Ch. 3 – Civil Rights and Civil Liberties
Ch. 3 – Civil LIBERTIES and
Civil RIGHTS
Why the Federalists AND the Anti-federalists
Are one big, messy American family !!!!
The US Constitution expressly excludes two peoples from its protections
Native Americans (Sec. 1 and 14th Amendment)
Slaves (Arts. 1, 6 and 7 and 14th amendment)
The history of these two peoples using the constitution to demand and receive their rights paved the way for every other excluded/marginalized group
All men may be “created” equal, but they were not treated equally…..until #14.
Originally, The bill of rights only applied to offenses by the federal government.
Not until the end of the civil war and the passage of the 14th amendment were the states held accountable…
“…nor shall any state deprive any person of life, liberty or property without due process of law… nor deny any person in its jurisdiction equal protection of the law” (14th amendment, sec. 1).
14th amendment then used as a “doorway” to forcing states to protect all of their residents =a process known as selective incorporation = going to court to force states to abide by constitutional protections.
What’s the difference between
a liberty and a right?
Liberty – that which we are born with:
Speech
Expression – ve
al and non-ve
al
Thought
movement
Right – government promise not to mess with you (as long as what your doing doesn’t mess with others).
Free speech (1st amendment)
Non-violent assembly (1st amendment)
own a gun (2nd amendment)
No illegal search and seizure (zone of privacy – 4th amendment)
1st amendment
(in 5 parts)
Congress shall make no law:
Respecting an establishment of religion, or prohibiting the free exercise thereof;
Or a
idging the freedom of speech;
Or of the the press;
Or the right of the people peaceably to assemble, and
To petition the government for redress of grievances.
“IT IS THE FUNCTION OF FREE SPEECH
TO FREE MEN FROM THE BONDAGE OF
IRRATIONAL FEARS!”
- JUSTICE LOUIS BRANDEIS (Whitney v. CA 1927)
Why is “free speech” critical to democracy?
Democracy is founded on freedom to determine and pursue one’s own way of life without fear of violence with little or no government intrusion.
DEVELOPED IN REACTION TO LACK OF SPEECH UNDER KING
RELEASE OF FRUSTRATION VIA SPEECH SERVES 2 GOALS:
DOMINANT VIEWS CAN BE CHALLENGED WITHOUT FEAR OF RETRIBUTION; AND
THEY WILL NOT RESORT TO PHYSICAL VIOLENCE
REVOLTUION OF IDEAS NOT FISTS!
THERE ARE VERY FEW RESTRICTIONS ON SPEECH/PRESS
Clear and present danger – (Schenk v. us (1919) “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will
ing about the substantive evils that Congress has a right to prevent.” like yelling fire in a crowded theater – language intended to create panic and harm.
Incitement test – (Brandenburg v. ohio 1969) – speech cannot invite imminent lawlessness. Kkk rally that “invited” participants to violence.
No prior restraint- (NY times v. US 1971) government cannot outlaw speech before its printed/spoken (unless prior history of inviting violence ) – publication of pentagon papers.
Libel and slander – knowingly telling a lie to harm someone.
Libel = written
slander= spoken.
Sticks and stones may
eak my bones, but words will never hurt me…. Or will they?
Obscenity (miller v. ca 1973) – “language OR IMAGES so lurid, prurient and offensive”.
PORNOGRAPHY (ADULTS (LEGAL) VS. CHILDREN (ILLEGAL)
Art as speech - , “piss Christ” by andres se
ano.
Symbolic speech –
taking a knee (Kaepernick),
O
ien v. us XXXXXXXXXXburning draft card),
Texas v. johnson XXXXXXXXXXburning u.s. flag.
Hate speech - speech expressing hatred of a particular group of people based on race, ethnicity, gender, sexual orientation etc.
“I contemplate with sovereign reverence that act of the whole American people in…building a wall of separation between
Church & State.”
- Thomas Jefferson: letter to Danbury Baptist association (1802)
Religious freedom
No government religion;
But, free individual exercise
Prayer in public schools – ok for students; not for teachers/staff
Actions in “religious” practice – smoking peyote for native americans ok, not for other citizens.
Religious schools/hospitals
Churches closed during covid while malls are open
Criminal justice protections
Innocent until proven guilty
Constitutional protections:
no ex post facto
no bills of attainde
4th amendment – no illegal search/seizure
Miranda v. az (1966) – rights while in custody – right to remain silent, right to have an attorney (even no $)
6th Amendment – speedy public trial of one’s peers
8th amendment – no excessive bail or cruel and unusual punishment.
Roe v. wade (1972) – abortion as crime
ight
Sexual autonomy – Lawrence v. Texas (2003) –overturned sodomy laws; Obergefell v. hodges XXXXXXXXXXsame sex ma
iage legal.
Racial AND ALL Equality
How slaves and abolitionists opened the door for other minority/marginalized groups to demand equal treatment
The road to rights:
Civil war amendments (13, 14 and 15)
Plessy v. ferguson XXXXXXXXXXseparate but equal
Brown v. bd. Of education- separate is not equal (1954)
Korematsu case (1944) = Japanese internment camps on us soil found constitutional
Civil liberties act of 1988 – reparations
1962 United farmworkers founded by Caesar Chavez and dolores huerta
By 1970, over 50,000 dues paying members!
Delano grape strike and various boycotts
Civil rights act of 1964
Voting rights act of 1965
Once you've made your way through these, please give some good thought to, research and write a 3-4 page essay addressing the following issues around free speech:
1. Why do you believe our founding fathers created the First Amendment, specifically the protection of "free speech"? What is its value in democracy and American political life?
2. What are some challenges to giving every American the right to say whatever they want? Please be specific.
3. As outlined in Ch. 3, what are the restrictions on free speech? Specifically, what is the difference, if any in your opinion, between words and physical action with regard to expression.
4. What is your definition of "hate speech" and do you believe it should be outlawed? If not, explain why? If yes, please provide specific speech that constitutes hate speech and what penalties are appropriate. PLEASE TAKE TIME TO TRULY CONSIDER AND DISCUSS THIS ELEMENT.
5. Finally, what do you like about your right to free speech and what do you dislike or wish could improve about this right?