978-0078023866 Chapter 5 Internet Exercise and Supplements Part 2

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Chapter 05 – Constitutional Law and the Bill of Rights

Skilling v. United States 130 S.Ct. 2896 (2010) (p. 218)

Syllabus

The honest-services statute, Section 1346, Skilling maintains, is unconstitutionally vague… Skilling’s

honest-services prosecution, the Government concedes, was not “prototypical.” The Government did

not, at any time, allege that Skilling solicited or accepted side payments from a third party in exchange

for making these misrepresentations. (“[T]he indictment does not allege, and the government’s

evidence did not show, that [Skilling] engaged in bribery.”) It is therefore clear that, as one reads

Section 1346 that Skilling did not commit honest-services fraud. This case was affirmed in part,

vacated in part, and remanded.

Answers to ‘Skilling v. United States’ Questions (p. 220)

1. The Court ruled that the statute was unconstitutionally vague, thus violating Skilling’s due process

2. The statute was void for vagueness. To pass the constitutional review the statute had to be of

“sufficient definiteness that ordinary people can understand what conduct is prohibited,” and the

3. The Court limited section 1346 to bribe and kickback situations only. The “vast majority” of honest

services cases that had been litigated involved offenders who violated a fiduciary duty by

participating in bribery or kickback schemes. Congress clearly intended to reach bribery and

Answers to Chapter Questions (p. 224)

a. The players who signed the petition and were then dismissed from the team alleged a

b. The Sixth Circuit applied the test set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist.

(1969), permitting school officials to regulate student speech that materially and substantially

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Chapter 05 – Constitutional Law and the Bill of Rights

2. The Sixth Circuit held that the motto had neither as its primary purpose, nor its primary effect, the

3. The court found for the church members, finding that written forms of expression may be subject

to reasonable time, place, and manner restrictions, but that the ordinances in question, justified

4. The act was found to be unconstitutional because it could not pass the tests from Central

Hudson. The business in question was a legal business and the advertising was not misleading.

5. The warrantless blood test was not an unreasonable search as the arresting officer acted in good

6. No, the search conducted by the officer on Sorick is not justified and thus unlawful.

a. Harmon called rent control privatized welfare because most tenants staying in rent controlled

houses can renew their leases forever. The tenants can also bequeath these apartments to

b. The Constitution says that private property shall not “be taken for public use, without just

compensation.” The property right and the right to due process of law claims were raised by

]

c. Harmon’s claims were dismissed by the District Court. Then the Harmons appealed to the

]

a. The constitutional challenge is that nude dancing is expressive conduct and, therefore,

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Chapter 05 – Constitutional Law and the Bill of Rights

b. The Court upheld the ban, finding that the city’s efforts to protect public health and safety

were within its police powers, the ordinance furthered that public interest by combating the

a. It was challenged as an unconstitutional restriction on free speech.

b. The Supreme Court held that these were content-neutral restrictions on the time, place and

manner of the use of the park as a public forum and, therefore, the ordinances were

10.

a. Scalia is an “originalist” meaning that he tries to assess the Constitution based upon a

careful inspection of the authors’ original intent. He has said that he seeks a common sense

definition of the words of the Constitution at the time they were written. He rejects a judiciary

b. Students’ answers will vary. Some of them may say that the Constitution would be an

ineffective set of rights if it was not appropriated to the present scenario. Students may quote

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a. 99 Cents won its suit. The court ruled that this taking was for purely private purposes, not a

public purpose.

b. The Court in Kelo stated “it has long been accepted that the sovereign may not take the

property of A for the sole purpose of transferring it to another private party, B, even though A

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Chapter 05 – Constitutional Law and the Bill of Rights

12.

a. The surveillance occurred in a private place, Ms. Fuller’s bedroom, so the only applicable

b. The new statute presumably will not offer protection against privacy invasions in public

13. Students’ answers will vary. This question still does not have a definite answer as there are many

14.

a. The prostitutes argued both under the right of free speech and under the freedom of

b. The court found that the right of free speech did not include the right to solicit strangers for

sex and that the state has the right to regulate such commercial activities. With regard to the

15. Jennifer O’Brien argued that her posts were protected by the First Amendment. The court

disagreed with this. The Administrative Law Jude and Acting Commissioner concluded that the

16. The school district won. The dress code was content neutral since the school was not

suppressing any particular message. The school offered important government interests to

17. The Eleventh Circuit decided for the plaintiff and against the magazine and the Supreme Court

denied certiorari (meaning that it let the Court of Appeals’ ruling stand). The Court of Appeals held

18. The students could have a discussion based on this question.

Supplementary Materials

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Chapter 05 – Constitutional Law and the Bill of Rights

I. Fourth Amendment (p. 208)

Hodari, a juvenile, fled after spotting some police officers in an unmarked car. Just as he was about to

be apprehended by one of the pursuing officers, Hodari tossed aside what looked like a rock but

turned out to be crack cocaine. In the subsequent prosecution, the State conceded that the officer did

not have the “reasonable suspicion” necessary to justify pursuing Hodari. Therefore, the question

became whether the officer had, in fact, “seized” Hodari at the moment the youth saw the officer on the

verge of apprehending him. To constitute either the arrest or seizure of a person, physical force must

be applied or the subject must have submitted to the officer’s “show of authority.” Neither had

happened in this case at the time Hodari threw away the cocaine. Therefore, the Supreme Court ruled,

Hodari had not been seized and the cocaine did not need to be suppressed as the “fruit of an illegal

seizure.” California v. Hodari, 111 S.Ct. 1547 (1991).

Supplementary Cases

I. Employment Division, Department of Human Resources of Oregon v. Alfred L.

Smith, 58 Law Week 4433 (1990) (See Freedom of Religion, p. 195)

Syllabus

Respondents Smith and Black were fired by a private drug rehabilitation organization because

they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their

Native American Church. Their applications for unemployment compensation were denied by

Oregon under a state law disqualifying employees discharged for work-related “misconduct.”

Holding that the denials violated respondents’ First Amendment free exercise rights, the state

appellate court reversed. The state Supreme Court affirmed, but vacated the judgment and

remanded for a determination whether sacramental peyote use is proscribed by the state’s

controlled substance law, which makes it a felony to knowingly or intentionally possess the

drug. Pending that determination, the court refused to decide whether such use is protected

by the Constitution. On remand, the lower court held that sacramental peyote use violated,

and was not excepted from, the state-law prohibition, but concluded that that prohibition was

invalid under the Free Exercise Clause. Held: The Free Exercise Clause permits the state to

prohibit sacramental peyote use and thus to deny unemployment benefits to persons

discharged for such use. Although it is constitutionally permissible to exempt sacramental

peyote use from the operation of drug laws, it is not constitutionally required. The Free

Exercise Clause “does not relieve an individual of the obligation to comply with a law that

incidentally forbids (or requires) the performance of an act that his religious belief requires (or

forbids) if the law is not specifically directed to religious practice and is otherwise constitutional

as applied to those who engage in the specified act for nonreligious reasons.”

Reprinted with permission from The United States Law Week, Vol. 58, p. 4433 (April 17, 1990).

II. Ashcroft v. The Free Speech Coalition (S. Ct. 2002) (See Freedom of Speech

p. 197)

Syllabus

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Chapter 05 – Constitutional Law and the Bill of Rights

The ultimate issue is the constitutionality of the Child Pornography Prevention Act of 1966

(CPPA) under the First Amendment. The language of the statute prohibits sexually explicit

images that appear to depict minor, but which were produced without using any real children.

The Court held that, as no children were involved let alone harmed in the production process,

the harm Congress was attempting to avert flowed solely from the content of the images. As

such, the law has to meet the requirements of the First Amendment. Under the test in Miller v.

California (cited in the case), to prevail the government would have to prove “that the work,

taken as a whole, appeals to the prurient interest, is patently offensive in light of community

standards and lacks serious literary, artistic, political or scientific value.” It found the

government had not sustained its burden and that the CPPA was overbroad and

unconstitutional.

III. Reno v. American Civil Liberties Union, 521 U.S. 844 (S. Ct. 1997) (See

Freedom of Speech, p. 197)

Syllabus

Two provisions of the Communications Decency Act of 1996 seek to protect minors from

harmful material on the Internet. One of the provisions criminalizes the knowing transmission

of “obscene or indecent” messages to anyone under 18. The other prohibits the knowing

transmission to the same audience of any message “that, in context, depicts or describes, in

terms patently offensive as measured by contemporary community standards, sexual or

excretory activities or organs.” A number of plaintiffs filed suit challenging the constitutionality

of these two provisions. A three-judge federal district court granted a preliminary injunction

against enforcement by the government of the second provision and that portion of the first

provision that relates to “indecent” (but not “obscene”) messages. The U.S. Supreme Court

affirmed the district court’s decision, finding that the provisions could be enforced against only

“obscene” materials.

IV. 44 Liquormart, Inc. v. Rhode Island, 134 L. Ed. 2d 711 (1996) (See

Commercial Speech, p. 204)

Syllabus

Two stores which sell liquor in Rhode Island brought suit to challenge two Rhode Island

statutes that prohibit all price advertising on liquor in the state, except for price tags and signs

within a store itself, which signs are not visible from outside the store. The Supreme Court

held that Rhode Island can not ban all advertising of a product that contains accurate and

nonmisleading information about the price of the product. Because the ban did not directly

advance the state’s substantial interest in promoting temperance and was more extensive

than necessary to serve that interest, the regulations need to be reviewed with “special care”

to determine whether they violate the First Amendment.

V. Edenfield v. Fane, 113 S. Ct. 1792 (1993) (See Commercial Speech, p. 204)

Syllabus

The Florida Board of Accountancy had a rule barring CPAs from personally soliciting clients.

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Chapter 05 – Constitutional Law and the Bill of Rights

Fane sought a declaratory judgment that the rule violated the First Amendment. A district court

granted Fane’s motion and the Eleventh Circuit affirmed. The Supreme Court affirmed the

Eleventh Circuit. The Court noted that, in order for the ban on solicitation to be constitutional,

the state’s interests must be substantial, the challenged regulation prohibiting solicitation must

advance those interests in a “direct and material way,” and the extent of the restriction on free

speech must be reasonable given the interests being served. According to the court, while the

state’s interests were substantial, the state had failed to demonstrate that the ban on

solicitation furthered those interests.

VI. Central Hudson Gas v. Public Service Commission, 447 U.S. 557

(1980) (See Commercial Speech, p. 204)

Syllabus

Held: A regulation of appellee New York Public Service Commission which completely bans an

electric utility from advertising to promote the use of electricity violates the First and

Fourteenth Amendments.

a. Although the Constitution accords a lesser protection to commercial speech,

nevertheless, the First Amendment protects commercial speech from unwarranted

governmental regulation. For commercial speech to come within the First Amendment, it

at least must concern lawful activity and not be misleading. Next, it must be determined

whether the asserted governmental interest to be served by the restriction on

commercial speech is substantial. If both inquiries yield positive answers, it must then

be decided whether the regulation directly advances the governmental interest

asserted, and whether it is not more extensive than is necessary to serve that interest.

b. In this case, the first two parts of the test are satisfied and the governmental interest

must be examined. The state’s interest in energy conservation is clearly substantial and

is directly advanced by appellee’s regulations. The state’s further interest in preventing

inequities in appellant’s rates—based on the assertion that successful promotion of

consumption in “off-peak” periods would create extra costs that would, because of

appellant’s rate structure, be borne by all consumers through higher overall rates—is

also substantial. The latter interest does not, however, provide a constitutionally

adequate reason for restricting protected speech because the link between the

advertising prohibition and appellant’s rate structure is, at most, tenuous.

c. Appellee’s regulation, which reaches all promotional advertising, regardless of the

impact of the touted service on overall energy use, is more extensive than necessary to

further the state’s interest in energy conservation which, as important as it is, cannot

justify suppressing information about electric devices or services that would cause no

net increase in total energy use.

VII. Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (See The

Fourth Amendment, p. 208)

Syllabus

Petitioner operates a 2,000-acre chemical plant consisting of numerous covered buildings,

with outdoor manufacturing equipment and piping conduits located between the various

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Chapter 05 – Constitutional Law and the Bill of Rights

buildings exposed to visual observation from the air. Petitioner maintains elaborate security

around the perimeter of the complex, barring ground-level public views of the area. When

petitioner denied a request by the Environmental Protection Agency (EPA) for an onsite

inspection of the plant, EPA did not seek an administrative search warrant, but instead

employed a commercial aerial photographer, using a standard precision aerial mapping

camera, to take photographs of the facility from various altitudes, all of which were within

lawful navigable airspace. Upon becoming aware of the aerial photography, petitioner brought

suit in federal district court, alleging that EPA’s action violated the Fourth Amendment and was

beyond its statutory investigative authority.

Held:

1. The fact that aerial photography by petitioner’s competitors might be barred by state

trade secrets law is irrelevant to the questions presented in this case. Governments do

not generally seek to appropriate trade secrets of the private sector, and the right to be

free of appropriation of trade secrets is protected by law. Moreover, state tort law

governing unfair competition does not define the limits of the Fourth Amendment.

2. The use of aerial observation and photography is within EPA’s statutory authority. When

Congress invests an agency such as EPA with enforcement and investigatory authority,

it is not necessary to identify explicitly every technique that may be used in the course

of executing the statutory mission. EPA needs no explicit statutory provision to employ

methods of observation commonly available to the public at large.

3. EPA’s taking, without a warrant, of aerial photographs of petitioner’s plant complex from

an aircraft lawfully in public navigable airspace was not a search prohibited by the

Fourth Amendment. The open areas of an industrial plant complex such as petitioner’s

are not analogous to the “curtilage” of a dwelling, which is entitled to protection as a

place where the occupants have a reasonable and legitimate expectation of privacy that

society is prepared to accept. The intimate activities associated with family privacy and

the home and its curtilage simply do not reach the outdoor areas or spaces between

structures and buildings of a manufacturing plant. For purposes of aerial surveillance,

the open areas of an industrial complex are more comparable to an “open field” in which

an individual may not legitimately demand privacy. Here, EPA was not employing some

unique sensory device not available to the public, but rather was employing a

conventional, albeit precise, commercial camera commonly used in mapmaking. The

photographs were not so revealing of intimate details as to raise constitutional

concerns. The mere fact that human vision is enhanced somewhat, at least to the

degree here, does not give rise to constitutional problems.

VIII. Board of Zoning Appeals, Bloomington, Indiana v. Leisz, 702

N.E. 2d (Ind. S. Ct. 1998) (See Takings—Regulatory, p. 203)

Syllabus

The Leisz’s bought rental properties in 1989. In 1985, Bloomington had passed an ordinance

limiting the occupancy in certain neighborhoods to no more than three unrelated adults per

unit. Existing noncomplying units could be grandfathered if they were registered with the

government within a four-month period. The prior owners of the Leisz property did not register

their properties. The Leisz claimed the forfeiture of the higher occupancy rate in consequence

of nonregistration was an unconstitutional taking. The court found in favor of Bloomington.

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Chapter 05 – Constitutional Law and the Bill of Rights

Selected Bibliography

Associated Press, “Law Gives Gays Right to Marry,” Newsday, April 2, 2001, p. A2.

“Can a Company Lock Out the EPA’s Inspectors?” Business Week, January 9, 1984, p. 122.

Nancy Chang, Silencing Political Dissent: How Post-September 11 Anti-Terrorism Measures

Undermine the Constitution (Pub. Group West 2002).

Otto Friedrich, “How the Deed Was Done,” Time, July 6, 1987, pp. 58-61.

Otto Friedrich, “We, the Jury, Find the…,” Time, September 28, 1981, p. 44.

David Frum, “Free to Beg, Free to Intimidate,” The Wall Street Journal, February 15, 1990, p. A14.

Danny Goldberg, It’s a Free Country: Personal Freedom in America After September 11 (RDV Books

2002).

Louis Henkin, “Are Human Rights an American Invention?” Columbia, December, 1988, p. 40.

Nat Hentoff, “A High Court Assault on Religion,” The Des Moines Register, September 20, 1990, p.

10A.

Edwin Meese III, “What Did the Constitution’s Framers Really Want?” The Wall Street Journal,

January 12, 1989, p. A9.

“No to TV Beer Ads,” The Christian Science Monitor, February 19, 1985, p.23.

Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (Vintage Books 2001).

David Shribman and Stephen Wermiel, “Justices Strike Down Flag-Burning Law Reviving a Push to

Amend Constitution,” The Wall Street Journal, June 12, 1990, p. A18.

Stephen Wermiel, “Justices Say First Amendment Protects Burning of Flag,” The Wall Street Journal,

June 22, 1989, p. B8.

George F. Will, “Is Begging Protected Speech or a Blight on Public Space?” Los Angeles Times,

February 1, 1990, p. B7.

Richard Wolf, “House Ends Flap Over Flag,” USA Today, June 22-24, 1990, p. 1A.

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