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Civil Liberties Exam Two Info
Terms in this set (93)
"the test of obscenity is whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall"
Hicklin Rule came from what case?
Queen v. Hicklin, court of the queen's bench, 1868)
First Standard of Obscenity?
U.S. v. One Book Called Ulysses (1934):
Brought to attention that the book's literary work as a whole message trumps a small portion of obscenity. "Literary Message Matters"
Was a 1933 case in the United States District Court for the Southern District of New York dealing with freedom of expression. At issue was whether James Joyce's novel Ulysses was obscene. In deciding it was not, Judge John M. Woolsey opened the door to importation and publication of serious works of literature that used coarse language or involved sexual subjects.
The trial court's decision was upheld by the United States Court of Appeals for the Second Circuit, which confirmed that offensive language in a literary work is not obscene where it does not promote lust. But Judge Woolsey's trial court opinion is now more widely known, and often cited as an erudite and discerning affirmation of literary free expression.
Cases that moved from Hicklin:
U.S. v. One Book Called Ulysses
Butler v. Michigan
Butler v. Michigan (1957):
Everything is considered obscene if it can only be read by children (fit for children)
"To burn the house and roast the pig...the incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children"
Roth v. United States (1957):
Operated a book selling business in New York and was convicted of mailing an obscene book.
The court held that obscenity was not "within the area of constitutionality protected speech or press."
The court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material take as a whole appeals to prurient interest"
Said that such a definition of obscenity gave sufficient fair warning and satisfied the demands of due process.
The test to determine obscenity was
"whether to the average person, applying contemporary community standards, the dominant theme of the material take as a whole appeals to prurient interest"
Jacobellis v. Ohio (1964):
Case that clarified Roth, in which it stated that community in "community standards" equals the nation as a whole.
Memoirs v. Massachusetts (1966):
Case that clarified Roth, in which it stated that "to be obscene work it must be "utterly without redeeming social value"
After this case Roth ended up being abandoned.
Redrup v. New York:
Due to the lack of consensus on a standard, the Court adopted the practice of redrupping, where obscenity cases were decided with only a short per curium opinion noting the outcome agreed upon by five justices even though all may have applied different standards.
Miller v. California (1973):
After conducting a mass mailing campaign to advertise the sale of "adult" material, was convinced of violating a statue prohibiting the distribution of obscene material.
This cases resulted in a new test that defined obscenity based on a three prong set up.
1) Whether the average person applying contemporary community standards would find that the work appeals to prurient interests.
2)whether the work depicts, in a patently offensive way, sexual conduct as defined by STATE Law.
3)whether the work as a whole lacks serious literary, artistic, political, or scientific value (having a plot)
New York v. Ferber (1982):
Store owner sold material showing children under the age of 16 engaged in sexual activities, was convicted of distributing, was convicted against A state child pornography law which prohibited persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.
Reno v. ACLU (1997):
A case where Attorney General appealed against a act to attempt to regulate minors to not be able to view porn on the internet "
It violated the 1st amendment because the Communications Decency Act was overly broad and vague in their definitions of the types of internet communications in which they criminalized.
The Act failed to clearly define "indecent" communications.
United States v. Williams (2008):
Case where, a person was Convicted of pandering (promoting) child pornography, which was against the Protect Act. The Protect act proscribed (forbid) the pandering of any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography.
Issue was did the Protect Act abridge the first amendment? No (characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech) (Illegal to say you have child porn and you don't)
United States v. Stevens (2010):
A case where a person was convicted of "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain. (selling of videos related to illegal dog fighting) Argued that the statute was unconstitutional because it violated the Free Speech Clause of the 1st amendment.
Issue: Is the statue unconstitutional under the free speech clause of the 1st amendment? yes
Statue was substantially overbroad, and therefore invalid.
Brown v. Entertainment Merchants Association (2011):
A case where the respondent brings a suit against the state of California under the 14th and 1st amendment seeking to invalidate a newly enacted law that imposed restrictions and labeling requirements on the sale of "violent video games" to minors.
Issue: Does the freedom of speech clause from the 1st amendment bar (stop) a state from restricting the sale of violent video games to minors via the 14th amendment?
Yes. At this time only sex is obscene and naked people.
Freedom of the Press:
"Congress shall make no law... abridging the freedom... of the press"
The right is seen as a way to protect other political and personal liberties- press as a "watchdog"
Near v. Minnesota (1931):
A Case where, The Press published attacks on local officials. The Press claimed that the chief of police had "illicit relations with gansters" A state court order abated the Press and enjoined the publishers of the press from publishing or circulating "defamatory and scandalous periodicals" (Forbidding him from publishing)
Issue: Does the state law violate the free press provision of the 1st amendment via the 14th amendment due process clause?
Yes. The statute authorizing the injunction was unconstitutional the court held that the statutory scheme constituted a prior restraint and hence was invalid under the first amendment. (A prior restraint was not allowed)
The heart of free press issues is?
Government reviews material to determine whether publication of the material should be allowed.
1st indication of this was in 1695, when Blackstone wrote that no previous restraint should be place on the press
If there were to be any censorship it could occur only after publication and only if the activity violates criminal laws
New York Times v. United States (1971):
A case where the Nixon Administration attempted to prevent the respondent from publishing materials belonging to classified Defense Department study regarding the history of United States activities in Vietnam. President argued prior restraint was necessary to protect national security.
Issue: Did the Nixon Administration's efforts to prevent the publication of what it termed "classified information" violate the 1st amendment?
Yes. Per curiam opinion held by the gov't didn't overcome the "heavy presumption against" prior restraint of the press in this case. Reasoned that since the publication would not cause an "inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified."
Hazelwood School District v. Kuhlmeier (1988):
A case where, The Spectrum a school sponsored newspaper that was written and edited by students. The principal received the page proofs and found two inappropriate articles and ordered them not to be punished so former students brought the case to court.
Issue: Did the principal's deletion of the articles violate the student's rights under the 1st amendment freedom of press via the 14th amendment due process clause?
No. the 1st amendment did not require schools to affirmatively promote particular types of student speech and school newspapers aren't a part of a national forum and it was through the school on an educational mission.
Brazenburg v. Hayes (1972):
A case where, a reporter wrote a story that appeared in a Louisville newspaper and on two occasions he was called to testify and potentially disclose the identities of his confidential sources but refused to appear before their respective grand juries.
Issues: Is the requirement that news reporters appear and testify before state or federal grand juries and abridgment of the freedoms of speech and press as guaranteed by the 1st Amendment?
No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the 1st amendment. ( there was no gov't intervention to impose prior restraint and no command to publish sources or to disclose them indiscriminately, there was no constitutional violation)
Prior Restraint After Near:
While dicta, the court in Near did outline a set of situations when the prohibition against prior restraint by the government may not be absolute.
Ex: War Plans, Military Secrets, Obscenity, Incitements to riot or forcibly overthrows the gov't
not unanimous, when the court doesn't have a majority in sense of an rationale but in an outcome, only things in this are binding precedent.
Cox Broadcasting v. Cohn (1975)
Nebraska Press Association v Stuart (1976)
Simon & Schuster v. New York State Crime Victims Board (1991)
Red Lion Broadcasting v FCC (1968)
Miami Herald v. Tornillo (1974)
CBS v. DNC (1973)
prohibitions on the ability to force people to speak & prohibitions on the press to publish
Cox Broadcasting v. Cohn (1975):
Dealt with content prohibiting in which,
States cannont restrict the publication of truthful & public info (names of rape victims)
Nebraska Press Association v Stuart (1976)
Dealt with content prohibiting in which,
No gag order on pretrial proceedings even if its meant to protect the defendant from prejudicial publicity
Simon & Schuster v. New York State Crime Victims Board (1991):
Content based prohibitions are antithetical to the 1st Amendment (taking profits from a book published by a convicted criminal about his crime)
Red Lion Broadcasting v. FCC (1968):
Case dealing with the Fairness Doctrine
Miami Herald v. Tornillo (1974):
press responsibility is not mandated by the Constitution & ... cannot be legislated (right to reply laws in print media)
CBS v. DNC (1973):
media outlets can refuse to sell advertisements
Required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that was—in the Commission's view—honest, equitable, and balanced
only applies to actual programs not advertisement
Zurcher v. Standford Daily (1978):
Case dealing with media special rights,
press doesn't receive immunity from valid search warrants
Houchins v KQED (1978):
Case dealing with media special rights,
The press is not entitled to greater access than the general public to government info.
(newspaper denied access to jail)
Richmond Newspapers v. Virginia (1980):
Case dealing with media special rights,
The press has the right to attend a criminal trial (in art based on right to receive info)
Freedom of the Press and Libel:
Written falsehood that lead to defamation of character (being false & damaging is key)
Libel Laws are?
torts and until 1964 states were allowed to define their own standards for libel (civil claims)
written falsehood that damages another person
New York Times v. Sullivan (1964):
Case dealing with concerns of a full-page ad in the New York Times which alleged (without proof) that the arrest of MLK for perjury in Alabama was part of a campaign to destroy King's effort's to integrate public facilities and encourage blacks to vote. Sul filed a libel action against the newspaper and four black ministers who endorsed the ad, claiming that the allegations against the Montgomery police defamed him personally. Sul was awarded $500,000 judgement.
Issue: Did Alabama's libel law. by not requiring Sul to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the 1st amendment's freedom of speech and freedom of press protections and the 14th amendment due process clause?
Yes. produced a new standard, Actual Malice Standard (Sul Standard) the 1st amendment protects the publication of all statements even false ones, except when statements are made with actual malice and with the knowledge that they are false or in reckless disregard of their truth or falsity.
Actual Malice Standard:
1) Proving Intentional Harm
2) Reckless Disregard of the Truth
Curtis Publishing Co. v. Butts (1967):
Post- Sullivan case where the Sullivan actual malice standard extended to public figures
Time Inc. v. Hill (1967):
Rosenbloom v. Metromedia (1971)
Post-Sullivan Case where matters of general or public interest fall within the Sullivan Actual Malice Standard
Gertz v. Welch (1974):
Post-Sullivan Case where states can set their own liability standards for publishers/broadcasters of defamatory falsehoods injurious to PRIVATE individuals
Hustler Magazine v. Falwell (1988):
Case dealing where a "parody" of an advertisement modeled after an actual ad campaign, claiming a Fundamentalist minister and political leader, had a drunken sexual relationship with his mother in an outhouse. He sued to recover damages for Libel, invasion of privacy, and intentional infliction of emotional distress. He won a jury verdict on emotional distress and was awarded $150,00 in damages. Magazine agency appealed.
Issue: Did the law suit violate 1st amendment freedom of speech and free press protection?
Unanimous curt opinion agreed with the magazine agency saying that the minister could not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice" because "parody satire can't be used to sue for Libel"
Masson v. New Yorker (1991):
Post-Hustler Case where Actual Malice can include using false quotes that change the meaning of the actual message
So libel law today requires who to show actual malice?
Holds public officials, public figures, or items in the public interest to the Sullivan standard
So libel law today doesn't require who to show actual malice it is already considered actual malice?
"The Right of People to keep & Bear arms shall no be..."
Two Views of the 2nd Amendment:
Collective Approach & Individual Approach
Military centric views
Intent is to ensure a group right in case of military need
Second Amendment creates a personal or individual right
It Is independent of military need or service
United States v. Cruikshank (1876):
Pre-Miller Case where the right to bear arms not "granted by the constitution" as the right existed before the Constitution, 2nd amendment merely prevents Congressional interference with the right
Presser v. Illinois (1886):
Pre-Miller Case where the state can regulate private militia groups, 2nd amendment applies only to Congress
However in dicta the court notes that "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping & bearing arms"
United States v. Miller (1939):
Arkansas federal court charged him with violating the National Firearms Act when they transported a double barrel 12-gauge shotgun in interstate commerce. He argued that the NFA violated their 2nd amendment right to keep and bear arms.
Issue: Does the NFA violate His 2nd Amendment right?
No, because the 2nd amend does not guarantee/protect an individual the right to keep and bear a sawed-off double barrel shotgun because it isn't a reasonable relationship to the preservation orr efficiency of a well-regulated militia.
District of Columbia v. Heller (2008):
Anthony was a special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wanted to keep at home but he was denied. He sued the D.C. and sought for an injunction, he argued that they violated his 2nd amendment right to keep a functional firearm in his house without a license.
Issue: Do the provisions of the D.C. Code violate Heller's 2nd Amendment right?
Yes, because banning handguns an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second amendment.
(the militia clause acts as a preface not as a restraint on the clause)
McDonald v. City of Chicago (2010):
A follow up case to D.C. v. Heller, where a Chicago Law banned ownership of handguns without registration and they don't offer registration in which plaintiffs argued that the second amendment should also apply to states.
Issue: Does the 2nd amendment apply to the states because it is incorporated by the 14th amendment's privileges and immunities or due process clauses and thereby made it to applicable to the states? Were his rights violated?
Yes, Yes because of the "incorporation" of the 2nd amendment through the 14th amendment.
(2nd amend guaranteed right to keep and bear arms)
2nd amend guaranteed right to?
keep and bear arms
The Due process of the 14th amendment "incorporates the individual right to keep and bear arms in?
the 2nd amendment against unreasonable state regulations
Where does the Right of Privacy derive from?
1st Amend- Speech & Assembly (Watkins v. US)
3rd Amend- Quartering Soldiers
4th Amend- Search & Seizures
9th Amend- Other Rights
14th Amend- (SUBSTANTIVE) Due Process (rights can never be taken)
Olmstead v. United States (1928):
Right to Privacy Foundational Case, where Justice Brandeis writes of a "right to be left alone"
Meyer v. Nebraska (1923):
Pierce v. Society of Sisters (1925):
Right to Privacy Foundational Case, where a right to make decisions involving children (a sort of familiar sphere of privacy)
Skinner v. Oklahoma (1942):
Right to Privacy Foundational Case, where procreation is a fundamental right
Griswold v. Connecticut (1965):
Case dealing with the Executive Director of the Planned Parenthood League, where they gave information, instruction, and other medical advice to married couples concerning birth control. They were convicted under a Connecticut Law which criminalized the provisions of counselling, and other medical treatment, to married persons for purposes of preventing conception (Her own clinic, she was trying to go to jail)
Issue: Does the Connecticut Law violate the right to privacy? Does the constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives via the 14th amendment due process clause?
Yes, Yes, though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create "prenumbras, or zones, that establish a right to privacy"
"the right to privacy comes from PENUMBRAS & INMINATIONS from the 1st, 3rd, 4th, 5th, and 9th amendment.
Katz v. United States (1967):
Privacy after Griswold Cases, where wiretaps are unconstitutional without warrant, 4th Amendment "protects people not places"
Stanley v. Georgia (1969):
"if the 1st amendment means anything, it means that a state has no business telling a man, sitting alone in his house, what books he may read or what films he may watch"
Roe v. Wade (1973):
A texas resident sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. Court heard arguments twice.
Issue: Does the Texas Law violate the right to privacy by prohibiting her abortion via the 14th amendment due process clause?
Yes, the court held that a woman's right ti an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the 14th amendment. The decision gave woman total autonomy over the pregnancy during the 1st trimester and defined different levels of state interest for the 2nd & 3rd trimesters. (Viability) After the point of viablility the court has the right to cancel abortions; Prior to the point of viability the woman has the choice.
the ability of a thing (living) to maintain itself
Standards of Review in Privacy Cases:
Rationale Bias & Strict Scrutiny
If something is not considered a fundamental right the state only needs to show that it has some interest
If something is a fundamental right the state must have a compelling interest
What are the two types of Due Process:
Procedural and Substantive
Procedural Due Process:
requires the government to follow certain procedures before depriving a person of life, liberty, or property
Substantive Due Process:
focuses on substantive rights so fundamental that government cannot violate them even when proper procedure are followed without an adequate reason
(THE RIGHT CAN NOT BE TAKEN)
Harris v. McCrae (1980):
Abortion Rights Post Roe v. Wade Case, where medicaid does not have to pay for abortions
Webster v Reproductive Health Services (1989):
Abortions Rights Post Roe v. Wade Case, where it upholds restrictions of abortions but does not revisit essential holding of Roe
Planned Parenthood of Pennsylvania v. Casey (1992):
The PA legislature amended its abortion control law and the new provisions that required inform consent and a 24 hour waiting period prior to the procedure; A minor seeking abortion required the consent of one parent (the law allows for a judicial bypass procedure); A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians
Issue: Can a state require a woman who wants an abortion to be required to meet the provisions mentioned? Does the Pen Law violate to right to privacy under the 14th amendment due process clause?
No, Yes, The justices imposed a new standard and it asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden" which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Under this provisions the only provision to fail is the husband notification so the court strikes it down.
"substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."
(basically a balance test between individual rights & state interest
abortion is deemed a fundamental right, but only those laws unduly burdening that right are subject to strict scrutiny)
Stenberg v Carhart (2000):
Post Casey Case, that strikes Nebraska late term abortion law because it had no provisions to protect a woman's life
Gonzales v. Carhart (2007):
Post Casey Case, that upholds the federal ban on certain types of late term abortions (partial-birth)
Bowers v. Hardwick (1986):
Powell v. State (1998)
Pre- Anti-Sodomy Laws Case, where the court upholds GA's anti-sodomy law
But afterwards many state legislatures repealed or high courts invalidated similar laws under the provisions of their state constitutions which included the statute at issue in Bowers being held unconstitutionally as applied to "the performance of private, unforced, non commercial acts of sexual intimacy between persons legally able to consent" by Supreme Court of GA in ?
Lawrence v Texas (2003):
Two partners were engaging in consensual sex when police officers responded to a reported weapons disturbance and were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct.
Issue: Does the Texas Law violate their rights under the Equal Protection clause of the 14th Amendment? Does a statute prohibiting specific sex acts violate liberty under the Dues Process Clause of the 14th Amendment?
No, Yes because it was against the law for two persons of the same sex to engage in certain intimate sexual conduct because it violates the due process clause but they do have a right to LIBERTY under the due process clause gives them the full right to engage in their conduct without intervention of the government
(fundamental Liberty) (Because they ruled on Due Process & not Equal Protection it didn't change other laws for discrimination under sexual orientation.
(A) A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person & the mouth or anus of another
(B) Except as provided in subsection of this code section, a person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20yrs and shall be subject to the sentencing and punishment provisions of the code section
Obergefell v. Hodges (2015)
Groups of same-sex couples sued their relevant state agencies to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case argued that the states' statutes violated the Equal Protection Clause and Due Process Clause of the 14th amendment.
Issue: Did the law violate their right under equal protection under the 14th amendment? Did the law violate their due process clause under the 14th amendment?
No, Yes Because the court held that the due process clause of the 14th amendment guarantees the right to marry as one of the fundamental liberties it protects, under the equal protection clause of the 14th amendment it also guarantees the right of same-sex couples to marry. The court also held that the first amendment protects the rights to religious organizations to adhere to their principles, but it did not allow states to deny same sex couples the right to marry on the same terms as those for opposite-sex couples
(marriage is a fundamental right & liberty under the 14th amendment due process)
Full Faith & Credit Clause:
states must recognize laws passed in other areas and they must abide by the law passed.
Cruzan v. Missouri Dept. of Health (1990)
Right to Die Case, in which Nancy was in an automobile accident which left her in a "persistent vegetative state" She was sustained for several weeks by artificial feeding through an implanted gastronomy tube. Nancy's parents attempted to terminate the life-support system, state hospital officials refused to do so without court approval.
Did the due process clause of the 14th amendment permit (allow) her parents to refuse life-sustaining treatment on their daughter's behalf?
Yes, but under special limitations, (states can set standards of proof when individuals are incapable of making their own wishes known)
Washington v. Glucksburg (1997):
Post Cruzan Right to Die Case, in which the state ban on physician assisted suicide are valid
Gonzalez v. Oregon (2006):
Post Cruzan Right to Die Case, in which the federal government could not punish doctors acting under state laws allowing physician assisted suicide
Kelly v. Johnson (1976):
Other Application of Privacy Rights Case, where the government can dictate your grooming habits (police Officer)
Ravin v State, AK (1975):
Other Application of Privacy Rights Case, where privacy rights allow you to possess and use a small amount of marijuana in your own home in Alaska.
Greenwood v California (1988):
Other Application of Privacy Rights Case, in which you don't have privacy for your trash according to SCOTUS unles you live in Californian Hawaii, New Jersey, Washington, & Vermont
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