Chapter 5:
Civil Liberties
(Free Speech)
AP American Government
March 6, 2017
A couple of appetizers to
get us started
First, from George Mason University's “speech code”.
Good idea?
Acts of misconduct include … [a]ll hostile, threatening,
or intimidating behavior that by its very nature would be
interpreted by a reasonable person to threaten or
endanger the health, safety or well-being of another.
Examples for such behavior may include …
[c]ommunicating … either directly or indirectly … by …
electronic or written communication in a manner likely to
cause causes [sic] injury, distress, or emotional or
physical discomfort is also prohibited [sic].
Another:
From Richard Posner, law prof at the U. of Chicago:*
Consider a law that makes it a crime to access websites that
glorify, express support for, or provide encouragement for ISIS or
support recruitment by ISIS; to distribute links to those websites or
videos, images, or text taken from those websites; or to encourage
people to access such websites by supplying them with links or
instructions. * * *
The law would provide graduated penalties. After the first violation,
a person would receive a warning letter from the government;
subsequent violations would result in fines or prison sentences.
Good idea?
* Source: http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/12/
isis_s_online_radicalization_efforts_present_an_unprecedented_danger.html
What would Justice Brandeis think
of those?
“Men feared witches and burned women.”
Justice Louis Brandeis, concurring in Whitney v. California (1927)
Speech is rarely as harmful as people
fear it will be.
Overreacting to it can lead to harmful
results.
Some guys burning women:
(Really teacher? That picture needed an explanation?)
This chapter we look at “civil liberties”
and next chapter we look at “civil rights.”
So what are they?
•
Real rough distinction: You can think of civil liberties
as those things guaranteed by the Bill of Rights while
civil rights are guaranteed by the 14th Amendment.*
*“So why not reverse the chapters’ titles?” the class asked the teacher. “Shut up,” he explained.
•
Perhaps a better distinction:
•
civil liberties protects individuals (my right of
free speech, freedom of religion, etc.);
•
civil rights protects groups (no discrimination on
basis of race, gender, etc.).
The Bill of Rights
Let’s start with a refresher
As you know, they’re the first 10 Amendments.
Why not in the body of the Constitution?
•
States seen as doing okay job protecting individual
liberties.
•
Delegates thought Constitution made it hard for a gov’t to
infringe on personal rights — we have a LIMITED
GOVERNMENT.
•
Fear that including a statement of rights might jeopardize
a delicate compromise.
•
And what if they forgot one? (Spoiler alert: see the 9th
Amendment.)
Overview/Review
•
The Bill of Rights has a lot of
“thou shalt nots.”
•
This reflects the tension between
federalists and anti-federalists.
Anti-federalists still worried about
big government.
•
The Bill of Rights was designed
to underscore that the federal
gov’t was one of limited powers.
Some underlying principles
As we go through this, keep a couple of basic principles in mind.
These are KEY THEMES that we have seen throughout the
entire course.
•
limited government (a federal gov’t with enumerated powers);
•
federalism (the “power dance” between the fed’l and state gov’ts)
•
natural rights (remember that whole “certain unalienable rights”
stuff in the Declaration of Independence?); and
•
majority rule, minority rights (Federalist Paper #51: “you must first
enable the gov’t to control the governed; and in the next place
oblige it to control itself.”).
Let’s start with free speech
•
The Owner’s Manual says… “Congress shall make
no law…abridging the freedom of speech or of the
press….”
•
Or, as Voltaire (or at least his biographer) says, “I
disapprove of what you say but I will defend to the
death your right to say it.”
Voltaire, getting all bowed up to defend speech:
It’s a balancing act.
▪ So we really like to protect free speech. Does that mean that
we have an absolute right to say anything we want? No!
Courts will balance the need for free speech against the
possible harm.
▪ Classic example: can’t yell “FIRE!” in a crowded movie
theater (unless, of course, the theater is on fire). Why?
People will be trampled. Not good.
There are two ways of dealing with
harmful speech
1. Prevent it from being spoken (or published). That’s called “prior restraint.”
•
Available in only a few contexts, including —
•
threats to national security
•
obscene speech
•
hate speech
•
“school speech”
2. Allow the speech and then have someone harmed by the speech sue for
damages.
•
More typical. Used, for instance, in
•
“fighting words”
•
libel and slander cases
Prior restraint — threats to
national security
•
When we feel that the nation is threatened, we
sometimes try to limit language that is critical of, or
perceived as a threat to, the gov’t.
•
These laws are sometimes called “anti-sedition”
laws.
•
From Merriam-Webster: “Sedition” is the
“incitement of resistance to or insurrection
against lawful authority.”
We’ve seen a series of “stimulusresponse” actions leading to sedition acts.
A couple of examples:
•
Stimulus: Quasi-War w/France (and Adams’ famously thin skin)
•
Response: Sedition Act of 1798
•
•
Made it a crime to criticize the gov’t
Stimulus: WWI
•
Response: Espionage and Sedition Acts (1917-1918)
•
Can’t encourage disloyalty, interfere with draft, obstruct recruiting,
etc.
•
Also can’t utter/write/publish/etc. “disloyal, profane, scurrilous, or
abusive language” about the form of gov’t in the U.S.
Famous sedition cases:
Schenck v. U.S. (1919)
Schenck upheld the Sedition Act of
1917.
•
Schenck was a Socialist who urged
draftees to resist. Was arrested and
convicted. Appealed to USSC.
•
SCOTUS: 1st Amendment does not
protect words that “create a clear
and present danger” of bringing
about the “substantive evils that
Congress has a right to prevent.”
Schenck
Not Schenck
Gitlow v. U.S. (1925)
Gitlow was another seditious speech case (as well as
being famous for the “incorporation doctrine” –
about which more in a minute).
• Pres. McKinley was assassinated by an anarchist in
1901. NY passed the Criminal Anarchy Law of
1902.
• Law: illegal to advocate for forceful overthrow of the
U.S. gov’t or assassination of its leaders.
Gitlow was convicted for handing
out leaflets that began:
“The world is in crisis. Capitalism,
the prevailing system of society, is
in process of disintegration and
collapse. Out of its vitals is
developing a new social order, the
system of Communist
Socialism….”
Gitlow (cont.)
•
Gitlow argued that the manifesto was merely historical, not
to advocate revolution.
•
The USSC had to consider whether it could review a
constitutional challenge to a state law.
•
Court held that it could, under the 14th Amendment. The
incorporation doctrine was applied.
(Hey, that’s twice he emphasized that term. It must be important!)
•
The Court came up with a “dangerous tendency” test:
Language that has a “tendency to result in action that is
dangerous to public security” can be prohibited, even
though such utterances create no clear and present
danger. Yikes! (Gitlow lost, BTW.)
Don’t tease us anymore! What IS this
“incorporation doctrine” about which you
speak??
It’s the process of using the
14th Amendment to protect
some of the rights guaranteed
in the Bill of Rights against
actions by state governments.
Often called the “selective
incorporation” doctrine.
This cartoon captures it nicely:
Selective incorporation
(cont.)
•
Remember that the Bill of Rights was drafted with the
federal government in mind.
•
So could the states undo what the Bill of Rights did?
•
Before selective incorporation, perhaps.
•
After selective incorporation, nosiree.* Certain
rights are “incorporated” into the 14th
Amendment’s due process protections.
* (or noma’amee, as the case may be)
Selective incorporation
(cont.)
•
The “due process” clause of the 14th Amendment is where the magic
happens:
“No State shall ... deprive any person of life, liberty, or property,
without due process of law….”
•
The USSC has said that “life, liberty, or property” includes (among other
things) some of the “unalienable rights” protected by the Bill of Rights.
•
A state needs a “compelling state interest” before it can encroach on the
fundamental rights guaranteed by those rights in the Bill of Rights that
are incorporated.
(And if you use “substantive due process,” you may decide that
there is no process good enough to take away some rights.)
Selective incorporation
(cont.)
•
In the words of the Supremes in Palko [sic] v. Connecticut
(1937), the 14th Amendment due process clause protects
rights against state infringement but ONLY if those rights are
“of the very essence of a scheme of ordered liberty.”
•
Ironically for Palka, the Supremes found double jeopardy
protections in the 5th Amendment not to be sufficiently
important. Palka was executed after state tried him twice for
first degree murder.
•
Court reversed itself on point of whether to incorporate
double jeopardy into 14th Amendment protections in
Benton 60 years later.
Amendments that have been
incorporated:
Selective incorporation
(cont.)
McDonald v. Chicago (2010) incorporated the 2nd
Selective incorporation
(cont.)
To recap: SI is important b/c it
has profoundly altered
American federalism.
• The fed’l gov’t has enormous control
over what sort of laws states may pass
affecting speech, religion, the rights of
the accused, the right to bear arms, etc.
• It’s an example of judicial activism
(“Constitution, shmonstitution. I’ll tell you
what the law is!”).
Back to prior restraint and
national security
•
•
Remember: the general rule for prior restraint
is “Don’t.” We really value free speech.
Near v. Minnesota (1931) established general
rule.
•
State court tried to apply a law banning “malicious,
scandalous, and defamatory” material to keep a local
paper from being printed that criticized local pols.
Prior restraint (cont.)
•
Holding of Near: Can’t do that. There is to be no prior
restraint in this case.
•
First Amendment does not allow a prior restraint except
in cases of wartime, when the material is obscene, or
in some instances involving “school speech.”
•
So what’s a threat to national security? Next slide tells
you what’s not.
Great cartoon for budding
journalists:
Prior restraint (cont.)
NY Times v. U.S. (a/k/a the Pentagon Papers case)
(1971)
•
Daniel Ellsberg got secret report about VN War. Leaked it to
NYT.
•
Court: Gov’t failed to meet the heavy burden of proof required
for prior restraint.
•
“Only a free and unrestrained press can effectively expose
deception in government. And paramount among the
responsibilities of a free press is the duty to prevent any part
of the government from deceiving the people and sending
them off to distant lands to die of foreign fevers and foreign
shot and shell.” Justice Hugo Black (famous Alabaman)
Prior restraint: Obscenity
Not protected and can be restrained. So what
is it?
Miller v. California (1973) gave us a 3-part test:
•
Does something appeal to a prurient
interest in sex (i.e., an immoderate or
unwholesome interest in sex; lust);
•
Is it patently offensive; and
•
Does it lack “serious literary, artistic,
political, or scientific value.”
As you can see, it’s another example of a
balancing act. And good luck applying it.
Justice Potter Stewart: “I know it when I see
it.”
Justice Stewart,
seeing something
Obscenity and the Internet
How do you handle obscenity over the Internet? Good
luck with that, too.
• Reno v. ACLU (1997)
•
Federal law prohibited sending “obscene or indecent”
material to anyone under the age of 18.
•
Precedents:
•
•
F.C.C. v. Pacifica Foundation (1978) upheld the right to ban George
Carlin’s “7 dirty words” from TV or radio.
•
Ginsberg v. New York (1968) upheld a prohibition against selling
obscene material to people under the age of 17.
•
Renton v. Playtime Theaters, Inc. (1986) upheld zoning restrictions
that kept adult theaters out of neighborhoods.
Add those up and you get…
Obscenity over the Internet
(cont.)
… a 9-0 decision saying that a law banning the sending
of obscene or indecent material to minors is
unconstitutional. Why?
•
Statute was overly broad. By trying to protect minors, the
law prohibited adults access to material that they have a
constitutional right to receive. The gov’t may not “reduce
the adult population to only what is fit for children.”
•
The TV/radio precedent distinguished b/c you can’t protect
a listener from unexpected program content over the TV or
radio whereas an Internet user must take a series of steps
to locate porn.
Prior restraint: Hate speech
This is protected the First Amendment, unless it is likely to
incite imminent lawless action. See Brandenburg v. Ohio (1969)
•
KKK held a rally during which KKK gave a speech talking about
“revengeance” [sic] against blacks, Jews, and those who supported them.
•
KKK leader convicted of inciting mob action when he said “We’ll take the
[expletive deleted] street later.”
•
Court: KKK wins. State cannot forbid speech — even “hate speech” — that
advocates the use of force or breaking the laws unless the speech is intended to
incite imminent lawless action and is likely to lead to it.
Oy, vey!
Prior restraint: School speech
Speech by students is not protected under certain circumstances.
Morse v. Frederick (2007):
•
•
The “Bong hits 4 Jesus” case.
Court: a school may restrain speech that advocates illegal drug
use.
School speech (cont.)
Other considerations in school
speech cases:
• The extent to which the student
speech in question poses a
substantial threat of disruption
or interferes with rights of other
students (Tinker v. Des Moines
School District (1969))
• Black armbands worn by students
to protest the Viet Nam War?
• Okay. No threat of disruption.
Ms. Tinker, she of the arm-band fame:
School speech (cont.)
Is the speech offensive to prevailing community
standards (Bethel School District v. Fraser (1986)).
•
Student giving a nominating speech full of sexual
innuendos.
•
Court: Can prevent that. It’s inconsistent with school’s
“basic educational mission” and in teaching
boundaries of “socially acceptable behavior.”
Fraser, probably thinking up more innuendos:
School speech (cont.)
Hazelwood School District v. Kuhlmeier (1988)
•
An article in school paper was about teen pregnancy
and divorce; used aliases. School: the ID of students
could be figured out; don’t publish.
•
Court: Schools retain the right to refuse to sponsor
speech that is "inconsistent with 'the shared values of a
civilized social order.'" School’s action need only be
"reasonably related to legitimate pedagogical
concerns.”
Other harmful speech:
“fighting words”
Chaplinsky v. New Hampshire (1942) (fighting words not protected)
•
Jehovah’s Witness was complaining about organized religion;
was arrested; called the marshall a “[GD] racketeer” and “a
damned Fascist.”
•
SCOTUS: there is a two-tiered approach to speech. The first is
protected; the second includes things like “fighting words” b/c
such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality.
How about threatening
speech?
•
Not protected IF it is a “true threat.”
•
A true threat is a statement that is a serious expression of intent to harm.
•
The USSC considered whether a Facebook post is a true threat in Elonis v. U.S.
(2015)
•
Gets into subjective intent. Elonis said he was an artist, like other
rappers.
•
An example of his, um, “art”: "I'm not gonna rest until your body is a
mess, soaked in blood and dying from all the little cuts.”
So what did the Elonis court
do?
Elonis won.
The Court held that —
•
the prosecution needed to show that Elonis intended the
posts to be threats, and therefore that there was a subjective
intent to threaten.
•
Not enough that a “reasonable person” would find the words
threatening.
Ugh.
How about
rhetorical or figurative speech?
See Snyder v. Phelps (2011) – the “Westboro Baptist Church case”
• Mathew Snyder was a marine killed in action.
• On the day of his funeral, representatives from Westboro Baptist
picketed the funeral carrying signs that said things like “God hates
you,” “Fag troops,” and “Thank God for Dead Soldiers.” The father
sued.
Um….
Pastor Phelps
The USSC: By an 8-1 vote, they upheld the 4th Circuit’s finding that
the language, while offensive, was rhetorical and figurative rather
than an assertion of fact and thus was a form of protected speech.
• The point: you can’t punish speech just because you don’t like it.
•
In case you’re wondering…
Westboro Baptist Church’s website:
How about symbolic
speech?
Sometimes protected, sometimes not.
•
Burning a flag as an act of political protest.
•
•
Burning draft cards to protest the Viet Nam War.
•
•
Protected. Texas v. Johnson (1989) Motive of the law
banning flag burning was simply to restrict speech.
Not protected. U.S. v. O’Brien (1968). The country has
a right to run a draft.
Burning a cross as an act of intimidation.
•
Not protected. Virginia v. Black (2003). But note that
you need intent to intimidate; otherwise, the law would
be too vague.
Harmful speech:
Libel and slander
•
Libel and slander are not protected
speech.
• Libel is written, slander is oral.
• Both: A false statement that
damages someone’s reputation.
•
Defenses: truth; opinion.
Dunno about Mr. Ferrante
•
Public figures face a higher hurdle.
See next slide.
Higher libel/slander standard for
“public figures”
NYT v. Sullivan (1964)
Public figure may recover damages for
libel only if the statement is made with
actual malice (which means either the
speaker knew it was false or acted with
reckless disregard for the truth).
•
Full-page ad in NYT signed by
several ministers accusing
Montgomery police of abusing
blacks. It contained some
inaccuracies.
•
Court: Standard of “actual malice”
not met.
No prior restraint just b/c
statement is harmful
•
No prior restraint of, say, libelous or slanderous speech.
•
Recourse is to sue for damages after the speech has
been made.
•
Be careful about asking for a retraction (see the
“manners of a pig” case).
This make pig sad. Him have good manners.
A cats-n-dogs issue:
Commercial speech
Keep two broad categories in mind here:
•
First, commercial speech by a corporation to advocate
for a position or person.
•
Second, commercial speech to advertise a product.
Advocacy
•
Generally protected
•
As we learned back in our study of elections,
corporations are people, too (well, sort of).
•
They have 1st Amendment right to speak (here,
in independent political ads).
•
See Citizens United (corporation is free to spend as
much $ as it wants on “electioneering ads” – i.e., ads
that mention a candidate within the 30- and 60-day
periods before a primary or general election,
respectively).
•
Still subject to prohibition against direct contributions
by corporation to candidate.
Advertising
•
•
•
A corporation’s speech advertising a product is
entitled to less protection than other forms of
speech.
For instance, the gov’t can restrict liquor or
tobacco ads.
Laws must be narrowly tailored and serve a
legitimate public interest.
Another cats-n-dogs issue:
Shield laws
•
Most states provide some protection of a reporter’s
sources. That protection is called a “shield law.”
•
It involves a balancing act: do the needs of a
journalist outweigh the interests of the gov’t (say, in
gathering evidence for a criminal prosecution)?
Remember:
Men feared witches and burned women.