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Government Final
Civil rights vs civil liberties
| Question | Answer |
|---|---|
| Civil Liberties | Civil Liberties are the rights guaranteed to citizens by the Constitution |
| Civil Liberties are fundamentally the Bill of Rights: free speech; free assembly; free expression. | The bill of rights states what the government can not do they can therefore be called "negative rights" what the government cannot do |
| Civil Rights | Civil rights are the powers or privileges guaranteed to the individual and protected from arbitrary removal by the government or other individuals. |
| What do Civil rights do? | they declare what the government must do or provide they can therefore be called "Positive rights" what the government must do |
| If you get tripped up think of it this way: | Civil liberties are constitutionally guaranteed freedoms and Civil rights ensure these freedoms apply to all equally - not based on race, color, creed, sex, etc. |
| Free Speech and 1st Amendment | Protected speech has caused more controversy than perhaps any other portion of the bill of rights |
| Civil liberties and Conflict | Spoken words (use your imagination) Non-verbal communication (flag burning, cross burning) Expression by means other than speech (black armbands, silent protests.) |
| Freedom of religion has led to other problems: | government support of religion (faith based initiatives, etc.) State-funded Nativity scenes Prayer in schools - 10 commandments in government buildings. teaching creationism as an alternative to Darwinism |
| But the laws restricting the entanglement of religion and government are for the most part clear (at least more clear than speech cases). | States can not openly support religion (the ten commandments in buildings) Nativity scenes can be displayed among other non-religious symbols of Christmas. |
| Prayer in public schools crosses the line - and it's not allowed | However, school groups with religious backgrounds (fellowship of Christian Athletes) ca not be denied the right to meet after school hours on school grounds. |
| The Lemon Test has been used on religion since (1971) | The statute must have a secular purpose primary effect of the statute should not be to advance/inhibit religion the statute must not "excessively entangle" government and religion |
| Lemon v. Kurtzman (1971) | PA private school teachers (Catholic) were reimbursed by the State for teaching secular material in Public Schools. Expenses for secular materials and books were also reimbursed. |
| the free exercise clause | The free exercise clause of the 1st Amendment protects religious beliefs but not actions based on those beliefs. Religious observance (not working on the Sabbath) is protected. Using peyote in Native American religious ceremonies is not |
| freedom of expression clause | The freedom of expression clause gives the right of unrestricted discussion of public affairs - so long as public order is not threatened |
| The courts have used the clear and present danger test as means to restrict speech that does threaten public order | Gitlow v. New York (1925) the court upheld prosecution of individuals calling for establishment of Socialism. Brandenburg v. Ohio (1969) the court declared that threatening speech is protected by the constitution. |
| Speech and symbolic expression | Symbolic expression (non-verbal) has not rec'd the same protection as spoken speech. However, some forms have been upheld: |
| R.A.V. v. City of ST. Paul | The court overturned the state court ruling that declared burning a cross in the front yard of an African American family home was not protected by the constitution. The Supreme Court did not agree and ruled the law that forbid this expression to be uncon |
| The internet poses new concerns over free speech | The Communications Decency Act was declared unconstitutional on the basis that the internet is more like print media than television and therefore deserves a more broad interpretation of the First Amendment. |
| The internet also turns speech into a global issue. | Green Wave. computer program china made, everyone in china needed this program it monitored context. American's thought they were stealing the blue prints and making copies for cheaper |
| So what is forbidden? | Clear and Present Danger, Fighting Words, and Obscenity |
| The court has long used this test instituted by Justice Oliver Wendell Holmes as a benchmark. | Does the issue present "clear and immediate danger" to public order? |
| Schenck v. United States (1919) | Schenck was distributing leaflets claiming conscription was unconstitutional. |
| Homles later disagreed when the test was used in Abrams v. US (1919). | Abrams was distributing leaflets denouncing WWI and US opposition to the Russian Revolution. Holmes did not feel this constituted a danger but was instead limiting expression of an idea or opinion. |
| Words meant to inflict injury or incite immediate disturbance - were established in Chaplinsky v. New Hampshire (1942). | Chaplinsky was convicted for calling a city marshal a "God damned racketeer" and a "damned fascist". The court upheld the conviction based on fighting words. |
| The Supreme Court introduced " prurient interests". | Does a piece of work when taken as a whole have a tendency to incite lustful thoughts? This was introduced by Justice William Brennan, Jr |
| It was Justice Potter Stewart that stated he can not define it but: | "I know it when I see it" |
| Americans want equality but differ on the extent to which government should provide it. | most Americans support equality of opportunity most Americans oppose equality of outcome |
Created by:
palmerrg
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