CRIM 94845 | Course Paper

Unlock access to all the studying documents.

View Full Document

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?