CIVIL LIBERTIESWhat some examples? Write below:

History of Limitations

Sedition Act 1798- made it a crime to write, publish, or utter “false, scandalous, or malicious material” about the government.

Espionage and Sedition Act 1917- advocate treason or incite resistance. Schenck v. US. ->clear and present danger test and “fire in a theatre” example.

Smith Act 1940, Internal Security Act 1950, Communist Control Act in 1954. Senator Joseph McCarthy.

Executive Order 9066- Japanese Internment-Korematsu v. U.S. 1944- citizens can be detained in emergencies.

Extension of Civil Liberties

Incorporation- 6.07b. Barron v. Baltimore 1833- Bill of Rights

do not restrict the states. Gitlow v. New York- 14th Amendment Due process clause: “no state shall…

deprive any person of life, liberty, or property, without due process of the laws.”

The First Amendment

What does it protect?

What is protected?

Hateful speech? Unpopular speech? Dangerous speech? Malicious/false speech? Speech in schools?

Freedom of Speech

Protections-Gitlow v. New York Unpopular speech-

Brandenburg v. Ohio and the KKK – threats must be proven to result in lawlessness.

Snyder v. Phelps- protests at funerals Symbolic

Texas v. Johnson: flag burning (also unpopular) Tinker v. Des Moines 1969: arms

bands/freedom of speech in schools

Freedom of Speech

Limits Clear and present danger test (Schenck v.

US) “Fighting words” Chaplinsky v. N.H. Libel and slander: must be proven false and

malicious. Obscenity: can be regulated by the state.

Difficult to define. Stewart: “I know it when I see it”.

Definition of Obscenity

Miller v. CA (Miller Test) Nudity not obscene Must have political, literary, or artistic

merit. Judged by the average community

standards as obscene (child pornography)

Content depicted in an offensive way.

Symbolic Speech

Less expectation of protection. Not protected: Burning draft card. Protected: Burning American flag. What’s the difference?

Who has freedom of speech? Corporations Businesses Organizations (more limits than non commercial

speech) Students

Students have free speech- Tinker Less speech in school- Hazelwood High

Newspaper

Freedom of the Press

Near V. Minnesota (1931)- Near established that states prevention of publication is in violation of 1st Amendment. Incorporates freedom of press and denies prior restraint.

New York Times v. US (1971)- Pentagon Papers, the court rejected the government’s prior restraint.

Hazelwood school v. Kuhlmeier- school officials have the authority to prevent publication in school newspapers.

Freedom of Religion

“separation of church and state” is not clear.

Free exercise clause- Congress shall make no law prohibiting the “free exercise” of religion.

Establishment clause- Congress shall make no law “respecting and establishment of religion.”

Free Exercise Clause

Freedom of Religion allows for practices if they do not harm others, but it is not always clear cut.

Protected: animal sacrifice, conscientious objection, no license fee for religious solicitation (Jehovah Witnesses)

Not protected: polygamy, drug use (Employment Division v. Smith, soliciting donations (Hare Krishnas)

Establishment Clause

Supreme court ruling support “wall of separation” between church and state which supports Jefferson’s views. (Everson v. Board of Education 1947)

Not protected

School sponsored prayer (Engle v. Vitale) Minister/rabbi leading prayer (Lee v. Wiesman) Student leading prayer at school assembly/game

(Santé Fe Independent School District v. Doe) Prohibition of teaching evolution in schools.

(Epperson v. Arkansas) Taking time away from school for religious

activities. Nativity scene in local park 10 commandments in Kentucky courthouse.

Protected

Government aid and tax incentives to religious organizations.

Vouchers for students to go to public and private schools (Zelman v. Simmons-Harris)

Menorah and Christmas tree outside public area.

10 commandments in Kentucky courthouse. Prayer in Congress “in God we trust” on money Champlain in armed services

Lemon Test

Lemon v. Kurtzman Money given to religious schools Does the law have a secular, rather than

religious, purpose? Does the law neither promote nor

discourage religion? Does the law avoid “excessive

entanglement” of the government and religious institutions?

Protections of the Accused

Double jeopardy Right to counsel- Gideon v. Wainwright Speedy trial Impartial jury Unreasonable search and seizures- Mapp

v. Ohio Excessive bail Cruel and Unusual punishment Self incrimination- Miranda v. Arizona

The Exclusionary Rule

4th Amendment: search and seizure 5th Amendment: self incrimination 1961 Mapp v. Ohio-Incorporates 4th Am., establishes

Exclusionary Rule. Legal search

Warrant issued by a judge with probable cause. Arrest Good faith exception US v. Leon Inevitable discovery rule- evidence that would have been

found legally is allowed. Confessions

Involuntary confessions excluded from trial Miranda rights

Death penalty

8 Amendment- “cruel and unusual punishment”- some restrictions, but upheld as constitutional.

Furman v. GA (1972)- Court looked at the death penalty in the US and found that it is often racist and arbitrary. Halted death penalty.

Gregg v. GA (1976)- convinced the court that it had a fair system for trying capital offenses. Resumed penalty.

Terrorism and Civil Liberties

Patriot Act- (court order) tap any telephone of suspect, internet taps, voicemail taps, grand jury information released, non citizens can be held for 7 days, money laundering investigations, no statue of limitations.

Executive Order by Bush- suspected terrorists can be tried in military court *can be secret.

Wiretappings without approval revealed in 2005

Rasul v. Bush/Hamdi v. Rumsfeld- Terrorist a detainees have access to neutral court.

How to discuss a court case… Don’t spend too much time on the

background of the case. The decision is what is important. Marbury v. Madison- establishes judicial

review.

FRQ Practice

Ever since the formation of the Constitution in 1787, the federal government has attempted to balance the notions of Liberty v. Order.

A. Describe of the following provisions of the Constitution and, using a specific historical example explain how this provision has been used to enhance or diminish the balance between liberty and order. Due process clause as described in the 5th and 14th

Amendments. Freedom of expression clause of the 1st Amendment.

B. Explain a key provision of each of the following laws and related court decisions and explain how each of these laws and decisions has enhanced the federal government’s desire for order at the expense of liberty. Executive Order 9066 (1942)- Korematsu v. U.S. (1944) Espionage Act of 1917-Schenck v. United States (1919)

Kaplan

A- How many points?

Due process clause: Describe: Enhance or hinder: Historic example:

Freedom of expression: Describe: Enhance or hinder: Historic example:

Part A- 2 points

Due process clause: Describe:

The 5th Amendment: cannot be deprived of life liberty or property without due process of law.

14th Amendment:“no state shall…deprive any person of life, liberty, or property, without due process of the laws.” This is used to incorporate the Bill of Rights.

Enhance or hinder: Enhance Historic example: Mapp v. Ohio: extends 4th

Amendment to the states, exclusionary rule. Note: you should always use complete

sentences. This is an outline.

Part B- How many points?

Executive Order 9066 (1942)- Korematsu v. U.S. (1944) Explain provision: Explain how this is order at expense of

liberty:

Espionage Act of 1917- Schenck v. U.S. Explain provision: Explain how this is order at expense of

liberty:

Part B- 4 points

Executive Order 9066 (1942)- Korematsu v. U.S. (1944) Explain provision: detains Japanese on the W. Coast

following Pearl Harbor attack… Explain how this is order at expense of liberty:

citizens can be detained in emergency…

Espionage Act of 1917- Schenck v. U.S. Explain provision: 1917- prohibited speech advocating

treason or inciting resistance Explain how this is order at expense of liberty: speech

can be punished if it creates clear-and-present-danger