Federal Govt Unit 1 Exam-Chapter 4

Substantive liberties

put limits on what the government shall and shall not have power to do—such as establishing a religion or seizing private property without just compensation.

Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, was arrested by the state of Connecticut for providing

information, instruction, and medical advice about contraception to married couples; She and her associates were found guilty as accessories to the crime and fined $100 each; reversed the lower court decisions and declared the Connecticut law unconstitutional because it violated "a right of privacy older than the Bill of Rights—older than our political parties, older than our school system."

"Expressive speech"

is protected until it moves from the symbolic realm to the realm of actual conduct—to direct incitement of damaging conduct with the use of so-called fighting words.

The exclusionary rule is the most dramatic restraint imposed by the courts on police behavior because

it rules out precisely the evidence that produces a conviction; it frees those people who are known to have committed the crime of which they have been accused.

Grand jury

jury that determines whether sufficient evidence is available to justify a trial; grand juries do not rule on the accused's guilt or innocence

The same assembly of "speech plus" on private property is quite another matter, and can in many circumstances be regulated by

lawfully prohibiting an assembly by the property owners

Although state gun laws must conform to the Second Amendment as interpreted by the U.S. Supreme Court,

laws concerning gun sales and ownership vary widely from state to state.

To protect Internet service providers, Congress subsequently enacted

legislation absolving them of responsibility for third-party posts

Within seven years of the ratification of the Bill of Rights in 1791, Congress adopted the infamous Alien and Sedition Acts,

made it a crime to say or publish anything that might tend to defame or bring into disrepute the government of the United States.

In practice, it is nearly impossible to prove that a paper deliberately printed

maliciously false information, and it is especially difficult for a politician or other public figure to win a libel case.

For more than 170 years after its ratification by the states in 1791, the Bill of Rights

meant little to most Americans.

Since upholding Customs Service's drug-testing program for its employees and drug and alcohol tests for railroad workers if they were involved in serious accidents,

more than 40 federal agencies have initiated mandatory employee drug tests, giving rise to public appeals against the general practice of "suspicionless testing" of employees, in violation of the Fourth Amendment.

Although at first the right to counsel was met by judges assigning lawyers from the community as a formal public obligation, now

most states and cities have created an office of public defender; these state-employed professional defense lawyers typically provide poor defendants with much better legal representation

In 1975 the Supreme Court struck down a state statute making it a misdemeanor to sell or circulate

newspapers encouraging abortions; the Court ruled that the statute infringed on constitutionally protected speech and on the right of the reader to make informed choices.

One amendment adopted by the House and Senate in 1791 was finally ratified by the states in 1992. This amendment stipulates that

no law changing salaries of Congress members can take effect until after an election has intervened.

The provision for a grand jury is the one important civil liberties provision of the Bill of Rights that was

not incorporated into the Fourteenth Amendment to apply to state criminal prosecutions; some states operate without grand juries.

Virtually all the debate over Eighth Amendment issues focuses on the last clause of the amendment:

one of the greatest challenges in interpreting this provision consistently is that what is considered "cruel and unusual" varies from culture to culture and from generation to generation

Fourteenth Amendment

one of three Civil War amendments; it guaranteed equal protection and due process; No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United 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 [emphasis added].

As early as 1920, the Cipher Bureau, remembered today as the

"Black Chamber," an office jointly funded by the army and the State Department, secretly inspected telegrams in the Western Union system.

President Obama called Citizens United

"a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.

The Court has held that the press was immune to libel suits only when the printed material was

"a matter of public concern."; In other words, a newspaper would have to show that the public official was engaged in activities that were indeed public

In criminal cases, guilt has to be proven

"beyond a reasonable doubt"—a far higher standard

In states without grand juries, the prosecuting attorney simply files a

"bill of information" affirming that there is sufficient evidence available to justify a trial; If the accused person is to be held in custody, the prosecutor must take the available information before a judge to determine that the evidence shows probable cause.

Unlike drunk-driving roadblocks, where public safety is directly involved, narcotics roadblocks

"cannot escape the Fourth Amendment's requirement that searches be based on suspicion of individual wrongdoing."; drug-sniffing dog on the front porch of a home constituted a search that violates the Fourth Amendment in the absence of consent of a warrant.

One of America's traditional and most strongly held juridical values is that

"it is far worse to convict an innocent man than to let a guilty man go free."

In a 1928 case, Justice Louis Brandeis argued in a dissent that the Fourth Amendment should be extended to a more general principle of

"privacy in the home."

Justice William Brennan defined obscenity as speech or writing that appeals to the

"prurient interest"—that is, whose purpose is to excite lust, as this appears "to the average person, applying contemporary community standards."

Freedom of speech and freedom of assembly are closely related by the

"public forum doctrine."

"Hostile working environment" results from

"sexual harassment," including "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [emphasis added]." A fundamental free speech issue is involved in these regulations of hostile speech.

In 1995 the Court narrowly ruled that a student religious group at the University of Virginia could not be denied student activities funds merely because it was a religious group espousing a particular viewpoint about a deity. The Court called the denial

"viewpoint discrimination" that violated the free speech rights of the group.

An effort was made to strengthen the restrictions in 1973, when the Supreme Court expressed its willingness to define pornography as a work that

(1) as a whole, is deemed prurient by the "average person" according to "community standards"; (2) depicts sexual conduct "in a patently offensive way"; and (3) lacks "serious literary, artistic, political, or scientific value." This definition meant that pornography would be determined by local rather than national standards.

New York Times v. United States

(the so-called Pentagon Papers case), the Supreme Court ruled that the government could not block publication of secret Defense Department documents furnished to the New York Times by an opponent of the Vietnam War who had obtained the documents illegally

Federal courts have on occasion held opinions that "cruel and unusual" punishment constitute

overcrowding and other dangerous conditions within prisons, such as inadequate food, medical care, and sanitation, punishments meted out to the mentally disabled and to juveniles, or prison officials employing threats and beatings against inmates

Between 1976 and mid-2014, states executed

1,384 people; Most of those executions occurred in southern states, with Texas leading the way at 515.

Supreme Court took another conservative step by restricting students' speech and press rights even further, defining them as

part of the educational process and not to be treated with the same standard as adult speech in a regular public forum.

Death-penalty opponents are quick to counter that

1. the death penalty has not been proved to deter crime, either in the United States or abroad. 2. execution is time-consuming and expensive—more expensive than life imprisonment—precisely because the government must make every effort to ensure that it is not executing an innocent person. 3. And although most Americans do support the death penalty, people also support life imprisonment without the possibility of parole as an alternative.

No further expansion of civil liberties via the Fourteenth Amendment occurred until

1925; Supreme Court held that freedom of speech is "among the fundamental personal rights and 'liberties' protected by the due process clause; In 1931 the Court added freedom of the press to that short list of freedoms protected by the Bill of Rights from state action; in 1939 it added freedom of assembly, but took more than 30 years to incorporate Double Jeopardy

Most states did not regulate abortions in any fashion until the 1840s, at which time only

6 of the 26 existing states had any regulations governing abortion. In addition, many states had begun to ease their abortion restrictions well before the 1973 Roe decision, although in recent years a number of states have reinstated some restrictions on abortion.

Reverend Jerry Falwell, the leader of the Moral Majority, lost his libel suit against Hustler magazine even though the magazine had published a cartoon of Falwell showing him having drunken intercourse with his mother in an outhouse, but

A unanimous Supreme Court rejected a jury verdict in favor of damages for "emotional distress" on the grounds that parodies, no matter how outrageous, are protected because "outrageousness" is too subjective a test and thus would interfere with the free flow of ideas protected by the First Amendment.

The 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

The constitutionality of the CDA was immediately challenged in court by a coalition of interests led by the

American Civil Liberties Union (ACLU)

Everson v. Board of Education (1947)

Applying the establishment clause, the Court found that using taxpayer money to bus students to private religious schools did not constitute establishing a religion because busing was a "separate" function from the school's religious purpose. (Nonestablishment of state religion (I))

Prohibition of Bills of attainder

Article I, Sec. 9, a law that declares a person guilty of a crime without a trial

Prohibition of Ex post facto laws

Article I, Sec. 9, laws that declare an action to be illegal after it has been committed

Habeas corpus

Article I, Sec. 9, which prohibits the government from depriving a person of liberty without an open trial before a judge.

Benton v. Maryland (1969)

Benton was tried twice for the same crime of larceny. The Supreme Court held "double jeopardy" as impermissible under the Fifth Amendment; expressly overruled Palko and declared that the double jeopardy clause did, in fact, apply to the states (Right against double jeopardy (V))

The 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.

DeJonge v. Oregon (1937)

DeJonge's conviction for addressing a meeting of the Communist Party was overturned as an infringement on freedom of assembly. (Freedom of assembly (I) and freedom to petition the government for redress of grievances (I))

The Eighth Amendment

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

Indeed, this concern for privacy lies at the heart of the Constitution's

Fourth Amendment, which prohibits "unreasonable searches and seizures."; Most of the time seen as related to appropriate manners of gathering evidence in mundane criminal cases, but such individuals might find themselves the target of government surveillance, investigation, or even prosecution.

Gideon v. Wainwright (1963)

Gideon requested a lawyer at his trial for a felony crime, but was denied under Florida law. The Supreme Court held the right to counsel in the Sixth Amendment applied to the states, so Gideon got a new trial with counsel. (Right to counsel in any criminal trial (VI))

National Right to Life Committee,

Groups opposed to abortion organized to fight the liberal new standard, while abortion rights groups have sought to maintain that protection

R.A.V. v. City of St. Paul (1992)

Here, a white teenager was arrested for burning a cross on the lawn of a black family in violation of a municipal ordinance that banned cross burning. The Court ruled that such an ordinance must be content neutral—that is, it must not prohibit actions directed at some groups but not others. The statute in question prohibited only cross burning—which is typically directed at African Americans.

On several occasions—most recently in 2006—a resolution for a constitutional amendment to ban flag burning has passed in the

House of Representatives but has never found enough support in the Senate.

The Seventh Amendment

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.

In 1984, at a political rally held during the Republican National Convention in Dallas, Texas, a political protester burned an American flag, thereby violating a Texas statute that prohibited desecration of a venerated object, but

In a 5-4 decision, the Supreme Court declared the Texas law unconstitutional on the grounds that flag burning was expressive conduct protected by the First Amendment; Since 1995 the House of Representatives has seven times passed a resolution for a constitutional amendment to ban this form of expressive conduct, but each time, the Senate has failed to go along.

The Sixth Amendment

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.

Knowledge is necessary to permit citizens to evaluate rulers' claims and to hold rulers accountable for their conduct, and

In essence, citizens must undertake their own surveillance of the government and its officials as a precondition for exerting influence over them

Malloy v. Hogan (1964)

Malloy was imprisoned for contempt after refusing to answer questions about gambling activities on grounds it might implicate him. The Supreme Court held the Fifth Amendment secures defendants against self-incrimination so Malloy could not be forced to testify. (Right against self-incrimination and forced confessions (V))

Miranda v. Arizona (1966)

Miranda was questioned by police and signed a statement of confession without being informed of his right to counsel and protection from selfincrimination. The Court held defendants in police custody must be informed of their rights. (Right to counsel and to remain silent (V))

The Third Amendment

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.

The Fifth Amendment

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 offence 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.

Near v. Minnesota (1931)

Overturned Minnesota's permanent injunction against those who created a "public nuisance" by publishing, selling, or distributing a "malicious, scandalous and defamatory newspaper, magazine or other periodical" as an infringement on freedom of the press. (Freedom of press (I))

Escobedo v. Illinois (1964)

Police denied repeated requests by Escobedo to see his lawyer during interrogation; Escobedo eventually incriminated himself in a murder. The Court held Escobedo's Sixth Amendment rights to counsel and to the right to remain silent were violated. (Right to remain silent (V))

(Article I, Section 9)

Right to open trial before a judge

Hamilton v. Regents of the University of California (1934)

Students filed suit to protest mandatory military training at the University of California on religious grounds. The Court upheld the right of California to mandate that its students receive military training as permissible under the First Amendment's free exercise of religion clause. (Free exercise of religion (I))

Citizens United v. Federal Election Commission (2010)

Supreme Court declared that the First Amendment prohibited BCRA's ban on corporate funding of independent political broadcasts aimed at electing or defeating particular candidates. In its 5-4 decision, the Supreme Court ruled that the Constitution prohibits the government from regulating political speech and that therefore the government could not ban this type of political spending by corporations.

Lemon v. Kurtzman

Supreme Court established three criteria to guide future cases—what came to be called the Lemon test. The Court held that government aid to religious schools would be accepted as constitutional if (1) it had a secular purpose, (2) its effect was neither to advance nor to inhibit religion, and (3) it did not entangle government and religious institutions in each other's affairs.

United States v. Grubbs (2006)

Supreme Court ruled that the police could conduct searches using such "anticipatory warrants"—warrants issued when the police know that incriminating material is not yet present but have reason to believe that it will eventually arrive at a particular premises.

Robinson v. California (1962)

The Court overturned a California law imposing a 90-day jail sentence on persons found guilty of "addiction to the use of narcotics" as cruel and unusual punishment for what amounted to illness. (Freedom from cruel and unusual punishment (VIII))

Mapp v. Ohio (1961)

The Court overturned the conviction of Dollree Mapp for possession of obsecene materials because the evidence was obtained in violation of the Fourth Amendment's requirement of a warrent for conducting a search. (Freedom from warrantless search and seizure (IV) ("exclusionary rule"))

McDonald v. Chicago (2010)

The Supreme Court struck down a Chicago firearms ordinance making it extremely dificult to own a gun within city limits as violating the Second Amendment. (Right to bear arms (II))

The first modern free speech case arose immediately after World War I for a conviction under the federal Espionage Act of 1917--opposing US involvement in the war

The Supreme Court upheld the Act and refused to protect the speech rights of the defendants on the grounds that their activities—appeals to draftees to resist the draft—constituted a "clear and present danger" to national security; the first and most famous "test" for when government intervention or censorship can be permitted.

Chicago, Burlington, and Quincy R.R. v. Chicago (1897)

The city of Chicago was required to compensate a railroad company for seizing its property for the purpose of widening a city road. (Eminent domain (V))

Brandenburg v. Ohio (1969)

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action [emphasis added]; In other words, as long as speech falls short of actually inciting action, it cannot be prohibited, even if it is hostile to or subversive of the government and its policies.

The Nineth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 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.

The 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.

Roe v. Wade (1973)

The right to privacy was confirmed and extended in an important Supreme Court decision: This decision established a woman's right to seek an abortion and prohibited states from making abortion a criminal act.

The battle against obscene speech has targeted "cyberporn"

pornography on the Internet.

Morse v. Frederick (2007)

This case dealt with the policies of Juneau-Douglas High School in Juneau, Alaska; a senior, Joseph Frederick, unfurled a banner reading "BONG HITS 4 JESUS." The school's principal promptly suspended Frederick, who then brought suit for reinstatement, alleging that his free speech rights had been violated; Chief Justice Roberts said that the First Amendment did not require schools to permit students to advocate illegal drug use.

Article III

Treason defined and limited to the life of the person convicted, not to the person's heirs, and Guarantee of trial by jury in state where crime was committed

Gitlow v. New York (1925)

Upheld Gitlow's conviction for "criminal anarchy" for publishing a left-wing manifesto. The Court held the First Amendment allowed the states to suppress speech directly advocating the overthrow of the government. (Freedom of speech (I))

The third view regarding religious establishment, which for many years dominated Supreme Court decision making in this realm, is the idea of

a "wall of separation" between church and state—Jefferson's formulation—that cannot be breached by the government.

"Zone of privacy" created by

a combination of the Third, Fourth, and Fifth amendments.

Engel v. Vitale (1962)

prayer in public schools was unconstitutional—that government should not be in the business of sponsoring official prayers.

The Bipartisan Campaign Reform Act (BCRA)

a new and still more severe campaign finance law passed in 2003; The act prohibited political advocacy groups from running ads that mentioned a candidate within 30 days of a primary election and 60 days of a general election. This ban was justified with the argument that wealthy special interests could affect election outcomes with last-minute ad campaigns.

Buckley v. Valeo (1976)

a number of important provisions were declared unconstitutional on the basis of a new principle that spending money by or on behalf of candidates is a form of speech protected by the First Amendment.

As of 2014, 32 states had statutes providing for capital punishment for specified offenses,

a policy supported by a majority of Americans, according to polls. On the other hand, 18 states bar the death penalty, and since the end of the 1990s, both the number of death sentences and the number of executions have declined annually.

Lemon test

a rule articulated in Lemon v. Kurtzman that government action toward religion is permissible if it is secular in purpose, neither promotes nor inhibits the practice of religion, and does not lead to "excessive entanglement" with religion

Libel

a written statement made in "reckless disregard of the truth" that is considered damaging to a victim because it is "malicious, scandalous, and defamatory"

The Federalists conceded that to gain ratification they would have to make an "unwritten but unequivocal pledge" to

add a bill of rights that would include a confirmation (in what would become the Tenth Amendment) of the understanding that all powers not expressly delegated to the national government or explicitly prohibited to the states were reserved to the states.

McConnell v. Federal Election Commission (2003)

after passage of a new and still more severe campaign finance law, the Bipartisan Campaign Reform Act (BCRA), a 5-4 majority seriously reduced the area of speech protected by the Buckley v. Valeo decision by holding that Congress was well within its power to put limits on campaign spending.

In August 2013 a federal judge, Shira Scheindlin, noted that most police stops occurred in minority communities and

amounted to a form of racial profiling. The judge's order ending the practice, however, was stayed by a federal appeals court that removed Judge Scheindlin from the case and accused her of improper bias

Prior restraint

an effort by a governmental agency to block the publication of material it deems libelous or harmful in some other way; censorship; in the United States, the courts forbid prior restraint except under the most extraordinary circumstances

Slander

an oral statement made in "reckless disregard of the truth" that is considered damaging to the victim because it is "malicious, scandalous, and defamatory"

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

another 5-4 majority of the Court upheld Roe but narrowed its scope, refusing to invalidate a Pennsylvania law that significantly limits freedom of choice.

Civil liberties

areas of personal freedom constitutionally protected from government interference

Marbury v. Madison (1803)

arguably the most important case in Supreme Court history, was the first U.S. Supreme Court case to apply the principle of "judicial review"; Written by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

Griswold v. Connecticut (1965)

argued that this right of privacy is also grounded in the Constitution, because it fits into a "zone of privacy" created by a combination of the Third, Fourth, and Fifth amendments.

The Court also upheld Kentucky's policy of execution by lethal injection despite

arguments that this form of execution was likely to cause considerable pain.

A bill of rights had been turned down with little debate because

as the Federalists, led by Alexander Hamilton, later argued, it was "not only unnecessary in the proposed Constitution but would even be dangerous; irrelevant to a national government that was given only delegated powers in the first place and the Constitution was to Hamilton and the Federalists a bill of rights in itself, containing provisions that amounted to a bill of rights without requiring additional amendments

District of Columbia v. Heller

at issue was a strict Washington, D.C., law that banned handguns. In a 5-4 decision, the Court ruled that the Second Amendment provides a constitutional right to keep a loaded handgun at home for self-defense, a view that had long been subject to debate.

In 1972 the Supreme Court overturned several state death-penalty laws, due to

being applied unevenly—that is, blacks were much more likely than whites to be sentenced to death, and the poor more likely than the rich, and men more likely than women.

In a 1990 case, the Supreme Court upheld a lower court order restraining Cable News Network (CNN) from broadcasting tapes of conversations between the former Panamanian dictator Manuel Noriega and his lawyer, supposedly recorded by the U.S. government, which

by a vote of 7 to 2, the Court held that CNN could be restrained from broadcasting the tapes until the trial court in the Noriega case had listened to the tapes and decided whether their broadcast would violate Noriega's right to a fair trial.

The Court reaffirmed that the death penalty could be used if

certain standards were met

In 2005 a New York Times reporter, Judith Miller, was jailed for contempt of court for refusing to tell a federal grand jury the name of a

confidential source in a case involving the leaked identity of the CIA analyst Valerie Plame.

At the same time, citizens' ability to exercise power also requires that they have

considerable protection from the state's scrutiny; the efforts of the party-out-of-power can certainly be compromised if the government becomes privy to its plans.

McCreary County v. American Civil Liberties Union of Kentucky (2005)

decided at the same time and also by a 5-4 margin, the Court determined that a display of the Ten Commandments inside two Kentucky courthouses was unconstitutional.

Defendants have the right to appeal a conviction on the grounds that the counsel provided by the state was

deficient; For example, in 2003 the Supreme Court overturned the death sentence of a Maryland death row inmate, holding that the defense lawyer had failed to inform the jury fully of the defendant's history of "horrendous childhood abuse."

Communications Decency Act (CDA)

designed to regulate the online transmission of obscene material

Thomas Hobbes (1588-1679)

developed a materialist and highly pessimistic philosophy that was denounced in his own day and later, but has had a continuing influence on Western political thought. His Leviathan (1651) presents a bleak picture of human beings in the state of nature, where life is "nasty, brutish, and short." Fear of violent death is the principal motive that causes people to create a state by contracting to surrender their natural rights and to submit to the absolute authority of a sovereign. Although the power of the sovereign derived originally from the people, Hobbes said-challenging the doctrine of the divine right of kings-the sovereign's power is absolute and not subject to review by either subjects or ecclesiastical powers.

The only change in civil liberties during the first 50-odd years following the adoption of the Fourteenth Amendment came in 1897, when the Supreme Court held that the due process clause in the 14th Amendment

did in fact prohibit states from taking property for a public use without just compensation.

Cantwell v. Connecticut (1940)

established the "time, place and manner" rule; arose from the efforts of two Jehovah's Witnesses to engage in door-to-door fund-raising. Americans are free to adhere to any religious beliefs, but the time, place, and manner of their exercise are subject to regulation in the public interest.

"Takings clause"

extends to each citizen a protection against the "taking" of private property "without just compensation."

"speech plus"

following speech with physical activity such as picketing, distributing leaflets, and other forms of peaceful demonstration or assembly; original intent of the assembly and petition clause

The judicial record of Second Amendment cases is far sparser than for First Amendment cases, and

for almost 60 years, the Court made no Second Amendment decisions

Congress reversed the Court's 1990 decision against Native Americans ingesting peyote in the workplace with the enactment of the Religious Freedom Restoration Act of 1993 (RFRA),

forbidding any federal agency or state government from restricting a person's free exercise of religion unless the federal agency or state government demonstrates that its action "furthers a compelling government interest" and "is the least restrictive means of furthering that compelling governmental interest."

Commercial speech, such as newspaper or television advertisements, does not have

full First Amendment protection because it cannot be considered political speech; For example, the prohibition of false and misleading advertising by the Federal Trade Commission is an old and well-established power of the federal government.

Popular government requires a combination of

government transparency and citizen privacy

The Fifth Amendment puts limits on eminent domain power through

procedures that require a showing of a public purpose and the provision of fair payment for the taking of someone's property

The mass shooting of 20 children in Newtown, Connecticut,

prompted calls for legislation to limit the availability of guns. Opposition to such laws on Second Amendment grounds has prevented any significant national legislation since 1994

The Supreme Court had selectively "incorporated" into the Fourteenth Amendment only the

property protection provision of the Fifth Amendment and no other clause of the Fifth or any other amendment of the Bill of Rights; although according to the Fifth Amendment, "due process" applied to the taking of life and liberty as well as property, only property was incorporated

The policing tactic of "stop and frisk" is intended to

protect communities from violent crime, but opponents view it as invasion of privacy and unreasonable search without sufficient cause and damage relationship between the police and the public

St. Peter's Catholic Church against the city of Boerne, Texas

had denied permission to the church to enlarge its building because the building had been declared a historic landmark. The case went to federal court on the argument that the city had violated the church's religious freedom as guaranteed by Congress in RFRA; The Supreme Court declared RFRA unconstitutional, Congress had violated the separation of powers principle, infringing on the powers of the judiciary by going so far beyond its lawmaking powers that it ended up actually expanding the scope of religious rights rather than just enforcing them.

Procedural liberties

how the government is supposed to act.

More than 30 states have "shield laws," which, to varying degrees

protect journalistic sources; no federal shield law. The Supreme Court has held that the press has no constitutional right to withhold information in court.

Often, the government presents restraints on liberty, particularly in such realms as speech, assembly, and privacy, as necessary to

protect the nation's security; full-body scans at airports and electronic surveillance of our email and phone conversations as necessary to protect the nation against attack.

Free exercise clause

protects the right to believe and to practice whatever religion one chooses; it also protects the right to be a nonbeliever.

One area of contestation over the appropriate boundary between church and state is in

public education; strict in cases of school prayer, striking down such practices as Bible reading, nondenominational prayer, a moment of silence for meditation, and pregame prayer at public sporting events.

In 2004 the question of whether the phrase "under God" in the Pledge of Allegiance violated the establishment clause was brought before the Court, but

in 1954, in the midst of the Cold War, Congress voted to change the pledge in response to the "godless Communism" of the Soviet Union; "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all."

The idea of the people surveilling the government is captured in the ancient Athenian practice of the audit (euthyna)

in which all civil and military officials were periodically required to undergo detailed public examinations of their actions.

United States v. Williams (2008)

in which the majority said that criminalizing efforts to purvey child pornography did not violate free speech guarantees.

Many Americans believe that "legal technicalities" are responsible for

setting many actual criminals free. In many cases, this is absolutely true; setting defendants free is the very purpose of the requirements that constitute due process.

In 1986 the Supreme Court backed away from a broad protection of student free speech rights by upholding the punishment of a high school student for making a

sexually suggestive speech. The Court opinion held that such speech interfered with the school's goal of teaching students the limits of socially acceptable behavior

Although virtually all speech is protected by the Constitution,

some forms of speech are entitled to a greater degree of protection than others.

Campaign finance reform laws of the early 1970s, arising out of the Watergate scandal,

sought to put severe limits on campaign spending

Fighting words

speech that directly incites damaging conduct

Interestingly, laws protecting freedom of expression and belief tend to be

stronger than laws protecting other civil liberties, while the right to an established and equitable system of rule of law tends to be weakest

A second possible interpretation of the establishment clause is the view that the government may not

take sides among competing religions but is not prohibited from providing assistance to religious institutions or ideas as long as it shows no favoritism.

The United States imprisons more of its people

than any other country

Van Orden v. Perry (2005)

the Court decided by a 5-4 margin that a display of the Ten Commandments outside the Texas state capitol did not violate the Constitution.

Hague v. Committee for Industrial Organization (1939)

the Court declared that the government may not prohibit speech-related activities such as demonstrations or leafleting in public areas traditionally used for that purpose, though, of course, the government may impose rules designed to protect the public safety so long as these rules do not discriminate against particular viewpoints.

Gonzales v. Carhart (2007)

the Court effectively upheld the federal partial-birth abortion ban, which outlaws a particular type of abortion procedure.

Ayotte v. Planned Parenthood of Northern New England (2006)

the Court held that a law requiring parental notification before a minor could obtain an abortion was not an undue burden.

United States v. Jones (2012)

the Court held that prosecutors violated Jones's rights when they attached a GPS device to his Jeep and monitored his movements for 28 days.

New York Times v. Sullivan (1964)

the Court held that to be deemed libelous, a story about a public official not only had to untrue but also had to result from "actual malice" or "reckless disregard" for the truth.

Webster v. Reproductive Health Services (1989)

the Court narrowly upheld (by a 5-4 majority) the constitutionality of restrictions on the use of public medical facilities for abortion.

Lawrence v. Texas (2003)

the Court overturned Bowers v. Hardwick with a dramatic pronouncement that gays are "entitled to respect for their private lives" as a matter of constitutional due process.

Federal Election Commission v. Wisconsin Right to Life (2007)

the Court reversed itself, declaring that such ads were protected speech and could not be prohibited so long as they focused mainly on issues and were not simply appeals to vote for or against a specific candidate.

The sphere of privacy was formally recognized in 1965, when

the Court ruled that a Connecticut statute forbidding the use of contraceptives violated the right of marital privacy.

Snyder v. Phelps (2011)

the Court sought to protect another form of symbolic speech. Members of the Westboro Baptist Church had frequently demonstrated at military funerals, claiming that the deaths of the soldiers were a sign that God disapproved of the acceptance of homosexuality in the United States; The Supreme Court ruled, however, that the First Amendment protected free speech in a public place against such suits.

Brown v. Entertainment Merchants Association (2011)

the Court struck down a California law banning the sale of violent video games to children, saying that the law violated the First Amendment.

United States v. Playboy Entertainment Group (2000)

the Court struck down a portion of the 1996 Telecommunications Act that required cable TV companies to limit the broadcast of sexually explicit programming to late-night hours.

Terry v. Ohio (1968)

the Court then held that if an officer had "probable cause" to believe the individual was armed, such a search was permitted.

Maryland v. King

the Court upheld DNA testing of arrestees without the need for individualized suspicion

Double jeopardy

the Fifth Amendment right providing that a person cannot be tried twice for the same crime

Establishment clause

the First Amendment clause that says that "Congress shall make no law respecting an establishment of religion"; this law means that a "wall of separation" exists between church and state

Supreme Court justice John Paul Stevens described the Internet as the "town crier" of the modern age and said that

the Internet was entitled to the greatest degree of First Amendment protection possible.

Some citizens sought to form their own private militias, but

the Supreme Court cut that short with a ruling that militias are a military or police resource of state governments.

Gonzales v. Oregon (2006)

the Supreme Court did intervene to uphold a law allowing doctors to use drugs to facilitate the deaths of terminally ill patients who requested such assistance

The Fourth Amendment protects against "unreasonable searches and seizures," but

the Supreme Court has had to interpret what is unreasonable.

Berghuis v. Thompsons (2010)

the Supreme Court introduced an important qualification to the Miranda rule. In a 5-4 decision, the Court said that statements made by suspects who did not expressly waive their rights (usually by signing a form) could be used against them.

Schenk v. United States (1919)

the Supreme Court invented the famous "clear and present danger" test to determine when a state could constitutionally limit an individual's free speech rights under the First Amendment. In reviewing the conviction of a man charged with distributing provocative flyers to draftees of World War I, the Court asserted that, in certain contexts, words can create a "clear and present danger" that Congress may constitutionally prohibit.

Palko v. Connecticut (1937)

the Supreme Court ruled that double jeopardy was not one of the provisions of the Bill of Rights incorporated into the Fourteenth Amendment as a restriction on the powers of the states.

Barron v. Baltimore (1833)

the Supreme Court ruled that the Constitution's Bill of Rights restricts only the powers of the federal government and not those of the state governments. The case began with a lawsuit filed by John Barron against the city of Baltimore, claiming that the city had deprived him of his property in violation of the Fifth Amendment, which provides that the government may not take private property without just compensation.

Reno v. ACLU (1997)

the Supreme Court struck down the CDA, ruling that it suppressed speech that "adults have a constitutional right to receive," and that governments may not limit the adult population to messages that are fit for children.

In 2003, Michael A. Newdow, the atheist father of a kindergarten student, brought suit against the local California school district. Newdow argued that the reference to God turned the daily recitation of the pledge into a religious exercise, in violation of the establishment clause and

the Supreme Court, on June 14, 2004—exactly 50 years to the day after the adoption of "under God" in the pledge—the Court ruled that Newdow lacked a sufficient personal stake in the case to bring the complaint.

Exclusionary rule

the ability of courts to exclude evidence obtained in violation of the Fourth Amendment

Assemblies in public areas can also be restricted under some circumstances, especially when

the assembly or demonstration jeopardizes the health, safety, or rights of others

With the exception of the broadcast media, which are subject to federal regulation, the press is protected under

the doctrine against prior restraint.

Questions requiring a balancing of religious claims against public policy claims were reserved strictly to

the judiciary

In 1995 the New York courts held that an online bulletin board could be held responsible for

the libelous content of material posted by a third party.

in 1958, when the Supreme Court recognized "privacy in one's association" in its decision that the state of Alabama could not use

the membership list of the National Association for the Advancement of Colored People (NAACP) in state investigations.

Palko left states with most of the powers they had possessed even before the adoption of the Fourteenth Amendment, such as

the power to engage in searches and seizures without a warrant, to deprive accused persons of trial by jury, to deprive accused persons of their right to confront adverse witnesses, and to prosecute accused persons more than once for the same crime.

Selective incorporation

the process by which different protections in the Bill of Rights were incorporated into the Fourteenth Amendment, thus guaranteeing citizens protection from state as well as national governments

Miranda rule

the requirement, articulated by the Supreme Court in Miranda v. Arizona, that persons under arrest must be informed prior to police interrogation of their rights to remain silent and to have the benefit of legal counsel

Due process of law

the right of every individual against arbitrary action by national or state governments; The Fourth, Fifth, Sixth, and Eighth amendments, taken together, are the essence of this clause; these precise words for this fundamental concept do not appear until the end of the Fifth Amendment.

Eminent domain

the right of government to take private property for public use

Another press freedom issue that the courts have often been asked to decide is the question of whether journalists can be compelled to reveal

their sources of information

Although African Americans make up only 13 percent of the total U.S. population,

they make up 38 percent of the prison population.

The First Amendment provides that "Congress shall make no law . . ." But

this is the only amendment in the Bill of Rights that addresses itself exclusively to the national government

The Bureau of Alcohol, Tobacco, and Firearms (ATF)

traces guns used in crimes and tracks their movement across states; there are few barriers to moving guns from one state to another

Ohio's Criminal Syndicalism Act

unconstitutional because it punished persons who "advocate, or teach the duty, necessity, or propriety [of violence] as a means of accomplishing industrial or political reform"; or who publish materials or "voluntarily assemble . . . to teach or advocate the doctrines of criminal syndicalism."; the statute did not distinguish "mere advocacy" from "incitement to imminent lawless action."

Supreme Court, an inherently

undemocratic institution, is especially important in establishing the balance between governmental power and governmental restraint.

Scores of universities have attempted to develop speech codes to suppress

utterances deemed to be racial or ethnic slurs.

Thomas Jefferson said that a bill of rights "is

what people are entitled to against every government on earth." Note the wording: against government. Civil liberties are protections from improper government action.

Dennis v. United States (1951)

when the Supreme Court held that there is no substantial public interest in permitting certain kinds of utterances: the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Kelo v. City of New London (2005)

where the Court held that the city could seize land from one private owner and transfer it to another as part of a redevelopment plan

West Virginia State Board of Education v. Barnette (1943)

which involved the children of a family of Jehovah's Witnesses who refused to salute and pledge allegiance to the American flag on the grounds that their religious faith did not permit it.

McCulloch v. Maryland (1819)

which involved the question of whether Congress had the power to charter a national bank—an explicit grant of power nowhere to be found in Article I, Section 8

In 2003, Congress enacted the PROTECT Act

which outlawed efforts to sell child pornography via the Internet.

The results of "euthyna" might then be debated in the popular assembly (ecclesia)

which was open to all male citizens who had performed the requisite period of military service. In this way, surveillance through the audit directly empowered the citizenry.

Many journalists have been sharply critical of the Obama administration for its unprecedented efforts to halt

whistle-blowing; (i.e. Pfc. Bradley Manning, an army intelligence analyst sent to prison for providing classified documents to WikiLeaks, Edward Snowden, NSA, etc.)

In some instances, such as during an arrest, the authorities can conduct searches

without obtaining any warrants at all

The increased activism of minority and women's groups has prompted a movement against

words that might be construed as offensive to members of a particular group.