Civil Liberties

1. Civil Liberties What are the specific civil liberties included in each of the following parts of the Constitution? Article I, Section 9; Article I, Section 10; Article III, Section 2; Article III, Section 3; Article IV, Section 2; The First Amendment; The Second Amendment; The Third Amendment; The Fourth Amendment; The Fifth Amendment The Sixth Amendment; The Eighth Amendment

2. Civil Liberties Mister Madison, I believe it would be appropriate for the students to make a chart, such as the one below, on either paper or index cards, regarding the landmark decisions we are going to discuss in this chapter.

3. Civil Liberties Students, I am the fourth Chief Justice, John Marshall. Let’s begin by looking at a landmark decision of my court. Dartmouth College v. Woodward (1819) Charles River Bridge v. Warren Bridge (1837) Dred Scott v. Sandford(1857)

4. Civil Liberties Here are a couple more from other Supreme Courts. Santa Clara County v. Southern Pacific Railroad (1886)—the Court implied that corporations were “persons,” in the eyes of the law and were subject to the same protections provided by the Fourteenth Amendment

5. Civil Liberties Lochner v. New York (1905) States could not limit liberty by regulating the hours of labor Let’s now discuss some cases pertaining to the nationalization of the bill of rights.

6. Civil Liberties Selective Incorporation The process by which provisions of the Bill of Rights are brought within the scope of the Fourteenth Amendment and so applied to state and local governments. Today the Fourteenth Amendment imposes on the states all the provisions of the Bill of Rights except those of the Second and Third Amendments, the Fifth Amendment provision for indictment by a grand jury, the Seventh Amendment right to a jury trial in civil cases and the Ninth and Tenth Amendments.

7. Civil Liberties Selective Incorporation has profoundly altered the relationship between the national government and the states. It made the federal courts, under guidance of the US Supreme Court, the most important protectors of our liberties.

8. Civil Liberties District of Columbia v. Heller (2008) The Constitution’s privileges and immunities clause In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

9. Civil Liberties McDonald v. Chicago (2010) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. The Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states.

10. Civil Liberties Grandpa, as the world’s cutest little boy, I’m under a great deal of scrutiny. I know you are studying the Bill of Rights. Could you have your students discuss ordinary scrutiny and strict scrutiny?

11. Civil Liberties United States v. Carolene Products Company (1938) Ordinary scrutiny: the assumption that the actions of elected bodies and officials are legal under the Constitution Strict scrutiny: the assumption that actions by elected bodies or officials violate constitutional rights

12. Civil Liberties The Rational Basis Test Places the burden of proof on people attacking a law for not complying with the equal protection requirement. Example: a state may deny unemployment benefits to people attending daytime school, but provide the same benefits to people attending school at night

13. Civil Liberties The Strict Scrutiny Test When a law is subject to strict scrutiny, the courts must be persuaded that there is both a “compelling public interest” to justify a classification and no less restrictive way to accomplish this compelling purpose. Courts apply to suspect classification—a class of people deliberately subjected to such unequal treatment in the past, or relegated by society to a position of such political powerlessness as to require extraordinary judicial protection.

14. Civil Liberties The Heightened Scrutiny Test The burden of proof is on the government to show that its classification serves “important government objectives.” Classifications based on gender are subject to heightened scrutiny. Treating women differently from men (or vice versa) is forbidden when supported by no more substantial justification than “the role-typing society has long imposed upon women.”

15. Civil Liberties Abrams v. United States (1919) Defendants (Abrams) were self-described revolutionists. In 2 sets of leaflets, they denounced sending U. S. troops to Russia and U. S. efforts to impede the Russian Revolution, plus U. S. participation in World War I in general. They were convicted of violating the Espionage Act of 1917 and sentenced to 20 years in prison. Question: did the parts of the Espionage Act in question violate the First Amendment’s guarantee of freedom of speech?

16. Civil Liberties Abrams v. United States (1919) In a 7-2 decision, the White Court said “No.” The Court held that the act was constitutional because the leaflets had a tendency to encourage war resistance and curtail war production. Justices Holmes and Brandeis dissented saying that the First Amendment assures people the freedom to express their opinions even if they are unpopular or inflammatory

17. The First Amendment The bad tendency test: judges presumed it was reasonable to forbid speech that has a tendency to corrupt society or cause people to engage in illegal action. The test was abandoned because it swept too broadly and ran contrary to the fundamental premises underlying the First Amendment as the guardian of our democracy.

18. Civil Liberties Gitlow v. New York (1925) Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force.

19. Civil Liberties Gitlow v. New York (1925) Question : Was the New York law punishing advocacy to overthrow the government by force an unconsti-tutional violation of the free speech clause of the First Amendment? Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment).

20. Civil Liberties Gitlow v. New York (1925) The Court announced that it assumed that freedom of speech and the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states For the first time, the US Constitution protected freedom of speech from abridgment by state and local governments. . .BUT

21. Civil Liberties Gitlow v. New York (1925) On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all. Justice Holmes dissented.

22. Civil Liberties To bad people, we represent a clear and present danger. What is the clear and present danger test? Formulated by Justice Oliver Wendell Holmes, Jr in Schenck v. United States (1919)

23. Civil Liberties During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question  Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

24. Civil Liberties The question in every case is whether the words are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. A government should not be allowed to interfere with speech unless it can prove that the particular speech in question presents an immediate danger—example, a speech leading to a riot, the destruction of property, or the corruption of an election. Speech is not an absolute right (Shouting “Fire” in a crowded theater is the most famous example of unprotected speech)

25. Civil Liberties Brandenburg v. Ohio (1969) Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

26. Civil Liberties Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? The Warren Court held that the Ohio law violated Brandenburg's right to free speech.

27. Civil Liberties The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

28. Civil Liberties Buckley v. Valeo (1976) First Amendment basis Individuals and interest groups can spend whatever amount they want on the issue and candidate advertising so long as such efforts are not coordinated with the candidates’ official campaign organizations

29. Civil Liberties How did the U. S. Supreme Court’s decision in Citizens United v. Presidential Election Commission (2010) affect hard money? The Court ruled that corporations and unions may not be limited on what they spend on advertising in support of or opposition to a candidate.

30. Civil Liberties Texas v. Johnson (1989) Based on the arrest of Gregory Lee Johnson for burning a flag outside the Republican National Convention in protest of the President’s foreign policy, the Rehnquist Court, in a 5-4 decision, ruled that this action was a form of symbolic speech protected by the First Amendment.

31. Civil Liberties Tinker v. Des Moines Independent Community School District (1969) Established that students’ rights are “not shed at the schoolhouse gates” and defined the students’ wearing a black armband in silent protest of the Vietnam War as “a legitimate form of symbolic speech.” Those rights were later restricted in the student press case Hazelwood v. Huhlmeier (1988) when the Court gave school administrators the right to censor a school newspaper

32. Civil Liberties The preferred position doctrine is an interpretation of the First Amendment that holds that freedom of expression is so essential to the operation of a democracy that judges should give it special protection and should almost never allow governments to punish persons for what they say, only for what they do.

33. Civil Liberties Non-protected speech Libel, obscenity (next section), fighting words, and commercial speech, which are not entitled in all circumstances to constitutional protection— Lack social redeeming value and are not essential to democratic deliberations and self-governance.

34. Civil Liberties Other important cases Chalpinsky v. New Hampshire(1942) Defined “fighting words” as spoken words that “by their very utterance inflict injury or tend to inflict injury or tend to incite an immediate breach of peace that governments may constitutionally punish.”

35. Civil Liberties Fighting words: words that by their very nature inflict injury upon those to whom they are addressed or cause acts of violence by them In recent years, the Court has overturned convictions for uttering fighting words and struck down laws that criminalized “hate speech”—insulting racial, ethnic, and gender slurs

36. The First Amendment Commercial speech is considered unprotected speech. Advertisements and commercials for products and services receive less First Amendment protection, primarily false and misleading ads. 44 Liquormart, Inc. v. Rhode Island (1996) The Court struck down a law forbidding the advertising of the price of alcoholic drinks—now apparently states may only forbid and punish false and misleading advertising

37. Civil Liberties Freedom of the Press

38. The First Amendment Prior restraint (Chapter 6) • Restraint or censorship by government imposed • before a speech is made or a newspaper published • Most such laws are unconstitutional • Only ones approved by the Court relate to military • and security matters and also to high school • authorities’ control over the style and content of • student newspapers (Hazelwood v. Huhlmeier • (1988) ) • College newspapers have same protections as other • newspapers

39. Civil Liberties Near v. Minnesota (1931) Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals whose writings created “a nuisance,” stating that publishers could be enjoined (stopped) from further committing or maintaining the nuisance.

40. Civil Liberties Question: did the Minnesota "gag law" violate the free press provision of the First Amendment? The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous (prior) restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment.

41. Civil Liberties Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

42. Civil Liberties New York Times v. United States (1971) In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.

43. Civil Liberties Question: did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Yes. The Burger Court held that the government did not overcome the "heavy presumption against“ prior restraint of the press in this case. Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

44. Civil Liberties We are the Warren Court of 1964. Why do scholars consider our decision in the case The New York Times v. Sullivan (1964), to be a landmark decision?

45. Civil Liberties The New York Times v. Sullivan (1964) This case concerned a full-page ad in the New York Times that alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public Facilities and encourage blacks to vote. L. B. Sullivan, The Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Sullivan won a $500,000 judgment.

46. Civil Liberties Question: Did Alabama's libel law, by not Requiring Sullivan to prove that an Advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

47. Civil Liberties The New York Times v. Sullivan (1964) The Court gave all political speech First Amendment protection Seditious libel was declared unconstitutional Neither Congress nor any government may outlaw mere advocacy of the abstract doctrine of violent overthrow of government. Moreover, advocacy of the use of force may not be forbidden “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

48. Civil Liberties Neither public officials nor public figures can collect damages for comments made about them unless they can prove with “convincing clarity” the comments were made with actual malice.

49. Civil Liberties I am the Reverend Jerry Falwell. The Court’s ruling in my suit against Hustler magazine affected what material publications can print about public figures.

50. Civil Liberties A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed.