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Chapter 8Crimes Against Public Order and Public DecencySupplement 8.1?Statutes and Cases Raising Issues of Breach of the Peace.A breach-of-the-peace statute that was held to be constitutional was the subject of appeal in a Georgia case in which the defendant was convicted of saying, “You son of a bitch, I’ll choke you to death.” He was prosecuted under a statute that prohibited “opprobrious words or abusive language, tending to cause a breach of the peace.” The court held that the words of that phrase “have a definite meaning as to the conduct forbidden, measured by common understanding and practice, and are not unconstitutionally vague, indefinite or uncertain.” In a later case, the Georgia disorderly conduct statute was successfully challenged by the facts of the case but not in general. The statute provides as follows:(a)A person commits the offense of disorderly conduct when such person commits any of the following:(1)Acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health;(2)Acts in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed;(3)Without provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words”; or(4)Without provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace. In the case of Delaney v. State, the defendant stopped his car behind a police vehicle, which had stopped another car; the police officer was writing a citation. The defendant began honking his horn and yelling at the officer, who could not ascertain all of the words but essentially reported that the man yelled, “What are you doing parked in the middle of the roadway? I want to get home.” He honked his horn, exited his vehicle, and began screaming and throwing his hands in the air. He was charged with improper use of a horn, disorderly conduct, and obstruction of a law enforcement officer. He was found guilty of disorderly conduct (with which the horn offense had been merged) but not of obstructing a law enforcement officer. He appealed on the grounds that his words did not constitute a breach of peace. The appellate court agreed, emphasizing that to avoid free speech issues, fighting words must be limited. To qualify, words must be abusive and opprobrious, words that naturally tend to provoke violent resentment.The problem in this case is not that the statute was unconstitutional per se but that the words spoken did not meet the statutory requirements. In the next example, the statute was held to be unconstitutionally vague. A Kentucky statute aimed at breach of the peace provided: “No person shall upbraid, insult or abuse any teacher of the public schools in the presence of the school or in the presence of a pupil of the school.” An obviously upset father stormed into his daughter’s classroom late one afternoon after most students had left for the day and, in the presence of the remaining children, including his daughter, yelled criticisms at the teacher. He was convicted of violating this statue.In Commonwealth v. Ashcraft, the Kentucky Court of Appeals held that the statute was vague and that it infringed on the First Amendment right of communication. Parents have a right to criticize teachers. The court noted that the statute as worded made it a crime for parents to criticize teachers or coaches at home, at school, or elsewhere in the presence of children: “A parent could be prosecuted for insulting a teacher at a dinner table in the presence of his child/student. . . . Likewise, one can be penalized for insulting or abusing a teacher at the school when no students are present.” In Ashcraft, there was no evidence that the father was violent or becoming violent. The statute, designed to prevent breaches of the peace, was vague and was used to go beyond the state’s legitimate right to keep peace. It infringed on the father’s First Amendment right to criticize his daughter’s teacher. Presumably these issues were handled in the subsequent revision of the statute, which now provides as follows:Whenever a teacher or school administrator is functioning in his capacity as an employee of a board of education of a public school system, it shall be unlawful for any person to direct speech or conduct toward the teacher, classified employee, or school administrator when such person knows or should know that the speech or conduct will disrupt or interfere with normal school activities or will nullify or undermine the good order and discipline of the school. Some statutes covering disturbance of the peace are much broader. Consider the following provisions of a California statute, which defines disturbing the peace as including:(1)Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2)Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3)Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.How difficult do you think it would be to convict under this statute? Would the requirements of maliciously and willfully be barriers? Examine the facts of the following North Carolina case, for example, and consider how you would apply a statute like that of California to these facts. A neighbor devised a plan that he thought might deter noise from nearby auto races. After seven years of complaining to no avail, Junior Medlin of Elm City, North Carolina, put 11 security horns on top of his home and blared the high-pitched, sirenlike noises when the races were in full swing. Medlin, who paid about $750 for the horns, said they bounced the sound back onto the track and enabled him to carry on a conversation inside the house in which he had lived for 28 years. Medlin’s neighbor, James Richardson, erected a sign with the words “World’s Most Annoying Neighbor” and an arrow pointing to Medlin’s property. He uncovered the sign when the horns were turned on. Who was disturbing the peace—the persons who operated the race track, Medlin, Richardson, or all of them? If the California statute were applicable, how would you apply it to these facts?Supplement 8.2?The Fighting Words Doctrine Litigation.The issue of fighting words has not been litigated often in recent years. In fact, the U.S. Supreme Court’s 1942 holding in Chaplinsky v. New Hampshire remains a frequently cited case on the issue. The case has been frequently criticized in subsequent years but remains good law.Chaplinsky v. New Hampshire315 U.S. 568 (1942), cases and citations omittedMurphy, J., delivered the Court’s opinion, in which Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Byrnes, and Jackson, JJ., joined for a unanimous decision. “Appellant, a member of the sect known as Jehovah’s Witnesses, was convicted in the municipal court of Rochester, New Hampshire, for [speaking these words to the complainant]. “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” . . . There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City Marshall, Bowering, that Chaplinsky was denouncing all religion as a “racket.” Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later, a disturbance occurred. The traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way they encountered Marshall Bowering, who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky, who then addressed to Bowering the words set forth in the complaint. Chaplinsky’s version of the affair was slightly different. He testified that, when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply, Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint, with the exception of the name of the Deity. . . . [I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain welldefined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in public order and public decency. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. . . . Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” ______________________________________________________In later cases, the U.S. Supreme Court retreated somewhat from the presumption in Chaplinsky that fighting words incite people to violence. In Terminiello v. Chicago, decided in 1949, the Court upheld the trial court’s jury instruction that the statute in question “stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance.” The Court stated that part of the purpose of speech is to arouse debate and invite dispute. Although in Terminiello the statute was held unconstitutional because it was vague and too broad, thereby enabling the U.S. Supreme Court to avoid deciding whether the speech in question was protected by the First Amendment, the case represents a reluctance to broaden the fighting words doctrine.In Feiner v. New York, decided in 1951, the U.S. Supreme Court upheld Irving Feiner’s conviction for disorderly conduct when he described President Harry S. Truman as a bum, the Syracuse mayor as a champagne-sipping bum, and the American Legion as a Nazi Gestapo. Feiner urged minorities to “rise up in arms and fight for equal rights.” According to the Supreme Court, “[T]hese racial statements stirred up a little excitement. Some of the onlookers made remarks to the police about their inability to handle the crowd and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner’s arguments.” The Court said Feiner’s arrest was not effected as a censor to his speech but rather as an effort to maintain the peace. The Court stated: “It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.” The line between permissible and impermissible speech is difficult to draw, as illustrated by the U.S. Supreme Court’s 1963 decision in Edwards v. South Carolina. In Edwards, the Court refused to hold as fighting words the religious and patriotic songs of demonstrators who were urging the audience to go to segregated lunch counters in protest against segregation. The Court acknowledged that an expansion of the Feiner holding could permit authorities to suppress unreasonably the civil rights demonstrations by contending that the audience was becoming restive and potentially dangerous. In analyzing these earlier cases, one must look carefully at the facts and what might be expected to occur as a result of the alleged fighting words. Police may not suppress words because they (or others) do not agree with those words; something more must be present. In terms of the future status of the fighting words doctrine, it appears that in reviewing allegations of fighting words, the U.S. Supreme Court will look carefully at the makeup of the audience to whom the words are directed, the results that occur, and the wording of the statute that serves as the basis for the criminal charge. The Supreme Court has not overruled Chaplinsky, but it has proceeded with caution in recent cases, holding similar statutes unconstitutional for overbreadth or vagueness rather than reaching the First Amendment free speech issue. In 1974, in Lewis v. City of New Orleans, for example, the Court refused to sustain the conviction of a defendant who referred to a police officer as a “goddamn motherfucking police.” According to the Court, words that convey or are intended to convey disrespect are not, for that reason alone, fighting words.Supplement 8.3?New York’s Disorderly Conduct Statute.An example of a state’s efforts to criminalize disorderly conduct is the New York statute entitled “disorderly conduct,” which lists seven circumstances that may constitute the crime when they are committed “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” The offense is considered a violation, which does not rise even to the level of a misdemeanor. A person engages in disorderly conduct if he (or she) does any of the following:(1)He engages in fighting or in violent, tumultuous or threatening behavior; or(2)He makes unreasonable noise; or(3)In a public place, he uses abusive or obscene language, or makes an obscene gesture; or(4)Without lawful authority, he disturbs any lawful assembly or meeting of persons; or(5)He obstructs vehicular or pedestrian traffic; or(6)He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or(7)He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.Disorderly conduct takes many forms, and in New York City, citations are given to commuter “seat hogs.” Those are persons who occupy two seats by placing their purses, briefcases, or even wet umbrellas on the seat next to them. Violators can be fined $50 for this offense. In 2015, a New York judge took the position of two defendants who were arrested for seat hogging (or “manspreading”). The men, veterans just home from Iraq, were on the subway just after midnight, with their legs spread apart. Transit authorities said it was against the ordinance to take up two seats on the subway when it was full and one could inconvenience or interfere with the comfort of other passengers. The judge was skeptical of the charges due to the time they were made, giving the defendants an “adjournment contemplating dismissal.” If they were not arrested for other violations within a specified time period, the charges would be dropped. The judge expressed her skepticism about the arrest because she could not think there would have been many people on the subway at that hour.Supplement 8.4?Vagrancy and Disorderly Conduct Statutes May Be Unconstitutional Because They Are Vague or Too Broad.Chapter 1 of the text noted the U.S. Supreme Court case from California, Kolender v. Lawson. That case involved an African American who was arrested frequently for disorderly conduct under a statute that prohibited loitering or wandering about without apparent reason or business and refusing to identify oneself when asked to do so by peace officers. The state statute in effect at the time of this case permitted officers to stop individuals and ask for identification “if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.” The U.S. Supreme Court held that the statute was unconstitutional because it vested too much discretionary power in the police, encouraging “arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.”In an earlier case, Papachristou v. City of Jacksonville, the U.S. Supreme Court invalidated a vagrancy ordinance, holding that the ordinance was vague and that one result of that vagueness was to give police too much discretion, as illustrated in the following brief excerpt. Papachristou v. City of Jacksonville405 U.S. 156 (1972), cases and citations omittedDouglas, J., delivered the opinion of the Court, in which all members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case.This case involves eight defendants who were convicted in a Florida municipal court of violating a Jacksonville, Florida, vagrancy ordinance. . . . [W]e reverse. . . .Those generally implicated by the imprecise terms of the ordinance—poor people, nonconformists, dissenters, idlers—may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for “harsh and discriminatory enforcement by prosecuting officials, against particular groups deemed to merit their displeasure.” It results in a regime in which the poor and the unpopular are permitted to “stand on a public sidewalk . . . only at the whim of any police officer.”A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. . . .Of course, vagrancy statutes are useful to the police. Of course they are nets making easy the roundup of socalled undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that evenhanded administration of the law is not possible. The rule of law, evenly applied to minorities as well as to majorities, to the poor as well as the rich, is the great mucilage that holds society together.Supplement 8.5?Justice Department Files Brief to Address the Criminalization of Homelessness.On 6 August 2015, the Department released the following statement:The Department of Justice filed a statement of interest today arguing that making it a crime for people who are homeless to sleep in public places, when there is insufficient shelter space in a city, unconstitutionally punishes them for being homeless. The statement of interest was filed in federal district court in Idaho in Bell v. City of Boise et al., a case brought by homeless plaintiffs who were convicted under Boise ordinances that criminalize sleeping or camping in public.As stated by the Justice Department in its filing: [I]t should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. . . . Sleeping is a life-sustaining activity—i.e, it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.The press release quotes the principal deputy assistant attorney general: Many homeless individuals are unable to secure shelter space because city shelters are over capacity or inaccessible to people with disabilities. . . . Criminally prosecuting those individuals for something as innocent as sleeping, when they have no safe, legal place to go, violates their constitutional rights. Moreover, enforcing these ordinances is poor public policy. Needlessly pushing homeless individuals into the criminal justice system does nothing to break the cycle of poverty or prevent homelessness in the future. Instead, it imposes further burdens on scarce judicial and correctional resources, and it can have long-lasting and devastating effects on individuals’ lives.Supplement 8.6?Challenges to Statutes Regarding Possession of Weapons. The most restrictive of its time, the Morton Grove (Illinois) ordinance, which bans both the sale and the ownership of handguns, was upheld by a lower federal court. The U.S. Supreme Court refused to review the case, thus leaving the lower court decision that the ordinance does not violate the federal constitution. The following year, the Illinois Supreme Court held that the Morton Grove ordinance did not violate the Illinois state constitution.In 2008, the U.S. Supreme Court struck down the District of Columbia statute, the strictest in the country concerning the banning of handguns. This 5–4 decision recognized a constitutional right for individuals to own a handgun, at least under the facts of the case, which are noted in the following excerpt from the case.________________________________________________District of Columbia v. Heller554 U.S. 570 (2008), cases and citations omittedScalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, J.J, joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.“We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.IThe District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. . . .Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” . . .IIWe turn first to the meaning of the Second Amendment.AThe Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. . . . IV[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster. . . .[T]he American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. [The Court discussed the issue of the licensing provision, which permits the police chief to issue a one-year license, but that was refused in this case, which involves a special policeman.] . . . In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.We affirm the judgment of the Court of Appeals.It is so ordered.”Just two years later the U.S. Supreme Court justices revisited the issue of the meaning of the Second Amendment with regard to bearing arms. In another 5–4 decision, the Court considered whether the Second Amendment also applies to state statutes and local ordinances. Chicago and a suburb, the village of Oak Park, had ordinances that essentially banned the possession of handguns by most private citizens. In McDonald v. Chicago, the Court held that the Second Amendment establishes the right to use handguns for self-defense and that the Amendment applies to the states and municipalities. According to the Court, self-defense is a basic right. The Court did not indicate what, if any, gun control regulations would pass constitutional muster other than measures that prohibit felons or mentally ill persons from possessing guns or prohibit the possession of guns in specific places, such as schools and government buildings. The Chicago city council subsequently unanimously enacted an ordinance banning those who possess handguns from carrying their guns outside their homes, even onto their porches.In 2015, the Texas legislature passed a bill, which was signed by the state’s governor, permitting the carrying of handguns, beginning 1 September 2016, at all higher education campuses except community colleges, for which the law provides a start date of 1 August 2017. The bill was noted in Chapter 7 of the main text. Some of the details of its implementation remain undecided as of this writing, but speculation abounds. For example, consider this purported class announcement:Religious Studies 375. “What Is Religion?” Three credit hours. No firearms allowed.The University of Texas at Austin was the scene of the first campus mass shooting, which occurred on 1 August 1966, when Charles Whitman climbed to the top of the university’s clock tower and began firing, killing 16 and wounding many others after he killed his wife and mother. Texas joined seven other states (Colorado, Idaho, Kansas, Mississippi, Oregon, Utah, and Wisconsin) in allowing the carrying of concealed weapons on public college campuses. One final case involving weapons possession, decided by the U.S. Supreme Court in 2016, is important to this discussion. The decision was unanimous; the Court’s per curiam opinion was brief; the concurring opinion was more detail and will be excerpted after the entire Court’s opinion is reprinted. Caetano v. Massachusetts2016 U.S. LEXIS 1862 (21 March 2016), cases and citations omitted“Per Curiam“The Court has held [in Heller, excerpted earlier] that “the Second Amendment extends, prima facis, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and [in McDonald, mentioned above] that this “Second Amendment right is fully applicable to the States.” In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.”The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.”The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” (referring to “the historical traditional of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.It is ordered.” Alito, J., with whom Thomas, J., joins , concurring in the judgment.“After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and “in fear for [her] life.” She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against [her] former boy friend,” Caetano accepted the weapon.It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend “waiting for [her] outside.” He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore…. I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left [her] alone.”It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. That right vindicates the “basic right” of “individual self-defense.” Caetano’s encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights. By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children.Under Massachusetts law, however, Caetano’s mere possession of the stun gun that may have saved her life made her a criminal. When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Supreme Judicial Court affirmed the conviction. . . . [The opinion discusses the history of banning weapons, the reasoning of the Massachusetts Judicial Court, and why that reasoning does not follow the Court’s precedents.] . . .The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable using.A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”______________________________________________________Supplement 8.7?Domestic Violence and Gun Possession.In an effort to curb domestic violence, the U.S. Congress enacted legislation banning the possession of hand guns by anyone convicted of a “misdemeanor crime of domestic violence.” The interpretation of that provision was challenged, as the following excerpt indicates.United States v. Castleman2010 U.S. Dist. LEXIS 15499 (2014), cases and citations omittedSotomayor, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in part in the judgment. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. “Recognizing that “[f]irearms and domestic violence strife are a potentially deadly combination,” Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U.S.C. Section 922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. The question below us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.” We hold that it does.This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year. Domestic violence often escalates in severity over time, and the presence of a firearm increases the likelihood that it will escalate to homicide. . . .[The Court explains that the statute at issue was enacted to close a loophole in the legislation. Felons had long been prohibited from having access to firearms, but misdemeanors were not included. The Court continued:]With exceptions that do not apply here, the statute defines a “misdemeanor crime of domestic violence” as an offense that . . . (I) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.[Castleman was charged in a Tennessee court with having “intentionally or knowingly cause[d] bodily injury to” the mother of his child in violation of [the state statute]. He pleaded guilty to the charge. Some years later, federal authorities learned that he was selling firearms on the black market, and he was indicted under the statute at issue in this case. He moved to dismiss the charges on the grounds that they did not involve the “use of physical force.” The District Court agreed that the use of that phrase required the use of violent contact with the victim.] The court held that a conviction under the relevant Tennessee statute cannot qualify as a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact”—for example, by “deceiving [the victim] into drinking a poisoned beverage.”[The U.S. Court of Appeals for the Sixth Circuit affirmed, holding that violent force is required to qualify under the federal statute, but other federal appellate courts have not agreed; the U.S. Supreme Court took the case to settle the conflicts among the circuit courts. It reversed the Sixth Circuit’s decision. The Court looked to precedent in determining how cases had construed the terms “violent” or “violence.”] . . .[W]hereas the word “violent” or “violence” standing along “connotes a substantial degree of force, that is not true of “domestic violence.” “Domestic violence” is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context. . . .” Indeed, “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting.”Minor uses of force may not constitute “violence” in the generic sense. For example [we may not describe a squeeze on the arm an act of violence even if it causes bruising.] But an act of this nature is easy to describe as “domestic violence,” when the accumulation of such acts over time can subject one intimate partner to the other’s control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a “misdemeanor crime of domestic violence.” . . . [The Court reviewed several cases and concluded:]We therefore hold that the requirement of “physical force” is satisfied, for purposes of [the statute], by the degree of force that supports a common-law battery conviction.Applying this definition of “physical force,” we conclude that Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.. . .[With regard to the Court’s reluctance to decide a case by any issues not properly raised or that do not require its action, the opinion states as follows]:Finally, Castleman suggests—in a single paragraph—that we should read [the statute] narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of [the statute] either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman’s cursory nod to constitutional avoidance concerns.______________________________________________________Supplement 8.8?Obstructing a Highway or Public Passage.In the classic case of Cox v. Louisiana, the Reverend B. Elton was the leader of a group of demonstrators who marched to the courthouse to protest the jailing of their friends, who were arrested for picketing. They were peaceful in their demonstration, did not block the street, and moved to the west side of the street when told to do so by police. But at noon the Reverend Cox told the crowd to go to the lunch counters to protest racial discrimination. The sheriff told the Reverend Cox that although his protest to that point had been more or less peaceful, “what you are doing now is a direct violation of the law, a disturbance of the peace, and it has to be broken up immediately.” The Reverend Cox and the demonstrators did not break up the demonstration; police exploded a tear gas bomb, after which the demonstrators dispersed quickly. The next day the Reverend Cox was arrested. On appeal, the U.S. Supreme Court reversed the convictions for breach of peace and obstruction of a public passage. In the following excerpt, the U.S. Supreme Court addresses its comments to the Reverend Cox’s conviction for obstructing public passages.Cox v. Louisiana379 U.S. 536 (1965), cases and citations omitted Goldberg, J., delivered the opinion of the Court, in which Warren, Black, Douglas, Clark, Harlan, Brennen, and Stewart, JJ., joined. Black and Clark, JJ., each wrote a concurring opinion. White, J., wrote an opinion concurring in part and dissenting in part. “The rights of Free Speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest . . . . A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. . . .[The Court noted that authorities have the right to limit demonstrations by time, place, duration, or manner, provided those limitations do not involve unfair discrimination and are uniformly and consistently based on the facts of each case.] But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant’s freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant’s conviction for violating the statute as so applied and enforced must be reversed.”______________________________________________________Supplement 8.9?Animal Abuse Law Update.A Texas couple were convicted of crimes associated with violating the federal animal crush video statute discussed in the text. Ashley Nichole Richards and Brent Justice were the first defendants tried under the new federal statute, enacted by Congress in 2010 after the U.S. Supreme Court struck down the former federal statute regarding animal crush videos. The following excerpt from the Fifth Circuit appellate court, decided in 2014, and rejected on appeal by the U.S. Supreme Court, gives the details of the case and the court’s reasoning for upholding the statute. Note the conflict between the First Amendment free speech right and the need of the government to protect society (and animals).United States v. Richards755 F.3d 269 (5th Cir. 2014), cert denied, Justice v. United States, 135 S.Ct. 1546 (2015); cert denied, Richards v. United States, 135 S.Ct. 1547 (2015), cases and citations omitted“The First Amendment restrains government to “make no law . . . abridging the freedom of speech.” . . . Yet when hurtful expression involves violence, and dislikable expression involves obscenity, First Amendment doctrine acknowledges also the truth that language is “a living thing over which one has control . . . an act with consequence.”In 2010, the Supreme Court struck down Congressional legislation, which made it a crime to knowingly create, sell, or possess “a depiction of animal cruelty,” declaring the statute to be overbroad under the First Amendment. Responsively, Congress revised [the statute] to make it a crime to knowingly create, sell, market, advertise, exchange, or distribute an “animal crush video” that (1) depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and (2) is obscene.Thereafter, Defendants-Appellees Ashley Nicole Richards and Brent Justice were charged with, inter alia [among other things], four counts of creating and one count of distributing animal crush videos. In these videos, Richards is the person “performing,” while Justice is the person behind the camera. Generally, the videos portray Richard binding animals (a kitten, a puppy, and a rooster), sticking the heels of her shoes into them, chopping off their limbs with a cleaver, removing their innards, ripping off their heads, and urinating on them. Richards is scantily clad and talks to both the animals and the camera, making panting noises and using phrases such as “you like that?” and “now that’s how you f--- a pussy real good.”Richards and Justice were charged in a Texas court with felony cruelty to animals. A subsequent federal indictment charged Richards and Justice with (1) four counts of creation and one count of distribution of animal crush videos, (2) one count of engaging in the business of selling or transferring obscene matter, and one count of production and transportation of obscene matters for sale or distribution. . . .[T]he statute reads, in part:a)Definition.—In this section the term “animal crush video” means any photograph, motion-picture film, video or digital recording, or electronic image that—(1)depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury . . . and including conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate [a specific statute] and(2)is obscene . . .[The court notes that to succeed in the argument that a statute is unconstitutional on its face, one must:] “establish that no set of circumstances exists under which [the statute] would be valid, or that the statute lacks any plainly legitimate sweep. [A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [H]owever, the First Amendment has permitted restrictions upon the content of speech in a few limited areas,” including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.[The court reviews the U.S. Supreme Court’s rulings about obscenity, notes that under the statute in question, the videos must be “obscene,” and reviews the Supreme Court’s cases on that issue and the freedom of speech issues. The court holds that the statute in question] regulates a content-defined subclass based on its secondary effects and is justified without reference to the content of the speech. “The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” The plain language and the history and revisions of [the statute] suggest that there is no realistic possibility that official suppression of ideas is afoot. Nevertheless, even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, [the statute] is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction. “The other element that occurs in animal crush videos and which warrants a higher punishment than simply obscenity is that it involves the intentional torture or pain to a living animal. Congress finds this combination deplorable and worthy of special punishment.”[The court discusses the government’s interest in regulating secondary effects], such as public health, safety and welfare; societal debasement; the promotion of violence; and other serious criminal activity. [The court reviews longstanding state statutes that prohibit such conduct as the federal statute at issue in this case and quotes cases such as those stating the following:] (“No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane.”) [and that] “animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment.” . . . Moreover, in enacting [the statute], Congress found that the clandestine manner in which animal crush videos are made makes it difficult for states to enforce laws that criminalize the underlying conduct. We conclude similarly that Congress has a significant interest in preventing the secondary effects of animal crush videos, which promote and require violence and criminal activity.Furthermore, [the statute] serves that interest in a reasonably tailored way. [It] no longer includes the words “wounded” and “killed,” which troubled the Court in Stevens because they might not imply cruelty and could apply to depictions of activities such as hunting. [The statute] excepts depictions of customary or normal veterinary or agricultural husbandry practices, the slaughter of animals for food; or hunting, trapping, or fishing. . . . [The statute] thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals. We hold that [it] is a permissible regulation of a subset of proscribable speech.Supplement 8.10?The Alaska Harassment Statute. Alaska provides an example of harassment in the first and second degree, both misdemeanors. The second degree is considered first, as it is referenced in the first-degree harassment statute. To constitute second-degree harassment, a person must, “with intent to harass or annoy another person,” engage in one of the following acts:(1)insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response;(2)telephones another and fails to terminate the connection, with intent to impair the ability of that person to place or receive telephone calls;(3)makes repeated telephone calls at extremely inconvenient hours;(4)makes an anonymous or obscene telephone call, an obscene electronic communication, or a telephone call or electronic communication that threatens physical injury or sexual contact;(5)subjects another person to offensive physical contact; or(6)publishes or distributes electronic or printed photographs, pictures, or films that show the genitals, anus, or female breast of the other person or show that person engaged in a sexual act.Alaska statutes provide two circumstances that constitute harassment in the first degree. First, section (5) of the preceding statute is violated “and the offensive physical contact is contact with human or animal blood, mucus, saliva, semen, urine, vomitus, or feces.” Second, section (5) is violated under circumstances that are not included within the sexual harassment statute “and the offensive physical contact is contact by the person touching through clothing another person’s genitals, buttocks, or female breast.”Supplement 8.11?The U.S. Supreme Court Strikes Down the Texas Sodomy Law.The 2003 U.S. Supreme Court case striking the Texas sodomy law was a long-awaited one as the U.S. Supreme Court had decided several key cases in which the Court had upheld the right to privacy regarding sexual behavior between consenting adults in private. The Court, however, had not recognized that right between same-gender couples, which is the focus of Lawrence v. Texas. The case is a long one and has been carefully edited for this text, but there are a number of concepts that are crucial and are included, despite their length, because the case has implications far beyond its facts.In the case, the U.S. Supreme Court talks about a fundamental right, which, in U.S. constitutional law, refers to a right that is named in the U.S. Constitution or implied within that document. It includes such rights as free speech and the right to the free exercise of religion, which are specified, along with the right to privacy, which as we learned in Chapter 1 of the text, emanates from several stated rights. Fundamental rights may be controlled by the government, but only if the statutes are narrowly tailored—that is, if they do not go beyond the conduct they can limit. When you read the case, look for the discussions of privacy and fundamental rights.The U.S. Supreme Court rarely overrules a prior case specifically and by name. Note how that issue arises in this case with respect to Bowers v. Hardwick, decided earlier by the Court. Notice also the Court’s references to other cases that considered the right to privacy: Baird v. Eisenstadt; Griswold v. Connecticut; and Roe v. Wade (right to privacy and upholding abortion as a fundamental right under specified circumstances). Finally, in 2015, the U.S. Supreme Court upheld the right of gays and lesbians to marry.Lawrence v. Texas539 U.S. 558 (2003), cases and citations omittedKennedy, J. delivered the opinion of the Court, joined by Stevens, Souter, Bader, Ginsburg, O’Connor, and Breyer, JJ. Scalia and Thomas, JJ., and Rehnquist, C.J., dissented. “The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. . . .In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace. The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” The applicable state law provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “deviate sexual intercourse” as follows: (A)any contact between any part of the genitals of one person and the mouth or anus of another person; or(B)the penetration of the genitals or the anus of another person with an object.The petitioners . . . challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment [of the U.S. Constitution] and of a like provision of the Texas Constitution. Those contentions were rejected. The petitioners . . . were each fined $200 and assessed court costs of $141.25. . . We granted certiorari to consider three questions:1.Whether petitioners’ criminal convictions under the Texas Homosexual Conduct law which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples violates the Fourteenth Amendment guarantee of equal protection of laws?2.Whether petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?3.Whether Bowers v. Hardwick should be overruled? . . .We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases; but the most pertinent beginning point is our decision in Griswold v. Connecticut.In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade. As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. . . .Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. . . .The facts in Bowers had some similarities to the instant case. . . . One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute . . . applies only to participants of the same sex. . . .[The U.S. Supreme Court discussed the history of sodomy laws in the United States, noting that] the model sodomy indictments presented in a 19th-century treatise, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. . . .[The Court reviewed the history of prosecutions under sodomy statutes.]In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” . . .This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. [The Court discussed changing laws concerning sodomy in other countries.]In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. Two principal cases decided after Bowers cast its holding into even more doubt. In [one of these cases] the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. [That] decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. . . . The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration requirements. This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. . . .The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. In [another case] we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. . . .Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. It should be and now is overruled.” Scalia, J., dissenting.. . . “Proscriptions against [consensual sodomy] have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious. It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied. . . .Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable. . . .I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion. . . .Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, that in some cases such “discrimination” is mandated by federal statute, and that in some cases such “discrimination” is a constitutional right.Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. . . .The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.Thomas, J., dissenting.“I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is . . . uncommonly silly.” If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” ______________________________________________________Supplement 8.12?Virginia’s Fornication Statute.Some jurisdictions do not limit the criminal act of fornication to the opposite sex. In Virginia fornication refers to “any person, not being married, who voluntarily shall have sexual intercourse with any other person.” It is a class 4 misdemeanor. In January 2005, the Virginia Supreme Court held that this statute was unconstitutional, applying the rationale of Lawrence v. Texas, excerpted in Supplement 8.11.Supplement 8.13?Adultery Is Still a Crime in Some States.Oklahoma defines adultery as follows:Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex, and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife as the case may be or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.New York’s adultery statute defines adultery, a Class B misdemeanor, as follows:A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.Supplement 8.14?Teen Sexting in Colorado: Do the Statutes Apply?Some states have enacted specific statutes to target underage persons who send nude pictures of themselves to others. Generally these statutes provide lesser penalties than for the same behavior committed by an adult. Colorado, mentioned earlier with regard to a large number of sexting teens who were apprehended, does not have a special statute. Consider the following Colorado statute concerning the definition of sexual exploitation of a minor (a person under age 18) and discuss how you think it could (or could not) apply to a 17-year-old sexting a friend of the same age by sending his/her nude picture. This statute is followed by one prohibiting the possession of control of such materials.Sexual Exploitation of a Child, CRS, Section 18-6-403 (2015)The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child’s right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation, it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude such material from the channels of trade and commerce.In contrast, consider the Florida statute regarding sexting, passed in 2011, which provides, in part, the following:(1)A minor commits the offense of sexting if he or she knowingly:(a)Uses a computer, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another minor any photograph or video of any person which depicts nudity, as defined in [another statute], and is harmful to minors, as defined in [another statute].(b)Possesses a photograph or video of any person that was transmitted, or distributed by another minor which depicts nudity, as defined in [another statute], and is harmful to minors, as defined in [another statute]. A minor does not violate this paragraph if all of the following apply:1.The minor did not solicit the photograph or video.2.The minor took reasonable steps to report the photograph or video to the minor’s legal guardian or to a school or law enforcement official.3.The minor did not transmit or distribute the photograph or video to a third party.The statute provides a variety of penalties, ranging from eight hours of community service or, on court order, a $60 fine for a first offense to more extensive penalties for subsequent offenses. A first offense may not be prosecuted as a crime. Notes ................
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