clear and present danger that causes an immediate reaction that could cause physical harm or injury to others. Defamation, both written (libel) and spoken (slander), is not protected by the First Amendment. The qualifying factors to be considered defamation the communication must be: intentional, untrue, damaging to the reputation of that person, and directed to/at someone other than the person it is regarding (http://legal-dictionary.thefreedictionary.com/Defamation). Allegations of serious criminal actions or allegations of serious sexual misconduct are examples of defamation per se. The plaintiff does not have to prove damage to his/her character when defamation per se applies (http://www.abbottlaw.com/defamation.html). The lack of First Amendment protection is to avoid having reputations destroyed by malicious spoken or written statements of others. The First Amendment does not provide protection for obscenity. The three part test that decides whether sexual material will be protected or not is called the Miller Test. As stated at http://legal-dictionary.thefreedictionary.com/First+Amendment , “Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that its predominant theme appeals to a "prurient" interest;(2) it depicts or describes sexual activity in a "patently offensive" manner; and (3) it lacks, when taken as a whole, serious literary, artistic, political, or scientific value (Miller v. California, 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).” Written work is typically easily classified as obscene or not. However, movies can be more of a gray area that can be influenced by the morals of the community. Question 2: Describe and explain at least three circumstances when a search warrant is not required for a valid search. Provide examples, and explain the impact of this issue.
A search warrant is not required when the search occurs in what is called the “free zone.” When an individual knows they are exposing matters to the public they have do not have a “reasonable expectation of privacy” (Kanovitz, 2010). The “free zone” includes being observed when in public view from public streets. It also allows for a search of a person’s trash contents that have been placed at the curb for pick-up. Once the items are deliberately discarded there are no longer applicable property rights. When consent is given, search warrant is not necessary. Officers are allowed to then enter the premises and conduct a search. They do not have to ask permission to remove items. Anything that is collected by them at that time is admissible. A roommate can allow police to search the common areas and his or her private areas (for example that individual’s bedroom) but cannot grant permission to search areas that are not theirs, like the other roommate’s bedroom(s). The Plain View Doctrine allows law enforcement officers to search and seize evidence is in plain sight from a location that are allowed to be. If during a traffic stop, an officer sees drugs inside the vehicle from his position standing by the driver’s side window then he/she would be permitted, without a search warrant, to seize the contraband. This doctrine would also apply if the officer was on patrol and saw a crime being committed through a window of a home. The officer could enter that residence without the need to secure a warrant. The 4th Amendment to the Constitution of the United States of America protects individual’s right for their privacy to be preserved. A search warrant is necessary in order to invade that privacy. A search warrant shall not be issued unless there is probable cause to do so. Works Cited
Farlex. (2013). First Amendment. Retrieved from Legal Dictionary: http://legal-dictionary.thefreedictionary.com/First+Amendment
Kanovitz, J. R. (2010). Constitutional Law. New Providence: Matthew Bender & Company.