Professional Documents
Culture Documents
Almost 100 years later, court decided that states must respect at least some 1st amendment
rights.
Gitlow v. New York: The 1925 ruling holding that freedoms of press are Fundamental personal
rights protected by the due process clause of 14th amendment.
Gave former slaves legal protection and ensured voting rights.
Ratified in 1868.
14th amendment: No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the US nor shall any sate deprive of nay person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Incorporation Doctrine: The legal concept under which the Supreme Court nationalized the Bill
of Rights by making most provisions available to states through 14th amendment.
Not everyone agreed that the 14th amendment incorporated parts of the Bill of Rights.
At first, only parts of the 1st amendment were binding on the states as a result of Gitlow.
During 1960s, in Warrens court, the Court applied most of the Bill of Rights to the states.
Only the 2nd, 3rd, and 7th amendment as well as the part of the 8th amendment about excessive
bail had not been specified directly to the states.
Freedom of Religion..100
1st amendment contains 2 parts about religion and government.
The first thing is that the government cant set up a national church or synagogue or mosque or
any establishment of religion.
The second thing is that government cant stop people from praying to whomever and however
they want so as long as its not sacrificial.
It isnt very clear as to what else the first Congress intended to be included in the establishment
clause.
Thomas Jefferson said that the wall between church and state forbade support of religion
altogether.
Lemon v. Kurtzman: 1971 Court Decision that established the Lemon test for whether or not the
government should aid religious schools.
It contains the 3 following rulesSchools must:
o Have a secular legislative purpose.
o Have a primary effect that neither advocates nor inhibits religion.
o Not foster an excessive government entanglement with religion.
Supreme court decided in 1997 in Agostini v. Felton that public school systems could send
teachers into parochial schools to teach remedial and supplemental classes to needy children.
Zelman v. Simmons-Harris: The 2002 case that upheld a state providing families with vouchers
that could be used to pay for tuition at religious schools.
In 1984 Equal Access Act, Congress made it unlawful for any public high school receiving federal
funds to keep students from using school facilities for religious worship if the school opens its
elementary schools.
In 1980, the Court prohibited the posting of the Ten Commandments on the walls of public
classrooms.
In 1962-1963, Supreme Court ruled that voluntary recitations of prayer of Bible passages, when
done as part of classroom exercise in public schools violated the establishment clause.
In Engel v. Vitale, the justices observed that the place of religion in our society is an exalted one,
but in the relationship between man and religion, the State is firmly committed to a position of
neutrality.
Also declared requirement of Bible reading unconstitutional.
The last few years have been marked b y great ferment in the relationship between religion and
American political life.
Fundamentalist Christian groups have pressed some state legislature to mandate the teaching of
creation sciencetheir alternative to Darwinian theories of evolution.
Freedom of Expression.105
First amendment forbids the restriction of expression.
The courts have been called upon to decide where to draw the line between speech thats ok
and speech thats not so much.
In 1992, Courts decided that legislatures and universities cannot single out a racial, sexual,
religious, or ethnic group and protects them from hate speech and hate crimes.
Obscenity and libel do not qualify as speech and arent protected by the first amendment.
Prior Restraint: A government preventing material from being published.
Common method of limiting press.
Usually unconstitutional according to 1st amendment and confirmed in the 1931 case of Near v.
Minnesota.
Near v. Minnesota: The 1931 Supreme Court decision holding that the First Amendment
protects newspaper from prior restraint.
Prior restraint was used, however for books written by ex-CIA operatives in the interest of
national security.
Obscenity
Movie day=annual event where movies brought before the court on obscenity charge were
played in a basement storeroom.
Several justices boycotted these showings.
Roth v. United States: 1957 Case ruling that obscenity is not within the area of constitutionality
protected by speech or press.
Miller v. California: A 1973 Court decisions that avoided defining obscenity by holding that
community standards be used to determine whether material is obscene in terms of appealing
to a prurient interest and being Patently offensive and lacking in value.
There were 3 conditions:
o The work appealed to a prurient interest in sex
o The work showed patently offensive sexual conduct that was specifically defined by an
obscenity law.
o The work, taken as a whole, lacked serious literary, artistic, political, or scientific value.
A reason why obscenity convictions can be difficult to obtain is that no nationwide consensus
exists that offensive material should be banned.
In 1996, Congress passed the Communications Decency Act, banning obscene material and
criminalizing the transmission of indecent speech or images to anyone under 18.
Symbolic Speech..117
Freedom of speech=freedom of expression.
Texas v. Johnson: A 1989 case in which the Supreme Court struck down a law banning the
burning of the American flag on the grounds that symbolic speech was protected by the 1st
amendment.
Symbolic Speech: Nonverbal communication, such as burning a flag or wearing an armband.
Commercial Speech
Commercial Speech: Communication in the form of advertising. It can be restricted more than
many other types of speech but has been receiving increased protection from the Supreme
Court.
Federal Trade Commission decides what kinds of goods may be advertised on radio and
television.
Freedom of Assembly
1st amendment grants right to peacefully assemble.
Gathering together in order to make a statement.
Within reasonable limits, it includes right to demonstrate.
No spontaneous demonstrations.
Permits required as well as prior approval.
Balance of freedom and order is tested when people get harmed in the process.
1st amendment right to assembly also includes right to associate.
Right to associate= freedom to associate with people who share a common interest, including
an interest in political action.
NAACP v. Alabama: The Supreme Court protected the right to assemble peaceably in this 1958
case when it decided that the NAACP didnt have to reveal its membership list.
Defendants Rights.120
Today, the protections in the 4th, 5th, 6th, 7th, and 8th amendments apply for justice and the
system of the law.
Bill of rights sets out civil liberties that American citizens have if they are arrested or brought to
court.
Self-Incrimination124
5th Amendment: The constitutional amendment designed to protect the rights of persons
accused of crimes, including protection against double jeopardy, self incrimination, and
punishment without due process.
Self Incrimination: The situation occurring when an individual accused of a crime is compelled to
be a witness against himself in court.
Miranda v. Arizona: The 1996 Supreme Court decision that sets guidelines for police questioning
of accused persons to protect them against self incrimination and to protect their right to
counsel.
Court established that suspects must be told:
o They have a right to remain silent and may stop answering questions at any time.
o What they say can and will be used against them in a court of law.
o They have a right to have a lawyer present during questioning and that the court will
provide an attorney if they cannot afford one.
Court decided that a coerced confession introduced in a trial doesnt automatically taint a
conviction.
Right to Council
6th amendment: The constitutional amendment designed to protect individuals accused of
crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy
trial.
Applied to federal courts. But most litigation was held in federal courts.
Gideon v. Wainwright: The 1963 Supreme Court Case holding that anyone accused of a felony
where imprisonment may be imposed, however poor he or she might be, has the right to a
lawyer.
6th amendment applied to everyone.
Trials.126
Plea bargaining: A bargain struck between the defendants lawyer and the prosecutor to the
effect that the defendant will plead guilty to a lesser crime in exchange for the states promise
not to prosecute the defendant for a more serious crime.
Critics believe that it permits many criminals to avoid full punishment for crimes.
Constitution doesnt specify jury size.
In Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the court held that other
than a previous conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory max or even the ordinary range must be submitted to a jury and proved beyond a
reasonable doubt.
Habeas Corpus = people who are arrested have the right to be brought before a judge.
Cruel and Unusual Punishment: Court sentences prohibited by the 8th amendment. Although the
Court has ruled that mandatory death sentences for certain offenses are unconstitutional, it has
not held that the death penalty itself constitutes cruel and unusual punishment.
Death penalty debated about whether it constitutes cruel and unusual.
Gregg v. Georgia: 1976 Case that decided that the death penalty was constitutional.
It is an extreme sanction, only used for the most suitable of extreme crimes.
McCleskey v. Kemp: The 1987 decision that upheld the constitutionality of the death penalty
against charges that it violated the 14th amendment because minority defendants were more
likely to receive the death penalty than white defendants.
24th amendment: The constitutional amendment passed in 1964 that declared poll taxes void in
federal elections.
White Primary: One of the means used to discourage blacks from voting that permitted political
parties in the heavily Democratic South to exclude blacks from primary elections, thus taking
away their ability to have a voice in political matters.
Voting Rights Act of 1965: A law designed to help end formal barriers to black suffrage.
Effects of efforts swift and clean.
Craig v. Boren: (1976) Court established the medium scrutiny standard for determining gender
discrimination.
As far as women in the workplace, the number of female workers is steadily increasing.
Only men have to register during a military draft.
Statutes and regulations also prohibit women from serving in combat.
Court gave a broad principle: Sexual harassment that is so pervasive as to create a hostile or
abusive work environment is a form of gender discrimination, which is forbidden by the 1964 act.
Harris v. Forklift Systems, court reinforced above decision.
Faragher v. City of Boca Raton: Court made it clear that employers are responsible for
eliminating harassment at work.
Pennsylvania State Police v. Suders- Court decided that if harassment continues in a tangible
action, an employer is liable if there is no legal defense such as one showing that the employer
had set up a system or reporting and correcting sexual harassment.
Affirmative Action166
Affirmative Action: A policy designed to give special attention to or compensatory treatment for
members of some previously disadvantaged group.
Affirmative action = Moving from Equal opportunity, to equal results.
Regents of the University of California v. Bakke: A 1978 ruling that a state university could not
admit less qualified individuals solely based on race.
Until 1995, the Court was more deferential to Congress than to local govt. in upholding
affirmative action programs.
Adaran Constructions v. Pena: A 1995 Court decision holding that federal programs that classify
people by race, even for an ostensibly benign purpose such as expanding opportunities for
minorities, should be resumed to be unconstitutional.