AP US Gov

10/9/2015
Steven Tsay
Chapter 4 Outline

Freedom of expression- not unlimited

Due process of law- legal protection- designed to ensure individual rights are
respected by government
Supreme court use of fourteenth amendment ot protect right exemplifies the
continue broadening of civil liberties in law
Individual rights are constantly being weighed against demands of society
and collective needs of society
I) Fourteenth amendment does not protect American from all searches, rather
unreasonable ones.
A) Challenging to meet policy that demands of security yet not infringe unduly
on personal freedom
II) Civil liberties-specific individual rights, such as freedom of speech, that are
constitutionally protected against infringement by government
A) Different from civil rights- which have to do with different groups should be
treated equally
B) Bill of rights based in 1781 first ten amendments specify certain rights of life,
liberty , and property federal government is obliged to protect
i) Rights: freedom of speech, press, assembly, and religion
(a) speech
(a) Can be denied if endangers national security, wrongly damages
reputation of others, or deprive others of basic rights
(i) Sedition act of 1798 Jefferson pardoned those charged, no ruling
during civil war
(ii) 1919 Scbenck v United states- upheld constitutionality of
Espionage Act
1. Clear and present danger test
(iii)1951 upheld laws to make it illegal to advocate overthrow of
government late 1950 red scare gone, changed its stance- thus
now national security must be endangered before government
can prohibit speaking out
(iv)
Brandenburg v Ohio 1969 KKK speech upheld
1. Two part test(imminent lawless action) 1) directed at inciting
or producing imminent lawless action, and 2) likely to
produce such action-refinement of clear and present danger
test
(b) Generally protect symbolic speech burning flag is lawful 1989
(c) Court allows public officials to regulate time, place ,and conditions
of public assembly provided the regulations are reasonable and
applied fairly to all groups
(b) Press

(a) New York Times Co. v. United States (1971) prior restraintgovernment prohibition of speech or publication before it occurs
wartime reporting exception
(c) Libel(published) or slander(spoken)- false information harmful to a
persons reputation
(a) Higher levels of proof for public officials than private
(b) New York Times v Sullivan- must meet proof of actual malice and
lowing yet recklessly or deliberately disregarding the truth
(d) Obscenity- hard to judge Miller v California 1973 must meet 3 part test
(a) 1)sexual conduct in patently offensive way 2)precisely described
in law as obscene 3) taken as a whole must appeal to prurient
interest and have no redeeming social value- standard should be
contemporary community standards- judged in the context of
reasonable person- evaluate overall merit rather than its most
objectionable feature
(i) Porn you watch in privacy is your business, but not child porn
thats a nono!
(e) Religion
(a) Establishment clause- government may not favor one religion over
another or support religion over no religion
(i) Engel v Vitale 1962 prevent recitation in public school
(ii) Displays in public building Van Orden v Perry rejected because
display have historical value but McCreary County v American
Civil Liberties Union 2005 tell McCreary to tear down display
because recent
(b) Accommodation Doctrine- aid religious activity if no preference is
shown and assistance is of secular nature- providing busing for
children attending religious schools
(i) Lemon v, Kurtzman 1971- salaries for religious school teacher
who teach secular subjects -failed test point 3
1. Lemon tests 1)secular legislative purpose 2) principle effect
neither advances or inhibits religion 3) must not foster
excessive government entanglement with religion
(ii) Zelman v Simmons-Harris tax exempt for students attending
religious schools for students in failing public school- they could
choose
(c) Free exercise clause- any religion you want, but cannot interfere
with law
(i) Employment Division v Smith 1990- upheld refusal for
unemployment benefit for fired for using peyote even because
of religion
ii) Right to bear arms(2nd amendment)
(a) District of Columbia v Heller 2008- posses firearm unconnect to service
of militia, self defense lawful
(b) McDonald v. Chicago 2010 extend ruling to state level
(c) Unclear definition by court
iii) Protection against unreasonable search and seizure (fourth amendment)
iv) Right to remain silent, cannot be tried twice for same crime if first is
declared innocent, cannot be deprived of life, liberty, or property without
proper legal proceedings (5th amendment)

v) Right to a jury trail, an attorney, and confront witnesses (6 th amendment)

vi) Protection against cruel and unseal punishment, excessive bail or fines (8 th
amendment)
vii) Interpretation by supreme court Barron v. Baltimore, originally upheld
applies only to federal and not state government, meaning protection
ineffective since stat administer police
viii) Fourteenth amendment forced ratified by south states stating no state
shall deprive any person of life, liberty, or property, without due process of
law
(a) Procedural due process- procedures authorities must follow before a
person can lawfully be punished for an offense
(b) Suspicion phase
(a) 14th amendment protects rights of person to be secure in their
houses, caught in act of crime can be arrested, suspected of a
crime needs warrant by judge
(i) Admissibility of evidence found in plain sight, warrantless search
for drunk driving, as long as systematic and not arbitrary is fine
1. Indianapolis v Edmund 2001 cannot have roadblocks to
search for drugs, not related to highway safety
a. Police may not use modern technology to scan the
house without warrant
(ii) Protects individuals in persons as well as in their homes and
vehicles Ferguson v Charleston 2001, cannot be forced to take
drug test in hospital if purpose is to report to police more leeway
if schools
(c) Arrest phase
(a) Cannot self-incriminate 5th amendment
(b) Miranda v Arizona 1966 police did not warn right to remain silent
and to have legal assistance- Miranda warning
(d) Trial Phase
(a) Johnson v Zerbst 1938 provide lawyers at government expense if
they cannot afford legal counsel Gideon v wainwright 1963 extend
to state felony
(b) Exclusionary rule weeks v United states- cannot use evidence
unlawfully obtained united states v Leon 1984 faulty license
evidence still admissible
(c) Inevitable discovery exception Nix v William 1984 still can find the
body even without being lied to confession
(e) Sentencing phase
(a) Upheld and let congress decide the penalty
(b) Atkins v Virginia narrow use of death penalty Panetti 2002 v
Quarterman 2007
(i) Outlaw death penalty for mentally retarded juveniles for crimes
other than murder , ban extreme punishments on juveniles
ix) Right of privacy
(a) Frinswold v Connecticut- married couple can use condom none of yo
business man- argue bill of rights have underlying right to privacy
(a) Zone of personal privacy that government cannot lawfully invade
(b) Abortion

(a) Roe v Wade 1873 women full freedom to choose abortion within
first three month of pregnancy
(b) Congress 1994 prevent people from preventing people form
entering abortion clinic
(c) Webster v Reproductive Health Services 1989 upheld missouri
legislature that prohibited abortions form being performed and
state publicly funded medical facilities
(d) Planned Parenthood v Casey (1992) upheld constitutional right to
abortion upheld minor need parental conscent.
(i) Any restriction is constitutional as long as it does not instill an
undue burden on the women
(e) Gonzales v Carbart 2007- ban on use of particular type of abortion
upheld law that fine abortion during the birth process even if
mothers life is endangered
(c) Consensual Sexual Relations among Same Sex Adults
(a) 1986 Bowers v Hardwick right to privacy does not extend to gay
(b) 2003 Lawrence v Texas struck down sodomy laws of 13 states
(c) Obergefell v. Hodges 2015 recognize same sex marriage
(d)
C) Gitlow v, New York 14th amendment to protect 1st amendment right state
that states do not have complete authority over what their residents can say
and write
i) Invalidate state laws restricting expression in speech (fiske v, Kansas),
press (Near v. Minnesota) religion, (Hamilton v Regents, University of
California), and assembly and petition (Defonge v Oregon)- leads to :
III) Selective incorporation- certain of the rights contained in the bill of rights
become applicable through the 14th amendment to actions by the state
governments
(a) Selective because some rights are protected while others not like right
to jury
B) Selective incorporation fo trail rights- Powell v. Alabama 1932, provide legal
counsel for those too poor to hire one, after 8 black men got killed because of
lack of one
C) Mapp(black women) v Ohio 1960- began to help civil rights aswell in addition
to liberty. Ruled that evidence from unlawful search cannot be used to obtain
a conviction
IV) Rights and war on terrorism
A) wwII rights removed, Japanese forced to move and Korematsu v United States
upheld
B) Bush administration customary law protections would not be afforded to
individuals it deemed to have engaged in terrorist activity
C) Detained combatants imprisoned in Guantanamo Bay 2004 supreme court
declared right to challenge their detention in court
i) Hamdan v Rumfeld 2006 tribunals unlawful should abide U.S Uniform Code
of Military Justice and the Geneva Conventions 2008 denied law the
prevent appeal to federal court
D) Surveillance of suspected terrorist, lets government conduct secret searches,
lower bar for wiretapping, increase access to records
V) Key Court Cases
A) Religion

B)

C)

D)

E)

i) Engle v Vitale 1962- struck down nondenominational prayer that start with
almighty god
ii) Lemon v Kurtz man- lemon test
iii) Lee v Weisman 1922- decision directed school officials not to invite
clergymen
Freedom of speech
i) Schenck v United States 1919- World War I clear and present danger
ii) Chaplisky v New Hampshire 1942- fighting words by their very nature
inflict injury or tend to incite an immediate breach of peace government
can punish. These words have direct tendency to cause violence- used
against government or worn on clothing as means of protest does not
count
iii) New York Times v Sullivan- high standards for libel of public official
iv) Tinker v Des Moines- student rights are not shed at school house gatesstudents wear black armbands freedom of speech. Restricted in
Hazelwood v Kulmeier 1988, school given right to censor school paper
v) New York Times v United States 1971 can publish materials, but must face
consequences
vi) Texas v Johnson 1988- can burn flag
vii) McConnell v Federal Election Commission 2003- campaign finance law
constutional, ban on soft money and restriction placed on television
advertising did not violate free speech
viii) Citizens United v Federal Election Commission 2010 overturned some
of McConnell- cannot limited money
Freedom of Assembly
i) Dejonge v Oregon 1937- 14th amendment due process clause applies to
freedom of assembly- DeJonge had the right to organize a Communist
Party
Right to privacy
i) Wolf v Colorado 1938- states could adopt other measures and the illegal
evidence did not apply to states, but overturned in Mapp v Ohio
ii) Mapp(black women) v Ohio 1960- began to help civil rights aswell in
addition to liberty. Ruled that evidence from unlawful search cannot be
used to obtain a conviction
iii) Grinswold v Connecticut 1965- struck down Florida law banning
contraceptives
iv) united states v Leon 1984 faulty license evidence still admissible
(a) Planned Parenthood v Casey (1992) upheld constitutional right to
abortion upheld minor need parental consent.
Undefined rights
i) Rights not listed in constitution cannot be taken away, listed by the ninth
amendment