Question Description

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.

Case 1:

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.

Majority Opinion:

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.

Case 2:

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.

Questions:

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)