Government - Unit 6

What are the 5 freedoms of Amendment 1?

religion

assembly

press

petition

speech

Which Amendment contains a clause that extends protection to state governments?

14

What does Amendment 14 establish?

Due process

No state shall deprive any person of life, liberty, or property without due process

No state shall enforce or make a law that abridges the privileges or immunities of citizens

What is due process?

the laws, procedures, and processes must be fair

What is equal protection?

the law is applied the same to each person as long as the circumstances are the same

What is procedural due process?

requires that certain procedures must be followed in carrying out or enforcing laws

What is substantive due process?

the content of laws and how they are carried out must be fair

What does Amendment 9 state?

rights of the people

we have rights not specifically stated in the Constitution, ex. right to die

What are civil liberties?

basic freedoms to think and act that all people have and are protected against the government

What are civil rights?

rights of fair and equal status & treatment and the right to participate in government

What is selective incorporation?

the Court’s reasoning for incorporating those rights

What 5 things does the establishment clause cover?

1. Congress cannot establish an official religion

2. There must be a separation between church and state

3. Public life (oaths of office, pledge of allegiance, Congress opens with prayer, chaplains in Armed Forces, tax exemptions for religious groups)

4. Secular textbooks can be paid for by the state

5. Cannot pay for equipment because they could be used for religious instruction

What court case established the Lemon test?

Lemon v. Kurtzman

What is the Lemon test?

1. Must have a clear, non-secular purpose

2. Does not advance nor inhibit religion

3. Avoid “excessive government entanglement with religion”

What is the definition of the free exercise clause?

guarantees each person the right to hold any religious beliefs they choose

What is the test or standard for free exercise?

Belief is absolute but practice may be limited if it violates laws that are meant to protect the health, safety, and morals of the community

What is lewd and profane/obscene speech?

speech that is vulgar or obscene

What is defamatory speech?

false statements that damage a person’s reputation and that are published in print or stated in the media

What is libel?

defamation in print

What is slander?

defamation in speech

What is an instance when speech can be limited?

if it creates a clear and present danger

What is the test for free speech?

1. clear and present danger

2. bad tendency doctrine

3. preferred position doctrine

What is the bad tendency doctrine?

restricted speech if it has a tendency to lead to illegal action

restricts speech that incites immediate lawlessness

What is the preferred position doctrine?

- states that Amendment 1 freedoms are more fundamental than others and hold a preferred position

- the government must balance the rights of the individual with the responsibility to maintain order & safety

- the government must explain why they are prosecuting the defendent

List the types of unprotected speech

seditious speech

defamatory speech

slander

libel

fighting words

What is seditious speech?

any speech urging resistance to lawful authority or advocates for the violent overthrow of the government

What are the types of speech?

Pure speech

Symbolic speech

What is pure speech?

verbal expression of through before a willing and private audience

no government regulation

What is symbolic speech?

using actions or symbols in place of or in addition to words

includes strikes and parades

What limits are put on symbolic speech?

- government can require permits

- can regulate the when, where, why, and how, but must not discriminate between ideas

- must not block sidewalks, harass passerby, or endanger the safety of others

What is prior restraint?

censorship of material before it can be viewed by the public

Is prior restraint legal in the US?

nope!

Who controls public airwaves/radio?

FCC

Federal Communications Commission

What are the obscenity guidelines?

1. If the average person believes it appeals to a purely sexual interest

2. Lacks serious literary, artistic, political, or scientific value

3. Describes sexual conduct specifically outlawed by state law

What are the exceptions for prior restraint?

cases of national security:

- cause serious, irreparable harm

- no other course of action will prevent the harm

How does the courtroom affect the rights of the accused with a free press?

provides a fair, speedy, public trial with a jury

criminal trials are open to the public but judges may put restrictions in place to ensure a fair trial

What is the definition of freedom of assembly?

the right to join and form groups (clubs, interest groups, labor unions) and to gather for any peaceful and lawful purpose

What does redress of grievances mean?

to remove the cause of complaint and make things right

What limitations can schools put on student assembly?

control the time, manner, and place

What was the cause and decision in the NYTimes vs. United States case?

Cause: the US tried to stop the publication of the Pentagon Papers during our involvement in the Vietnam war due to national security

Decision: ruled in favor of the Times - national security did not outweigh the public’s right to know

What was the cause and decision in the Hazelwood School District vs. Kuhlmeier case?

Cause: the school district attempted to censor a student newspaper

Decision: schools can regulate school newspapers because they are part of the curriculum & if the content goes against the school’s educational mission

What was the cause and decision in the Schenck vs. United States case?

Cause: Charles Schenck printed fliers urging men to refuse service in the war

Decision: first established the idea of limited speech with clear and present danger - deemed unprotected because the flyers posed a threat to our military

What was the cause and decision in the Miller vs. California case?

Cause: Marvin Miller was prosecuted for publicly distributing obscene materials

Decision: established guidelines for determining obscenity

What was the cause and decision in the Lemon vs. Kurtzman case?

Cause: struck down a law that allowed public funding for the teaching of non-religious subjects at private schools (including religious)

Decision: formed the Lemon test to determine if a law has violated the establishment clause

What was the cause and decision in the Tinker vs. Des Moines case?

Cause: students were suspended because they wore black arm bands to school to protest the Vietnam War after being warned not to do that

Decision: was a violation of free speech because there was no disruption to learning and you can’t stop something like that just because you think it will incite violence

“Students don’t shed their constitutional rights at the schoolhouse gates"

What was the cause and decision in Morse vs. Frederick?

Cause: student held up a sign that said “Bong Hits for Jesus” across the street from the school during a very public event

Decision: Amendment 1 does not prevent schools from restricting student speech that is reasonably viewed as promoting illegal drug use and goes against the school’s mission

What are the options to protect the rights of the accused?

1. move the trial/change the venue

2. restrict number and conduct of reporters in the courtroom

3. isolate jurors and witnesses from the press (sequester)

What was the cause and decision in the Texas v. Johnson case?

Cause: Johnson burned an American flag during a protest

Decision: burning the flag is not a violation of free speech

When is it okay to have displays with religious connotations in a public setting?

if it is clear that it is not promoting or benefiting one religion over another, and it is not inherently religious (ex. Christmas trees, colored lights, nativity scene)

What was the cause and decision of the Sheppard vs. Maxwell case?

Cause: the pretrial press during the conviction of Sheppard made it hard to get a fair trial

Decision: established the options to protect the rights of the accused

What was the cause and decision of Bethel vs. Frasier?

Cause: a student used a lewd speech during a student assembly that attempted to promote a classmate to a student office - never used bad words but said things like “he will take you to the climax” and “he is firm in his pants”

Decision: the court ruled that schools can prohibit speech that is vulgar, lewd, or is plainly offensive

Are you going to kill this test??

Absolutely!

What is the cause and decision of the Skokie, IL case?

Cause: Nazis wanted to hold a rally in a Jewish community of Holocaust survivors, and people attempted to protest the rally by applying for a bond

Decision: tried to limit attendance by requiring a bond to attend, which is unconstitutional because it prevented people who didn’t have that money to attend. Also tried to use a heckler’s veto but also declared unconstitutional - even if ideas are unpopular, they are still allowed to assemble as long as they aren’t inciting violence

What was the cause and decision in the Mahanoy vs. B.L. case?

Cause: B.L. posted an explicit picture on Snapchat saying, “F*** school f*** softball f*** cheer f*** everything.” and was consequently suspended from the cheer team for the upcoming year

Decision: the school lacks authority to regulate B.L.’s off-campus speech and they were wrong for suspending her from the cheer team