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Privacy, Property and Free Speech: Law and the Constitution
The Great Courses (Jeffrey Rosen)
23
Law
Undergraduate 1
05/18/2017

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Term
Star Chamber
Definition

The Star Chamber (Latin: Camera stellata) was an English court of law which sat at the royal Palace of Westminster, from the late 15th century to the mid-17th century (c. 1641), and was composed of Privy Councilors and common-law judges, to supplement the judicial activities of the common-law and equity courts in civil and criminal matters. The Star Chamber was originally established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes. However, it became synonymous with social and political oppression through the arbitrary use and abuse of the power it wielded. The Star Chamber (Latin: Camera stellata) was an English court of law which sat at the royal Palace of Westminster, from the late 15th century to the mid-17th century (c. 1641), and was composed of Privy Councilors and common-law judges, to supplement the judicial activities of the common-law and equity courts in civil and criminal matters. The Star Chamber was originally established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes. However, it became synonymous with social and political oppression through the arbitrary use and abuse of the power it wielded.

Term
Basis for 5th Amendment
Definition

“No person … shall be compelled in any criminal case to be a witness against himself.” In declaring that people can’t be forced to testify against themselves, the framers of the Constitution once again had a particular case in mind: that of John Lilburne, a British puritan who was investigated in 1638 by the Star Chamber for heresy—namely, refusing to accept the authority of the Church of England.

Term
John Lilburne
Definition

John Lilburne (1614 – 29 August 1657), also known as Freeborn John, was an English political Leveller before, during and after the English Civil Wars 1642–1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law. In his early life he was a Puritan, though towards the end of his life he became a Quaker. His works have been cited in opinions by the United States Supreme Court.

Term
John Lilburne and The Star Chamber
Definition

The Star Chamber was notorious because it forced suspected religious dissenters to take the oath ex officio, which required a witness to promise that he or she would truthfully answer all questions that were put to him or her without knowing in advance what the court would ask. Lilburne refused to take the oath ex officio and, as a result, was flogged and fined.

Term
John Lilburne and Miranda v Arizona (1966)
Definition
The ordeal of Lilburne was cited in Miranda v. Arizona (1966), which held that suspects must be informed, during interrogations, of their right to remain silent. Lilburne’s struggles provide far less protection for privacy in an age when brain scan technologies mean it’s possible to read suspects’ minds—and to determine their propensities to violence—without putting them under oath.
Term
John Peter Zenger
Definition

John Peter Zenger (October 26, 1697 – July 28, 1746) was a German American printer and journalist in New York City. Zenger printed The New York Weekly Journal. Zenger was accused of libel in 1734 by the governor of New York. The jury acquitted Zenger, who became a symbol for freedom of the press.

Term
John Peter Zenger and the 1st Amendment
Definition
 “Congress shall make no law … abridging the freedom of speech.” When the First Amendment was ratified, the framers had one free speech hero in mind: John Peter Zenger, who was a printer of The New-York Weekly Journal, which published articles criticizing the royal governor of New York for replacing the Chief Justice of New York after he ruled against the governor in a case. In 1735, Zenger was tried for seditious libel. Ultimately, the jurors at Zenger’s trial refused to convict him of sedition—an early example of jury nullification, or the refusal of jurors to convict guilty defendants of violating laws that the jurors believed were unjust.
Term
John Peter Zenger and Criminalization of Truth
Definition

The Zenger case came to stand for the principle that true statements couldn’t be criminalized by the government.

 

The case of Zenger is an inspiring example of 18th-century liberty in action, but what can it teach us in an age when the people with the most power over who can speak and who can be heard aren’t royal governors but lawyers at Facebook and Google, who aren’t constrained by the First Amendment?

Term
John Wilkes
Definition

John Wilkes (17 October 1725 – 26 December 1797) was an English radical, journalist, and politician.

 

He was first elected Member of Parliament in 1757. In the Middlesex election dispute, he fought for the right of his voters—rather than the House of Commons—to determine their representatives. In 1768 angry protests of his supporters were suppressed in the St George's Fields Massacre. In 1771, he was instrumental in obliging the government to concede the right of printers to publish verbatim accounts of parliamentary debates. In 1776, he introduced the first bill for parliamentary reform in the British Parliament.

Term
John Wilkes and the 4th Amendment
Definition
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” When the framers of the U.S. Constitution prohibited “unreasonable searches and seizures” of our “persons, houses, papers, and effects” in 1791, they were thinking about the search of one person’s house in particular—that of the British rabble-rouser John Wilkes.
Term
John Wilkes and sedition
Definition

Wilkes faced a charge of seditious libel over attacks on George III's speech endorsing the Paris Peace Treaty of 1763 at the opening of Parliament on 23 April 1763. Wilkes was highly critical of the King's speech, which was recognized as having been written by Bute. He attacked it in an article of issue 45 of The North Briton. The issue number in which Wilkes published his critical editorial was appropriate because the number 45 was synonymous with the Jacobite Rising of 1745, commonly known as "The '45". Popular perception associated Bute - Scottish, and politically controversial as an adviser to the King - with Jacobitism, a perception which Wilkes played on.

 

The King felt personally insulted and ordered the issuing of general warrants for the arrest of Wilkes and the publishers on 30 April 1763. Forty-nine people, including Wilkes, were arrested, but general warrants were unpopular and Wilkes gained considerable popular support as he asserted their unconstitutionality. At his court hearing he claimed that parliamentary privilege protected him, as an MP, from arrest on a charge of libel. The Lord Chief Justice ruled that parliamentary privilege did indeed protect him and he was soon restored to his seat. Wilkes sued his arresters for trespass. As a result of this episode, people were chanting, "Wilkes, Liberty and Number 45", referring to the newspaper. Parliament swiftly voted in a measure that removed protection of MPs from arrest for the writing and publishing of seditious libel.

Term
Olmstead v United States
Definition

The Supreme Court’s first encounter with electronic surveillance was a case decided in 1928 called Olmstead v. United States, which arose when the federal government began to tap phones in an effort to enforce Prohibition. Olmstead was the general manager of an enterprise that produced two million dollars a year by shipping and selling illegal liquor between Seattle and British Columbia. Federal agents put wiretaps on the phone lines near Olmstead’s home and office and testified about the conversations they overheard at his subsequent trial. Olmstead claimed that the wiretaps violated the Fourth Amendment.

Term
Louis Brandeis
Definition

Louis Dembitz Brandeis (November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939. He was born in Louisville, Kentucky, to Jewish immigrant parents from Bohemia (now in the Czech Republic), who raised him in a secular home. He attended Harvard Law School, graduating at the age of twenty with the highest grade average in the law school's history. Brandeis settled in Boston, where he founded a law firm (that is still in practice today as Nutter McClennen & Fish) and became a recognized lawyer through his work on progressive social causes.

Term
William Howard Taft
Definition

William Howard Taft (September 15, 1857 – March 8, 1930) served as the 27th President of the United States (1909–1913) and as the tenth Chief Justice of the United States (1921–1930), the only person to have held both offices. Taft was elected president in 1908, the chosen successor of Theodore Roosevelt, but was defeated for re-election by Woodrow Wilson in 1912 after Roosevelt split the Republican vote by running as a third-party candidate. In 1921, President Warren G. Harding appointed Taft to be chief justice, a position in which he served until a month before his death.

Term

William Taft Majority Opinion


Olmstead v United States

Definition

In a literal-minded opinion, Chief Justice William Howard Taft disagreed with Olmstead. The Fourth Amendment, he said, was originally understood to forbid only searches or seizures accompanied by physical trespass. The agents had not trespassed on Olmstead’s property when they placed wiretaps on the phone lines in the streets near his house. Moreover, the conversations that the agents overheard were not material things, like papers or other personal property, and therefore were not protected by the Fourth Amendment.

Term

Louis Brandeis dissenting opinion


Olmstead v United States

Definition

In a visionary dissenting opinion, Justice Louis Brandeis grappled with the issue of adapting 18th-century values for a 20th-century world. When the Constitution was adopted, Brandeis noted, breaking and entering into the home was the only way for the government to invade a citizen’s private thoughts, but in the 1920s, subtler ways of invading privacy, such as wiretapping, had become available to the government. To protect the same amount of privacy that the framers of the Fourth and Fifth Amendments intended to protect, Brandeis argued, it was necessary to extend those amendments to prohibit the warrantless searches and seizures of conversations over wires.


Brandeis was sufficiently prescient to look forward to the age of cyberspace and to predict that technologies of surveillance were likely to progress far beyond wiretapping. In anticipation of those future innovations, Brandeis challenged his colleagues to translate the Constitution once again to take account of the new technologies—or else risk protecting less privacy and freedom in the 21st century than the framers of the Constitution expected in the 18th century.

Term
le droit à l’oubli
Definition
The most hotly contested battle between privacy and free speech on the Internet today is over a new right proposed by the European Union: the right to be forgotten, or le droit à l’oubli (“the right of oblivion”)—a right that allows a convicted criminal who has served his or her time and has been rehabilitated to object to the publication of the facts of his or her conviction and incarceration.
Term

Katz v United States

 

389 US 347 (1967) 

Definition

A few decades after Olmstead v United States, in 1967, the Supreme Court appeared to accept Brandeis’s argument that technologically enhanced eavesdropping could qualify as an unreasonable search, but it did so in a way that inadvertently undermined Brandeis’s central insight. In Katz v. United States, government agents attached a listening device to a public telephone booth and recorded a gambling suspect’s end of the conversation without his knowledge.


Overruling the Olmstead decision, which had held that there could be no search or seizure without a “physical intrusion,” the Court announced that the “Fourth Amendment protects people, not places.”  Because Mr. Katz, the suspected gambler, had taken steps to preserve his privacy by closing the door of the phone booth behind him, the Court held that he reasonably expected that his conversations wouldn’t be monitored without a judicial warrant.

Term
John Harlan and Katz v United States
Definition

In an influential concurring opinion, Justice John Harlan proposed the following test for determining what kind of surveillance activity should trigger the protections of the Fourth Amendment: A person must have an actual or subjective expectation of privacy, Harlan suggested, and the expectation must be one that society is prepared to accept as reasonable.

 

Harlan’s test was applauded as a victory for privacy, but it soon became clear that it was entirely circular. People’s subjective expectations of privacy tend to reflect the amount of privacy they subjectively experience, and as advances in the technology of monitoring and searching have made increasingly intrusive surveillance possible, expectations of privacy have naturally diminished with a corresponding reduction in constitutional protections.

Term

Kyllo v United States


533 U.S. 27 (2001)

Definition

Kyllo v. United States, 533 U.S. 27 (2001), held that the use of a thermal imaging, or FLIR, device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant.

Term
United States v Place
Definition

United States v. Place, 462 U.S. 696 (1983), was a decision by the Supreme Court of the United States which held that a sniff of luggage in a public place, by a police dog specially trained to detect the odor of narcotics, was not a "search" under the meaning of the Fourth Amendment to the United States Constitution. The Court reasoned that the sniff of a dog is sui generis, intended to disclose only the presence or absence of narcotics. Because a dog sniff is such a limited test, the Court carved out this exception from the broad category of "searches" for which a warrant is generally required.

Term
sui generis
Definition

Sui generis is a Latin phrase, meaning "of its (his, her, or their) own kind; in a class by itself; unique"

Term

United States v Jones

 

132 S.Ct. 945 (2012)

Definition

United States v. Jones, 132 S.Ct. 945 (2012), was a United States Supreme Court case which held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.

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