PAGE ONE, UNIT TWO
Chapters 3 & 4, pages 66-124.
Click on the link immediately above in order to go to
"OUTLINE OF LECTURE TOPIC A, RIGHTS & LIBERTIES UNDER
THE FIRST AMENDMENT."
Click on the link immediately above in order to go to
"OUTLINE OF LECTURE TOPIC B, EQUAL JUSTICE UNDER THE LAW."
a. Rights & Liberties under the First Amendment
The Federal Bill of Rights:
(1) What is the FEDERAL BILL OF RIGHTS? How did it become
a part of the United States Constitution? [67]
(2) What are the provisions of the Federal Bill of Rights?
[U.S. Constitution, Amendments 1-10]
Clarifying the Meanings of Important Legal Terms:
(1) How do the textbook authors distinguish among the fol-
lowing: (a) CIVIL LIBERTIES; (b) CIVIL RIGHTS; (c)
POLITICAL RIGHTS; (d) LEGAL PRIVILEGES. Which provi-
sions of the U.S. Constitution protect civil liber-
ties? Which federal constitutional provisions protect
civil rights? How does a person acquire legal privi-
leges? What is meant by "rights of persons accused of
crimes"? Which parts of the Federal Constitution pro-
tect these rights? [67] [Also: U.S. Constitution:
Article I, Section 9 (Clauses 2 & 3) & Section 10
(Clauses 6 & 7); Article III, Section 3; Amendments
1-8, 13, 14, 15, 19, & 24]
(2) What is the difference between CIVIL LAW and CRIMINAL
LAW? [67]
The Federal Bill of Rights and the States:
(1) Prior to the adoption of the Fourteenth Amendment in
1868, the Federal Bill of Rights imposed limitations
solely on the authority of the national government.
When and how did this change? What is the DUE PROCESS
CLAUSE in the Fourteenth Amendment? How was this
clause interpreted by those who pushed for ratifica-
and adoption of the Fourteenth Amendment? During the
past 75 years, how has the clause been used to make
most of the provisions of the Federal Bill of Rights
apply as limitations on state authority as well as on
national authority? [67-68]
(2) In GITLOW V. NEW YORK (1925), how did the U.S. Supreme
Court interpret the DUE PROCESS CLAUSE in the Four-
teenth Amendment? What is the significance of the Su-
preme Court's decision in this case? [68]
(3) What is meant by "selective incorporation"? Describe
the process of selective incorporation carried on by
the Supreme Court from 1925 to the present. What has
been the consequence of this process? How has it al-
tered the relationship between the national govern-
ment and the states? [68]
Religion, Government, and Freedom of Religion:
(1) What does the First Amendment have to say about free-
dom of religion and the relationship between govern-
ment and religion? [69] [Also: U.S. Constitution,
First Amendment, Clauses 1 & 2]
(2) What is the ESTABLISHMENT CLAUSE? What was the origi-
nal meaning of this clause? According to the U.S. Su-
preme Court's current interpretation of the ESTABLISH-
MENT CLAUSE, what three evils is the clause designed
to prevent? [69] [Also: U.S. Constitution, First
Amendment, Clause 1]
(3) In EVERSON V. BOARD OF EDUCATION (1947), how did the
Supreme Court interpret the ESTABLISHMENT CLAUSE?
[69]
(4) What three-part constitutional test was established by
the Supreme Court in LEMON V. KURTZMAN (1971)? [69]
(5) What is the ENDORSEMENT TEST? Cite and explain an ex-
ample of the Supreme Court's application of this con-
stitutional doctrine. [69]
(6) What is the NONPREFERENTIAL TEST? Who are the advo-
cates of this constitutional doctrine? [69-70]
(7) Has the Supreme Court prohibited prayer in the public
schools? Explain. In this connection, what has the
Court prohibited as a violation of the ESTABLISHMENT
CLAUSE? Has the Court upheld the constitutionality of
any governmental policies which relate to or impact on
religious activities and institutions? Explain. Cite
examples. [70]
(8) How has the Supreme Court interpreted the ESTABLISH-
MENT CLAUSE in cases involving state financial assis-
tance to students attending parochal and other religi-
ous schools? What line of distinction has the Court
attempted to draw? How has the Court ruled in cases
involving the use of tax funds to assist church-re-
lated colleges and universities? Why? How has the
Court ruled in cases involving state aid to students
attending religious schools at the elementary and sec-
ondary levels? Why? In this regard, what types of
state assistance has been accepted by the Supreme
Court as constitutionally permissible? What types of
assistance has the Court rejected as constitutionally
impermissible? [70-71]
(9) What is the FREE EXERCISE CLAUSE? What does it mean?
What kinds of governmental actions does the clause
prohibit as violations of the individual's right to
the free exercise of religion? [71] [Also: U.S. Con-
stitution, First Amendment, Clause 2]
(10) Between the ESTABLISHMENT CLAUSE and the FREE EXERCISE
CLAUSE, there exists tension, which became evident in
a 1995 Supreme Court case. Who were the opposing par-
ties in this case? What were their respective posi-
tions? How did the Court rule? [71]
(11) As a constitutionally protected right, how has the
right to practice a religion differed from the right
to hold particular religious beliefs? [71]
(12) As regards government regulation of religious prac-
tices, what is the COMPELLING PURPOSE TEST, or COM-
PELLING PUBLIC INTEREST TEST? In EMPLOYMENT DIVISION
V. SMITH (1990), what change did the Supreme Court
make in its interpretation of the FREE EXERCISE
CLAUSE? What happened to the COMPELLING PUBLIC PUR-
POSE TEST? What new test was established by the Court
to determine the constitutionality of a state's regu-
lation of religious practices? [71]
(13) What was the Religious Freedom Restoration Act of
1993? What were its provisions? What happened to
this federal stature? [71-72]
(14) What is the Religious Liberty Protection Act? What
does it stipulate? If this proposed legislation be-
comes a federal law, what is likely to happen to it?
[72]
Freedom of Speech:
(1) What does the First Amendment have to say about free-
dom of speech? What is the FREE SPEECH CLAUSE? [U.S.
Constitution, First Amendment, Clause 3]
(2) What is the fundamental importance of freedom of
speech to constitutional democracy? [72]
(3) Under the U.S. Constitution, as interpreted by the
U.S. Supreme Court, is the right to freedom of speech
an absolute right? Explain. What types of speech are
not entitled, in most circumstances, to constitutional
protection? [73]
(4) What are the three historic constitutional tests de-
veloped by the Supreme Court in efforts to distin-
guish what does from what does not fit into the cate-
gories of "nonprotected speech"? What is the BAD TEN-
DENCY DOCTRINE? What is the argument in favor of this
test? What is the CLEAR AND PRESENT DANGER DOCTRINE?
What argument is presented in its favor? What is the
PREFERRED POSITION DOCTRINE? What is the argument in
its favor? At the present time, how important are the
three historic tests? [73-74]
(5) What are the current constitutional tests--the doc-
doctrines which the Supreme Court is more likely to
utilize in determining the scope and limits of govern-
mental authority to regulate speech? What is meant by
"prior restraint"? What is the PRIOR RESTRAINT DOC-
TRINE? What types of prior restraint has the Supreme
Court upheld as constitutional? What is the VAGUENESS
DOCTRINE? Cite examples of its application. What is
the LEAST DRASTIC MEANS DOCTRINE? Cite an illustra-
tion of how the doctrine would be applied. What is
the CONTENT AND VIEWPOINT NEUTRAL DOCTRINE? Cite ex-
amples of laws that fail to meet the CONTENT AND VIEW-
POINT NEUTRALITY TEST. [74-76]
(6) While COMMERCIAL SPEECH is constitutionally protected,
it has less protection and is subject to more govern-
ment regulation than are other types of speech. Ex-
plain. Is a law prohibiting false and misleading ad-
vertising constitutional? What about a law prohibit-
ing false and misleading political advertising? Ex-
plain. [76]
Freedom of the Press and the Other Media:
(1) What does the First Amendment have to say about free-
dom of the press? What is the FREE PRESS CLAUSE?
[U.S. Constitution, First Amendment, Clause 4]
(2) Does the FREE PRESS CLAUSE of the First Amendment give
reporters, editors, and other persons working in the
news media the right to ignore legal requests and
withhold information from grand juries, legislative
investigating committees, and other governmental bod-
ies? What is the position of media persons on this
legal issue? What is the position of the U.S. Supreme
Court? What are "shield laws"? [77]
(3) Does the FREE PRESS CLAUSE give media persons the ab-
solute right of access--the right to go wherever they
need to go in order to obtain information? What argu-
ment has been presented in support of the media's
claim to this right? What is the position of the Su-
preme Court, as regards the claimed right? What are
"sunshine laws"? What action has Congress taken to
resolve the issue? [77]
(4) How has the right to freedom of the press come into
conflict with the right of a person accused of crime
to a fair trial? How has the Supreme Court dealt with
this problem? As regards dealing with the problem,
how do the federal rules of criminal procedure differ
from the rules of criminal procedure in most states?
How has Britain handled the problem? [78-79]
(5) What was the opinion of Oliver Wendell Holmes, Jr., on
the relationship between a citizen's use of the U.S.
Mail and the right to freedom of speech? Has the U.S.
Supreme Court adopted Holmes' view? Explain. Under
the Supreme Court's interpretation of the U.S. Consti-
tution, what is the legal status of the national gov-
ernment's censorship of the mail? [79]
(6) How has the Supreme Court ruled in cases involving
government censorship of motion-picture films? [79]
(7) How has the Supreme Court handled cases involving
handbills, sound trucks, and billboards? [79-80]
(8) Under the Supreme Court's interpretation of the First
Amendment, what are the scope and limits of govern-
mental authority to regulate radio and television? In
this regard, what may Congress and the Federal Commu-
nications Commission do? What may they not do? Since
1987, how have the U.S. Courts enhanced the editorial
freedom of broadcasters? How has the Supreme Court
enhanced this editorial freedom? [80-81]
(9) How has the Supreme Court ruled on government censor-
ship of messages via telephone, fax, email, and the
World Wide Web? How has the Court distinguished be-
tween a limited ban on indecent messages via radio and
broadcast television and a ban on such messages over
telephone? What was the reasoning of the Court in
justifying its treating differently the the two sets
of media, as regards their being subject to government
censorship? [81]
Nonprotected Speech--Types of Speech Not Entitled to Consti-
tutional Protection:
(1) What is LIBEL? In NEW YORK TIMES V. SULLIVAN (1964)
and subsequent cases, what guidelines did the U.S. Su-
preme Court establish for libel cases? What is meant
by "actual malice"? In what way are private persons
bringing libel charges treated differently from public
officials and public figures bringing such charges?
[82]
(2) In MILLER V. CALIFORNIA (1973), how did the Supreme
Court define OBSCENITY? What is the legal status of
obscenity under the Supreme Court's current interpre-
tation of the FREE SPEECH CLAUSE and the FREE PRESS
CLAUSE? What is the legal status of X-rated movies
that fall short of the Supreme Court's definition of
obscenity? What is the legal status of sexually ex-
plicit material about or aimed at minors? What are
the scope and limits of state and local governmental
authority to regulate these materials? [82-83]
(3) What are "fighting words"? Under the Supreme Court's
current interpretation of the First Amendment, may
Congress and the states regulate the use of fighting
words? Are there limits to this regulatory authority?
Explain. [83-84]
(4) What is SEDITION? Under current constitutional doc-
trine, what are the scope and limits of the authority
of Congress and the states to regulate and prohibit
SEDITIOUS SPEECH? What about SEDITIOUS ACTION? [84]
Freedom of Assembly and the Right to Petition:
(1) What does the First Amendment have to say about free-
dom of assembly and the right to petition? What is
the PEACEABLE ASSEMBLY CLAUSE? What is the PETITION
CLAUSE? What does each of these clauses mean? [U.S.
Constitution, First Amendment, Clauses 5 and 6]
(2) Does the First Amendment guarantee persons the unlim-
ited right of peaceable assembly and expression--the
absolute right to communicate their views to everyone,
every place, at every time they wish? Explain. How
may government regulate parades and protest demonstra-
tions? What are "public forums," as defined by the
U.S. Supreme Court? How do the U.S. Courts handle
time, place, and manner regulations that apply to pub-
lic forums? What are "limited public forums"? Under
current constitutional doctrine, how may government
regulate use of limited public forums for assembly
and expressive purposes? What are "nonpublic forums"?
Under what conditions do people have the right to use
nonpublic forums? How may government regulate use of
such facilities? [85-86]
(3) What is CIVIL DISOBEDIENCE? Is it a constitutionally
protected right? Explain. [85]
(4) What legal problem grows out of the First Amendment
right of anti-abortion protestors to picket in front
of abortion clinics? How has the Supreme Court dealt
with the problem? What constitutional test has the
Court established to determine the constitutionality
of governmental restrictions on anti-abortion protests
in front of abortion clinics? [86]
(5) Does the right of the people to peaceably assemble and
petition the government for a redress of grievances
include federal constitutional protection of a right
to hold meetings and demonstrations on private proper-
ty owned by others? Explain. In this connection,
what action may a state or local government take? As
regards assembly and expressive acitvity at privately
owned shopping malls, what guidelines has the Supreme
Court established?