Welcome visitors!

Please be aware that this is a student-generated wiki designed for review for my students' AP exams. Come in, look around, and enjoy yourself...just be aware of the nature of this wiki. Even though most everything is correct, I advise caution before citing this as an authoritative source.

Civil Liberties

  • Civil Liberties are the protections that the constitution provides to protect the citizens against the abuse of government power. Don't confuse these with Civil Rights, which usually pertain to protecting certain groups, such as races, genders, or people of certain sexual orientations, from discrimination or maltreatment.
  • Trying to decide, in various cases, if in fact anyone's civil liberties have been violated is a major problem. One explanation for this is that the Constitution and the Bill of Rights present many contesting rights and duties (Wilson). Many of these cases end in the supreme court.
    • For example, is wearing a wrist band against school rules in protest a form of free speech, thus meaning that an attempt to punish the student for wearing the wrist band is a violation of the student's civil liberties?
    • Is wearing a shirt with profanity in its message an expression of free speech or blatant obscenity?
    • Is a locker or personal belongings being searched at a school without a warrant violation of civil liberties?
  • One such type of protection is the prevention of censoring speech (protecting first amendment rights).
  • A problem which makes it difficult to determine when civil rights are being violated, is that the framers created a constitution of what a government could do, not what it couldn't do.
This First amendment right has created various controversial issues that still persist today. This is partially due to the fact that civil liberties are often competed for among groups and individuals for rights.
  • Any discrepancies between Civil Liberties will usually end up in the Court, where the two opposites clash to iron out what will be the decision to follow.
  • Political struggles over civil liberties follow much the same pattern as interest group politics involving economic issues, even though the claims in question are made by individuals.
    • organized interest groups: Fraternal Order of the Police complains about restrictions on police powers, whereas American Civil Liberties Union defends and sees to enlarge those restrictions
Rights in Conflict
  • The Constitution and the Bill of Rights contain rights and duties that conflict with each other. Some of the main factors for this conflict are the cultural, ethnic, and religious differences in the United States itself. These differences of opinion are applied to the balance between community sensitivities and personal self-expression. The Court's interpretation of the Constitution moderates this balance by deciding which forms of expression are entitled to constitutional protection.
  • The United States government has an obligation to "provide for the common defense" and, in pursuit of that duty, has claimed the right to keep secret certain military and diplomatic information.
  • Some conflicting rights include:
    • Dr. Samuel H. Sheppard of Cleveland, Ohio, asserted his right to have a fair trial on the charge of having murdered his wife. However, two radio commentators asserted their right to broadcast whatever facts and rumors they heard about Dr. Sheppard and his love life.
      • The Sheppard case being one that involved two rights given by law, the right to a fair trial, against freedom of the press
    • Conflicting rights occurred when the New York Times stated that they could publish secret military and diplomatic information, like the "Pentagon Papers," under the Constitution's guarantee of freedom of the press
    • Carl Jacob Kunz delivered inflammatory anti-Jewish speeches on the street corners of a Jewish neighborhood in New York City. This incident was freedom of speech versus the preservation of public order.
    • Sheppard, the New York Times, and Kunz all won.
    • In addition to this, there is constant debate over whether or not a form of legislation that hinders one's civil liberties in favor of protecting the safety of American.
  • political struggles over civil liberties follow much the same pattern as interest group politics involving economic issues (Wilson)
  • War has usually been the crisis that has restricted the liberty of some minority. For example:
    • Sedition Act of 1789 during the French revolution; Smith act passed in 1940; International Security Act in 1950; and Communist Control Act in 1954
      • The Espionage Act of 1917: In the case of Schenck v. United States, the principle of free speech was brought to the table, establishing the "clear and present danger" test, which set in place a standard of what level of free speech was prohibitable. The Court unanimously ruled in this case that the Espionage Act did not violate free speech rights of those convicted under the act.
      • All of these laws had one thing in common: they were all designed to protect the American people from some sort of threat that had started as a real threat which led the government to narrow the rights of the people (Wilson).
      • Being found guilty of sedition now requires it to be something more serious than simply talking about it (Wilson).

Cultural Conflicts
  • The United States was originally comprised of white European Protestants with other races such as blacks, Catholics, and Jews being small minorities that were historically subjected to racial persecution
  • This is why being "American" tended to mean being a white Anglo-Saxon Protestants. Many of the schools were religious as well. Some of them were even funded by the government.
  • With any cultural tradition, there always will be a schism in opinion regarding the balance between community sensitivities and personal self-expression
  • With the vast amount of immigration of people with very different background over the years has led to questioning about the "meaning and scope of certain constitutionally protected freedoms from religious ethnic and cultural differences." (Wilson, 101)
    • Example: Jewish groups find it offensive to depict the birth of Christ in a manger outside or in front of a government building. On the other hand Catholics and Protestants find it it to be important to depict the birth of Christ in a manager outside or in front of a government building.
    • Example: Many English-speaking people believe that public schools should teach all students how to speak and write English, because it is a part of their culture. While people that are Hispanic believes that schools should teach Spanish as well because its important in in the Hispanic culture.
    • Example: The Boy Scouts of America bars homosexual men from becoming scout leaders, even in the light of federal laws restricting discrimination of homosexuals. This notion was further strengthened in 2000 by the Supreme Court that allowed the Boy Scouts of America to to fully associate freely.
  • Objectives of the Framers
    -Thought that they had written the Constitution to state what the federal government could do, not what the federal government could not do, nor what state governments can or cannot do. (Make sense?
  • - Thought that the national government had limited/enumerated powers, meaning the federal government only received the power specifically awarded to it by the Constitution; all other powers were assumed to go straight to the state governments (reserved powers).
    - Thought that they had listed such limited powers, that a Bill of Rights was not necessary
    - Thus they created a weak government which was not very effective so they came together and formed the bill of rights
    -The Constitution has some rights for its citizens. However, many felt that without a Bill of Rights the government would tyrannize the citizens. The Constitution would not have been ratified without the addition of a Bill of Rights.
    -Those who believed that a Bill of Rights was not necessary to ensure the protection of the citizens were known as the Federalism. Those who believed that without a Bill of Rights the rights of the citizens were not ensure became known as Anti-Federalism.
  • The framers never thought that the Bill of Rights could affect what the State governments could do. They thought that in their own state constitutions they would decide this.

    Landmark Cases
Incorporation: application of certain provisions n the Bill of Rights to the States as well as the federal government
  • Gitlow V. New York (1925)- Supreme Court agrees that 1st Amendment applies to all states because of the due process clause of the 14th amendment. Since then most of the Bill of Rights has been incorporated in to the states.
  • Palko V. Connecticut (1937)-Supreme Court agrees that states must respect all "fundamental" liberties
  • According to Wilson, these cases led the Supreme Courts to begin to use selective incorporation.
    • Selective incorporation is the judicial process (through the 14th amendment) that allows for the Bill of Rights of to apply to the states. Not all rights have been accounted for, though, and future court cases will decide the future of selective incorporation.
    • Most amendments in the Bill of Rights have, at least in part, been incorporated to the states (1,2,3,4,5,6,7, and 8).
    • Newly found, or created, rights are usually automatically incorporated, as seen in most Supreme Courts cases dealing with Constitutional rights.

Other Speech Related Cases
  • Schenck v. United States (1917)- The "clear and present danger" test was established to determine how far free speech was allowed and that a man could not say certain things not within his rights (eg. shouting fire in a crowded theater) as they presented a danger to others in their utterance.
  • Texas V. Johnson (1989)- Supreme Court rules that flag burning is protected by the first amendment as protected free speech and that there may not be a law banning it. The speech was protected because it was determined to be symbolic speech and there was no clear and present danger, as established in Schenck v. United States, in Johnson's symbolic actions. The outcome of this case caused a decent uproar and a small attempt to amend the Constitution to ban the burring of our flag
  • New York v. Sullivan(1964): In order to sue for libel the publisher who wrote the attack must have actual malice.
  • Chaplinsky V. New Hampshire(1942)- Supreme Court rules that "fighting words" do not qualify as free speech and are not protected by the first amendment. Chaplinsky's words did not incite an immediate breach of the peace nor inflict injury.
  • Reno v. ACLU(1997)- federal and state bans on the transmission of "indecent" material to minors over the internet is unconstitutional, since "indecent" is not specific enough a term to describe boundaries. (Wilson)
  • Colin v. Smith (1942): the Nazi party may march through a largely Jewish neighborhood, since even unpopular groups are allowed to express their political beliefs.
  • McConnell v. Federal Election Commission (2003): Upholds 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, the Three-Prong Standard or the Miller Test.
  • New York Times v. U.S. (1971) No prior restraint of the stolen Pentagon Papers
  • Roth v. U.S. (1957) Obscenity is not protected speech.
  • Near v. Minnesota (1931) No "prior restraint" of the freedom of the press.
  • Hazelwood v. Kuhlmeier (1988) School newspapers, if they are not established as a forum, can be censored by school officials if the censoring can be justified as having an educational purpose. There are some states, however, that have guaranteed the First Amendment rights to student newspapers, even those that are non-forum. Which means that young people have less rights than adults.
  • Jacobellis v Ohio (1964) Justice Potter Stewart said of obscenity, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Justice Stewart, however, changed his belief in Miller v. California.
  • Tinker v Des Moines Independent Community School District- The Supreme Court ruled that public schools could not punish its students for wearing a black armband to protest the Vietnam War. Wearing the arm band was protected symbolic speech (Wilson and Dilulio).
  • Below are cases that were decided on by the Supreme Court pertaining to the First Amendment and it’s application in terms of civil rights and liberties.
    • Linmark Associates, Inc. v. Willingboro: The Court decided that the first Amendment prohibits the banning of signs, even of commercial nature without strong, legitimate state interest. The government has no right to keep information from the public for fear that they will act unwisely (1997) (wilson)
    • Erznoznik v. Jacksonville 422 U.S. 205 (1075): The city of Jaksoville, Florida disallowed drive in movie theaters from projecting movies that contained nudity, if it was possible for a bystander or a person walking by outside of the drive in theater. One manager of a drive-in claimed that he could show such movies on the basis of the First Amendment.
      • The Court ruled that the drive in theaters were allowed to display movies that contained nudity, and that it was the duty of the person walking by on the sidewalk to avoid looking at the screen, if he or she so objected.
    • Greer v. Spock 424 U.S. 828 (1976): A Dr. Benjamin Spock desired to distribute and lecture about campaign rhetoric and material within Fort Dix Military Reservation. He was denied by the military, on the basis that campaigning regarding political matters was not allowed on military institutions and bases.
      • The Court decided in favor of the military, on the basis that a military institution or base is not open to general civilian and that access can be restricted to civilians. Military bases do not have to be open for campaigning in regards to political matters either.
    • Miami Herald Publishing Co. v. Tornillo418 U.S. 241 (1974): In Florida a law was passed that allowed a candidate to a political office to be given the same amount of area in a newspaper to write what he or she desired, if the newspaper wrote negatively about the candidate. The Miami Herald Publish Company within Florida complained that this hindered the First Amendment rights pertaining to freedom of the press.
      • The Court stated that the rights relating to the First Amendment were obstructed in this case and that the state could not control what the newspaper published (Wilson and Dilulio 113-117).[1]

First Amendment Rights
  • freedom of expression and national security: right of people to speak, publish, and assemble
    • The press is free from government censorship in advance of publication as long as it does not create a "clear and present" danger to the public, but it has to accept the consequences if it publishes inaccurate or illegal information.
  • selective incorporation:due process clause; incorporating the Bill of Rights to states
    • The Fourteenth Amendment created the possibility that some or all of the Bill of Rights may restrict state government actions. While the Supreme Court initially stated that the Bill of Rights did not apply to the states, after Gitlow v. New York, it ruled that basic personal rights are protected from infringement by the states, because of the due-process clause. Since then, most of of the Bill of Rights has been incorporated into the states (Fast Track to a 5).
    • However, those rights not implemented were already derived from the federal government, and basically implied. Implied rights were akin to implied powers of the government, but yet not all are allowed legally, as federal supremacy determines which ones are valid and which are invalid.
  • defining speech: There are some types of speech that are not totally protected under the first Amendment, such as libel (a false written statement used to defame another person) and slander (a defamatory oral statement). Each specific Supreme Court cases decide the types of speech protected/not protected.
    • Symbolic speech, a form of expression through acts rather than words, is generally protected as long as it does not involve any illegal acts. (Flag-burning is ruled as protected speech.)
    • There is no exact definition of "obscenity," though a standard has been created based on whether or not the questioned material has "serious literary, artistic, political, or scientific value" (Fast Track to a 5).
  • defining a person Younger people have few rights then that of adults. (For example it has been ruled by the Supreme Court that a school administration can censor a school newspaper)
  • church and state:the free-exercise clause, and the establishment clause.
  • Wall of Separation: Court ruling that government cannot be involved with religion (Wilson and Dilulio).
-Free-exercise clause-- "The government can not interfere with an individual's practice of religion". The law can not impose special burdens on religion, but there also no religious exemptions from a law that binds all other citizens, even if it may oppress the beliefs of one religion.
-Establishment clause-- Supreme Court has interpreted this to mean "no government involvement in religion, even if the involvement is not preferential". However there has been instances in which government aid to parochial schools and denominational colleges has been allowed.
The aid is allowed it passes the Lemon test which involves three parts.
    1. It involves a secular purpose
    2. Has an impact that neither advances nor inhibits religion
    3. Does not create "excessive government entanglement with religion"
  • freedom of religion: people shall be free to exercise their religion, and government may not establish a religion
  • freedom of assembly: "congress shall make no law respecting... the right of the people peaceably to assemble."

Freedom of Assembly
  • First Amendment protects the right of people to assemble peacefully
  • This right does not extend to violent groups or to demonstrations that would incite violence
  • The government may place restrictions on crowd gatherings
  • freedom of association- " the government may not restrict the number of type of groups or organizations people belong to, provided those groups do not threaten national security" ( Meltzer)
The Establishment Clause:
  • The First amendment prohibits Congress from making law respecting the establishment of religion, this has been interpreted as the separation of church and state
  • This was very essential to the founding fathers because they saw what had happened with the church and state in Europe and how it had failed
  • Religion is similar to free speech in that any religion can be practiced as long as it "does not cause some serious harm to others".
    • However, although the Court has struck down prayer in public schools, it has upheld prayer in Congress (since 1789, the House and Senate open each session with a prayer). A public school cannot have a chaplain but the armed services can. According to Wilson, the Court has said that the government cannot "advance" religion, but it has not objected to the printing of the phrase "In God We Trust" on the back of every dollar bill.
  • It is because of the wall-of-separation that has lead the supreme court pray in private schools not public.
    • This principle was first announced in the court decision of Everson v. Board of Education in 1947.
  • This is highly controversial, especially with regards to schools and prayer, Congress has tried unsuccessfully to amend the constitution
    • It was decided with Engel v. Vitale (1962) that there may not be prayer in public schools, even if the prayer is nondenominational.
  • It has also come into great mutiny when different views come into play. For example many practicing Jews don't like the idea of seeing a picture depicting Jesus during Christmas ceremony.
  • One of the most important decisions has been about vouchers (money given to families allowing them to go to private and parochial schools). The Court decided that the vouchers were constitutional
  • the Court has created a test (Lemon Test) to see if government involvement in a religious activity is acceptable
  • The guarantee against the establishment of religion was incorporated against the states in the Everson v Board of Education Supreme Court case. The Supreme Court ruled that the New Jersey law (paying transportation to schools [even the private ones, which included many Catholic schools]) had not violated the Establishment clause of the 1st Amendment (Wilson and Dilulio).

Exclusionary Rule: Improperly gathered evidence(in violation of the Constitution) may not be used in a criminal or civil trial.
    • Fourth Amendment - protection against unreasonable search and seizures and obtaining improper confessions
    • Fifth Amendment - protection against self incrimination.
    • In 1949 the Supreme Court first decided that even though the 4th Amendment prohibits the police from carrying out unreasonable searches and obtaining improper confessions that the exclusionary rule is not necessary to enforce these prohibitions.
    • Instead, it was suggested that if local police were to use improperly gathered evidence, the solution would be to punish the officer responsible, or sue the department (Wilson 116).
    • The Exclusionary Rule is meant to be more preventative of usage of evidence in court than it is to be more punishing to an officer or a department, although both are plausible under the rule.
    • The Supreme Court changed its mind in 1961 in Mapp v. Ohio when it decided the states must follow the exclusionary rule.
    • There is however a "good-faith exception" which is an error in gathering information small enough that it can still be used in a hearing.
Fourteenth Amendment: No state shall deprive any person of life, liberty, or property without due process of law and that no state shall deny to any person within its jurisdiction the equal protection of the laws.
  • Ratified in 1868
  • Most important addition to the Constitution because it was ratified in order to ban slavery and protect newly freed slaves, according to Wilson and Dilulio
  • Many cases have dealt with this amendment for use in determining a verdict.
  • created the possibility that some or all of the Bill of Rights might restrict state government's actions based on the "due-process clause"

Probable Cause: Reasonable cause for issuing a search warrant or making an arrest; more than mere suspicion.

Culture and Civil Liberties – Rights in Conflict
- many Americans think civil liberties are like a set of principles that protect everyone’s freedoms all the time
  • that is true but only up to a point
- Constitution and Bill of Rights have competing rights and duties
  • this is seen when one person argues their constitutional right and another person argues a different one
  • example: freedom of speech (falsely yelling “fire” in a crowded building) versus the preservation of public order (ensuing stampede)
- During Wartime. minorities usually have their liberties restricted. The Sedition Act, passed in 1798, made it a crime to write or publish "any false, scandalous and malicious writing" (Wilson and Dilulio 100).
-The Espionage and Sedition Acts were passed in 1917-18 from fear of Germans.
- Ethnic, religious, and cultural differences have different views on the meaning and span of certain constitutionally protected freedoms
  • example: Jewish groups finding a nativity scene displayed in front of a government building offensive, but Catholics and Protestants find it important to America’s cultural heritage; Boy Scouts of America defended its refusal to allow homosexual men to become scout leaders, while many gays and civil libertarians challenged this policy because it discriminated against gays
-An example of how self-expression can conflict with the community is nude dancing. (Wilson 102).
-"Americanism" has been equated to the values and habits of white Anglo-Saxon Protestants
-The Smith, Internal Security, and Communist control Act were laws that made it illegal to advocate the overthrow of the U.S. government.
  • Smith Act: cannot overthrow by force or violence during World War 2
  • Communist Control act of 1954: declared the Communist Party to be part of a conspiracy to overthrow the government during the McCarthy era.
  • Internal Security act of 1950: required members of the Communist Party to register with the government which took place during the Korean War.
-These laws had the common goal to protect the people from any threats, real or imagined.

Applying Bill of Rights to the States

Selective incorporation: Court cases that apply the Bill of Rights to the States. Before the Civil War concluded in 1865, the Bill of Rights and Constitutional rights were only applied to the federal government, not state governments; after, new amendments were ratified in order to ban slavery and protect newly freed slaves from discrimination (Wilson 102). The Court debated which rights were "fundamental" that they had to govern the states. The entire Bill of Rights is applicable to the states except the following: the right to bear arms (2nd Amendment); the right not to have soldiers forcibly quartered in homes (3rd Amendment); the right to be indicted by a grand jury before being tried for a serious crime (5th Amendment); the right to a jury in civil cases (7th Amendment); and the ban on excessive bail and fines (8th Amendment). These rights can be restricted by the states. New rights created by the Court, such as the right to "privacy," are applicable to both the national government and the states.
- In Gitlow v. New York, the Court argued for the first time that fundamental personal rights are protected from infringement by the states because of the due- process clause (Benson and Waples).
- Most of the Bill of Rights has been incorporated into the states since 1925.

Due process of law: Denies the government the right, without due process, to deprive people of life, liberty, and property
  • Ensures that there will be no conflicts with the first amendment.

Equal protection of the law: A standard of equal treatment that must be observed by the government. Shifted the protection of rights from protecting the citizen from the federal government to protecting them from the states and local governments.

"In defining individual rights, the Court has consistently weighed the rights of individuals against the needs of society at large. Therefore, none of the rights guaranteed in the Bill of Rights is absolute" (Princeton Review). Throughout the US's history, the Supreme Court can limit some of these rights for the greater good.

- The Constitution says that the legislature may make "no law" abridging freedom of speech or the press
  • Some judges argued this means literally no law, the Court has held that there are at least four forms of speaking and writing that are not automatically granted full constitutional protection:
Libel and Slander
    • Libel is a written statement defaming another with false information. If it was true, you cannot collect no matter how badly it harmed you.
      • In some countries, such as England, it is much easier to win a libel suit. (Wilson)
      • Private citizens find it easier to sue for libel because they must have proof that the publisher had actual malicious intentions to hurt the plaintiff, and that personal harm was done to the person.
    • Slander is an oral statement defaming another
    • The burden of proof of libel and slander cases is higher for public figure because they must show that the statement was stated with actual malice and disregard for the truth and with knowledge that the statement was false
      • Example: Theodore Roosevelt sued a newspaper for falsely claiming that he was drunk, jury awarded him damages of only 6 cents.
        • Beauty contest winner awarded $14 million when she proved that Penthouse magazine libeled her.
        • Carol Burnett, an actress, sued a gossip magazine and collected a great deal in the suit. (Wilson)
  • According to Wilson, obscenity is not protected by the First Amendment.
  • The Court has always held that obscene materials because they have no redeeming social value and are to appeal to one’s sexual rather than political or literary interests, can be regulated by the state.
  • Recently there has been a rubric by which a work can be judged to be obscene or not, as below:
    • must be judged by the average person and applying community standards
    • to appeal to the "prurient interest" according to Wilson
    • to be considered obscene, it must lack literary, artistic, cultural, or scientific value. therefore the government can only penalize "hard-core pornography" (Wilson).
    • What is "hard-core pornography"? According to former Supreme Court Justice Potter Stewart, "I know it when I see it". Which begs the question: what was a Supreme Court Justice doing looking at hard-core pornography? Perhaps it was merely research for the case...
  • Miller v. California established the Miller Test for obscenity (which has been heavily tailored since the decision), and limits the rights of advertisers to use public communications to send out obscene materials.
    • The Case made the broadness of the interpretation of the first amendment 'free speech" smaller, and therefore making it more conservative regarding obscenity.
    • the Court established the three-part obscenity test:
      • Would the average person, applying community standards, judge the work as appealing primarily to people's baser sexual instincts?
      • Does the work lack other value, or is it also of literary, artistic, political, or scientific interest?
      • Does the work depict sexual behavior in an offensive manner?
  • Albany, Georgia decided that the movie Carnal Knowledgewas obscene by contemporary local standards.
  • Jacobellis v. Ohio (1964), Justice Potter Stewart "I know it when I see it"
-Supreme Court overturned the conviction of the distributor claiming Albany did not show the film's "patently offensive hard- core sexual conduct
Symbolic Speech
  • Definition: an act that conveys a political message.
  • Example: flag burning, burning draft cards, wearing armbands, book burning
  • Symbolic speech is usually not protected by the government except for flag burning but with some restriction. Flag burning was addressed in the supreme court case Texas v. Johnson
  • Burning draft cards is able to be ruled unconstitutional because since the government has the right to have a draft, the government can protect the draft cards as government property making it illegal to burn them (Wilson 108).
  • Unlike other types of symbolic speech such as buring draft cards, the only motive that the government has in banning flag-burning is to restrict this form of speech, and that would make such a restriction improper.
  • Courts reason that by giving symbolic speech the same protection as real speech it would lead to permitting other illegal actions, like murder, arson, and rape, if the perpetrator meant to send a message (Wilson and Dilulio).
Who is a person?
  • People, corporations, interest groups, and children all have the right to freedom of speach and press with some exceptions.
    • Dartmouth College v. Woodward (1818): A case that involved a contract dispute between two private corporations. Ever since this case corporations have been being deemed 'persons'
    • Santa Clara County v. Southern Pacific Railroad (1886): This case established that the 14th amendment applied to persons and corporations, who were also labeled 'persons'.
    • The freedom given to both persons and corporations extends to the point where nobody is hurt or affected negatively (Examples at bottom of page).
  • the supreme court defended the First bank of Boston's right to freedom of press when it was put to question by the attorney general of Massachussetts. (Wilson 108)
  • The government often places more restrictions on commercial rather than noncommercial speech by regulating advertisements for cigarettes, alcohol, and even gambling (Wilson)
  • Ex. the government can't keep lawyers from advertising or personally soliciting clients, but it can keep a liqour company from doing so since minors are not allowed to consume alcohol
False advertising: False advertising, defines by the Lanham Act to mean "Any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities" is not protected by the First Amendment.
Political Speech: The 2002 Campaign Finance Reform Act bans the use of corporate money to pay for electioneering communication (use of the media to advocate a candidate) within 30 days of a primary and 60 days of a general election.
  • McConnel V. Federal Election Commission(2003) upheld the campaign finance reform law
Testing Restrictions on Expression
1. Preferred position. The right of freedom of expression is protected more than all other rights, such as the right to property. If there are conflicting rights, the Court will always be skeptical of restricting the freedom of expression.
2. Prior restraint. There is no prior restraint on expression, even if an action will be the cause for punishment later. The Court, for example, will not tolerate censorship, even if it will require punishment for libel after it has been published.

  • Prior restraint- censorship of a publication
  • In Near v. Minnesota, it was decided that censorship could only take place with extreme circumstances and it is otherwise unconstitutional.
  • Imminent danger: Freedom of expression does not include statements that would lead to danger or incite unlawful acts as a result (Wilson, 107).
  • Neutrality: Any restrictions on speech must not favor any one group (Wilson, 107).
  • Clarity: Any law punishing speech for obscenity must have a clear definition of what to consider as obscenity (Wilson, 107).
  • Least-restrictive means: if the government has to restrict a certain right in order to protect another, it must be done in the least-restrictive fashion (Wilson 107).

Search and seizure
  • According to Wilson and Dilulio, the police are only allowed to search:
    • You
    • Things in plain view
      • The room in which you are arrested but not other rooms of the house.
    • Things or places under your immediate control
  • You can be searched if the search occurs when you are being lawfully arrested.
    • If: a judge has issued an arrest warrant for you, if you commit a crime in the presence of a police officer, or if the officer has probably cause to believe that you have committed a serious crime.
    • If you are arrested and no search warrant has been obtained, the police still decide what they can search (Wilson 116).
  • Search warrant:A judge's order authorizing a search (Wilson).
    • A search warrant can only be authorized as long as what will be searched/seized is specifically described (Wilson 116).
    • Also, the police department has to persuade a judge that there is good reason for the search or seizure to take place (Wilson 116).
  • Probable cause: According to Wilson, this is the reasonable clause for issuing a search warrant or making an arrest; more than mere suspicion.
  • The Constitution only protects the people from government searches and seizures, so a private employer has more freedom to search your desk/belongings (Wilson 117).
USA Patriot Act
The Patriot Act, passed after the attacks on 9/11, violates many of the rights guaranteed in the Constitution. The Patriot Act allows the following:
      1. The government may tap all of the phones of a suspect with a court order, instead of having to get a separate court order for each wire tap.
      2. Internet taps with a court order
      3. seizure of voice mail with a court order
      4. shared information from grand jury hearings
      5. attorney general can hold immigrants for seven days if they pose a threat to national security
      6. the government can now track the movement of the U.S. dollar in other countries and among banks
      7. the imposing of limitations of terrorist crimes is diminished, but has severe penalties.
      8. Accused are tried before a commission of military officers.
      9. In order to find the accused guilty a two thirds vote of the commission is needed.
      10. If the accused wants to appeal the accused can only appeal to the secretary of defense or to the President.

Forms of Unprotected Speech
    • "Obscene" speech is "unprotected" speech as ruled by the Supreme Court. "Unprotected speech," means speech that does not enjoy First Amendment protection and may even be criminal to express.
    • Speech is also unprotected if it poses a clear and present danger to the public. These limits were first defined in the case Schenk v. United States(1919).
    • Other forms of unprotected speech are anything libel (written), hate speech, or false advertising.
Free Speech and Free Press Cases
    • Chaplinksy v. New Hampshire (1942)- fighting words are not protected under the First Amendment
      • Chaplinsky was talking bad on religions while walking on a sidewalk which angered people around him. The police arrested him, and he cursed different things to the police officers. He was only fined but he declared that the fine was against his 1st and 14th amendment rights. However, the court decided that fighting words are not protected by the first amendment
    • Collin v. Smith (1978)- Nazi party can march through a largely Jewish neighborhood
    • McConnell v. Federal Election Commission (2003)- upholds 2002 campaign finance reform law and held that money is not protected free speech.
      • The Campaign Finance Reform Law of 2002:
        • banned unregulated donations to political parties
        • banned the solicitations of donations
        • placed limitations on the advertising
        • restricted the political parties use of funds to finance advertisements for candidates
    • Miller v. California (1973)- obscenity is defined as appealing to lewd 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"
    • Time, Inc. v. Firestone (1976) - a case that used New York Times v. Sullivanas an standard on how to judge the roles of people in society and how the "public figure" is to be classified. Printing flase information of private parties has a different standard to public figures of which it is upheld.
    • New York Times Co. v. United States (1971)- Dealt with the controversy over the printing, or attempted printing of "The Pentagon Papers" by the New York Times. The U.S. government demanded that they had the right to limit the release of military and diplomatic information in order to ensure national safety. The New York Times won the case.
    • Reno v. ACLU (1997)- a law that bans sending "indecent" material to minors over the internet is unconstitutional because "indecent" is too vague and broad a term
    • Schenk n. United States (1919)- speech may be punished if it creates a clear and present danger test of illegal acts
      • Clear-and-present-danger test: Law should not punish speech unless there was a clear and present danger of producing harmful actions.
        • It was a way to balance the competing demands of free expression and national security back then after World War I and still today.
      • Shenck was convicted because the court determined that Shenck's leaflets caused such a danger. He had been convicted of violating the Espionage Act because he mailed circulars to men elligible for the draft, urging them to resist.
      • Chief Justice Oliver Wendell Holmes used the expample of someone yelling "fire!" in a crowded theater
        • "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent (Wilson 103)."
    • Brandenburg v. Ohio (1969)- added the "imminent lawless action" test, to the Schenk idea of clear of present danger.
      • Limited the clear and present danger test by ruling that the government could punish the advocacy of illegal action only if "such advocacy is directed to inciting or producing imminent lawless action" (Krieger 133).
      • The test takes into consideration the intent, imminence, and likelihood to incite crime.
    • Gitlow v. New York (1925)- "Bad Tendency Doctrine", which held that speech could be restricted even if it only has a tendency to lead to illegal action
    • Texas v. Johnson (1989)- there may not be a law to ban flag burning. Flag burning is an example of symbolic speech.
    • Tinker v. DeMoines(1969) -Established that student's rights for wearing black armbands in protest to the Vietnam War was "a legitimate form of symbolic speech."
    • Hustler Magazine v. Falwell (1988) - In this much-publicized case, the Court held the intentional infliction of emotional distress was permissible First Amendment speech -- so long as such speech was about a public official, and could not reasonably be construed to state actual facts abut its subject.

Difference between Civil Rights and Civil Liberties
Religious Freedom Cases
  • Everson v. Board of Education: The wall of separation principle is announced. (Wilson 114)
    • Taxes were used to fund the transportation for public and private Catholic school children to and from school. The case was based on the idea that this action was against the Establishment Clause. The Supreme Court ruled that the money was used to support education, not religion.
  • Engel v. Vitale: Deemed it unconstitutional for public schools to have government-directed prayers, even if the prayer is voluntary (students remaining silent or leaving the classroom for the duration of the prayer), since it was in violation of the Establishment Clause as applied to state through the 14th Amendment because it breaks "the wall of separation between Church and State." [2]
  • Zelman v. Simmons: Harris-this case was the voucher plan to pay school bills is upheld.
  • Santa Fe Independent School District v. Doe(2000):Supreme Court states it to be a violation of the Establishment Clause for students to lead prayers before the start of a football game at a public school.(Wilson 114)
  • Lee v. Weisman(1992): Public schools are prohibited from holding clergy prayers at graduation due to the establishment clause.
  • Zorauch v. Clauson(1952): States may allow students to be released from public schools to attend religious instruction. (Wilson 114)
  • Lemon v. Kurtzman(1971): Three tests are described for deciding whether the government is improperly involved with religion.

Church and State
Lemon v. Kurtzman - This court case had to do with whether it was okay for a state to offer public funds to private schools if the majority of the private schools were religious. The court ruled that such funding would be unconstitutional and in violation of the Establishment Clause which is applicable to the states under the 14th Amendment. This decision lead to the Lemon test. If a piece of legislation doesn't meet one of the following 3 criteria, it is deemed unconstitutional.
  1. The law must have a secular purpose.
  2. The government's action can neither advance nor inhibit religion.
  3. The legislation must not cause an "excessive government entanglement" with religion.
Free-Exercise Clause
    • Free-Exercise Clause: First Amendment requirement that law cannot prevent free exercise of religion.
    • This prohibits the national government from passing laws that would dictate how a person practices their religion.
      • The book gives examples: Cannot pass laws that would prohibit Catholics from celebrating Mass, require Baptists to become Episcopalians, prevent Jews from holding bar mitzvahs or other such examples.
    • The Fourteenth Amendment makes this applicable to the State governments as well via the Due-Process clause.
    • This includes such laws that, though not employed against a specific religion, place undue burdens on members of a specific religion.
    • Religions are, however, required to obey all laws that bind every other citizen.
    • "The Court weighs individual rights to free religious exercise against society's needs." (Levy and Meltzer)

Property Rights
  • The Constitution protects property rights mainly through the Fifth Amendment.
    • "Nor shall private property be taken for public use, without compensation."

The Establishment Clause
    • Establishment Clause: First Amendment ban on laws "respecting an establishment of religion."
    • This includes the establishment of a National Religion, which is unconstitutional, as it elevates one religion over the other.
    • The basic principle is known as the Wall of Separation.
      • Wall of Separation: Court ruling that government cannot be involved with religion.
    • Aids can be given by the government, but must involve a secular purpose.
      • The government provides subsidies to church - related education such as lunches, textbooks, and buses (Levy and Meltzer)
    • Since 1947, the Court has used the principle of the wall of separation to strike down any attempt to have any form of prayer in public schools (Wilson).
    • The Court also has struck down any laws that prohibit the teaching of evolution, or requiring the teachings of "creationism," since both are religiously inspired (Wilson).

Crime and Due Process
  • An "unreasonable search" isn't a clearly defined term so rules are placed so that evidence is gathered in a lawful and reasonable way so that it can be used in a trial. (Wilson 114)
exclusionary rule: improperly gathered evidence my not be used in a criminal trial.
search warrant : a judge's order authorizing a search.
  • You can also be searched without a warrant if you are being lawfully arrested.
  • When can you be lawfully arrested?
    • If a judge has issued an arrest warrant for you.
    • If you commit a crime in the presence of a police officer.
    • If a police officer has probable cause to believe that you have committed a serious crime. Usually a felony.
probable cause: evidence sufficient to warrant an arrest or search and seizure
due process: divided into two subsections:
  • substantive due process- involves the policies the policies of government or the subject matter of the laws, determining if a law is fair or in violation of the Constitution.
  • There are three types of substantive as established by United States v. Carolene Products Co.:
  • Incorporation of thew first eight amendments to the Bill of Rights
  • the right to participate in any political activity
  • the rights of "discrete and insular minorities" (e.g. minorities that seem to have no basis for rights in the US, do haave protection under the Due Process Clause.)
  • procedural due process- method of gov action/execution of law according to established rules and procedures

Constitutional Protections for Accused Persons of Crimes

Criminal Charges: Landmark Cases
    • Gideon v. Wainwright(1964): If a person is charged with a crime they still have a right to an attorney even if they are unable to afford one themselves.
    • Mapp v. Ohio(1961): If evidence is illegally gathered by the police, this evidence may not be used in a criminal trial (exclusionary rule).
    • Miranda v. Arizona(1966): All defendants must be informed of their rights upon being arrested
      • the right to an attorney is also included in the "Miranda" rights (seen in Gideon)
    • Escobedo v. Illinois(1964): Any defendant that asked for a lawyer had to have one granted to him or any confession could not be used in court.
    • Dickerson v. United States (2000): The decision in this case held that the Mapp decision was based on the Constitution and could not be changed by Congress passing a law to change the ruling.
    • Terry v. Ohio(1968): It is constitutional to search criminal suspects and police may search suspects out of concerns for safety
    • Rasul v. Bush(2004): The case determined that terrorist detainees have access to a neutral court; the neutral court will have the right to decide if the detainee is legally held.
    • United States v. Leon (1984): Going against the Mapp decision, it was determined that illegally gathered evidence could be used in the court if it was gathered in good faith.

Confessions and Self-Incrimination
Miranda and Escobedo
Miranda Rule:
    • Named after Ernesto Miranda, who was convicted of rape and kidnapping. He confessed under intense interrogation without any mention by the police of his right to obtain a lawyer or what consequence the answers to their (police) questions would have on the outcome of the trial (Barron's AP Government). He had his sentence overturned due to the fact that he was not made aware of his rights nor did he waive them, making his confession self-incrimination.
    • Suspect has the right to remain silent
    • Suspect has the right to a lawyer and can obtain the service of one free of charge
    • The suspect is informed that anything they say can and will be used against them in court
    • The suspect has the right to talk to a lawyer before being asked any questions and may keep the lawyer at their side while being questioned
    • While giving a statement, the suspect may stop at any time
good-faith exception also known as the good-faith doctrine, provides exemptions to the exclusionary rule. Evidence gathered in violation of privacy rights as interpreted by the Fourth Amendment can still be admitted at a trial if the police officers acted in good faith when collecting the evidence, reasonably believing their actions were legal.
-The Court has decided that "overriding concerns of public safety" may justify questioning a person without first reading the person his rights.
-It also decided that evidence incorrectly gathered cannot be excluded when it would "inevitably" have been found.
- A confession should be presumed involuntary unless the person in custody had been fully and clearly informed of his or her right to be silent, to have an attorney present during any questioning, and to have an attorney provided free of charge if he or she could not afford one.
How a Military Court Operates
-A military court or military tribunal is a specially designed court use to try prisoners of war or enemy forces during wartime.
-In a national emergency Bush proclaimed that terrorist will be tried by a military court rather than a civilian court (Wilson and Dilulio).
-The tribunal can operate in secret if classified information is used in evidence (Wilson and Dilulio).
-The accused are tried before a commission of military officers.
  • Two-thirds of the commission must agree before the suspect can be convicted and sentenced
    • if convicted, the suspect can appeal to the secretary of defense and the president, but not to a civilian court.
-The biggest legal issue created by this country's war on terrorism is whether people we capture can be held by our government without giving them access to the courts


The USA Patriot Act (2001): It was designed to increase federal powers to investigate terrorists.
Its main provisions were these:
  • Telephone Taps: The government may tap, if it has a court order, any telephone a suspect uses instead of having to get a separate order for each telephone.
  • Internet taps: The govern,eny may tap, if it has a court order, internet communications.
  • Voice Mail: With a court order, the govenrment may seize voice mail.
  • Grand jury information: Investigators can share with other government officials things learned in secret grand jury hearings.
  • Immingration: The attorney general may hold any noncitizen who is thought to be a national security risk for up to seven days. If the alien cannot be charged with a crime or deported within that time, he or she may still be detained if he or she is certified to be a security risk.
  • Money Laundering: The government can get new powers to track the movement of money across U.S. borders and among banks.
  • A military trial is held before a commission of military officers and not a civial jury. 2/3 of the commission must agree before the subject is convicted and sentenced.
- The biggest issue America faces in regards to terrorism is whether the people we capture can be held by our government without giving them access to the courts.
  • This issue was addressed when addressing foreign terrorists in Guantanamo Bay, Cuba.
- American citizens are entitled to a hearing before a neutral decision maker in order to fight the detention.
-Government has always had to compromise between safety and preserving basic rights. The more protections and regulations there are, the less liberties people will have.
- About a month later, President Bush, by executive order, proclaimed a national emergency under which any non-citizen who is believed to be a terrorist or has harbored a terrorist will be tried by a military, rather than a civilian court.

Executive Power
  1. 2/3 vote for conviction
  2. Appeal to the secretary of defense and the president
-Korematsu v. United States (1944)
  • allowed for American citizens of Japanese decent to be interned and their constitutional rights be taken away through executive order (Meltzer and Levy 146)
    • this was a basic infringement of human rights and later was scrutinized
-United States v. Nixon (1974)
  • Congress denied any form of executive privilege to get tapes of conversation in the Oval Office, but the Court ruled there was executive privilege. Meltzer and Levy 146)
  • In criminal cases, however, the Court forbid this privilege, leading to a future impeachment, but Nixon resigned
  • this indirectly protected the people's liberties since it showed that nobody was above the law

  1. ^ Wilson, James Q., and John J. Dilulio. American Government: Institutions and Policies. Tenth ed. Boston, MA: Charles Hartford, 2006. Print.
  2. ^ "Engel v. Vitale." Cornell University Law School. https://www.law.cornell.edu/supremecourt/text/370/421