Please answer per instructions11: Civil Liberties–Achieving
Please answer per instructions11: Civil Liberties–AchievingStudents understand the Supreme Court’s current and past interpretation of civil liberties by analyzing courtopinions and legal precedent.Throughout the history of the United States government, our democracy has struggled to find the balance betweenliberty and order. According to philosophers such as Thomas Hobbes and John Locke, governments are created tokeep their citizens safe. This requires restricting the complete freedom that comes from life without government andlaws. 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 ofRights to list those inalienable liberties that should not be limited by the government. However, there have beentimes in the history of the United States when certain limitations on these liberties have been upheld, even by theSupreme 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 betweenliberty 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 ofthe rulings that protect a liberty from the government in green. (Hint: you may not see both colors withinthe same case). ( 1 Point per case)3. Then, answer the questions that follow these excerpts.Case 1:Schenck v USBackground (pulled from oyez.com):During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draftviolated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public todisobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the EspionageAct of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baerwere convicted of violating this law and appealed on the grounds that the statute violated their First Amendmentright 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 theConstitution. Two of the strongest expressions are said to be quoted respectively from well known public men. Itwell 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 beenwithin their constitutional rights. But the character of every act depends upon the circumstances in which it isdone. (Aikens v. Wisconsin) The most stringent protection of free speech would not protect a man in falselyshouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against utteringwords that may have all the effect of force. (Gompers v. Bucks Stove & Range Co.). The question in every case iswhether the words used are used in such circumstances and are of such a nature as to create a clear and presentdanger 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 ahindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regardthem as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruitingservice 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), itstendency, and the intent with which it is done are the same, we perceive no ground for saying that success alonewarrants making the act a crime. (Goldman v. United States). Indeed, that case might be said to dispose of thepresent contention if the precedent covers all media concludendi. But, as the right to free speech was not referredto specially, we have thought fit to add a few words.Case 2:New York Times v USBackground (pulled from oyez.com):In what became known as the ‘Pentagon Papers Case,’ the Nixon Administration attempted to prevent the NewYork Times and Washington Post from publishing materials belonging to a classified Defense Department studyregarding the history of United States activities in Vietnam. The President argued that prior restraint (preventingthe press from publishing something) was necessary to protect national security. This case was decided togetherwith United States v. Washington Post Co. The Supreme Court ruled that the government could not keep theNew 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 itsconstitutional validity.’ Bantam Books, Inc. v. Sullivan, (1963); see also Near v. Minnesota, (1931). TheGovernment ‘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 theFirst 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 thatthe 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 itsessential role in our democracy. The press was to serve the governed, not the governors. The Government’spower to censor the press was abolished so that the press would remain forever free to censure theGovernment. 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 theresponsibilities of a free press is the duty to prevent any part of the government from deceiving the people andsending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far fromdeserving condemnation for their courageous reporting, the New York Times, the Washington Post, and othernewspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. Inrevealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely thatwhich the Founders hoped and trusted they would do.…Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate anddiscussion 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 FirstAmendment’s ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such casesmay 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 orthe 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 tantamountto a time of war, or if the power of presently available armaments would justify even in peacetime the suppressionof information that would set in motion a nuclear holocaust, in neither of these actions has the Governmentpresented or even alleged that publication of items from or based upon the material at issue would cause thehappening of an event of that nature. ‘[T]he chief purpose of [the First Amendment’s] guaranty [is] to preventprevious restraints upon publication.’ Near v. Minnesota, supra, at 713. Thus, only governmental allegation andproof that publication must inevitably, directly,[p727] and immediately cause the occurrence of an event kindredto 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 preventingpublication, 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 lessso because that restraint was justified as necessary to afford the courts an opportunity to examine the claim morethoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands thatno 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 case3. 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 here5. 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)
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