2. Chapter Key Points Understanding the structure and purpose of the Constitution Understanding First Amendment rights, particularly Freedom of Speech and its constitutionally permissible limitations Understanding the search and seizure provision of the Fourth Amendment 5 Constitutional Law and the Bill of Rights

3. Preamble to the U.S. Constitution “We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

4. Basic Structure Article I: Sets up Congress, enumerates its powers.  Section 8, Clause 3: Gives Congress power to regulate commerce (the Commerce Clause). Article II: Sets up executive branch, headed by the president. Article III: Establishes the court system. Articles IV and VI: Address the relationship between the federal government and the states.  Article VI, Clause 2: Provides for the supremacy of federal law over state law (the Supremacy Clause). Article V: Provides for amendments to the Constitution. First 10 Amendments: Protect personal freedoms from government encroachment (the Bill of Rights). McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

5. Purposes Accomplished by the Constitution  It establishes a national, or federal, government.  It controls the relationship between the national government and state governments.  It defines and preserves personal liberties.  It enables the federal government to perpetuate itself. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

6. Federalism A primary role of the Constitution is to balance the central federal authority with dispersed state power. The federal government holds only those powers granted to it by the states. The people via the states hold all of those powers not expressly denied them by the Constitution. The supreme court plays a key role in defining and maintaining that balance by ruling on claims presented by the states claiming encroachment by Congress (through legislation). McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

7. Questions 1. What are the three branches of the government? 2. Who is the current Chief Justice of the Supreme Court? 3. How many members are in the U.S. Senate? McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

8. Answers  The legislative (Art. I), executive (Art. II) and judicial (Art. III) branches  Chief Justice William Rehnquist  There are 100 senators, two from each state. (There are 435 representatives in the House, allocated among the states based on the census.) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

9. The 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 the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The 1st Amendment forbids (1) the establishment of an official state religion (the Establishment Clause), and (2) undue state interference with religious practice (the Free Exercise Clause). Government may neither encourage nor discourage religion generally, nor may it give preference to one over another. The idea is to maintain a separation between church and state. The 1st Amendment prohibits government abridgment of the freedom of speech, necessary for the existence of a true democracy and maintenance of a marketplace of ideas. But freedom of speech is not unlimited: Slander, obscenity and “fighting words” likely to produce a clear and present danger are not protected. Additionally, the government may impose time and place restrictions on speech in order to further compelling state interests. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

10. Free Speech in Cyberspace? As the internet has become more pervasive and more accessible, many attempts have been made by government to regulate its content to preserve important societal values. In the U.S., such efforts must meet the requirements of the First Amendment’s proscription against abridging our freedom of speech. Several U.S. Supreme Court opinions address this difficult issue, including Ashcroft v. Free Speech Coalition, which ruled on the constitutionality of the 1996 Child Pornography Prevention Act. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

11. Commercial Speech  Historically provided less constitutional protection then political speech.  Defined in Bolger (S.Ct. 1983) as speech which is a form of advertising, identifies a specific product and serves the economic interest of the speaker.  Restrictions on commercial speech must meet the criteria of Central Hudson (S.Ct. 1980):  To be entitled to any protection, commercial speech must be about lawful activities and must not be misleading.  The asserted government interest must be substantial.  The regulation must directly advance that substantial government interest.  The regulation must be no broader than necessary. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

12. Bad Frog Brewery v. New York State Liquor Authority (2d Cir. 1998) At issue was whether New York could prohibit the use of a caricature of a frog “giving the finger” on beer labels. What facts did the court point to in resolving each of the following questions?  Was it commercial speech?  Did it concern a lawful activity and was misleading?  Was there a substantial state interest at stake?  Did the prohibition directly advance those state interests?  Could the regulation have been more narrowly tailored to advance those interests? McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

13. The Fourth Amendment “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” It is well settled that the Fourth Amendment applies equally to business premises: “The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience … ‘[T]he Fourth Amendment’s commands grew in large measure out of the colonists’ experience with the writs of assistance … [that] granted sweeping power to customs officials and other agents of the king to search at large for smuggled goods.” Source: Marshall v. Barlow’s, 436 U.S. 307 (1978) For an application of the rule in a business context, see U.S. v. Gawrysiak (D.C. N.J. 1997). McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

14. The Fifth Amendment “[N]or shall private property be taken for public use, without just compensation.” The Fifth Amendment prohibits the taking of private property for a public purpose without just compensation to the owner. It imposes bounds on the eminent domain process commonly used by governments to acquire property for such projects as new highways. Its application to business is extensively addressed in Chapter 7. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

15. The Fourteenth Amendment “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although not often used in the past, there is some indication that citizens, including businesses, may start making more claims under the “privileges or immunities” clause. Due process has both substantive and procedural aspects. The equal protection clause essentially prohibits discrimination by state or federal governments. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.