Civil Liberties & Civil Rights

Test 1 Review

Constitutional Interpretation

Legal Formalism

-Originalism-Original intent

-Literalism-plain meaning of the words

Legal Realists-competing ideas in a pluralistic system & changes over time

Natural Law-law exists outside of government

Freedom of Speech

US v. Schenck (1919)

-creation of the Clear & Present danger test

US v. Abrams (1919)

-significance of Justice Holmes dissent (free trade in ideas)

Brandenburg v. Ohio (1969)

-create new standard to replace Clear and Present Danger test

-right of free speech except “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”

Freedom of Speech-Symbolic Expression

West Virginia Brd of Education v. Barnette (1943)

-refusal to salute the flag

US v. O’Brien (1968)

-burning of draft cards

Tinker v. Des Moines School District (1969)

-wearing black armbands

TX v. Johnson (1989)

-burning the flag

Hill v. Colorado (2000)

-protest restrictions at abortion clinics

Freedom of Speech-Hate Speech

Chaplinsky v. New Hampshire (1942)

-first case for fighting words

Terminiello v. Chicago (1949)

RAV v. St. Paul (1992)

-hate speech ordinance, cross burning

Virginia v. Black (2003)

-hate speech ordinance but bans all types of hate speech

Freedom of Speech-Obscenity

Roth v. US (1957)

Miller v. CA (1973)

-court creates Miller test which we still use today

1. appeals to the prurient interest

2. portrays sexual conduct in a patently offensive way

3. lacks serious literary, artistic, political or scientific value (slaps)

1 & 2 use a local community standard, 3 uses a national standard

Osborne v. Ohio (1990)

-child pornography prohibited (look to the dissent to decide if ban is too broad)

Ashcroft v Free Speech Coalition (2002)

-child pornography ok if children are not used or if it is computer generated

Freedom of Speech-Freedom of Association

-private organizations retain their associational rights when:

1. their core activities are exercised in conjunction with 1st Amendment freedoms or

2. when the organization possesses the characteristics of an intimate club

Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (1995)

-St. Patricks’s Day Parade

Boy Scouts of America v. Dale (2000)