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Chapter 15Chapter 15

FREEDOM: THE STRUGGLE

FOR CIVIL LIBERTIES

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Campus Speech Codes and Free SpeechCampus Speech Codes and Free Speech

American college campuses have become an important battleground in the continuing struggle over the meaning of free speech.

Campus speech codes have been instituted at many colleges and universities in an effort to prohibit speech that may offend members of minority groups.

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– Many civil libertarians have fought against such codes, favoring the concept of free speech in a free society.

– The courts have generally sided with the civil libertarians on this issue.

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Civil Liberties in the ConstitutionCivil Liberties in the Constitution

Civil liberties are constitutional provisions, laws, and practices that protect individuals from governmental interference.– The framers of the Constitution were

particularly concerned with establishing a society in which liberty (or freedom) was paramount.

– As embodied in the Bill of Rights, civil liberties are prohibitions against government actions that threaten freedom, such as freedom of speech and religion.

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Constitutional liberties– The original Constitution specifically

protected only a few liberties from the national government and almost none from state governments.

– The safeguard against tyranny that the framers preferred was to give the national government little power with which to attack individual liberties.

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The framers singled out a few crucial freedoms.

Prohibition against suspending the writ of habeas corpus except when public safety demanded it due to rebellion or invasion

Prohibition against passing bills of attainder

Prohibition against passing ex post facto laws

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Objections to the absence of a more specific listing led James Madison to promise that a bill of rights would be proposed as a condition for ratifying the Constitution.

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Rights and Liberties in the Nineteenth CenturyRights and Liberties in the Nineteenth Century

Economic liberty in the early republic– On of the few protections of liberty in

the original Constitution concerns private property: states are prohibited from impairing the obligation of contracts.

– The importance of property rights has been reinforced by more than a century of judicial interpretation.

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The Bill of Rights does not apply to the states.– Barron v. Baltimore (1833)

But, the contract clause does apply to the states.– Fletcher v. Peck (1810– Dartmouth College v. Woodward

(1819)

The Marshall Court (1801-1835)

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Favored property used in ways that encouraged economic growth over simple enjoyment of property– Charles River Bridge v. Warren

Bridge (1837)

Human property – Dred Scott v. Sandford (1857)

The Taney Court (1836-1864)

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– Fourteenth Amendment designed to guarantee the citizenship rights of the newly freed slaves.

due process clause: No state may “deprive a person of life, liberty, or property, without due process of law.”

Economic liberty after the Civil War

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– During the 19th century, rights of property were expanded, refined, and altered to make them consistent with an emerging industrial society.

– Little attention was paid to the judicial protection of civil liberties, and little progress was made in rights of women and African Americans.

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Nationalization of the Bill of RightsNationalization of the Bill of Rights

Liberties unrelated to property were not protected very much before the 20th century because the Bill of Rights did not apply to state governments.

The Supreme Court only gradually applied the Bill of Rights to the states through selective incorporation.

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Selective IncorporationSelective Incorporation

– The framers were more concerned about intrusions by the national government than by state governments.

– Congress wanted to extend the reach of the Bill of Rights when it approved the Fourteenth Amendment.

– Three clauses in the Fourteenth Amendment specify that the states cannot violate rights and liberties.

– The Supreme Court was slow in nationalizing or incorporating the Bill of Rights.

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Standards for IncorporationStandards for Incorporation

How does the Supreme Court decide whether to incorporate some portion of the Bill of Rights?

The answer is spelled out in footnote four of the Court’s opinion in U.S. v. Carolene Products Company (1938).

State actions bring strict scrutiny if they:– Contradict Constitutional prohibitions– Restrict the democratic process– Discriminate against minorities

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Freedom of Speech: Political SpeechFreedom of Speech: Political Speech

Schenck v. United States (1919)– censorship only when speech poses a “clear

and present danger”

Gitlow v. New York (1925)– finally incorporated freedom of speech– but Gitlow still left in jail– role of ACLU

Increasingly, Americans seem willing to constrain or suppress political speech when it makes some members of the larger community uncomfortable.

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5Freedom of Speech: Actions and Symbolic Speech

Freedom of Speech: Actions and Symbolic Speech

Symbolic expressions may receive less protection from the Court

Texas v. Johnson (1989)– flag desecration falls under free

expression protections

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One major exception to the expansion of freedom of expression: periodic concern about “internal security”– WWI

restrictive state laws raids on offices of “radicals

– Post-WWII Joseph McCarthy and HUAC

– Post-September 11 The USA Patriot Act

Suppression of Free Expression

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Freedom of the PressFreedom of the Press

mentioned in an aside in the Gitlow case

reiterated in Near v. Minnesota (1931)

New York Times v. Sullivan (1964)– newspapers protected against trivial or

incidental errors when they were reporting on public persons

– prohibition of prior restraint on publication remains the core of freedom of the press

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Offensive Mass MediaOffensive Mass Media

The courts have held that obscenity is not protected by the First Amendment, but the distinction between art and obscenity can be difficult to draw.– Miller v. California (1973)

three-part test Recent concerns about the availability to

minors of sexually offensive material on the Internet– Communications Decency Act (1996)– Reno, Attorney General of the United

States v. ACLU (1997)

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5Free Exercise of ReligionFree Exercise of Religion The First Amendment

– Prohibits Congress from making laws that prohibit the free exercise of religion

– Provides that Congress shall not make laws respecting an establishment of religion

But for much of our history, the Supreme Court deferred to the states on the issue.

West Virginia v. Barnette (1943)– overturned Minersville School District v.

Gobitis (1940)– firmly established free exercise of religion as

protected against the states

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5Establishment of ReligionEstablishment of Religion

The establishment clause has been interpreted to require that government must take a position of neutrality.

Everson v. Board of Education (1947)

McCollum v. Board of Education (1948)

Zorach v. Clauson (1952)

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– The Warren Court (1953-1969) brought together a solid church-state

separationist contingent whose decisions the early Burger Court (1969-1973) distilled into the major doctrine of the establishment clause

– Lemon v. Kurtzman (1971)– The Rehnquist Court

has brought a change in judicial interpretation– Rosenberger v. University of Virginia

(1995)

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School PrayerSchool Prayer

Since the early 1960s, the Court has consistently ruled against nondenominational prayer or a period of silent prayer in the public schools.

Engel v. Vitale (1962) Stone v. Graham (1980) Lee v. Weismann (1992) Santa Fe Independent School District v. Doe (2000)

Yet in some cases, the Court has ruled in favor of religious groups.

Religious groups allowed to meet in public schools Students allowed to pray on their own or in

unofficial study groups

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PrivacyPrivacy

The freedom to be left alone in our private lives (the right to privacy) is not specifically mentioned in the Constitution.

Griswold v. Connecticut (1965)– ruled that the right to privacy is inherent

in the Bill of Rights– became an important precedent for Roe

v. Wade (1973) The “right to die” has not been clearly

established– Vacco v. Quill (1997)

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Rights of the AccusedRights of the Accused

Conflict between concerns about controlling crime and concerns about protecting the rights of the accused.

Warren Court (1953-1969) — expanded due process; preferred constitutional guarantees to efficient law enforcement

Burger Court (1969-1986) — preserved most of the basic due process decisions of the Warren Court; limited the further growth of protections and introduced many exceptions

Rehnquist Court (1986-present) — reversed many due process protections

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Unreasonable Searches and SeizuresUnreasonable Searches and Seizures

Mapp v. Ohio (1961): exclusionary rule

Exceptions: Murray v. United States (1988) Minnesota v. Carter (1998) Wyoming v. Houghton (1999) Knowles v. Iowa (1998) Kyllo v. United States (2001)

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Miranda v. Arizona (1966)– Miranda warnings– Upheld in principle by Burger

and Rehnquist Courts, despite the granting of exceptions

Self-incrimination

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Powell v. Alabama (1932)– state capital cases

Gideon v. Wainwright (1963)– state non-capital cases

The Right to Counsel

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Furman v. Georgia (1972)– cruel and unusual punishment

Gregg v. Georgia (1976) McCleskey v. Kemp (1987) Recent developments

Many state legislatures considering moratorium Annual executions decreasing Public support decreasing Rehnquist Court reconsidering the issue

– Atkins v. Virginia (2002)– Ring v. Arizona (2002)

Capital Punishment

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As with past American wars, the war on terrorism has generated significant restrictions on civil liberties.

Both liberal groups and conservative libertarians are concerned.– USA Patriot Act– Presidential executive orders

use of military tribunals to try non-citizens secret detentions, interrogations, and

deportations The courts have invalidated some of these

actions

Civil Liberties and the War on Terrorism