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1st amendment freedoms

-freedom of expression
-freedom of religion

14th amendment freedoms

-equal protection of the laws

main critique of anti federalists

no bill of rights

Bill of Rights

purpose: limit power of federal government
-entire bill of rights applies to all levels of courts
"doctrine of incorporation"

how did they conclude BOR applied to all states

14th amendment

14th amendment aspects

First words: "No state shall make law that denies anyones equal protection of law
-civil rights amendment

due process clause:
-No state can deprive life, LIBERTY, property

Selective incorporation

implemented 100 years ago
-free speech is an essential part of liberty
-illegal search [essential ingredient of liberty--applied it to all states]
-self incrimination [essential ingredient of liberty--applied it to all states]
-indictment of Grand Jury has not been incorporated
Most recent: Chicago right to bear arms

Supreme Court--absolute right

There is no absolute right
-despite terminology of constitution/bill of rights

Free speech [what did they mean?]

fathers probably meant "no prior restraint"
- did not need to receive permission to publish
- no censorship

difference between "no prior restraint" + censorship

-law can punish you after the fact (seditious libel)

Seditious Libel

-libel for what you say
-could be punished for what you say

Alien + Sedition Act

-crime to criticize the government
-anything that libel president or congress would be punished

" " definition of free speech


-fast forward to today = a much broader definition of free speech

Espionage Act

first time congress tested freedom of speech

-made it a crime to interfere with war effort
-made it a crime to talk to soldiers into deserting or not reporting to duty

Schenk Case

-violating as a socialist the espionage act
-sent fliers to young soldiers encouraging them to not report to duty
-used violation of freedom of speech during appeals trial
-Supreme court upheld decision ["clear + present doctrine"]

"Clear + Present Doctrine"

-government has right to limit freedom of speech when it presents clear and present danger
-during wartime it would be dangerous to interfere w/ war
ex.) yelling fire in crowded theater (falsely)

"Bad Tendency Doctrine"

even if something bad is likely to occur

Brandenberg Test/Law

-bottom line doctrine created and still used today
-advocated violence
-court states that advocacy of unlawful action or violence is protected
-unless the intent of the speaker is to incite imminent danger and is likely that speaker will cause imminent lawless action
-very hard to prove

Not Protected by First Amendment

-obscenity (hardcore porn) states can ban it or regulate it
-"fighting words"

"Fighting Words"

-states still have laws trying to stop breach of the peace
-racial, religious face to face confrontation
-state can ban specific words

What if you do not talk but do something

Supreme court has defined "expressive conduct/symbolic speech"

Expressive Conduct/ Symbolic Speech

-desecrating American Flag
-Burning Draft Cards
-mere expression of opinion [black armband worn by student to school representing mourning

Desecration of American Flag

-cant desecrate flag in public
-states made it a crime (unconstitutional)
-Man in Texas desecrated flag in street
-cant criminalize symbolic speech

Burning Draft Cards

-1960's + 1970's popular to burn draft cards
-laws stated that you could not burn official gov. property [card considered property]
-Not protected by first amendment

Offensive Speech/Hate Speech

-different than hate crimes:
-race,religion,gender,orientation motivated act that is unlawful

-Hate speech:
-Virginia illegal to burn cross w/ intent to intimidate
-threats are a crime


-legal term of art
-lay person defines it as hardcore porn
-categories of speech outside protection of 1st amendment
-gov can regulate/control obscenity

Gov on Obscenity

-banned books in the past
-needed to define obscenity
-needed to come up with standard

Current State of Law on Obscenity

Established Miller Test

Miller Test

-for it to be obscene all 3 prongs need to be met thru test
(1) The work as a whole appeals to the prurient interest
"prurient--means excessively sexual w/ intent to arouse
(2) Portray sex in a patently offensive manner
(3) Serious literary, artistic, political or scientific value--has to lack (SLAPS)

Possession of Obscenity?

-a crime to sell or produce
-not a crime to possess

child pornography

-does child porn need to show Miller test---NO!
-child porn does not need to satisfy Miller Test
-It is flat-out banned, not regulated
-states decision to ban-->every state bans it to protect exploitation of children

Possession of Child Porn?

-yes, much different that possession of adult porn
-possession can be criminalized for same reasons as court:
-protect children from exploitation

Virtual Child Porn

-cannot criminalize virtual porn
-child is not real, no one is being victimized or exploited

Public Libraries + Porn

-gov provides money for public computer
"filter" prevents adolescents/children access to porn
-adult can legally ask librarian to turn off porn filter

Federal Communications Commissions

-delay broadcasting 3-5 sec in order to bleep out words
-television + radio is regulated by FCC

First Right in Bill of Rights

-"congress shall make no law establishing religion"
-nor exercise "free exercise clause"
-Establishment clause

Establishment Clause

many small towns " Las Crucas" California violate Establishment clause

Establishment Clause [What founding fathers probably meant]

-stop the formation of national church or national religion
-gov could not favor one religion over another
-congress could not appropriate money to catholic and not baptist
-congress could not dis-establish church in state

What Clause Did Not Mean

-gov could not favor religion over irreligion
-supreme court has interpreted Establishment Clause broadly
ex.) appropriated money to the christianization of native Americans
-gov had religious services take place in White House/State House

1947 decision Quoting Jefferson

"Wall of separation of Church and State" [1st Amendment]
-added gov could not favor religion over irreligion
-began to strike down religious practices
-contrary to historical traditions

Lemon Test

-determined if a law met constitutional mustard
(1) Law had a secular [nonreligious] purpose
(2) Had to show primary effect of Law did not advance religion
(3) Cannot involve excessive entanglement between government and religion

-violation of establishment clause if it did not meet these 3

Prayer in Public School

-school day normally began with prayer
-Supreme Ct. shut it down--it had a non secular purpose
-no bible readings in public schools
-no invocations during graduation

Loaning Textbooks to Parochial schools



-accommodate religion as long as your not favoring one over the other
-religion over irreligion


-Supreme Ct. found constitutional
-parents are given voucher to allow kids to go to public or private school
-voucher = money is given directly to parents

teaching of evolution

Scopes Monkey Case
- Supreme Ct. ruled it is unconstitutional to not allow teaching of evolution
-cant make teaching of creationism because it has religious connotation

Free Exercise Clause

-free to believe whatever you want
-when religion becomes action you can be abridged
-Mormons action of polygamy can be regulated
-Human sacrifice should be regulate (Inca tribes)

"Equality" in Constitution

-the term equal + equality is no found in constitution
-until 14th amendment

14th Amendment "Equality"

-states have equal protection of laws
-does not mean government can't treat people differently
ex.) progressive income tax, legal alcohol consumption age 21
-treating people differently based on race/gender is discrimination

3 Test to Gauge When Law is Discriminatory

1.) Minimal Judicial Scrutiny (least contingent)
2.) Intermediate Judicial Scrutiny
3.) Strict Judicial Scrutiny

Minimal Judicial Scrutiny

Eco, Edu, Age
-courts presume law is constitutional
-all court has to show is that law is rational
"rationally relates to a legitimate gov. purpose"
-not arbitrary or capricious (blue eyes drink at 18 v. brown drink at 21)

Strict Judicial Scrutiny

-courts have to show law is necessary to a compelling government interest

intermediate Judicial Scrutiny

-substantially related to an important government interest

Jim Crow Laws

separated races by law

Plessey v. Ferguson

-Challenged Jim Crow Laws
-cost railroad company money to separate black and white
-argues 14th amendment violated Plessey's freedom to equal protection of laws
-Court 8 to 1 found it did not violate freedom to equal protection of laws
-established precedent "separate but equal"
-segregation was constitutional

1954 Brown v. Board of Education

-NAACP position on the fact that separation of races was inherently unequal
-courts argument to justify was evidence provided by social scientist
ex.) segregation produced psychological damage for minority students and minorities as a whole
-overturned Plessey v. Ferguson, separation is inherently unequal

Brown V. Board of Education Part II

-NAACP wanted desegregation immediately
-courts did not agree with immediately -- "With all deliberate speed"
-state national guard called when resistance to desegregation was sparked
ex.) Little Rock Nine
-15 years after decision deliberate speed
-1990 courts stopped controlling the issue

Voting Rights Act 1965

-Federal registrar ensured black males were capable of voting
-only at this point, when the black vote counted did southern government change

Civil Rights Act 1964

-made it unlawful to segregate in private industries/employment
-found constitutional through elastic clause "enumerated power of congress to control interstate commerce"

Affirmative Action

-treats people differently by race
-Civil Rights Act 1964 made it unlawful to segregate employment and education
"reverse discrimination"

UCAL Davis Medical School

-allowed 100 students in program
-20 reserved for exclusively minority students
-80 reserved for everyone else
-Student named Bakke was white and was rejected
-Bakke had better grades than the 20 minority students
-court applied strict judicial scrutiny
-universities decision to have diverse student body is a compelling gov. interest, a quota system however is unnecessary and unconstitutional

Michigan St. Undergrad v. Graduate

Ruled 2006
-created a point index
-most somebody could get was 150
-If you were a member of disadvantaged minority group you would get an automatic 20 points
-court ruled you can't simply give free 20 points based solely on race
-stated that they were looking for critical mass of minority students
-court found graduate program constitutional


Griswald v. Connecticut
Roe v. Wade

Griswald v. Connecticut

1963 "penumbra"
-concerned a law based on a law against sale of contraceptives
-comes before supreme court
-created a right to privacy
-Bill of Rights cast a shadow under-which freedom of privacy is located

Roe v. Wade

-Every state in union at this time had ban of abortion
-court started with question over fetus--does life begin at conception?
-court stated fetus is not a person--therefore it has no rights
-before viability, the state cannot prohibit abortion
-after viability, then state can prohibit
-Prohibit abortion must be violated when mothers health is at stake
-If overturned, states will have decision over abortion

Partial Birth Abortion

-deliver the baby but crush the skull, then remove whole body

Abortion: Notification to Husband/Father?

Women does not need to notify husband of abortion

Right to Die

-any competent adult can refuse any type of medical treatment
-issues arise when adult is in vegetative state

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