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68 terms

Law and Society FINAL EXAM

STUDY
PLAY
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
1778
-crime to criticize the government
-anything that libel president or congress would be punished
" " definition of free speech
NARROW

-fast forward to today = a much broader definition of free speech
Espionage Act
WWI
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
1970
-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
-perjury
-obscenity (hardcore porn) states can ban it or regulate it
-"fighting words"
-defamation
"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
Obscenity
-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
Religion
-"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
Constitutional
Accomodationist
-accommodate religion as long as your not favoring one over the other
-religion over irreligion
Vouchers
-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
Race
-courts have to show law is necessary to a compelling government interest
intermediate Judicial Scrutiny
Gender
-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
Undergraduate:
-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
Graduate:
-stated that they were looking for critical mass of minority students
-court found graduate program constitutional
Privacy
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
1972
-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