CYBERLAND UNIVERSITY OF NORTH AMERICA

Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science


POLITICAL SCIENCE 201B

AMERICAN NATIONAL GOVERNMENT & POLITICS



UNIT TWO

RIGHTS & LIBERTIES UNDER THE UNITED STATES CONSTITUTION

OUTLINE & STUDY GUIDE, LECTURE TOPIC A

RIGHTS & LIBERTIES UNDER THE FIRST AMENDMENT


I.  Definition of Terms

    A.  Civil Liberties (Constitutional Rights)
        1.  Definition of "Civil Liberties"
        2.  Civil Liberties and "Civil Rights"
        3.  Examples of Civil Liberties
    B.  Legal Privileges
        1.  Definition of "Legal Privileges"
        2.  Examples of Legal Privileges

II.  The Federal Bill of Rights--The First Ten Amendments to the
     U.S. Constitution

     A.  Original Application
         1.  Federal Constitutional Limitations on National
             Authority
     B.  The Due Process Clause of the Fourteenth Amendment
         1.  Application
         2.  The Meaning of "Liberty" in the Fourteenth Amend-
             ment Due Process Clause
             a.  Two Schools of Thought
                 (1)  Narrow Interpretation
                 (2)  Broad Interpretation
             b.  The Position of the U.S. Supreme Court
                 (1)  Original Position
                 (2)  Gitlow v. New York (1925)  [Landmark Case]
                      (a)  Holding, or Ruling, of the Court
                      (b)  Significance of the Holding

                 (3)  Subsequent Cases
         3.  The Fourteenth Amendment Due Process Clause and
             Selective Incorporation
             a.  Selective Incorporation--A Brief History
             b.  Current Status of the Relevant Constitutional
                 Law
             c.  The Consequence of Selective Incorporation
             d.  The "New Judicial Federalism"

III.  Freedom of and from Religion  [Textbook, pp. 69-72.]

      A.  The First Amendment
          1.  What it Provides
          2.  Two Clauses Relating to Religion
      B.  The Establishment Clause
          1.  What the Clause Provides
          2.  "An Establishment of Religion"
              a.  Original Meaning
                  (1)  What the Clause Prohibited
              b.  Current Meaning
                  (1)  What the Clause Prohibits
                  (2)  Accomodating Religious Needs
              c.  Everson v. Board of Education (1947)  [Landmark
                  Case]
                  (1)  Holding, or Ruling
                  (2)  Significance
              d.  Lemon v. Kurtzman (1971)  [Landmark Case]
                  (1)  Holding, or Ruling
                  (2)  The Lemon Test
              e.  Capital Square Review Board v. Pinnett (1995)
                  (1)  The Pertinent Legal Question
                  (2)  The Endorsement Test
              f.  Lynch v. Donnelly (1984)
                  (1)  Governmental Action Challenged
                  (2)  Holding of the Court
                       (a)  Grounds for the Holding
              g.  Allegheny County v. Greater Pittsburgh ACLU
                  (1989)
                  (1)  Holding
                  (2)  Grounds
              h.  Lee v. Weisman (1992)
                  (1)  Holding
              i.  Engel v. Vitale (1962)  [Landmark Case]
                  (1)  Holding
                       (a)  The Legal Status of Prayer in the
                            Public Schools
                       (b)  What the Establishment Clause
                            Prohibits in the Public Schools
              j.  Edwards v. Aguillard (1987)
                  (1)  Holding
          3.  Governmental Accomodation of Religion
              1.  Types that Are Constitutionally Permissible
          4.  Government Aid to Students attending Parochial
              and Other Religious Schools
              a.  The Issue
              b.  Cases
                  (1)  Writters v. Washington Department of
                       Services for Blind (1986)
                       (a)  Ruling
                  (2)  Mueller v. Allen (1983)
                       (a)  Legal Question
                       (b)  Holding
                  (3)  Agostini v. Felton (1997)
                       (a)  Ruling
                  (4)  Zobrest v. Catalina Foothills School
                       District (1993)
                       (a)  Ruling
                       (b)  Grounds
             c.  Constitutionally Impermissible Government Aid
                 to Church-Affiliated Elementary and Secondary
                 Schools
      C.  The Free Exercise Clause
          1.  What the Clause Provides
          2.  Meaning of the Clause
          3.  Examples of Unconstitutional Actions under the
              Clause
          4.  Incorporation of the Free Exercise Clause into
              Fourteenth Amendment Due Process Clause
          5.  Tension Between the Free Exercise Clause and the
              Establishment Clause
              a.  Rosenberger v. University of Virginia (1995)
                  (1)  Facts
                  (2)  Position of the University of Virginia
                  (3)  Position of the Student Group
                  (4)  Holding of the Supreme Court
              b.  Religious Belief and Religious Practice
                  (1)  The Free Exercise Clause and the Two
                       Rights Protected
                  (2)  The Rule of Law Prior to 1990
                       (a)  Wisconsin v. Yoder (1972)
                              The Compelling Public Interest Test
                  (3)  The Current Rule of Law
                       (a)  Employment Division, Department of
                            Human Resources of Oregon v. Smith
                            (1990)
                              Ruling
                  (4)  The Religious Freedom Restoration Act of
                       1993
                       (a)  Purpose of the Statute
                       (b)  What the Statute Provided
                       (c)  What Happened to the Statute
                  (5)  City of Bourne v. Flores (1997)
                       (a)  Ruling
                       (b)  Grounds

IV.  Freedom of Speech and of the Press [Textbook, pp.72-76.]

     A.  The Free Speech and Free Press Clauses
         1.  What the Clauses Provide
     B.  The Rights to Freedom of Speech and of the Press--
         Limited Rights
         1.  How the First Amendment Has Been Interpreted
     C.  The Constitutional Power of Government to Regulate
         Speech
         1.  Belief, Speech, and Action
         2.  Current Constitutional Tests--Doctrines Used by the
             Supreme Court to Measure the Constitutional Limits
             of Governmental Power to Regulate Speech
             a.  Prior Restraint--Censorship Before Publication
                 (1)  Examples of Prior Restraint
                 (2)  The Supreme Court's Attitude Toward Prior
                      Restraint
                      (a)  Nebraska Press Association v. Stuart
                           (1976)
                 (3)  Cases in which the Supreme Court Has Upheld
                      Prior Restraint
                      (a)  Military and National-Security Matters
                      (b)  Domestic Issues
                             Hazelwood School District v.
                             Kuhlmeier (1988)
             b.  Vagueness and the Concept of Void for Vagueness
                 (1)  What is Prohibited Under the Vagueness Test
                 (2)  Winters v. New York (1948)
             c.  Least Drastic Means
                 (1)  What Is Prohibited Under the Test
                 (2)  Illustration--State Legislative Action to
                      Protect Citizens from Unscrupulous Lawyers
                      (a)  Constitutionally Impermissible Action
                      (b)  Constitutionally Permissible Action
             d.  Content and Viewpoint Neutrality
                 (1)  The Constitutionality of Laws Concerning
                      the Time, Place, and Manner of Speech
                      (a)  Laws Likely to Be Declared Unconstitu-
                           tional
                      (b)  Laws More Likely to Be Upheld as Con-
                           tional
                 (2)  RAV v. St. Paul, Minnesota (1992)
                      (a)  Holding
                      (b)  Grounds
             e.  Commercial Speech versus Political Speech
                 (1)  Constitutional Permissibility of Laws
                      Regulating Commercial Speech
                      (a)  Laws Prohibiting False and Misleading
                           Commercial Advertising
                 (2)  Constitutional Impermissibility of Laws
                      Forbidding False and Misleading Political
                      Advertising

V.  Freedom of the Press  [Textbook, pp. 77-79]

    A.  The Right of the Press to Publish Information
        1.  The Courts' Protection of this Right
        2.  The Protection Claimed by Persons Working in the News
            Media
    B.  Legal Question--Does the Press Have the Right to Withhold
        Information?
        1.  The Argument of Reporters
        2.  The Position of the Supreme Court
        3.  Branzburg v. Hayes (1972)
            a.  Holding
        4.  State Shield Laws
    C.  Legal Question--Does the Press Have the Right to Know?
        1.  The Argument of the Press
        2.  The More Extreme Position of Some Reporters
        3.  The Position of the Supreme Court
            a.  Constitutional Status of the Right to Know
            b.  Richmond Newspapers, Inc. v. Virginia (1980)
                (1) Ruling
        4.  State Sunshine Laws
        5.  Pertinent Congressional Legislation
    D.  Free Press versus Fair Trials
        1.  The Problem
        2.  Britain's Approach to the Problem
        3.  America's Approach to the Problem
            a.  The Supreme Court's Remedies
            b.  The Problem and Federal Rules of Criminal
                Procedure
            c.  The Problem and State Rules of Criminal
                Procedure
            d.  The Problem and the Right of Defendants to
                Seek Remedy in Court

VI.  Freedom of Expression--Other Media and Other Messages
     [Textbook, pp. 79-81]

     A.  The U.S. Mail
         1.  Milwaukee Publishing Company v. Burleson (1921)
             a.  The Dissenting Opinion of Justice Oliver Wendell
                 Holmes, Jr.
         2.  Lamont v. Post Master General (1965)
             a.  Adoption of Justice Holmes' View
             b.  The Federal Statute Invalidated
         3.  Other Pertinent Decisions of the Supreme Court
         4.  Government Censorship of Mail and the Current Rule
             of Law
         5.  The Constitutionality of Household Censorship of
             Mail
             a.  Rowan v. Post Office Department (1970)
     B.  Motion Pictures and Plays
         1.  Constitutionality of Prior Censorship of Motion-
             Picture Films
             a.  Obscenity
             b.  A Prompt Judicial Hearing
             c.  The Burden of Proof
     C.  Handbills, Sound Trucks, and Billboards
         1.  The Current Rule of Law
         2.  McIntyre v. Ohio Election Commission (1995)
         3.  Burson v. Freeman (1992)
     D.  Radio and Television
         1.  The Importance of Television
         2.  Broadcasting and the Extent of First Amendment
             Protection
         3.  Government Regulation of Broadcasting
         4.  Censorship of Television and Radio
         5.  Imposition of Sanctions on Television and Radio
             Stations
         6.  Refusal to Renew a Broadcasting Station's License
         7.  The Fairness Doctrine
         8.  Equal-Time Requirements
             a.  The Congressional Statute
                 (1)  What the Statute Provided
                 (2)  Why the Statute Was Repealed
             b.  Arkansas Educational Television Commission v.
                 Forbes (1998)
         9.  Telecommunications Act of 1996
        10.  Other Congressional Regulation of Television
             a.  Turner Broadcasting System v. FCC (1997)
                 (1)  Holding of the Supreme Court
             b.  Denver Area Educational Television v. FCC (l996)
                 (1)  Holding of the Supreme Court
     E.  Telephones, Fax, E-mail, and the World Wide Web
         1.  Pornography and Obscenity over Telephones and E-mail
             a.  The Problem
             b.  Legislative Action Taken by Congress
             c.  Sable Communications v. FCC (1989)
                 (1)  Constitutional Provisions of the Challenged
                      Statute
                 (2)  Unconstitutional Provisions of the Statute
             d.  A Distinction Drawn by the Supreme Court
                 (1)  Government Regulation of Radio and Broad-
                      cast Television
                 (2)  Government Regulation of Telephone Messages
 
VII.  Nonprotected Speech--Kinds of Speech or Expression that Are
      Not Protected by the U.S. Constitution  [Textbook, pp. 81-
      84.]

      A.  Libel
          1.  Definition of Libel
          2.  Constitutional Law Governing Libel Suits--Relevant
              Supreme Court Decisions
              a.  Guidelines Established by the Supreme Court for
                  Libel Cases
                  (1)  The New York Times v. Sullivan (1964)
                       (a)  Libel Action Brought by a Public
                            Official Against Critics of Official
                            Conduct
                       (b)  "Actual Malice"
                  (2)  Harte-Hanks, Inc. v. Connaughton (1989)
                  (3)  Hustler Magazine v. Rev. Jerry Falwell
                       (1988)
                  (4)  Mason v. New Yorker Magazine (1971)
      B.  Obscenity
          1.  The Judicial Consensus
          2.  The Problem--Defining "Obscenity"
          3.  The Current Rule of Law
              a.  Miller v. California (1973)  [Landmark Case]
                  (1)  The Supreme Court's Current Definition
                       of Obscenity
              b.  Brockett v. Spokane Arcades, Inc. (1985)
                  (1)  A "Prurient Interest" in Sex
      C.  X-Rated Movies and Other Pornography Falling Short of
          the Constitutional Definition of Obscenity
          1.  Young v. American Mini Theaters (1976)
          2.  Ginsberg v. New York (1968)
          3.  Reno v. ACLU (1997)
      D.  Fighting Words
          1.  Chaplinsky v. New Hampshire (1942)
          2.  Cohen v. California (1971)
      E.  Seditious Speech
          1.  A Distinction Between Seditious Action and
              Seditious Speech
              a.  Sedition, or Seditious Action
              b.  Seditious Speech
          2.  Current Constitutional Law
              a.  Yates v. United States (1957)  [Landmark Case]
              b.  Brandenburg v. Ohio (1996)  [Landmark Case]

VIII.  Freedom of Assembly, Petition, and Association [Textbook,
       pp. 84-87]

       A.  Freedom of Assembly and Petition
           1.  The Right to Congregate and Organize
           2.  The Peaceable Assembly and Petition Clauses
       B.  Freedom of Association
           1.  The Right to Organize for Political, Religious,
               and Other Social Purposes
           2.  The Source of the Right
           3.  The Limits of the Rights of Assembly and
               Association
       C.  Public Forums and Time, Place, and Manner Regulations
           1.  Assembly on Public Property
               a.  Public Forums
               b.  Limited Public Forums
               c.  Nonpublic Forums
               d.  The Question of Civil Disobedience
                   (1)  Civil Disobedience--A Definition
                   (2)  Civil Disobedience--The Legal Question
                   (3)  The Current Rule of Law
                        (a)  The Constitutional Status of Civil
                             Disobedience
                        (b)  Walker v. Birmingham, Alabama (1967)
                               Facts
                               Holding of the Supreme Court
               e.  Anti-Abortion Protest Demonstrations in Front
                   of Abortion Clinics
                   (1)  A Conflict Between Rights
                   (2)  State and Local Regulations and the
                        Current Rule of Law
                        (a)  Constitutionally Impermissible State
                             and Local Laws
                        (b)  Constitutionally Permissible State
                             Court Injunctions
                        (c)  Madsen v. Women's Health Center
                             (l994) and Schenck v. Pro-Choice
                             Network (1997)
                               The Constitutional Test Estab-
                               lished and Applied
           2.  Assembly on Private Property
               a.  Freedom of Assembly  versus the Crime of
                   Trespassing on Private Property
               b.  Protection of Private Property-Owners
               c.  The Question of Privately Owned Shopping Malls
                   (1)  Guidelines Set by the Supreme Court
                   (2)  The Current Rule of Law in a Nutshell




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