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Civil Rights and Liberties Midterm
Terms in this set (59)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
No soldier shall, in time of peace be quartered in any house, without the consent of the owners, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of the trial by jury, shall be otherwise re-excamined in any court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be constructed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.
Amendment 14 (1868)
"...citizens of the United States and the state wherein they reside...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..."
Asks what the framers wanted to do.
Places emphasis on what the Constitution says.
Considers what a clause meant (or how it was understood) to those who enacted it.
Looks to what courts have written about the clause.
Examines practices in the United States and even abroad.
Considers the effect of various interpretations, suggesting that courts should adopt the one that avoids bad consequences.
See the justices as rational decision makers who hold certain values they would like to see reflected in the outcomes of court cases. Judicial attitudes, judicial role.
Justices may be primarily seekers of legal policy (as the attitudinal adherents claim) or they may be motivated by jurisprudential principles (as approaches grounded in law suggest), but they are not unconstrained actors who make decisions based solely on their own idealogical attitudes or jurisprudential desires. Rather, justices are strategic actors who realize that their ability to achieve their goals—whatever those goals might be—depends on a consideration of the preferences of other relevant actors (such as their colleagues and members of other political institutions), the choice they expect others to make, and the institutional context in which they act.
Takes account of political pressures that come from outside the Court. We consider three sources of such influence: public opinion, partisan politics, and interest groups.
Barron v. Baltimore (1833)
Barron owned a dock, city construction added sand, water became too shallow, Barron sued for damages and didn't get enough to satisfy him. Fifth Amendment: private property can't be taken without compensation. Ruled against the petitioner: "We are of the opinion that the provision in the 5th amendment to the Constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states."
Mississippi polluted by butchers, butchers forced to move and not happy about it. Rendered privileges and immunities clause essentially useless, made clear that the SCOTUS would not use the 14th amendment to nationalize the Bill of Rights.
Hurtado v. California (1884)
Hurtado's wife cheated on him with his friend, blah blah they fight, charged with assault/battery and while trial is pending, Hurtado shoots him. California has no Grand Jury requirement, charged, convicted, sentenced to die. Argues he was denied right to a GJ. Looks to due process clause of the 14th Amendment. That inclusive interpretation of the 14th Amendment is rejected, with one dissent.
Chicago, Burlington, and Quincy Railroad v. Chicago (1897)
Chicago expanding, needed property owned by RR, didn't pay them fairly and they were pissed, SCOTUS rules that 5th Amendment property seizure rules apply to the states.
Palko v. Connecticut (1937)
Robbed a store, killed two cops. Judge threw out his confession, convicted on 2nd degree murder instead of first, appealed to court of errors, confession back in, new trial, convicted, sentenced to death. WAIT DOUBLE JEOPARDY (5th Amendment). But SCOTUS upheld the decision and double jeopardy is not a fundamental right.
Duncan v. Louisiana (1968)
Duncan (black) saw his cousin hanging with some white kids, pulled over to get him, white kid said he hit him. Police called, but let him go, but then they arrest him later for "cruelty to juveniles." Parents call foul on racist cop and call a lawyer. Duncan is refused a jury trial and gets 60 days plus a $150 fine. SCOTUS overturns conviction and states serious crimes have a right to a jury (6th Amendment).
Schenck v. U.S. (1919)
Schenck was a commie who urged people to resist the draft, violated Espionage Act, Court establishes "clear and present danger" test: will the issue bring about "substantive evils that Congress has a right to prevent." Must look at consequences of words and context in which they were uttered. But conviction was upheld.
Abrams v. U.S. (1919)
Violated Espionage Act, Russians, criticized Wilson's decision to send troops, and called for general strike. Sentenced to 15-20 years in jail. Steps away from clear and present danger rule and upholds conviction (with Holmes dissenting using the rule). "Bad tendency test" used instead: "Do the words have a tendency to bring about evil consequences?" rather than simply do they.
Gitlow v. New York (1925)
Gitlow was a Commie who wrote calling for overthrow of capitalist system of America, violated criminal anarchy law, arrested. Upheld his conviction, but still incorporated free speech and press clauses as being "fundamental personal rights," and therefore protected by 14th Amendment. Uses bad tendency test. Great deference should be given to state legislatures to determine what dangers warrant regulation. Holmes dissents.
United States v. Carolene Products (1938)
Law prohibited interstate shipment of milk mixed with oil or fat, upheld because economic issue, introduced Footnote Four: doctrine of "preferred freedoms," SCOTUS presumes that most laws are constitutional and challenger has to undermine that. BUT that shifts if the law in question abridges individual rights or liberties, and clearly seems to violate the BoR, then the government must show that the law is narrowly tailored to a "compelling government interest." Court has more willingness to get involved in civil liberties disputed, and has an essential responsibility to defend those rights (esp. freedom of expression). Special role of the court for protecting rights of minorities and unpopular groups.
Dennis v. U.S. (1951)
Leaders of communist party arrested for advocating to overthrow the government by force and violence, sentenced to 5 years in jail and $10,000 fine. Their conviction is upheld as they presented a clear and present danger in wanting to overthrow the government. Some dissent about just tossing out free speech and that the danger wasn't clear and present enough. "Clear and probable danger clause" established.
Brandenburg v. Ohio (1969)
Leader of the KKK, reporters go to rally, the crazies burn a cross and he makes an ominous statement about "some revengeance" possibly being taken if Congress and the President don't start being more pro-white. Violated law against spreading unpatriotic views (crime, sabotage, violence, etc.). Court overrules and states that laws can't step on the 1st amendment, even if speech is advocating for force or law violation, unless it is producing imminent lawless action or inciting such action.
Government Interests and Speech Regulation
Forms of expression outside 1st Amendment scope, violence, property damage, criminal speech, encroaching on the rights of others, burdens of government functions, trespass, time place and manner restrictions. RESTRAINTS: Appropriate purpose, prior restraint, content and viewpoint discrimination, overbreadth, vagueness, chilling effect
U.S. v. O'Brien (1968)
Publically and illegally burned draft cards; federal court said it was protected free speech. SCOTUS rules that government has a reasonable interest in ensuring people follow the draft and burning draft cards impedes that speech; the law is narrow enough. Actions that express an idea may be more easily regulated even under the 1st Amendment.
Texas v. Johnson (1989)
Protest at Republican convention in Dallas, grab a flag, burn it and say a mean chant, arrested and sentenced to 1 year in jail and $2000 fine. Fed. Court overturns. SCOTUS rules that the state interest in protecting the flag is not enough to stop his expression, conduct did not threaten the peace. Created an uproar, some called for Constitutional Amendment.
Chaplinsky v. New Hampshire (1942)
Jehovah's Witness was handing out pamphlets and saying stuff, people got pissed, he was attacked after police told him to stop, police drag him away and he shouts at them, charged with saying offensive things to people on the street. Conviction is affirmed. "Fighting words" mentioned: words "which by their very utterance inflict injury or tend to incite an immediate breach of peace."
Cohen v. California (1971)
Cohen walks around with a jacket that says "F**k the Draft" in an LA court house and people were not happy. Charged with maliciously disturbing the peace with offensive conduct. SCOTUS reverses the conviction because displaying a bad word isn't enough to be criminally charged. Mass demostrations are more likely to be regulated, because the danger for an outbreak of violence is greater.
R.A.V. v. St. Paul (1992)
Some teens made a cross and burned it in the backyard of a black family. Violated the Bias-Motivated Crime Ordinance (should have used arson or trespassing). SCOTUS reversed the decision under the idea that the cross-burning could have been stopped without prosecuting free speech. Can't single out a particular kind of hate speech, can't discriminate on the basis of content, unconstitutionally vague and over broad.
Snyder v. Phelps (2011)
Westboro Baptist Church protests the funeral of a Marine. His father argued emotional damage and distress, WBC argued free speech. Convicted and awarded damages, but overturned by 4th circuit. SCOTUS upholds reversal, stating even hurtful speech deserves protection.
Roth v. United States (1957)
Roth violated federal obscenity laws, obscenity calculated by affect on minds of people who see it and look at piece as a whole. Sentenced to 5 years and $5,000 fine. SCOTUC affirms the case. Roth test: obscenity defined as sexual stuff; to the average person, applying contemporary community standards, the dominate theme of the piece appeals to the prurient interest. Contemp. Community to show that determining obscenity is hard: pushing it to juries to decide...but then, what community do you mean?
Miller v. California (1973)
Miller had mass mail campaign to sell his books, explicit sexual material, people complained, he was arrested. Court affirms decision. Miller test: still has adult standard, work taken as a whole, and restriction of sexually orientated materials, but now gives the states the ability to define what is obscene (local values) and that a work doesn't have to be "utterly without redeeming social value," but has to have serious literary, artistic, political, or scientific value. Permitted greater regulation.
New York v. Ferber (1982)
Law against child porn, man caught selling movie of child porn, argues law is too broad and unconstitutional. Court rules against child pornography unanimously because hello, of course.
Brown v. Entertainment Merchants Association (2011)
Law in California prohibited sale of violent video games to minors. SCOTUS rules that the law is too broad and the state interest isn't sufficient, and overturns the law.
Bates v. State Bar of Arizona (1977)
Two lawyers want to open a moderately priced firm, firm is barely scraping by, deicide to run an ad in the paper, even though the state bar expressly prohibited such behavior, found guilty and 1 week suspension from legal practice. SCOTUS part affirms and reverses. Advertising can be restricted, but in the case of the attorney, it violated free speech because it was all true and not illegal. No blanket prohibitions.
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (1980)
There was an electricity shortage, state ordered no ads promoting electricity usage, 3 years later after shortage ease considered keeping the ban, Central not happy, ban extended anyway, challenged. SCOTUS says the law is too broad, and could achieve state interest with more limited statutes. Created Central Hudson Test:
1. Commercial speech must contain lawful activity and can't be misleading to be protected
2. Government interest has to be substantial for it to be able to regulate commercial speech
3. The regulation must directly advance that government interest
4. The regulation can't be more extensive than necessary to serve that interest
Citizens United v. Federal Election Commission (2010)
Citizens Untied released movie on Hilary, depicted her as unfit to be president, argued parts of FEC laws against using general treasury funds for political stuff was unconstitutional. SCOTUS strikes down some corporate restrictions in campaign finance. Still restricted donations to candidates, but not on spending money on independent political advertising.
Tinker v. Des Moines (1969)
High school students wore black armbands to school to protest the Vietnam war. Administration found out and said any students who wore them would be suspended. ACLU picked it up saying that the armbands were symbolic speech. SCOTUS overruled, saying the school had no way to know that any violence or disruption would occur. The students simply wore bands and did not interfere with school work at all.
Morse v. Frederick (2007)
Olympic torch passed through Juneau, Alaska, someone held up a "Bong Hits 4 Jesus" sign, caught on camera in front of the school. Students were suspended. SCOTUS upheld because student was seen to be promoting illegal drug use, but seen as a very narrow exception to Tinker's decision of students having free speech rights
West Virginia State Board of Education v. Barnette (1943)
Schools had to teach classes on American government and foster patriotism, required salute of the flag and Pledge of Allegiance, students who didn't do so were expelled, and that happened to a Jehovah's Witness kid. SCOTUS affirmed the ruling and denied the WVa laws because they invaded the sphere of intellect and spirit which is the purpose of the 1st Amendment. Idea that people have the right to be free of government coercion to express views he or she disavows.
Rumsfeld v. Forum for Academic and Institutional Rights (2006)
A law stated that colleges had to allow access to military recruiters, and if they didn't, they could lose certain federal funds. Protests around the military's policy of dismissing gay people sparked, some law schools who were against discrimination denied military recruiters access. SCOTUS said that no, 1st Amendment isn't being violated and there's no problem with making colleges treat military recruiters like any other recruiters, it was just an incidental infringement on speech. SCOTUS often respects the needs of the military and conditions on fund appropriations.
Near v. Minnesota (1931)
Law against "malicious, scandalous, and defamatory newspaper, magazine, or other periodical," wanted a restraining order against Saturday Press, wrote a piece accusing the state of corruption and siding with Jew mobsters. stopped from selling copies of the paper, writer sued. SCOTUS overturns as infringement of freedom of the press. There can be no prior censorship, except in extreme cases: protection of national security, regulation of obscenity, and the prohibition of expression that would incite acts of violence.
NY Times v. United States (1971)
NY Times and Washington Post published articles based on government documents (the Pentagon Papers), government tries to stop them saying it does irreparable injury to the nation's national security, but papers said it was largely historical information. SCOTUS rules with the papers, saying the idea of security is too vague, guarding military secrets at the expense of an informed public is no true democracy. Essentially eradicated the national security exception to prior restraint. Said direct, immediate, irreparable harm to the nation is necessary.
NY Times v. Sullivan (1964)
NYT published ad to publicize struggle for civil rights, police commissioner in Montgomery took offense because it suggested police had engaged in wrong doing when suppressing civil rights demonstrations. Had some minor factual errors. He was awarded $500,000 in damages. SCOTUS reversed decision because the man was never specifically mentioned, could not reasonably be read as putting personal responsibility on him. 1st Amendment protects seditious libel, the government may not criminally punish individuals who speak out against government, in a true or false manner. Absolute and unconditional right to criticize government officials. Had to prove "actual malice": negligence standard isn't enough for public officials.
Hustler Magazine v. Falwell (1988)
Hustler makes joke ad about a Protestant minister, Falwell, mimics "first time" drinking ad, discusses a drunken incestous encounter with his mother in an outhouse, small print said parody not to be taken seriously. He's not happy. Sued for libel, invasion of privacy and emotional distress; awarded $150,000. SCOTUS overturns because there was no reasonable expectation to consider the ad fact, Falwell is a public figure, reenforced NY Times and the idea of needing to prove actual malice.
Griswold v. Connecticut (1965)
Director of Planned Parenthood in CT opened a birth control clinic, against the law, arrested for giving birth control to a married couple, argued violation of substantive due process. SCOTUS strikes down, "repulsive to the notions of privacy surrounding the marriage relationship." Created constitutional right to privacy, deemed fundamental, strict constitutional scrutiny to laws restricting privacy, must be "necessary and narrowly tailored to serve a compelling government interest," penumbras formed by emanations from amendments 1, 3, 4, 5, & 9; other judges stressed the 9th, while others used due process.
Roe v. Wade (1973)
A woman said she was raped, wanted an abortion, doctor refused because illegal unless to save the life of the mother. Struck down the restrictive abortion laws. Life only mentioned postnatally in the Constitution.
* Used the due process clause of the 14th amendment: government can't take away life, liberty, or property without due process; there's a certain process that needs to be in place to take those things away (trial, etc.); court decided that privacy existed
* Certain rights and liberties that are so fundamental, that no matter what process, they can't be taken away (substantive due process).
* Is this legislating from the bench?: Well there was the trimester system...no restriction in first trimester, reasonable restrictions permitted in the second trimester, more harsh restrictions in the third trimester. Tried to form a compromise in the decision: certainly didn't say abortion on demand everywhere, but states can't just regulate abortion however they please.
Planned Parenthood v. Casey (1992)
landmark case, Pennsylvania had very restrictive abortion laws (reporting, 24 hour wait, parental/spousal consent, etc.). Upheld the essential holdings of Roe v. Wade. Stare deicisis (let the decision stand). Trimester system ruled as unworkable and not an essential holding. Undue burden test (pg. 427): can't put undue burden on a woman so that it's too hard to get an abortion, "substantial obstacle." Yeah, that's much more clear than the trimester system. Sure. Applied the test to PA's laws: husband notification law failed the test. Abortion is still legal, but states are a lot more free to put restrictions on that right.
Hill v. Colorado (2000)
Allowed an 8ft floating buffer around women entering abortion clinic. SCOTUS argued this didn't violate 1st amendment and that the state had a compelling interest to protect its citizens. Time, place, manner restriction, not content-based; narrowly-tailored; protestors can still be heard.
McCullen v. Caokley (2014)
Law put 35-foot buffer zone around abortion clinics in MA. SCOTUS ruled as violation of free speech. Burdened speech more than necessary, failed to show less intrusive methods had been attempted. Some view-point bias against pro-life people.
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