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civil liberties not in the bill of rights
- 1.No Religious Test Clause of the United States Constitution is found in Article VI, paragraph 3 no religious qualifications for office
- 2.7th amendment guarantee of trial by jury
- 3.Article I, section 9, paragraph 3 of the United States Constitution bans bills of attainder
- 4. Constitution, Article I, Section 9 bans ex post facto laws
bills of attainder
is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial
what bans bills of attainder
banned in Article I, section 9, paragraph 3 of the United States Constitution
ex post facto
Gitlow v. New York 1925
Fourteenth Amendment to the United States Constitution had extended the reach of certain limitations on federal government authority set forth in the First Amendment
freedom of expression
- 1. freedom of speech
- 2. freedom of press
- 3. freedom of religion
- 4. right of asssociation and right to assembly
why is freedom of expression important?
espionage acct of 1917
years' imprisonment for interfering with the recruiting of troops or the disclosure of information dealing with national defence
sedition act of 1918
It forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt.
smith act of 1940
also the alien registration act set criminal penalties for advocating the overthrow of the U.S. government and required all non-citizen adult residents to register with the government
Brandenberg v. Ohio 1969
The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action
- the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.
- highest degree of protection under the first amendment
Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document.
speech with conduct
- Defined - Speech combined with conduct that is intended convey more than speech alone
- Example - Speech and carrying a sign, picket lines
Types of Speech
- Political Speech/Public Forum Speech
- Speech plus Conduct
- Symbolic Speech
- Considered to be the highest form of speech
- Public places can serve as places to give speeches
- Speech can be subject to reasonable time, place, and manner restrictions
What is reasonable speech?
What is reasonable? Court must balance individual interest and the requirements of law and society
- Defined - There are no “spoken words.” The “speech” occurs only through actions or symbols.
- Example - wearing an armband, burning a flag
- Not protected by the First Amendment
- Defined - “Whether to the average person, applying local community standards, the work depicts in a patently offensive way sexual conduct specifically defined as “obscene” in law; and the work, taken as a whole, lacks “serious literary artistic, political or scientific value” Miller (1973)
Freedom of Press
- Guiding principle is that there will be no prior restraint.
- Defined - Stopping the broadcast or publication of information (censorship)
- False information which is published and is damaging may be determined “libelous” (New York Times v. Sullivan 1964)
Freedom of the press
- To prove libel you must show the information was
- Damaged your reputation
- It is very difficult to win a libel case, especially if you are a “public figure”
Freedom of religion
- Establishment Clause - the government can not give advantages to one religion over another
- Idea is to create a “wall of separation” between church and state.
Lemon test used to determine if government action is appropriate action must be secular action must be neutral action must not create excessive gov. involvement
Free exercise clause
- In principle, you are allowed to practice your religion as you see fit
- Important to distinguish between “Beliefs” and “Practice” Restrictions are appropriate if intent is not to restrict religious behavior (usually done to protect public safety)
Freedom of Assembly and Privacy
- Individuals are permitted to assemble. Important for understanding interest group formation.
- Right to Privacy - Not mentioned in the Constitution. Most of us believe we have such a right.
Right to Privacy
- Used to establish the right to abortion (Roe v. Wade) and the distribution of contraceptives (Griswold v. Connecticut).
- Public opinion on the issue of abortion varies widely
- Search and Seizure
- Right to Attorney
- No Excessive Bail
- No Cruel and Unusual Punishment
- Evidence seized during a criminal investigation without proper search warrant is inadmissiblle in a trial (mapp v. ohio)
- exceptions to the rule
- good faith
- inevitable discovery
- independent evidence
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