WtP: Unit 5 — What does the Bill of Rights protect?

Presented by David Tanenhaus, Ph.D. — University of Nevada, Las Vegas

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Note: My notes for this section were less-than-adequate. I give my thanks to a private donor of notes for this cause.

"The First Amendment and how the courts have thought about it. Courts and citizens revisit these cases because they represent fundamental concepts of security and liberty. Interpretations are different during different historical times.

Why do we have a Bill of Rights? People who thought we should not ratify (anti-feds) are responsible for adding it to the Constitution. Federalists thought we should not have it because they did not want enumerated freedoms--if you leave rights out, they will not be available (like privacy). Also, the state constitutions already had bills of rights. Madison initially thought it was not needed, but changed his mind later.

Alien and sedition acts of 1790s--made it almost impossible to criticize the government. Had a sunset clause, as all laws passed during time of crisis should. We may not be thinking clearly during times of crisis.

Why didn't the republican newspaper editors take the govt to the supreme court--no precedent, prior to Marbury v. Madison. Court was made up of federalist judges who might not be unbiased.

What was freedom of the press in 1790? English Law--No prior restraint, but if they publish something harmful, you can prosecute. Some said the first amendment only applied to keeping govt. from restricting publishing something.

Women's voices in the 19th century--women could speak, write, petition. Seneca Falls Declaration of Sentiments echoes the language of the Declaration and first amendment right.

Women were instrumental in the abolition of slavery.
Women's Christian Temperance Union.
World War I--a lot of protests from women. Some people wanted to just call this treason. Espionage act in 1917--still on the books--makes it a crime for anyone to willfully make false statements with intent to interfere with the military success of the U.S. or undermine the morale of soldiers or obstruct the signing up to serve in the military. Postmaster could exclude from mail anything printed that would do these things.
People are starting to go to court to see if their rights are being violated. Paterson v. Colorado 1907 (bad tendency test) Doesn't matter whether what you said is true or false, if it hurts the war effort you can be convicted.

Schenck vs. U.S 1919--clear and present danger test--fire in a crowded theater--justification for limiting freedom of speech.
Over the summer, Justice Oliver Wendell Holmes has a change of heart. He hears another case the next year--Abrams v. U.S. Holmes dissents in this case with the clear and present danger test. Modern first amendment theory is based upon his dissent. You get closer to the truth when there are many ideas in the marketplace. "

-Anonymous
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And, now... back to my notes...

Franklin Roosevelt introduced the four freedoms that became the thinking for modern human rights movements. The freedoms he enunciates in his 1941 state of the Union address to Congress:

1. Freedom of speech and expression
2. Freedom of every person to worship God in his on way
3. Freedom from want ("economic understandings which will secure to every nation a healthy peacetime life for its inhabitants")
4. Freedom from fear
   

Jehovah's Witnesses began engaging in several court cases following the prejudicial treatment of their faith under Hitler's regime. Saluting the flag in public schools was an issue they felt violated their religious beliefs. In 1940, a brother and sister (ages 10 and 12) refused to say the Pledge of Allegiance in school and the children were excluded from school until they agreed to say the Pledge at school. The principal, supported by the school board, refused to let the children even attend part of the school day if they will not say the Pledge. The school board later expelled the children so the father felt no alternative but to appeal the case to the courts. The case was appealed all the way to the U.S. Supreme Court where the cause of the Jehovah's Witnesses won. A brief to the Court argued that our nation differed from Nazi Germany because of our individual rights to religious freedom. Nonetheless, the Court decided in favor of the school district.

Justice Jackson, during World War II, responded to the case of West Virginia State Board of Education v. Barnette, a second Jehovah's Witness case similar to the 1941 case. In his Opinion which overturned the 1941 Opinion, he states: "Compulsory unification of opinion achieves only the unanimity of the graveyard." He argued that if we do not allow people to have dissenting opinions, we will end up eliminating those with those opinions: "Those who begin coercive elimination of dissent soon find themselves exterminating the dissenters." This was the Court's reaction to the Jehovah's Witnesses appeal to not say the Pledge of Allegiance. The Opinion was delivered in 1943.

We ended with a discussion of cases related to students' freedom of speech beginning with Tinker v. DesMoines and continuing with Morse et al. v. Frederick (the "Bong Hits for Jesus" case). The decision in the Morse case was not related to time, manner, and place. In Oyez, it states: "Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use."

Post 9-11 Questions to Debate

1. Is the war on terrorism a new kind of war?
2. How do you fight a war on terrorism without sacrificing freedoms or by bcoming terrorists yourselves?
3. How do you balance liberty and security?