Former Michigan Supreme Court Justice Thomas M. Cooley, in a forward-looking article, advocated for extending Fourth Amendment protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late-19th century concerns.
Cooley’s Inviolability of Telegraphic Correspondence advocated for protecting correspondence sent via this relatively new technology from “unreasonable searches and seizures.” As support, Cooley turned first to the influential English case of Entick v. Carrington, in which English government agents entered a private domicile and seized private papers. Cooley writes:
The case [Entick], as will be seen, did not by any means turn wholly upon the breaking into the tenement and the forcing of locks, but it brought to the front as a principal grievance the injury the subject might sustain by the exposure of his private papers to the scrutiny and misconception of strangers.
The key for Cooley—unlike some other commentators—was the “exposure of ... private papers to the scrutiny and misconception of strangers.” For Cooley, telegrams are exactly the same as private papers, and should be available for use as evidence only in regards to the telegraph company (which has a “qualified property interest in them”), the sender, and the receiver. He analogized telegrams to postal mail, where “every invasion of it [the post] has been punishable” (though the Supreme Court only explicitly gave Fourth Amendment protection to postal mail the year before Cooley’s article, it did so based on a long-standing understanding that postal mail ought to be inviolable).
Telegraphic communications were protected to some degree by state law, but abo...
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...e correspondence is to be given to the public, the method is not important; it is equally injurious whether done by sending an officer to force locks and take it, or by compelling the person having the custody to produce it.
In short, argues Cooley, what is the difference between papers stored in the home and correspondence held at a telegraph office? This idea is not dissimilar to the majority opinion in Katz that the “Fourth Amendment protects people, not places.” In Cooley’s words, if a person’s correspondence is open to seizure in a telegraph office, then why should it be more protected in his home?
And if a search in a telegraph office and a seizure of a man's private correspondence is not an unreasonable search and seizure, on what reasons could the search for and exposure of his private journals be held to be an invasion of his constitutional right?
Justice Harlan’s reasonable expectations test in Katz vs. United States (1967) considers whether a person has an “actual (subjective) expectation of privacy” and if so, whether such expectation is one that “society is prepared to recognize as ‘reasonable.’” (Solove and Schwartz 99) If there is no expectation of privacy, there is no search and no seizure (reasonable, or not), and hence no Fourth Amendment issue. Likewise, we must first ascertain whether a search took place. A few questions from a police officer, a frisk, or the taking of blood samples do not constitute a search. (Solove and Schwartz 83; 86) Likewise, the plain view doctrine establishes that objects knowingly exhibited in a public area, in plain view for police to see, do not
In the Supreme Court case of the New York Times Co. vs. United States there is a power struggle. This struggle includes the entities of the individual freedoms against the interests of federal government. It is well known that the first amendment protects the freedom of speech, but to what extent does this freedom exist. There have been instances in which speech has been limited; Schenck vs. United States(1919) was the landmark case which instituted such limitations due to circumstances of “clear and present danger”. Many have noted that the press serves as an overseer which both apprehends and guides national agenda. However, if the federal government possessed the ability to censor the press would the government restrain itself? In the case of the Pentagon Papers the necessities of individual freedoms supersedes the scope of the national government.
Do you know that notifying your fellow Americans of their constitutional rights was a Federal crime? Well it was during World War One (WWI). In the case Schenck v. the United States, schenck tried to remind his fellow Americans of their constitutional rights and also let them know that the draft was being used as a form of militarized slavery. This case contained men who his right was taken away after he tried to get the military draftees to fight against the draft. However Congress took his right of speech away when it was arrested and convicted of violating the Espionage Act of 1917.
Schenek v. United States was a trial in 1919 that reaffirmed the conviction of a man for circulating antidraft leaflets among members of the armed forces. This trial upheld the Espionage and Sedition Acts, which by many deemed unconstitutional. The Espionage Act of 1917 was a United States federal law, which made it a crime for a person to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. The Sedition Act forbade Americans to use "disloyal, profane, scurrilous, or abusive language" about the United States government, flag, or armed forces during war. The act also allowed the Postmaster General to deny mail delivery to dissenters of government policy during wartime. These two laws denied the freedom of speech that our sacred Bill of Rights was supposed to uphold. The antidraft flyers that Schenek passed out claimed to be freedom of speech so the government could not stop the circulation of Schenek’s pamphlets. However, by passing out antidraft laws, Schenek had “the intent to interfere with the operation of success of the armed forces of the United States.” By doing this, he broke the law. He was sentenced to six months in prison for breaking an unconstitutional law. The government was trying to reduce the freedom of speech during a time of war so that the nation would be united as one. The opposition of some feared Woodrow Wilson and his cabinet so they took action by reducing some freedoms and imprisoning many people unconstitutionally.
Justice Jackson's disagreement on the ruling of the Terminiello case is supported by many historical examples which demonstrate that freedom of speech is not an absolute right under the law. Although Terminiello had a right to exercise his right under the First Amendment, had the majority carefully considered this principle it should have rejected his claim. In this case, the majority's treatment of Terminiello's case skirted the real issue and did not benefit from true constitutional interpretation.
" 2. The court said that it was difficult decide with the argument of executive privilege because there was no real claim to protect military, diplomatic, or sensitive national security secrets. 3. The court stated: "We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
Search and seizure in Canada has evolved into the Charter of Rights and Freedoms as an important asset in the legal world. The case of R v. TSE sets an important example of how unreasonable search and seizure is in Canada. An important section that relates to this case is s. 8. The main concerns with this case are whether the police abuse their powers to search and seize Yat Fung Albert Tse, the fact that when the police did enter into the wiretap they did not have a warrant and also that it is a breach of privacy without concern.
This action applies to conduct by government officials such as police, firemen, or an individual hired as a private actor by the government. After the first criterion has been met, the court must determine whether a search or seizure has occurred. A search is defined as the physical or technological invasion of an area deemed by the majority of the court to have a reasonable expectation of privacy. These places could be homes or a closed telephone booth, depending on the circumstances of the incident. A seizure occurs when the government takes one's personal belongings or the individual themselves.
Do the First and Fourth Amendments Protect?" Current Issues & Enduring Questions: A Guide to Critical Thinking and Argument with Readings. Ed. Sylvan Barnet and Hugo Bedau. 5th ed. Boston: Bedford/St Martin's, 1999. 316-324.
Whether it is acceptable for the government to restrict any of our civil liberties during times of war, is of great concern and consideration. This essay argues that sacrificing some civil liberties occasionally to keep peace, defend our nation, and silence opposition, is reasonable. Our nation has already been through times where civil liberties have been muted in order to maintain their governmental influence. With the help of outside sources, the argument for limitation of civil liberties is made compelling and engaging.
As the case in Illinois clearly demonstrates, concerns about the fundamental discrepancy between a government's authority and what that government's authority guarantees are still being resolved. Cases like Tinker still have meaning and relevance to the situations of today, but at the same time, the lesson of Slotterback and innumerable other cases is that precedent can be defied, that every new generation requires a new interpretation of the provisions and guarantees made in grand terms vague enough to allow just such reinterpretation. History shows that censorship can be unfolded into either prior restraint or public forum, the approach from liberty or the approach from authority. Judicial sympathies have swung from one to the other with some regularity. With an issue as contentious as this, we can safely expect they will continue to do so.
...e privacy of that other person is guilty of disorderly conduct, which is a misdemeanor.”
Schultz, David, and John R. Vile. The Encyclopedia of Civil Liberties in America. 710-712. Gale Virtual Reference Library. Gale Virtual Reference Library, n.d. Web. 18 Mar. 2010. .
The fight for privacy rights are by no means a recent conflict. In fact, there was conflict even back in the days before the revolutionary war. One of the most well-known cases took place in England, ...
1. Explain prior restraints, defamation, and sedition of the freedom of freedom of speech and freedom of the press