Chapter 5: Civil Liberties Flashcards
Did the founders ever think federal stuff would be applied to the state?
no they thought the federal government would only be able to do what it was explicitly allowed to do and the states could do whatever
civil liberties
protections the Constitution provides against the abuse of government power
True or false: The Constituion and the Bill of Rights contain a list of competing rights and duties
true
ex. Dr Sheppard wants a fair trial but the media wants to report stories about his love life
Political stuggles over civil liberties follow much the same pattern as…?
interest group politics involving economic issues
What has generally restricted Civil liberties?
WAR
Sedition Act
1798
crime to publish “false, scandalous, and malicious writing”
with the intenion of like defaming the government or making the people not like them
this was kind of a reaction to the French Revolution
Espionage and Sedition Acts q
1917-1918
crime to utter false statements that would interfere with the American military, to send mail urding treason or insurrection or to write or sat anything disloyal or that could be harmful to US or war effort because it was WWI and people were afraid of German spies [Red Scare] [AG Palmer]
Smith Act 1940, the Internal Security Act 1950, and the Communist Control Act (1954)
illegal to advocate for people to overthrow gov by force (SMITH)
required members of the COmmunirt party to register with the gov (ISA)
Communist party = conspiracy to overthrow gov (Communist Control Act)
WWII and the Korean War –> People were afraid that foreign agents were trying to mess up US
McCarthy
Is some use still made of the sedition laws?
yes which is super werid
ex. 1980s white supermacists and Puerto Rican nationalists
accused not only spoke of wanting to overthrow the government but tried to undertake this mission violently
True or false; now people charged with sedition are generally just people who were talking about stuff
false, generally they also do something more dangerous as well
True or false: early schools tended to be religious
true they were Protestant and they received state aid
back then the view of America was like Wasp
When did the Constitution stop being silent on what states could do?
After the civil war
Due process of law
Denies the government the right, without due process, to deprive people of life, liberty, and property
Equal protection of the law
A standard of equal treatment that must be observed by the government
Selective incorporation
Court cases that apply Bill of Rights to states and
Freedom of expression
Right if people to speak, publish, and assemble
Freedom of religion
People shall be free to exercise their religion, and government may not establish a religion
Prior restraint
Censorship of a publication
Clear-and-present-danger test
Law should not punish speech unless there was a clear and present danger of producing harmful actions
Which rights are not applied to the states according to Wilson?
The right to bear arms (2nd Amend)
The right not to have soldiers forcibly quartered in private homes (3rd)
The right to be indicted by a grand jury before being tried for a serious crime (Fifth Amendment)
The right to a jury trial in civil cases (7th)
The ban on excessive bail and fines (8)
When the court creates a new right (ex privacy) does it apply to the national government or the states?
BOTH
William Blackstone
Loved free speech (essential to free state) but the freedom the press should have is prior restraint (ex. They can’t tell you not to publish something but they can tell you after that you shouldn’t have done that)
True or false: the US Sedition Act of 1798 was in line with traditional ENglish law
true (but it was an improvement because it gave the people to a jury and allowed them to be acquitted)
Why did Jeffersonians object to the Sedition laws?
they didn’t want the federal government to hold newspapers accountable, they wanted the states to hold them accountable
Schenck
Violated espionage act 1919 because he told people to resist the draft
This case established the clear and present danger test
unanimous
Schenck’s leaflets created a danger
Oliver Wendell Holmes
Gitlow v. New York
1925
Supreme COurt says First AMendment applies to the states
defendant still went to jail
Can you always say the same things in peacetime and wartime?
nope
True or false: after WWI and the Red Scare, the court leaned more toward free expression
true
True or false: during times of crisis, the courthas tended to defend national security
true
BRANDENBURG v. OHIO
1969
Member of the KKK where he staged a cross burning where he said horrible things about blacks and jews. The police told him to leave the street and he did and was arrested
the court sided with him because speech that does call for illegal action is protected if the action isn’t imminent
basically set up a precedent that super offensive things are ok
Libel
a written person that defames the character of another person/ writing that falsely injures another person
Slander
a defamatory oral statement
True or false: it is easier to sue someone for slander and win in the US than in England
false
have to prove that it was false
What are the differences in proving libel if you are a public figure vs a regular person?
public figure needs to prove actual malice
Is Obscenity protected by the first amendment?
no
When are nudity and sex protected by the first amendment?
when they have political, literary, scientific, or artistic merit
What is obscenity?
an obscnene work must be judged by average person applying contemporary community standards to appeal to the prurient interest of to depict in a patently offensive way sexual conduct specifically defined by applicable state law and to lack serious literary, artistic, political, or scientific value
What can be considered speech
almost any form of visual or auditory communication
symbolic speech
an act that conveys a political message
True or false: there is a difference between burning a draft card and burning the American flag
true
there is a difference
draft —> government is just trying to do its job, which may incidentally restrict speech but it has the right to organize a draft
flag burning—> just trying to limit speech
Does a corporation also have a right to free speech?
yes
including not saying something
Chaplinksy v. New Hampshire
Fighting words are not protected by the first amendment
1942
Collin v. Smith
1978
The Nazi Party may march through a largely Jewish Neighborhood
McConnell v. Federal Election Commission (2003)
Upholds a 2002 campaign finance reform law
Miller v. California
1973
Obscenity defined as appealing to prurient interests of an average person with materials that lack literary, artistic, political, or scientific value
New York Times v. Sullivan
1964
To libel a public figure, there must be actual malice
Reno v. ACLU
1997
A law that bans sending indecent material over the internet is unconstitutional becuase indecent is too vague and broad a term
Schenck v US
1919 Speech may be punished if it creates a clear and present danger test of illegal acts
Texas v. Johnson
1989 There may not be a law to ban flag burning
Do students have the same rights as adults?
nope
free-exercise clause
First Amendment requirement that law cannot prevent free exercise of religion
establishment clause
First AMendment ban on laws respecting an establishment of religion
True or false: the courts have treated religion like speech
true
you can pretty much say or do whatever until it causes harm to others… then, there is a problem
True or false: a state can apply a license fee on door to door solicitors when the solicitor is Jehovah’s Witness selling religious tracts
false
wall of separation
court ruling that government cannot be involved with religion
Everson v Board of education
1947 SC case that gov can’t spend tax money helping religion but busing is fine
Lemon Test
secular purpose
primary effect neither advances not inhibits religion
does not foster an excessive govenrment entanglement with religion
exclusionary rule
improperly gathered evidence may not be introduced in a criminal trial
Engel v. vitale
there may not be a prayer, even a nondemonentaional one, in public schools
Lee v. Weisman
Public schools may not have clergy lead prayers at graduation ceremonies
Lemon v. Kurtzman
1971 Three tests are described for deciding whether the government is improperly
search warrant
a judge’s order authorizing a search
probable cause
reasonable cause for issuing a search warrant or making an arrest; more than mere suspicion
good-faith exception
an error in gathering in gathering evidence sufficiently minor that it may be used in a trial
