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civil liberties

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protection from improper government action restricts powers of government, not individuals (first federal, then states later)

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bill of rights

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amendments 1-10, ratified in 1791 anti-federalists fought for this, wanted a protection from an improper & abusive government action 1833- supreme court held that BOR restrains only the national government power, not the states

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how was the bill of rights extended to state governments?

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14th amendment (due process clause evolved into limits on state governments) led to the incorporation theory

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incorporation theory

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process of the supreme court applying BOR's "protections" to the state governments one by one through the 14th amendment's due process clause incorporation = the "absorption" or "nationalizing" of the BOR

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1st amendment

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freedom of religion (establishment cause and free exercise clause) and freedom of expression (symbolic speech, commercial speech, political speech, clear and present danger test, bad tendency rule)

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"freedom of religion"

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part of the first amendment we were found as a Christian nation and the "framers" did not want new government to meddle in religion instead, they wanted the BOR to show tolerance (religious diversity)

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establishment clause

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part of "freedom of religion" under 1st amendment prohibits establishment of a church that is officially supported by the national government, creates a "wall of separation" between church and state prevents 3 evils: 1. government sponsorship of religion 2. government financial support of religion 3. government involvement in religion (religion vs. no religion, or favoring)

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Lemon vs. Kurtzman

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3 prong test (lemon test); part of establishment clause direct state aid could not be used to subsidize religious instruction

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engel vs. vitale

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regent's prayer case; part of establishment clause its not unconstitutional to pray in school; its unconstitutional for public school officials to sponsor or encourage prayer

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issues relative to the establishment clause

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school vouchers for religious education, forbidding the teaching of evolution, prayer prohibited at school events (graduation, sports events), religious displays on public property (ten commandments) texas once ruled religious displays ok on public property as long as its among many

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free exercise clause

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part of "freedom of religion" under 1st amendment protects a person's right to hold any religious belief, or be a nonbeliever the right to hold any religious belief you choose is an absolute right. the right to practice whatever one wishes is not absolute ex. abercrombie and fitch headscarf lawsuit hobby lobby not providing birth control or plan B to employees because against owner's beliefs

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freedom of expression

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part of the first amendment the freedom to speak ones mind, to communicate views, to speak freely, to organize in groups, to question decisions of the government NOT ABSOLUTE

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prior restraint

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restraining an activity before it has actually occurred. when expression is involved, this means censorship.

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symbolic speech

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part of "freedom of expression" under 1st amendment flag burning, cross burning, etc. nonverbal communication texas vs. johnson

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commercial speech

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part of "freedom of expression" under 1st amendment speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character advertising statements still unprotected but can be regulated to prevent misleading claims

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the supreme court will consider a restriction on commercial speech valid as long as it

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1. seeks to implement a substantial government interest 2. directly advances that interest 3. goes no further than necessary to accomplish its objective

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political speech

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part of "freedom of expression" under 1st amendment Expressions which comment on government action rather than the private conduct of an individual. subversive or advocacy speech, language subversive to public order

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clear and present danger test

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Schenk vs US (1919) expression may be restricted if evidence exists that such expression would cause a dangerous condition, actual or imminent, that Congress has the power to prevent

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bad tendency rule

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gitlow vs us (1969) speech may be curtailed if there is a possibility that such expression might lead to some "evil"

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obscenity & pornography

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part of "freedom of expression" under 1st amendment obscenity: difficult to define, based on local standards "i know it when I see it" Left to be determined by "community standards" under prurient interest which means local and state authorities

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Internet pornography

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Pornography is not illegal for adults in their home Gov can't regulate this because 1. Speech 2. Can't define it 3. Can't find it in other places

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Children's internet protection act

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2000, requires public schools and libraries to install filtering software to prevent children from viewing web sites with "adult" content Child pornography is illegal to possess

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Are there any remaining restrictions?

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Yes, on radio and broadcast television Gov retains the right to place restriction on media it controls, like broadcast spectrums

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Defamation of character

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Wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements about others

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Slander

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The public uttering of a false statement that harms the good reputation of another. The statement must be made to, or within the hearing of, a person other than the defamed party

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Student speech

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Right to public school students, college student activity fees, campus speech and behavior codes

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Right to public school students

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High schools can impose restrictions on speech that would not be allowed in college or in general setting May censor publications such as newspapers and yearbooks produced by the schools students (extension of schools educational name and mission)

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College students activity fees

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Students argued that their mandatory student activity feed (which helped fund liberal causes they disagreed with) violated their 1st amendment right of free speech and free exercise of religion Court ruled in favor of university, it is entitled to impose a mandatory fee to sustain an open dialogue

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Campus speech and behavior codes

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Prohibit hate speech - abusive speech attacking persons on the basis of their ethnicity, race, or other criteria. How brother Jedd and Sister Cindy operate

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Right to assemble and petition the government

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Part of freedom of expression under the 1st amendment The right of people to peacefully assemble and petition the gov for a redress of grievances Time, place, and manner restrictions (you must have a permit from the city) to control traffic or prevent riots

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Freedom of the press

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Part of freedom of expression under the 1st amendment

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Libel

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Defamation in writing or in pictures, signs, films, or any other communication. Occurs only if the defamatory statements are observed by a third party.

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NY times vs Sullivan

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1964, explored an important question regarding libelous statements made about public officials. Regarded both actual malice and public figures

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Actual malice

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Either knowledge of a defamatory statement's falsity or a reckless disregard for the truth

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Public figures

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A public official or any other person, such as a movie star, known to the public because of his or her position or activities There's a more general interest, so therefore a greater burden of proof. Public figures have some access to a public medium for answering disparaging falsehoods about themselves, where private individuals do not.

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No prior restraint

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No censorship Gov can't censor (stop publication) before the fact. Applies to newspaper, movie, tv show, speeches Ex. The pentagon papers (NY times vs. US) Daniel Ellsberg took papers from pentagon and submitted them to the NY times. Nixon claimed it threatened national security if published but gov sided with freedom of press so they published it

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2nd amendment

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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 Where the right to bear arms controversy stems

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Right to bear arms controversy

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Gun control advocates (Brady bill) vs. opponents of gun control (NRA) Brady bill: background checks, waiting periods, overall requirements to get a gun NRA: pro-gun, anti-restrictions (pluralism Bc benefits gun and ammunition manufacturers) District of Columbia vs Heller (Georgia's new gun laws) made gun ownership restricted instead of ban due to bad crime rates

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Due Process Amendments

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Amendments 4,5,6,7 Due process: establishes legal procedures that preserve rights of individuals Basic rights of the accused (criminal defendants), limits on conduct of police officers and prosecutors, defendants pretrial rights & trial rights, restrictions on government NOT person

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4th amendment

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The right of the people to be secure in their persons, houses, papers, and effects. Unreasonable searches and seizures shall not be violated

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What does the 4th amendment do?

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1. Protects against arbitrary police intrusion (abuse) 2. Enforces the need of probable cause (probability person has/will commit a crime) and search warrants (magistrate court) 3. Warrantless searches 4. Exclusionary rule 5. Good faith exception (to exclusionary rule)

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Warrant less searches

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if person consent, plain view, crime committed, question of cop safety, or possibility of destruction of evidence

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Exclusionary rule

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Mapp vs Ohio Evidence obtained from illegal search can't be used against you in court BUT good faith exception (judge can decide if evidence can be used in court if cops acted in good faith and could have found it anyway)

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Curtilage

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Land immediately surrounding your house (shed, shack, etc) does NOT need a warrant

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Need warrant to search cell phones?

answer

YES! Phones considered just like homes and apartments, all nine justices agreed on it

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Fifth amendment

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This and before, PRE TRIAL Grand jury: determines sufficient evidence, not guilt (issues indictment) Double jeopardy: prevents two trials by the same gov for the same crime (reason why OJ can't be tried in Cali anymore) Self incrimination: right to remain silent (Miranda vs. Arizona, led to Miranda rights) Eminent domain: power of gov to take private property for public use, with fair payment

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Sixth amendment

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Here on, trial Rights of the defendants (the accusers in criminal proceedings Right to speedy and public trial, by an impartial jury Right to counsel Gideon vs wainwright case that requires states to provide attorneys in all felony cases, even the indigent

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8th amendment

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Bail: monetary guarantee that the individual will show up at a designated date for trial (prohibits excessive bails and fine) Death penalty/capital punishment: brief moratorium during 1972-1976 because many people came to believe that the imposition of the death penalty was random and arbitrary This moratorium allowed death penalty laws to be state based, states could remake their death penalty laws

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Which was the first state to use death penalty after moratorium?

answer

Utah, hung person

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What was most common method of death penalty until 2000?

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Electrocution and gas chambers

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2001

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Supreme Court banned electrocution for excruciating pain in favor for lethal injection (difficult to get this drug though)

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Stats

answer

Texas has HUGE number of executions under death penalty, not many on death row Cali opposite, few executions and many in death row

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What can't you get death penalty for

answer

Rape, mentally retarded, under 18, a child

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who penned the bill of rights?

answer

james madison, who knew that by writing some things down, it meant other rights would not be secured (knew some things would be left out) which is where 9th amendment comes in

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9th amendment

answer

"the catch all" rights retained by the people right to privacy: not mentioned in the constitution, but interpreted from 1st, 4th, 5th, 9th amendments in 1960 supports the idea that people have rights beyond those listed (enumerated) in the constitution privacy: the right to a private personal life free from governmental intrusion; "how much do we want the gov to regulate us? "the right to be left alone... is the most comprehensive of the rights and the most valued by civilized men"

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privacy issues

answer

reproductive rights (griswold vs. conneticut, roe vs. wade), right to die/death with dignity, physician-assisted suicide

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griswold vs. connecticut

answer

1965, Supreme Court overturned a Connecticut law that effectively prohibited the use of contraceptives, holding that the law violated the right to privacy Precedent for roe vs wade

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Roe vs Wade

answer

1973, ruling that a state ban on all abortions was unconstitutional. First trimester, abortion was an issue between doctor and patient. Second trimester, state allowed to specify the conditions under which an abortion could be performed. Final trimester, state could regulate or outlaw abortions 1989- a shift away from abortion rights for poor (court prohibited use of public funds or facilities for abortions unless woman life in danger 1992- court allowed state to put additional restrictions on abortion like 24 hr waiting period, counseling on alternatives, parents consent for minors

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Right to die/death with dignity

answer

The right of privacy includes the right of a patient to refuse treatment and that patients unable to speak can be withdrawn from treatment at the request of a family member only if there is "clear and convincing evidence" that the patient did not want such treatment

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Physician assisted suicide

answer

Supreme Court left the decision up to the states. Only 5 states allow it, Montana, New Mexico Oregon, Vermont, and Washington

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10th amendment

answer

States rights; powers that are NOT delegated to the national government are RESERVED to the states or the people

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USA Patriot Act

answer

Uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism Gave government broad new powers for wiretapping, surveillance, and investigation of terror suspects

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