Study Sheet For Test Four
Chapter 13: Constitutional Freedoms
Section 1 – Constitutional Rights
Constitutional Rights- basic rights in Constitution stated in Bill of Rights- gov’t can’t abuse rights of
individuals. Originally meant to be applied to federal laws b/c state gov’ts had own constitutions,
but slowly started to apply to state laws – “selective incorporation”
• Barron v. Baltimore- John Marshall says first 10 amendments not intended to apply to state
gov’ts.
The Fourteenth Amendment- major expansion of civil rights- no state can have laws that abridge
the rights of citizens or deprive them of life, liberty, property w/o due process of law. Liberty- stuff
in first amendment.
• Gitlow v. New York – no state can deny people freedom of speech. Almost all provisions
of the Bill of Rights have been incorporated.
The Importance of Incorporation- US citizens have same rights. Important b/c sometimes state
gov’ts have tried to limit the rights of people- Bill of Rights safeguard.
• Nationalization- Citizens who believe that state/local authority denied them basic rights
can take case to court and pursue it up to Supreme Court.
Section 2 – Freedom of Religion
First amendment guarantees freedom of religion. Establishment clause- Congress can’t establish
a religion. Free exercise clause- gov’t can’t inappropriately interfere w/ free exercise of religion.
The Establishment Clause- “wall of separation” btwn Church and state?
Religion in Public Life- many gov’t officials take oath under God, start Congress sessions w/
prayer, church property + tax contributions to religious groups are tax-exempt. Everson v. Board
of Education was first establishment clause supreme court case.
•
★Everson
v. Board of Education- challenge to NJ law allowing school to pay for busing
students to parochial schools. NJ law constitutional b/c not helping religion directly- just
helping students.
State Aid to Parochial Schools- many states started giving aid  multiple court cases.
• Board of Education v. Allen- state programs could provide students w/ secular textbooks.
• Wolman v. Walter- can’t pay for Church school field trips.
• Lemon v. Kurtzman- decides whether law violates establishment clause. Must have:
o Clear, secular purpose
o Can’t advance or inhibit religion
o No “excessive gov’t entanglement w/ religion”
Release Time for Students- constitutional if carried on private rather than public facilities.
Engel v. Vitale- NY Board of Regents can’t compose official prayers for any group of American
people to recite.
Murray v. Curlett- no school-sponsored Bible reading/prayer.
Equal Access Act- public schools receiving federal funds can allow student religious groups to
hold meetings in school. Ruled constitutional in Westside Community Schools v. Mergens.
Teaching the Theory of Evolution- Epperson v. Arkansas- voided a law that forbade teaching of
evolution in schools. Edwards v. Aguillard- Law requiring teaching of creationism violated
establishment clause.
Other Establishment Issues- Lynch v. Donnelly- allowed to display nativity scene with secular items
nearby. County of Allegheny v. ACLU- menorah next to Christmas tree. Marsh v. Chambers- gov’t
meetings allowed to have prayer b/c “not susceptible to religious indoctrination”
The Free Exercise Clause- People have right to believe in religion, but right to practice may be
curtailed.
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Religious Practice May Be Limited- ex. Reynolds v. United States- Mormon can’t have two wivesviolation of law. People can’t worship in ways that violate laws protecting health, safety, or
morals of the community. Jacobson v. MA + Oregon v. Smith- Law trumps religious practices.
Religious Freedom Restoration Act ruled unconstitutional in City of Boerne, Texas v. Flores.
Wisconsin v. Yoder- state could not require Amish parents to send children to school beyond
eighth grade.
Section 3 – Freedom of Speech
Types of Speech: pure speech- verbal expression of thought and opinion before an audience
that has chosen to listen. Most strongly protected. Symbolic speech- using actions and symbols to
express opinions. Some restrictions- can’t endanger public safety.
United States v. O’Brein- gov’t can regulate expressive conduct if 1. Falls within constitutional
power of gov’t. 2. Narrowly drawn to further gov’t interest not related to suppression of free
speech. 3. Leaves open other alternative channels of communication.
Regulating Speech- Seditious speech—urging resistance to lawful authority/advocating
overthrow of gov’t—illegal.
Three tests on limitation of speech:
1. “Clear and Present Danger”
2. Bad Tendency Doctrine
3. Preferred Position Doctrine
Schenck v. United States- distributing pamphlets endangered well-being of people, conviction
upheld. Abrams v. US similar situation.
Bad tendency Doctrine- speech could be restricted even if only tendency to cause illegal action.
Not typically used. ★Gitlow v. New York (1925)- incorporates free speech at state level, but used
bad tendency doctrine. Whitney v. CA (1927) similar.
Preferred Position Doctrine- First Amendment freedoms more fundamental than other freedoms.
Any law limiting these freedoms should be declared unconstitutional unless law is absolutely
necessary.
• Murdock v. Pennsylvania- requiring solicitors to purchase license was an
unconstitutional tax on the Jehovah's Witnesses' right to freely exercise their religion.
Sedition Laws- Dennis v. United States (1951)- reaffirms Smith Act- can’t advocate overthrow of
gov’t. Yates v. United States (1957)- expressing opinion that gov’t should be overthrown not
illegal. Brandenburg v. Ohio (1969)- advocating use of force may not be forbidden except if
incites imminent lawless action and is likely to produce such action.
Other Speech Not Protected
Defamatory Speech- False speech that damages person’s good name, character, or reputation.
Slander is spoken, libel is written. New York Times v. Sullivan- false speech protected unless made
with knowledge that it was false or reckless disregard for truth of statement (“actual malice”).
Hustler Magazine v. Falwell- limited rights of public figures to recover from damages of
defamation.
Chaplinsky v. New Hampshire- words that are so insulting that they provoke immediate violence
not protected – “fighting words”.
Student Speech- Tinker v. DesMoines SD (1969)- allowed to wear black armbands. Students do
not give up all their rights to free speech while in high school. Bethel School District v. Fraserofficials can suspend students for lewd or indecent speech. Hazelwood School District v.
Kuhlmeier- school officials have sweeping authority to regulate school-related student speech.
Section 4 – Freedom Of The Press
Prior Restraint- censorship of info before it is published only allowed in cases relating directly to
national security.
★Near
v. Minnesota- (1931) Minnesota law promoting prior restraint ruled unconstitutional.
Free press applies to states.
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New York Times Co. v. United States (1971) aka Pentagon Papers case- Court reaffirms its
position against prior restraint.
Fair Trials and Free Press- Conflict btwn fair trial and free press.
Sheppard v. Maxwell- Pretrial news reports declared Sheppard guilty  influenced court
decision. Later found not guilty. Trial can be:
1. Moved to reduce pretrial publicity
2. Number of reporters in courtroom can be limited
3. Reporter conduct in courtroom can be controlled
4. Witnesses and jurors can be isolated from press
5. Jury can be sequestered (kept isolated) until trial is over.
Gag order- order by judge barring press from publishing certain types of info- unconstitutional in
Nebraska Press Association v. Stuart (1976).
Protecting News Sources- Reporters must respond to relevant questions in the trial, despite
confidentiality of info they receive. Shield laws give reporters some protection against being
forced to disclose confidential info/sources in state courts.
Free Press Issues
Radio and Television- Stations need license from Federal Communications Commission (FCC)regulatory agency. Can set certain standards + punish stations for language. Television has more
freedom than radio, but less than newspapers and magazines. Motion pictures also protected by
first amendment, but treated differently from books/newspapers. Internet speech has same level
of protection as print media. Miller v. California- communities can set standards for obscenity.
Advertisement has less protection under first amendment than purely political speech.
Section 5 – Freedom of Assembly
People can peaceably assemble and petition the Government for redress of grievances.
★DeJonge v.
Oregon- court says peaceable assembly for lawful discussion cannot be made a
crime. Right of assembly as important as speech and free press. Due process clause of 14 th
amendment protects this right in state + local gov’ts.
Assembly on Public Property- Parades and demonstrations subject to greater gov’t regulation
than pure speech and other kinds of assembly b/c of tendency towards violence.
Limits on Parades and Demonstrations- Cox v. New Hampshire(1941)- groups wanting to parade
or demonstrate need to first obtain a permit.
Additional Limits on Public Assembly- Adderly v. Florida (1966)- demonstrators could not enter
grounds of county jail w/o permission. Jail was public property, but not generally open to public.
Picketing- patrolling an establishment to convince workers and public not to enter it.
Assembly and Property Rights- Lloyd Corporation v. Tanner (1972)- group protesting Vietnam
couldn’t gather in shopping mall.
Public Assembly and Disorder- Nazis in Skokie- no community could use parade permits to
interfere with freedoms of speech and assembly- Nazis allowed to parade. Heckler’s veto- public
vetoes free speech and assembly rights of unpopular groups b/c demonstrations will result in
violence.
Feiner v. New York- Feiner convicted for disturbing the peace, Supreme Court decision upheld
conviction- police had not acted to suppress speech but preserve public order.
Gregory v. City of Chicago- Af. Am. activists marched to mayor for not desegregating schools
and were bombarded by onlookers  Gregory arrested  SC overturns conviction b/c
demonstrators were peaceful and exercising freedom of assembly and petition.
Protection for Labor Picketing- Picketing form of free speech, but could be curtailed.
Freedom of Association- Whitney v. California (1927)- Whitney part of Communist Labor Party that
advocated violent takeover of property  convicted for breaking CA law- SC upholds
conviction. Clear and present danger doctrine used a lot in cases during Communist scares.
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Chapter 14: Citizenship and Equal Justice
Section 1 – A Nation of Immigrants
Alien- person who lives in a country where he/she not citizen.
Classifying Aliens- resident alien- alien that lives in US- doesn’t have to become citizen. Nonresident alien- expects to stay in US for short while. Enemy alien- citizen of nation with which US at
war. Refugee- person fleeing to escape persecution/danger. Illegal alien- comes to US w/o legal
permit.
Aliens’ Rights- Bill of Rights protections apply to aliens. Have to pay taxes, obey law, be loyal to
gov’t, but can’t vote and usually exempt from military/jury duty. Can’t travel freely in US.
Immigration Policy: Four Stages
1882-1924: The Growth of Restrictions- 1882 first federal immigration law restricting mentally
handicapped, convicts, paupers, also Chinese Exclusion Act. No foreign-born Chinese could get
citizenship. First federal law that restricted citizenship based on nationality/ethnicity
1924-1965: National Origins Quotas- Johnson Act (Immigration act of 1924) said < 165,000
immigrants per year- favored people from northern/western Europe w/ national origins quotas.
Immigration dropped b/c countries with large quotas not interested in US.
1965: Immigration Reform Act of 1965- Act abolished system of national origins quotas. Eastern
Hemisphere- Europe, Asia, Africa. Western Hemisphere- Canada, Mexico, Central/South America.
120,000 immigrants from W.H. and 170,000 immigrants from E.H. Preference categories for
immigrants—refugees from Communist/Middle Eastern countries/victims of national disasters least
preferable.
1986: Immigration Reform and Control Act of 1986- Dealt with illegal immigrants- aliens who can
show that they have resided in US since/before January 1, 1982 can apply for amnesty (general
pardon)- permanent residents after 18 months. After 5 years of permanent residence, can apply
for US citizenship. Employers can’t hire illegal immigrants- $250-$2,000 penalties for each alien.
Further punishment for subsequent offenses. Employers must ask for proof of applicant citizenship.
1990: The Immigration Act of 1990- took country of origin into account and admit more highly
skilled and educated immigrants. Immigration of a country no more than 7% of annual visas.
“Transition Diversity Program”—wanted to open immigration to people from countries adversely
affected by 1965 law. First 3 years- no. of immigrants inc. to 700,000  leveled out at 675,000. Also
provided 140,000 visas/year for people with guaranteed jobs in US. Category for special
immigrants- refugees of war, close relatives of US citizens, people admitted through private laws
(only applies to one person).
Section 2 – The Basis of Citizenship
Today, citizenship is both a national and state dimension, but not always so. Founders assumed
that states would decide who was a citizen and who wasn’t.
Dred Scott v. Stanford- established basis of state citizenship- said that only descendants of people
who were state citizens during Constitution era or citizens through naturalization were citizens.
Also said that Congress couldn’t forbid slavery in the states.
The Fourteenth Amendment- overruled Dred Scott decision + established grounds of citizenship.
State citizenship automatic result of national citizenship.
Citizenship by the “Law of the Soil”- jus soli- most people born in US become citizens, except for
example children of foreign diplomats.
Citizenship by birth to an American Parent- jus sanguinis- if both parents are United States citizens
and one parent has been legal resident of US for some time, child becomes citizen. If one parent
citizen, needs to have lived in US or American possession for at least 5 years, 2 of which have to
occur after age of 14.
Citizenship by Naturalization- Can’t serve as Pres or V.P. US Citizenship and Immigration Services
administers most steps in naturalization process.
• Qualifications for Citizenship- must have entered US legally, good moral character,
declare support of principles of American gov’t, read, write, speak English (don’t have to
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if 50+ years old and lived in America for 20+ years), basic knowledge of American gov’t.
No draft evaders, military deserters, polygamists, anarchists, Communists, totalitarian
followers allowed.
The Steps to Citizenship- 18 years old, resident for 5 years (3 if married to Am. citizen) lived in state
where petition is filed for 3 months. Investigation of character- 2 witnesses called, demonstrate
grasp of English and asked about Am. gov’t/history. Final hearing- person takes oath to renounce
loyalty to former gov’ts, etc.
Exceptions- collective naturalization- members of a whole group of people in same geographic
area become American citizens through act of Congress. Happens when states/Puerto Rico
admitted to union. Native Americans not all made citizens until 1924.
Losing Citizenship- only federal gov’t can grant/revoke citizenship. Can lose through expatriation,
conviction of certain crimes, denaturalization.
Expatriation- Leaving one’s native country to live in foreign country. Involuntary expatriation
when parents of child become citizens of another country.
Punishment for a Crime- treason, rebellion, attempts to overthrow gov’t by violent means.
Denaturalization- loss of citizenship through fraud or deception during naturalization process.
Section 3 – The Rights of the Accused
Searches and Seizures- dealt with by courts/Fourth Amendment on case-by-case basis. Police
must state under oath that they have probable cause to suspect someone + search. Generally
need warrant that describes search place/person searched. Payton v. NY- need warrant to
search unless in life threatening situation. Anonymous tip doesn’t provide grounds to search.
Special Situations- police don’t need warrant for person they see breaking the law. No warrant
needed for garbage. Certain kinds of drug tests are searches that don’t require warrant.
The Exclusionary Rule- established in Weeks v. United States. Any illegally obtained evidence
can’t be used in federal court. ★Mapp v. Ohio extended protection to state courts.
Relaxing the Exclusionary Rule- US v. Leon- if US acts in good faith when requesting warrant,
evidence they collect can be used in court even if warrant is defective. Nix v. Williamsprosecutor must show that illegal evidence would have eventually been discovered legally.
California v. Acevedo- police can search an automobile w/ probable cause.
Fourth Amendment in High Schools- NJ v. TLO- school officials can search students/property w/o
warrants or probable cause. Vernonia School District 47J v. Acton- upheld mandatory
suspicionless drug test for students in interscholastic athletics.
Wiretapping and Electronic Eavesdropping- wiretapping form of search/seizure. Olmstead v.
United States- first wiretapping case- wiretapping doesn’t violate fourth amendment. Katz v.
United States- need warrant for wiretapping- overrules Olmstead decision.
Congress and Wiretaps- Omnibus Crime Control and Safe Streets Act/Foreign Intelligence
Surveillance Act prohibit gov’t from using all electronic surveillance w/o warrant.
Guarantee of Counsel- Sixth Amendment guarantees defendant the right to have counsel- only
applied to federal cases.
Early Rulings on Right to Counsel- ★Powell v. Alabama- state has to provide lawyer in cases
involving death penalty (capital cases). Betts v. Brady- state doesn’t have to provide lawyer in
cases not involving death penalty. ★Gideon v. Wainwright- defendants have right to counsel in
all felony cases- overturns Brady decision.
Results of Gideon Decision- whenever a jail sentence of 6 months or more is possible punishment,
accused has right to lawyer.
Self-Incrimination- Fifth Amendment says that people can’t testify against themselves. Same rule
applies to state courts through due process clause of fourteenth amendment.
Escobedo v. Illinois- confession that person makes when denied lawyer may not be used in trialanother version of exclusionary rule.
Miranda v. Arizona- suspects have to be informed of their rights before police question them,
otherwise stuff can’t be used in court.
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Limits- Oregon v. Elstad- if suspect confesses before people give rights, can be used in court.
Braswell v. United States- employees in charge of corporate records can be forced to turn over
evidence even if it is incriminating. Arizona v. Fulminante- forced confession did not void
conviction if other independently obtained evidence sustained guilty verdict.
Double Jeopardy- person may not be tried twice for the same crime. Palko v. Connecticutprotection not allowed in states. Benton v. Maryland- protection incorporated to states.
Cruel and Unusual Punishment- Eighth Amendment. Controversy w/ death penalty. Furman v.
Georgia- capital punishment as then administered not constitutional. Warned that death penalty
needed clarification. Woodson v. North Carolina- mandatory death penalties not constitutional.
Gregg v. Georgia- under adequate guidelines, death penalty not cruel and unusual punishment.
Section 4 – Equal Protection of the Law
Meaning of Equal Protection – cannot draw unreasonable distinctions between different groups of
ppl
The Rational Basis Test – is it reasonably related????? Cannot ban redheads from driving b/c
redheads unrelated to driving
Wisconsin v. Mitchell (1993) – longer sentences for ppl that commit hate crimes
Suspect Classifications – takes into account race/origin
"Strict Judicial Scrutiny" – only for suspect classifications
Fundamental Rights – state laws that mess w/ this are usually unconstitutional
Proving Intent to Discriminate – treated unfairly b/c of race, gender and stuff
Showing Intent to Discriminate – have to show that state intended to discriminate
Washington v. Davis (1976) – black ppl said test unconstitutional b/c more white ppl passed,
but SC says that 14th amendment protects equal laws, not equal results. Said that to prove a state
guilty of discrimination, needed to show that intent to discriminate motivated state’s action.
The Struggle for Equal Rights – Jim Crow laws, segregation
Plessy v. Ferguson (1896) – separate but equal
Brown v. Board of Education of Topeka (1954) – separate not equal.
New Civil Rights Laws – help blacks and other groups
The Civil Rights Act of 1964 – ensure voting rights and jobs
Section 5 – Challenges for Civil Liberties
Affirmative Action- directly/indirectly gives preference to minorities, women, physically
challenged in order to make up for past discrimination caused by society as a whole.
Use in Education- by Regents of the University of California v. Bakke, colleges and universities
could take race into account as long as they don’t use a strict quota system.  affirmative
action in California challenged. Grutter v. Bollinger- University of Michigan allowed to give
preference to minorities who applies to its law school. Universities must be open to people of all
races. Gratz v. Bollinger- struck down UMich program giving automatic points to minority
applicants.
Other Uses- Federal programs classifying people by race are unconstitutional.
An Ongoing Debate- reverse discrimination?
Discrimination Against Women- in the past, Supreme Court ruled that laws discriminating against
women didn’t violate equal protection clause of Fourteenth Amendment.
Reed v. Reed- first time that state law ruled unconstitutional b/c of discrimination against women.
Reasonableness Standard- Any law that classifies people based on gender must be reasonable,
not arbitrary, and must rest on some ground of difference. Treating women differently from men
and vice versa based on old notions.
Congressional Action- Civil Rights Act of 1964 banned job discrimination based on gender. 1972
Equal Employment Opportunity Act prohibited gender discrimination in hiring and firing,
promotion, pay, working conditions. Omnibus Education Act of 1972- boys/girls equal chance to
participate in sports programs. 1991 Civil Rights and Women’s Equity in Employment Act required
employers to justify any gender distinctions in hiring to job performance and “business necessity”.
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Citizens’ Right to Know- security classification system- info on gov’t policies related to national
security/foreign policy may be kept secret.
Freedom of Information Act- Fed agencies have to provide citizens with access to public records
on request, except for nat. defense materials, confidential personnel and financial data, law
enforcement files.
Sunshine Act- many gov’t meetings be open to public. Some closed meetings allowed, but
transcript must be made available.
Citizens’ Right to Privacy- People have right to privacy, but can be limited when state has
compelling need. Griswold v. Connecticut- Privacy found in “penumbras and emanations” of Bill
of Rights. With use of internet, privacy more easily challenged b/c FBI can intercept emails, get
info about people through credit cards, etc.
Terrorism and USA Patriot Act- increased gov’ts power to detain, investigate, and prosecute
people suspected of terrorism. Allows fed agencies to monitor Internet messages, tap phones w/
approval from secret foreign intelligence court, seize person’s library/private records w/o showing
“probable cause”. Broadens scope of who is considered terrorist.
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