Civil Liberties and Rights EXAM 1

test on oct 5th, 3:30 PM

originalism

prudentialism

consider outcomes, living constitutionalism (consider context of modern society to interpret constitution)

textualism

considering text?

difference within law and politics

selective incorporation

process of courts applying amendments from BOR to states on case-by-case basis, based on 14th amendment due process clause “nor shall any state…”

privileges and immunities clause

require states to protect basic rights

due process clause

requires states to ensure basic fairness

fundamental liberties found in history and tradition

most recent questions of selective incorporation

symbolic speech

types of unprotected speech

rules/logic for school speech disputes

traditional public forums

content based v content neutral regulations

compelling vs important/significant gov’t interests

narrowly tailored requirements

role of ideology in explaining free exercise cases

valid secular policy test

compelling interest test

valid and neutral law of general applicability

shift in plaintiff demographics

role of history in this jurisprudence

role of ideology in this jurisprudence

typical claimants in these cases

lemon test (legal rules)

palko v Connecticut legal rule

fist case that established selective incorporation (does the fifth amendment’s double jeopardy clause apply to states?)

duncan v louisana legal rule

should the sixth amendment jury trial provision apply to states?

timbs v indiana legal rule

should the eighth amendment excessive fines be incorporated into states? Is its incorporation essential to the core fundamentals of individuals (yes because there is a history of excessive fines holding citizens back)

DC v Heller legal rule

does the second amendment guarantee an individual right to bear rights?

NY v Bruen (2022) legal rule

can states limit the second amendment based on proper cause/need of self defense? RULE: has to be consistent with the “history and traditions” of our country

US v O’Brien legal rule (draft cards)

Could the government utilize the clear and present danger test to restrict “symbolic speech”? (Answer: yes, if it is for content neutral reason. they justified by saying that burning draft cards can hurt the war efforts, when strict scrutiny was applied, it was discovered that the gov’t needed to restrict the actions)

texas v johnson (1968) legal rule (flag burning)

is the government allowed to restrict freedom of expression via flag burning? (answer: no, it is protected speech and the restriction was content-based, strict scrutiny was applied)

tinker v des moines legal rule

are students allowed to protest in schools (answer: yes but with limitations like it has to be non-disruptive)

morse v frederick legal rule (bong hits 4 jesus)

can free speech be restricted at school sanctioned activities? (answer: yes, discouraging illegal substances is part of school’s mission and anti-drugs is apart of that)

cohen v california legal rule (f the draft)

was cohen’s jacket allowed to be restricted based on freedom of speech statutes? (answer: no, jacket didn’t breach the peace and arrest was content based not content neutral)

mahoney v BL legal cases (cheerleader snapchat case)

does the first amendment prevent school officials from regulating off campus speech? (answer: yes, you can’t regulate speech off school grounds if its not disruptive to school environment)

mccullen v coakley legal rule (sidewalk abortion case)

is the sidewalk restriction (of free speech) content neutral? (answer: no, sidewalks are public forums and have historically been used to express opinions and act is not narrowly tailored and burdens initial conversations)

snyder v phelps legal rule (military funeral)

is outrageous speech protected by first amendment? (answer: yes, especially if it occurs in public forum and with correct clearances)

tiktok v garland legal case

can this act violate 1st amendment? (answer: no, have important gov’t intervention needs because of potential data sharing from chinese tiktok owners)

sherbert v verner legal rule

compelling interest test (does gov’t owe unemployment benefits due to free exercise?) (answer: yes, give her exception and give her unemployment benefits)

wisconsin v yoder legal rule

does the govt have compelling enough interest in forcing mormons to continue school past 8th grade, violating their free exercise? (answer: no, if the purpose is priming them for society and mormons arent incorporated, then they don’t need to remain in school, mormons have long history of not attending hs)

employment division v smith legal rule (peyote case)

could state deny unemployment to plaintiffs due to their usage of peyote in religious ceremonies? (answer: yes, peyote is illegal and therefore not a protected usage of freedom of religion)

church of lukumi babalu v hialeah (santeria sacrifice)

does it violate their free exercise rights if you ban animal sacrifices? (answer: yes, this is a content-based law and govt doesnt have compelling enough interest to restrict their right to sacrifices)

lemon v kurtzman legal rule

lemon test

zelman v simmons-harris legal rule (school voucher)

does this school voucher violate the establishment clause? (no: choice and coersion test utilized and proved that parents werent forced to go to religious schools)

van orden v perry legal rule (10 commandments monument display)

is the gov’t endorsing christianity by displaying the 10 commandments in this display (answer: no, this is one of many and christianity is apart of “history” of our nation)

mccreary v aclu legal rule (10 commandments in schools)

court rules that 10 commandments in schools does violate establishment clause bc of violation of choice/coersion test (context and purpose is problematic)

greece v galloway legal rule

are these town meeting prayers consistent with the establishment clause 1st amendment? (answer: yes, they are allowed to use this prayer to establish mindset and to address solemnity of meeting, prayer is in public forum and you can use discetion to avoid prayer time)

american legion v AHA legal rule (giant cross case)

is it a problem that state now has giant cross in their state park and does this violate establishment? (answer: no clear lines for establishment clause amongst SCOTUS justices)

general legal rules about establishment

trick question, there is no established rules regarding establishment (think about varying rules/tests and varied applications)

how much this interest matters in content based regulations?

compelling (have to intervene), important (should intevene), legitimate (can intervene)

first amendment court case question

valid and neutral law of general applicability

free exercise test, formed by more conservative courts because they wanted less exceptions for exercise cases, if law/rule is not targeting a religion, it is NOT getting over turned

compelling interest test

more liberal test for free exercise cases, a religion can form a case against a law for an exception and the gov’t has to provide COMPELLING interest for not granting exception to religion (created by more liberal courts)

lemon test

establishment clause test (favored by liberals) three pronged test : neutral in purpose (secular purpose), neutral in effect, entanglement clause (gov’t can’t have entanglement, in lemon v kurtzman, problem was that they would have to follow up and do too much surveillance to ensure that school $ was used correctly)

choice/coersion

more conservative establishment doctrine rule (do you have a choice or are you being coerced?), heavily sways opinions

types of unprotected speech

criminal activity (fraud), obscenity, inciting violence,

symbolic speech

not speech but communication (arm bands, burning flags)