Civil Liberties: The Struggle for Freedom Unit 6: Civil Liberties and Civil Rights, Lesson 1 Evolution in Protection of Civil Liberties Freedom of Speech How have the liberties protected by the legislative branch evolved? Which forms of speech are protected? Which are not?

Civil liberties in the Original Constitution civil liberties vs. civil rights –Civil liberties – protections from arbitrary interference by government –Civil rights - guarantees of equal protection of groups by government Before Bill of Rights added, original constitution protected only a few liberties from the national government, considered to be important by Framers Prohibitions in original Constitution: Congress may not… 1.Suspend the writ of habeas corpus (a person who is arrested has the right to be brought before a court and informed of charges against him/her) 2.Pass bills of attainder (punishment for a crime that carries the death penalty without a trial) 3.Pass ex post facto laws (a law that retroactively declares an action committed before the law’s passage illegal) Evolution in the Protection of Civil Liberties

Civil liberties in the 19 th century Following Anti-Federalists’ objections, Federalists agreed to add Bill of Rights after ratification (10 amendments ratified) Bill of Rights was written to restrict national government. Until 20th century, Bill of Rights did not apply to states. In Barron v. Baltimore (1833), Marshall Court ruled that Bill of Rights only applied to federal government, did not protect individuals against state governments Most common liberty protected by Supreme Court was property rights –(e.g., government cannot impair the obligation of contracts) –In Dred Scott v. Sanford (1857), Taney Court ruled that enslaved African Americans were property, not citizens with standing to sue Evolution in the Protection of Civil Liberties

Nationalization of the Bill of Rights 14 th Amendment (1868) –Designed to guarantee citizenship and rights to newly freed slaves –Due process clause prohibits states from depriving anyone of life, liberty, or property “without due process of law.” Governments must act under established legal guidelines rather than in an arbitrary or discriminatory manner. Supreme Court initially interpreted due process clause to protect businesses from state regulation because they were “persons” Gitlow v. New York (1925) –S. Court overturned precedent in Barron v. Baltimore. Said due process clause of 14 th amendment did protect individuals’ 1 st Amendment free speech and free press rights from state government interference –Began process of incorporation (making Bill of Rights binding on states; protection of freedoms listed in Bill of Rights from state infringement) –S. Court has engaged in selective incorporation (gradual, step by step, incorporation of the protections of the Bill of Rights) Not all rights in Bill of Rights have been incorporated. Evolution in the Protection of Civil Liberties

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Protected political Speech Many forms of speech. Courts have decided to protect some and not others. In democratic theory, democratic society based not just on popular sovereignty, but also freedoms that allow debate over best government, policies –Justice Oliver Wendell Holmes: centrality of “marketplace of ideas” (dissenting opinion, Abrams v. United States, 1919) Content of political speech (what people say) cannot be regulated or limited unless there is compelling reason to limit Yet not incorporated until Gitlow v. New York (1925) Freedom of Speech

Types of speech Pure (political) speech –Verbal speech regarding free and open conversations among the people about the kind of government that is best for them and the sorts of public policies they consider most appropriate. –Given the most protection by the courts Symbolic speech –Definition: using actions and symbols to convey an idea, rather than words, such as burning a flag or draftcard or wearing an armband –Generally protected by the courts Speech and conduct –Verbal and symbolic speech used together, such as a rally and then picketing; may be limited in certain situations Freedom of Speech

Limitations on Political Speech Political speech may be limited only if poses compelling threat to public order –“clear and present danger” test: (1) speech that is “directed to inciting or producing imminent lawless action” and (2) the speech must be “likely to incite or produce such action” (Justice Holmes in Schenk v. United States, 1919) –Connection between speech and danger must be direct (e.g. falsely yelling “Fire!” in crowded theater) –Brandenburg v. Ohio, Narrowed definition of clear and present danger: Inflammatory speech punishable only if the danger that this speech would incite an illegal act is immediate Restrictions on political speech must –be content neutral (i.e. cannot favor some views over others) –serve a legitimate government purpose –be narrowly tailored to address a specific problem –not have a chilling effect on other people’s willingness to exercise their free speech rights Freedom of Speech

Unprotected forms of speech that may be limited by gov. – Incitement to violence – Libel (false or malicious written statements that damage someone’s reputation) – Slander (false or malicious oral statements that damage someone’s reputation) – Fighting words (profanity or spoken words likely to incite violence) – Obscenity (No clear definition, varies by jurisdiction. Justice Potter Stewart: “I know it when I see it.”) –Speech given when trespassing on public or private property Freedom of Speech

Actions and Symbolic Speech Speech mixed with conduct may be restricted (carefully) so long as speech is not Government may limit Time, Place, and Manner Tinker v. Des Moines School District (1969) Is wearing of armbands to school to protest a war a form of free speech protected by the 1st Amendment? Majority decision: Yes, the wearing of armbands to public school to protest a war is symbolic speech, not just action, and therefore protected. Broadened definition of protected speech to include symbolic speech. –Texas v. Johnson (1989) Burning the American flag is symbolic speech protected by the First Amendment. Broadened definition of symbolic speech. Freedom of Speech

Suppression of Free Expression Periodically, legislative branch has suppressed free speech in name of national security Alien and Sedition Acts (1798 – 1801) –Congress made it illegal to engage in “seditious speech,” verbal or written criticisms of government and its leaders –Aimed at opponents of President John Adams and his Federalist supporters but many others also convicted During and after World War I, Congress and 32 states restricted dissent and protests Red Scare, Palmer raids on headquarters of targeted organizations, 1919 – 1920 Cold War anti-communist hysteria – House Committee on Un-American Affairs (HUAC) – exploitation of Red Scare for political gain – Joseph McCarthy and McCarthyism Concerns of chilling effect on free speech and privacy violations of new laws passed under Bush’s “War on Terrorism,” especially Patriot Act Freedom of Speech

The Courts have at times approved legislative restrictions given free speech during war if gov. claims would harm national security. Schenck v. United States (1919) –Schenk mails leaflets in wartime to young draftees urging them to protest the draft peacefully. Convicted of violating a federal law banning encouraging of disobedience of military orders. –Holmes: Such speech is not protected during wartime if it creates a “clear and present danger” of a threat to public order. Freedom of speech may be curtailed when it threatens public order Dennis v. United States (1951) –Is advocating revolution without urging people to use violence a form of free speech protected by the 1 st, or are the Smith Act’s prohibitions on such speech constitutional? –S. Court: Threat of Communist takeover is clear and present danger, so gov. may limit free speech supporting revolution. –Weakened protections given free speech if gov. claims would harm national security. Freedom of Speech Suppression of Free Expression

Campaign Finance as Free Speech? In name of protecting free speech, Court has been using judicial review to dismantle Congressional campaign finance regulations –Buckley v. Valeo (1976) – struck down FECA’s limits on contributions to one’s own campaign –Citizens United v. Federal Election Commission (2010) – struck down almost all of McCain-Feingold’s restrictions on independent electioneering expenditures by corporations (and unions) Freedom of Speech