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43 Cards in this Set
- Front
- Back
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Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. |
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Quartering of Soldiers. Ratified 12/15/1791. Note
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. |
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Quartering of Soldiers. Ratified 12/15/1791. Note
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. |
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Search and Seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. |
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Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. |
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Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. |
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Trial by Jury in Civil Cases. Ratified 12/15/1791.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. |
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Cruel and Unusual Punishment. Ratified 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. |
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Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. |
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Powers of the States and People. Ratified 12/15/1791. Note
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. |
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probable cause
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sufficient evidence to make a criminal arrest
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exclusionary rule
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evidence that has not been gained consistent with the due process elements of the Bill of Rights can not be admitted at trial. Examples: searches conducted without a search warrant, criminal confessions or results of interrogations taken without Miranda readings.
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search warrant
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a writ to allow the search of a home or location within the parameter and conditions expressed on the warrant. The warrant is issued by a judge on sufficient probable cause.
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good-faith exception
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when an arrest or search can be done without a warrant
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Amicus curiae
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legal Latin phrase, literally translated as "friend of the court", that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief - testimony that has not been solicited by any of the parties - or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.
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A dissenting opinion
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an opinion of one or more judges expressing disagreement with the majority opinion. By definition, a dissent is the minority of the court.
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majority opinion
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judicial opinion agreed to by a majority of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision
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plurality opinion
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the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The final decision is determined by the opinion which received support from a mere plurality of the court. That is, the plurality opinion did not receive the support of half the justices, but received more support than any other opinion.
It is crucial to note that plurality opinions are not binding. They are often treated as majority opinions, because by the time a similar case is considered, a 5th Justice has come around. However, in reality, they arere just interesting dicta, showing continued flux and ambivalence on the part of the Court. |
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concurring opinion
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a written opinion by some of the judges of a court which agrees with the majority of the court but might arrive there in a different manner. In a concurring opinion, the author agrees with the decision of the court but normally states reasons different from those in the court opinion as the basis for his or her decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of jurists is referred to as the plurality opinion.
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Stare decisis
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the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[1]
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standing or locus standi
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the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In the United States, for example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. The party suing must have something to lose in order to sue unless they have automatic standing by action of law.
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Court's reasoning: Government-directed prayer in public schools, even if it is denominationally neutral and non-mandatory, violates the Establishment Clause of the First Amendment.
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Engel v. Vitale 1962The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day in Hyde Park, NY. Its invocation read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Is the State of New York violating the First Amendment?
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Court's reasoning:The Court decided 8-1 in favor of the respondent, Edward Schempp, and declared sanctioned organized Bible reading in public schools in the United States to be unconstitutional.
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Abington Township v. Schempp 1963
At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. Is the Abington Township violating the First Amendment? |
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For a law to be considered constitutional under the Establishment Clause of the First Amendment, the law must have a legitimate secular purpose, must not have the primary effect of either advancing or inhibiting religion, and must not result in an excessive entanglement of government and religion.
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Lemon v. KurtzmannIn Pennsylvania, a statute provided financial support for teachers' salaries, textbooks, and instructional materials for secular subjects to non-public schools. In Rhode Island, a statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Are these statutes constitutional?
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Court's reasoning:Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war.
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Schenck v. U.S. 1919
Charles T. Schenck and Elizabeth Baer disagreed with U.S. military policy and advocated that those in the military refuse to obey orders. They were charged with violation of the Espionage Act of 1917, a Congressional law that made it a crime to "willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military…or to willfully obstruct the recruiting service of the United States." Schenck appealed the conviction to the Supreme Court, claiming his actions were protected by the First Amendment. Is he right? |
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What's the issue? _______________________________________
Court's reasoning:Defendants' criticism of U.S. involvement in World War I was not protected by the First Amendment, because they advocated a strike in munitions production and the violent overthrow of the government. |
Abrams v. United States 1919
Jacob Abrams and others produced and distributed leaflets that were pro-revolution in Russia and urged the U.S. factory workers to strike, so that arms and munitions being produced for WWII would not be used against the revolutionaries in Russia. Only a few people ever received the leaflet. They were also tried under the Espionage Act of 1917. Were their rights to free expression violated? |
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What's the issue? _______________________________________
Court's reasoning:Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New York's criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets. |
Gitlow v. New York (1925)Benjamin Gitlow publishes a manifesto against the United States Government and urges it be overthrown. It is doubtful that many people have ever heard of Gitlow, and few read the manifesto. A New York State statute prohibits insurrection against the government. Gitlow was arrested, brought to trial, and convicted. Has his right to free speech been violated?
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Court's reasoning: A Minnesota law that imposed permanent injunctions against the publication of newspapers with "malicious, scandalous, and defamatory" content violated the First Amendment, as applied to the states by the Fourteenth. Minnesota Supreme Court reversed.
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Near v. Minnesota 1931
Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that nay person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory " newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped). Are Jay Near's First Amendment rights being violated? |
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Court's reasoning: The Court decided in favor of the petitioners, holding that "Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment" and, further, that freedom to associate with organizations dedicated to the "advancement of beliefs and ideas" is an inseparable part of the Due Process Clause of the Fourteenth Amendment
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NAACP v. Alabama 1958
As part of its strategy to enjoin the NAACP from operating, the State of Alabama asked the NAACP to turn over to the Attorney General's office the names of its member. Is the state vilating their First Amendment rights? |
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Court's reasoning: The First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth. Supreme Court of Alabama reversed and remanded.
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New York Times v. Sullivan 1964
Civil rights activists ran an ad in The New York Times alleging that the arrest of Martin Luther King for perjury in Alabama was part of a campaign to destroy King's efforts to integrate. The ad included some statements that were false, including a statement that police action was allegedly directed against students who participated in ca civil rights demonstration at the request of an elected official in Montgomery Alabama, L.B. Sullivan. Sullivan sued The New York Times Company for libel. Is he right? |
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Court's reasoning: The First Amendment, as applied through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war protest, absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others. Eighth Circuit reversed and remanded.
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Tinker v. Des Moines 1969
Three public school students in Des Moines, Iowa were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. The school adopted a rule forbidding them from wearing the armbands. Were their First Amendment rights violated? |
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Court's reasoning: The First Amendment, as applied through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war protest, absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others. Eighth Circuit reversed and remanded.
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Cohen v. CA (1971)
A student named Cohen wanted to protest U.S. involvement in Vietnam, and the drafting of young men in particular. On the back of his jacket, for all to see, he wrote the words, "F--- the Draft!" and walked into a courthouse. He was arrested and prosecuted in California under the charge of contempt of court and other applicable statutes. Were his First Amendment rights violated? |
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Court's reasoning:In order to exercise prior restraint, the Government must show sufficient evidence that the publication would cause a “grave and irreparable” danger.
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New York Times Company v. United States (1971)
A New York Times reporter receives secret, classified documents from a government insider about U.S. military operations indicating that the war in Vietnam is not going as successfully as being portrayed by Nixon and his administration. Should the New York Times publish the information? Can the government enjoin them? |
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Court's reasoning:Obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political, or scientific value.
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Miller v. California 1972
Miller produced a mass mailing campaign of "adult" material. Some recipients of the mailing objected and complained to authorities. Miller was convicted of violating a California statute prohibiting the distribution of obscene material. Were his First Amendment rights violated? |
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Court's reasoning:The Court upheld federal limits on campaign contributions and ruled that spending money to influence elections is a form of constitutionally protected free speech
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Buckley v. Valeo 1976
In the Wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates. The laws set limits on the amount of money an individual can contribute to a single campaign and requires reporting of contributions above the threshold amount. Do these laws violate the First Amendment? |
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Court's reasoning: The Court held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression.
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Hazelwood v. Kuhlmeier 1988
Kathy Kuhlmeier and two other journalism students wrote articles on pregnancy and divorce for their school newspaper. Their advisor submitted page proofs to the principal for approval. The principal objected to the articles because he felt that the students described in the article on pregnancy, although not named, could be identified, and the father discussed in the article on divorce was not allowed to respond to the derogatory article. The principal also said that the language used was not appropriate for younger students. When the newspaper was printed, two pages containing the articles in question, as well as four other articles approved by the principal were deleted. Were the students' rights to free expression violated? |
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Court's reasoning:The creators of parodies of public figures are protected against civil liability by the First Amendment, unless the parody includes false statements of fact made in knowing or reckless disregard of the truth. Fourth Circuit Court of Appeals reversed
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Hustler Magazine v. Falwell 1988
Hustler magazine published a parody of a liquor advertisement in which Rev. Jerry Falwell described his "first time" as a drunken encounter with his mother in the outhouse. Was Jerry Falwell libeled or defamed? |
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Court's reasoning:A statute that criminalizes the desecration of the American flag violates the First Amendment. Texas Court of Criminal Appeals affirmed.
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Texas v. Johnson 1989
In 1984, in front of Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2000 fine. Were his First Amendment rights violated? |
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Court's reasoning:The St. Paul Bias-Motivated Crime Ordinance was struck down both because it was overbroad, proscribing both "fighting words" and protected speech, and because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. Judgment of the Supreme Court of Minnesota reversed
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R.A.V. v. City of St. Paul (1992)
A minor named Robert A. Victoria burned a cross inside the fenced yard of a black couple named Russ and Laura Jones. He was arrested on charges of violating a city disorderly conduct ordinance. The ordinance made it a misdemeanor to for anyone to place a symbol, object, or graffiti, including a swastika or burning of a cross, on public or private property if it was likely to arouse "anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender." Is Mr. Victoria's conviction unconstitutional? |
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Court's reasoning:A private organization is allowed, under certain criteria, to exclude a person from membership through their First Amendment right to freedom of association in spite of state antidiscrimination laws.
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Boy Scouts of America v. Dale 2000
The Boys Scouts of America revoke former Eagle Scout and Assistant Scoutmaster James Dale's adult member when the organization discovered that Dale was a homosexual and a gay rights activist, as they felt his activities were inconsistent with the values of the Boy Scouts. Dale sued to be reinstated, under the grounds that the State of New Jersey prohibits discrimination on the basis of sexual orientation in public accommodations. Should he be reinstated? Have his First Amendment rights been violated? Would the Boy Scouts rights be violated if he is reinstated? |
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Court's reasoning: Virginia's statute against cross burning is unconstitutional because it places the burden of proof on the defendant to demonstrate that he or she did not intend the cross burning as intimidation.
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Virginia v. Black (2003)
Another cross-burning case came to the court in 2003. Do you think time has changed the view of cross burning? How do you think the Court ruled? |
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Court's reasoning:A noncustodial parent did not have standing in federal court to allege that his child's school violated the Establishment Clause by leading students in the recital of the phrase "one nation, under God" in the Pledge of Allegiance.
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Elk Grove Unified School District v. Newdow 2004
Michael Newdow's daughter attended public school in th eElk Grove Unifeid School District in California. Elk Grove teachers began school days by leading subjects in a voluntary recitation of the Pledge of Allegiance. The pledge includes the "under God" which were added to the original pledge by a 1954 Congressional act. Newdow sued on behalf of his child in the federal district court in California, arguing that making students listen–even if they choose not to participate–to the words "under God" violates the establishment clause of the U.S. Constitution's First Amendment. Is he right? Newdow is divorced from his wife. His daughter resides with his wife. Both the wife and daughter believe in God and the daughter has no objection to saying the pledge with the "under God" words. Should that matter in determining whether or not the Elk Grove School District violated the First Amendment? |
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Court's reasoning:Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.
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Morse v. Frederick 2007
At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? Should a student be able to sue a school principal who violates his free speech rights? |
