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)