Bianco Chapter 4

Editor's Notes

• #3: Should free speech be protected even when the ideas are offensive? The Supreme Court ruled that the Westboro Baptist Church had a right to protest at military funerals, even though many Americans found their arguments and approach deeply offensive. Since 2005, members of the Westboro Baptist Church of Topeka, Kansas have protested at military funerals throughout the United States, arguing that combat deaths are a result of God punishing America for tolerating homosexuality. Congress, along with most states, have passed laws placing restrictions on the time and place of such protests surrounding military funerals. One grieving family sued the church for defamation and invasion of privacy. In a case that was appealed up to the Supreme Court, the Court ruled 8-1 that such speech was protected under the first amendment. This case demonstrates the important role the Court plays in defining the lines of civil liberties.
• #5: Nuts & Bolts 4.1 Distinguishing Civil Liberties from Civil Rights The distinction between civil liberties and civil rights can be confusing, especially because many of our civil liberties are found in the Bill of Rights. In general, civil liberties refer to things the government cannot do to its citizens, whereas civil rights refer to citizens’ protection from discrimination both by the government and by other individuals.
• #6: The public’s demand for security after September 11 came into contact with the Constitution’s protection of civil liberties in a dramatic way. As part of the war on terrorism, the government engaged in “extraordinary rendition,” Suspected terrorists were taken from their homes or airports, arrested, and taken for questioning to countries that are less protective of civil liberties: Egypt, Syria, Jordan, or Morocco. If they failed to give useful information, they would be beaten, kept in tiny cells, shocked with cattle prods, and water-boarded (simulated drowning). This raises questions of what happens when the wrong person is taken into custody? There is no clear answer to how to balance civil liberties and national security. If we accept that some situations, such as imminent terrorist-detonated nuclear attack, might require sacrificing civil liberties, the question becomes how much and under what circumstance?
• #7: How can conflicts between civil liberties and other legitimate interests, such as public safety and public health, be resolved? Sometimes freedom is forced to give way. Courts have upheld bans on the religious practice of snake handling and laws requiring the Amish to display reflective triangles when driving slow-moving buggies on public roads, despite religious objections to doing so. Of course, not every instance of balancing interests and drawing lines is as dramatic as extraordinary rendition. Easy Calls To balance the interests of freedom of religion and public health, the government has forbidden the use of dangerous snakes in certain fundamentalist church services. Classic example illustrating that civil liberties are not absolute: Oliver Wendell Holmes’s dictum that it’s forbidden to yell “fire” in a crowded theater. Harder calls Many harder calls on civil liberties involve drawing lines between religion and education: Is student-initiated prayer permitted in public schools? (Freedom to practice religion vs. establishment clause prohibition on government-sponsored religion) Can government help parents pay for tuition in religious schools if it is part of a “school choice program”? Do Jehovah’s Witness’s have to salute the flag in the morning if they believe their religion forbids it?
• #8: How can conflicts between civil liberties and other legitimate interests, such as public safety and public health, be resolved? Sometimes freedom is forced to give way. Courts have upheld bans on the religious practice of snake handling and laws requiring the Amish to display reflective triangles when driving slow-moving buggies on public roads, despite religious objections to doing so. Many important civil liberties issues have involved Supreme Court cases brought by religious minorities, e.g.: the Amish Jehovah’s Witnesses Native American tribes The Amish have been forced to put reflective triangles on their buggies, despite their religious objections. Another significant civil liberties issue involving the Amish was decided in the Supreme Court case Wisconsin v. Yoder, where the question was whether Amish children could drop out after 8th grade—rather than the 10th grade requirement in Wisconsin—because of their religious prohibition on “worldly” knowledge. (The Amish won that case.)
• #9: Federal agents use a drug-sniffing dog to inspect a car. The photo above illustrates how civil liberties and the Bill of Rights have evolved to deal with cases unable to be foreseen by the Founders. Search and seizure cases also call for balance between individual freedoms of the targets of police action and the broader interest of public order and security.
• #10: Pre-Civil War – Prior to the Civil War, the Bill of Rights applied only to the national government and did not protect citizens in the eighteenth century to the degree that it does now (cf., the Supreme Court case Barron v. Baltimore).This is important because in the first 80–100 years of our nation’s history, the states had much more power than the federal government did. Civil War Amendments – The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, which abolished slavery and granted civil liberties and voting rights to freed slaves after the civil war. The Fourteenth Amendment, which guarantees equal protection to all American citizens regardless of state of residence, is particularly important for civil liberties. Due Process Clause – Part of the Fourteenth Amendment that forbids states from denying “life, liberty, or property” to any person without the due process of law. (A nearly identical clause in the FifthAmendment applies only to the national government.) Gitlow v. New York – The first case which found that the Fourteenth Amendment incorporated certain amendments of the Bill of Rights (in this case, the First Amendment), meaning that states were not free to violate those rights. Selective Incorporation – The process through which the civil liberties granted in the Bill of Rights were applied to the states on a case-by-case basis through the Fourteenth Amendment. Those rights that are protected by selective incorporation are sometimes referred to as an “Honor Roll of Superior Rights.”
• #11: Many American socialists opposed U.S. involvement in World War I. Socialist leader Charles Schenk was prosecuted for encouraging young men to resist the draft, and another socialist, Eugene Debs, was jailed merely for speaking out against the war. If regulation of speech is content based then the Court will subject it to strict scrutiny, which requires that it serve a compelling state interest and be narrowly tailored. If the regulation is content neutral then the court will subject it to intermediate scrutiny, which requires only that the regulation have a substantial public interest, that the interest be unrelated to the content, and that there be alternatives for communication. Under John Adams, the second President, the Alien and Sedition Acts made it a crime to “write, print, utter, or publish…any false, scandalous, malicious writing or writings against the government of the United States…” Around 25 people, mostly newspaper editors, were tried under this law and 10 were jailed. Public opposition to the law helped Jefferson win the election of 1800, wherein he pardoned the convicted editors. Congress repealed the Acts in 1802.
• #12: Senator Joseph McCarthy stands in front of a map purporting to show communist activity in the United States. McCarthy was a central figure in the post–World War II Red Scare, during which Americans suspected of supporting communism were persecuted and imprisoned. The Alien and Sedition Acts were an example of a restriction on political speech. It would not be the last. During World War I, Congress passed the (similarly named) Sedition Act (of 1918) which outlawed any “disloyal, profane, scurrilous, or abusive language about the form of government, the Constitution, soldiers and sailors, flag and uniform of the armed forces.” An interesting figure in the transition from the old (restrictive) view of freedom of speech to the new (permissive) view, was Oliver Wendell Holmes. In a case against an anti-war pamphleteer, Schenk v. U.S., Holmes developed the Clear and Present Danger test. Clear and Present Danger test – Allows the government to restrict certain types of speech deemed dangerous. In arguing for this test, Holmes analogized dangerous words to shouting “Fire” in a crowded theater. In future cases, Holmes would be persuaded that “we should be eternally vigilant against attempts to check the expression of opinion that we loathe and believe to be fraught with death.” In this sentiment, he is advocating for a “free trade in ideas.” The free speech test was replaced with a Direct Incitement test. Direct Incitement test – Established in Brandenberg v. Ohio, this test protects speech under the First Amendment unless it is directed at inciting “imminent lawless action and is likely to incite or produce such action.” Students are only sometimes protected by Direct Incitement: In a bizarre case, Fredrick v. Morse, a student who cut school to attend the march of the Olympic Torch through his home town was punished by his school when he raised a “Bong Hits 4 Jesus” banner. (The student wasn’t trying to make a point; the banner was a joke.) Although he tried to argue that his speech was partially protected by the ruling in Tinker v. Des Moines (which ruled that students DID have the right to wear a black armband to class to protest the Vietnam War), the Court found for the school district and ruled that his speech was not protected. Take-away lesson: freedom of speech does not necessarily apply to students talking about drugs in school.
• #13: The American flag is a popular target for protesters: it has been spat upon, shredded, turned into underwear, and burned, as it was during this 2004 demonstration at the Democratic National Convention in Boston. Despite multiple efforts in Congress to ban flag desecration by constitutional amendment, these activities remain constitutionally protected symbolic speech. In Texas v. Johnson (1989), the Supreme Court ruled 5-4 that a Texas law that outlawed flag-burning was unconstitutional. Symbolic speech is not protected when it violates other parts of the Constitution. For example: Draft card burning is not constitutionally protected. Some advocates have tried to argue that certain types of political spending falls under constitutionally protected “symbolic speech.” The Supreme Court has found that candidates are allowed to spend unlimited sums of their own money on themselves. Similarly, the Court has protected the rights of corporations and labor unions to spend money on campaign ads. However, the Supreme Court also ruled “soft money” bans (on contributions to political parties) are also okay.
• #14: Are laws banning hate speech constitutional? Sometimes yes, but the threshold is relatively high. These Ku Klux Klan members are free to hold rallies, preach racism and xenophobia, and burn crosses, as long as they do not directly incite violence or display an “intent to intimidate.” Important Supreme Court cases on hot-button issues like hate speech frequently seem to be in tension with one another. Supreme Court precedent, like the Common Law, evolves over time. R.A.V. v. St. Paul (1992): The Supreme Court threw out a law under which a teenager was convicted for burning a cross on the lawn of an African American family. The court said that the teen could be punished for arson, terrorism, trespassing, or other legal violations, but the law as written constituted impermissible “viewpoint discrimination.” Virginia v. Black (2003): Court upholds a more narrowly tailored ban on cross burning. Under this contextual view, burning a cross at “a Klan rally would be permitted political speech, but burning one on an African American family’s lawn would not.
• #15: The publication of thousands of government documents, including some sensitive reports and communications, raised new questions about press freedom and national security. Here, Wikileaks founder Julian Assange discusses the leaked documents. In the words of Justice Hugo Black, “Only a free and unrestrained press can effectively expose deception in government.” Gag order – An aspect of prior restraint that allows the government to prohibit the media from publishing anything related to an ongoing trial. Less Protected Speech and Publications Fighting words – Forms of expression that “by their very utterance” can incite violence. These can be regulated by the government but are often difficult to define. Slander and libel [add em dash] Spoken and written false statements that damage a person’s reputation. Both can be regulated by the government but are often difficult to distinguish from permissible speech. It is generally almost impossible to get a conviction for slander and libel if the “victim” is a public official. (See NY Times v. Sullivan.) For public figures the standard is that the accuser must demonstrate “actual malice” or either “knowledge of falsehood” or “reckless disregard for the truth.” All of this can be mitigated under the “hot news” doctrine which carves out an allowance for journalists working under time pressure.
• #16: Joe Camel peddles his wares on a New York City billboard. Commercial speech, as a general category, is not as strongly protected by the First Amendment as political speech, but advertising can be limited by the government only in specific circumstances. Obscenity lacks First Amendment protection, but it’s difficult to define. At first, the Court tried to use “contemporary community standards, as applied by the average person.” The benchmark that applies now is the Miller Test. The Miller Test rules that a work is obscene if, taken as a whole, it fails the SLAPS test. SLAPS test: Does the work have any “serious literary, artistic, political, or scientific” merit? Court has a mixed record on obscenity cases when it comes to sexual content and vulgar words, but two recent cases have struck down regulations of violent material.
• #17: Although you may have heard the phrase about a “wall of separation between church and state” this phrase is not in the Constitution. It comes from an 1802 letter from Thomas Jefferson to the Danville Baptists. In understanding where to draw the line between church and state today, one can imagine the Court’s decisions on a spectrum from “separationist” (hard line between church and state) to “accommodationist” (allowing religious activity in public institutions). Many controversies surrounding church and state involve what children are taught in public school or whether children are allowed to pray in school. (Compulsory prayer was forbidden in 1962 and 1963 [see Engel v. Vitale and Abington v. Schempp]. To what extent are religious organizations allowed in public spaces? For instance, can a town have a crèche in its village square? What if the town were to sponsor the Christmas pageant? Does it make a difference if the town were to spend significant funds on this pageant? To answer these questions, the court developed the Lemon Test. Lemon Test – from the case of Lemon v. Kurtzman, the Supreme Court uses this test to determine whether a practice violates the First Amendment’s Establishment Clause. The test claims that any governmental aid must have a secular purpose, does not advance or inhibit religion, and does not foster an “excessive entanglement” between government and religion. The Lemon Test has not been totally dropped, but the Court is moving away from it towards an increasingly “accommodationist” perspective. For instance, Zelman v. Simmons-Harris (2002), the court ruled that tuition vouchers given to parents did not constitute impermissible state support of religion. Dissenters argued that this was the first time that public dollars were being used for employees of a particular religious organization (in this case, most of the vouchers were used to send poor children to Catholic schools). But the Court’s majority argued that the program was Constitutional since the aid went to the parents and not to the schools. The Free Exercise Clause can be more difficult to interpret but, essentially, you can believe whatever you like, but if you act on your beliefs, the government might be able to regulate your behavior. After lawsuits brought by Jehovah’s Witnesses, who believed that reciting the Pledge of Allegiance violated their religion, requiring the recitation of the Pledge of Allegiance is now unconstitutional. Congress and the Courts are going back and forth over whether the Court now needs to have a “compelling” interest to regulate religious practice. (The Court thinks it doesn’t need to have a “compelling interest”—what exactly would that mean?—but just a good one.) Interestingly, the Religious Freedom Restoration Act of 1993 and the Supreme Court decision on União do Vegetal allow certain exceptions to the Controlled Substances Act. These carve-outs allow members of certain Indian tribes to use peyote and certain religious sects to drink hallucinogenic tea as part of religious rites. Another recent case dealt with whether a law school could require an on-campus student organization (the Christian Legal Society) to accept members who had views that differed from the organization’s beliefs. The Court ruled that the school could withhold student funds if the group discriminated in who it allowed as members.
• #18: Can a cross be displayed on federal land? The Supreme Court has ruled that religious displays on government property must be part of larger, secular displays. This cross on federal land in the Mojave Desert was covered up after it became controversial.
• #19: Lawyers for Tom Green argued that laws against bigamy and polygamy infringed on his religious freedom. Green belonged to a fundamentalist sect of Mormonism that teaches plural marriage. When this photo was taken in 2000, he had five wives and at least 29 children.
• #20: After a mentally ill student shot and killed 32 people at Virginia Tech in 2007, many people called for stricter gun laws. For years, the issue of what this meant divided citizens, politicians, constitutional lawyers, and judges. In general, liberals thought that the first part of the Amendment clearly referred to state militias, which have been superseded by the National Guard. Conservatives argued, to the contrary, that “the right of the people” is a term that appears in amendments in the Bill of Rights that are universally understood as protecting individual rights. For a long time, the Second Amendment was not recognized by the Supreme Court as recognizing an individual’’s right to keep and bear arms. In a pair of cases in the last two years, the Court has issued two landmark rulings in favor of the “individual rights” point-of-view—District of Columbia v. Heller and MacDonald v. City of Chicago. The Court held both that (a) this should be interpreted as a right of individuals, not a prerogative for states to form militias and (b) this Amendment binds both states and federally-controlled territories like Washington, D.C. Some lower court cases of late have upheld limitations on gun ownership. Although still highly controversial and destined for more litigation, the Second Amendment can now be said to be “fully incorporated”.
• #23: Can the police search your home without a warrant? After Dollree Mapp was arrested for possession of pornographic material, the case made its way to the Supreme Court and the search was ruled unconstitutional. This case established the “exclusionary rule” for evidence that is obtained without a warrant.
• #24: When a citizen “pleads the 5th” s/he invokes their right to remain silent if answering the question would lead to self-incrimination. This is the most famous part of the famous “Miranda Warning:” “You have the right to remain silent…” The Supreme Court’s requirement that subjects be read the “Miranda warning”—also know as “Mirandized”—preceded an era in which crime spiked in America. Whether this was a case of “cause-and-effect” or merely a coincidence, the Supreme Court backed off of expanding civil liberties (or “coddling criminals,” as critics alleged) and carved out exceptions for security. Exceptions include allowances for public safety and for “inevitable discovery.” A recent case weakened Miranda by requiring a suspect to actively invoke the right to remain silent, while a different case strengthened Miranda by limiting a common police practice of getting a confession then reading a suspect their rights and then getting a second confession. Another famous aspect of the Fifth Amendment is its prohibition of “double jeopardy.” Double jeopardy – Being tried twice for the same crime. Forbidden by Fifth Amendment. There are two loopholes to the prohibition on double jeopardy. Can be acquitted on criminal charges, but found guilty on civil charges Can be tried in federal and state court for the same crime As the number of federal crimes has increased exponentially, the second loophole is becoming troublesome to many civil libertarians. See: Harvey A. Silverglate; Three Felonies a Day: How the Feds Target the Innocent Gene Healy, Go Directly to Jail: The Criminalization of Almost Everything
• #25: This is a typical example of the Miranda warning card that police officers carry with them and read to a suspect after an arrest.
• #26: Gideon v. Wainwright – In Gideon v. Wainwright, Clarence Gideon was accused of breaking into a pool hall and stealing beer, wine, and money from a vending machine. Since he was poor, he could not afford an attorney, and he defended himself. Ultimately, the Court overturned his conviction, stating “in our adversary system of criminal justice, any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.” To learn more about this case, see Gideon’s Trumpet which is both a book and a movie. This right has been strengthened over time by both Congress and the Court. Congress passed the Criminal Justice Act, which better protected poor defendants the year after the Gideon decision and the Court has since defined a general right to effective counsel. (Certain defendants have successfully appealed their convictions on the basis of ineffective counsel from a public defender. (See the Supreme Court cases Strickland v. Washington or Padilla v. Kentucky.) The Sixth Amendment also guarantees the right to a “speedy” and public trial in front of an impartial jury. What constitutes a “speedy” trial? According to the 1974 Federal Speedy Trial Act, a trial must begin within 70 days from the date of arrest. And what’s an “impartial jury?” This issue is blurrier, but the court has ruled that it has to do with jury selection and peremptory challenges (these allow lawyers to eliminate prospective jurors) which must not be made on the basis of race or gender. Because of the right to trial by jury, the Court has struck down several forms of mandatory sentencing that require judges to impose sentences based on facts other than those confessed to by a defendant or proved to a jury beyond a reasonable doubt.
• #27: The fight against terrorism has raised controversial questions about due process rights. After the United States Killed Anwar al-Awlaki – an Al Qaeda leader living in Yemen, and a U.S. citizen – critics argued that his due process rights, such as the right to a fair trial, had been violated.
• #28: In the past decade, the court has reversed course by banning the death penalty for the mildly retarded (2002), people of minor age (2005), and child rapists (2008). The Founders would be surprised that this amendment is applied to the death penalty; after all, the Fifth and Fourteenth Amendments note that one cannot be deprived of “life” without due process . . . so, we can infer that one could be deprived of life if there was due process. Proportionality examples include punishments such as stripping the accused of citizenship and incarceration for drug addiction. Laws like California’s Three Strikes – which might involve harsh punishments for mild third crimes – have been found constitutional.
• #29: Nothing explicit about privacy, nor the word “privacy,” can be found in the Constitution. “The right to privacy” is first mentioned in 1965 in a case about birth control (Griswold v. Connecticut) Dissenters in the Griswold case protested that the right to privacy was for legislatures, not courts to create. Justice Black called privacy a “broad, abstract, and ambiguous concept.” Justice Black’s warnings of the Court being overtaken by the need to define privacy came true after the decision in Roe v. Wade. Roe, of course, is the 1973 case that struck down 46 states’ prohibitions on abortion. Whereas Griswold based privacy on the “penumbras” of the First, Fourth, Fifth, and Ninth amendments, Roe added an extra layer to this complex formula by using the Fourteenth Amendment’s due process clause to make the right to an abortion a national right. Privacy rights have only become more important and hotly debated in the previous decades with Congress attempting and finally succeeding in passing a law prohibiting late-term (“partial birth”) abortion. In two other areas, the “right to die” has become an issue of extreme controversy: 1. The case of Terri Schiavo drew national attention in 2005 when the parents and husband of a woman who had been on life support for 15 years disagreed about whether she should be taken off. (She ultimately was allowed to die.) The other issue followed Oregon’s passage of an assisted suicide law, The Death With Dignity Act. The law was passed twice by popular vote of Oregonians. In 2004, Attorney General John Ashcroft sought to have the licenses of doctors who prescribed the lethal drugs to patients who requested them revoked under the federal Controlled Substances Act. The Supreme Court upheld Oregon’s law. Gay rights are often considered under civil rights, but Lawrence v. Texas (2003) found that laws restricting sexual conduct among gays were unconstitutional, thereby expanding the right to privacy.
• #30: ESTABLISHMENT The government cannot establish an official state religion or favor one religion over others. FREE EXERCISE The government cannot prevent people from practicing their religion. Pop Quiz! Which type of speech is strongly protected under the First Amendment? a political speech b commercial speech c obscenity d libel e fighting words 2. The First Amendment’s “establishment clause” says that the government cannot a establish categories of speech. b prevent people from practicing their religion. c ban offensive speech. d create an official state religion. e prevent people from peaceably assembling.
• #31: Pop Quiz! Which type of speech is strongly protected under the First Amendment? a political speech b commercial speech c obscenity d libel e fighting words 2. The First Amendment’s “establishment clause” says that the government cannot a establish categories of speech. b prevent people from practicing their religion. c ban offensive speech. d create an official state religion. e prevent people from peaceably assembling.
• #32: Pop Quiz! Which type of speech is strongly protected under the First Amendment? a political speech b commercial speech c obscenity d libel e fighting words 2. The First Amendment’s “establishment clause” says that the government cannot a establish categories of speech. b prevent people from practicing their religion. c ban offensive speech. d create an official state religion. e prevent people from peaceably assembling.
• #33: Pop Quiz! Which type of speech is strongly protected under the First Amendment? a political speech b commercial speech c obscenity d libel e fighting words 2. The First Amendment’s “establishment clause” says that the government cannot a establish categories of speech. b prevent people from practicing their religion. c ban offensive speech. d create an official state religion. e prevent people from peaceably assembling.
• #34: Pop Quiz! Which type of speech is strongly protected under the First Amendment? a political speech b commercial speech c obscenity d libel e fighting words 2. The First Amendment’s “establishment clause” says that the government cannot a establish categories of speech. b prevent people from practicing their religion. c ban offensive speech. d create an official state religion. e prevent people from peaceably assembling.
• #46: Christopher Simmons was removed from death row when the Supreme Court ruled that executing people who were convicted as juveniles is not permitted under the Eighth Amendment.
• #47: Since September 11, 2001, Americans have been more directly confronted with trade-offs between security and civil liberties.
• #48: Opponents of the military’s “Don’t ask, don’t tell” policy argued that it infringed on the rights and liberties of gay and lesbian service members, in part because they could be dismissed based on their private sexual behavior. The policy was repealed in 2011.
• #49: Table 4.1 Selective Incorporation
• #50: Nuts & bolts 4.2 The Bill of Rights: A Statement of Our Civil Liberties