Chapter 18: Civil Liberties Questions

List and explain the circumstances when the Supreme Court has ruled that freedom of speech may be limited.

Because the First Amendment has such strong language, we begin with the presumption that speech is protected. Over the years, the courts have decided that a few other public interests — for example, national security, justice or personal safety — override freedom of speech. There are no simple rules for determining when speech should be limited, but there are some general tests that help.

Explain the implication of Bradenburg v. Ohio

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."

Schenck vs US- Why did the Supreme Court set the precedent of clear and present danger and what are the guidelines?

Concluded that defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not alter the well established law in cases where the attempt was made through expressions that would be protected in other circumstances. In this opinion, Holmes said that expressions which in the circumstances were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished.

Write out the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How did the court decide in Miranda v. Arizona?

Court ruled Judiciary Act of 1789- created appointments to be void, by doing so, there was no appointment to sue for, court refuses to hear case & creates a concept of judicial review.

Illustrate the Supreme Court Decisions or guidelines concerning: Slander/Libel, Obscenity, and symbolic speech.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel;[2] and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. In Miller v. California (1973), the Supreme Court ruled that materials were obscene if they appealed, "to a prurient interest", showed "patently offensive sexual conduct" that was specifically defined by a state obscenity law, and "lacked serious artistic, literary, political, or scientific value." Decisions regarding whether material was obscene should be based on local, not national, standards. Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it.[1] Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers did not address this issue in the Bill of Rights is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression.[2] Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.

Explain briefly how the Supreme Court has interpreted the Free Exercise and Establishment clauses.

In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. The Court said (at page 162): "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices." The Establishment Clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference by the U.S. government of one religion over another. The first approach is called the "separation" or "no aid" interpretation, while the second approach is called the "non-preferential" or "accommodation" interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government's entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause

What are the three reasons why the liberties claimed by some people are becoming major issues?

Rights in conflict, Policy entrepreneurs most successful during crises, especially war, by arousing people, Cultural conflicts

What is the "wall of separation" principle? What are the difficulties in using the "wall of separation" principle?

Separation of church and state. America was built based on Christianity. Many federal actions could involve religion, which could get sticky.

List and explain the examples the book gives when war has resulted in the limiting of civil liberties.

Sheppard case (free press versus fair trial) New York Times and Pentagon Papers (common defense versus free press) Kunz anti-Jewish speeches (free speech versus public order) Struggles over rights show same pattern as interest group politics Sedition Act of 1789, during French Revolution Espionage and Sedition Acts of World War I Smith Act of World War II Internal Security Act of 1950, Korean War Communist Control Act of 1954, McCarthy era

How did the courts begin to determine if the Bill of Rights could restrict state actions?

The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals' free-speech rights on private property do not involve state action. However, a few states have interpreted their own state constitutions to provide even greater free-speech protection than the federal Constitution offers. For example, the New Jersey Supreme Court has ruled that individuals have free-speech rights at privately owned shopping malls. Most state supreme courts that have examined the issue have disagreed. In April 2002, the Iowa Supreme Court refused to extend its definition of public property to include large, privately owned shopping malls.

Summarize the Supreme Court's changing interpretations of how to protect both the due process rights of accused criminals and to preserve the safety of the community. What are the exclusionary rule and the "good faith exemption"?

The Supreme Court interprets the law, if a law approved by Congress violates our constitution, which gives us rights, it is stopped.

Define the "clear and present danger test," libel, preferred position, prior restraint, imminent danger, and symbolic speech

The clear and present danger test was established by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I. Libel is a published false statement that is damaging to a person's reputation; a written defamation. Preferred position states "[f]reedom of press, freedom of speech, [and] freedom of religion are in a preferred position," indicating that certain fundamental human rights have prerogative. Prior restraint is judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the government to do this. Imminent danger is punishment for uttering inflammatory statements will be allowed only if there is an imminent danger that the utterances will incite unlawful act. Symbolic speech is an act that conveys a political message.

A newspaper has the freedom from prior restraint now can a newspaper still get in trouble?

Yes, for slander and libel.