AP - Civil Liberties
Civil Liberties – Freedoms that are guaranteed to the individual but is given by
explaining what government cannot do.
- It works much like the powers denied to Congress.
- Civil liberties say what government cannot do like “Congress shall make no
law… abridging free speech.”
Civil Rights – Powers and privileges that are guaranteed to the individual and
protected against arbitrary removal at the hands of the government or other
individuals.
- These are rights given to citizens by the government.
- An example would be the Civil Rights Act of 1964, which established the right to
public facilities without racial discrimination.
The Civil Rights Act of 1964 - was a landmark legislation in the United States that
outlawed discrimination based on race, color, religion, sex, or national origin: in
voting, employment, and public services, such as transportation. Originally conceived
to protect the rights of African Americans, the bill was amended prior to passage to
protect the civil rights of everyone, and explicitly included women for the first time.
Literacy Test which is tests to show you can you can read or write in order to vote.
These tests were outlawed by the Civil Rights Act of 1964.
 Formalized the case Brown v Board of Education 1954.
 Like the Brown case, the law used the Commerce Clause and the Equal
Protection Clause of the 14th Amendment in defense of its jurisdiction.
 The Equal Rights Amendment 1979 was a proposed amendment to the United
States Constitution that was intended to guarantee equal rights under the law for
Americans regardless of sex. The ERA did not pass because 15 states would
not ratify it.
Freedom of Religion
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof;”
Establishment Clause – Prohibits laws establishment of religion.
Free Exercise Clause – Prevents government from interfering with the exercise
religion.
Religion in American Society
1. America is the most religious developed nation in the world
2. Over 70% of Americans identify themselves with a particular faith.
3. Over 40% of Americans attend church once a week.
4. Over 80% believe in the existence of God.
In 1802, Jefferson in written correspondence coined the
phrase “Wall of Separation.” This wall exists between the
government and religious institution.
This became known as Separation of Church and State.
Lemon V Kurtzman 1971
The Court struck down a state program that would have helped pay the salaries of teachers hired by
parochial schools to give instruction in secular subjects.
As part of the majority opinions, justices will many times establish a test that will serve as a way to
measure all future cases on the topic.
Lemon Test – The Lemon Test determined the constitutionality of government programs under the
establishment clause. There are 3 Parts of the test.
1. They must have a secular purpose (non-religious).
2. Their primary effect must not be to advance or inhibit religion.
3. They must not entangle the government excessively with religion.
Agostini v Felton 1997
Question - Can public school teachers teach non-religious remedial subjects at a Non-Secular
(religious) school.
Answer – Yes. By a 5-4 vote the court, using the Lemon Test said that religion was neither advanced
or was hindered by the teachers.
Lynch V Donnelly 1984
\
The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's
shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a
banner reading "Seasons Greetings," and a nativity scene. The crèche had been included in the
display for over 40 years. Daniel Donnelly objected to the display and took action against Dennis
Lynch, the Mayor of Pawtucket.
Question Presented
Did the inclusion of a nativity scene in the city's display violate the Establishment Clause of the
First Amendment?
Conclusion
In a 5-4 Vote Justice Berger said that it did serve a Non-religious purpose (national Holiday and that
religion only remotely benefited from the exhibition.
Justice O’Conner wrote the "plastic reindeer rule"
(according to which a religious display is made
acceptable so long as there are enough secular
symbols to go along with it and create balance).
Justice O’Conner wrote a concurring opinion. A
concurring opinion is an opinion that sides with
the majority but for different reasons than the
majority opinion which is the ruling of the court.
Concurring opinions are not legally binding.
Religious Free Exercise
Sherbert v. Verner 1963
Supreme Court upheld an individuals right to collect unemployment for refusing to work on the
Sabbath. This case ruled in favor of Free Exercise of Religious beliefs.
Sherbert Test
For the individual, the court must determine
1. whether the person has a claim involving a sincere religious belief, and
2. whether the government action is a substantial burden on the person’s ability to act on that
belief.
If these two elements are established, then the government must prove
1.
2.
that it is acting in furtherance of a "compelling interest” . This is known as strict
scrutiny. It establishes a high threshold meaning that government needs to show or
justify why they are singling a group out.
that it has pursued that interest in the manner least restrictive, or least burdensome,
to religion.
Oregon Employment Division v. Smith 1990
Two Native Americans who worked as counselors for a private
drug rehabilitation organization, ingested peyote -- a powerful
hallucinogen -- as part of their religious ceremonies as members
of the Native American Church. As a result of this conduct, the
rehabilitation organization fired the counselors. The counselors
filed a claim for unemployment compensation. The government
denied them benefits because the reason for their dismissal was
considered work-related "misconduct." Does the state law
violate the Free Exercise Clause of the First Amendment? No!
Reynolds v United States 1879
George Reynolds was a member of The Church of Jesus Christ of Latter-day
Saints, charged with polygamy after marrying Amelia Jane Schofield while
still married to Mary Ann Tuddenham in the Utah Territory. He argued that
his Free Exercise Religious Rights had been violated. The Court said no.
In 1993 President Clinton signed
The Religious Freedom and
Restoration Act into law. It said that
the government must show strict
scrutiny before limiting a person
free exercise clause. The law reestablished the Sherbert Test. It
was ruled unconstitutional in the
City of Boerne v. Flores 1997 by the
Supreme Court. The Supreme
Court ruled the law unconstitutional
on the grounds of separation of
power. Only the Supreme Court can
rule strict scrutiny.
Justice Earl Warren was Chief Justice
of the Supreme Court from 1953 –
1969. He played a big role in the
expansion of civil liberties, freedom of
expression, and the right to privacy.
Justice Warren ruled on Gideon v
Wainwright, Brown v Board of
Education, Miranda v Arizona, and
Engel v Vitale. Justice Earl Warren
was appointed by President
Eisenhower who was disappointed by
the Warren Court and later said that
he was the biggest mistake he made
in his presidency.
Establishment Clause
School Prayer – The Supreme Court has constantly equated prayer in public schools
with government support of religion. The court has been consistently supportive of
the wall between public schools and religion.
Engel v Vitale 1962
A Hyde Park family
who were the
plaintiff’s in the
Engel V Vitale Case.
"Almighty
God, we
acknowledge our
dependence upon
Thee, and beg Thy
blessings upon us,
our teachers, and
our country."
History - The Board of Regents for the State of New York
authorized a short, voluntary prayer for recitation at the start of
each school day. This was an attempt to defuse the politically
potent issue by taking it out of the hands of local communities.
The blandest of invocations read as follows:
Question - Does the reading of a nondenominational prayer at
the start of the school day violate the "establishment of
religion" clause of the First Amendment?
Answer - Yes. In a 6-1 Vote, the Supreme Court said neither the prayer's
nondenominational character nor its voluntary character saves it from
unconstitutionality.
Wallace v Jaffree 1985
Question - Can a public school district sponsor a moment of meditation as passed by
the Alabama State Legislature? Does this violate the 1st Amendment’s Establishment
Clause. This is also an example of the 14th Amendment in practice.
Answer – Yes. The Court held that Alabama’s passage of the prayer and meditation
statute was not only a deviation from the state’s duty to maintain absolute neutrality
toward religion, but was an affirmative endorsement of religion.
Congressional law has been a bit, more friendly towards the break down of the wall.
Equal Access Act of 1984 – This act forbids any school district to deny a religious
organization to use it facilities outside school hours. If the Solon quilting Team are
allowed to use the school, so should the 7th Day Adventists, Methodist, Lutherans,
Catholics, and Satanists.
“Congress Shall make no Law abridging the freedom of speech,
or the freedom of the press.”
These 2 Concepts have come to be known as the Freedom of Expression Clause.
Cases Against Free Speech
Schenck v US 1919
Question - During World War I, Schenck mailed circulars to draftees. The circulars
suggested that the draft was a monstrous wrong motivated by the capitalist system.
The circulars urged "Do not submit to intimidation" but advised only peaceful action
such as petitioning to repeal the Conscription Act. Schenck was charged with
conspiracy to violate the Espionage Act by attempting to cause insubordination in the
military and to obstruct recruitment. Are Schenck's actions (words, expression)
protected by the free speech clause of the First Amendment?
Answer – Nope. Clear and Present Danger Test!
Holmes was also an accomplished Poet.
OLD IRONSIDES
Ay, tear her tattered ensign down!
Long has it waved on high,
And many an eye has danced to see
That banner in the sky;
Beneath it rung the battle shout,
And burst the cannon's roar; -The meteor of the ocean air
Shall sweep the clouds no more.
Her deck, once red with heroes' blood,
Where knelt the vanquished foe,
When winds were hurrying o'er the flood,
And waves were white below,
No more shall feel the victor's tread,
Or know the conquered knee; -The harpies of the shore shall pluck
The eagle of the sea!
Clear and Present
Danger Test No.
Because Oliver Wendell
Holmes liken his actions
to yelling fire in a
crowded theater. Charles
Schenck caused a Clear
and Present Danger.
Translated his words
posed an immediate
threat to the country.
Abrams v United States 1919
Question - The defendants were convicted on the basis of two leaflets they printed
and threw from windows of a building. One leaflet signed "revolutionists" denounced
the sending of American troops to Russia. The second leaflet, written in Yiddish,
denounced the war and US efforts to impede the Russian Revolution. The defendants
were charged and convicted for inciting resistance to the war effort and for urging
curtailment of production of essential war material. They were sentenced to 20 years
in prison. Do the amendments to the Espionage Act or the application of those
amendments in this case violate the free speech clause of the First Amendment?
Answer - No and no. The act's amendments are constitutional and the defendants'
convictions are affirmed.
This time Holmes in a dissenting opinion used his
own Clear and present Danger Test and found that
Abrams did not violate the test.
Cases Against Free Speech
Gitlow v New York 1925
Question - Gitlow, a socialist, was arrested for distributing copies of a "left-wing
manifesto" that called for the establishment of socialism through strikes and class
action of any form. Gitlow was convicted under a state criminal anarchy law, which
punished advocating the overthrow of the government by force. Does the New York
law punishing the advocacy of overthrowing the government an unconstitutional
violation of the free speech clause of the First Amendment?
Answer - Threshold issue: Does the First Amendment apply to the states? Yes, by
virtue of the liberty protected by due process that no state shall deny (14th
Amendment Incorporation Clause). On the merits, a state may forbid both speech and
publication if they have a tendency to result in action dangerous to public security,
even though such utterances create no clear and present danger.
The Importance of the Gitlow Case is that it was the first time the 14th Amendment was
used to INCORPORATE the bill of rights to the states. Also students should
remember the concept of selective incorporation. It is done piece meal or not all at
once and it is done selectively which means not all the bill of rights were
incorporated.
Get Low! Get Low! Get Low!
Get Low!
Chaplinsky v New Hampshire 1941
Question - Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned
racketeer" and "a damned fascist" in a public place. He was arrested and convicted
under a state law for violating a breach of the peace. Does the application of the
statute violate Chaplinsky's freedom of speech protected by the First Amendment?
Answer - No. Some forms of expression--among them obscenity and fighting words-do not convey ideas and thus are not subject to First Amendment protection. In this
case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite
an immediate breach of the peace."
Cases For Free Speech
Brandenburg v Ohio 1969
Question - Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally
and was later convicted under an Ohio criminal syndicalism law. The law made illegal
advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means
of accomplishing industrial or political reform," as well as assembling "with any
society, group, or assemblage of persons formed to teach or advocate the doctrines
of criminal syndicalism." Did Ohio's criminal syndicalism law, prohibiting public
speech that advocates various illegal activities, violate Brandenburg's right to free
speech as protected by the First and Fourteenth Amendments?
Answer – Yes. The Court's Per Curiam opinion held that the Ohio law violated
Brandenburg's right to free speech. A Per Curiam opinions are brief unsigned
opinions that are generally unanimous.
Tinker v Des Moines 1969
Question- John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and
Christopher Echardt, 16 years old, decided along with their parents to protest the
Vietnam War by wearing black armbands to their Des Moines schools during the
Christmas holiday season. Upon learning of their intentions, and fearing that the
armbands would provoke disturbances, the principals of Des Moins' school districts
resolved that all students wearing armbands be asked to remove them or face
suspension. When the Tinker siblings and Christopher wore their armbands to school,
they were asked to remove them. When they refused, they were suspended until after
New Year's Day. Does a prohibition against the wearing of armbands in public school,
as a form of symbolic protest, violate the First Amendment's freedom of speech
protections?
Answer – Yes. The wearing of armbands was "closely akin to 'pure speech'" and
protected by the First Amendment. School environments imply limitations on free
expression, but here the principals lacked justification for imposing any such limits.
The principals had failed to show that the forbidden conduct would substantially
interfere with appropriate school discipline.
Cases For Free Speech
Cohen v California 1971
Question - A 19-year-old department store worker expressed his opposition to the Vietnam War by
wearing a jacket emblazoned with "F*** THE DRAFT. STOP THE WAR" The young man, Paul Cohen,
was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace
and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and
sentenced to 30 days in jail. Did California's statute, prohibiting the display of offensive messages
such as "F*** the Draft," violate freedom of expression as protected by the First Amendment?
Answer - Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive,
while provocative, was not directed toward anyone; besides, there was no evidence that people in
substantial numbers would be provoked into some kind of physical action by the words on his
jacket. Harlan recognized that "one man's vulgarity is another's lyric."
Texas v Johnson 1989
Flag Burning is a great example of substantive democracy over the majoritarian / procedural
democracy. Dozens of surveys since 1989 (latest done in 2002) have consistently shown that 75-80
percent of the American people support a constitutional amendment to protect the flag.
Question – In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as
a means of protest against Reagan administration policies. Johnson was tried and convicted under a
Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000
fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the
Supreme Court. Is the desecration of an American flag, by burning or otherwise, a form of speech
that is protected under the First Amendment?
Answer – In a 5-to-4 decision, the Court held that Johnson’s burning of a flag was protected
expression under the First Amendment. Congress responded by the Flag Protection Act of 1989 –
Making it a crime to burn the flag a felony offense.
United States v. O'Brien 1968
O'Brien burned his Selective Service
registration certificate before a sizable
Eichman was convicted of
crowd in order to influence others to adopt
violation of the Flag
his antiwar beliefs. He was indicted, tried,
Protection Act of 1989.
and convicted for violating US Law. He lost
his case. What makes his case different
from the flag burning case?
United States v. Eichman 1990
Question - In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an
American flag or any likeness of an American flag which may be "commonly displayed." Eichman
set a flag ablaze on the steps of the U.S. Capitol while protesting the government's domestic and
foreign policy. Did the Act violate freedom of expression protected by the First Amendment?
Answer - In a 5-to-4 decision, coming on the heels of a similar holding in Texas v. Johnson (1989),
the Court struck down the law because "its asserted interest is related to the suppression of free
expression and concerned with the content of such expression."
“Government “shall make no law…abridging the freedom…of the press.”
Libel – Written defamation of character / written lies
Slander – Oral defamation of character / spoken lies
A person who believes his or her name and character have been harmed by false
statements in a publication can institute a lawsuit against the publication and seek
monetary compensation for damages.
New York Times v Sullivan 1964
Question - Decided together with Abernathy v. Sullivan, this case concerns a full-page
ad in the New York Times, which alleged that the arrest of the Rev. Martin Luther King,
Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate
public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city
commissioner, filed a libel action against the newspaper and four black ministers who
were listed as endorsers of the ad, claiming that the allegations against the
Montgomery police defamed him personally. Under Alabama law, Sullivan did not
have to prove that he had been harmed; and a defense claiming that the ad was
truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000
judgment. Did Alabama's libel law, by not requiring Sullivan to prove that an
advertisement personally harmed him and dismissing the same as untruthful due to
factual errors, unconstitutionally infringe on the First Amendment's freedom of
speech and freedom of press protections?
Answer - The Court held that the First Amendment protects the publication of all
statements, even false ones, about the conduct of public officials except when
statements are made with actual malice (with knowledge that they are false or in
reckless disregard of their truth or falsity). Under this new standard, Sullivan's case
collapsed. The malice test was established.
Why do
certain
tabloids get
sued in libel
suits but not
others? One
might cause
malice while
the other
might not.
Malice
Actress Cameron Diaz
sued The National Enquirer
for more than $10 million,
alleging the celebrity tabloid
libeled her in a story that
claimed she cheated on her
former boyfriend Justin
Timberlake by kissing
another man.
Pentagon Paper – New York Times v United States 1971
June 13, 1971, Whistleblower, Daniel Ellsberg working
again at Rand, managed to procure, photocopy, and
return a large number of classified papers regarding the
execution of the war. These documents later became
collectively known as the Pentagon Papers. The
ducuments revealled that many within the Pentagon
believed the Vietnam War unwinnable and have known it
to be true for sometime.
Question - In what became known as the "Pentagon Papers Case," the Nixon
Administration attempted to prevent the New York Times and Washington Post from
publishing materials belonging to a classified Defense Department study regarding
the history of United States activities in Vietnam. The President argued that prior
restraint was necessary to protect national security. This case was decided together
with United States v. Washington Post Co. Did the Nixon administration's efforts to
prevent the publication of what it termed "classified information" violate the First
Amendment?
Answer - Yes. In its 6-3 per curiam opinion which is a ruling handed down by a court
with multiple judges in which the decision was made by the court acting as a whole,
as opposed to statements made by individual judges. The literal meaning of this legal
term is "by the court". The Court held that the government did not overcome the
"heavy presumption against" prior restraint of the press in this case. Justices Black
and Douglas argued that the vague word "security" should not be used "to abrogate
the fundamental law embodied in the First Amendment." Justice Brennan reasoned
that since publication would not cause an inevitable, direct, and immediate event
imperiling the safety of American forces, prior restraint was unjustified.
Prior Restraint – Prior restraint is a legal term referring to a government's actions that
prevent materials from being published.
Both Kissinger and Nixon
fought to keep the papers
out of the press.
Privacy – An implicit idea that comes from the 1st Amendment, 3rd Amendment, 4th
Amendment, and the 9th Amendment.
Amendment 14 – 1865 (Possibly one of the most argued Amendments in the Federal
Courts.) Made Freed slaves Citizens
Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of 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 (INCORPORATION CLAUSE – made states
obey some of the bill of rights. Some call this selective incorporation because the
Federal courts make states obey free speech but does not make them enforce the 2nd
Amendment); nor shall any State deprive any person of life, liberty, or property,
without due process of law (DUE PROCESS CLAUSE); nor deny to any person within
its jurisdiction the equal protection of the laws (THE EQUAL PROTECTION CLUASE).
Mapp Vs. Ohio 1961
Only in America!
Don King.
Exclusionary Rule – Evidence obtained illegally can be used in court against you.
Good Faith Exception – Allows defendants convictions to stand if the police officers
mistake does not cause the defendant to be guilty. Stated in 1984: United States v.
Leon and Massachusetts v. Sheppard.
Griswold v Connecticutt 1965
Questions - Griswold was the Executive Director of the Planned Parenthood League of
Connecticut. Both she and the Medical Director for the League gave information,
instruction, and other medical advice to married couples concerning birth control.
Griswold and her colleague were convicted under a Connecticut law, which
criminalized the provision of counseling, and other medical treatment, to married
persons for purposes of preventing conception. 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?
Answer – Yes. Though the Constitution does not explicitly protect a general right to
privacy, the various guarantees within the Bill of Rights create penumbras, or zones,
that establish a right to privacy. Together, the First, Third, Fourth, and Ninth
Amendments, create a new constitutional right, the right to privacy in marital
relations. The Connecticut statute conflicts with the exercise of this right and is
therefore null and void.
Privacy – is an implicit idea that comes from the 1st, 3rd, 4th, and the 9th Amendments.
Norma McCorvey originally
claimed that she was raped.
This would allow her to
obtain a legal abortion
under Texas law. Ms.
McCorvey today is
staunchly pro-life.
In his dissenting opinion, Justice
Rehnquist claimed that there was no
“Constitutional Compass” to uphold
abortion rights. He ascribed to the
strict constructionist philosophy
that says the Constitution should
have a literal interpretation.
Roe v Wade 1973
Question - Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law
prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court
heard arguments twice. Does the Constitution embrace a woman's right to terminate her pregnancy
by abortion?
Answer – Yes. The Court held that a woman's right to an abortion fell within the right to privacy
(recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave
a woman total autonomy over the pregnancy during the first trimester and defined different levels of
state interest for the second and third trimesters. This is the abortion test. As a result of this test, the
laws of 46 states were affected by the Court's ruling.
Planned Parenthood v. Casey 1992
Question - The Pennsylvania legislature amended its abortion control law in 1988 and 1989.
Among the new provisions, the law required informed consent and a 24 hour waiting period
prior to the procedure. A minor seeking an 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. A federal appeals court upheld all the
provisions except for the husband notification requirement. Can a state require women who
want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental
consent, without violating their right to abortions as guaranteed by Roe v. Wade?
Answer - In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the
Pennsylvania provisions. For the first time, the justices imposed a new standard to determine
the validity of laws restricting abortions. The new standard 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 standard, the only provision to fail the undue-burden test was the husband
notification requirement. This established the undue burden test.
Bowers v Hardwick 1986
Question - Michael Hardwick was observed by a Georgia police officer while engaging in the act of
consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with
violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in
Federal District Court. Does the Constitution confer a fundamental right upon homosexuals to engage in
consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?
Conclusion
Answer - No. The divided Court found that there was no constitutional protection for acts of sodomy, and
that states could outlaw those practices.
Clinton signed in 1996 the Defense of Marriage Act which encourages marriage between a man and a
woman. Bowers v Hardwick was later overturned by Lawrence and Garner v. Texas 2003
Obscenity v Art
Justice Brennan
“…whether the average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to the
prurient interests” Prurient is defined by having a tendency to incite
lustful thoughts.
Miller v California 1973
Question - Miller, after conducting a mass mailing campaign to advertise the sale of
"adult" material, was convicted of violating a California statute prohibiting the
distribution of obscene material. Some unwilling recipients of Miller's brochures
complained to the police, initiating the legal proceedings. Is the sale and distribution
of obscene materials by mail protected under the First Amendment's freedom of
speech guarantee?
Answer - In a 5-to-4 decision, the Court held that obscene materials did not enjoy First
Amendment protection.
Miller Test
1. The work, taken as a whole, appeals to prurient interests.
2. The work portrays sexual conduct in a patently offensive way.
3. The work lacks any literary, artistic, political, or scientific value.
Potter Stewart on Obscenity
“I shall not today attempt further to define the
kinds of material … but I know it when I see it.”
Reno v ACLU 1997
Question - Several litigants challenged the constitutionality of two provisions in the
1996 Communications Decency Act. Intended to protect minors from unsuitable
internet material, the Act criminalized the intentional transmission of "obscene or
indecent" messages as well as the transmission of information which depicts or
describes "sexual or excretory activities or organs" in a manner deemed "offensive"
by community standards. After being enjoined by a District Court from enforcing the
above provisions, except for the one concerning obscenity and its inherent protection
against child pornography, Attorney General Janet Reno appealed directly to the
Supreme Court as provided for by the Act's special review provisions.
Answer - Yes. The Court held that the Act violated the First Amendment because its
regulations amounted to a content-based blanket restriction of free speech.
University of California v Bakke 1978
Question - Allan Bakke, a thirty-five-year-old white man, had twice applied for
admission to the University of California Medical School at Davis. He was rejected
both times. The school reserved sixteen places in each entering class of one hundred
for "qualified" minorities, as part of the university's affirmative action program, in an
effort to redress longstanding, unfair minority exclusions from the medical
profession. Bakke's qualifications (college GPA and test scores) exceeded those of
any of the minority students admitted in the two years Bakke's applications were
rejected. Did the University of California violate the Fourteenth Amendment's equal
protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action
policy that resulted in the repeated rejection of Bakke's application for admission to
its medical school?
Answer - No and yes. There was no single majority opinion. Four of the justices
contended that any racial quota system supported by government violated the Civil
Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote
ordering the medical school to admit Bakke. However, in his opinion, Powell argued
that the rigid use of racial quotas as employed at the school violated the equal
protection clause of the Fourteenth Amendment. The remaining four justices held that
the use of race as a criterion in admissions decisions in higher education was
constitutionally permissible. Powell joined that opinion as well, contending that the
use of race was permissible as one of several admission criteria. So, the Court
managed to minimize white opposition to the goal of equality (by finding for Bakke)
while extending gains for racial minorities through affirmative action.
Although racial quotas are now illegal,
affirmative action remains a legal form of
assuring racial diversity in the work place and
in academic institutions.
Palko v Connecticut 1937
Question - Frank Palko had been charged with first-degree murder. He was convicted
instead of second-degree murder and sentenced to life imprisonment. The state of
Connecticut appealed and won a new trial; this time the court found Palko guilty of
first-degree murder and sentenced him to death. Does Palko's second conviction
violate the protection against double jeopardy guaranteed by the Fifth Amendment
because this protection applies to the states by virtue of the Fourteenth Amendment's
due process clause?
Answer - The Supreme Court upheld Palko's second conviction. In his majority
opinion, Cardozo formulated principles that were to direct the Court's actions for the
next three decades. He noted that some Bill of Rights guarantees--such as freedom of
thought and speech--are fundamental and that the Fourteenth Amendment's due
process clause absorbed these fundamental rights and applied them to the states.
Protection against double jeopardy was not a fundamental right. Palko died in
Connecticut's gas chamber in April 1938.
THE CASES YOU NEED TO KNOW FOR THE AP TEST
CIVIL LIBERTIES / CIVIL RIGHTS CASES
1. New York Times v US 1971 – no prior restraint the government failed to show national security was jeopardized / Pentagon Papers
2. Schenck v US 1919 – established the clear and present danger test
3. Gitlow v New York 1925 – incorporated free speech to the states
4. Brandenburg v Ohio 1969 – free speech upheld as long as it does not create an imminent threat
5. Miller v California 1973 – obscenity is not protected by free speech / Miller test
6. US v O’Brien 1968 – outlawed burning of draft cards because they are needed for governmental operations / government property
7. Texas v Johnson 1989– protected flag burning as free speech
8. US v Eichman 1990 - protected flag burning as free speech / overturned the Flag Protection Act of 1989
9. Hazelwood Schools v Kuhlmeir 1988 – school papers do not enjoy free press rights due to order and safety
10. Reynolds v US 1898– polygamy is not protected by the free exercise clause because it violates law
11. Employment Division of Oregon v Smith 1990 – drug use is not protected by the free exercise clause because it violates law
12. Engel v Vitale 1962 – school sponsored prayer violates the establishment clause of the first amendment
13. Wallace v Jaffree 1985 – school-sponsored moments of silence violates the establishment clause of the first amendment
14. Epperson v Arkansas 1968 – struck down a law forbidding the teaching of evolution because it violates free speech / estab. clause
15. Wisconsin v Yoder 1972 – Amish exception from high school because of the free exercise clause
16. Tinker v Des Moines 1969 – allowed black arm bands of protest in school as free expression
17. Wolf v Colorado 1949 – incorporated search and seizure rights into the states
18. Mapp v Ohio 1961 – incorporated the exclusionary rules into the states
19. Gideon v Wainwright 1963 – right to a counsel or court appointed attorney if you cannot afford one
20. Escobedo v Illinois 1964 – right to have lawyer during police questioning
21. Miranda v Arizona 1966 – Miranda test says that police must inform you of your rights including the right to remain silent
22. Plessy v Ferguson 1896 – established the Separate but Equal Test and recognized Jim Crow Laws
23. Brown v Board of Education 1954 – struck down the Separate but Equal Test
24. Rotsker v Goldberg 1981 – upheld the Military Selective Service Act that prevented women from being drafted
25. Griswold v Connecticut 1965 – struck down a law forbidding birth control and established the right to privacy for the first time
26. Roe v Wade 1973 – said that abortions could not be limited by the states in the 1 st trimester based on the right to privacy / 14th Am
27. Planned Parenthood v Casey 1992 – said abortions can be limited as long as it does not create an undue burden for the woman
28. Boys Scouts of America v Dale 2000 – said that Boys Scout could forbid gay scout leaders
29. Furman v Georgia 1974 – outlawed the death penalty because it was cruel and unusual on how it was handed out
30. Gregg v Georgia 1976 – reestablished the death penalty and turned the power to the states / overturned Furman v Georgia
31. Regents of the U. of California v Bakke 1978 – struck down racial quotas as affirmative action policies
32. Korematsu v US 1944 – upheld FDR’s executive order to intern Japanese Americans based on national security
33. Abrams v United States 1919 – upheld the espionage act and the clear and present danger test
34. Reno v ACLU 1997 – ruled the 1996 Communications Decency Act unconstitutional because it violates free speech
35. Near v Minnesota 1931 – incorporate free press right into the state and outlawed prior restraint of the states
36. Village of Skokie v National Socialist Party 1978 – freedom of assembly rights cannot be abridge because of the message
37. Loving v Virginia 1967 – a state law denying inter-racial marriage is unconstitutional because it violates the equal protection clause
38. Bowers v Hardwick 1986 – upheld states rights to have anti-sodomy laws / sodomy is not protected by the Constitution
39. Lawrence v Texas 2003 – struck down sodomy laws ruling them unconstitutional based on the equal protection clause
40. Lynch v Donnley 1984 – upheld a crèche exhibit as long as it had secular objects on grounds of National holiday
41. Agostini v Felton 1997 – said that public school teachers can teach secular subjects at religious schools
42. Sherbert v Verner 1963 – strict scrutiny which means that government must have a good reason for singling out religious group
43. Lemon v Kurtzman 1971 – said that government must be excessively entangled in religion
44. City of Boerne v. Flores 1997 – ruled the RFRA unconstitutional and said that only the courts can establish strict scrutiny
45. Cohen v California 1971 – defended profanity as free speech
46. Chaplinsky v New Hampshire 1941 – established the fighting words doctrine which is word intended to induce violence
47. New York Times v Sullivan 1964 – established the malice test which says that damage must result from slander or libel
48. Dred Scott v Sandford 1857 – upheld slavery, the fugitive slave law, and states rights
49. Palko v Connecticut 1937 – the court failed to incorporate double jeopardy / great example of selective incorporation
50. Powell v Alabama 1932 – Scottsboro Boys / incorporated court appointed attorneys for capital murder cases
51. Slaughter House Cases 1873 – example of the courts not incorporating the bill of rights into the states
OTHER CASES YOU NEED TO KNOW
1. Baker v Carr 1962 – established one person one vote test and outlawed malapportionment
2. Bush v Gore 2000 – ordered the manual recount to end based on equal protection clause
3. US v Lopez 1995 – struck down Congress’s gun free zones because Congress used the commerce clause as its defense
4. Marbury v Madison 1803 – established Supreme Court’s judicial review over the executive and legislative branch
5. McCulloch v Maryland 1819 – MD could not tax the Bank of the US based on necessary and proper and the supremacy clause
6. Buckley v Valeo 1976 – said that financial contributions are protected by free speech but can be limited
7. Gibbons v Ogden 1824 – Congress had the power to regulate interstate trade because of the Commerce Clause
8. Clinton v Jones 1997 – denied Clinton right to executive privilege
9. US v Nixon 1974 – denied Nixon’s plea of executive privilege
10. INS v Chadna 1985 – ruled the legislative veto unconstitutional on the grounds of separation of powers
11. Clinton v the City of New York 1998 – ruled line item veto unconstitutional on the grounds of separation of powers