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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 – verbal and non-verbal 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 abridging 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 bring 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 break 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 serrano. Symbolic speech – taking a knee (Kaepernick), Obrien v. us 1967-(burning draft card), Texas v. johnson (1989)- burning 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 attainder 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/right Sexual autonomy – Lawrence v. Texas (2003) –overturned sodomy laws; Obergefell v. hodges (2015) same sex marriage 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 (1896) separate 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?