PS CH 4 Flashcards
Newspaper article that was deemed not liable because it wasn’t done maliciously
New York Times verse Sullivan
First- freedom of speech, press, religion, assembly and petition
Second- Right to bare arms
Fourth-protection against unreasonable search and seizure
Fifth-protection against self incrimination, double jeopardy, right to due process, eminent domain.
Sixth-right to speedy , public trial, counsel, confront witnesses, impartial jury
Seventh- civil cases
Eighth-no excessive bail, no cruel and usual punishment
Ninth-Rights not listed belong to the people
First ten amendments of the constitution
“No state shall deprive any person of life, liberty or property without due process.” This was meant to protect newly freed slaves, which unfortunately it didn’t because most state’s ignored it., and the Supreme Court never really addressed the issue until 1925
14th amendment
in a free speech case, the Court indicated for the first time that States, may not be free to limit expression. The Court stated that freedom of expression is a fundamental personal right and liberty protected by the DUE PROCESS clause of the 14th amendment from infringement by the states.
Gitlow v New York (1925)
Incorporation is the process by which certain provisions of the Bill of Rights become applicable through the 14th amendment to actions by the STATE governments. In other words, the states have to follow the provisions of the Bill of Rights.
INCORPORATION (or NATIONALIZATION) of the BILL OF RIGHTS.
his case established “prior restraint” government CANNOT censor speech before it is published. You can be punished after the fact.
Near v Minnesota 1931.
New York Times v. Sullivan (1964) has established the standard test for meeting libel.
New York Times v. Sullivan
of a public official/person requires proof of “actual malice” you knowing or with reckless disregard for the truth with the intent to damage the official’s reputation wrote or published it. Have to show malicious intent. This is very hard to proof, that is why very few celebrities or public officials bother suing the National Enquirer!
libel
Miller v California (1973)
set the test for what is determined to be obscene:
to the average person applying contemporary community standards
whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable law
whether the work , taken as a whole lacks serious literacy, artistic, political or scientific value.
“words that inflict injury or tend to incite an immediate breach of the peace do not convey ideas and thus are not subject to 1st amendment protection”
The case of Cohen v California 1971, greatly weakened that standard so that must of what is said is no longer prosecutable. Fighting words
Chaplinsky v New Hampshire (1942)
The Nazi party wanted to hold a march in the town of Skokie, Ill. (a town with many holocaust survivors) The town refused to give them a permit because they said the march could cause violence.The US Court of Appeals and the Supreme Court affirmed that the right to free speech (in the form of a march) takes precedent over the mere possibility that a riot or some other evil might result from what is said. The burden was on the town authorities to prove that there was no way to prevent violence from breaking out, such as additional police security, barricades, etc. Just because you think it might cause violence you can’t prevent gathering (have to do all you can to prevent it)RIGHT OF ASSEMBLE AND PETITION
National Socialist Party of America v. Skokie 1977
Freedom of religionThe standard test is the case of Lemon v Kurtzman (1971)–government money (federal, state or local) can be used to support religiously affiliated institutions IF it meets ALL of the following criteria:
the aid must have a secular purpose
the aid must have a primary effect that neither advances nor inhibits religion
the aid must not foster excessive government entanglement with religion
This criteria has allowed such funds to be used for:
Lemon v Kurtzman (1971)
Americans are free to hold any religious beliefs BUT they are not always free to act on their beliefs. The Court has generally held that governmental restrictions are permitted when a higher goal is desired. The government can restrict free exercise of religion if health or life of a child is at issue (note the Oregon law and faith healing case). If it endangers individuals, like snake handling (practice used in some religious sects in the South), or if it is illegal such as drugs, or endangers children like not vaccinating them) Authorities can prohibit the activity and not violate the Constitution.
Free exercise clause
Free exercise clause Two Native Americans worked as counselors at a rehab facility were fired because employer found out that they smoked peyote- as part of the religious ceremonies. They were fired, tried to claim unemployment but denied.
Employment Division of Oregon v. Smith 1990-
Court has allowed Amish children to leave school after the 8th grade on the basis of the parents religious freedom right.
The two cases provide an example of the court denying free exercise because of a compelling state interest( preventing drug use) Smith case. The other case Wisconsin is an example of the Court supporting the free exercise right of the parents over the state’s interest in requiring students to attend school until age 16.
Wisconsin v Yoder
