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, (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, 1833 Barron 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 5 th 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 clause Equal protection clause Supreme Court used these clauses to apply certain rights to state governments 1897: said no state could take private property without just compensation 1925 (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 soldiers c. Right to be indicted by a grand jury d. Right to a jury in civil cases e. Ban on excessive bail and fines

Interpreting the First Amendment Free speech and free press often at odds with national security Constant 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 Security 1. Blackstone: press should be free of prior restraint, but must accept the consequences of a publication is improper or illegal 2. Sedition Act of 1798 followed Blackstone’s view, with improvements a. Jury trial, not a judge’s decisions b. Defendant would be acquitted if it could be proved that the publication was accurate

Speech and National Security 3. Congress defines limits of expression: 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 Security 5. 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 lawful e. In 1992, Minnesota law that made it a crime to display hate symbols or objects overturned f. Hate speech is permissible, but hate crimes that result in direct physical harm overturned