Question

imagine that you have been arrested for a speech criticizing the government. in which years and at which levels of government would this be an unconstitutional violation of your civil liberties?

arrest would be unconstitutional

• the year is 1986, and you were arrested by the state government.
• the year is 1886, and you were arrested by the state government.
• the year is 1886, and you were arrested by the federal government.
• the year is 1986, and you were arrested by the federal government.

Explanation:

Analyze federal government restrictions

The First Amendment has protected free speech against federal government infringement since its ratification in 1791. Therefore, any federal arrest for criticizing the government in both 1886 and 1986 is unconstitutional.

Analyze state government restrictions

Before the 20th century, the Bill of Rights only restricted the federal government (Barron v. Baltimore, 1833). The First Amendment's free speech protection was not incorporated to apply to state governments until the landmark Supreme Court case Gitlow v. New York in 1925. Thus, a state arrest for speech in 1886 was constitutional under federal law, whereas a state arrest in 1986 is unconstitutional.

Identify unconstitutional scenarios

Based on the historical application of the First Amendment:

• 1986, state government: Unconstitutional (First Amendment incorporated via the 14th Amendment).
• 1886, federal government: Unconstitutional (First Amendment applied directly to the federal government).
• 1986, federal government: Unconstitutional (First Amendment applied directly to the federal government).
• 1886, state government: Constitutional under federal law (First Amendment not yet incorporated).

Answer:

• The year is 1986, and you were arrested by the state government. (Correct answer)
• The year is 1886, and you were arrested by the federal government. (Correct answer)
• The year is 1886, and you were arrested by the state government.
• The year is 1986, and you were arrested by the federal government. (Correct answer)