Please answer per instructions11: Civil Liberties--Achieving
Students understand the Supreme Court’s current and past interpretation of civil liberties by analyzing court
opinions and legal precedent.
Throughout the history of the United States government, our democracy has struggled to find the balance between
liberty and order. According to philosophers such as Thomas Hobbes and John Locke, governments are created to
keep their citizens safe. This requires restricting the complete freedom that comes from life without government and
laws. However, when the British government used its laws to restrict the inalienable liberties of American colonists,
these colonists declared independence and created their own constitution. This Constitution included a Bill of
Rights to list those inalienable liberties that should not be limited by the government. However, there have been
times in the history of the United States when certain limitations on these liberties have been upheld, even by the
Supreme Court. Other times, the courts have ruled that government limitations on liberties have gone too far.
Below, you will read excerpts from two different cases where we can see the court debating over this line between
liberty and order/safety.
1. Read the excerpts to gain an understanding of the cases and their impact on our civil liberties.
2. Highlight the parts of the rulings that allow the government to limit liberty in red and highlight the parts of
the rulings that protect a liberty from the government in green. (Hint: you may not see both colors within
the same case). ( 1 Point per case)
3. Then, answer the questions that follow these excerpts.
Schenck v US
Background (pulled from oyez.com):
During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft
violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to
disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage
Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baer
were convicted of violating this law and appealed on the grounds that the statute violated their First Amendment
right to freedom of speech. The Supreme Court upheld the Espionage Act and its limits on Free Speech.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the
Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It
well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints,
although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado. We admit that,
in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been
within their constitutional rights. But the character of every act depends upon the circumstances in which it is
done. (Aikens v. Wisconsin) The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering
words that may have all the effect of force. (Gompers v. Bucks Stove & Range Co.). The question in every case is
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 bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard
them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting
service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4,
punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its
tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone
warrants making the act a crime. (Goldman v. United States). Indeed, that case might be said to dispose of the
present contention if the precedent covers all media concludendi. But, as the right to free speech was not referred
to specially, we have thought fit to add a few words.
New York Times v US
Background (pulled from oyez.com):
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New
York Times and Washington Post from publishing materials belonging to a classified Defense Department study
regarding the history of United States activities in Vietnam. The President argued that prior restraint (preventing
the press from publishing something) was necessary to protect national security. This case was decided together
with United States v. Washington Post Co. The Supreme Court ruled that the government could not keep the
New York Times from publishing this material.
Opinions of the Court:
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity." Bantam Books, Inc. v. Sullivan, (1963); see also Near v. Minnesota, (1931). The
Government "thus carries a heavy burden of showing justification for the imposition of such a restraint."
(from concurring opinions):
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the
First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic,
the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that
the Government can halt the publication of current news of vital importance to the people of this country.
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve the governed, not the governors. The Government's
power to censor the press was abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of government and inform the people.
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. In my view, far from
deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other
newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In
revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that
which the Founders hoped and trusted they would do.
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and
discussion of public issues are vital to our national health. On public questions, there should be "uninhibited,
robust, and wide-open" debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269-270.
Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First
Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases
may arise only when the Nation "is at war," Schenck v. United States, 249 U.S. 47, 52 (1919), during which times
[n]o one would question but that a government might prevent actual obstruction to its recruiting service or
the publication of the sailing dates of transports or the number and location of troops.
Near v. Minnesota, 283 U.S. 697, 716 (1931). Even if the present world situation were assumed to be tantamount
to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression
of information that would set in motion a nuclear holocaust, in neither of these actions has the Government
presented or even alleged that publication of items from or based upon the material at issue would cause the
happening of an event of that nature. "[T]he chief purpose of [the First Amendment's] guaranty [is] to prevent
previous restraints upon publication." Near v. Minnesota, supra, at 713. Thus, only governmental allegation and
proof that publication must inevitably, directly,[p727] and immediately cause the occurrence of an event kindred
to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.
In no event may mere conclusions be sufficient, for if the Executive Branch seeks judicial aid in preventing
publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And,
therefore, every restraint issued in this case, whatever its form, has violated the First Amendment -- and not less
so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more
thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that
no injunction may issue.
1. Does the ruling in Schenck v US (case 1) limit our freedoms or limit government actions? Explain how this ruling impacts our freedoms. (2 Points)
2. Does the ruling in New York Times v US (case 2) limit our freedoms or limit government actions? Does this case
3. give any exceptions to first amendment protections? If so, describe these exceptions. (2 Points)
4. 3. Though these two cases only focus on freedom of speech, we can see the same “balancing test” being used here
5. that is used for most of our other civil liberties. Explain what this “balancing test” looks like. (3 Points)
6. 4. Based on your understanding of these cases and other balancing tests we’ve studied, explain when we typically see the courts allowing the government to limit personal liberties. (4 Points)