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87 Cards in this Set
- Front
- Back
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John Milton (1644)
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restriction on an open press are wrong:
-they were used by tyrants not deserving allegiance or respect -they inhibited development of individual character and potential -they were uneffective -discouraged learning and search for truth |
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John Stuart Mill (1859)
speech can be restricted only when it infringes on personal rights of others |
censorship is dangerous & wrong:
-they might be true -they might be partly true -public opinion must be tested |
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Alexander Mieckeljohn (1948)
ABSOLUTIST THEORY |
Public or Political speech is absolutely protected under the 1st Amendment
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Schenck v. US
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CLEAR & PRESENT DANGER TEST
-upholds conviction of Schenck under Espionage Act but protects free speech rights |
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1st Amendment
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Freedom of:
SPEECH RELIGION PRESS ASSEMBLY PETITION |
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5th Amendment
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-GRAND JURY CLAUSE
-SELF INCRIMINATION CLAUSE -DOUBLE JEOPARDY CLAUSE -JUST COMPENSATION CLAUSE -DUE PROCESS CLAUSE |
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Peter Zenger
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charged with seditious libel in 1735, found not guilty. established a precedent for citizen's rights to freedom of speech and press, and against gov censorship
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US v. O'Brien
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gov's compelling interest in the draft outweighs any 1st amendment claims of O'Brien to burn his draft card
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Tinker v. Des Moines Schools
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1st amendment protects peaceful, passive protests about public and political issues. arm band vietnam protests were not disruptive of school environment
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Texas v. Johnson
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flag burning ruled as symbolic expression of political or public protest protected under freedom of speech.
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Ashcroft v. Free Speech Coalition
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struck down CPPA, ruling "virtual" child-porn as not obscene under Miller v. California
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Ashcroft v. ACLU
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on second review, found COPA too restrictive of protected speech. (COPA outlawed placing sexually explicit material on the internet for anyone under 17)
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Which religious group has been involved in the freest exercise of religion cases?
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JEHOVAH'S WITNESS
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Establishment Clause Theories
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-Strict Separation (No-Aid) Theory
-Governmental Neutrality Theory -Governmental Accommodation Theory |
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Mitchell v. Helms
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NEUTRALITY THEORY
upheld gov program lending computers.. to public and private schools if done NEUTRALLY and without religious indoctrination |
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"charitable choice"
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direct US gov funding of religious organizations to provide social services. "faith-based initiatives"
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pornography does NOT equal obscenity.
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only possession of CHILD pornography is illegal
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New York Times v. Sullivan
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public officials must prove ACTUAL MALICE to collect damages
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Did the Court uphold Larry Flynt or Jerry Falwell?? Why?
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upheld LARRY FLYNT b/c there was no actual malice
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How do we amend the Constitution?
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2/3 vote in both houses, 3/4 ratification of both houses
OR 2/3 of state legislatures call a national convention and 3/4 of states ratify |
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Locke v. Davey
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Establishment Clause allows aid to religion, but is not required by Free Exercise Clause to grant it (scholarship to ministerial student)
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Miller v. California test for obscenity
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New Standard for Obscenity:
-upheld Roth standard -added "whether work, taken as a whole, lacks serious, literary, artistic, political, or scientific value" |
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Roth Standard for Obscenity
(Roth v. US) |
-average person, using contemporary community standards finds dominant theme of material prurient interest in sex in a patently offensive way
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SIMPLE malice
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defamatory falsehood made in "good faith"
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ACTUAL malice
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defamatory falsehood made "knowingly, deliberately, and maliciously"
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Zelman v. Simmons-Harris
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Upheld the use of SCHOOL VOUCHERS
bc the program is neutral and allows choice among alternatives |
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Joseph McCarthy
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US Senator who attacked presumed-communists from the senate floor
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McCarthy Era
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late 1940s and early 1950s
Smith Act (crime to organize, teach or talk about overthrowing gov) McCarren Act (required communists to register) Dennis v. US and Yates v. US |
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Santa Fe v. Doe
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ruled school districts could no longer hold public prayer before FOOTBALL games b/c it was gov endorsement of religion
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Lee v. Weisman
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establishment clause is violated when a clergyman is invited to deliver an invocation and benediction at a hs commencement, even when off campus
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Oregon v. Smith
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as long as state enacts a "generally applicable state law" applied equally to everyone, law does not violate Free Exercise Clause (overturned Sherbert v. Verner and compelling interest test)
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Why is teaching of creationism unconstitutional?
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teaching of Biblical creation is religious in nature and can't be conducted in public schools
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Wisconsin v. Yoder
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AMISH WON
b/c of the devout and sincere nature of their beliefs |
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Sherbert v. Verner
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COMPELLING INTEREST TEST
denial of unemployment benefits to 7th day adventist for refusing to work on saturday violated free exercise clause (overturned by Oregon v. Smith) |
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Widmar v. Vincent
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Widmar Wanted to hold FCA...
held that public universities cannot exclude religious groups based on the content of their speech (Equal Access Act of 1984) |
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Agostini v. Felton
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held that on-premise instructional programs do not violate the establishment clause
(overturned 1985 precedent) |
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Lemon Test
(Lemon v. Kurtzman) |
for aid to be permissible:
1)PURPOSE of aid secular 2)EFFECT of aid neutral 3)no excessive entanglements between church and state |
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James Madison's statement against a Virginia plan to provide financial support for the Christian religion. helped defeat proposed amendments bill
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Memorial & Remonstrance Against Religious Assessments
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Double Jeopardy does NOT prohibit:
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-Forfeiture Laws
-Civil Commitment Laws (mistrial and state/federal) |
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"wall of separation"
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THOMAS JEFFERSON
reflects Strict Separation/No Aid Theory of the establishment clause |
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Dickerson v. US
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made Miranda warnings a constitutional rule by stare decisis (and precedent)
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Kansas v. Hendricks
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CIVIL COMMITMENT
upheld Kansas's SVP Act of 1994 and held that involuntary civil commitment of a SVP isn't punishment and does not violate due process guaruntees |
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Miranda v. Arizona
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right to:
-remain silent -any statement will be used in court -right to attorney -right to waive rights voluntarily, knowingly and intelligently |
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Gregg v. Georgia
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death penalty laws must:
-bifurcated trials -aggravating circumstances -mitigating circumstances -automatic right of appeal to state sc |
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death penalty facts
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3,261 on death row
california 698 on death row 1,230 executions since 1976 texas 463 executed injection, electrocution, gas changer, hanging, firing squad 99%male 44%white 42%black 12%hispanic 11women executed, 51 on death row |
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Preemptory Challenges
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challenges for any reason limited to a specific number for each side
NOT to be used solely on race or gender |
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Payne v. Tennessee
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upheld the use of victim-impact statements in the punishment phase (victim had PAYNE)
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Furman v. Georgia
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struck down death penalty b/c of "arbitrary and capricious" manner in which it was administered
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Atkins v. Virginia
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banned execution of MENTALLY RETARDED offenders (overruled Perry v. Lynbaugh)
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Roper v. Simmons
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banned execution of JUVENILES (under age of 18)
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Kennedy v. Louisiana
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struck down Louisiana law allowing death penalty for child rape when the crime did NOT result in the victim's death
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Gideon v. Wainwright
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right to COUNSEL is FUNDAMENTAL in felony cases (later misdemeanors)
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When is a person entitled to a lawyer?
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right to counsel is guaranteed when punishment includes POSSIBLE IMPRISONMENT
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You have the right to an attorney for:
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-arraignment
-pre-indictment -custodial setting -post-indictment lineup -preliminary hearing -1st appeal after felony -probation & parole revocation |
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You do NOT have the right to an attorney for:
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-fingerprinting
-preindictment lineup -mugshot session -2nd appeal after felony |
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Van Orden v. Perry
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statue of 10 commandments is one of many and not a religious statement or invitation to worship. does NOT violate the establishment clause
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McCreary County v. ACLU
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poster of 10 commandments violates the establishment clause as a promotion of religion
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Dennis v. US
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UPHELD convictions of Dennis and other communists under the Smith Act. "Bad Tendency" test was used
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Yates v. US
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OVERTURNED convictions of Yates and other communists. distinguished between direct ACTION to overthrow the government (punishable) & abstract DOCTRINE (not punishable)
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Citizens United v. FEC
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gov may NOT ban political spending by corporations in candidate elections (overruled Austin v. Michigan Chamber of Commerce and McConnell v. FEC)
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"...government in this country...is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity."
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Engel v. Vitale
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"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court."
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Miranda rights
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"But the peculiar evil of silencing the expression of opinion is, that is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion; still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth..."
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John Stuart Mill - On Liberty (1859)
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"Petitioner's policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. I therefore dissent..."
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Board of Education v. Earls
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"It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action."
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Near v. Minnesota
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"We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty...In light of our evolving standards of decency, we therefore conclude that such punishment is excessive..."
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Atkins v. Virginia
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"When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight..."
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Schenck v. US
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"These children are persons within the meaning of the Bill of Rights...I think the children should be entitled to be heard. While the parents...normally speak for the entire family, the education of the child is a matter on which the child will often have decided views."
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Wisconsin v. Yoder
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"The religion then of every man must be left to the conviction and conscience of every man and it is the right of every man to exercise it as these may dictate. This right is...an unalienable right."
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James Madison
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"We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like always, will always find an outlet."
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McConnell v. FEC
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"The State's interest is not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here."
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Locke v. Davey
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"No one can question the State's duty to protect children from ignorance, but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the...community has been a highly successful social unit within our society..."
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Wisconsin v. Yoder
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"In sum, there is substantial evidence to support Congress' determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption."
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McConnell v. FEC
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"We recognize that distinctions between advocacy and teaching of abstract doctrines with evil intent, and that which is directed to stirring people to action, are often subtle and difficult to grasp...Persons must be urged to do something rather than just to believe in something."
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Yates v. US
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"If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required."
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Dennis v. US
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"If there is a bedrock principle underlying the 1st Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable..."
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Texas v. Johnson
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"Any system of prior restraints of expression comes to this Court bearing a presumption against its constitutional validity...The Government thus carries a heavy burden of showing justification for the imposition of such a restraint."
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New York Times Co v. Sullivan
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"...in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government..."
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Engel v. Vitale
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"We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials."
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New York Times Co v. Sullivan
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"The establishment of religion clause means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another."
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Establishment Clause of the 1st Amendment - James Madison
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"It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens..."
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Boerne v. Flores
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"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."
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Schenck v. US
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"Only a free and unrestrained press can effectively expose deception in the government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant land to die of foreign fevers and foreign shot and shell."
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New York Times Co v. US
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"We believe that the program challenged here is a program of true private choice...It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district."
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Zelman v. Simmons-Harris
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"Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless the materials depict or describe patently offensive hard core sexual conduct specifically defined by the regulating state law..."
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Miller v. California
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"By the rude bridge that arched the flood, Their flag to April's breeze unfurled; Here once the embattled farmers stood And fired the shot hear round the world."
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The Concord Hymn - Ralph Waldo Emerson
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"Today then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings, and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves."
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Miranda v. Arizona
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