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Political & Civil Rights
Temple University School of Law
Kairys, David

Political and Civil Rights Outline Spring 2015

Professor Kairys

Introductory Material

· Generally, we think of the bill or rights as separate from the Constitution

· Part of the reason it was ratified was the promise of a Bill of Rights

· Rights appear elsewhere in the Constitution (Habeas, privileges and immunities, Contracts clause, no ex post facto, no bill of attainder clauses etc.)

· Bill of attainder: a legislative act that targets a specific person or small group of people as a criminal (charges, tries, and convicts through legislation)

· In addition, a clause bans states from passing a bill of attainder

· The Bill of Rights primarily focuses on rights of criminal defendants\

· The application of the Bill of Rights to the States

· First Amendment places a limit on Congress

· The privileges and immunities clause of the 14th Amendment

· The Slaughterhouse Cases essentially read out the privileges and immunities clauses

· 14th Amendment “No State can….”

· In the Slaughterhouse Cases, the Court read that the 14th Amendment does not enforce any limit or duty on the states in regards to the Bill of Rights

· The most serious and numerous infractions were coming from the States

· Selective Incorporation and Total Incorporation of the Specific Right to the States unless some discussion otherwise

· The Court has always held that even the most fundamental right can be limited if government can overcome strict scrutiny

Standards of Review

Standard | Major Content


Strict Scrutiny | Compelling interest + narrowly tailored + Least restrictive means


Intermediate Scrutiny | Substantial or important government interest + Substantial relation


Rational Basis | Reasonable + Reasonable relation

Strict Scrutiny – The government has to have a compelling interest and must use the least restrictive means

– Not the same as absolute rights, though we often talk in terms of them being absolutes

– The government usually loses

Intermediate Scrutiny – Substantial or important interest that is substantially related to the means used

– Gender discrimination

Rational Basis – Reasonable government interest reasonably related to the reasonable means used

– A deferential standard

– A strong presumption that the government has the authority to do what it did

– The government usually wins

West Virginia State Board of Education v. Barnette (1943)

· Jehovah’s witness refused to say pledge of allegiance in school, in violation of statute, and therefore was expelled and charged with juvenile delinquency. The Court held the statute was unconstitutional.

· Rule: The right to not speak is as equally protected under the First Amendment of the United States Constitution (Constitution) as the right to free speech. (Beginning of the transition towards the strict scrutiny standard for Freedom of Speech Cases.)

Note^: The majority focuses on the right of persons to choose beliefs and act accordingly. As long as the actions do not present a clear and present danger of the kind the state is allowed to prevent, then the Constitution encourages diversity of thought and belief.

Note^: The dissent argues that it should be left to the legislature and makes a slippery slope argument.

Korematsu v. United States (1944)

· During World War II, a military commander ordered all persons of Japanese descent to evacuate the West Coast. The Petitioner, Korematsu (Petitioner), a United States citizen of Japanese descent, was convicted for failing to comply with the order. The Court upheld the order.

· Rule: Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny. However, pressing public necessity may sometimes justify such restrictions. Race animus is the standard here (There was none)

Note^: Establishes the “strict scrutiny” standard of review, thereby leading to the invalidation of much race-based discrimination in the future.

Barnette compared to Korematsu

· Both during WWII, but in Barnette the Court does not want to enforce totalitarianism as seen in Germany while in Korematsu the Court decides this on National Security not racial issues

· Two primary approaches to Civil Rights and Civil Liberties (Strict Scrutiny from Barnette and Rational Basis from Korematsu)

Freedom of Expression


Commonwealth v. Davis (1897)

· An ordinance in the City of Boston prohibited any person from making “any public address” on public grounds without permission of the mayor. Reverend Davis was prosecuted for speaking in public without a permit.

· Rule: In a unanimous opinion authored by Justice Edward D. White, the Court found the law did not contain “any proof whatever as to the nature of the ownership in the common from which it can be deduced that the plaintiff…had any particular right to use the common apart from the general enjoyment.”

Note^: “The Fourteenth Amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control.”

Four early elements on freedom of speech at this time

· Seditious Libel – Eliminated by New York Times v. Sullivan

· Two doctrines were adopted in the law

– The bad tenancy doctrine

– If you say bad words that can have a bad effect either now, or in the future, it is not protected

– The constructive intent doctrine

– Created a presumption that if you uttered the words that could have a bad tenancy, your intention was constructively to cause that bad tenancy

· Local Control over the public places – (Commonwealth v. Davis)

· Prohibition on prior restraints on the press

– Censorship, Newspapers were read before publishing

– This prohibition was adopted by the colonies even before the Constitution

– It was a general tradition

Hague v. CIO (1939)

· City prohibited the distribution of labor union leaflets on public sidewalks. Respondent, Committee for Industrial Organization tried to organize a labor union.

· Rule: People have the right to use public spaces for any lawful purpose free of government restraint.

Note^: Parks, sidewalks, and public streets have always been recognized as legitimate places for community gatherings and communication. Therefore, any restraint on public speech that occurs in such a forum is unconstitutional.

Political Speech and Advocacy of Illegal Action

Schenck v. United States (1919) – “Clear and Present Danger Test”

· The distribution of leaflets using impassioned language claiming that the draft was a violation of the Thirteenth Amendment of the United States Constitution (Constitution) and encouraging people to “assert your opposition to the draft” was held not to be protected speech.

· Rule: When speech presents a clear and present danger of bringing about harm that Congress has the power to prevent, restrictions on such speech are constitutional.

Note^: The nation was at war so these types of expressions encouraging disruption of wartime activities were not to be tolerated.

Note^: “The character of every act depends on the circumstances in which it is done. The question in every case is whether the words 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 protect.”

Debs v. United States (1919)

· The Petitioner gave a number of public speeches in Canton, Ohio opposing the war. He was found guilty for attempting to incite insubordination in the military by giving a speech. He was convicted and sentenced to 10 years on each count.

· Rule: Speech is not protected if one purpose of the speech, incidental or not, is to oppose war efforts.

Note^: The decision is based on the analysis of the likelihood or imminence of harm caused by the speech. Although there appears to be very little evidence of either here, the Supreme Court believed the danger was very real.

Masses Publishing Co. v. Patten (1917

· The Postmaster of New York barred the publication of

nvasion of free speech necessary to avoid the danger.

Note^: The overthrow of the Government by force is certainly a substantial enough interest.

Note^: The Supreme Court of the United States (Supreme Court) is essentially allowing the prohibitions of advocacy of a particular doctrine in this case – the overthrow of the government by force. In later opinions the Supreme Court will adopt a more rigid test that focuses on whether a speaker is advocating actions.

Brandenburg v. Ohio (1969) (Per Curiam) – New Standard – “Incitement to Violence”

· A leader in the Ku Klux Klan made a speech promoting the taking of vengeful actions against government and was therefore convicted under the Ohio Law. The Act properly made it illegal to advocate or teach doctrines of violence, but did not address the issue of whether such advocacy or teaching would actually incite imminent lawlessness. The mere abstract teaching of the need or propriety to resort to violence is not the same as preparing a group for violent action. Because the statute failed to provide for the second part of the test, it was overly broad and thus in violation of the First Amendment of the Constitution

· Rule: Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is likely to incite or produce such action.


· (J. Douglas) argues that the how the “clear and present danger” test has been applied in the past is disconcerting.

– First, the threats to which it was applied were often loud but puny.

– Second, the test was so perverted as to make trial of those teachers of Marxism all out political trials, which had the effect of eroding substantial parts of the First Amendment of the Constitution

· (J. Black) Agrees with Douglas, the “clear and present danger” doctrine should have no place in our interpretation of the First Amendment of the Constitution.

Note^: In order for “incitement to violence” speech to be constitutionally barred, Brandenburg sets a new standard. The language must:

– (1) Expressly advocate violence;

– (2) advocate immediate violence and

– (3) relate to violence likely to occur.

Reputation and Privacy

New York Times v. Sullivan (1964) – Eliminates the traditional No Seditious Libel element

· Sullivan sued the New York Times Co. for printing an advertisement about the civil rights movement in the south that defamed the Plaintiff. The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page ad taken out in the New York Times.

· Rule: The First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).

Note^: In order for a public official to recover in a defamation action involving his official conduct, malice must be proved. Without the showing of malice, the Supreme Court felt that a defamation action in this case would severely cripple the safeguards of freedom speech and expression that are guaranteed in the First Amendment of the Constitution and applicable to the States via the Fourteenth Amendment of the Constitution.

Note^: Malice might be a vague standard. It might be better to have a right of reply.