Civil Liberties: Immigration, Bill of Rights, and Freedom of Expression

Immigration Trends in the United States ($1850-2015$)

• Data Source: Office of Immigration Statistics, $2015$ Yearbook of Immigration Statistics.
• General Trend: The number of people granted permanent resident status in the U.S. has shown significant fluctuations over time, influenced by various historical events and legislative changes.
• **Key Historic Influences on Immigration (in thousands):
  • $1850$s:** Increase due to events like the Irish potato famine.
  • $1873$ and $1893$: Significant drops in immigration corresponding to economic panics.
  • Late $1800$s: Rise in immigration, partly due to anti-Jewish pogroms.
  • Early $1900$s (Great Prosperity): High immigration levels, peaking above $1,200$
  • World War I: A notable decrease in immigration.
  • Postwar flood (around $1920$): A sharp spike in immigration.
  • Quota System (applied in the $1920$s): Led to a substantial and prolonged drop in immigration, which remained low through the Great Depression and World War II.
  • Displaced Persons: A modest increase in the $1940$s and $1950$s.
  • Quota System Revised (post-$1960$s): Resulted in an increase in immigration.
  • Late $1970$s: Influx of Indochina refugees.
  • $1980$s: Further increase due to Cuban and Haitian refugees.
  • Immigration and Reform and Control Act of $1986$: Led to a massive surge in immigration, nearing $1,800$
  • Post-$1990$s: Immigration numbers continued to fluctuate at generally high levels, with peaks around $2000$ and $2005$.

Civil Liberties and Conflicting Values

• Boy Scouts of America Case:
  • Initially, a court upheld the Boy Scouts' defense of freedom of association when they maintained a ban that excluded certain groups.
  • In $2015$, the organization announced it would lift the ban.
  • In $2017$, the Scouts further opened the organization to transgender boys by permitting children to join troops based on their gender identity.
• Balancing Community Standards and Personal Expression: There are inherent tensions in balancing community sensitivities with individual self-expression, even within a single cultural tradition.
  • Pornography Example:
    • Some find it deeply offensive.
    • Others, while finding it offensive, believe establishments carrying or showing it should be tolerated to prevent laws that might restrict politically or artistically important forms of speech.
    • Still others do not find pornography particularly offensive.
  • Fundamental Question: Determining which forms of expression are deserving of constitutional protection remains a complex legal and societal challenge.

Application of the Bill of Rights to the States

• Historical Context: For many years after the Constitution and Bill of Rights were ratified, the liberties detailed in these documents applied exclusively to the federal government. The Supreme Court affirmed this in a case decided in $1833$.
• Exceptions in Article I: The Constitution was generally silent on state actions, except for provisions in Article I, which banned ex post facto laws and guaranteed the right of habeas corpus.
• Post-Civil War Changes: The situation began to change after the Civil War with the ratification of new amendments aimed at banning slavery and protecting newly freed slaves.
• The Fourteenth Amendment ($1868$): This was a pivotal addition, stating:
  • "no state shall 'deprive any person of life, liberty, or property without due process of law'" (the Due Process Clause).
  • "no state shall 'deny to any person within its jurisdiction the equal protection of the laws'" (the Equal Protection Clause).
• **Key Definitions:
  • Due Process of Law:** Denies the government the right, without due process, to deprive people of life, liberty, and property.
  • Equal Protection of the Laws: A standard of equal treatment that must be observed by the government.
• Selective Incorporation: Beginning in $1897$, the Supreme Court started to use these two clauses to apply certain rights from the Bill of Rights to state governments.
  • First Application: No state could take private property without just compensation.
  • Gitlow v. New York ($1925$): The Supreme Court held that the federal guarantees of free speech and free press also applied to the states.
  • Palko v. Connecticut ($1937$): The Court expanded this by stating that certain rights should apply to the states if they "represented the very essence of a scheme of ordered liberty" and were "principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental."
  • Scope: Most, but not all, federal rights have been selectively incorporated to apply to the states.
• Rights Not Incorporated to the States:
  • The Third Amendment: The right not to have soldiers forcibly quartered in private homes.
  • The Fifth Amendment: The right to be indicted by a grand jury before being tried for a serious crime.
  • The Seventh Amendment: The right to a jury trial in civil cases.
  • The Eighth Amendment: The ban on excessive bail and fines.
• The Second Amendment (Right to Keep and Bear Arms):
  • District of Columbia v. Heller ($2008$): The Supreme Court ruled for the first time that the Second Amendment protected an individual's right to possess firearms for traditionally lawful purposes, like self-defense, and that the federal government could not ban private possession of arms in D.C.
  • McDonald v. City of Chicago ($2010$): The Supreme Court incorporated the Heller ruling, applying the Second Amendment to state and local governments.
  • Regulation: Despite the incorporation, it generally remains permissible to regulate gun purchases and gun use based on other court cases.

The First Amendment and Freedom of Expression

• Structure: The First Amendment consists of two main parts:
  • Freedom of Expression: "Congress shall make no law… abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the government for a redress of grievances."
  • Freedom of Religion: "Congress shall make no law respecting an establishment of religion; or abridging the free exercise thereof."
• **Key Definitions:
  • Freedom of Expression:** The right of people to speak, publish, and assemble.
  • Freedom of Religion: People shall be free to exercise their religion, and the government may not establish a religion.

Speech and National Security

• **Traditional View (William Blackstone, *Commentaries*, $1765$):
  • Blackstone emphasized that a free press is vital for a free state.
  • He articulated the concept of freedom from prior restraint, meaning freedom from censorship or rules dictating in advance what a newspaper can publish.
  • However, he also stressed that once material is published or a speech delivered, the publisher or speaker must face consequences if the content proves to be "improper, mischievous, or illegal."
• The U.S. Sedition Act of $1798$:
  • This act aligned with traditional English law by imposing no prior restraint but holding publishers liable for punishment after publication.
  • It represented an improvement over the British model by entrusting the decision of guilt to a jury, not a judge, and allowing for acquittal if the defendant could prove the truth of what had been published.
  • Although several newspaper publishers were convicted, none of these cases reached the Supreme Court.
  • Upon becoming president in $1801$, Thomas Jefferson pardoned those imprisoned under the Sedition Act.
  • The Jeffersonians' primary objection was not to the concept of holding newspapers accountable but to the federal government's involvement. Jefferson believed states should punish what he termed the "overwhelming torrent of slander" through "a few prosecutions of the most prominent offenders."
• Early $20^{\text{th}}$ Century Restrictions ($1917-1918$):
  • Congress, perhaps mindful of the opposition to the $1798$ act, avoided placing restrictions on general criticism of the government.
  • Instead, restrictions were limited to publications that advocated "treason, insurrection, or forcible resistance" to federal laws or attempted to foment disloyalty or mutiny within the armed services.
  • Schenck Case ($1919$): The Supreme Court reviewed this new law when examining the conviction of Charles T. Schenck under the Espionage Act.