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Describe (with examples) three external constraints faced by Supreme Court justices.
Answer:*a. varies
An activist Supreme Court justice is likely to:
A. Uphold state legislation
B. Strike down federal legislation
C. Strike down state legislation
D. Uphold federal legislation
E. A and D
F. B and C
G. None of the above.
Jeremy Stevens was an ardent leftist, and was known for his outrageous stunts in his
high school of 400 students in rural Southwest Minnesota. In his freshman year he came
to school dressed in a skirt to protest the policy that, while skirts may be worn, no
shorts may be worn to school between November 1st and April 1st. When he was sent
home for indecent conduct, he returned in a traditional Scottish Kilt. While under
suspension for violating school rules Stevens was granted the right to wear skirts after
he sought the advice of the local ACLU chapter. During his junior year he drafted an
editorial cartoon for the school newspaper that depicted the principal as a drunkard.
While the ACLU again wanted to help, they were bound by the Supreme Court's
precedent that schools may edit, and restrict content in, school newspapers. His senior
year has been tame, but Stevens did wear a t-shirt to school that proclaimed "the
president is a terrorist." School officials asked him to remove the shirt or to go home
and change. When he refused Stevens was suspended for 2 days. After consulting with
the ACLU again, Stevens has decided to sue the school district for violating his freedom
of speech found in the 1st and 14th Amendments. The case has gone through the courts
and has now reached the U.S. Supreme Court.
As a justice on the Court, how would you rule given the line of free speech cases
decided by the Court? Should Stevens be allowed to wear his t-shirt? Why or why not?
You must cite cases from class to support your answers. There is no right answer, but all
answers must be logical and supported with case law.
Libel and Obsceinity:
A. Are fully protected by the First Amendment
B. Are sometimes protected by the First Amedment
C. Fall outside the protections of the First Amendment
D. None of the above
In Sweet Home, Oregon a group of college students staged a peaceful demonstration, in
a public park, during the 2003 War in Iraq. The protest comprised of peaceful songs
being sung, banners condemning the acts of the United States government, and finally
the use of several "barrels of oil" which were really large containers filled with colored
water. A city ordinance stated that large groups must have a permit to gather in the park
in question, and that all gatherings must cease by 11:30 p.m. The group of students
chanted and marched all day on January 20, and continued until 11:30 when they were
told to vacate the area by local police. Then, about midnight, the leader of the group,
Lee Segal, stood on a podium and shouted "US we condemn you for a war that is only
meant to save your precious oil -- we spit on your efforts!" At that instance he pushed
over 5 "barrels of oil" and shouted "we do not need oil if it is going to kill our brothers
and sisters." At that point, the police arrested Segal and several others. They were
charged with violating the terms of their permit because they had remained after 11:30,
even when warned to leave. They were also charged with destruction of public property
because the dye used to color the water in the symbolic barrels destroyed several trees,
the grass, a park bench, and two picnic tables. Segal claimed his first amendment rights
were violated, and the ACLU took the case all the way to the Supreme Court.
As a justice on the Court, how would you rule given the line of free speech cases
decided by the Court? Should Segal be allowed to protest? Why or why not? You must
cite cases from class to support your answers. There is no right answer, but all answers
must be logical and supported with case law.
*a. Answers Vary
Schenck v. United States (1919)
Relevant Case Facts:
Charles Schenck, the general secretary for the Socialist Party of Philadelphia, had
15,000 pamphlets printed, urging resistance to the draft. Federal authorities arrested him
for violating the Espionage Act. Specifically they charged that he attempted to obstruct
the draft and that he illegally used the mail to do so.
Legal Question: Does the Espionage Act violate the First Amendment guarantee of Free
Speech?
Holding: Yes. By a vote of 9-0 the Court ruled in favor of the U.S.
Reasoning:
1/ It is clear that the intended effect of the pamphlet was to influence people to obstruct
the draft.
2/ In many placed and in ordinary times, what the defendant said would have been
within their constitutional rights. But the character of every act depends on the
circumstances in which it occurs. The most stringent protection of free speech does not
protect a man from falsely shouting "fire" in a crowded movie theater.
3/ Main question is whether the words used are used in such circumstances and are of
such a nature as to create a "Clear and Present Danger" that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and
degree. In this case, with the nation at war the words in the pamphlets do create a clear
and present danger.
Abrams v. U.S. (1919)
Relevant Case Facts:
Abrams and four others were convicted of violating the Espionage Act. The defendants
professed revolutionary, anarchist, or socialist political views. They had published and
distributed leaflets which criticized President Wilson's sending of troops into Russia and
calling for a general strike to end that policy. The language used was characteristic of
language used during the Russian revolution. The group was charged with intent to
"cripple or hinder the U.S. in the prosecution of the War.".
Legal Question: Was Abrams' right to free speech violated when the government
arrested him for distributing anti-war pamphlets?
Holding: No. By a vote of 7-2 the Court ruled in favor of the U.S.
Reasoning:
1/ It is no good to argue that the only intent of distributing the leaflets was to avoid
injury to the Russian cause. Men must be held accountable for the effects that their
intentions were likely to produce.
2/ Here, the leafleting was not an attempt to bring about change through candid
discussion. The manifest purpose of the plan was to defeat the war plans of the U.S.
government. Indeed, the avowed purpose was to throw the country into state of
revolution and to thereby frustrate the military program of the government. As such, we
must uphold the convictions form the trial court.
Dissent (Holmes):
1/ The U.S. may constitutionally punish speech that produces or is intended to produce
a clear and imminent danger. It is only a present danger or immediate evil that warrants
limits on the speech of individuals. In this instance, there was no clear and present
danger. No one could have possibly argued that this little newsletter could have had the
effect of overturning the government. A necessary step to intent is an act that is meant
to complete the substantive crime.
2/ The third clause of the statute suggests that resistance to the U.S. means some
forcible act of opposition to some proceeding of the U.S. in pursuance of the war.
3/ The best test of truth is the power of the thought to get it accepted in the competition
of the market, and that truth is the only ground upon which their wishes safely can be
carried out.
4/ We should be externally vigilant against attempts to check expression of opinions we
loathe, unless they so immediately threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is required to save the country.
Gitlow v. New York (1925)
Relevant Case Facts:
New York created a commission on subversive organizations, which raided socialist and
communist leaders, and seized a publication edited by Benjamin Gitlow. This document
called for mass action to overthrow the capitalist system of the U.S. government.
Gitlow was prosecuted in state court for violating the state criminal anarchy law.
Legal Question: Does the state criminal anarchy law violate the 1st Amendment right to
free speech through the due process clause of the 14th Amendment?
Holding: No. By a vote of 7-2 the Court ruled in favor of New York. However, the
Court did incorporate the 1st Amendment.
Reasoning:
1/ The statute here does not punish the utterance of abstract doctrine. What it punishes
is language advocating, advising, or teaching the overthrow of organized government
by unlawful means. The Manifesto here advocates and urges mass action which shall
foment industrial disturbances and ultimately destroy parliamentary government.
2/ We may and do assume that freedom of speech and of the press are among the
fundamental personal rights and liberties protected by the due process clause of the 14th
Amendment. However, the state may punish those who abuse this freedom by
utterances inimical to the public welfare...Indeed, freedom of speech and press do not
protect publications or teaching which tend to subvert or imperil the government or
impede or hinder it in the performance of governmental duties. A single revolutionary
spark my kindle a fire that, smoldering for some time, may burst into a sweeping and
destructive conflagration.
3/ When the legislature determines generally that utterances of a certain kind involve
such danger of substantive evil that they may be punished, the question whether any
specific utterance coming within the prohibited class is likely, in and of itself, to bring
about the substantive evil, is not open to consideration. Schenk does not apply because
in this case the legislature has already determined the danger of substantive evil arising
from utterances of a specific character.
Dissent (Holmes):
1/ The Schenck standard should apply here. The words here do not constitute a clear and
present danger.
2/ "Every idea is an incitement." The only difference between opinion and incitement is
the speaker's enthusiasm for the view offered. "Eloquence may set fire to reason."
Dennis v. U.S. (1951)
Relevant Case Facts:
Twelve leaders of The National Board of the Communist Party were indicted for
conspiring to teach and advocate the overthrow of the government by force and
violence. These actions violated the Smith Act.
Legal Question: Does Smith Act violate the First Amendment guarantee of free speech?
Holding: No. By a vote of 6-2 the Court ruled in favor of the U.S.
Reasoning:
1/ The purpose of the law is to protect existing government, not from change by
peaceable mean, but from change by violence, revolution, or terrorism. It is within the
power of Congress to protect the U.S. government from armed rebellion. We reject the
argument that the government remains helpless in the face of preparation for revolution.
2/ The Smith Act, here in question, simply aims at advocacy, not at discussion. Thus,
the trial judge was right to charge that the jury could not convict if they found the
petitioners engaged in peaceful studies and discussions. Indeed, Congress did not intend
to eradicate free speech, but to protect us from activities in which the petitioners
engaged.
3/ Petitioners engaged in direct advocacy, not just speech. But, given that there is an
element of speech we must pay special heed to the demands of the First Amendment
marking out the boundaries of speech.
4/ Action by the government is required when it is aware that a group is attempting to
indoctrinate its members to overthrow the government. This should be a sufficient evil
for the government to act. We therefore reject that success or probability of success is
the criterion to use for action. In short, we reject the Clear and Present Danger Test.
What we must determine in each case is "whether the gravity of the evil, discounted by
its improbability, justifies the invasion of free speech necessary to avoid the danger. We
adopt this statement as the rule.
Concurring (Frankfurter):
To make validity of legislation depend on judicial reading of events is to charge the
judiciary with duties beyond its equipment.
Dissent (Black):
Whatever the petitioners were charged with, the Smith Act is a virulent form of prior
censorship in violation of the First Amendment. The only way to uphold these
convictions is to repudiate the Clear and Present Danger Test. The way in which the
Court takes this tack greatly restricts the protections afforded by the First Amendment.
Dissent (Douglas):
Full and free discussion keeps a society from becoming stagnant and unprepared for the
stress and strains that tear all civilizations apart. We have always rested our institutions
on the argument that it is more costly to liberty to suppress a despised minority than to
let them vent their spleen. The constitution provides no exception to the phrase
"Congress shall pass no law abridging the freedom of speech..."
Brandenburg v. Ohio (1969)
Relevant Case Facts:
Brandenburg was the leader of an Ohio affiliate of the KKK. To obtain publicity, he
invited a Cincinnati Inquirer reporter to attend a rally. Based on films of a speech
Brandenburg gave, he was arrested under the Ohio Syndicalism Law, which was passed
in 1919 to prevent the spread of unpatriotic views.
Legal Question: Does Ohio Syndicalism law violate First Amendment guarantee of free
speech?
Holding: Yes. By a vote of 8-0 the Court ruled in favor of Brandenburg.
Reasoning:
1/ Whitney has been discredited by later decisions based on the principle that the
constitutional guarantee of freedom of speech and press do not permit a state to forbid
or proscribe advocacy unless it is directed at inciting or producing imminent lawless
action. A statute which fails to make the distinction between mere abstractions and
advocacy impermissibly intrudes upon the freedoms guaranteed by the First and
Fourteenth Amendments.
2/ Here, we cannot sustain the Ohio law. It punishes persons who advocate or teach
violence of accomplishing political reform. The judge did not refine the definition of
the crime in terms of mere advocacy not distinguished from incitement to imminent
lawless action. Therefore we overrule Whitney.
United States v. O"Brien (1968)
Relevant Case Facts:
O"Brien and several others burned their draft cards on the steps of a South Boston
courthouse. O"Brien was arrested and charged with violating the 1965 amendment to
the Selective Service Act which made it illegal to "destroy or mutilate" draft cards.
Legal Question: Does the anti draft portion of the Selective Service Act violate the First
Amendment of the constitution?
Holding: No. By a vote of 7-1 the Court ruled in favor of the U.S.
Reasoning:
1/ We cannot accept the view that a limitless variety of conduct will be considered
speech, whenever the person intends to express an idea. It does not follow that the
destruction of draft cards is a constitutionally protected activity.
2/ We have held that when speech and non-speech elements are combined in the same
course of conduct, a sufficiently important govt. interest in regulating the non-speech
element can justify incidental limitations on First Amendment freedoms.
3/ Governmental regulation is sufficiently justified if it is within the constitutional
power of the government; if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest.
4/ The constitutional power of Congress to raise and support an army is broad and
sweeping. The issuance of the draft cards to further this power is a sufficient
governmental interest. Therefore Congress has a legitimate interest in not seeing them
destroyed and providing for their continued existence.
5/ Draft cards serve a purpose such that if they are destroyed the purpose would be
defeated. These include the fact that the card serves as proof of registration, that it
fosters communication with the draft board, that it reminds you of a change of address,
and helps fight forgery. These functions all suggest Congress has a legitimate interest in
protecting the cards.
6/ The governmental interest and the 1965 Act are limited to the non-communicative
interest of the conduct. By burning the card, O"Brien thwarted the government's
interest.
Texas v. Johnson (1989)
Relevant Case Facts:
During the 1984 Republican National Convention in Dallas protesters assembled
outside. One of the protestors was Gregory Johnson who unfurled an American flag,
doused it in kerosene, and set it on fire. Johnson was arrested and charged with
violating the Texas flag desecration law. He was convicted and sentenced to one year in
prison and a $2000 fine.
Legal Question: Does a state law that prohibits the burning of the American Flag violate
the First Amendment freedom of expression?
Holding: Yes. By a vote of 5-4 the Court ruled in favor of Johnson.
Reasoning:
1/ We must first determine if Johnson's conduct is to be considered expressive conduct,
allowing him to invoke the 1st amendment. If it was expressive, then need to decide if
the state's regulation is related to the suppression of free expression. If the state's
regulation is unrelated to expression, then the less stringent standard of U.S. v. O"Brien
(for regulations of non-communicative conduct) controls. If it is related to expression,
then Court outside of O"Brien's test. It could also be that there is no state interest in flag
burning.
2/ Long recognized that speech includes more than just the spoken or written word. The
test we use is whether an intent to convey a particularized message was present, and
whether the likelihood was great that the message would be understood by those who
viewed it. It should be no surprise that we can identify an expressive element in the
conduct here. Indeed. Johnson's conduct was "sufficiently imbued with elements of
communication" to implicate the 1st Amendment. The context here was key.
4/. We have limited the O"Brien test to those cases in which "the governmental interest
is unrelated to the suppression of free expression." In so doing, we have highlighted the
requirement that the governmental interest in question be unconnected to expression in
order to come under O"Brien's less demanding rule. If we find no state interest is
implicated then need not ask whether O"Brien applies. The state argues that its interest
is in preventing breaches of the peace and preserving the flag as a national symbol. The
first argument is not implicated by the facts, and the second is related to the suppression
of expression.
5/ Johnson's conduct also does not fall within that small class of fighting words. Thus,
the state's interest in maintaining order is not implicated by the facts.
6/ The state then asserts that it has an interest in preserving the flag as a symbol of
national unity. To assess this argument we subject it to the most exacting scrutiny. The
bedrock principle underlying the First Amendment is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive
or disagreeable. Nothing in our precedents suggests that a state may foster its own view
of the flag by prohibiting expressive conduct relating to it.
Concurring (Kennedy):
The hard fact remains that sometimes we make decisions we do not like. We make them
because they are right, right in the sense that the law and the constitution as we see
them compel this result. So great is our commitment to the process that, except in the
rare case, we do not pause to express distaste for the result, perhaps for fear of
undermining a valued principle that dictates the decision. This is one of those rare
cases.
Dissent (Rehnquist, White, O"Connor):
Public burning of the flag was no essential part of any exposition of ideas and at the
same time had the tendency to incite a breach of the peace. Thus in no way can it be
said that Texas is punishing Johnson because the hearers of his message were opposed
to it. Rather, it was his particular symbol for which he was punished.
Dissent (Stevens):
Rules that apply to a host of symbols, including state flags, do not apply here.
Sanctioning the public desecration of the flag will tarnish its value. Such tarnish is not
justified given that there are available alternatives, including uttering words critical of
the flag.
Chaplinsky v. New Hampshire (1942)
Relevant Case Facts:
Jehovah's Witness member Walter Chaplinsky was selling material on a public street
when he was attacked by a mob. The police arrived and handcuffed Chaplinsky. He
then demanded to know why he was being arrested. After one of the officers told
Chaplinsky to "shut up you damn bastard," Chaplinsky called the officer a "damned
fascist and a God damned racketeer." For those words he was charged with breaking a
law prohibiting the use of "any offensive, derisive, or annoying word to any other
person who is lawfully in the street."
Legal Question: Does a state law which prohibits the use of offensive words to someone
on the street violate the First Amendment right to freedom of speech?
Holding: No. By a vote of 9-0 the Court ruled in favor of New Hampshire.
Reasoning:
1/ The right of free speech is not absolute at all times and under all circumstances.
Certain well defined types of speech can be regulated. These include the lewd and
obscene, the profane and the libelous, and insulting or fighting words. Such utterances
are no essential part to the exposition of ideas, and are of such little social value that the
social interest in order and morality outweighs the right to use them indiscriminately.
2/ The test that should be employed is whether men of common intelligence would
understand as words likely to cause an average addressee to fight. The statute here does
no more than prohibit face-to-face words plainly likely to cause a breach of peace by
the addressee.
3/ We are unable to say that the limited nature of the statute contravenes the
Constitutional right of free expression. It is narrowly drawn an limited to define and
punish specific conduct lying within the domain of state power, the use in a public place
of words likely to cause a breach of the peace.
Cohen v. California (1971)
Relevant Case Facts:
Someone wrote Fuck the Draft and Stop the War on Cohen's jacket. The next day he
entered a Los Angeles county courthouse with the jacket on, and knowing the message
was there. Although Cohen removed the coat before he entered a courtroom a police
sergeant had noticed it in the corridor. The officer asked the judge to hold Cohen in
contempt, but the judge would not do so. The officer then arrested Cohen for "willfully
and unlawfully and maliciously disturbing the peace and quiet by engaging in
tumultuous and offensive conduct."
Legal Question: Does the First Amendment protect a person's right to were a political
statement on his clothing that includes obscene language?
Holding: Yes. By a vote of 5-4 the Court ruled in favor of Cohen.
Court (Harlan):
1/ The only "conduct" which the state sought to punish was the fact of communication.
The conviction rested solely upon "speech," not upon any separately identifiable
conduct.
2/ The conviction here rests squarely upon his exercise of freedom of speech protected
from arbitrary governmental interference by the Constitution and can be justified, if at
all, only as a valid regulation of the manner in which he exercised that freedom, not as a
permissible prohibition on the substantive message it conveys.
3/ This is not an obscenity case, as the words used here will not conjure up psychic
stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket. The
state can also prohibit fighting words, but these words do not fall in this class. In this
case, the words on the jacket were not employed in a personally provocative manner "
the words could not be construed as a direct personal insult. This is also not an instance
where the speaker was trying to intentionally provoke a given group to hostile reaction.
4/The state argues that the expression here was thrust on unwilling viewers and it
therefore has a legitimate interest to protect the sensitive from exposure to this form of
protest. However, we are often captives outside the sanctuary of the home and subject
to objectionable speech. The ability of government to shut off discourse solely to
protect others from hearing it is dependent on showing that substantial privacy interests
are being invaded in an essentially intolerable manner. Those in the Los Angeles
courthouse could effectively avoid further bombardment of their sensibilities simply by
averting their eyes.
5/ The constitutional right of free expression is powerful medicine in a society as
diverse and populous as ours. The air may be filled sometimes with verbal cacophony,
and this is a strength not a weakness.
6/The state's argument here seems to be inherently boundless. Indeed, one man's
vulgarity is another man's lyric.
7/ Words are often chosen for their emotive as well as cognitive force. Finally, we
cannot indulge the facile assumption that one can forbid particular words without also
running a substantial risk of suppressing ideas in the process.
Dissent (Blackmun, Burger, and Black):
Cohen's expression was mainly conduct and little speech. It is therefore well within the
standard of Chaplinsky v. New Hampshire.
Relevant Case Facts:
Colorado passed a law placing restrictions on protestors within a radius of 100 feet of
the entrance to any health care facility. Within this zone the law prohibited anyone from
approaching, within eight feet of another person, without that person's consent for the
purpose of distributing literature, displaying a sign, or engaging in oral protest,
education, or counseling. Violation of the law was punishable with a $50-$750 fine and
up to six months' imprisonment. Hill claims the law violates the First and Fourteenth
Amendments on their face, and prohibits constitutionally protected speech in a public
forum.
Legal Question: Does a law which prohibits someone from approaching another person
for the purposes of protest, education, or counseling violate the right to free speech in
the 1st and 14th Amendments?
Holding: No. By a vote of 6-3 the Court ruled in favor of Colorado.
Reasoning:
1/ The first amendment interest of the petitioners is clear. First, they accurately explain
that the areas protected by the law encompass all public ways within 100 feet of the
entrance of every health care facility everywhere. Second, the communication is
protected speech even if it offensive to their recipients. Third, sidewalks are the
quintessential public forums. Finally, the ability to distribute leaflets is clearly lessened
by the statute.
2/ At the same time the state has the police power to protect the health and safety of its
citizens. Additionally, this law only deals with the regulation of speakers who want to
address an unwilling audience rather than speakers generally. Indeed, the protection of
offensive messages does not always embrace offensive speech so intrusive that an
unwilling audience cannot avoid it.
3/We have recognized the right to persuade, yet we continue to maintain that no one has
a right to press even good ideas on an unwilling participant. It is this right of passage
without obstruction that the state legislature sought to protect here.
4/ The regulation here is simply a content neutral time, place, and manner regulation.
The standard for this type of regulation is whether the government adopted it because of
disagreement with the message it conveys. It passes this test for three reasons. First, it is
not a regulation of speech, but rather a regulation of the place where speech may occur.
Second, it was not adopted because of disagreement with the content of the speech; the
restrictions apply to everyone. Third, the state's interest in protecting access and privacy
is unrelated to the content of the demonstrators' speech. The argument that this is a
viewpoint based restriction because it was motivated by partisans on one side of the
debate is untenable.
5/ The stature is also narrowly tailored because it leaves open alternate channels for
communication. The 8 foot separation will not have an adverse impact on the ability to
read signs, and does not affect protestors who stay in one place. There is also no
limitation on the number of speakers or the noise level " except as set out in our past
cases. Finally, there is a "knowing" requirement so that those who thought they were
within the law will not be found to have violated the statute.
6/ We reject the final argument that this law is a prior restraint on speech. With this law
no channel of communication is foreclosed. Also note that the law only applies if the
pedestrian does not consent to the approach.
Which of the following statements about the Voting Rights Act of 1965 is not true?
A. A 2/3 majority in Congress overrode Lyndon Johnson's veto to pass the Act.
B. The Act prohibited literacy tests.
C. The Act applied more stringent standards to states that had a recent history of voter
discrimination.
D. A state could be removed from coverage by convincing the District Court for the
District of Columbia that no discrimination had been practiced for five years.
In Schenk v. U.S. the Court created the:
A. Clear and Present Danger Test
B. The Preferred Freedoms Doctrine
C. The Clear and Probable Danger Test
D. The Imminent Lawless Action Test
In Zelman the Court upheld:
A. The Cleveland school voucher program
B. The Cleveland open school program
C. The Cleveland free lunch program
D. None of the above
Describe two new issues that recent technology has brought to the debate over privacy.
Explain the difference between the clear and present danger test and the clear and
probable danger test.
What two justices argued that the death penalty is unconstitutional in all circumstances
in their decisions in both Furman v. Georgia and Gregg v. Georgia?
A. Douglas and Stewart
B. Marshall and Stewart
C. Brennan and Marshall
D. Marshall and Douglas
Which of the following is not an exception to the warrant requirement?
A. Searches to ensure evidence is not lost.
B. Searches once a suspect has been put in jail.
C. Searches done in "hot pursuit."
D. Searches incident to a valid arrest.
Which of the following statements is true?
A. A defendant who robs multiple victims at once can be tried in separate trials for
robbing each victim until a guilty verdict is reached.
B. Separate governments (including separate states) can prosecute an individual for the
same incident if it occurred in multiple jurisdictions.
C. The government can appeal not guilty verdicts.
D. None of the above.
On what did Justice O"Connor base her concurring opinion in Lawrence v. Texas?
A. Her disagreement with the decision in Bowers v. Hardwick
B. Her disagreement with the decision in Stanley v. Georgia
C. The substantive component of the Fourteenth Amendment's Due Process Clause
D. The Fourteenth Amendment's Equal Protection Clause
In Miami Herald v. Tornillo the Court found that:
A. The government may compel the press to print particular stories
B. The government may compel the press to print stories for purposes of equal access
C. The government may not compel the press to print particular stories
D. The government may not compel the press to print stories for purposes of equal
access
E. A&B
F. C&D
The test for ruling in religious establishment cases created by Chief Justice Burger is
the:
A. Coercion Test
B. Non-preferential treatment test
C. Lemon Test
D. Endorsement Approach
The Enforcement Act of 1871:
A. Allowed states to enforce their on voter laws
B. Shared the power to enforce voter laws between states and the federal government
C. Allowed the federal government to enforce voter laws
D. None of the above
Prior to 1964:
A. States could not set any standards for libel.
B. All state laws covering libel were the same
C. States were free to se their own standards for libel.
D. None of the above.
Explain the difference between judicial activists and judicial restraintists. Give an
example of each.
Answer:*a. varies
What justice wrote a dissent in Olmstead v. United States that became an important
opinion in the right to privacy debate?
A. John Harlan
B. Potter Stewart
C. Louis Brandeis
D. Harry Blackmun
Which of the following statements best describes the incorporation of the exclusionary
rule into the Due Process Clause of the Fourteenth Amendment?
A. The exclusionary rule has not been incorporated.
B. The exclusionary rule was incorporated in the Weeks v. United States ruling.
C. The exclusionary rule was incorporated in the United States v. Leon ruling.
D. The exclusionary rule was incorporated in the Mapp v. Ohio ruling.
In Hustler Magazine v. Falwell the Court:
A. Decreased First Amendment protections for the press
B. Increased First Amendment protections for the press
Which of the following amendments was not cited as a location of the right to privacy
in the Griswold opinions?
A. First
B. Fourth
C. Eighth
D. Ninth
There were ___ in James Madison's original articles (amendments).
A. 11
B. 13
C. 15
D. 17
What Amendment contains the Double Jeopardy Clause?
A. Fourth
B. Fifth
C. Sixth
D. Eighth
Which of the following statements best describes the election of black representatives
to the U.S. House of Representatives in the last 20 years?
A. The number of black representatives in Congress has increased every year since
1985.
B. The number of black representatives in Congress increased steadily from 1985
through 1993, but leveled off in the mid 1990s.
C. The number of black representatives in Congress increased steadily from 1985
through 1995, but decreased dramatically after 1997.
D. The number of black representatives in Congress has remained relatively stable since
1985.
Which of the following circumstances did the Supreme Court say violated the
Confrontation Clause of the Sixth Amendment?
A. A judge removed a disruptive and abusive defendant, and the trial proceeded without
the accused present.
B. A child witness testified behind a screen so the child would not have to see the
defendant.
C. A child witness testified on a closed circuit television so the child would not have to
see the defendant.
D. All of the above.
In Washington v. Glucksberg and Vacco v. Quill, the Supreme Court:
A. Upheld state laws making assisted suicide a crime.
B. Struck down state laws making assisted suicide a crime.
C. Upheld state laws allowing random drug testing in the work place.
D. Struck down state laws allowing random drug testing in the work place.
When it comes to overturning federal laws, the Supreme Court:
A. has overturned a small portion of federal laws since 1790.
B. has overturned a large portion of federal laws since 1790.
C. has never overturned a federal law since 1790.
D. has overturned all federal laws since 1790.
Despite the fact that the First Amendment reads "Congress shall make no law
"...abridging the freedom...of the press," the Supreme Court has recognized the need to
limit the press in certain instances. Explain the Court's willingness to place restrictions
on the press, and under what circumstances such restrictions are warranted. Also,
discuss the distinctions made by the Court between different types of media. Is the
Court more or less willing to restrict the First Amendment rights of radio, TV, or print
journalism? How has the Court dealt with the issue of prior restraint? In what
circumstances is prior restraint allowed?
How has the Court ruled on the right to state-funded counsel for indigent defendants
during the appeals process?
A. The right extends through the first obligatory appeal but not to discretionary appeals.
B. The right extends through discretionary appeals, including appeals to the Supreme
Court.
C. The right extends to all discretionary appeals except to the U.S. Supreme Court.
D. The right does not extend to any appeals.
What was significant about the Supreme Court's decision in Gray v. Sanders?
A. It eliminated poll taxes.
B. It forced states to ensure that legislative districts were equally apportioned.
C. It indicated the Court's willingness to apply principles of population equality to
political entities other than legislatures.
D. It forced states to make both houses of state legislatures population-based.
While the Solicitor General is successful at the agenda setting stage, why is the office
just as successful at the final decision stages of the Court's process?
Answer:
*a. varies
Why was Gitlow such an important case for Freedom of Speech doctrine?
Does the compelling interest test always mean the government will lose when it is
accused of infringing on individuals' free exercise? Why or why not?Give examples.
The right to be represented at a criminal trial by a competent attorney is viewed by
many as fundamental in a modern democracy. However, the Supreme Court has
recognized this right relatively recently, making it binding on the states. How has the
right to counsel evolved over time? Discuss the Supreme Court cases that have
extended to right to counsel to indigents. At what stages are the criminally accused
entitled to counsel? Do you agree with the Court's reasoning regarding the stages at
which counsel should be provided? In your opinion, is the right to counsel essential to a
fair trial? Should the right to counsel be extended beyond criminal trials to include civil
trials as well? Does the right to represent oneself outweigh the need for counsel?
Should counsel be provided to individuals over their expressed wish to represent
themselves?
Reno v. ACLU (1997)
Relevant Case Facts:
Two provisions of the Communications Decency Act (CDA) seek to protect minors
from harmful material on the Internet. First, it criminalizes the "knowing" transmission
of "obscene or indecent" messages to any recipient under 18 years of age. Second, the
law prohibits the "knowing," sending, or displaying to a person under 18 of any
message, "that, in context, depicts or describes, in terms patently offensive as measured
by contemporary community standards, sexual or excretory activities or organs."
Affirmative defenses are provided for those who take "good faith, . . . effective . . .
actions" to restrict access by minors to the prohibited communications and those who
restrict such access by requiring certain designated forms of age proof, such as a
verified credit card or an adult identification number.
Legal Question: Do the provisions of the CDA violate the First Amendment because
they are unconstitutional vague?
How did J.E.B. extend the Court's analysis is Batson?
In Reynolds v. Sims, what did the majority of the Court say about Alabama's plan to
follow the federal model for its bicameral state legislature? What justification did the
Court give for its decision?
What guarantees are afforded to the criminally accused in the two clauses of the Fourth
Amendment?
Crawford vs. Marion County Election Board (2008)
Relevant Case Facts:
In 2005, the Indiana legislature enacted the "Voter ID Law" requiring citizens to present
government-issued photo identification at voting polls in order to prevent voter fraud.
The law did not apply to registering to vote or absentee votes submitted by mail, and
there were exceptions made for residents of state licensed facilities such as nursing
homes. Voters who forgot their ID on Election Day, or voters who had religious
objections to being photographed could cast a provisional vote that would be counted if
the voter brought their ID to the county clerk's office within 10 days. The state DMV
offered free photo identification cards to those who did not already possess proper
identification. A group representing the interests of the poor and minorities, as well as
the Indiana and Marion County Democratic Party, challenged the law arguing that it
violated the Fourteenth Amendment by substantially burdening the right to vote and
arbitrarily disenfranchising voters who could not obtain ID cards easily. The district
court and courts of appeals ruled for the state, concluding the benefit offset the burden
to voters.
Legal Question: Does a law requiring voters to present a government-issued photo
identification in order to vote arbitrarily disenfranchise voters and thus violate the
Fourteenth Amendment?
Why did the Court rule that the defendant's sentence in Solem v. Helm violated the
Cruel and Unusual Punishment Clause of the Eighth Amendment? What factors does
this case set out for determining if a sentence is cruel and unusual?
How did the Warren Court deal with cases involving communists?
What special circumstances led the Court to rule in favor of the Massachusetts law in
Prince v. Massachusetts? How was this case used in subsequent cases?
Do you think the constitution provides a right to privacy? Why or why not?
How does communication on the internet differ from print or broadcast media?
What does Justice Black object to about the Voting Rights Act in his Katzenbach
dissent?
