Harvard: Constitutional Law Quiz

1. 1. (Certain types of) speech that advocate(s) violence.

2. Threats
3. "Fighting words"
4. Defamation
5. Time, place, and manner restrictions: We'll look at 5 major exceptions to that presumption-that is, narrow categories of speech that
can be regulated, or types of speech regulations that are
constitutionally acceptable
2. 3 judge panel; en banc court: • Cases can be appealed from a federal circuit court either a _____
or the ______
3. 14th Amendment includes a Due Process Clause: "nor shall any State deprive any person of life, liberty, or property, without due
process of law"
4. 80: -About 7,000-8,000 "cert petitions" are filed.
• The Supreme Court "grants cert" in about ___ (about 1%!).
5. a: Which type of case would be most likely to be heard by an Article III
court?
a. A constitutional challenge to a federal law under the federal constitution.
b. A constitutional challenge to a state law under a state constitution.
c. A tenant's dispute with her landlord.
d. A fight between family members over who gets a relative's inheritance.
6. a: Which type of case is least likely to be heard by SCOTUS?
a) A lawsuit by an angry driver suing the cop who gave him a speeding ticket
b) One involving the separation of powers between the President and Congress
c) One involving a "circuit split" on an issue of constitutional interpretation
d) One about an issue where all SCOTUS members think the precedent is wrong and it should be overrule
7. absolute: Freedom of speech is a fundamental constitutional right, but it isn't __ _.
8. amicus curiae: "friend of the court"
9. appeals; circuit court of appeals: The losing party in a case may want to challenge the
results from district court, or argue that the district court judge made errors in interpreting the law. These _____ are heard first by a __ _.
10. appellate jurisdiction: In the vast majority of cases, SCOTUS is exercising ___ _.
11. argument: The ___gives the reasons behind the opinion.
12. article 3 courts: Federal courts are sometimes called _____
13. articles of confederation: • Originally, the country was governed by the ____
The idea was that the individual states would be the primary
governments
14. associate justices: the other justices are known as _____
15. Because they were established in article 3 of the U.S. Constitution: Why are federal courts sometimes called article 3 courts?
16. bicameral legislature: composed of the House
of Representatives and the Senate
17. bill of attainder: bills declaring specific people guilty of a crime
18. bill of attainder: The Constitution prohibits Congress from passing laws that declare a particular
person guilty of a crime. What is the name for this type of law?
19. Bill of Rights: -First 10 Amendments
-These Amendments are important limits on the federal government.
20. Brandenburg Test: 1. the speech must be "directed to" inciting violence or law breaking • This is usually interpreted to mean that the
speaker intended to incite lawlessness
2. the "lawless action" must be "imminent"
3. the speech must be "likely to incite or produce such action" [emphasis added].
• All 3 parts must be met for a speech-regulating law to be constitutional under this
test.
21. Brandenburg v. Ohio (The Brandenburg Test): different standard for speech that advocated illegal conduct: the
"imminent lawless action" test
22. c: Schenck v. U.S. is a famous case because:
a. Justice Oliver Wendell Holmes put an end to the common practice of bored
teenagers running into crowded theaters and yelling fire.
b. It created the Espionage Act of 1917.
c. Holmes announced the clear and present danger doctrine.
d. Holmes announced the imminent lawless action test.
23. cannot: -An important part of what any constitution does is say what a government
____ do.
-Constitutional rights are (largely) limitations on the government.
24. case law: • When we talk about "constitutional law," we usually mean the _____
about about how the Constitution should be understood.
25. case law ____ refers to the body of law that comes from the decisions of
courts hearing particular cases. Earlier cases set precedents—rules
that are applied to later cases with similar facts.
26. case law ____ is particularly important for understanding the Constitution,
because the constitutional text is often vague.
27. ceiling: The common law is not a __ _. The Constitution may go beyond the
common-law protections, and in certain cases, it may be much more protective
28. certiorari: As with cases going through the federal-court system, SCOTUS has
discretion to hear a case or refuse it through its grant of __ _.
29. Chaplinsky v. New Hampshire: • This case is from 1942, so keep in mind: we're still in the time of
"clear and present danger."
• The case involves a state law that said, "No person shall address any
offensive, derisive or annoying word to any other person who is
lawfully in any street or other public place."
• The law was challenged as being unconstitutional under the First
Amendment. But the Supreme Court disagreed...
30. Chaplinsky v. New Hampshire: This case decied that there are certain well defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to
raise any Constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or 'fighting" words' -- those
which, by their very utterance, inflict injury or tend to incite an
immediate breach of the peace."
31. Chaplinsky v. New Hampshire: "fighting words" doctrine
32. -checks and balances
-a government of enumerated powers
-bill of rights: Solution to a government that would be too strong?
33. chief justice: SCOTUS is headed by a _____
34. Chief Justice John Marshall: The judiciary claims the power of judicial review.
• The judiciary takes on an important role to play in policing the separation
of powers and enforcing federalism.
• The federal government's power has been expanded:
• The Necessary and Proper Clause allows Congress some leeway to go beyond its
enumerated powers when done in furtherance of its enumerated powers.
• Federal supremacy over the states is clarified.
35. Chief Justice John Marshall: He was actually the fourth chief justice
of the Supreme Court, but no one really
talks about the first three!
• Most of his opinions aren't as exciting or
cool as the ones we'll be talking about
for the rest of the course...
• ...but many of his ideas are still at work
today, so we need to start with his
decisions.
He was particularly important in
outlining how the federal judiciary
would act in relation to the other
branches.
• He was also important in interpreting
the limits of congressional power and
enforcing the supremacy of federal over
state law.
36. circuit courts of appeal: The ___ hear arguments (appeals) about
whether the district courts properly interpreted and applied the
laws.
37. circuit split: Cases where different circuit courts have reached different views about the law. This
is called a __ _.
38. civil ___ allow a private party to get monetary compensation (damages) when suffering an injury because of another person's
behavior.
• The goal of ___is to compensate the wronged party for their suffering
39. civil laws: most libel laws are ___ , but some states have criminal ones as well
40. The Clear and Present Danger Test: • It allows the government to crack down on a lot of peaceful speech.
• The Supreme Court doesn't clarify what counts as a "danger."
• It appears to allow the government to punish dissent about an important
political topic (the US's foreign policy).
• Remember what the Supreme Court said about the importance of free speech in a
democracy. "Political speech" has always been seen as deserving the highest protection.
• The probability of danger doesn't seem to matter. Even a small likelihood of
danger might be enough to punish speech.
41. coequal: According to the U.S. Constitution, the branches are ____ no
branch is superior to any other.
42. common law: • In England, a body of case law called the ____ developed over centuries as different courts made decisions that
influenced future courts.
43. concurring: There are often many arguments that can be made for a particular holding—
and often a ___ opinion will give different ones than the opinion for
the Court.
44. concurring opinions: Sometimes individual justices who are part of the majority will write
an opinion explaining their own views. These are called __ _.
45. Congress: Article I, section 8 specifies what ___ can do.
46. constitution: The ___ doesn't set up any courts besides SCOTUS. However, it says
that Congress can do so if it chooses.
47. constitution: A ___ is like a super-law: it sets up the basic form and rules of the entire government. In addition to the federal
Constitution, each state government has a constitution
48. the constitution ____ establishes a
Supreme Court and says that
Congress can set up additional
courts, which was one of the first
acts of Congress after the
Constitution was ratified.
49. constitution: When a statute conflicts with a constitution, which takes priority?
50. Constitutional Convention: The argument that won the day: Structural protections are good and
all, but specific guarantees of individual rights would be even better.
• In 1791, the Constitution was amended to include the Bill of Rights
(the first 10 Amendments).
• But the rights are framed as restraints on Congress.
• The First Amendment doesn't say "everyone will have the right to free
speech." And it doesn't say anything about the state governments!
51. constitutional convention: The original Constitution didn't have a Bill of Rights.
• How would individual freedoms be protected?
The claim was that a government of limited power couldn't be too much of
a threat to individuals. (Think back to yesterday!)
• Another way of putting this: the structure of the federal government would protect individual freedoms.
• But the Anti-federalists were still scared - would the structural protections be enough? They wanted a written guarantee of specific
freedoms that all
Americans would have.
52. constitutional democracy: A __ has to accommodate both majority rule and
minority rights. These two principles will sometimes conflict.
53. content-based; viewpoint-based: If a subject is put off limits, then it's __ _. If a particular perspective on that subject is put off limits,
then it's __ _.
54. Content Neutrality: Another way of phrasing the third prong of the O'Brien test—is the governmental interest "unrelated to the
suppression of free expression"?—is to ask if a law has______
55. content neutrality: One of the most important concepts in contemporary constitutional law. The idea is that the First Amendment
prohibits
the government from telling people what to think, so any laws that try to regulate
what is being said (i.e., the content) are presumed to be unconstitutional.
56. criminal; civil: Violating the ____ law can result in punishment (e.g., jail time), whereas violations of __ law
usually result only in monetary damages.
57. criminal laws: ____ deal with behavior that is seen as undermining the public's welfare more broadly. The goal of ____is to deter and
punish wrongdoers—not necessarily to compensate those who are injured.
58. d: Which of the following accurately describes a criminal, rather than civil,
law?
a. It can be enforced by private citizens through a lawsuit.
b. Violations tend to result in fines rather than jail time.
c. It is designed to compensate a wronged party who might
otherwise lose money.
d. It is designed to punish someone who does something
broadly harmful to society
59. d: The First Amendment protects all the following freedoms EXCEPT
a. Freedom of speech
b. Freedom to peaceably assemble
c. Freedom of the press
d. Freedom from cruel and unusual punishment
60. Defamation: • On the one hand, they are laws that "abridg[e] the freedom of speech."
• On the other hand, spreading malicious gossip or ruining someone's reputation is clearly
harmful, and falsehoods don't have much value in the "marketplace of ideas".
61. defamation: • The Supreme Court's answer has been to make clear that ___ laws are
constitutional in specific, limited circumstances.
• Libel laws are a clear threat to freedom of the press if they aren't interpreted narrowly.
• Let's look at a few general principles that govern defamation laws and protect both freedom
of speech and freedom of the press.
62. defamation: the act of damaging someone's reputation with false statements:
-slander
-libel
63. defamatory: If it's true, it isn't ____. The definition of ___ "the act of damaging someone's
reputation with false statements."
64. the defendant: If someone sues you in court, then you are:
65. defendants: The people you sue are the _____
66. dicta: Lower courts do not have to follow___ , but the division between the
_____ and the holding isn't always clear. Often, lower courts will disagree
about what part of a SCOTUS opinion is precedential.
67. dictum (or dicta): Most cases have additional commentary beyond the holding. This "extra"
writing is called___ _.
68. dissenting opinion: A Supreme Court justice's opinion that disagrees with the Court's main holding is called which of
the following?
69. dissenting opinions: justices who disagree with the majority's decision can write ____
70. distinguish: What happens when SCOTUS hears a case similar to a previous case? Another option is to ___ the issues in one case from
previous cases.
This allows the Court to avoid overruling precedent, while at the same time
not having to apply a previous holding to a current case.
71. district courts: Most (but not all) cases under federal law start out in the __ _.
72. district courts: The U.S ____ are where lawsuits are filed and trials are
held.
73. district courts and circuit courts of appeal: Federal law establishes two types of lower courts...
74. docket: the cases set to be heard by SCOTUS.
75. the doctrine of viewpoint neutrality: the government cannot make it acceptable or unacceptable to express certain views on an issue.
76. en banc review: If your case is dismissed: you can ask the entire circuit court to hear the case called __ _. This is the only way for a
circuit court to overturn its own
decision.
77. en banc review: When an entire circuit court convenes to hear a case, it is known as:
78. enumerated: the federal government is limited to ____
powers. That means that the federal courts have more limited work
to do than the state courts.
79. enumerated: The Constitution limits the federal government to specific ______ powers
80. Establishment Clause: keeps religion out of government
81. excessive conduct: also known as symbolic speech is seen as covered under the First Amendment.
82. executive: The ____branch enforces the laws.
83. executive: The Department of Justice, which prosecutes criminals at the federal
level, is part of which branch of government?
84. executive: Criminal laws are enforced by representatives of the ____ branch (prosecutors), such as a
district attorney or attorney general.
85. executive: Which branch of government is the biggest?
86. executive; congress: But an important check on
the ____ and ____ doesn't come from the other branches, but
from the people -- the power of the populace to vote bad leaders out of office!
• The free flow of information is important to allow the populace to make informed
decisions.
• And traditionally, the news media had been the key way that information about
public affairs has gotten to the populace.
87. ex post facto law: The Constitution prohibits Congress from retroactively declaring something illegal.
What is the name for this type of law?
88. ex post facto law: laws that make something a crime after the fact
89. federal courts: • Hearing cases involving federal crimes - again, the Constitution must
specifically give the U.S. Congress the power to legislate in that area.
• Handling issues that the Constitution explicitly says are the power of the
federal government alone (e.g., immigration, the federal income tax).
• Hearing challenges to the constitutionality of laws under the federal
Constitution.
90. federal executive branch: -Headed by the President and Vice
President
-Includes multiple agencies that
enforce laws and promote public
policy, such as the Department of
Justice, the Department of
Homeland Security, and the State
Department.
91. federalism: The system of shared and divided governance between the federal government and the states.
92. federalism ____ also allows the state governments to act as checks on the
federal government's authority.
93. federalism and federal supremacy: Could a state tax a federal institution?
• What principles does this implicate?
94. federalist #78: The main argument:
• A strong, independent judiciary is necessary to check and balance the
executive and legislative branches.
• Individual liberty depends on the rule of law and a limited government.
• Nothing is more threatening to individual liberty than if the other branches
can act however they want (i.e., arbitrarily).
• So refusal to enforce an unconstitutional law is one way that the
judiciary maintains constitutional limits on the government
95. federal judicial branch: -The Constitution establishes a
Supreme Court.
-The Constitution says that
Congress can set up additional
courts, which was one of the first
acts of Congress after the
Constitution was ratified
96. federal law: The circuits are set up by ___ _. Currently, there are 13 of
them...
97. federal law; federal Constitution: Cases can be appealed from a state supreme court if - and only if -
they involve questions about ____ or the __ _.
98. federal legislative branch: -Bicameral, composed of the House
of Representatives and the Senate.
-The House of Representatives and
the Senate together are called
Congress.
99. fighting words: "those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace."
100. first amendment: We've looked at some categories of speech that the Supreme Court has said
aren't protected by the __ , such as speech inciting "imminent
lawless action," true threats, fighting words, and defamation.
101. First Amendment: speech v. conduct: • The First Amendment doesn't just cover verbal speech.
• Expressive conduct (or symbolic speech) is seen as covered under the First Amendment.
• But not all conduct that expresses ideas is covered:
• You might want to make a statement against the government by robbing a U.S. Post Office - but that isn't protected speech!
• So we will need to think about where to draw the line between protected speech and unprotected behavior.
102. floor: Common-law tradition sets a ____at a minimum, the Constitution protects certain rights that were recognized at common law.
103. Free Exercise Clause: keeps government out of religion
104. The Free Speech Clause of the First
Amendment: "Congress shall make no law... abridging the freedom of speech"
105. government: The First Amendment means that the ___ generally can't outlaw your speech. Part of respecting other people's
constitutional rights is allowing them to respond to speech
106. holding: The major decision of law in an opinion is called the __ _.
107. holding: The ___ is the main decision reached by the Court about a principle of
law.
108. In 1791: only the federal government
• 1897 on: some apply to the states as well (incorporated via
the 14th Amendment)
• The ongoing process of incorporation: Does the Bill of Rights regulate state governments—or
only the federal government?
109. incorporates: • The idea is that the 14th Amendment Due Process Clause ______
other guarantees.
• In other words, part of not "depriv[ing] any person of life of life, liberty, or
property, without due process of law" is respecting their basic rights as
outlined in (some of) the Bill of Rights.
• This means that (some of) the Bill of Rights limits state governments too!
110. incorporation _____is an on-going process, because the Supreme Court has never
held that all of the Bill of Rights applies to the states. Instead, it has decided
about specific rights as they've arisen in particular cases.
111. Independent Judiciary: • serve as a check on the executive's power (through judicial review of
executive action), especially its ability to imprison people (through habeas
corpus).
• ensure that Congress doesn't pass unconstitutional laws (through judicial
review of legislation).
• protect minority rights from tyranny of the majority.
112. individuals: constitutional rights are limits on the government. The
Constitution protects the rights of ____ by restricting what the
government can do—even when something is wildly popular.
113. injunction: blocking further
publication
114. interfering: The First Amendment prevents the government from ____ with your
speech. It doesn't require anyone to help you make your voice heard ... or to
listen!
115. is not: There are currently 9 members of the Court, but this number ____ in
the Constitution. It is set by federal law and could theoretically
change.
116. John Roberts: Who is the current chief justice?
117. judicial: The ____ branch interprets the laws and settles disputes in
accordance with them.
118. Judicial Review: • The Constitution envisions an independent judiciary that makes its
own judgments.
• However, judicial review goes further than this. It gives the judiciary
the power to declare that a law is unconstitutional and shouldn't be
followed.
• Today, it is standard practice that the other branches follow the
constitutional determinations of the judicial branch. That power isn't
given to the judiciary in the Constitution. Where does it come from?
119. Judicial review ____ is the ability of the courts to comment on the
constitutionality of the other branches' actions and the laws that
Congress passes.
120. Judiciary Act of 1789: One of the first laws passed by Congress when the country
was founded was the ___ , which set up a system of
lower courts.
121. laws ___ include many different types of government-enforced rules that shape and constrain (limit) the
behavior of individuals and groups.
122. legislative: The ____ branch passes laws that govern society.
123. legislative, executive, judicial: governmental divisions in the U.S.
124. legislative: judicial review of statutes and invalidation of unconstitutional legislation
executive: judicial review of executive actions and habeas corpus: Checks and balances judicial branch has on other 2 branches?
125. legislative: veto power
judicial: judicial appointments: Checks and balances executive branch has on other 2 branches?
126. libel: written defamation
127. limited government: State governments have the police power, but still must respect individual
rights.
• The federal government is limited to enumerated powers.
• An important part of what any constitution does is say what a government
cannot do.
• Constitutional rights are (largely) limitations on the government.
128. limited government: • Does Congress have the authority to establish a national bank, even though it
isn't listed under the enumerated powers in Article I?
• What principle does this implicate?
129. limited government: All
government bodies must respect certain individual rights ____ is an important component of our constitutional design.
130. limits on the government: Individual rights in the Constitution = _____
131. living constitutionalism_____ is the view that the Constitution's meaning should
evolve to keep up with social, economic, and cultural changes.This is a more progressive philosophy—it allows for change over time,
and even for the Court
to claim that previous decisions are no longer correct (but may have been correct once upon
a time.)
132. lower; inferior: The country has always had others courts called
_____ or _____ courts because they can be overruled by
SCOTUS
133. majoritarianism: rule by the majority
134. majority: Each justice has one vote. All cases are decided by a ____ vote of
the justices on the court
135. Marbury v. Madison: established the idea of judicial review - the
judiciary (and specifically, the Supreme Court) is the final decider of
what is constitutional.
• the Supreme Court can strike down
a law (or an Executive policy) it views as unconstitutional.
• Marshall outlines some of the important arguments for judicial
review.
136. Marbury v. Madison: • Recall that Chief Justice Marshall's two options both looked bad:
• If he issued the writ and ordered Madison to deliver the commission, Madison might simply
ignore him. This would expose the Supreme Court as powerless to enforce its own decisions.
• If he refused to issue the writ, it could seem like the Court was simply caving to whoever was in
office.
• In the end, he avoided both of those options! He claimed the Court had the authority
to decide the outcome of the case, but the proper decision was to declare that the
relevant law was unconstitutional.
• He avoided challenging Madison and Jefferson, but he also asserted the Court had
the authority to challenge them if it needed to. In other words, he asserted the
Court's power of judicial review, but didn't use it to challenge the other branches. He
set the stage for the Court's behavior later on, though.
137. Marbury v. Madison: "It is emphatically the province and duty of the Judicial Department to say
what the law is."
138. Marbury v. Madison: Factual background of the case:
• The outgoing president, John Adams, wanted to fill the courts with his appointees before he
left office. He made a series of last-minute judicial appointments and left the commissions
with Chief Justice John Marshall.
• The night before the new administration was to take office, Marshall accidentally did not
deliver 17 of the commissions, leaving them signed and sealed on his desk.
• When Thomas Jefferson took office as president and found out about this oversight, he told
his new Secretary of State James Madison not to deliver the remaining commissions.
• William Marbury was one of the judges who was to be appointed. He sued Madison for
failing to deliver his commission and sought a writ of mandamus -- a writ which compels a
government official to perform his duties correctly — from the Supreme Court to order
Madison to deliver
139. Marbury v. Madison: Marshall's solution: come up with a third option in which the Court
asserted its authority, but didn't actually challenge the presidency.
• Marshall's opinion declared that before the Supreme Court could
order any writs of mandamus, it had to use its authority to decide on
the constitutionality of the request.
• Did the judiciary have the constitutional authority to order a writ of
mandamus? Yes, generally. But what about in this case?
140. Marbury v. Madison: • What was Chief Justice Marshall to do?
• He had two options: issue the writ or not issue the writ. Both seemed like bad
ideas:
• If he issued the writ and ordered Madison to deliver the commission, Madison might simply
ignore him. This would expose the Supreme Court as powerless to enforce its own decisions.
• Remember from Federalist #78 - what power does the judiciary have to enforce its own judgments?
• If he refused to issue the writ, it could seem like the Court was simply caving to whoever was
in office.
• On top of everything, it was Marshall's fault that these writs weren't delivered in the first
place. (Good thing we have email today!)
141. Marbury v. Madison: • The question revolved around the Court's jurisdiction, or authority to hear a particular case.
• Remember: An important part of limited government is that all government branches have to stick to their constitutionally assigned
powers.
• Article III of the Constitution outlines two different types of jurisdiction for the
Supreme Court:
• The Supreme Court is mostly an appellate court - it hears appeals from the lower federal courts
or from state supreme courts.
• The Supreme Court has "original" jurisdiction over only a limited number of cases:
142. McCulloch v. Maryland: Let's look at a second important decision of Chief Justice Marshall.
• Facts of the case:
• The state of Maryland passed a law imposing a tax on banks that were not chartered
by the state legislature.
• McCulloch worked for the Maryland branch of the Bank of the United States and he
refused to pay up.
• Maryland sued him and won, but he appealed the decision, arguing the law was
unconstitutional.
143. McCulloch v. Maryland: 1) Congress has explicit powers in economic matters, e.g., regulating (interstate)
commerce.
2) Nothing in the Constitution forbids Congress from establishing a bank.
Therefore,
3) Establishing a bank is a "necessary and proper" way for Congress to carry out its
enumerated powers.
144. McCulloch v. Maryland: This case decided that the federal government is one of enumerated powers...
• ...but the list of enumerated powers has to be understood correctly.
• The "Necessary and Proper" Clause allows Congress to take actions that
aren't specifically granted in the Constitution, if
(1) Those actions are otherwise constitutional; and
(2) They are means to executing the enumerated powers in the Constitution.
145. media: The ___ is often called the "fourth branch" or the "fourth estate" in a
democracy
146. Minersville School District vs. Gobitis: • The Court had said a similar state law did not violate the First Amendment
because "inculcating" patriotism was an important government interest
that outweighed the other interests at stake
There was a wave of mob violence against Jehovah's Witnesses across the country.
• Two members of the Court retired and were replaced.
• Three members of the majority in Gobitis announced they had changed their mind
147. the nebraska supreme court: Which of the following is not an "Article III court"?
a) The U.S. District Court for the District of Massachusetts (a federal court)
b) The U.S. Court of Appeals for the First Circuit
c) The United States Supreme Court
d) The Nebraska Supreme Court
148. Necessary and Proper Clause: allows Congress to take actions that
aren't specifically granted in the Constitution, if
(1) Those actions are otherwise constitutional; and
(2) They are means to executing the enumerated powers in the Constitution.
149. Necessary and Proper Clause: Which part of the Constitution is also known as the "elastic clause"?
150. news media: Speech by the ___ about public figures or
officials gets the highest protection.
151. New York Times v. Sullivan: actual malice standard- with knowledge
that it was false or with reckless disregard of whether it was false or
not.
152. New York Times v. Sullivan: One of the most famous Supreme Court cases about freedom of the press.
• It set a high bar for claiming defamation by the news media when it comes to
a public figure.
• The Supreme Court recognized that if the news media were constantly in fear of being
sued for libel, they would stop publishing articles critical of public officials.
• Self-censorship would undermine the important role of the media in our democracy.
• The Supreme Court therefore protected the news media even when they make some
inaccurate claims about public figures or officials, as long as those claims aren't made
with "actual malice."
153. New York Times v. United States: Supreme Court reaffirmed that most cases of prior restraint were
unconstitutional.
154. New York Times v. United States: After the NYT started publishing excerpts, the Nixon Administration
asked a federal court to issue an injunction blocking further
publication.
• A judicial order preventing publication of a document is a classic form of prior
restraint.
• The Nixon Administration claimed the publication would harm national
security.
• The Court was rushed in releasing an opinion, and no single one carried a
majority.
• However, 6 of the justices agreed that the government could not block
publication of the Pentagon Papers
155. New York Times v. United States: Pentagon Papers
156. New York Times v. United States: • Is prior restraint acceptable to prevent the publication of top-secret, classified
documents about U.S. foreign policy?
• Facts of the case:
• Took place during the Vietnam War, which was massively unpopular.
• A former US Department of Defense employee, Daniel Ellsberg, stole a copy of a secret
government study about Vietnam (unofficially titled the "Pentagon Papers").
• The Pentagon Papers showed that the government had been lying to the public about the extent and
cost of the US's involvement in Vietnam.
• Ellsberg passed the Pentagon Papers on to the New York Times and Washington Post.
157. No. (The president can only pardon someone for federal crimes.): The president of the United States has the constitutional "Power
to
grant... Pardons for Offenses against the United States" (Art. II, Section
2). Can the president pardon someone who robbed a Massachusetts
bank and was convicted under state law?
158. No (This would violate federalism. Federal laws can't be struck down
because they violate a state constitution. The Supremacy Clause gives
federal laws priority over state laws, including state constitutions): A Massachusetts citizen thinks that a federal law violates the
state
constitution. Can she have the Massachusetts Supreme Judicial Court (the
state's supreme court) declare the law unenforceable?
159. The O'Brien Test: This is really a 4-part test! We just have to ask 4 questions:
1) Is the law at issue within the government's constitutional powers?
2) Does it further a substantial government interest?
3) Is the governmental interest "unrelated to the suppression of free expression"?
4) Is the law narrowly tailored to promote the valid government interest?
If the answers to all 4 questions are "yes," then the law is constitutional.
160. O'Brien Test: • Finally, we've seen that the Supreme Court gives protection to forms of
"symbolic speech" (or "expressive conduct") if they pass the __ _.
161. The O'Brien Test: During the Vietnam War, David O'Brien decided to protest the U.S.'s
involvement in Vietnam by burning his draft card.
• This was illegal under federal law. O'Brien claimed that he was peacefully
expressing his views against the war.
• Was this constitutionally protected "symbolic speech"? Or conduct that can be
outlawed?
162. opinion for the court: The Court's decision that sets the law for the country is outlined in the ____ The ___ is written by one justice, but
joined by at least 4 others (1 author + 4 others = 5-justice majority!).
163. opinions: The written explanations of the supreme court are called___ _.
164. opinions ____ are usually protected against claims of
defamation
165. originalism ___ is the view that the Constitution should be interpreted by looking
at how it was understood when it was adopted in 1787.
166. original jurisdiction: -A small number of cases start and end in the Supreme Court.
-These are cases over which Article III gives the Supreme Court ____ _.
167. overrule: What happens when SCOTUS hears a case similar to a previous case?
• SCOTUS has the power to ___ its own previous decisions.
168. overruling: If the Supreme Court does the following, it is probably not respecting stare decisis
169. panel: The circuit courts of appeal are very busy because they hear cases
from multiple district courts. It wouldn't be feasible for every judge
on the court to hear every case. Instead, 3 judges on the court are
randomly assigned. This ___ hears the case and makes a decision
170. per curium: Sometimes, an opinion will be issued____ ("by the court"),
without any author listed. This is often (but not always) done when
the Court wants to emphasize that the justices all agree on a decision,
or to highlight that the outcome isn't controversial.
171. petition for
certiorari; writ of certiorari.: A request for the Supreme Court to hear a case is called a ___ _. If the Supreme
Court agrees to hear the case, it grants the ___ _.
172. plaintiff: The ____files the suit in court.
173. police power: State governments are not limited to enumerated powers. They can act
in ways that generally promote the public good - what's often called
the ___ _.
174. -power of the purse
-impeachment power: Main checks and balances legislative branch has on the other 2 branches?
175. prececdent: a previous case or legal decision that may be or must be followed in subsequent similar cases.
176. precedent: • When lower courts hear cases, they are required to follow the Supreme
Court's holdings. These holdings are considered __ _.
177. precedent: The judges in the district courts oversee trials. In the process they
often issue interpretations of laws, in accordance with ___ _.
178. precedent: Cert granted in Cases that allow the Court to reconsider a problematic ___ opinion.
• Only the Supreme Court can overrule a previous Supreme Court opinion. Until the Supreme
Court overrules it, lower courts are expected to follow it.
179. president; Senate: The ___ gets to nominate a
justice, but the ___has to
approve (confirm) the choice.
180. prior restraint: rather than punishing someone after the fact for something they've written, a government prevents something it doesn't
like from being published in
the first place.
181. pro se: You can take the case
yourself. This is called going ____.
182. public: Speech about ___ figures or officials has stringent
protection.
183. Reconstruction
Amendments: the 13th, 14th, and 15th Amendments -
184. remand: return (a case) to a lower court for reconsideration.
185. Schenck v. United States: Justice Oliver
Wendell Holmes laid out a famous test that would be
used for future free-speech cases: the "clear and
present danger" test.
"The most stringent protection of free speech would not protect a man
in falsely shouting fire in a theatre and causing a panic."
186. Schenck v. United States: clear and present danger test
187. selective incorporation: The process through which the Bill of Rights has become applicable to
state governments is called
188. selective incorporation: Does the Bill of Rights regulate state governments—or only the
federal government?
189. separation of powers; check and balance: The ____ between the 3 branches of the federal
government allows each branch to ___ the others.
190. slander: verbal defamation
191. So that decisions are not stuck as ties (sets very weak precedent and case law): Why is it important to have an odd number of
Supreme Court
justices?
192. stare decisis: The principle that the Supreme Court should respect its own precedents is called:
193. stare decisis: -Courts are supposed to respect previous decisions, because it is
important to providing certainty and clarity to the law.
-This is embodied in a key legal principle called____ ("to stand by that
which has been decided").
194. stare decisis: Respect for precedence is reflected in the doctrine of
195. state constitutions; U.S. constitution: State governments are limited by their __ _. Both the
state and federal governments are limited by the ___ _.
196. state courts: Which courts handle...
• Marriages and divorce?
• Family disagreements about a relative's will?
• Disputes about car accidents?
• Most crimes?
197. state executive branch: -Headed by a governor and
lieutenant governor.
-Includes agencies such as
the attorney general's office,
the department of public
health, and the department of
education.
198. state judicial branch: -Every state has a supreme
court and lower courts.
-State courts deal with many of
the mundane details of settling
disputes between private
citizens and handling family
matters.
199. state law: libel and slander are issues of ______
200. state legislative branch: -49 states have bicameral
legislatures.
-Nebraska is the only state with
a unicameral legislature.
201. statute: • Often, constitutional cases are legal challenges to ____ (either state or federal),
brought by individuals who have been harmed by those laws.
• By striking down a ___ as unconstitutional, the courts are limiting the power of the
legislative branch and enforcing individual rights.
202. statutes ____ are written laws passed by a legislative body like the U.S. Congress.
203. statutes: When we think of laws, we usually think of written documents passed
by a legislative body called ____
204. The Supremacy Clause: What happens if state and federal laws conflict? "all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land."
205. the supremacy clause: Federal laws can't be struck down
because they violate a state constitution ____ gives
federal laws priority over state laws, including state constitutions.
206. supremacy clause: • Federal law takes precedence over state law
• The U.S. Constitution takes precedence over everything else (state laws,
federal laws, and even state constitutions).
• So the U.S. Supreme Court has the ultimate authority to judge whether any
laws accord with the U.S. Constitution, and it can strike down any law (even a
part of a state constitution) as unconstitutional under the U.S. Constitution.
207. The Supremacy Clause (in article 6): The part of the Constitution that clarifies what happens when state and federal laws
conflict is
208. supreme court: If your case is dismissed: You can ask the ___ to hear the case.
209. supreme court of the united states (SCOTUS): The U.S. Constitution sets up the_____
210. Terminiello v. Chicago: did not repudiate
Chaplinsky, but it suggested that the "fighting words" exception was
narrower than previously described
211. Terminiello v. Chicago: upholds the "fighting words" doctrine, it suggests that
there's a very high bar for speech to count as "fighting words." Beyond directly challenging someone to a fight, it's unclear today what
count as "fighting words.
212. Terminiello v. Chicago: "The [law at issue] ... permitted conviction of petitioner if his speech
stirred people to anger, invited public dispute, or brought about a
condition of unrest. A conviction resting on any of those grounds may
not stand . "
213. -the marketplace of ideas argument
-the argument for individual liberty
-the argument from democracy: Three Arguments for Freedom of Speech
214. time, place, and manner: governments can regulate the ____ of speech. However, any governmental speech regulations have to be
content- and viewpoint-neutral.
215. Time, place, and manner restrictions": don't address the content of
what's being said, but address how, when, and where the speech is
taking place.
• The Supreme Court gives governments more leeway to regulate the
_______ than to regulate content.
216. Time, place, and manner restrictions: • The goal of these regulations can't be to shut down speech or to shape
what people think.
• Rather, these regulations are acceptable if their goal is to allow speech
to occur while accommodating other important interests (such as not
bothering people in their homes, or avoiding unnecessary conflicts).
217. tripartite: Both the federal and state governments are ___ systems:
218. "True" Threats: • According to the Supreme Court, threats fall outside First Amendment
protection because the state has a legitimate interest in "protecting
individuals from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will
occur."
219. unconstitutional: If the courts find that a law passed by Congress is ___ ,
they can strike it down.
220. unconstitutional: content-based and viewpoint-based restrictions are assumed to be
_____, because they try to regulate what people think.
221. unicameral legislature: Nebraska is the only state with
a ___ legislature.
222. Watts v. United States: true threats
223. Watts v. United States: A federal statute makes it a crime to threaten "to take the life of or to inflict
bodily harm upon the President of the United States."
• This case happened during the Vietnam War. At the time, there were huge public protests against the military draft and against the
president, Lyndon B. Johnson
("L.B.J.").
• Watts stated in a public meeting: "I have already received my draft classification
as 1-A and I have got to report for my physical this Monday coming. I am not
going. If they ever make me carry a rifle the first man I want to get in my sights is
L. B. J."
• A jury found that him guilty of "knowingly and willfully" threatening the
president.
• But the Supreme Court reversed the conviction (in a per curium opinion)
224. watts v. united states: The case in which the Supreme Court outlined the "true threat" doctrine
was
225. West Virginia Board of Education v. Barnette: • A famous case dealing with both free
expression and freedom of religion.
• The case dealt with a state law requiring children in public schools to
salute the flag everyday. Jehovah's Witnesses have religious
objections to saluting secular symbols. Could they be forced to salute
the flag, on penalty of being thrown out of school?
• Walter Barnette claimed that forcing his children to salute the flag
violated their First Amendment rights.
The Supreme Court had already heard a very similar case only 3 years
earlier, in Minersville School District v. Gobitis.
• The Court had said a similar state law did not violate the First Amendment
because "inculcating" patriotism was an important government interest
that outweighed the other interests at stake
226. writ: A ____ is a declaration by a judge demanding something be done.
227. writ of certiorari: • Unlike the district and circuit courts, SCOTUS has discretion to take or
refuse most cases (that is, it has control of its own docket).
• It exercises this control through the ______
228. the writ of habeas corpus: What is the name for the judicial practice of requiring a jailer to explain the legal
basis for holding someone in jail?
229. writ of habeas corpus: • A "writ" is a declaration by a judge demanding something be done.
• A ___demands that a prisoner be brought before a judge so the case
against them can be heard. If the prisoner hasn't violated the law, the judge will then free
them.
230. writ of mandamus: a writ which compels a
government official to perform his duties correctly
231. Yes (A U.S. post office is federal property, so the person would be prosecuted under
federal law. That would be an "offense against the United States," so the president
could issue a pardon.): Can the president pardon someone who robs a U.S. Post Office?
232. Yes, Necessary and Proper Clause allows this: 1) Does Congress have the authority to establish a national bank, even though it
isn't listed under the enumerated powers in Article I?