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

arrest would be constitutional

Explanation:

Analyze federal government restrictions

The First Amendment has restricted the federal government from violating free speech since its ratification in 1791. Therefore, federal arrests for criticizing the government in both 1886 and 1986 are unconstitutional.

Analyze state government restrictions

Before the ratification of the Fourteenth Amendment (1868) and the subsequent development of the incorporation doctrine, the Bill of Rights did not apply to state governments (Barron v. Baltimore, 1833). The Supreme Court incorporated free speech protection to the states in Gitlow v. New York (1925). Thus, a state arrest in 1886 was constitutional, whereas a state arrest in 1986 is unconstitutional.

Categorize the scenarios

• Arrest Would Be Unconstitutional:
• The year is 1886, and you were arrested by the federal government.
• The year is 1986, and you were arrested by the federal government.
• The year is 1986, and you were arrested by the state government.
• Arrest Would Be Constitutional:
• The year is 1886, and you were arrested by the state government.

Answer:

Arrest Would Be Unconstitutional

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

Arrest Would Be Constitutional

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