Civil Liberties Chapter 5 Powerpoint 1 Flashcards
Politics of Civil Liberties (Slide 2)
Why was the Bill of Rights made?
- States demanded that a Bill of Rights be made to limit the federal gov.’s actions
- Bill of Rights not originally applied to the states
Politics of Civil Liberties (Slide 3)
The difference between civil liberties and civil rights
- Civil liberties: protections against the abuse of gov. power (via the Constitution)
- protects the rights of ALL - Civil rights: protecting certain groups against discrimination
Culture/Civil Liberties (Slide 4)
What are some examples of court cases that show how the Constitution and the Bill of Rights have competing rights and duties?
- Shepard case (free press v. fair trial)
- New York Times and the Pentagon Papers (common defense v. free press)
- Kunz anti-Jewish speeches (free speech v. public order)
Culture/Civil Liberties (Slide 5 & 6)
What are some examples of how the government has restricted the liberties of a minority group post war?
- Sedition Act of 1798 (sympathy towards French Revolution)
- Espionage/Sedition Acts, German-Americans during WWI
- Smith Act-1949: Illegal to advocate overthrow of US gov
- Internal Security Act-1950: members of Communist party had to register
- Communist Control Act of 1954: declared Communist party to be part of a conspiracy to overthrow gov.
- *After catastrophic event, Court allows the gov. to be a little bit intrusive (due to our fear) then tightens up again**
Culture/Civil Liberties (Slide 7)
What are some conflicts over the years that have been controversial because of new groups of people entering the US?
- Originally: European Protestants’ values was the Culture in the US
- Conflicts over protected freedoms surrounding immigration of “new” ethnic, cultural, and religious groups
- Jews offended by Nativity scene
- English speakers prefer monolingual schools
- prohibiting gay men from Boy Scouts
Culture/Civil Liberties (Slide 8)
How did the Bill of Rights become applicable to the states? What two clauses were used and how?
- Before the Civil War, both the Constitution and Bill of Rights did not apply to the states
- 14th amendment (1868):
- Due Process Clause: “no STATE can deny life, liberty, or property without due process law”
- Equal Protection Clause: “nor deny to any person within its jurisdiction the equal protection of the laws”
- Both clauses reference the states, therefore applying the Bill of Rights to states (aka incorporation)
Culture/Civil Liberties (Slide 9)
What are some examples of how the Supreme Court started applying the Bill of Rights to the states?
- 1897: no state can take private property w/o just compensation
- 1925 (Gitlow): Fed. gov. guarantees free speech/press to states
- precedent on how to connect 1 amend. to 14 amend
- 1937 (Palko v. Connecticut): certain rights apply to states. Essential to “ordered liberty” and are “principles of justice.”
- precedent on how to interpret 14 amend.
Culture/Civil Liberties (Slide 10)
Define incorporation. What are some amendments that are the exception and are not applied to the states?
- Incorporation: applying the Bill of Rights to the states
- The US has SELECTIVE incorporation
- Exceptions: 2nd (bear arms), 3rd (quartering troops), 5th (grand Jury, enough evidence?), 7th (jury trial in civil cases) 8th (excessive bail/fines)
- Privacy applied to state/fed gov (“new rights”)
Applying/Interpreting 1st Amendment (Slide 11)
What is an example of past speech and national security problems? How is someone not found guilty in these circumstances?
- Blackstone: press should be free of prior restraint, accept consequences of improper/illegal publication after
- Sedition Act of 1798 made it illegal to print, but no prior restraint
- Jury trial (not judge), defendant found not guilty if publication found accurate
1st Amendment (Slide 12) What has Congress limited in expression? What test is now used?
- NOT protected by 1st Amend: treason (attempting to overthrow), insurrection (violent uprising against gov), forcible resistance to fed. law, encouraging disloyalty in armed services
- Upheld in Schenck (1919): “clear and present danger” test used by Justice Oliver Wendell Holmes
1st Amendment (Slide 13) What made the Gitlow court case so important? What was decided because of it?
- Gitlow 1925 changed the national-state relationship
- Supreme Court initially denied that the Due Process Clause made the Bill of Rights applicable to the states
- Gitlow: clause to protect “fundamental personal rights” from the states
1st Amendment (Slide 14) What are some case examples of how after WWII the Supreme Court moved more towards free expression but not always during crisis?
- Supreme Court upheld convictions of Communists under Smith Act
- ‘57: speaker must use words “calculated to incite” an overthrow
- ‘69 Brandenburg: speech calling for illegal acts protected if acts are not “imminent” (about to happen)
- ‘77: American Nazi march in Skokie
- ‘92: Minn law making hate symbols illegal overturned
- Hate speech permissible. Hate crimes resulting in direct physical harm can be punished more harshly.
- ‘57 and ‘69 cases made it even harder to convict hate crime
1st Amendment (Slide 15) Is libel/slander protected? In what cases?
- not fully protected
- public figures must show “actual malice” in words with reckless disregard for truth or prove that they knew that the words were false
1st Amendment (Slide 16) Is obscenity protected? In what cases?
- Freedom vs. decency
- 1973: lacking “serious literary, artistic, political, or scientific value”
1st Amendment (Slide 17) Who determines whether obscenity is allowed or not?
- Localities decide if they tolerate pornography, but must comply with strict Constitution tests
- Protections extend to almost all forms of communication. Indy statute: court ruled cannot show preference over certain types of expression
- Zoning for theaters/bookstores upheld. Property, not expression.
- Internet regulation ruled unconstitutional
