Criminal Law and Procedure: A Courtroom Approach
Chapter Summaries
Chapter 11 introduces the student to the power of First Amendment freedoms and the government’s corresponding interest to curtail certain freedoms of speech, expression, and religion. Many students are under the mistaken assumption that the government can make certain speech, political or artistic hateful expression, or religious practices illegal if most of the community finds them offensive. The concept of protected speech is explored and how to analyze First Amendment for answering for themselves if certain speech is protected or unprotected by the First Amendment discussed (pp. 320–321), and the case excerpt of U.S. v. Alvarez (2012) shows how the First Amendment protects lying about military service and honors because to hold otherwise would open the door to wide-ranging government suppression of speech (pp. 322–323). Protection for expressive conduct such as flag and cross burning is highlighted in the case excerpt of VA v. Black (2003) (pp. 325–328), except when cross burning is meant to intimidate as fighting words. Unprotected speech, such as child pornography (pp. 328–329), and the Miller three-pronged test for obscenity are explained through the overbroad doctrine in the Ashcroft v. Free Speech Coalition (2002) case excerpt showing the government’s unsuccessful effort to suppress computer-generated child pornography and post-Ashcroft efforts to punish all depictions of children in sex acts (pp. 330–334), and the restrictions that may be lawfully imposed on juveniles, prisoners, and public employees (pp. 335–337) detailed in Making the Courtroom Connection (p. 337). Freedom of association and religion is examined, including the three-pronged Lemon test used to challenge laws that commingle church and state (pp. 338–339), and the High Court’s strict scrutiny analysis when government attempts to suppress unpopular religions, illuminated in the Church of the Lukumi Babalu Aye v. City of Hialeah (1993) case excerpt (pp. 339–342).