Constitutional 
Scrapbook Project 
 

By Maya Alexander 

2017 
 
 
 
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☆Table of Contents☆ 
Article Title Amendment & Publication Source of Page
Provision Date Article Number
“Gay Marriage Advocates First Amendment: Article is no New York 2-6
Want Mississippi Law Struck Freedom of Religion longer on the Times
Down” website
By: The Associated Press

“Justices to Hear Landmark First Amendment; March 13, 2007 Washington 7-12
Free-Speech Case” Freedom of Speech Post
By: Robert Barnes

“IDEAS & TRENDS; High First Amendment: January 17, 1988 New York 13-18
Court Gives a Civic Lesson” Freedom of Press Times
By: Fred M. Hechinger

“A Right-to-Bear-Arms Twist: Second Amendment: April 24, 2014 New York 19-22
Rallying With a Gun in Hand” Right to Bear Arms Times
By: Cathaleen Qiao Chen

“Family allegedly forced from Third Amendment: July 08, 2013 Fox News 23-27
home by police files rare Third No Quartering of Soldiers
Amendment suit”
By: Joseph Weber

“13-year-old's school Fourth Amendment: April 19, 2009 CNN 28-32

strip-search case heads to Unreasonable Search and
Supreme Court” Seizure
By: Aaron Brodie

“Minnesota court on the Fifth Fifth Amendment: January 18. 2017 Washington 33-36
Amendment and compelling Right to not Post
fingerprints to unlock a phone” Self-Incriminate
By: Orin Kerr

“Supreme Court to Consider Eighth Amendment: August 22, 2016 New York 37-41
Legal Standard Drawn From No Cruel and Unusual Times
‘Of Mice and Men” Punishment
By: Adam Liptak

1 
 

☆​First Amendment​☆ 
Freedom of Religion

(Religion Puzzle)

Freedom of Religion: ​Government cannot take away a citizen’s right to observe

and exercise a religion

2 
 

JACKSON, Miss. — Advocates of same-sex marriage said Monday that they will ask the
U.S. Supreme Court to strike down a Mississippi law that lets government workers and
business people cite their own religious objections to refuse services to gay couples.

The law, considered the broadest religious-objections law enacted since the U.S. Supreme Court
legalized same-sex marriage in 2015, has been on hold amid court challenges. But it is set to take
effect Friday because a federal appeals court refused to keep blocking it.

Championed and signed by Republican Gov. Phil Bryant in 2016, the law protects three beliefs:
that marriage is only between a man and a woman, sex should only take place in such a marriage,
and a person's gender is determined at birth and cannot be altered.

"This is an unfair and unconstitutional law," said Robert McDuff, an attorney for some of the gay
and straight Mississippi residents who sued to try to block it.

The Mississippi law would allow clerks to cite religious objections to recuse themselves from
issuing marriage licenses to same-sex couples, and would protect merchants who refuse services
to LGBT people. It could affect adoptions and foster care, business practices and school
bathroom policies.

The Supreme Court will hear a case this term about a Colorado baker who said he should not be
forced to violate his own religious beliefs by making a cake for a married same-sex couple. The
Trump administration is supporting the baker, who disagreed with a Colorado law that bars
discrimination on the basis of sexual orientation.

The Mississippi law would affect actions by government workers and people working for private
businesses.

U.S. District Judge Carlton Reeves blocked the Mississippi law from taking effect in July 2016,
ruling it unconstitutionally establishes preferred beliefs and creates unequal treatment for lesbian,
gay, bisexual and transgender people.

A panel of judges from the 5th U.S. Circuit Court of Appeals lifted the hold on the law June 22,
saying people who sued the state had failed to show they would be harmed. Plaintiffs asked the
whole appeals court to reverse that decision, but the court said last Friday that it would not do so.
That opens the way for the law to take effect in Mississippi.

3 
 

McDuff, the Mississippi Center for Justice and the gay-rights group Lambda Legal are asking
the Supreme Court to reverse the 5th Circuit's action.

The law "creates a toxic environment of fear and prejudice," Susan Sommer, director of
constitutional litigation for Lambda Legal, said in a statement Monday. "Along with other
anti-LGBT laws across the country like those in North Carolina and Texas, these laws are a pack
of wolves in sheep's clothing, dressing up discrimination and calling it religious freedom."

An Arizona-based Christian group, Alliance Defending Freedom, helped write the Mississippi
law.

"As I have said from the beginning, this law was democratically enacted and is perfectly
constitutional," Gov. Bryant said Monday. "The people of Mississippi have the right to ensure
that all of our citizens are free to peacefully live and work without fear of being punished for
their sincerely held religious beliefs."

4 
 

Paraphrase of The Associated Press’, “Gay Marriage

Advocates Want Mississippi Law Struck Down”
Even after the 2015 Supreme Court ruling that gay marriage is legal, states still disagree and act
against the law. Mississippi, in particular, has its own law, written by an Arizona-based Christian
group, allowing government workers and private business owners to discriminate and choose to
deny business from any customer who challenges their religious beliefs. When the governor of
Mississippi, Republican Phil Bryant, signed this law, he protected three beliefs. Firstly, the law
stated that marriage should only be between one man and one woman. Secondly, it
communicates that only in that type of marriage should sex take place. Finally, a person’s gender
is determined at birth and cannot change throughout his/her life. Because of these three
provisions, clerks are allowed to reject customers, certain couples looking to adopt are not
eligible, and school bathroom policies are affected. In the U.S. district court, the law was blocked
from taking effect in July of 2016; however, the court of appeals lifted the constraint in late June
for lack of evidence that the people who sued would be harmed, which allowed the law to take
effect in Mississippi. Advocates of the LGBT community were infuriated and asked the Supreme
Court to reverse the appeal court’s action.

Robert McDuff, an attorney for gay and straight residents who opposed the law, believed that it
was not only unfair to the LGBT community, but also unconstitutional to deny some people the
same rights that were given automatically to others. A U.S. district judge agreed that it was
unconstitutional because the law enforced certain beliefs and discriminated against gay, lesbian,
bisexual, and transgender people. Similarly, when the law was blocked, they ruled that it
established preferred beliefs and unequal treatment, and after the constraint was lifted, it was said
that having this law in Mississippi created an atmosphere filled with fear and prejudice. The
director of constitutional litigation for Lambda Legal, Susan Sommer, argued that the Mississippi
state government was “dressing up discrimination and calling it religious freedom" and covering
up a major problem that should have been addressed. On the other hand, individual workers and
business owners spoke out, including a baker who expressed that he should not be forced to
make a cake for a gay couple if it goes against his own religious beliefs and affiliations.
Governor Phil Bryant defended the law by saying that it was, in fact, constitutional and was
democratically put into place, meaning most government officials agreed with it. Finally, he
stated that Mississippi residents should have felt free to live and work in an environment where
they were not punished for having certain religious beliefs, which he felt that this law protects.

The article is a reflection of the freedom of religion provision in the First Amendment because
people challenged a law that supposedly protected government workers and private business

5 
 

owners’ religious beliefs. The article discussed a dispute between advocates of same-sex
marriage and the Mississippi government, and the main question is whether or not holding
the Mississippi law against gay marriage is a violation of workers’ right to freedom of religion.

6 
 

☆​First Amendment​☆ 
Freedom of Speech

(Broken speech)

Freedom of Speech:​ The right that one has to express their opinions and/or
thoughts freely, without interference from the government

7 
 

Bong Hits 4 Jesus.

That is the slogan that a defiant high school student named Joseph Frederick fashioned with a
14-foot piece of paper and a $3 roll of duct tape. His goal was partly to get on TV as the Olympic
torch passed through his town of Juneau, Alaska, and mostly to get under the skin of his
disciplinarian principal, Deborah Morse, with whom he had a running feud.

It worked, at least the irritating-the-principal part. Morse crossed Glacier Avenue to Frederick's
position across from the school and confiscated the banner. She later suspended him for 10 days.
Frederick, a high school rebel who at the time was fond of quoting Thoreau and Voltaire, said
Morse tacked on the last five days when he paraphrased Thomas Jefferson's admonition that
"speech limited is speech lost."

In the five years since, a classic conflict between a second-semester senior impatient to move on
in the world and his frazzled principal trying to maintain order has become an only-in-America
battle spawning numerous lawsuits, conflicting court rulings and changes that shook the lives of
its participants.

Now, a wide range of interested parties has assembled for what they see as an epic Supreme
Court battle, which will be heard on Monday.

The American Civil Liberties Union has been on Frederick's side from the jump, joined by a
diverse liberal and conservative coalition of civil rights, constitutional law and religious
organizations. Kenneth W. Starr, the independent counsel during the investigation of President
Bill Clinton, has volunteered his time to the Juneau School District, and school boards
nationwide, plus the Bush administration, are supporting Morse and the school district.

Morse v. Frederick asks the justices to weigh the court's famous​ ​1969 ruling that students do not
"shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"
against more recent decisions acknowledging a school system's ability to create rules that
maintain order and protect students from messages deemed harmful.

In this case, the school board maintains that Frederick's slogan encouraged smoking marijuana.
But other school districts, especially in light of school shootings and other violence, have
restricted clothing and speech that they thought could cause disruption or violence.

Both sides equate an adverse ruling with cataclysmic results.

8 
 

The "extraordinarily broad claim" asserted by the government, said ACLU national legal
director Steven R. Shapiro, "would in effect overrule the entire architecture of student speech
law that the Supreme Court has so carefully constructed over the past 40 years."

Morse's brief, written by Starr and a team of pro bono lawyers at the firm of Kirkland and Ellis,
said ratification of Frederick's victory in the appellate court would make all the more daunting
"the vital task of teachers, administrators and volunteer school board members in attending
holistically to the needs of millions of students entrusted every school day to their charge."

Frederick was one of them, five years ago, though he was not a particularly happy student at
Juneau-Douglas High School. One day, he refused a vice principal's order to leave a student
commons area where he was reading Albert Camus, and the police were called. The next day, he
remained in his seat while others stood for the Pledge of Allegiance and was sent to the
principal's office. He described it all in a mini-treatise -- "This is a story of a high school senior
who refused to bow down in submission before an authority . . . ." -- he posted on the Internet.

He planned his ultimate protest for Jan. 24, 2002, the day the Olympic torch was scheduled to
pass through Juneau, part of a 50-state relay leading up to the Salt Lake City Olympic Games.
Frederick said he had seen the phrase "Bong Hits For Jesus" on a sticker on a snowboard.

"To me, it's absurdly funny," Frederick, now 23, said in a recent conference call with reporters
organized by the ACLU. "The phrase was not important. I wasn't trying to say anything about
religion. I wasn't trying to say anything about drugs. I was just trying to say something. I wanted
to use my right to free speech, and I did it."

While that right was clearly established by the court four decades ago, subsequent decisions have
allowed some restrictions, including those on speech considered indecent enough to disrupt a
school's mission, and some content in school newspapers.

Frederick's case presents unusual facts for the justices to consider. For one thing, he was 18 at
the time of the event, and he was careful not to display his protest message on school grounds. At
least one non-student was among the group holding the banner, and his attorneys contend that
even if his message was considered pro-marijuana, debates about legalizing the drug are a
legitimate topic of political discussion in Alaska, where the state high court has ruled that adults
have the legal right to possess small amounts of the drug.

Even school officials acknowledged that Frederick's actions were not disruptive. Students
throwing snowballs and plastic soda bottles at one another got more attention.

9 
 

But the school board says Frederick's protest happened during a school-sponsored event --
the entire student body was released for the parade, and the cheerleaders and pep band
entertained. "It was a field trip," Starr says, even if it occurred just outside the school's doors.
And in his brief, he argued, "student free speech rights . . . appropriately yield when it comes to
promoting illegal substances."

A federal district judge relied on the court's more recent decisions to dismiss Frederick's lawsuit
against Morse and the school board that backed her decision. But the U.S. Court of Appeals for
the 9th Circuit said that the 1969 decision in Tinker v. Des Moines Independent Community
School District from which the "schoolhouse gate" language is drawn was the most important
and that government officials cannot punish speech with which they disagree. That court held
Morse personally liable for violating Frederick's rights, a finding that has caused consternation
among educators nationwide.

Morse is now an administrator with the Juneau School District, and Superintendent Peggy
Cowan said the district's pursuit of the case was necessary. "The district backed her decision, and
we were sued," she said of Morse. It sounds like a cliche, she said, "but it's the principle of the
case that's important."

Frederick, too, has learned much about the legal system. He sued the Juneau Police Department
for a series of alleged harassment that occurred after the banner incident and received a
settlement from the city. Coincidentally, his father, Frank Frederick, worked for the company
that insured the school district and sued after he claimed that he was demoted and then fired for
not pressuring his son to drop his lawsuit. A jury believed him, and he received a settlement of
nearly $200,000.

Joseph Frederick was arrested while attending college in Texas for distributing marijuana. "I
never professed to be perfect or a saint," he said in the conference call with reporters.

Father and son are now in China, where Joseph Frederick teaches English to Chinese students
and studies Mandarin. He has not brought up his case with his students as a way to discuss
freedom of speech or the American justice system. "I'm an English teacher -- I don't teach
constitutional law," he said.

10 
 

Paraphrase of Robert Barnes’ “Justices to Hear Landmark

Free-Speech Case”

On January 24, 2002, the entire student-body of Juneau-Douglas High School was released from
classes to take a trip off campus, and Joseph Frederick, a 12th grade student, held up a handmade
banner for everyone to see. He displayed it near his school as the Olympic torch passed by his
town, intending to annoy his principal, Deborah Morse. Frederick was a problematic student,
causing trouble by refusing orders and staying seated during the Pledge of Allegiance. As a final
protest against Morse and his high school, Frederick made a 14-foot long paper sign reading:
“Bong Hits 4 Jesus,” which was a saying that he had once seen on a snowboard. While he
thought this act was comedic, Morse, perceived it differently. She crossed the street to where
Frederick, other students, and at least one random member of the community were holding up
the sign to take it down. Frederick was later suspended for ten days due to breaking the school
policy of promoting illegal drug use and allegedly making a snarky comment after the sign was
confiscated. He disagreed with Morse’s decision to suspend him and filed a lawsuit against the
school. The case went to a federal district judge, who ruled against Morse. Later, the U.S. Court
of Appeals, reversed the decision, based off of a 1969 ruling, stating that students should not
"shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Five years after the incident, the case was heard at the Supreme Court.

While they noted that students, including Frederick, had a right to free speech, Morse and the
school district felt that when it came to promoting illegal drug use in public, it had to be stopped.
On the other hand, Frederick’s attorney mentioned that, in Alaska, the legalization of marijuana,
which is what his sign alluded to, was a very relevant topic in politics, and adults already had the
right to possess small amounts of the drug. The school argued that Frederick was representing
them by being part of the school-sponsored field trip, including the whole student-body,
cheerleaders, and the pep band. The 9th Circuit Court of Appeals responded by siding with a
well-known 1969 ruling, stating that a student should not give up his/her constitutional rights just
because he/she is at school. The appellate court also felt that schools could not prevent students’
speech or actions solely because they disagreed with it, and they ruled that Morse was
responsible for violating Frederick’s rights. Courts not only had to consider the 1969 case, but
also more recent cases that created exceptions to maintain order and protect students from
harmful messages. Frederick did not disturb or disrupt the public, and it was stated that kids
throwing snowballs attracted more attention than the sign. Frederick argued that he did not make
the sign with the intention to promote drugs, religion, or even to convey an important message.
He stated that he solely wanted to test his first amendment rights, which he accomplished.

11 
 

Finally, the school district felt that by reinforcing Frederick's victory in the appellate court, it
would cause distress among teachers and educators around the country.

The article is a reflection of the freedom of speech provision in the First Amendment because
Deborah Morse banned a sign that Frederick made to convey his thoughts and ideas. The article
discussed a dispute between the 18-year old student, Joseph Frederick and the Juneau-Douglas
High School principal, Deborah Morse, and the main question is whether or not the school
board’s action to suspend Frederick violates his freedom of speech.

12 
 

☆​First Amendment​☆ 
Freedom of Press

(Handcuffed News)

Freedom of Press: ​The government cannot stop the publication of printed articles

13 
 

IN 1969, the Supreme Court ruled that students ''do not shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.''

Last week, in a 5 to 3 ruling, the court put some limits on this broad view of the Bill of Rights
when it decided that a student newspaper was part of a high school's curriculum and subject to
censorship of any content that conflicted with a ''valid educational purpose.''

The case, Hazelwood School District v. Kuhlmeier, grew out of a long-standing conflict between
two theories of education. The court sided with the traditionalists, who see the school as a molder
of values for the immature. In the words of Justice Byron R. White, who wrote the majority
opinion, schools must set ''standards that may be higher than those demanded by some
newspaper publishers or theatrical producers in the 'real' world.''

On the other side of the controversy is a view of schools set forth by Horace Mann, the
19th-century patron saint of universal public education, and, more recently, by John Dewey, the
philosopher of progressive education. These men, though not rejecting limits on students' rights,
held that schools are not enclaves apart from the ''real world.'' Dewey described them instead as
''embryonic'' versions of society in which students learn to act as citizens in a democracy.

In a dissent that was solidly in the tradition of Dewey, Justice William J. Brennan Jr. wrote that
the mere claim by school officials that student expression is incompatible ''with the school's
pedagogical message'' does not justify suppression.

Otherwise, he wrote, school officials could convert public schools into ''enclaves of
totalitarianism.'' Instilling Morality

Justice Brennan conceded that educators have an ''undeniable, and undeniably vital, mandate to
inculcate moral and political values'' but that ​t​his is ''not a general warrant to act as thought
police.'' ''The young men and women of

Hazelwood East,'' he wrote, ''expected a civics lesson, but not the one the Court teaches them
today.'' The case began in 1983 when

Robert Eugene Reynolds, the principal of Hazelwood East High School in a suburb of St. Louis,
barred the school newspaper, Spectrum, from publishing articles about teen-age pregnancy, birth
control and the impact of divorce on children. Cathy Kuhlmeier and two other student editors
charged unsuccessfully in Federal District Court that their First Amendment rights had been
violated. The ruling against them was reversed by the Court of Appeals for the Eighth Circuit.

14 
 

Invoking Tinker v. Des Moines Independent Community School District, a 1969 ruling that
upheld the right of students to wear black arm bands to protest the Vietnam war, the appeals
court agreed that constitutional freedoms had been abridged.

In the Supreme Court's reversal of the appellate court, Justice White upheld the school
authorities' right to censor speech that is ''ungrammatical, poorly written, inadequately
researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences,'' none
of which (with the possible exception of the last point) was at issue in the Hazelwood case.

Students' rights, Justice White wrote, are not automatically those of adults. He referred to an
earlier ruling, Bethel School District No. 403 v. Fraser, which upheld a principal's right to
discipline a student for delivering a speech in a school auditorium that, though not legally
obscene, was ''sexually explicit.''

The Court did not charge the Hazelwood students with obscenity or violation of good taste. It
merely held that interviews with students about their pregnancies violated their privacy, even
though their real names had been withheld, and that another, also anonymous student's comments
on her father's behavior prior to his divorce had not given the parents a chance to respond.

The Hazelwood ruling is not likely to put an end to the controversy. There is much agreement,
shared by the dissenting Justices and spelled out in the Tinker decision on antiwar arm bands,
that limits exist to student rights, in particular those of the student press. But there is no
consensus about how far school administrators can go in imposing their own views, or those of
the political mainstream.

On this point the disagreement is clear-cut: Justice White believes that principals may reject any
student expression that could ''associate the school with any position other than neutrality on
matters of political controversy.'' Justice Brennan emphasizes the importance of ''teaching
children to respect the diversity of ideas that is fundamental to the American system.''

For decades the student press has taken a zig-zag course between docile publications that attract
little attention and the more enterprising or provocative ones that are read and debated. During
the campus upheavals of the late 1960's, students came to equate supervision with suppression,
and rebelled by creating an underground press that eluded adult influence altogether. This same
spirit of rebellion led to the Tinker case and the limits it placed on the authority of school
administrators. With last week's ruling, the principals have regained lost ground, but they will be
under an even greater burden to draw the difficult distinction between instilling values and
repressing developing minds.

15 
 

Fred M. Hechinger’s “Ideas & Trends; High Court Gives a

Civics Lesson”
In the Hazelwood School District v. Kuhlmeier case, a school newspaper wrote an issue,
including an article on teenage pregnancy and another on the effect that divorce has on children.
The principal of this school, before the newspaper was published, barred the two articles from
being released. Three editors of the school paper, including a girl named Cathy Kuhlmeier,
charged the principal that he had violated their First Amendment, freedom of press, rights. The
Federal District Court ruled that it was not a violation of their rights; however, in the Eighth
Circuit Court of Appeals, the decision was reversed. The case then went to the Supreme Court,
where it was ruled that the school had the right to bar the articles from being released. They
justified this by stating that the teenage pregnancy interviews, although excluding names, had
violated the student’s privacy, and the article on divorce did not give the students’ parents a
chance to respond to the claims that were made about actions before the divorce.

In the majority opinion, Justice Byron R. White argued that schools need to set standards higher
than those of newspapers in the “real world,” meaning that schools and American society have
different expectations for what is and is not okay for public view. Opposedly, John Dewey
believed that schools are a part of the “real world” and should not be treated any different.
Additionally, he stated that schools are microcosms of society, where the students must learn to
be citizens and should therefore have the same limits apply to their actions. Along the same lines
as Dewey. Justice William J. Brennan Jr wrote that, just because the student’s actions conflict
with the methods of the school, does not mean that the school has the right to censor what they
do. Similarly, he added that even though schools have a right to mandate controversial opinions,
they do not have the right to act as police. Justice White, siding with the school district, felt that
the rights the students have are different than those of adults. He also believes that principals
should be able to reject any form of student expression that could possibly link the school to any
political bias. Finally, on the students’ side, Justice Brennan argued that the students should learn
to respect the many different ideas that occur in American society.

The article is a reflection of the Freedom of Press provision in the First Amendment because the
principal barred the publication of certain articles in a school newspaper. It discussed a dispute
between the Hazelwood School District and student editors, such as Cathy Kuhlmeier, and the
main question is whether or not the school's action to ban the articles from being released in the
school newspaper was a violation of the students’ Freedom of Press.

16 
 

REVISED:​ ​Fred
M. Hechinger’s “Ideas & Trends; High Court
Gives a Civics Lesson”
In the 1983 Hazelwood School District v. Kuhlmeier case, Hazelwood East High School’s
student run newspaper, Spectrum, wrote an issue, including articles on teenage pregnancy, birth
control, and the effect that divorce has on children. Robert Eugene Reynolds, the principal of the
high school, barred the two articles from being released, causing uproar among students. Three
editors of the school paper, including a girl named Cathy Kuhlmeier, charged the principal,
claiming he had violated their First Amendment, freedom of press rights. Upon going to the
Federal District Court, it was ruled that the school’s action was not a violation of the students’
rights; however, in the Eighth Circuit Court of Appeals, the decision was reversed, ruling that the
newspaper should have had the right to publish what they chose. The case then went to the
Supreme Court, where there was a 5-3 majority that the school had the right to reject the articles
from being published. They justified this by stating that the teenage pregnancy interviews,
although excluding names, had violated the students’ privacy, and the article on divorce did not
give the students’ parents a chance to respond to the claims made about some of their actions.
This decision allowed schools to censor any speech that was considered to be grammatically
incorrect, poorly written or researched, opinionated, racially bias, immoral, or inappropriate for
younger audiences.

In the majority opinion, Justice Byron R. White argued that schools need to set standards that are
higher than those of newspapers in the “real world,” meaning that schools and American society
have different expectations for what is and is not okay for the public view. In contrast, John
Dewey believed that schools are a part of the “real world” and should not be treated any
differently than workers and professional news sources. Additionally, he stated that schools are
microcosms of society, where the students must learn to be citizens and should therefore have the
same limitations and consequences apply to their actions. In agreement with Dewey, Justice
William J. Brennan Jr. wrote that, just because the school disagrees with the students’ actions,
does not mean that they have the right to censor them. Similarly, he added that even though
schools should be able to mandate controversial speech, they do not have the right to act as
police, putting an end to all of it. Justice White, siding with the school district, felt that the rights
the students have are different than those of adults. He also believes that principals should be
able to reject any form of student expression that could possibly link the school to any political
bias. Finally, on the students’ side, Justice Brennan argued that the students need to learn how to
respect the many different ideas that occur in American society.

17 
 

The article is a reflection of the Freedom of Press provision in the First Amendment because
the principal barred the publication of certain articles in a school newspaper. It discussed a
dispute between the Hazelwood School District and student editors, such as Cathy Kuhlmeier,
and the main question is whether or not the school's action to ban the articles from being released
in the school newspaper was a violation of the students’ Freedom of Press.

18 
 

☆​Second Amendment​☆ 
The Right to Bear Arms

(Gun and Eagle)

Second Amendment:​ The right that people have to defend themselves using
weapons, without intrusion from the government

19 
 

When advocates for tighter restrictions on guns rallied last week in Austin City Hall, a small
group of opponents staged a counter-rally outside, carrying firearms and waving a flag
emblazoned with an assault rifle and the caption “Come and Take It.”

Texas gun rights advocates, like their counterparts who argue for gun control, have been
increasingly active in the wake of recent mass shootings, organizing hundreds of grass-roots
demonstrations across the state. Their effort includes a simple strategy: a public display of their
weapons — sometimes in front of their opponents.

“You’ve got a group of people who are carrying firearms, kids and women, smiling and waving,”
said C. J. Grisham, the founder of Open Carry Texas, which wants lawmakers to allow Texans to
openly carry handguns as they can carry long arms. “If we truly meant to hurt anybody, would
we draw attention to ourselves by waving flags and smiling? If you think about it logically, the
fact that someone is alarmed is unreasonable.”

But the tactics of groups like ​O​pen Carry Texas, which mobilizes crowds carrying shotguns,
hunting rifles, AR-15s and AK-47s, have drawn criticism from gun control groups like the Texas
branch of Moms Demand Action for Gun Sense in America. Stephanie Lundy, the branch’s
spokeswoman, said that almost every time Moms Demand Action meets, “we wind up with
armed gunmen in the parking lot.”

“Texas moms are tougher than $3 steak,” she said. “We will not be intimidated by armed
anyone.”

In Texas, it is illegal to openly carry handguns, and a license is required to carry a concealed
handgun. It is legal to visibly carry a long arm — a shotgun or a rifle — so long as it is not done
in a “manner calculated to alarm.”

The definition of that qualifier is subject to interpretation. “We’re totally O.K. with people
carrying their weapons lawfully under the Second Amendment, but the right to bear arms is not
an unfettered right,” said Kevin Lawrence, executive director of the Texas Municipal Police
Association. “There’s a certain point where law enforcement has a right to step in and say,
‘You’ve crossed the line.’ ”

Since Mr. Grisham founded Open Carry Texas, he said, it has hosted or participated in more than
400 demonstrations. In October, the group helped organize what it called the “largest armed
event at the Alamo since the Battle of the Alamo,” in which hundreds of gun-wielding people

20 
 

demonstrated in downtown San Antonio. Armed demonstrators marched down packed city
streets during last month’s South by Southwest festival in Austin.

Mr. Grisham and his allies insist that the Constitution guarantees them the right to carry any
firearm at any time. But supporters of tighter restrictions — specifically, of universal background
checks — on guns find carrying weapons in places like shopping malls or busy city streets ill
advised.​ ​Even though Moms Demand Action and its members do not have an official stance on
the legality of open carry, they are put off by the provocative nature of armed demonstrations.

“This is their response to the massacre of first graders,” said Kellye Burke, the president of the
Texas chapter of Moms Demand Action, referring to the Newtown, Conn., school shootings in
2012. “Think how disgusting that is.”

Moms Demand Action, as part of a recent initiative by former Mayor Michael R. Bloomberg of
New York to spend $50 million to build a nationwide grass-roots network to curb gun violence,
will be canvassing in Texas and other states to inform voters about legislators’ records on gun
policy.

Open Carry Texas is also taking its strategy to other states. The group is teaching like-minded
gun owners in Oklahoma, Colorado and Arkansas to emulate the armed demonstration
phenomenon.

“We’re not out there to bait police officers or to scare the community,” Mr. Grisham said. “We
wave, we smile, we hand out fliers. If we see someone who seems really nervous, we’ll talk to
them.”

21 
 

Paraphrase of Cathaleen Qiao Chen’s “A Right-to-Bear-Arms

Twist: Rallying With a Gun in Hand”
After the spree of mass shootings that took place in the last couple of years, both advocates for
gun rights and advocates for gun restrictions became more active in protesting across Texas.
When anti-gun right supporters rallied in Austin City Hall, they were countered by opponents,
openly carrying firearms and flags reading: “Come and Take It.” Groups, such as Open Carry
Texas, demonstrating with various guns in hand, attracted controversy among control groups like
Moms Demand Action for Gun Sense in America. Texas law states that it is legal to carry these
types of guns (rifles and shotguns) in public, as long as it does not cause excessive alarm;
however, other, gun control groups still criticized these tactics. The founder of Open Carry
Texas, C. J. Grisham, has held and participated in hundreds of demonstrations throughout the
course of the group’s existence. In addition, both groups, Open Carry Texas and Moms Demand
Action, took their beliefs to other areas of the country, spreading their control or unique protest
styles with different states.

Mr. Grisham believed that there was no problem with his protest style, stating that if his group
intended to harm people, they would not be smiling and waving flags around during their
demonstration. He expressed that he did not come to the rally intending to attract police and
scare members of the community. Their sole purpose of protesting was to convey a message, and
he argued that anyone who thought otherwise, or was alarmed by the protest, was acting
unreasonable. Also, Mr. Grisham felt that a person’s constitutional right to bear arms did not
restrict where and when they exercised it. In contrast, supporters of tighter gun restrictions
thought that carrying a gun openly in crowded streets, at malls, or other busy and public places
was unnecessary and ill-advised. Similarly, they argued that the right to bear arms is a controlled
right and there comes a point where law enforcement must intervene. Certain groups and
organizations against armed demonstrations felt that its provocative nature was repulsive and a
disgusting response to mass shootings.

The article is a reflection of the Second Amendment because citizens were put off by the fact
that advocates of gun use publicly displayed rifles and shotguns during their rallies. The article
discussed a dispute between supporters of gun rights, specifically Open Carry Texas, and
supporters of gun restrictions, including Moms Demand Action for Gun Sense in America. The
main question is whether or not preventing the display of guns during protests violates
demonstrators’ right to bear arms.

22 
 

☆​3rd Amendment​☆ 
No Quartering of Soldiers

(Rejected Soldier)

No Quartering of Soldiers:​ ​The government cannot force a person to house

and/or feed soldiers

23 
 

A Nevada family is using a rare legal argument in a lawsuit claiming police tried to
commandeer their homes for a surveillance operation and then arrested the homeowners for
resisting -- invoking the Third Amendment, which bars soldiers from being "quartered" in a
residence without permission.

The Mitchell family, in a lawsuit filed July 1, detailed the incident from July 10, 2011.
According to the complaint, it all began when the Henderson city police called Anthony Mitchell
that morning to say they needed his house to gain “tactical advantage” in a domestic violence
investigation in the neighborhood.

The situation turned ugly when Mitchell refused repeated requests to leave and police smashed
through the door, the 18-page complaint states.

Mitchell alleges the police, upon entering his home, forced him to the floor at gunpoint, then shot
him and his “cowering” dog with a few rounds of pepper-spray pellets. Police then allegedly
handcuffed and arrested Mitchell in connection with “obstructing a police officer” before
occupying his home.

It didn’t end at Anthony Mitchell’s house in suburban Las Vegas, the complaint continues. That
same day, the officers also took over the home of Mitchell’s parents, Linda and Michael
Mitchell, who live in the same neighborhood and are named as plaintiffs.

The police department declined Monday to comment on the case when reached by
FoxNews.com, leaving the matter to the court should the case go to trial.

However, the more compelling questions appear to focus on whether the Third Amendment
strategy can work, considering the courts would have to consider the police officers as soldiers.

The amendment states: "No Soldier shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

“I’m confident the Mitchells have a good case,” said Frank Cofer, a partner in the firm Cofer,
Geller & Durham LLC representing the plaintiffs.

Cofer told FoxNews.com that what struck him about the case was the officers’ use of
military-style tactics.

24 
 

“And after entering the houses, they drank water, ate food, enjoyed the air conditioning,” he
said. “That struck me as quartering.”

The suit alleges that, at the parents' house, police lured Michael Mitchell from his home to a
nearby “command center” by saying they needed him to get the neighbor involved in the
domestic violence case to surrender. When officers began to backpedal, Mitchell eventually
attempted to leave, which resulted in him being handcuffed and eventually charged with
obstructing an officer.

Police then returned to Mitchells' house where they allegedly yanked wife Linda from the
premises after she refused to let them in without a warrant.

She was not arrested, and police have dropped all charges against the family.

However, the Mitchells are still suing for an undisclosed sum, saying their rights as citizens were
violated under the Third Amendment -- as well as the Fourth and 14th Amendments -- and that
the incident resulted in physical injury, malicious destruction of property and “extreme
emotional distress.”

Anthony and Michael also had to pay a bond to secure their release, the suit alleges.

John Yoo, a professor at the University of California at Berkeley’s law school, wasn't so sure
about the family's argument. He said the Mitchells may have claims under other federal and state
laws “but their chances are very, very low on the Third Amendment.”

Yoo, a visiting scholar for the conservative-leaning American Enterprise Institute and former
Justice Department official, told FoxNews.com the most difficult challenge for them is that there
were no "soldiers" in their house, before the court gets into the question of whether "quartering"
occurred.

“Local police on law enforcement missions are not soldiers,” he said. But “Nevada should
compensate the Mitchells’ for the temporary use of their home and for any damages caused in
the operation.”

Among those named in the suit are the city of Henderson, the city police department, the police
chief, five officers and the North Las Vegas Police Department.

25 
 

The suit also alleges both police departments “developed and maintained policies and/or
customs exhibiting deliberate indifference to the constitutional rights of United States
citizens, which caused the violations of the plaintiffs’ rights.”

26 
 

Paraphrase of Joseph Weber’s “Family allegedly forced from

home by police files rare Third Amendment suit”

On July 10, 2011, the Henderson city police called Anthony Mitchell, stating that they needed to
use his house to gain “tactical advantage” in a surveillance investigation on domestic violence in
the neighborhood. After Mitchell had refused to leave his house, the police forcefully entered
and held him to the floor at gunpoint. Then, they shot both him and his dog with pepper spray
pellets and arrested Mitchell for “obstructing a police officer” from occupying his home. The
police officers also invaded the house of Linda and Michael Mitchell, Anthony Mitchell's
parents, who lived in the same neighborhood. The police were able to remove Michael from his
home to a nearby “command center” by stating that they needed help getting a neighbor to
surrender to domestic violence. When officers began to get off track, Michael tried to go back to
his house, which resulted in him being handcuffed and charged with obstructing an officer.
When the police officers returned to the parent’s home, Linda Mitchell refused to let them in
without a warrant. Consequently, they violently removed her from the area. The Mitchell family
sued the police department, claiming that the police violated their Third Amendment right
against the quartering of soldiers. However, for them to win the case, courts would have to
consider the police officers as soldiers.

Frank Cofer, representing the Mitchell family, argued that by entering the two houses, drinking
their water, eating their food, and enjoying the air conditioning, the police showed clear signs of
quartering. He also stated that these were considered military tactics, relating the actions directly
to military soldiers. Opposedly, a professor named John Yoo, believed that police officers are
completely different from soldiers, and Nevada should only be required to pay for any damage
that was done to the home. Additionally, the Mitchell family felt that the incident resulted in
injury, harsh property destruction and extreme emotional distress, which would be considered
factors for the officers to be deemed guilty. Finally, they claimed that the actions of the officers
showed clear apathy to the constitutional rights of United States citizens, which caused the
violations of the family’s rights.

The article is a reflection of the Third Amendment because the city police department punished a
man and his family for refusing to house and feed local police members. The article discussed a
dispute between The Mitchell family and the Henderson city police department. The main
question is whether or not the police’s violence and arrest of members of the Mitchell family
over refusing to let them quarter in their home is a violation of their Third Amendment right.

27 
 

☆​4th Amendment​☆ 
Unreasonable search and seizure

(Magnifying Glass)

4th Amendment: ​Each person has his/her right against unreasonable searches and
seizures by the government

28 
 

The justices in January accepted the Safford school district case for review, and will decide
whether a campus setting gives school administrators greater discretion to control students
suspected of illegal activity than police are allowed in cases involving adults in general public
spaces.

The case is centered around Savana Redding, now 19, who in 2003 was an eighth-grade honors
student at Safford Middle School, about 127 miles from Tucson, Arizona. Redding was
strip-searched by school officials after a fellow student accused her of providing
prescription-strength ibuprofen pills.

The school has a zero-tolerance policy for all prescription and over-the-counter medication,
including the ibuprofen, without prior written permission.

"In this case, the United States Supreme Court will decide how easy it is for school officials to
strip search your child," Adam Wolf, an attorney with the American Civil Liberties Union who is
representing Redding, told CNN Radio on Sunday.

Wolf told CNN Radio his client was traumatized by the search.

"School officials undoubtedly have difficult jobs, but sometimes they overreact -- and this was
just a clear overreaction," he said.

Redding was pulled from class by a male vice principal, escorted to an office, where she denied
the accusations.

A search of Redding's backpack found nothing. Then, although she never had prior disciplinary
problems, a strip search was conducted with the help of a school nurse and Wilson's assistant,
both females. According to court records, she was ordered to strip to her underwear and her bra
was pulled out. Again, no drugs were found.

In an affidavit, Redding said, "The strip search was the most humiliating experience I have ever
had. I held my head down so that they could not see that I was about to cry."

At issue is whether school administrators are constitutionally barred from conducting searches of
students investigated for possessing or dealing drugs that are banned on campus.

A federal appeals court found the search "traumatizing" and illegal.

29 
 

Some parents say older children deserve the same constitutional rights as adults, but
educators counter a school setting has always been treated differently by courts, and a ruling
against them could jeopardize campus safety.

While a federal magistrate and a three-panel appeals court found the search was reasonable, the
full 9th U.S. Circuit Court of Appeals ruled in favor of Redding last year.

"Common sense informs us," wrote the court, "that directing a 13-year-old girl to remove her
clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen ... was
excessively intrusive."

The court said the school went too far in its effort to create a drug- and crime-free classroom.
"The overzealousness of school administrators in efforts to protect students has the tragic impact
of traumatizing those they claim to serve. And all this to find prescription-strength ibuprofen."

In its appeal to the Supreme Court, the school district said restrictions on conducting student
searches would cast a "roadblock to the kind of swift and effective response that is too often
needed to protect the very safety of students, particularly from the threats posed by drugs and
weapons."

School officials said the court was "wholly uninformed about a disturbing new trend" -- the
abuse of over-the-counter medication by teenagers.

The high court has a mixed record over the years on students' rights.

In a famous 1969 ruling, the justices said students do not "shed their constitutional rights ... at the
schoolhouse gate." But decisions in the 1980s gave administrators greater discretion, including
one case that said officials need not be required to have a warrant to search a student's locker.
Such a search was permitted if there were "reasonable" grounds for believing it would turn up
evidence and when the search was not "excessively intrusive."

Opinions in 1995 and 2001 allowed schools to conduct random drug testing of high school
athletes, and those participating in other extracurricular activities.

And in a well-publicized 2007 ruling from Alaska, the Supreme Court upheld the suspension of a
student who displayed a large "Bong Hits 4 Jesus" banner at an off-campus, but
school-sponsored, event. The decision did not endorse a broader argument that students in

30 
 

general have limited free-speech rights when they interfere with a school's vaguely defined
"educational mission."

The court could now be asked to clarify the extent of student rights involving searches, and the
discretion of officials regarding those they have responsibility over.

31 
 

Paraphrase of Aaron Brodie’s “13-year-old's school

strip-search case heads to Supreme Court”

Near Tucson, Arizona, Savana Redding, an eighth grade honors student at Safford Middle
School, was blamed for distributing strong ibuprofen medication to fellow students in 2003. Due
to the school’s strict “no drug” policy, including any over the counter pills and prescription
medications without written permission, Redding was pulled from class and questioned about the
accuracy of this claim. When she denied that she had ever distributed ibuprofen, the school’s
vice principal searched her backpack to prove otherwise. After nothing was found, he ordered a
strip search to be conducted by two female faculty members, the assistant vice principal and the
school’s nurse. Redding was forced to remove all clothing, except for her underwear and still, no
drugs were found. While, a federal magistrate and a three-panel appeals court deemed the search
to be reasonable, the 9th U.S. Circuit Court of Appeals sided with Redding. After many different
rulings and arguments were made, the case was taken to the Supreme Court for a final decision,
where they had to take many previous cases into account.

Adam Wolf, the attorney representing Redding, stated that after no evidence was found in her
backpack, the strip search was an extreme overreaction that was both unnecessary and
traumatizing for the student. They also argued that it was “extremely intrusive” to force this
young girl to strip down to her underwear for the sole purpose of finding ibuprofen, which was
not even found. Additionally, parents siding with Redding, argued that as an older student, she
automatically should possess the same constitutional rights as any other adult would; however,
teachers and staff at the school responded that schools have always had different rulings from
other court cases and ruling against them could potentially be harmful to the safety on campus.
The court said that, although important to maintain a safe, drug-free environment at school,
conducting a strip search for the distribution of ibuprofen was taking it too far. The school then
argued that putting a restriction on this kind of response could cause other students to frequently
get away with actions similar or worse than this in the future. They also stated that the courts,
when ruling against the school, were unaware of the frequent misuse of over-the-counter
medications.

The article is a reflection of the Fourth Amendment because the school conducted a search of a
student’s backpack and clothing to find ibuprofen. The article discussed a dispute between a
middle school student, Savana Redding and the Safford United School District, and the main
question is whether or not the school's action to strip search Redding, after nothing was found
from her backpack, violates her fourth amendment right.

32 
 

☆​5th Amendment​☆ 
Right to Not Self-Incriminate

(Mouth with Zipper)

Right to Not Self-Incriminate: ​The government cannot force a citizen to speak

out against in a criminal prosecution

33 
 

A few months ago I wrote a long post, “The Fifth Amendment and Touch ID,” on whether
and how the Fifth Amendment applies when the government seeks to compel a smartphone
user to unlock his phone using the fingerprint sensor. I thought I would flag a new case on the
subject, State v. Diamond, decided yesterday by the Minnesota Court of Appeals. The Fifth
Amendment issues are pretty technical issues, and my earlier post had all the details, so I’m
going to assume familiarity with that post and go directly into the new case.

First, the easy part: The court concludes that forcing a person to place a particular finger on a
phone does not trigger the Fifth Amendment because it is not testimonial. From the opinion:

By being ordered to produce his fingerprint, . . . Diamond was not required to disclose any
knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The
district court’s order is therefore distinguishable from requiring a defendant to decrypt a hard
drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v.
Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to
provide computer password violates the Fifth Amendment). Those requirements involve a level
of knowledge and mental capacity that is not present in ordering Diamond to place his
fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to
provide his fingerprint—is no more testimonial than furnishing a blood sample, providing
handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. See Doe,
487 U.S. at 210, 108 S. Ct. at 2347-48.

So far, so good.

But there’s a twist. The government had sought an order compelling the defendant to unlock the
phone with his fingerprint. The trial court had then “ordered Diamond to provide a fingerprint or
thumbprint to unlock his cell phone.” Diamond refused to comply, and the trial court ruled that
Diamond had no Fifth Amendment privilege and found him in contempt. The trial judge
“informed [Diamond] that compliance with the order would remedy the civil contempt. Diamond
provided his fingerprint, and police immediately searched his cell phone.”

Here’s why that matters. On appeal, Diamond argued that the government violated his Fifth
Amendment rights because the government made Diamond select which finger to use.
Specifically, Diamond argued that he “was required to identify for the police which of his
fingerprints would open the phone” and that “this requirement compelled a testimonial
communication.” As I explained in detail in my prior post, I think this should change the analysis
(see the discussions of Case 2 and Case 3).

34 
 

This argument, however, mischaracterizes the district court’s order. The district court’s
February 11​ order compelled Diamond to “provide a fingerprint or thumbprint as deemed
necessary by the Chaska Police Department to unlock his seized cell phone.” At the April 3
contempt hearing, the district court referred to Diamond providing his “thumbprint.” The
prosecutor noted that they were “not sure if it’s an index finger or a thumb.” The district court
answered, “Take whatever samples you need.” Diamond then asked the detectives which finger
they wanted, and they answered, “The one that unlocks it.”

It is clear that the district court permitted the state to take samples of all of Diamond’s
fingerprints and thumbprints. The district court did not ask Diamond whether his prints would
unlock the cellphone or which print would unlock it, nor did the district court compel Diamond
to disclose that information. There is no indication that Diamond would have been asked to do
more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger
the detectives wanted when he was ready to comply with the order, and the detectives answered
his question. Diamond did not object then, nor did he bring an additional motion to suppress the
evidence based on the exchange that he initiated.

There are two suggested rationales in this explanation. First, the court suggests that Diamond
was not required by the order to tell the police which fingerprint would open the phone. I’m not
sure that’s right, though, as it seems that Diamond was required to unlock the phone in the
officers’ presence — which necessarily would disclose which finger opened the phone.

Second, the court suggests that Diamond didn’t object to carrying out the order. But didn’t he?
He raised his Fifth Amendment objection, and the court rejected it and found him in contempt.
Maybe there’s a kind of waiver idea operating here, by which Diamond didn’t raise the specific
point about which finger to use at the earlier hearing and so he can’t raise it now. But given that
he did assert his Fifth Amendment right at the time, I’m not sure that he should have been
required to raise it a second time.

In any event, I’m not sure this difference matters to the outcome. I gather from the facts that this
was known to be Diamond’s phone, and if that’s right the foregone conclusion doctrine should
apply anyway. In the framework of my earlier post, this would be Case 3 and not Case 2. But it
would at least change the analysis somewhat.

35 
 

Paraphrase of Orin Kerr’s “Minnesota court on the Fifth

Amendment and compelling fingerprints to unlock a phone”

In Minnesota, during the case State v. Diamond, police ordered the defendant, Diamond, to
provide a finger or thumbprint to unlock his personal cell phone. When Diamond refused to do
so, the trial court ruled that he did not have the Fifth Amendment right to disobey this command,
and the judge told him that this would consequence in civil contempt. Upon hearing that,
Diamond provided the fingerprint used to unlock his phone, and the police promptly searched it.
The district court did not require Diamond to reveal any information about which of his fingers
would unlock his phone, and when Diamond was ready to open his phone, he asked which finger
they wanted him to use. The court concluded that police did not violate his Fifth Amendment
right, and after being found guilty, Diamond brought his case to an Appeals Court to try and
reverse the decision. The court looked at a previous case, that ruled requiring a defendant to
provide computer passwords violated the Fifth Amendment; however, since Diamond was not
required to do that, the court decided that there was no violation.

The state of Minnesota argued against Diamond, stating that by only providing his fingerprint, he
was not forced to share any information that may have proved his guilt. The court suggested two
ideas. Firstly, Diamond was not required to tell the police which finger unlocked his phone.
Additionally, he did not object to carrying out the order of opening his phone. Because of the
lack of knowledge and communication that providing a fingerprint required, the court compared
the level of testimonial interaction of placing one’s finger on their phone to that of providing a
blood sample or even displaying handwriting. This demonstrated that the fingerprint was not
testimonial evidence that could be used against Diamond. On the defendant’s side, Diamond
argued that since the government required the finger that unlocked the phone, they violated his
Fifth Amendment right. He also stated that because they said this to him, it forced Diamond to
engage in testimonial communication against himself. Even if the government did not
specifically state the fingerprint that they wanted, the fact that Diamond opened his cell phone in
the presence of the police would reveal which finger opened the phone. Finally, after declaring
his Fifth Amendment right a first time and still being forced to open his phone, some believe that
he should not have been forced to declare it second time.

The article is a reflection of the right to not self-incriminate in the Fifth Amendment because
police demanded a man’s fingerprint to unlock a device to be used against him. The article
discussed a dispute between the defendant, Diamond, and the state of Minnesota, and the main
question is whether or not commanding a man to unlock his phone, using his fingerprint, violates
his right to not self-incriminate.

36 
 

☆​8th Amendment​☆ 
Cruel and Unusual Punishment

(Cruel Whip)

Cruel and Unusual Punishment:​ The right that one has against being punished by
the government in a brutal or uncommon way

37 
 

WASHINGTON — In 2002, the Supreme Court barred the execution of the intellectually
disabled. But it gave states a lot of leeway to decide just who was, in the language of the day,
“mentally retarded.”

Texas took a creative approach, adopting what one judge there later called “the Lennie standard.”
That sounds like a reference to an august precedent, but it is not. The Lennie in question is
Lennie Small, the dim, hulking farmhand in John Steinbeck’s “Of Mice and Men.”

The Lennie in question is fictional.

Still, Judge Cathy Cochran of the Texas Court of Criminal Appeals wrote in 2004 that Lennie
should be a legal touchstone.

“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of
reasoning ability and adaptive skills, be exempt” from the death penalty, she wrote. “But, does a
consensus of Texas citizens agree that all persons who might legitimately qualify for assistance
under the social services definition of mental retardation be exempt from an otherwise
constitutional penalty?”

Judge Cochran, who later said she had reread “all of Steinbeck” in the 1960s while living above
Cannery Row in Monterey, Calif., listed seven factors that could spare someone like Lennie,
whose rash killing of a young woman was seemingly accidental.

For instance: “Has the person formulated plans and carried them through, or is his conduct
impulsive?”

And: “Can the person hide facts or lie effectively?”

No one disputes that Mr. Moore is at least mentally challenged or, as a psychologist testifying for
the prosecution put it at a 2014 hearing, that he most likely “suffers from borderline intellectual
functioning.”

Mr. Moore reached his teenage years without understanding how to tell time, the days of the
week or the relationship between subtraction and addition. His I.Q. has been measured as high as
78 and as low as 57, averaging around 70. On the other hand, the psychologist testified, the
young Bobby Moore had shown skill at mowing lawns and playing pool.

38 
 

The state judge who heard this evidence, relying on current medical standards on intellectual
disability, concluded that executing Mr. Moore would violate the Eighth Amendment’s ban
on cruel and unusual punishment.

But the Court of Criminal Appeals reversed the ruling, saying the judge had made a mistake in
“employing the definition of intellectual disability presently used.”

Under medical standards from 1992, endorsed in Judge Cochran’s 2004 opinion, Mr. Moore was
not intellectually disabled, the appeals court said. The court added that the seven factors listed in
the 2004 opinion weighed heavily against Mr. Moore. He had, for instance, worn a wig during
the robbery and tried to hide his shotgun in two plastic bags, which prosecutors said was
evidence of forethought and planning.

In dissent, Judge Elsa Alcala said the 1992 medical standards used by the majority were
“outdated and erroneous.” As for the seven factors, she wrote, “The Lennie standard does not
meet the requirements of the federal Constitution.”

“I would set forth a standard,” Judge Alcala wrote, “that does not include any reference to a
fictional character.”

In a brief, Ken Paxton, the state’s attorney general, defended the seven factors, though without
mentioning Lennie. He also urged the Supreme Court to let judges and juries, rather than medical
professionals, decide who should be spared the death penalty.

That echoed a 2014 dissent from Justice Samuel A. Alito Jr., who said it was a bad idea to rely
on the shifting views of medical experts to decide who must be spared execution based on
intellectual disability. The majority in that case, Hall v. Florida, struck down Florida’s I.Q. score
cutoff of 70 as too rigid.

In doing so, Justice Alito wrote, the majority had effectively overruled the part of its 2002 Atkins
v. Virginia decision that allowed states to use their own definitions of intellectual disability, and
instead imposed “the evolving standards of professional societies, most notably the American
Psychiatric Association.”

An article last year in the Yale Law Journal presented an intriguing alternative to the evolving
standards that bothered Justice Alito. Drawing on historical materials, Michael Clemente, then a
law student at Yale and now a law clerk for a federal judge, demonstrated that the original

39 
 

understanding of the Eighth Amendment, based on English common law, barred the
execution of people whose mental abilities were below those of an ordinary child of 14.

Such a standard, steeped in originalism, a mode of constitutional interpretation embraced by

Justice Clarence Thomas and the late Justice Antonin Scalia, would seem to spare both Mr.
Moore and Lennie. On the other hand, it is not clear that Lennie himself would have escaped
execution under Texas’ Lennie standard. He did, for instance, try to conceal his crime, hiding his
victim’s body.

In a 1937 interview with The New York Times, John Steinbeck said he had based Lennie on a
man who had killed a ranch foreman but was shown leniency. “Lennie was a real person,” Mr.
Steinbeck said. “He’s in an insane asylum in California right now.”

Seventy-five years later, Mr. Steinbeck’s son Thomas heard about Texas’ Lennie standard.

“The character of Lennie was never intended to be used to diagnose a medical condition like
intellectual disability,” Thomas Steinbeck, who died this month, said in a 2012 statement. “I find
the whole premise to be insulting, outrageous, ridiculous and profoundly tragic.”

“I am certain that if my father, John Steinbeck, were here, he would be deeply angry and
ashamed to see his work used in this way,” he said. “And the last thing you ever wanted to do
was to make John Steinbeck angry.”

40 
 

Paraphrase of Adam Liptak’s “Supreme Court to Consider

Legal Standard Drawn From ‘Of Mice and Men’”
Bobby J. Moore, who most likely suffers from borderline intellectual functioning, was in the
middle of a robbery when he killed a 70-year old clerk named James McCarble and hid his body.
Although most shooters would receive a death penalty, Texas handled the case by referring to
something called “The Lennie Standard,” based on the fictional character from ‘Of Mice and
Men.’ This standard creates an exception for mentally ill or intellectually disabled citizens to be
spared the death penalty. After hearing evidence that Moore could not tell time, the days of the
week, the relationship between subtraction and addition, and other basic information by the time
he was a teenager, the state judge ruled that executing Mr. Moore would be cruel and unusual
punishment. However, the U.S. Court of Appeals reversed the state’s decision upon hearing that,
as a child, Moore successfully mowed lawns and played pool, and during the crime he
deliberately wore a wig for disguise and hid his shotgun in two plastic bags. The court ruled that
Mr. Moore was not intellectually disabled, based on the 1992 medical standards,

Texas citizens that are familiar with the character, Lennie, believed that, like Moore, his lack of
reasoning abilities and adaptive skills should have exempted him from having to go through a
death penalty. However, Judge Cochran of the appellate court questioned if all citizens deemed
to be “mentally retarded” should be excused from otherwise constitutional punishments.
Additionally, the court stated that seven factors, created by Judge Cochran, to help determine if a
shooter is disabled, weigh heavily against Moore, showing evidence of forethought and planning.
Judge Elsa Alcala, opposing the majority of the appellate court, argued that the 1992 medical
standards that ruled Moore to be mentally stable, were outdated and inaccurate. She also argued
that the Lennie standard did not meet the requirements of the Constitution. On the other hand, a
Yale Law graduate understood the original meaning of the Eighth Amendment to bar the
execution of people whose mental abilities were below an average 14-year old, which would
spare Moore execution. Finally, the Texas attorney general stated that the judges and juries
should be the ones to determine if a shooter is intellectually disabled, not the ever-changing
views of doctors.

The article is a reflection of the Eighth Amendment because Moore committed murder, and
judges argued whether it would be too harsh to sentence a death penalty with his mental
challenges. The article discussed a dispute between the shooter, Bobby Moore and the state of
Texas, and the main question is whether or not sentencing execution to Moore, suffering from
borderline intellectual functioning, violates his Eighth Amendment right.

41 
 

Works Cited

The Associated Press. “Gay Marriage Advocates Want Mississippi Law Struck Down.” ​New

York Times​,

www.nytimes.com/aponline/2017/10/02/us/ap-us-gay-marriage-mississippi.html.

Accessed 30 Oct. 2017.

**This page is no longer available on the New York Times website

Barnes, Robert. “Justices to Hear Landmark Free-Speech Case.” ​Washington Post​, 13 Mar. 2007,

www.washingtonpost.com/wp-dyn/content/article/2007/03/12/AR2007031201699.html.

Accessed 22 Oct. 2017.

Brodie, Aaron. “13-year-old’s School Strip-Search Case Heads to Supreme Court.” ​CNN​, 19

Apr. 2009, www.cnn.com/2009/US/04/19/scotus.strip.search/. Accessed 22 Oct. 2017.

Chen, Cathaleen Qiao. “A Right-to-Bear-Arms Twist: Rallying with a Gun in Hand.” ​New York

Times​, 24 Apr. 2014,

www.nytimes.com/2014/04/25/us/a-right-to-bear-arms-twist-rallying-with-a-gun-in-hand

.html. Accessed 22 Oct. 2017.

“Cruel Whip.” 2014, www.thinglink.com/scene/619568895031771137. Accessed 8 Nov. 2017.

“Handcuffed News.” ​The Tide​, www.thermtide.com/2017/03/06/lost-freedom-press-america/.

Accessed 5 Nov. 2017.

Hechinger, Fred M. “Ideas & Trends;High Court Gives a Civics Lesson.” ​New York Times​, 17

Jan. 1988,

www.nytimes.com/1988/01/17/weekinreview/ideas-trends-high-court-gives-a-civics-less

on.html. Accessed 5 Nov. 2017.

42 
 

Kerr, Orin. “Minnesota Court on the Fifth Amendment and Compelling Fingerprints to

Unlock a Phone.” ​Washington Post​,

www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/18/minnesota-court-on-t

he-fifth-amendment-and-compelling-fingerprints-to-unlock-a-phone/?utm_term=.7cdef97

2a550. Accessed 22 Oct. 2017.

Liptak, Adam. “Supreme Court to Consider Legal Standard Drawn from ‘Of Mice and Men’.”

New York Times​, 22 Aug. 2016,

www.nytimes.com/2016/08/23/us/politics/supreme-court-to-consider-legal-standard-draw

n-from-of-mice-and-men.html?_r=0. Accessed 30 Oct. 2017.

Magnifying Glass​. ​Dreamstime​,

www.dreamstime.com/stock-photo-d-white-people-looking-house-man-magnifying-glass

-background-image33961710. Accessed 30 Oct. 2017.

MillionPM. ​Gun and Eagle​. 2015. ​Deviant Art​,

millionpm.deviantart.com/art/Eagle-Flag-and-Rifle-Tattoo-Design-371687920. Accessed

30 Oct. 2017.

Religion Puzzle​. 27 Apr. 2017. ​The CSF​,

www.thecsf.org/2017/04/27/india-at-par-with-afghanistan-iraq-and-egypt-in-violation-of-

religious-freedom-reports-us-body-on-human-rights/. Accessed 30 Oct. 2017.

Stuliff, Amileah. ​Broken Speech​. ​The Daily Cardinal​,

www.dailycardinal.com/article/2017/09/proposed-free-speech-act-would-stifle-campus-di

scourse. Accessed 22 Oct. 2017.

43 
 

Susan. ​Rejected Soldier​. 2016. www.pics4learning.com/details.php?img=3rdamendment.png.

Accessed 5 Nov. 2017.

Weber, Joseph. “Family Allegedly Forced from Home by Police Files Rare Third Amendment

Suit.” ​Fox News​, 8 July 2013,

www.foxnews.com/politics/2013/07/08/family-booted-from-home-for-police-detail-suing

-with-rare-use-third-amendment.html. Accessed 1 Nov. 2017.

“Zipped Mouth.” 18 June 2013,

www.symbols-n-emoticons.com/2012/09/zipping-mouth-shut.html. Accessed 8 Nov.

2017.

44