POLS test2Section4

civil liberties
protection from improper government action

restricts powers of government, not individuals (first federal, then states later)

bill of rights
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

how was the bill of rights extended to state governments?
14th amendment (due process clause evolved into limits on state governments) led to the incorporation theory
incorporation theory
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

1st amendment
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)
“freedom of religion”
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)

establishment clause
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)

Lemon vs. Kurtzman
3 prong test (lemon test); part of establishment clause

direct state aid could not be used to subsidize religious instruction

engel vs. vitale
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

issues relative to the establishment clause
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

free exercise clause
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

freedom of expression
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


prior restraint
restraining an activity before it has actually occurred. when expression is involved, this means censorship.
symbolic speech
part of “freedom of expression” under 1st amendment

flag burning, cross burning, etc. nonverbal communication
texas vs. johnson

commercial speech
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

the supreme court will consider a restriction on commercial speech valid as long as it
1. seeks to implement a substantial government interest
2. directly advances that interest
3. goes no further than necessary to accomplish its objective
political speech
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

clear and present danger test
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

bad tendency rule
gitlow vs us (1969)

speech may be curtailed if there is a possibility that such expression might lead to some “evil”

obscenity & pornography
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

Internet pornography
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

Children’s internet protection act
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

Are there any remaining restrictions?
Yes, on radio and broadcast television

Gov retains the right to place restriction on media it controls, like broadcast spectrums

Defamation of character
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
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
Student speech
Right to public school students, college student activity fees, campus speech and behavior codes
Right to public school students
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)

College students activity fees
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

Campus speech and behavior codes
Prohibit hate speech – abusive speech attacking persons on the basis of their ethnicity, race, or other criteria.

How brother Jedd and Sister Cindy operate

Right to assemble and petition the government
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

Freedom of the press
Part of freedom of expression under the 1st amendment
Defamation in writing or in pictures, signs, films, or any other communication.

Occurs only if the defamatory statements are observed by a third party.

NY times vs Sullivan
1964, explored an important question regarding libelous statements made about public officials.

Regarded both actual malice and public figures

Actual malice
Either knowledge of a defamatory statement’s falsity or a reckless disregard for the truth
Public figures
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.

No prior restraint
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

2nd amendment
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

Right to bear arms controversy
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

Due Process Amendments
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

4th amendment
The right of the people to be secure in their persons, houses, papers, and effects. Unreasonable searches and seizures shall not be violated
What does the 4th amendment do?
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)
Warrant less searches
if person consent, plain view, crime committed, question of cop safety, or possibility of destruction of evidence
Exclusionary rule
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)

Land immediately surrounding your house (shed, shack, etc) does NOT need a warrant
Need warrant to search cell phones?
YES! Phones considered just like homes and apartments, all nine justices agreed on it
Fifth amendment
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

Sixth amendment
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

8th amendment
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

Which was the first state to use death penalty after moratorium?
Utah, hung person
What was most common method of death penalty until 2000?
Electrocution and gas chambers
Supreme Court banned electrocution for excruciating pain in favor for lethal injection (difficult to get this drug though)
Texas has HUGE number of executions under death penalty, not many on death row
Cali opposite, few executions and many in death row
What can’t you get death penalty for
Rape, mentally retarded, under 18, a child
who penned the bill of rights?
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
9th amendment
“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”

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

Roe vs Wade
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

Right to die/death with dignity
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
Physician assisted suicide
Supreme Court left the decision up to the states. Only 5 states allow it, Montana, New Mexico Oregon, Vermont, and Washington
10th amendment
States rights; powers that are NOT delegated to the national government are RESERVED to the states or the people
USA Patriot Act
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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