Chapter 3

Contemporary 4th Amendment Issues

- Warrantless searches of cell phone data ruled unconstitutional in 2019 - USA Freedom Act has placed more limitations of bulk collection of telecommunications metadata than its predecessor, the USA Patriot Act

USA Freedom Act

-A 2015 law that came into effect the day after the USA PATRIOT Act expired. Following Edward Showden leaking over a million classified documents in 2013 to expose the power of the NSA and privacy violations -This act restored many provision of the PATRIOT Act but limited the collection of telecommunication metadata of citizens by the National Security Agency. -Allowed the government to continue the bulk collection of Metadata, but required them to obtain a warrant to look at it.

Prior Restraint

-A government preventing material from being published, rules of what can and cannot be published. -This is a common method of limiting the press in some nations, but it is usually unconstitutional in the United States, according to the First Amendment and as confirmed in the 1931 Supreme Court case of Near v. Minnesota.

Symbolic Speech

-An act that conveys a political message, such as signs, symbols, etc. -hate speech is protected as long as it doesn't call for imminent lawless action

Eighth Amendment

-Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Roper v. Simmons (2005)

-Execution of offenders for crimes committed while under the age of 18 is unconstitutional

Gitlow v. New York (1925)

-For the first time the Supreme Court rules that other portion besides the due process clause of the Bill of Rights are binding upon the states -Established precedent of federalizing Bill of Rights (applying them to the states); states cannot deny freedom of speech --protected through due process clause of Amendment 14

Time, Place, and Manner restrictions

-Government regulations that place restrictions on free speech. There is a heavy presumption in favor of free speech on *public property*. These regulations, specifying when, where, and in what way speech is allowed, are applied when unrestricted free speech will conflict with the rights of others. -any restriction must be justified based on public order and saftey, not the content of the speech -any restrictions must offer people alternative ways to express their speech

McDonald v. Chicago (2010)

-Incorporated the 2nd Amendment right to bear arms to the states -the 2nd amendment right to bear arms for the purpose of self defense applies to the states through the 14th amendments due process clause

Preffered Position Doctrine

-Interpretation of the First Amendment that holds that freedom of expression is so essential to democracy that governments should not punish persons for what they say, only for what they do -free speech is fundamental to liberty, therefore, any limit must address severe inment threats -essentially the courts preferance is to rule in favor of free speech whenever possible

Seventh Amendment

-Right to a trial by jury in civil cases over $20

Unprotected Speech

-Speech that is not protected by the First Amendment and may be forbidden by the government; speech may be regulated based on time, place and manner. -Liberl: written law -Slander: spoken lie -Obscenity: Miller v. California; based on community standards, offensive and inciting value -"imminent lawless action"

Incorporation***

-The doctrine that the Supreme Court used to apply the Bill of Rights to the states under the 14th Amendment Due Process Clause -The Bill of Rights applies to the states and limits the power of state governments -weakens state governments because they can no longer violate portions of the Bill of Rights that have been incorporated -reverses Barron v Baltimore

When making an arrest, an officer CAN search...

-The person under arrest -Things in plain view -Things/places under your immediate control (the room you're in)

Tenth Amendment

-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.

Exclusionary Rule

-a law that prohibits the use of illegally obtained evidence in a criminal trial -the person may still be tried using other evidence

selective incorporation

-applying the Bill of Rights to the states on a case by case basis, via the due process clause of the 14th Amendment. -only the third, seventh, and the grand jury clause of the 5th amendment haven't been incorporated

Bill of Rights

-guarentees of fundamental rights and freedom that the federal government cannot infringe up otherwise the first 10 amendments

Exclusionary Controvery

-it may at times allow guilty people to go free -makes the job for law enforcement tougher -goal is to protect the right of the accused -established by the Fourth Amendment in the Supreme Court

A search is legal if...

-probable cause: an officer has good reason to believe a crime had been committed -search warrant: an order from a judge authorizing a search -the person consents to the search

Brandenburg v. Ohio (1969)

-speech that does not call for illegal action is protected, and even speech that does call for illegal action is protected if the action is not "imminent" or there is reason to believe that the listeners will not take action

Ninth Amendment

-states that people's rights are not limited to just those listed in the Constitution -the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Furman v. Georgia (1972)

-temporarily stopped the use of the death penalty in the United States -the death penalty being applied arbitrary with a racial bias against black defendants -the ruling forced stated to remake their death penalty policies to assure that the death penalty would be administered in a capricious or discriminatory manner

D.C. v Heller

-the 2nd Amendment protects the right of individuals to possess a firearm for personal use; specifically, there is a constitutional right to keep a handgun in the home for self defense

Fourteenth Amendment/Due Process Clause

-the constitutional amendment adopted after the Civil War that states, "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." -the basis for incorporation: reason why the states have to follow the bill of rights -due process: rules and regulations must be followed by the government

Which of the following amendments are part of due process:

5th and 6th Amendments

Which amendment lays out the fair procedures for a trial?

6th Amendment

Which title makes it illegal to practice sex discrimination in employment?

7

Free Exercise Clause

A First Amendment provision that prohibits government from interfering with the practice of their preferred religion.

Which of the following scenarios, related to the First Amendment, best illustrates the "right to petition the Government.."

A citizen calls a member of Congress to persuade her to vote yes on a bill.

Sixth Amendment

A constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial.

Fifth Amendment

A constitutional amendment designed to protect the rights of persons accused of crimes, including protection against double jeopardy, self-incrimination, and punishment without due process of law.

Which of the following statements best describes how United States citizens regard the rights of free speech and assembly?

A majority agrees in principle with these rights, but in practice many people are often intolerant of views they do not support.

Which of the following could be an explanation for attitudes reflected in the graph?

A significant terrorist attack in 2001 caused Americans to be more concerned with preventing terrorism than protecting civil liberties.

Which of the following would most likely be protected by the First Amendment?

A student wears a black armband at school to protest government involvement in a war.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Which of the following most accurately describes American attitudes regarding civil liberties that are reflected in the graph?

Americans disagreed about whether it was necessary to give up civil liberties to prevent terrorism

As explained in the excerpt above, which of the following best deschibes the Supreme Court's holding in Gitlow v. New York?

Application of the New York statute in this case was constitutional because the speech involved could cause violence.

Why doesn't the Court use Strict Scrutiny involving laws that target women, the same way they use that standard to evaluate laws that target specific racial, national, and religious groups?

Because women are not a minority in society

Which federal law is most responsible for the rules against sex discrimination?

Civil Rights Act of 1964

Establishment Clause

Clause in the First Amendment that says the government may not establish an official religion; wall of seperation between church and state

First Amendment

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.

Kennedy v. Louisiana

Court held that the death penalty is not appropriate for a crime that does not include the taking of a life, including rape

Gregg v. Georgia (1976)

Death penalty does not violate 8th amendment of cruel and unusual punishment if it is an "extreme criminal case" such as the deliberate killing of another person; the death penalty can be carefully and judiciously applied.

What is the first step of the Strict scrutiny test?

Determine if a protected liberty is denied.

When a policy affects members of a protected class much more than they affect people not in the class, judged on a percentage basis - such as when 35% of the workforce is female but when it's time for promotions only 2% of the promotions go to women - what is this called?

Disparate Impact

Mapp v. Ohio (1961)

Established exclusionary rule; illegally obtained evidence cannot be used in court; selectively incorporated the Fourth Amendment

Which of the following is an accurate comparison of the establishment clause and the free exercise clause?

Establishment Clause-Prohibits the federal government from promoting religion or creating a national religion Free Exercise Clause-Protects an individual's religious beliefs and reasonable religious practices

True or False: The police always need a search warrant to conduct a search.

False.

To which level of government did the Bill of Rights originally apply?

Federal government only

In the Gitlow case, the Supreme Court determined whether a New York statute violated which of the following constitutionally provisions?

First Amendment.

Most of the individual protections of the Bill of Rights now apply to the states because of the Supreme Court's interpretation of the Constitution's:

Fourteenth Amendment

The United States Supreme Court has used which of the following to incorporate the Bill of Rights into state law?

Fourteenth Amendment

Which amendment deals with searches, seizures, and warrants?

Fourth Amendment

What group can determine whether to bring charges against someone or group/business/etc.?

Government

What type of jury can decide whether or not the State can charge you with with a crime (offer up an indictment)?

Grand Jury

In Miranda v Arizona, what was the main reason he was found guilty?

He confessed.

What is the primary reason women do get some special treatment under the law?

Historically they have been singled out for mistreatment

What type of scrutiny does the Court typically use in cases of sex discrimination?

Intermediate

Which of the following best summarizes the debate reflected in McDonald v. Chicago (2010)?

Is the Second Amendment right to keep and bear arms for self-defense in one's home fully applicable to the states?

Based on the excerpt, which of the following most accurately describes the danger presented by the speech at issue in the Schenck case?

It could hinder the war effort.

Which of the following best describes a purpose of the Establishment Clause?

It prohibits Congress from establishing a state religion

Which of the following best describes an impact of the Supreme Court's use of the selective incorporation doctrine?

It restricts the power of state legislatures to pass laws that interfere with individual rights.

If the Supreme Court applies strict scrutiny when reviewing a law or executive order, what is the outcome likely to be?

It will be ruled unconstitutional

Which of the following Supreme Court decisions upheld the federal government's right to hold Japanese-Americans in internment camps during World War II?

Korematsu v. US

What are protected classes of people also called?

Minorities

What is the big problem with enforcing "equal treatment under the law"?

Most discrimination happens in private institutions (not government employment)

Which of the following most clearly states the outcome of McDonald v. Chicago (2010)?

Municipalities may not infringe on the individual Second Amendment right to bear arms for self-protection in one's home.

In which Supreme Court decision was the "separate but equal" doctrine established?

Plessy v. Ferguson

Which of the following best defines civil liberties?

Provisions in the Bill of Rights that provide guarantees against arbitrary interference by government

All of the following are part of the 6th amendment EXCEPT Right to a speedy and public trial Right to a jury of your friends Right to know the charges against you Right to an attorney

Right to a jury of your friends

The outcome of McDonald v. Chicago (2010) rests most heavily on which of the following ideas reflected in the U.S. Constitution?

Right to keep and bear arms

New York Times v. US 1971

Ruled that in order to exercise restraint, the Government must show sufficient evidence that the publication would cause a "grave and irreparable" danger.

A group unhappy with local law enforcement distributes a memo to members encouraging physical confrontations with police officers. The leaders of the group are promptly arrested. Which of the following Supreme Court cases best justifies the actions taken by law enforcement in this scenario?

Schenck v. United States

In the case of McDonald v. Chicago (2010) the Supreme Court ruled that the Second Amendment right to keep and bear arms for self-defense was applicable to the states. This ruling is an example of the application of the doctrine of:

Selective Incorporation

Schneck v. United States (1919)

Speech may be punished if it creates a clear-and-present-danger test of illegal acts

USA Patriot Act (2001)

Strengthens the federal government's power to conduct surveillance, perform searches, and detain individuals in order to combat terrorism; passed a month after 9/11

Engel v. Vitale (1962)

Struck down state-sponsored prayer in public schools, even if participation is voluntary and the prayer is not tied to a specific religion; state sponsorship pf religious activities violates the establisment clause

Barron v. Baltimore

The 1833 Supreme Court decision holding that the Bill of Rights restrained only the national government, not the states and cities.

Wisconsin v. Yoder (1972)

The Court ruled that Wisconsin could not require Amish parents to send their children to public school beyond the eighth grade because it would violate long-held religious beliefs.

The application of the Second Amendment in McDonald v. Chicago (2010) relied most heavily on which constitutional guarantee?

The Due Process Clause.

Who does the burden of proof go to if an employee can demonstrate that disparate impact exists and that it has the effect of excluding a protected class?

The Employer

Which of the following amendments to the Constitution most likely provides the basis for a driver to challenge the constitutionality of police use of sobriety checkpoints in enforcing drunk driving laws?

The Fourth Amendment protection against unreasonable search and seizure

In McDonald v. Chicago (2010), the United States Supreme Court stated that, "(self-defense is a basic right, recognized by many legal systems from ancient times to the present day" was "deeply rooted in this Nation's history and tradition." and that an individual's right to bear arms; The quote points to which of the following amendments to the United States Constitution as a basis to limit state action?

The Second Amendment

Tinker v. Des Moines (1969)

The case that ruled that students do not lose Constitutional rights when they entered the building but they can be limited if they cause a disruption.

The Supreme Court has ruled which of the following concerning the death penalty?

The death penalty is not necessarily cruel and unusual punishment

If you think you've been discriminated against at work, what is the first thing you have to prove about the discrimination in order for the federal law to be of use to you?

The discrimination was based on your membership in a protected class

Opinion of the Court, Schenck v. United States (1919) Which of the following statements is most consistent with the excerpt above?

The extent of free speech protection is affected by the context in which the speech is uttered.

Third Amendment

The government may not house soldiers in private homes without consent of the owner.

Whose job is it to tell you your due process rights if you get arrested?

The police.

Which of the following is one of the central concerns of the First Amendment?

The right of citizens to petition the government for redress of grievances

Fourth Amendment

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.

A political scientist would most likely use McDonald v. Chicago (2010) to illustrate which of the following?

The right to keep and bear arms extends to individuals in each of the 50 states

Which of the following best explains why the Court upheld the convictions of the defendants despite their claim of free speech protections?

The rights of the defendants have to be balanced against the right of the government to maintain order.

Following mass shootings, the debate over whether there should be increased limits on access to guns intensifies. This is most representative of which of the following?

The tension between the need to protect public safety while also protecting individual rights.

Lemon Test

The three-part test for Establishment Clause cases that a law must pass before it is declared constitutional: -it must have a secular purpose -it must neither advance nor inhibit religion -it must not cause excessive entanglement with religion

Which of the following has been a continuing consequence of attempts to prevent terrorism through the PATRIOT Act and the US Freedoms Act?

There has formed an increase in legal battles between individual liberties and the need for safety.

Which of the following Supreme Court decisions allows public school students to wear T-shirts protesting a school board decision that eliminates funding for high school arts programs?

Tinker v. Des Moines Independent Community School District (1969)

Why is it so important to have these protections offered by the amendments?

To ensure that the government and police have limits on their power

In which of the following situations would the Supreme Court be most likely to utilize the doctrine of selective incorporation?

When an individual claims that a right protected by the Bill of Rights is infringed upon by a state

Which of the following cases examined a state law that required all children to attend school through the twelfth grade in order to promote the general welfare of its citizens?

Wisconsin v. Yoder (1972)

What is the largest group that receive protection from discrimination?

Women

Which of the following represents an example of a situation in which in an individual's civil liberties might be threatened by the government?

a student is prevented from wearing a t shirt with a contoversial political slogan to school

Eminent domain means the government

can take your personal property but they have to pay you fairly for it.

Cars are usually fair game for searches because

cops likely pulled you over for speeding, which is a crime

The "wall of separation" doctrine refers to the

division of church and state

Police can administer a breathalyzer test to measure blood alcohol level only if _____?

do not profile who they stop to test

Civil rights protections come from the _____ clause of the _____ amendment?

equal protection/14th

In the case of Mapp v. Ohio, the Supreme Court ruled:

evidence found without a warrant is not admissible in court

Atkins v. Virginia (2002)

execution of developmentally disabled offenders is unconstitutional

Civil Liberties

fundamental rights and freedoms protected from infringement by the government

The 4th amendment protections apply only to searches by

government agents

The process of extending the protections of the Bill of Rights by means of the Fourteenth Amendment to apply to the actions of state governments is known as

incorporation

What level of scrutiny does discrimination against women use?

intermediate

The clear-and-present danger test devised by the Supreme Court was designed to define the conditions under which public authorities could

limit free speech

The Fourteenth Amendment to the Constitution has been interpreted by the Supreme Court to:

make most rights contained in the Bill of Rights applicable to the states

To obtain a search warrant, what do the police have to be able to show a judge?

probable cause

When courts determine whether a search is "reasonable," they balance:

public safety with personal privacy FYI: This trade off of limiting one's rights to ensure safety is called "The Social Contract".

Woodson v. North Carolina

ruled state mandatory death penalty sentences as unconstitutional

What do the police have to have before they can search you or your property?

search warrant

The Supreme Court ruled in McDonald v. Chicago (2010) that a citizen's right to keep and bear arms at home for self-defense is protected from state and federal infringement. Which of the following is most relevant to that decision?

selective incorporation

In the Gitlow case. the Supreme Court began the process of applying protections of individual freedoms from the Bill of Rights against state action. This process is known as

selective incorporation.

The Constitution and its amendments expressly prohibit all of the following EXCEPT

sex discrimination in employment

With respect to prayer in public schools, the United States Supreme Court has ruled that

state-sponsored prayer violates the establishment clause of the First Amendment

What is the highest level of scrutiny?

strict scrutiny

Which group does not enjoy the same rights against unreasonable searches and seizures as other citizens?

students

When a federal court or Supreme Court employs strict scrutiny, which of the following bears a heavy burden to prove whether the law or government action is allowable?

the federal government

The Fourteenth Amendment is important because it requires:

the states, not just the federal government, to uphold the Bill of Rights

On the most basic level, what does due process mean?

to have a fair trial

The interest of the state in keeping a safe, drug-free, and weapon-free educational environment TRUMPS the students' privacy interests. What does TRUMP mean, in this context?

to outweigh

The free-exercise clause protects

voluntary prayer by student groups before school

When does the Supreme Court use the rational basis of scrutiny?

when the civil rights of non-protected groups may have been violated

Double Jeopardy means...

you cannot be tried a second time in the same jurisdiction for the same crime if you are acquitted the first time