Unit: Civil Liberties & Civil Rights Lesson # in unit: 7 Topic: You Be the Judge!

Content Objectives:
LT #8. What philosophies and principles do Supreme Court justices use when interpreting the Constitution, and
how do those philosophies relate to popular political ideologies today?
LT #9. What role do the courts play in interpreting the Constitution and implementing public policy?

Assessment:
Majority / dissenting opinions issued by the “justices”

Standards:
USG.3.11 Analyze the functions of the judicial branch of the United States and Indiana governments with
emphasis on the principles of due process, judicial review and an independent judiciary.

Lesson Agenda: (84 minute class period)

Bell work:
 Get-to-know-you question
10 min
 Review questions: What is the power of the Supreme Court? How do Supreme Court justices
make their decisions?
You Be the Judge
 Students have studied both how the Supreme Court works and different modern and
historical civil liberties and civil rights issues. They should be familiar with the amendments
in the Bill of Rights, as well as the Fourteenth Amendment. In this activity, students will act as
justices decide a real court case in small groups based on their understanding of the
Constitution and their personal beliefs.
 Put students in small groups. Each group should ideally have an uneven number of students.
Five students in a group is ideal for a good discussion with room for everyone to participate.
 Explain that each table will act as the Supreme Court to decide a case based on the facts and
precedents given to them
5 min
 However, the Court decides which cases it wants to take on—have each table decide what
case they will accept for review out of the available list of cases:
o When can schools limit students' speech? (Morse v. Frederick)
o Can a public school have student-led, student-initiated prayers at football games? (Santa Fe
v. Doe)
o Should schools be able to conduct random drug tests on students who are not athletes?
(Pottowatamie v. Earls)
o When can police go into a house without a warrant? (Brigham City Utah v. Stuart)
o How should a person's right to protest be weighed against a person's right to access a
medical procedure without obstruction? (Hill v. Colorado)
 Pass out (or prompt students to click on the link for) the summary of their group’s chosen case, and
the arguments/analysis questions sheet. The case summary (adapted from StreetLaw Inc.) includes
~7 min the case facts, the constitutional issues, and relevant precedents that the justices must consider.
 Each student should read the summary for their case, or the group may read the case aloud
together.
 After all group members have read the case summary, they should work together to list as
many arguments as they can for both sides.
~8 min
 Monitor groups as they discuss—prompt students to consider other perspectives/arguments
when necessary.
 After groups have listed as many arguments as they can, prompt them to discuss:
o Which arguments are the most compelling?
o What side are you leaning towards, and why?
o Can you convince anyone to join your side?
 Now that they have heard arguments and evidence for both sides, each individual justice must
issue a ruling in their case. Emphasize that students do not have to concern themselves with
~20 min
how the actual Supreme Court ruled—cases often come down to the opinions of just five
individuals, and might have been very different if not for one swing vote on the Court. They
 should rule based on their understanding of the case and the Constitution.
 Each student will write their own opinion using the provided template. After each student has
written their opinion, they will share their answers to determine who the majority and dissenting
justices are.
 Pass out (or instruct students to open up) the Supreme Court’s actual ruling for their case.
~15 min  Students should read the ruling summary together and use it to answer the analysis questions
with their group.
Materials: Canvas:

 Arguments/Analysis Questions sheet copies (or  “Quiz” moving students through the case
Canvas assignment) summary and questions in the correct order
 Case summary sheets (or linked on Canvas)
 ____ / 5 pts
Mini Supreme Court - Arguments
After reading the case facts, the relevant parts of the Constitution, and the relevant case precedents,
work with your table to list as many arguments as you can for BOTH sides.

Arguments for ______________________________

Arguments for ______________________________

 ____ / 5 pts
Mini Supreme Court – Analysis Questions
Answer the questions below after your teacher gives you the sheet explaining the opinions of the real
Supreme Court for your case.

1. How did your group’s ruling and decision split compare to the Supreme Court’s?

2. What was the reasoning behind the majority opinion of the Supreme Court?

3. What was the reasoning behind the dissenting opinion of the Supreme Court? (if applicable)

4. Which value below do you think is being protected by the Supreme Court’s decision in this case?
(Choose the one you think best exemplifies the majority opinion.) How does their decision protect
that value?
 Individual freedom
 Public safety
 Equality of opportunity
 Social justice

5. What specific actions could members of the public, the state or federal legislature, or the
President take if they disagreed with the outcome of this case?
 ____ / 10 pts
Supreme Court Simulation – Opinion

When Supreme Court justices decide on a case, a justice will author an opinion explaining which side
they are ruling for and why. You will write your own opinion for the court case you read about with
your table of justices. Your opinion should be two paragraphs long.
 In your first paragraph, explain who you are ruling for, and how you are interpreting the
Constitution in your ruling. (What part of the Constitution supports your side?)
 In your second paragraph, address at least ONE of the case precedents related to your case
and explain how you ruling follows or goes against that precedent. If your ruling does not follow
case precedent, provide reasoning that justifies overturning/ignoring the previous case. (How
does your decision build on / part from previous Court decisions?)

In the case of _________________________________________, I am ruling for

_______________________ because….
 Morse v. Frederick
Argued: March 19, 2007
Decided: June 25, 2007

Facts
Although the First Amendment states that the government cannot make any law “abridging the freedom of
speech,” there are still many limits to where people can speak and what they can say. Students in public
schools, for example, have free-speech rights, but those rights are not the same as what adults have in the
community. This case, Morse v. Frederick, is about limits on student speech in public schools and whether a
school can punish a student for what he said about drugs during an off-campus event.
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska. School officials at Juneau-
Douglas High School released students from school to watch the Olympic torch pass by. Some of the students,
including the school’s marching band, were supervised by school faculty and staff. Approximately 1,000
students stood near the school, on both sides of the street, to watch the relay.
Joseph Frederick, an 18-year-old senior, was one of those students. Although he never made it to school that
day because he got stuck in the snow, he joined his classmates on a public sidewalk across the street from
school. Frederick was interested in more than just watching the relay. He and some friends waited for the
television cameras to pass by and then unfurled a large banner reading “Bong Hits 4 Jesus.” The school
principal, Deborah Morse, saw the banner from across the street. Believing that it advocated drug use, she
approached Frederick and demanded that he stop displaying it. He refused, so she grabbed and crumpled up the
banner.
Frederick was suspended for ten days. After losing his appeal to the school board, he filed suit in federal court
against Morse and the school district, arguing that his First Amendment rights had been violated. Frederick lost
in the trial court. The US Court of Appeals for the Ninth Circuit reversed the trial court, finding that the school
had violated the student’s First Amendment rights. Principal Morse and the school district appealed to the
Supreme Court.

Issue
Does the First Amendment allow public schools to prohibit students from displaying pro-drug messages during
a school-supervised event?

Constitutional Amendment and Precedents

 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.
 Tinker v. Des Moines Independent Community School District (1969)
Students John and Mary Beth Tinker opposed the war in Vietnam. To show their opposition, they
planned to wear black armbands to school. Having found out about the Tinkers’ plan, the Des Moines
principals adopted a new policy prohibiting armbands. Despite the policy, the Tinkers wore armbands
to school. They refused to remove the armbands and were suspended from school.
The Supreme Court ruled in favor of the students. It made clear that students do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.” To restrict speech, a
school must demonstrate that the speech would “materially and substantially interfere” with the work of
the school or interfere with the rights of other students. School officials in Des Moines, the Court
 explained, could not “reasonably forecast” that the Tinkers’ speech would cause a substantial disruption
or invade the rights of others.
 Bethel School District No. 403 v. Fraser (1986)
During a school assembly at Bethel High School in Washington, Matthew Fraser gave a speech to
nominate a classmate for student government. The short speech was filled with sexual references and
innuendoes: for example, he said that his friend is “firm in his pants . . . his character is firm” and “will
go to the very end – even the climax, for each and every one of you.” The students greeted the speech
with hoots, cheers, and lewd motions. The friend who Fraser nominated won by a wide margin; Fraser
was suspended for three days.
Ruling in favor of the school district, the Supreme Court emphasized that students do not have the same
First Amendment rights as adults. It explained that school officials may prohibit the use of lewd,
indecent, or plainly offensive language, even if it is not obscene. Schools have an interest in preventing
speech that is inconsistent with the school’s “basic educational mission” and in “teaching students the
boundaries of socially inappropriate behavior.” In addition, the First Amendment should not prevent
school officials from maintaining order during a school-sponsored educational program.
 Hazelwood School District v. Kuhlmeier (1988)
The Spectrum at Missouri’s Hazelwood East High School was a newspaper written and edited by
students in journalism class. In May 1983, the students created a final edition of the newspaper, which
their faculty advisor submitted to the principal for approval. The principal objected to two of the paper’s
articles: (1) an article about teen pregnancy discussed sex and birth control and also hinted at the
identities of pregnant students; (2) an article about divorce included a student’s complaints about her
father without giving him a chance to defend himself. Because it was near the end of the school, the
principal decided to pull the pages the articles were on.
The Supreme Court ruled in favor of the school district. It said a school principal could censor a student
newspaper that is produced as part of journalism class. A school has a right to censor speech in
activities – like student newspapers or theatrical productions – that others may believe the school is
endorsing. In these school-sponsored activities, school officials can limit speech so long as their actions
are “reasonably related to legitimate pedagogical concerns.”
 Morse v. Frederick
Argued: March 19, 2007
Decided: June 25, 2007

Decision
Chief Justice Roberts delivered the opinion of the Court, in which Justices Alito, Kennedy, Scalia, and Thomas
joined. Justice Thomas filed a concurring opinion. Justice Alito also filed a concurring opinion; he was joined
by Justice Kennedy. Justice Breyer filed an opinion concurring in the judgment but dissenting in part. Justice
Stevens filed a dissenting opinion, in which Justices Ginsburg and Souter joined.

Majority
The Court ruled 5-4 for Principal Morse, concluding that she did not violate the First Amendment by
confiscating a pro-drug banner. To begin with, the Court quickly dismissed Frederick’s argument that this case
did not involve school speech because Frederick was not at a school event. It emphasized that participation in
the Torch Relay was approved by the school, monitored by teachers, occurred during school hours, and
included performances by the school band and cheerleaders. Relying on its earlier decisions in the Fraser and
Kuhlmeier cases, the Court explained that a public school student does not have the same rights that adults have
in other settings and that the Tinker disruption analysis is not the only way to evaluate whether student speech
can be limited. It said it was reasonable for the principal “to conclude that the banner promoted illegal drug use
– in violation of established school policy – and that failing to act would send a powerful message to students in
her charge, including Frederick, about how serious the school was about the dangers of illegal drug use.” In the
end, it ruled that a principal may restrict student speech that is “reasonably” viewed as promoting illegal drug
use.
Concurrence (Alito)
In a brief concurrence, Justice Alito emphasized that the Court’s opinion only applies to speech advocating illegal drug use and that
the opinion “does not endorse the broad argument . . . that the First Amendment permits public school officials to censor any student
speech that interferes with a school’s ‘educational mission.’”

Dissent (Stevens)
The dissenting justices stated that the Court’s ruling “does serious violence” to the First Amendment. Based in
part on Tinker, they argued that a school should not be permitted to punish a student for expressing a view with
which the school disagreed. They said Frederick’s banner was a “nonsense” message and that he simply wanted
to get on television. Because most students “do not shed their brains at the schoolhouse gate,” the banner would
not actually persuade students to use illegal drugs. In the end, the dissenting justices concluded that Frederick’s
First Amendment rights were violated because his speech did not incite students to use drugs nor did it willfully
interfere with the school’s educational programs.
 Santa Fe Independent School District v. Doe
Argued: March 29, 2000
Decided: June 19, 2000

Facts
The First Amendment’s Establishment Clause prohibits the government from making any law respecting an
establishment of religion. It is the basis for the separation of church and state, and prevents the government,
including public school districts, from promoting specific religions. This case, Santa Fe Independent School
District v. Doe, is about whether a school district would violate the Establishment Clause by allowing student-
led prayers before a school football game.
In 1995, the Santa Fe Independent School District established a policy that would allow students to give pre-
game prayers over the public address system at high school football games. These prayers, which were not
required, would be delivered as "invocations" or "benedictions" for the events. As part of the policy, two
student elections would be held: the first one would determine whether the students wanted a prayer before
games and the second one would determine which student would deliver the prayer. During the pre-game
ceremonies, the school district would maintain complete control over the programs and facilities, including the
ability to cut off the microphone.
Before the school implemented the policy, two families sued the school district, claiming that the policy
violated the First Amendment’s Establishment Clause. The families won at both the trial court and Court of
Appeals. The school district appealed to the U.S. Supreme Court.

Issue
Does a public school policy permitting student-led, student-initiated prayers at football games violate the
Establishment Clause of the First Amendment?

Constitutional Amendments and Precedents

 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.
 Lemon v. Kurtzman (1971)
In 1968, Pennsylvania passed a law allowing the state to reimburse nonpublic, mostly Catholic schools
for teachers’ salaries, textbooks, and other instructional materials. Taxpayers sued the state, claiming
that the law violated the Establishment Clause.
The Court ruled in favor of the taxpayers. In doing so, it outlined the “Lemon Test,” a three-prong test
for determining whether there is an Establishment Clause violation. First, the government’s action must
have a secular (non-religious) purpose. Second, the government's action must not have the primary
effect of either advancing or inhibiting religion. And, third, the government's action must not result in
an "excessive government entanglement" with religion. Pennsylvania violated the third prong – that is,
the state was excessively entangled with religion – because the state would have to monitor that the
teachers receiving public money were not advancing religion.

 Lee v. Weisman (1992)

Deborah Weisman’s principal invited a rabbi to deliver a prayer at Weisman’s middle-school graduation
in 1989. The principal advised the rabbi that the invocation and benediction should be nonsectarian.
But the rabbi’s prayer at graduation repeatedly thanked “God” and concluded as follows: “[w]e give
thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy
occasion.” Weisman’s father sued based on the Establishment Clause.
The Court ruled for Weisman: a prayer delivered by a rabbi at a middle school graduation ceremony
violates the Establishment Clause. According to the Court, the school’s involvement in the religious
exercise at graduation was 'pervasive'. Also, the school’s control over the ceremonies places both public
and peer pressure on students to stand as a group or remain silent during the prayer. Although a person
might stand for the prayer merely as a sign of respect for others, such an action could properly be
construed as accepting the message. In other words, “[t]here can be no doubt that for many, if not most,
of the students at the graduation, the act of standing or remaining silent was an expression of
participation in the Rabbi's prayer” and a school cannot “persuade or compel a student to participate in a
religious exercise.”
 Santa Fe Independent School District v. Doe
Argued: March 29, 2000
Decided: June 19, 2000

Decision
Justice Stevens wrote the opinion of the Court, which Justices Breyer, Ginsburg, Kennedy, O’Connor, and
Souter joined. Chief Justice Rehnquist filed a dissenting opinion. He was joined by Justices Scalia and
Thomas.

Majority
In 6-3 decision, the Court ruled in favor of the families, declaring that Santa Fe’s policy violated the
Establishment Clause. The Court emphasized that, if the policy were to be carried out, the prayer would be
government speech, not student speech, because the school would be extensively involved. Specifically, the
prayer would take place during a school-sponsored event, over the school’s speaker system, and according to
school policies. The Court also concluded that the district's supposed secular purpose was a "sham" and a clear
violation of the "purpose" prong of the Lemon test. The Court focused on the policy’s language, especially its
intent to "solemnize" the event via the sharing of an "invocation," both terms that imply religious observations.
Finally, the Court based its decision on its precedent in Lee v. Weisman. A pre-game prayer forced on those in
“voluntary” attendance, the Court said, would have the effect of coercing them into an act of religious worship.
Schools cannot compel students to make the difficult choice between whether to attend these games or to risk
facing a personally offensive religious ceremony.

Dissent
The dissent argued the Court’s opinion “bristles with hostility to all things religious in public life” and that the
school’s stated purposes – to solemnize the event, promote good sportsmanship, and set the appropriate
environment for the event – should be given deference. It also said that the constitutional challenge to the
school policy was premature because the policy was never put into practice. If, and when, an elected student
leads a prayer at a football game, the Court would have a record to decide whether or not the school violated the
Establishment Clause.
 Pottawatomie v. Earls
Argued: March 19, 2002
Decided: June 27, 2002

Facts
Tecumseh High School is located about 40 miles from Oklahoma City in Pottawatomie County, OK. The
school offers a variety of extracurricular activities for its students. These activities include choir, band, color
guard, Future Farmers of America (FFA), Future Homemakers of America (FHA), the academic team, as well
as athletics, cheerleaders and Pom Pom. The majority of the school’s 500 students participate in one or more of
these activities.
On September 14, 1998, the school district adopted the Student Activities Drug Testing Policy. The policy
required drug testing of all students who participated in any of these extracurricular activities. In order to
participate in an activity, students had to sign a written consent agreeing to drug testing prior to participating in
the activity, randomly during the year while participating, and at any time while participating based upon
reasonable suspicion. The test that was used detected amphetamines, marijuana, cocaine, opiates, barbituates
and benzodiazepines. The test did not detect alcohol or nicotine.
Two students challenged this policy in federal court. Lindsay Earls was a member of the choir, the marching
band, and the academic team. Daniel James wanted to participate in the academic team. They (and their
parents) challenged the application of the policy to them but not to athletes. They believed that the policy
violated their right to be free from unreasonable searches and seizures.
At the trial the parties agreed to the following description of how the testing worked:

“The students to be tested are called out of class in groups of two or three. The students are directed to a
restroom, where a faculty member serves as a monitor. The monitor waits outside the closed restroom
stall for the student to produce the sample. The monitor pours the contents of the vial into two bottles.
Together the faculty monitor and the student seal the bottles. The student is given a form to sign, which
is placed, along with the filled bottles, into a mailing pouch in the presence of the student. Random drug
testing was conducted in this manner on approximately eight occasions during the 1998-99 school year.
”

At the time of the test the monitor also gives each student a form on which he or she may list any medications
legally prescribed. This list is also submitted to the testing lab but not seen by the school district. Results of the
testing are kept in files separate from the students’ other educational records. Students who refuse to submit to
the policy cannot participate in the activity.
The consequences of a positive drug test escalate with each positive test. After the first positive test, a student
may participate in an extracurricular activity if the student agrees to drug counseling and follow-up testing.
After the second positive test, the student is suspended from competitive activity for 14 days and may return to
the activity if the student participates in four hours of substance-abuse education and follow-up testing. A third
positive test in one school year results in a suspension from the competitive activity for one year. No positive
results are reported to law enforcement officials or carry criminal consequences.
The trial court found (and school administrators acknowledged) minimal use of drugs at this school. Between
the 1998-99 and the 1999 – 2000 school years, a total of 484 students were tested as part of this policy. Four
students tested positive. School administrators were in agreement that alcohol and tobacco were more serious
problems among the school’s students.
Constitutional Amendments and Precedents
 Fourth Amendment
The 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,
supported by Oath or affirmation, and particularly describing the place to be searched, and the person or
things to be seized.
 New Jersey v. T.L.O.
A public school student was caught smoking in the bathroom in violation of school policy. When she
denied the allegation, the Assistant Principal searched her purse and found cigarettes as well as rolling
papers commonly associated with marijuana use. Concerned about illegal drug possession, the Assistant
Principal proceeded with a more intrusive search deeper into the purse and found marijuana, a pipe,
plastic bags, a large amount of money, and documents implicating the student in marijuana dealing. The
student claimed the search violated her Fourth Amendment rights.
The Supreme Court weighed the student’s privacy interests against the need of educators to maintain a
safe learning environment. The Court found that the Fourth Amendment’s prohibition on unreasonable
searches applied to searches conducted by school officials. The Court developed a two-part inquiry for
what constitutes a reasonable search: first, was the search justified at its inception, and second, was the
search reasonable in scope. To satisfy the first prong of the inquiry, the school official must have a
reasonable suspicion – a standard easier to meet than probable cause – that the search will turn up
evidence. To satisfy the second prong, the extent of the search must be related to the objectives of the
search and not excessively intrusive. Here, the report that the student had been smoking warranted
reasonable suspicion to justify the search at its inception. The discovery of rolling papers gave rise to a
suspicion of marijuana use and justified continuing and expanding the scope of the search. Thus, the
Court held that the search of the student’s purse was reasonable.
 Pottawatomie v. Earls
Argued: March 19, 2002
Decided: June 27, 2002

The Supreme Court Decision

The Court was sharply split in this 5-4 decision. The majority opinion reflects and affirms the arguments put
forth by the school board. The dissenting opinion reflects the arguments put forth by Earls.

Majority Opinion (Justice Thomas)

The Court held that random suspicionless drug-testing of students involved in extracurricular activities is a
reasonable way of furthering the school’s interest in deterring drug use among students. The Court does not
find such testing to violate the Fourth Amendment. This decision follows the decision made in the past case,
Vernonia v. Acton, where it was held that student athletes may be drug-tested to solve a growing drug-use
problem among students.
Student’s in extracurricular activities have a limited expectation of privacy, while the school has a very
important interest in investigating for possible drug-use. In addition, the process of testing for drugs is a
minimal invasion of privacy. This policy will help the school protect the safety and health of the students in
this district. This protection is more important than small amount of intrusion upon the student that the test
entails.
It is also significant that this program does not have any criminal consequences. The search being conducted
upon the students is not meant to uncover evidence to be used in a trial. The students with positive tests will be
given counseling, but will not enter the criminal justice system. In addition, schools are increasingly taking on
a parental role in the lives of students. The school is responsible for the education of a child, but also is the
custodian of the student. This role gives the school the interest in the student’s well-being that permits this
search.

Justice Breyer wrote a separate Concurring Opinion, agreeing with the Judgment of the Majority
Justice Breyer wrote separately to emphasize the points of the case that he felt were significant to the issue.
Justice Breyer agreed with the majority that the counseling services offered in lieu of criminal prosecution
mattered in making this a more reasonable search.
Justice Breyer is also concerned with the overwhelming national statistics of student drug-use. He supports this
program in an effort to curtail this national problem. Justice Breyer is of the opinion that policing drug use with
an emphasis on catching the suppliers (the drug-dealers) is not enough, that the buyers and users of drugs
should also be monitored. Although the test may be more than a small invasion of privacy, the importance of
deterring drug use is still more important. Therefore, the opinion focuses on this policy as an appropriate way
for schools to participate on the War on Drugs.

Justice Ginsburg wrote the Dissenting Opinion

(Justice O’Connor, Justice Souter and Justice Stevens, three of the dissenting justices, also dissented in the
precedent case, Vernonia v. Acton.)
Although a school is place where there are special needs that may influence what is or is not a reasonable search
and seizure, these needs are not so great as to allow a suspicionless intrusion. The students being targeted by
this policy have not been shown to have problems with drug use. The testing of these students is, therefore,
unreasonable.
Even if Vernonia should apply, that school district was experiencing a large drug problem among student
athletes. In the city of Acton, the athletes were the students that influenced the activity of other students. Acton
was able to prove that there was a drug-use issue in the town that needed to be resolved. The school district in
this case has not shown evidence of similar special needs.
Schools do have a role in watching children and helping to protect the health and safety of students. However,
this role does not warrant such an invasive search as the testing that is allowed in this policy. Also, this policy
may discourage students from participating in extracurricular activities. This is a negative result, as such
activities are often instrumental in keeping students from becoming drug-users.
 Brigham City, Utah v. Stuart
Argued: April 24, 2006
Decided: May 22, 2006

Facts
Brigham City police were responding to a complaint about a loud party at 3 a.m. when they heard what sounded
like an altercation coming from inside the house. The officers looked through the window in the front of the
house to determine what was going on but could not see anything. A few of the officers then went to the back
to find out what was going on. The officers entered the backyard and saw, through a window, four adults trying
to restrain a teenage boy. The officers then saw the boy punch one of the adults, drawing blood. At that point
the officers opened the back door and announced their presence. No one initially noticed the officers’ presence,
so the officers entered the house. The adults were arrested for disorderly conduct, intoxication, and contributing
to the delinquency of a minor. The defendants moved to suppress the evidence found inside the home, arguing
that the officers’ entry had violated their Fourth Amendment rights. The trial court granted the motion to
suppress, ruling that no exigent circumstances existed to justify the entry into the residence. The Utah Court of
Appeals affirmed the trial court’s ruling, which was later affirmed by the Utah Supreme Court as well.

Issue
What constitutional standard must be used by police who enter a house without a warrant in order not to violate
the Fourth Amendment?

Constitutional Amendments and Precedents

 Fourth Amendment
The 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,
supported by Oath or affirmation, and particularly describing the place to be searched, and the person or
things to be seized.
 Mincey v. Arizona (1978)
The Supreme Court held that a warrantless intrusion does not violate the Fourth Amendment when the
exigencies of the situation make the needs of law enforcement compelling. One exigency that the Court
found to justify warrantless intrusion was the emergency aid doctrine. Under this rule, police officers
may make warrantless entries when they reasonably believe that a person within is in need of immediate
aid in order to protect him from serious injury. The Court noted that emergency aid is justified when the
risk to safety or health is life-threatening, when someone has suffered a serious bodily injury and is in
need of immediate aid, and when necessary to prevent serious injury, although the Court did not define
serious injury.
 Welsh v. Wisconsin (1984)
The Supreme Court held that the gravity of the offense that the defendant is charged with is relevant in
determining whether an exigency justified a warrantless entry of a home.
 Graham v. Connor (1989)
The Supreme Court held that an officer's actions must be judged as reasonable in light of the facts and
circumstances confronting them, without regard to their underlying motive or intent.
 Brigham City, Utah v. Stuart
Argued: April 24, 2006
Decided: May 22, 2006

Decision
The unanimous decision was delivered by Chief Justice Roberts with Justice Stevens concurring.
The Supreme Court ruled unanimously in favor of Brigham City. The Court held that police may enter a home
without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously
injured or imminently threatened with such an injury. The Court reasoned that while warrants are generally
required in dealing with a house, sometimes the exigencies of the situation make the needs of law enforcement
so compelling that the warrantless search is reasonable under the Fourth Amendment. One such exigency
includes the need to assist persons who are seriously injured or threatened with such injury.
The Court rejected two arguments made by Stuart. First, Stuart argued that the officers were more interested in
making arrests than stopping violence. The Court said that the subjective motivations of the officers did not
matter so long as there was an objectively reasonable belief that there was a need to protect someone inside the
house from violence. (That is, would a reasonable police officer, confronted with these facts, believe that
warrantless entry was required to prevent further violence?)
Stuart then argued that the conduct of the individuals inside the house was not serious enough to justify the
officers’ intrusion into the home. The Court said that when officers are confronted with ongoing violence, as
they were here, then they are justified in entering the home to prevent the potential for more violence. Under
the circumstances the officers had an objectively reasonable basis for believing both that the injured adult might
need help and that the violence in the kitchen was just beginning. The role of the police is to protect citizens
and prevent violence. The Court also notes that the manner in which the officers entered the house was
reasonable. They announced their presence before stepping through the door, but were not heard as a result of
the loud altercation. This was at least equivalent to a knock on the door and does not violate the “knock and
announce” requirement.

Concurrence
Justice Stevens agrees with the decision of the Court but asks three questions of this odd case. First, why did
the lower courts find a Fourth Amendment violation when this case seemed so clear cut? Second, why did the
prosecution decide to pursue this matter all the way to the Supreme Court? Third, why did the Supreme Court
grant the petition for a writ of certiorari? To the first, Stevens theorizes that perhaps the suppression ruling in
the lower courts was correct as a matter of Utah state law. To the second and third, he theorizes that the City
and the Supreme Court wanted to allow police officers to enter a home without a warrant when they see
ongoing violence. Given the lower court’s decisions, the Supreme Court would have to reverse the Utah
Supreme Court’s decision for police to have the ability to use the emergency aid exception under such
circumstances. No matter what the reason, he states that he joins the decision that the Court made, but he thinks
he was right to vote against hearing the case in the first place. (Incidentally, in his opinion for the Court, the
Chief Justice cites splits among state supreme courts and federal courts of appeals on the issue of what Fourth
Amendment standard to use when analyzing warrantless home entry.)
 Hill v. Colorado
Argued: January 19, 2000
Decided: June 28, 2000
Facts

In 1993, the state of Colorado passed a six-prong statute for the purpose of regulating protestors outside of
health facilities. The third prong of the statute requires that anyone within 100 feet of a medical facility's
entrance needs to obtain permission from a passerby before approaching them within eight feet to pass out
literature, educate, or counsel them. The legislative intent of the statute was to "balance a person's right to
protest or counsel against certain medical procedures" against "another person's right to obtain medical
counseling and treatment" by making it a crime to "knowingly obstruct another person's entry to or exit from a
health facility."

Leila Hill, Audrey Himmelmann and Everitt W. Simpson, Jr. are protestors affected by the statute. This group
of sidewalk counselors educates passersby by distributing leaflets and displaying posters and signs. They also
counsel women and protest abortion procedures at various medical facilities. Shortly after the passage of the
Colorado statute, the group of sidewalk counselors changed their activities to conform to the new law in order
to avoid prosecution. At the same time, they filed a lawsuit against the state to challenge the statute as a
violation of their First Amendment right to free speech.

Lawsuit

The trial court granted summary judgment for the state. On appeal, the Colorado Court of Appeals affirmed the
trial court's decision. The appeals court concluded that the statute was content-neutral because it did not target a
specific group. It applied to the speech of anti-abortion protestors, as well as any other protests aimed at the
patients. The Supreme Court of Colorado refused to hear the case on appeal.

The petitioners then sought review from the United States Supreme Court. In February 1997, the United States
Supreme Court, without opinion, vacated and remanded the case back to the appeals court for reconsideration in
light of a recent decision that also involved abortion protestors and buffer zones. On review, the Colorado Court
of Appeals again upheld the statute. On appeal to the Colorado Supreme Court, the decision to uphold the
statute was affirmed.

The Colorado Supreme Court distinguished this case from Schenck v. Pro-Choice Network of Western New
York, a similar case decided before the United States Supreme Court. Both cases involve free speech claims and
buffer zones around abortion clinics. In Schenck, the Supreme Court distinguished between fixed buffer zones
that were held to be constitutional and "floating bubbles" which were unconstitutional. A fixed buffer zone of
15-feet around the facilities was valid because it was necessary to allow people to come and go freely. "Floating
bubbles," however, that designate a distance away from people and cars was impractical and a burden that was
unnecessary to serve the governmental interest.

The Colorado Supreme Court was careful to interpret the statute narrowly so that their "floating zone" of eight
feet would not be invalidated. According to the Colorado Supreme Court, the statute is only violated if the
protestor physically moves within eight feet of the passersby. If the passersby approach the protestors within
eight feet, they are not in violation of the statute. This distinction is important because the Colorado Supreme
Court sought to distinguish itself from Schenck in order to avoid being invalidated because of an undue burden
on the protestors. The United States Supreme Court granted certiorari on September 28, 1999.

Issue

Whether a state statute requiring speakers to obtain permission from passersby on public sidewalks and streets
before they can speak or distribute information to them places an undue burden on an individual's rights to free
speech under the First Amendment.

Constitutional Amendments and Precedents

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.

Schenck v. U.S. (1917)

 Freedom of speech can be limited during wartime. The government can restrict expressions that “would
create a clear and present danger that they will bring about the substantive evils that Congress has a right
to prevent.”

Roe v. Wade (1973)

 In a 7–2 decision, the Supreme Court ruled that women have a right to have an abortion. The Court said
that this right is part of a woman’s fundamental right to privacy, which is protected by the 14th
Amendment. The right to privacy means that people are protected from state interference in their
marriage, procreation, contraception, family relationships, and child rearing. The government can only
restrict this right if there is a compelling government interest. Because these interests become stronger
later in pregnancy, the Court said the government may not limit abortion during the first trimester of
pregnancy, may impose reasonable restrictions during the second trimester, and may completely ban
abortion during the third trimester.

Texas v. Johnson (1989)

 In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of
protest against Reagan administration policies. Johnson was tried and convicted under a Texas law
outlawing flag desecration. In a 5-to-4 decision, the Court held that Johnson's burning of a flag was
protected expression under the First Amendment. The Court found that Johnson's actions fell into the
category of expressive conduct and had a distinctively political nature. The fact that an audience takes
offense to certain ideas or expression, the Court found, does not justify prohibitions of speech.

Casey v. Planned Parenthood (1992)

 The Court reviewed several Pennsylvania restrictions on abortion, including a 24-hour waiting period, a
requirement for a minor to obtain consent from her parents, and a requirement that married women
notify their husbands before getting an abortion. In a split court, the justices’ core decision reaffirmed
the ruling in Roe v. Wade that women have a right to an abortion. However, the justices said there is a
legitimate state interest to protect the health of the woman and fetus. Therefore, the government may
regulate abortion at any point in the pregnancy. An abortion restriction cannot, however, impose an
“undue burden” on women seeking an abortion. It will be struck down if it has the purpose or effect of
creating a “substantial obstacle” to seeking an abortion before the fetus is able to survive outside the
womb. Ultimately, Casey allowed most of Pennsylvania’s restrictions, including the 24-hour waiting
period and parental consent. However, it struck down the spousal notification requirement as an undue
burden.
 Hill v. Colorado
Argued: January 19, 2000
Decided: June 28, 2000
Supreme Court Opinions

Majority
(Stevens, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Souter, Ginsburg, and Breyer, J.J., joined)

 The statute passes the content-neutrality test under Ward v. Rock Against Racism. First, it is a regulation
where some speech may take place, and not a regulation of its content. Secondly, the restrictions placed
on the speech applies to all protestors, regardless of the viewpoints being expressed. Finally, the state's
interest in protecting citizens' health and safety is unrelated to the content of the protestor's speech.
 The statute is a valid "time, place, and manner" regulation under Ward. The state has a significant and
legitimate interest that is narrowly tailored to serve the interest.
 The buffer zone does not completely cut-off the protestors' means of communication with the public.
The statute leaves open "alternative communication channels" - there is no limit on the number of
protestors; there is no restriction on the noise level; and there is no adverse effect on the ability to read
any protesting signs.
 The consent requirement of the statute is not a prior restraint on speech. The consent required by the
protestors from the passersby does not impose any form of censorship or filtering of the protestor's
message.
 The statute is not vague in its construction. It requires that a protestor "knowingly" approaches another
person for the purpose of oral protest, education, or passing out literature. A reasonable person would
not find this requirement of "knowingly" difficult to follow.

Concurrence
(Souter, J., filed a concurring opinion, in which O'Connor, Ginsburg, and Breyer, J.J., joined)

 The statute is not directed at the content of the speech. First, this statute does not effect a stationary
speaker. Also, the restriction on the speech goes to the approaches between the protestors and the
passersby. This does not affect the audible or visual messages.

Dissent
(Scalia, J., filed a dissenting opinion, in which Thomas, J., joined)

 The statute's restriction is content-based. Any person who wishes to educate, protest, or counsel within
eight feet of another person must receive permission before approaching them, but someone who has
any other purpose is exempt from the statute. This distinction depends on what the person intends to say,
which is directed at the content of the message.
 The determination of whether a statute is content-neutral is not limited to the two factors that it neither
(1) discriminates among viewpoints, or (2) places restrictions on the subject matter of the speaker.
 Content-based regulation is subject to the most exacting level of analysis, strict scrutiny, which requires
that the state show that the restriction is narrowly tailored to serve a compelling interest. The statute
does not satisfy this requirement because (1) it prohibits more speech than what can be attributed to
protestors; (2) restricts all unconsented-to approaches even though it may not be obstructive or
disruptive; and (3) the restrictions are not focused on the direct source of evil the statute is aimed at
preventing - obstruction of access to health facilities.
  The statute places an unjustifiable burden on an individual's right to free speech. The eight-foot floating
zone may not affect the protesting, but it severely undermines the ability to counsel and educate.

(Kennedy, J., filed a dissenting opinion)

 The majority is incorrect to use Ward v. Rock Against Racism. Ward applies where the statute is
content-neutral. The Colorado statute is a content-based statute aimed at screening and censoring speech
from individuals that can only pass constitutionality under strict scrutiny.
 The statute is a disguise to restrict protestors on one side of a debate, abortion protestors, from
exercising their right to free speech.
 The categories of speech restricted under the statute - protesting, educating, and counseling - is nothing
more than content-based legislation that has the effect of creating a disfavored speech-zone in violation
of the First Amendment.
 The statute is unconstitutional because it is a vague and overbroad attempt at regulating speech. First,
the terms "knowingly", "protest", "counseling", and "educate" are imprecise termss that are not defined
within the statute. Also, the eight-foot buffer zone that limits protestors is unworkable and will chill their
speech.