Democracy Under Pressure

Democracy Under Pressure Chapter 4 Civil Liberties and Citizenship

Democracy Under Pressure Individual Freedom and Society

Individual Freedom and Society • Civil liberties are the fundamental rights of a free society that are protected by the Bill of Rights. • Supreme Court decisions in the area of civil liberties and individual rights often illustrate the tension between liberty and order. • As Justice Oliver Wendell Holmes once said, "The right to swing my fist ends where another man's nose begins." • The fullest expression of freedom for an individual may serve the interests of society as a whole.

Individual Freedom and Society • In his classic treatise On Liberty, John Stuart Mill noted that "Though the silenced opinion be an error, it may . . . contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of truth has any chance of being supplied." • In American society, the Supreme Court has been called upon to resolve conflicts between liberty and order.

Democracy Under Pressure The Bill of Rights

The Bill of Rights • The first ten amendments to the Constitution constitute the Bill of Rights. • The supporters of the Constitution promised to pass a Bill of Rights in order to win the struggle over ratification. • Though the Bill of Rights is the fundamental charter of American liberties, the Supreme Court decides how those rights will be defined and applied. • Decisions by judges are not made in a vacuum. • Individual liberties may also depend on what the political system will tolerate at any given time.

The Bill of Rights • The Bill of Rights was ratified to guard against potential abuses by the federal government. Virtually all of its safeguards apply to state and local governments as well. • Constitutional scholar Alpheus Mason notes that individuals could look to the court for protections, contending that "Rights formerly natural became civil [rights]."

Freedom of Speech • Congress is prohibited from legislation relating to the establishment and exercise of religion, speech, press, assembly, and petition for redress of grievances. • Along with the first 45 words of the First Amendment, and the due process concept, the Constitution sets forth the basic American freedoms. • Justice Cardozo saw speech as "the matrix, the indispensable condition, of nearly every other form of freedom."

Freedom of Speech • Yet, the courts have often placed limits on speech and have deemed several types of expression as unprotected, including: fraudulent advertising, obscenity, child pornography, libel, and in some cases, street oratory. • The clear and present danger test, devised by Justice Oliver Wendell Holmes, says that "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent."

Freedom of Speech • The Supreme Court has often tried to draw the line between "expression" and "action." • In a major draft card burning case, in 1968, the Court did not recognize the practice as a form of symbolic speech as the defendant hoped, saying that a limitless variety of conduct cannot be labeled as speech. • The Court has ruled that neither Congress nor the states can prohibit the burning of the American flag. Gregory Lee Johnson was convicted for burning the flag at the 1984 Republican National Convention. The Court later ruled (5-4) that state and federal laws protecting the flag violated the First Amendment.

Freedom of Speech • The Court set aside a Massachusetts judge's sentence of six months in jail given to a man for wearing an American flag patch on his jeans. The Court held the law vague. • In a case involving "political speech," a government employee was fired from her job for saying that if attempts were again made on President Reagan's life, that she hoped that they would "get" him. The comment was deemed political speech for which she could not be fired. • In 1991, the Court struck down a New York State law designed to prevent criminals from profiting from books or movies about their crimes. The Court ruled that writing about one's own criminal conduct is protected. The case concerned Henry Hill, whose Mafia story was told in the book Wiseguy and in the movie Goodfellas.

Freedom of Speech • The First Amendment, hate crime laws, and campus speech codes • In 2003, the Supreme Court ruled 6-3 that states could ban cross burnings that are designed to intimidate. Such actions are protected by the First Amendment. • In 1992, the Supreme Court ruled that a Minnesota hate crime law was unconstitutional because the law prohibited only certain kinds of speech on a selective basis. The case arose when a white high school dropout was arrested for burning a cross on the lawn of a black couple.

Freedom of Speech • This decision had an impact on college campuses, where some administrators had established speech codes prohibiting students from making racist or sexist remarks. The codes were created because many minority students felt threatened by hateful and derogatory remarks and actions by some of their fellow students. • In 1994, the Court ruled that states may impose longer prison terms and stiffer fines on those convicted of hate crimes without violating the First Amendment. • In 2000, the Court ruled students at state universities could be required to pay activity fees, even when those fees support campus groups whose views the students oppose.

Freedom of Speech • The First Amendment and student rights • The Supreme Court has ruled that students do not lose their constitutional right of free expression because they are in school. • The case arose when, during the war in Vietnam, Mary Beth Tinker was suspended from school for wearing a black armband in class to protest the war. • The Court concluded that students and teachers cannot shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.

Freedom of Speech • However, the Court has made it clear that the right to free expression is not unlimited, as in the case involving a student who used "vulgar and offensive language" in an endorsement speech for a student government candidate. • In 1988, the Court upheld the power of school administrators to censor a high school newspaper, student plays, and other activities in certain instances. • The right of students to read books in the school library is supported by the Court. A New York City high school student sued the school board when eight books, including The Naked Ape, were removed from the library shelves.

Freedom of Speech • Preferred freedoms and the balancing test • Justices Black and Douglas took the view that there are "absolutes" in the Constitution that cannot be diluted by judicial decision. Black also held that obscenity and libel fit this "absolutes" category. • In contrast, the majority of the Court held that the First Amendment needs to be balanced against community needs, a view championed by Frankfurter. • Justice Harlan Fiske Stone placed speech and religion in a "preferred position" to order.

Freedom of the Press • Courts don't always accord the press the same latitude as individual citizens, despite the First Amendment. • The Supreme Court has ruled against the media in some cases. • Journalists have been asked to reveal their sources. • Individuals have been successful in suing the press for libel. • The court has recognized individual privacy rights.

Freedom of the Press • The Court let schools censor student newspapers. • The Court upheld the right of government to regulate radio and TV. • All of these cases balance freedom of the press and the competing needs of society.

Obscenity • Even before the 1990s, sexually explicit materials were available in books, magazines, and X-rated video stores. • Today, sex in art, literature, and motion pictures is acceptable to many segments of the public.

Obscenity • In Roth v. United States (1957), the Supreme Court held that obscenity is not a form of constitutionally protected speech or press. • Material that is "utterly without redeeming social importance" is not protected. • Brennan further said that obscenity could be judged based on "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.“ • Justice Potter Stewart pointed up the problem of defining pornography in a case involving "hard-core" pornography. He added, "but I know it when I see it."

Obscenity • The practical effect of all of these cases was to remove almost all restrictions on content as long as the slightest "social value" could be demonstrated. • Miller v. California (1973) set new standards for defining obscenity. The Court set a three-part test for judging works. • The average person must apply "contemporary community standards." • Whether the work depicts "in a patently offensive way" sexual conduct prohibited by state law. • Whether the work as a whole "lacks serious literary, artistic, political, or scientific value."

Obscenity • The Court ruled that local communities could set their own standards. • Burger wrote that it is not realistic or constitutionally sound to read the First Amendment as requiring people in Maine or Mississippi to accept the public depiction of conduct found tolerable in Las Vegas or New York. • A series of cases beginning in 1987 rules that limits can be placed on communities. • "Reasonable person" rules replace "community standards."

Obscenity • Court decisions demonstrated that the Miller ruling did not give communities free reign to censor explicit works. Local juries did not have "unbridled discretion." • The Court ruled that the First Amendment does not protect nude dancing; it held that states might prohibit such entertainment. • The Court struck down an attempt by Congress to ban the "dial-a-porn" industry, yet upheld the conviction of William Hamling, who had published an illustrated version of the report of the President's Commission on Obscenity and Pornography.

Obscenity • In 1982, the court held that child pornography is not speech protected by the Constitution. • In 1998, Congress passed the Child Online Protection Act (COPA) to shield minors from Internet pornography. However, the Court argued that filters work better than the $50,000 fines the law provided. • In 1998, the Court upheld a law passed by Congress allowing the NEA to consider "general standards of decency and values of the American public" when giving taxpayer money to the arts.

Privacy • Judge Louis Brandeis wrote that the makers of the Constitution sought to give Americans "the right to be let alone . . . the right most valued by civilized men." • Issues today: computerized data banks, sophisticated surveillance systems, and intrusions into privacy by government, corporations, banks, schools, credit and insurance companies, and the press.

Privacy • Privacy right first stated in Griswold v. Connecticut (1965), a case about married couples being prescribed contraceptives through a Yale University professor and Planned Parenthood (Connecticut law against such practices). • The court found no stated right to privacy, but said there were "various guarantees" in the Bill of Rights to "create zones of privacy." • Court also says that keeping the police out of the bedroom is "a right of privacy older than the Bill of Rights."

Privacy • In the controversial Roe v. Wade case, the Supreme Court ruled that the concept of privacy includes the right to a legal abortion. • Court says that right of privacy exists, even though it is not explicitly mentioned in the Constitution. • "Guaranteed zones of privacy," the majority said, do exist under the Constitution. • In the case of Robert Eli Stanley, whose home was searched under a warrant for bookmaking, he was considered to have the privacy right to view pornographic films found in his home.

Privacy • Press reporting under the First Amendment often conflicts with a person's right to be left alone. • The court also upheld a judgment against a paper for invasion of privacy relating to the death of a West Virginia construction worker. • In another case, the court held that a man's privacy was not invaded when a television station reported the name of his raped and murdered daughter over the air because the name had been gleaned from public records.

Privacy • In the early 1970s, Congress passed legislation protecting family credit reports, school records, and an individual's government files. • In another case, the court held that a man's privacy was not invaded when a television station reported the name of his raped and murdered daughter over the air because the name had been gleaned from public records. • In the early 1970s, Congress passed legislation protecting family credit reports, school records, and an individual's government files.

Freedom of Assembly • The First Amendment protects the right of the people to assemble peaceably. • It ruled that while cities may require permits to use public grounds, they might not use their licensing power to suppress free speech. • A case in point would be a Nazi group's attempt to march through a largely Jewish community, Skokie, Illinois, in 1977. • The ACLU went to court to defend the Nazi group's First Amendment rights. • The Court eventually let stand a lower court ruling that held that Skokie's ordinance violated the First Amendment.

Freedom of Assembly • In 1995, the Supreme Court ruled (9-0) that private sponsors of a St. Patrick's Day parade in Boston had a right to exclude gay marchers since the parade was private expression.

Freedom of Religion • In 2000, atheist Michael Newdow objected when his daughter was forced to watch and listen to her classmates recite the Pledge of Allegiance. • In 2002, a federal appeals court struck down the pledge. • In 2004, the Supreme Court overturned the lower court ruling.

Freedom of Religion • In 1802, Jefferson wrote that the First Amendment was designed to build a "wall of separation" between church and state. • The amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Freedom of Religion • The free exercise clause • The free exercise clause protects the rights of individuals to believe and worship (or not) as they wish. • It also means that people can't be forced by the government to act contrary to those beliefs, unless those beliefs conflict with valid laws.

Freedom of Religion • In a number of cases, the Supreme Court tried to define the grounds for conscientious objectors. • a. Since the Civil War, draft laws have provided for conscientious objector status. • b. In 1965 the Supreme Court ruled that "sincere and meaningful" objection to a war on religious grounds did not require belief in a supreme being. • c. In June 1970, the Court extended the protection to those who are opposed to war for reasons of conscience. Religious belief is not required.

Freedom of Religion • The establishment clause • The establishment clause means "neither a state nor the federal government" can set up a church or pass laws that aid one religion, aid all religions, or prefer one religion over another. • Religion has always been a part of American life: "In God We Trust" on currency, presidential speeches referring to the Almighty, public meetings starting with a prayer. • Congress always begins with a prayer. The Court held in 1983 that state legislatures could do likewise. However, in 2002 a federal appeals court ruled that "under God" in the Pledge of Allegiance was unconstitutional; the ruling was stayed the next day.

Freedom of Religion • In 1962, the Court outlawed officially composed "nondenominational" school prayer. In Engel v. Vitale Justice Black said that composing prayers was not the business of government. • In 1963, the court outlawed Bible reading and recitation of the Lord's Prayer in classrooms. Many school districts openly defied this decision.

Freedom of Religion • Government aid to church-related schools became one of the most contentious issues in this area of church-state relations. • In 2002, 2.6 million students (5 percent of the 54 million schoolchildren) attended Roman Catholic schools. • In 1947, Everson v. New Jersey, the court held that bus fare reimbursements to parents of both private and public school students was a matter not of religion, but of safety. • In 1965, Congress authorized federal aid to both public and church-supported schools. • Since Everson, more than two-thirds of the states have enacted various kinds of aid to parochial schools, from school lunches to driver education.

Freedom of Religion • In 1971, the Supreme Court declared unconstitutional certain types of state aid to parochial schools. • In 1997, the Supreme Court overturned an earlier ruling that allowed public school teachers to be sent to parochial schools to teach remedial classes. • The Supreme Court at times permitted religious-oriented extracurricular activities: In the Mergens case, the Court held that the school could not use the Constitution to deny a student Bible study group an opportunity to use facilities after school. • The Supreme Court faces a dilemma: how to protect the rights of a particular religious group without violating the establishment clause

Loyalty and security • Two constitutional principles clash here: the right of individuals to free expression and the responsibility of government to protect the national security. • Years after the collapse of the Soviet Union, it might become difficult for many to understand the political atmosphere that prevailed fifty years ago.

Loyalty and security • Some politicians, like Senator Joseph McCarthy of Wisconsin, exploited public concern for political benefit. • His investigations of Communists in the State Department created a widespread climate of fear and ruined many careers. • His Army investigations, displayed on television, led to his censure by his Senate colleagues and he ultimately lost influence.

Loyalty and security • During the Cold War, two opposing views crystallized the Court and society. • One approach holds that the right of self-defense permits nations to act against those who would endanger the system before they can do so. • The other school says that Americans should have confidence in their democratic institutions and need not fear other ideologies that are being expressed.

Loyalty and security • Efforts to suppress dissent predate the 1950s-era McCarthyism. • a. The Adams administration tried to silence its critics under the Alien and Sedition Acts of 1798. • b. In 1940 Congress enacted the Smith Act, making it unlawful to advocate overthrow of the government "by force or violence." The Court upheld it in Dennis v. United States (1951). • c. After the outbreak of the Korean War, Congress passed the Internal Security Act of 1950 (also known as the McCarran Act), requiring that Communist "front" organizations register with the attorney general. The Supreme Court upheld the law in 1961.

Due Process of Law • The history of liberty, according to Justice Felix Frankfurter, "is largely the history of observance of procedural safeguards." • The Fifth and Fourteenth Amendments provide for due process to help protect individuals from the arbitrary power of the state. Due process is often divided into two categories. • Substantive due process in which laws must be reasonable. • Procedural due process refers to the manner in which the laws are administered.

Due Process of Law • Until 1937, the Supreme Court used the substantive due process concept and the Fifth and Fourteenth Amendments to protect business from regulation by Congress and the states. • Since then, the Court has taken the view that Congress has the duty to regulate business in the public's interest. • In the area of civil rights and liberties, the Court has continued to apply substantive due process.

Due Process of Law • Searches and seizures • A fundamental difference between a free society and a totalitarian one is the right to be secure in one's person, home, papers, and effects, knowing that they are protected against "unreasonable searches and seizures" under the Fourth Amendment. • Under this amendment the police are not authorized to search a home without a judicially signed search warrant that was issued on "probable cause" that the materials to be seized are located at the place of the search.

Due Process of Law • In 1999, the Supreme Court ruled that police who allow journalists and television cameras into people's homes to witness and record searches or arrests violate the Fourth Amendment. It did curb but not end the television shows that show making dramatic arrests-journalists may videotape what takes place on the streets and in public places. • Since 1980 the Supreme Court has said that police must have a warrant to search a home, but may enter without a knock if they think there is a danger of evidence being destroyed or violence occurring. • In 1969, the Supreme Court ruled that police lacking a search warrant may not ransack a home in making a lawful arrest, but must confine their search to the suspect and the immediate surroundings.

Due Process of Law • In practice, constitutional principles are sometimes violated. These violations show the gap between the promise and performance of the American political system. They demonstrate that the system does not always function the way it was designed. • The Nixon years saw federal agents burglarizing the files of the psychiatrist who treated Daniel Ellsberg (the man who had leaked the Pentagon Papers to the media). • Also in the Nixon years, the Democratic National Committee offices at the Watergate complex were burglarized and bugged. • In 1975, the FBI admitted it had conducted hundreds of illegal break-ins against dissident groups and individuals.

Due Process of Law • Public school students are not afforded the same Fourth Amendment protections as other citizens. • School officials do not need a warrant or "probable cause" to search a student; the Court said all they need is "reasonable grounds" to conduct a search. • In 1995 the Supreme Court held (6-3) that schools could conduct drug tests on athletes. Justice Scalia ruled that students' rights under the Fourth Amendment were outweighed by the school's right to deter drug use. • The student argued the school had no "probable cause" to assume he used drugs. • Justice O'Connor worried that students who had never given any indication of problems to school administration would still be subjected to intrusive searches.

Due Process of Law • Automobiles have less protection. Police may search a car without a warrant if they have "probable cause" to believe it contains illegal articles. Their search may include the locked trunk. • Police who stop a car for a traffic violation may order the occupants to get out. • They may search a car and its contents if they lawfully arrest its occupants. • In 1990, the Court ruled that police might stop drivers at roadside checkpoints to see if they are intoxicated.

Democracy Under Pressure