The Politics of Civil Liberties

1. The Politics of Civil Liberties AP Government Mr. Minnich

2. History of Civil Liberties • Framers believed that the Constitution limited government • What was not specifically allowed was obviously not allowed • States demanded a Bill of Rights • Bill of Rights seen as specific restrictions on federal government actions • Bill of Rights not originally understood as applying to state government actions

3. Civil Liberties vs. Civil Rights • Civil Liberties: Protections the Constitution provides against the abuse of government power • Civil Rights: Protecting certain groups against discrimination • In practice, no clear line between civil liberties and civil rights

4. Rights in Conflict • Sheppard case • New York Times and the Pentagon Papers

5. War and Civil Liberties • Sedition Act of 1798 • Espionage and Sedition Acts against German Americans during World War I • Smith Act (1940): made it illegal to advocate the overthrow of the U.S. government • Internal Security Act of 1950: required members of the Communist Party to register with the government

6. War and Civil Liberties • Communist Control Act of 1954: declared the Communist Party to be apart of a conspiracy to overthrow the government • The Supreme Court usually upheld this legislation, though its importance abated as war or crisis passed

7. Cultural Conflicts • Original settlement by white European Protestants meant that Americanism was equated with their values • Conflicts arise over some protected freedoms • Jews offended by manger scenes at Christmas • English speakers often prefer monolingual schools • Gay men are prohibited from serving as Boy Scout troop leaders (upheld by Supreme Court)

8. Bill of Rights and the States • Before the Civil War, Constitution and Bill of Rights were understood to apply only to federal government- not to state government • Change began after Civil War with 14th Amendment • Due process clause: “no state shall deprive any person of life, liberty, or property without due process of law” • Equal Protection Clause: “no state shall deny to any person within its jurisdiction the equal protection of the laws”

9. Bill of Rights and the States • Supreme Court uses these two clauses • 1897: said no state could take private property without just compensation (eminent domain) • 1925 (Gitlow): declare federal guarantees of free speech and free press also applied to states • 1937 Palso v. Connecticut: certain rights must apply to the states because they are essential to “ordered liberty” and are “fundamental” to our system of justice • These began the process of incorporation: applying some (but not all) federal rights to the states.

10. Bill of Rights not applied to states • 3rd Amendment: quartering troops • 5th Amendment: right to be indicted by a grand jury • 7th Amendment: right to jury trial in civil cases • 8th Amendment: ban on excessive bail and fines

11. 1st Amendment • Press should be free of prior restraint (censorship), but then must accept the consequences if a publication is improper or illegal • Schenck (1919): clear and present danger test (Justice Oliver Wendell Holmes

12. Types of speech • Libel: written statement defaming another by false statement • Slander: defamatory oral statement

13. What is obscene? • No enduring or comprehensive definition of obscenity • 1973 definition: “the average person, applying contemporary community standards to appeal to the pruriest interest or to depict in a patently offensive way, sexual conduct specifically defined by applicable state law and lacking serious literary, artistic, political, or scientific value” • Hard balance: freedom vs. decency

14. Question • How could Spring Twp. and Sinking Spring Boro. have a say in the fact that Shocktoberfest wanted to have a nude haunted house in their park?

15. What is obscene? • Localities decide whether to tolerate pornography but must comply with strict constitutional tests if they decide to regulate it • Zoning ordinances for adult theatres and bookstores have been upheld: regulate use of property rather than expression • Internet regulation ruled unconstitutional by the Supreme Court

16. What is symbolic speech? • Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message • Burning a draft card • Statutes cannot make certain types of symbolic speech illegal: for example flag burning is protected speech

17. Terrorism and Civil Liberties • USA Patriot Act meant to increase federal government’s powers to combat terrorism • Tap a phone line used by a suspect without a warrant • Tap internet with a court order • Investigators may share information in a grand jury proceedings • Non-citizen may be held as a security risk for 7 days or longer • Federal government can track money across U.S. borders and among banks • No statute of limitations on terrorist crimes, penalties increased

18. Terrorism and Civil Liberties • Person found to be a terrorist or harboring a terrorist may be tried in military court before a commission of military officers • 2/3 vote to find accused guilty • Only appeal to president, or Secretary of Defense

19. Question • Can the people the United States captures be held without giving them access to the courts?

20. Answer • Traditional answer from World War II era: spies sent to this country were “unlawful combatants”