AP Government & Politics – Civil Rights & Civil Liberties: Class Notes
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Tommy Hicks
AP Gov – 2nd period
Government’s Purpose
1. Promote general welfare
2. Secure blessings of liberty
Fundamental Principles
- Limited government
- Separation of powers
- Checks + balances
- Enumerated powers
- Reserved powers
- Bill of Rights
Federalism
- National government – general welfare
- Local government – protect individual rights
What is incorporation?
- The legal concept under which the Supreme Court has nationalized the Bill of Rights by making
most of its provisions applicable to the states through the Fourteenth Amendment.
What is Selective Incorporation?
- A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made
applicable to the states via the Fourteenth Amendment
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13 , 14th, and 15th Civil War amendments > privileges and immunities
o Natural citizenship
o Due process
o Equal protection of law
o Federal government enforced against actions of states
(1833) Barron v. Baltimore
o No incorporation
o Limit on Federalism > United States Bill of Rights couldn’t be applied to state governments
(1925) Gitlow v. New York > “yeah” to incorporation
o Set limits on 1st amendment rights
(1937) Palko v. Connecticut
o Steals record player; kills 2 police officers
o Charged with 1st degree murder
o Charged with 2nd degree murder
o Connecticut retrial over 1st degree murder
o Sentenced to death
o Appeals that Connecticut law is violation of double jeopardy (5th amendment)
 Benjamin Cardoza
- **some rights are of the essence of ordered liberty
Limits on unalienable rights
Freedom of Speech > gets most protection > “most fundamental”
o Must exist to have fundamental principles
o Pure speech – talking > most protection
o Speech plus [action]
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- Limits on individual rights > when they interfere with common welfare
(1968) United States v. O’Brien
o Burning draft cards for Vietnam War > free speech
o Ample other ways to express it
o No purpose to law prohibiting burning cards
(1971) Cohen v. California
o “F” the Draft
o “one man’s vulgarity is another man’s lyric”
(1969) Tinker v. Des Moines Independent Community School District
o Armbands for freedom of speech
o Punishing because students defied leadership > wore them anyway
o Tinkers win > students don’t lose all rights at school
(1989) Texas v. Johnson
o Burns flag in 1984 Republican national convention
o Johnson wins
o Inspire terror, hurt people, fire hazard > threat to common welfare
(1919) Schenck v. United States
o Publishes/send criticisms concerning World War 1 draft
o Interferes with Sedition Act
o Clear and present danger
o Espionage Act violated 1st amendment
(1951) Dennis v. United States
o Upholds limits on anti-American sayings
(1969) Brandenburg v. Ohio
o Limited clear and present danger test
o Ku Klux Klan wants to have a rally > requests a permit
o The permit is denied
o Could march unless it creates imminent lawless action
 Defamation (libel + slander) > not protected
(1988) Falwell v. Hustler Magazine
o Hustler magazine publishes obscene things about Falwell
o Falwell sues > for libel, invasion of privacy, and intentional infliction of emotional distress
o Falwell wins at first BUT Hustler Magazine wins on the basis that nobody would believe the
parody anyway > too obscene > Freedom of Speech/Press
(1733) Zeager
o Write negative editorials
 William Cosby = governor
o King appointed governors; locals pay them
o Zeager sues for a higher salary
o Cosby accuses Zeager > Zeager waits for trial
o *Zeager > cornerstone of free speech
(1804) People v. Croswell
o Writes anti-democratic republic editorials
 A. Hamilton = lawyer
o Conviction against Croswell stands > law re-written to protect the truth
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(1964) New York Times v. Sullivan
o Sullivan sues NY Times (wrote false thing about him)
o Protected unless you know it’s not true
o Defamatory speech is protected unless knowing its false > known malice
(1988) Hustler Magazine v. Falwell
o Falwell = evangelist
o Article suggests that first time Falwell had sex was with his mother in an outhouse
o Magazine argues that the article is so outrageous that nobody would believe it
o Hustler wins > less protection for public figures
(1942) Chaplin v. New Hampshire
o Calls Marshall a Fascist
o Profane language does not contribute to the common good in any way (not even
meaningful profane language)
o Chaplinsky was convicted under a State statute for calling a City Marshal a “God damned
racketeer” and a “damned fascist” in a public place.
o “Fighting words” are not entitled to protection under the First Amendment of the United
States Constitution (Constitution)
(1973) Miller v. United States
o Laps test > protected if it has literary, artistic, scientific, or political value
o Petitioner could not lawfully be arrested in his home by officers breaking in without first
giving him notice of their authority and purpose, the arrest was unlawful, the evidence
seized was inadmissible, and the conviction is reversed.
What are the boundaries of our freedom of expression?
- When our freedoms infringe on other peoples’ freedom
- When our freedoms violate common welfare
Limits on free expression:
- “clear and present danger” (Schenck)
- Obscenity
- Inspires imminent lawless action
o Fighting words
- Defamation > slander, libel
o Malice = reckless disregard for truth
- Violates individual rights or due process
- Public safety
(1971) New York Times v. United States
o Pentagon Papers acquired by NY Times
o Exposed opinion of executive opinion of Vietnam war > thought U.S. couldn’t win war
o Charged under Espionage Act of 1917
 William Douglas > 1st amendment prohibits government suppression of
embarrassing information
(1966) Maxwell v. Sheppard
o Publicity of his murder denied him a fair trial
o Can government limit freedom of press in order to guarantee a free trial?
o Verdict was revoked due to extraneous publicity of murder
 1st amendment vs. 6th amendment
o **Gag order – when court is ordered not to release information
 (1997) Reno v. ACLU
o Communication Decency Act - attempt to protect minors from explicit material on the Internet
by criminalizing the knowing transmission of "obscene or indecent" messages to any recipient
under 18
o Certain parts of the CDA are unconstitutional/unenforceable, except for cases of obscenity or
child pornography, because they abridge the freedom of speech protected by the 1st
Amendment and are substantially overbroad. The Internet is entitled to the full protection
given to media like the print press; the special factors justifying government regulation of
broadcast media do not apply.
 (1966) Freedom of Information Act
o Sunshine Laws
o Gives access to information from government that isn’t otherwise classified
o Stanford students use this to determine how they were accepted
 (1937) De Jonge v. Oregon
o Threat to common welfare – prevented assembly
o Require permit
o De Jonge arrested for speaking at Communist rally by Oregon police
o Oregon law violated due process clause
o De Jonge didn’t create a danger by speaking
 (1941) Cops v. New Hampshire
o Jehovah’s witnesses > protest war
o Requirement of advanced notice for assembly violates freedom of assembly
o Upholds permit requirement
 “Provides for public order and safety”
 (1966) Adderley v. Florida
o Death penalty demonstration in jail property
o Private property protests > not allowed/greater protection than public property
 (1988) Frisbee v. Schultz
o Protests abortion doctor > baby killer
o Can’t assemble on private property
 (1978) Collins v. Smith
o Skokie Illinois > Nazis march through Jewish neighborhood
 Have to pay $300,000 bond
 Police/barricades/cleanup for parade
o Bond requirement is unconstitutional to freedom of expression
o Verdict: limits must be applied and equal to all
 (1950) Feiner v. New York
o Sidewalk speaker incites angry reaction > arrested for refusing to stop
o Maintaining public order
Opposite
o Speech can be constitutionally limited based upon the reaction to it, given a content-neutral
standard of enforcement.
 (1969) Gregory v. New York
o Protestors arrested for not disbanding
o Supreme Court upholds protestors > public property assembly
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(1947) Everson v. Board of Education
o State provided buses for private Catholic school
o Violation of establishment clause of 1st amendment?
o Thomas Jefferson: “builds a wall between church + state”
o Verdict: cannot pass laws to make a church, aid one religion, aid all religions, or prefer one
religion over another
o Buses benefited the students – not the religion
o Tax dollars are ok to use on buses
(1971) Lemon v. Kurtzman
o Lemon Test:
 Must have secular purposes
 Main effect can neither advance nor inhibit religion
 Avoid excessive government entanglement with religion
o Applied to testing programs
o SCOTUS support for ………..
o When government tests were sent to religious schools, there was an issue regarding
establishment clause
 Upheld that tests are ok in religious schools
(1962) Engel v. Vitale
o No part of government to create/regulate prayer
o Violates establishment clause
o Defense: prayer is optional; prayer is vaguely worded
(1963) Abington School District v. Schempp
o School sponsored bible readings are unconstitutional
(1985) Wallace v Jaffree
o Voluntary prayer is unconstitutional in schools
 “prayer”
o Based on age of attendees > adults distinguish views and aren’t affected by it
(1984) Lynch v. Donnelly
o The city of Pawtucket's nativity scene does not violate the Establishment Clause
o Not an effort to advocate a particular religious message and had "legitimate secular
purposes."
(1990) Westside Community v. Mergens
o Religious clubs must be open to all students
o No singular religion
(1995) Rosenberger v. University of Virginia
o Can’t violate establishment clause by giving money
o Free exercise/freedom of expression > give $
o Can’t use student activity fee for religious clubs
o Free expression > stronger than establishment clause
(2004) Locke v. Davey
o Court upheld the constitutionality of a Washington publicly funded scholarship program
which excluded students pursuing a "degree in theology."
(1975) Erznoznik v. Jacksonville
o Movie theaters – not allowed to show nudity in public movies
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 1st amendment freedom of expression - Up to the owner of the movie theater
o Court ruled that the ordinance was invalid on its face because the ordinance discriminated
among movies solely on the basis of nudity, but not all offensive content so it could not be
justified.
o Florida Law – if candidate is attacked, equal time for candidate defense
(1879) Reynolds v. United States
o Bigamy vs. polygamy
o Member of Mormon church
 Commanded to have multiple wives
o Free exercise clause
(1905) Jacobson v. Massachusetts
o Vaccination law > some think they cause Autism…..
o In order to attend public school, must be vaccinated
(1940) Gabitis v. Minersville
o Jehovah’s witnesses don’t salute to anything except God
o Requiring pledge to flag violates religion
o First Amendment does not require States to excuse public school students from saluting the
American flag and reciting the Pledge of Allegiance on religious grounds. Third Circuit
reversed. > PLEDGES REQUIRED
(1943) West Virginia State Board of Education v. Barnette
o The Free Speech clause of the First Amendment prohibits public schools from forcing
students to salute the American flag and say the Pledge of Allegiance > PLEDGES NOT
REQUIRED
 Patriotism should not be compulsory
(1963) Sherbert v. Verner
o state may not constitutionally apply the eligibility provisions of its unemployment
compensation scheme so as to constrain a worker to abandon her religious convictions
respecting the day of rest
(1972) Wisconsin v. Yoder
o Mandatory school for kids > compulsory law
o Amish claim it interferes with religion
o Right to freedom of religion triumphs state interest in education
(1990) Oregon v. Smith
o Permits state to prohibit peyote (free exercise)
o Weird that government can decide what religious beliefs are valid
o Can’t get unemployment > due to misconduct
 >states can accommodate illegal acts but aren’t required
Civil Liberties
o Protections
o Boundaries
 Expression (1st amendment)
 Obrien Test
 Lemon Test
14th amendment
 Reasonable
 Balancing Test
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Due process – the process that is due – guaranteed process of individual rights
 Substitive (4th, 5th, 6th, 8th due process amendments) > law as its written must
protect due process > everyone automatically guilty without trial
 Procedural > process of applying protections
o Writs of assistance – origins of 4th amendment
 General warrants for soldiers
 Right of privacy outweighs common welfare
4th Amendment – Privacy
(1984) U.S. v. Leon
- Relying on evidence from deficient warrant > can’t be used
(1984) Nix v. Williams
- Good faith expanded to inevitable discovery
(1988) California v. Greenwood
- Once trash is on street > no expectation of privacy
Wiretapping – have to have a warrant
Public pay phone – police can bug them
Cell phone – no privacy
Drug sniffing dog – plain smell
Aerial searches – are allowed
(2009) Herring v. U.S.
- Police conduct must be sufficiently deliberate in order to trigger exclusionary rule
o To punish police for violating rights
- Evidence obtained after illegal searches or arrests based on simple police mistakes that are not the
result of repeated patterns or flagrant misconduct cannot have the exclusionary rule used to
suppress evidence. Convictions upheld.
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5 Amendment – Time of Arrest
- Right to grand jury > jury that’s grand
- Presentations of evidence without arguments
o Decide whether there should be a trial; issue indictments
- Protection against double jeopardy > can’t be tried twice for same crime (that’s related to same
fact scenario/action)
- Anything that goes against what you said during trial > perjury > no penalty otherwise > murder
case > not guilty > confess later > eh whatever…
(1996) Ursery v. U.S.
- Suspected of growing Pot
- Seizes his house because he was growing pot > gets convicted; government sells his house
- Says he is being tried for double jeopardy > he is in jail + his house was sold
o Nowhere else to go
- >>>Court wins > can in fact seize + sell your house/property
- Eminent domain – government can expropriate (buy) private property for public use with payment
of compensation
o Is land being seized for common welfare?
o How much compensation? Market value or value worth to owner?
- Protection against self-incrimination
o part of Virginia Declaration of Rights
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(1966) Miranda v. Arizona
- 5th amendment privilege against self-incrimination require law enforcement officials to advise a
suspect interrogated in custody of his rights to remain silent + to obtain attorney
(1936) – compelled testimony has been excluded
o Some things – you can’t refuse to testify against
o Can’t refuse to report a hit + run accident
o Can’t refuse to give fingerprints + writing sample > DNA
- Innocent until proven guilty > due process
- Residents say too drunk to take breathalyzer test
(1991) Arizona v. Fulminante
- Harmless error rule is application to the admission of coerced/voluntary confessions – violations of
this are grounds for a new trial
(2010) Berghuis v. Thompkins
- Court ruled that defendants must invoke the 5th amendment
- Entrapment – undercover cop (could offer cop)
(1992) Jacobson v. U.S.
- Orders gay porn; receives child porn instead > doesn’t order any more after that
- Police confront him – make offers of child porn to him
- Harassed by company to order more child porn > he does > gets arrested
- Can’t get someone to try + buy child porn
6th Amendment – Speedy Public Trial
- Speedy trial act (1974) – 70 days from time of indictment
(1972) Barker v. Wingo
- Established test for possible 6th amendment violations
o Look for reason for delay
- Must prove that delay had/would have negative impact
- Must be done on a case-by-case basis
(1966) Sheppard v. Maxwell
- Sheppard did not receive a fair trial due to media interference.
(1986) Press Enterprises Co. v. Superior Court
- Impartial jury > process of choosing jury must be impartial
- Controversy over public trial
- Right to a counsel
(1964) Escobedo v. Illinois
- Where a police investigation begins to focus on a particular suspect who has been refused counsel,
his statements to police are excluded
- Denied chance to see his lawyer > only confessed after 14 hour interrogation
(1963) Gideon v. Wainwright
- Misdemeanor > or felony
- Right to be represented by attorney at any level of crime
- Right to counsel of your choice
o “effective assistance”
(1984) Strickland v. Washington
- Defendant must show that counsel’s performance fell below an objective standard of
reasonableness and that the proceeding could have been different
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8th Amendment – Bail, Fines, Cruel and Unusual Punishment
- Death penalty
(1972) Furman v. Georgia
- Death penalty violates 8th and 14th amendments
o Application was ruled as “freakish and inconsistent”
 Racist application
- Georgia rewrote law in 1976
(1976) Gregg v. Georgia
- Uphold constitutionality of death penalty – not cruel and unusual punishment
(1976) Woodson v. North Carolina
- Mandatory death penalty = violation of 8th amendment
(1991) Harmelin v. Michigan
- Exceeded threshold of Cocaine
- Severity alone – not cruel and unusual
(2002) Ring v. Arizona
- Cruel and unusual must be determined by jury
o Right to choose how to die
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2 Amendment – well-regulated militia (volunteer army)
(1939) U.S. v. Miller
- Court rules against National Firearms Act
- Miller is transporting guns across state lines
o “I have a right to do so”
- Court ruled against him; government can regulate/rule against weapons that don’t promote
regulation of militia
- Government has right to regulate ownership of guns
(2008) D.C. v. Heller
- City ordinance that bans gun ownership
- 2nd amendment – protects person’s right to bear arms
- Court: “pre-exists Constitution” > unalienable right
o Right to property and self defense
(2010) McDonald v. Chicago
- Incorporates 2nd amendment to states
9th Amendment – Unenumerated Rights
o Protections of 4th amendment – privacy
(1965) Griswold v. Connecticut
- Charged with violating birth control
o “How do you know I’m using birth control?”
- Supreme court agrees > right to privacy
(1973) Roe v. Wade
- Abortion > ruled private; women has right to make decision
Equal protection clause – used to protect against:
o De jure discrimination
o De facto discrimination