The Politics of Civil Liberties The threat of war leads to government narrowing
the limits of permissible speech and activity
Framers believed the Constitution limited government – what wasn’t specifically allowed was obviously not allowed
States ratifying constitution demanded the addition of the Bill of Rights
Bill of Rights seen as specific restrictions of federal government actions
Bill of Rights not originally understood as applying to state government actions
Civil Rights and Civil Liberties Civil Liberties = protection of the Constitution, provides against the abuse of government power
Civil Rights = protection of certain groups against discrimination
Culture and Civil Liberties Rights often in conflict; competing views resolved in court
1. Bill of Rights contains competing rights and duties 2. Competing views often resolved in court 3. War often leads to restricted liberties
a. The Sedition Act, 1798 (crime to write or utter false statements)
b. The Espionage and Sedition Acts, 1917-1918 (crime to utter false statements that interfere with military)
c. The Smith Act, 1940, the Internal Security Act, 1950, the Communist Control Act, 1954(illegal to advocate to overthrow government)4. Court decided if Congress or state legislatures had acted appropriately
Cultural Conflicts:*Cultural conflicts require a balance of
“community sensitivities” and self-expression 1. View of “Americanism” as Anglo-Saxon
Protestant ideals initially, but immigration, etc. has led to diversity in ethnic, religious and cultural ideas
2. Now have different views of constitutionally protected freedom
3. Have to balance “community sensitivities” and self-expression
Applying the Bill of Rights to the States
Initially, liberties of the Bill of Rights only applied to the federal government and not the states
Barron v. Baltimore, 1833Barron was a co-owner of a wharf in Baltimore
Harbor; as the city grew and developed, large amounts of sand accumulated, depriving him of the deep water necessary for business. He sued the city to recover a portion of his financial losses.
The Supreme Court asked if the 5th Amendment denies the states as well as the national government the right to take private property for public use without just compensation.
Determined the Bill of Rights does not limit states, just the national government
Applying the Bill of Rights to the States
Changed with the Fourteenth Amendment Due process clauseEqual protection clause
Supreme Court used these clauses to apply certain rights to state governments 1897: said no state could take private property
without just compensation1925 (Gitlow v. New York): declared federal
guarantees of free speech and free press also applied to the states
1937 (Palko v. Connecticut): certain rights must apply to the states because they are essential to “ordered liberty” and they are “principles of justice”
R.I.I. (Ridiculously Important Information)
SELECTIVE INCORPORATION: process of applying some federal rights to the states
Use the Fourteenth Amendment Almost entire Bill of Rights now applied to the states
(but not all of it)Generally, entire Bill of Rights applied to states
except
a. Right to bear arms
b. Right to not quarter soldiersc. Right to be indicted by a grand juryd. Right to a jury in civil casese. Ban on excessive bail and fines
Interpreting the First Amendment Free speech and free press often at odds with
national securityConstant debate as to just how free the press
and speech should be—(Upfront Article)Supreme Court has generally moved towards
more free expression with deference to Congress in times of Crisis
Speech and National Security1. Blackstone: press should be free of prior
restraint, but must accept the consequences of a publication is improper
or illegal2. Sedition Act of 1798 followed
Blackstone’s view, with improvements a. Jury trial, not a judge’s decisionsb. Defendant would be acquitted if it could be proved that the publication was accurate
Speech and National Security3. Congress defines limits of expression: 1917-1918
a. Treason, insurrection, forcible resistance to federal laws, encouraging disloyalty in the armed services not protected by First Amendment
b. Upheld in Schneck (1919) via “clear and present danger test”
4. Change in national-state relationship: Gitlow (1925)a. Supreme Court initially denied that due process clause made the Bill of Rights applicable to
states b. Change occurred in Gitlow when due process
clause was applied to protect “fundamental personal rights” from infringement of states
Speech and National Security5. Supreme Court moved toward more free
expression after WWI but with deference to Congress during times of crisis
a. Supreme Court upheld convictions of Communists under the Smith Act
b. By 1957 speaker must use words “calculated to incite” the overthrow of
government in order to be punished c. By 1969, speech calling for illegal acts is protected,
if the acts are not imminent d. In 1977, American Nazi march in Skokie, IL is held
to be lawfule. In 1992, Minnesota law that made it a crime to
display hate symbols or objects overturnedf. Hate speech is permissible, but hate crimes that
result in direct physical harm overturned