CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS A bill of rights is what the people are entitled to against every goverment on eartit,generat or articular,and what0 just should refus，or rest on inferenc. Thomas jefferson ○hooa9 e r的 their home.Brandishing guns,they searched the house for a relative of the Creightons who was suspected of bank robbery.When asked to show a search warrant,they said,"You watch too much TV."Failing to find the suspect,they departed,leaving behind three screaming children and two angry parents.The Creightons sued the FBI agent in charge,Russell Anderson,for violating their Fourth Amendment right against unlawful search. The Creightons won a temporary victory when the Eighth U.S.Court of Appeals,noting that individuals are constitutionally protected against warrant- less searches unless officers have good reason ("probable cause)for a search and unless they have good reason ("exigent circumstances)for conducting that search without a warrant,concluded that Anderson had been derelict in his duty.In the judgment of the appellate court.Anderson should have sought a warrant from a judge,who,on the basis of Anderson's information about the suspect's whereabouts,could have decided whether a search of the Creightons' home was justified. On June 25,1987,the Supreme Court of the United States overtured the lower court's ruling.In a 6-3 decision written by Justice Antonin Scalia,the Court stated:“We have recognized that it is inevitable that law enforcement 9
90 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 91 officials will in some cases reasonably but mistakenly conclude that probable became the basis for extending these protections of individual rights to actions cause is present,and we have indicated that in such cases those officials by state and local governments. ..should not be held personally liable."Justice John Paul Stevens sharply Issues of individual rights have become increasingly complex and important. dissented.He accused the Court's majority of absolving the police of their The writers of the Constitution could not possibly have foreseen the United "constitutional accountability"and of showing "remarkably little fidelity"to States of the late twentieth century,with its huge national goverment, the Fourth AmendmentCivil liberties groups endorsed Justice Stevens'view, enormous corporations,pervasive mass media of communication,urban crowd- claiming that the Court's decision gave police an open invitation to invade ing,nuclear weapons,and the rest.These developments are potential threats to people's homes on the slightest pretext,thereby diminishing personal liberty. personal freedom,and the judiciary in recent decades has seen fit to expand the However,the Court's decision was praised by law-enforcement officials and rights to which individuals are entitled.However,these rights are constantly conservatives,who contended that a ruling in the Creightons'favor would have being balanced against competing individual rights and society's collective made police hesitant to pursue suspects for fear of a lawsuit if a search failed to interests.The Bill of Rights operates in an untidy word where people's highest produce the person sought. aspirations collide with their worst passions,and it is at this juncture that issues As this case illustrates,issues of individual rights are contentious and of civil liberties arise.Should an admitted murderer be entitled to recant a complex.No right is absolute For example,the Fourth Amendment protects confession?Should the press be allowed to print military secrets whose Americans,not from all searches,but from"searches."The public publication might jeopardize nationat security?Should prayer be allowed in the would be unsafe if law officials could never searcl for evidence of a crime or public schools?Should neo-Nazis be allowed to take their anti-Semitic message 一英 pursue a suspecr into a home.Yet the public would also be unsafe if police could into predominantly Jewish neighborhoods?Such questions are among the frisk peopi at will or invade their homes with impunity.Such acts are subjects of this chapter,which focuses on the following major points: charactertstic of a police state,not of a free society.The challenge to a civil society is to establish a level of police authority that balances the demands of public safety with those of individual freedom.The balance point,however,is wlimifed.Free expression recently has been strongly supported by the Supreme always subject to dispute.Did FBI agent Anderson have sufficient cause for a Court. warrantless search of the Creightons'home?Or was his evidence so weak that his forcible entry constituted an"unreasonable"search?Not even the justices of 女"Dwe process时lA"refers t如egal protections (primarily proced山rmls到feguards that are the Supreme Court could form a unanimous opinion on these questions. The idea of a compelling governmental interest is the abstract standard by During the last half century particrythecberties of individual Americans hae been which all claims of constitutional rights are evaluated.In theory,government santbstantiahbrosdrmedinlaoandgoer&reaterjudic节 protects or prohibits activities according to whether they serve an overriding oforme Of special sinificance has been the Supreme Court'suse of the Fourteenth Amendment to protect these individual rights from action by state and goal of society.The right of people to be secure in their homes and persons,for local governments. example,is considered a basic condition of a civil society,and thus deserving of judicial protectionOn this basis federal courts have rejected mandatory drug Individual rights are constantly being weighed aguinst the demands of majorities and the testing of all government employees.In a 1986 New Jersey case,a lower federal court concluded that"mass roundup urinalysis"of city employees violates public opinion,but the judiciary plays the central role in it and is the institution that is constitutional prohibitions;the court stated that fear of drug abuse was no most partial to the protection of civil liberties. excuse for trampling on "fundamental principles and protections.Yet the courts have upheld regulations requiring mandatory drug tests for some federal employees in certain jobs,concluding that a compelling national interest is Freedom of Expression served by a law designed to ensure that drugs will not undermine performance in jobs affecting the nation's defense. Freedom of political expression is the most basic of democratic rights.Unless This chapter examines issues of civil liberties:specific individual rights,such citizens can openly express their political opinions,they cannot properly as freedom of speech and protection against self-incrimination,which are influence their government or act to protect their other rights.They also canno constitutionally protected against infringement by government.As we saw in hear what others have to say,and thus cannot judge the merits of altemative Chapter 3,the Constitution's failure to enumerate individual freedoms led to views.And without free expression,elections are a sham,a mere showcase for demands for the Bill of Rights Enacted in 1791,these frst ten amendmtonts to those who control what is on people's lips and in their minds.As the Supreme the Constitution specify certain rights of life,liberty,and property which the Court concluded in 1984,"The freedom to speak one's mind is not only an national government is obliged to respect.A later amendment,the Fourteenth, aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole r Sepember 2.19 通过di, Bose Corp.v.Consuwers Lxiou of the United Sleles 466 U.5.485(1984) tmute
名 PART TWO INDIVIDUAL RIGHTS CHAPTER 5+CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 3史人国老员” 93 w1 It is for such reasons that the First Amendment provides aguarantee of John Adams.The Sedition Act expired in 1801,but not before lower federal respecting an estabilshment of freedom of expression-the right of individual Americans to hold and courts,presided over by Federalist judges who did not pretend to be objective, religion,or prohibiting the fre communicate views of their choosing.For many reasons,such as a psychologi- had imposed fines and jail sentences on ten Republican newspaper editors. cal need to conform to pressure or a fear of harassment,Americans do not freedom of speech,or of the Thomas Jefferson called the Sedition Act an "alarming infraction"of the always choose to express themselves freely.Nevertheless,the First Amendment provides that the individual shall have freedom of conscience,speech,press, Constitution and,upon replacing Adams as president in 1801,pardoned the convicted newspapermen and had their fines returned with interest.As the efition the Govermment for年 assembly,and petition. Supreme Court did not review the sedition cases,however,the judiciary's Freedom of expression,like other rights,is not absolute.It does not entitle position on the lengths to which the government could legally go in restricting U.S.Constitution, individuals to say or do whatever they want,to whomever they want,whenever free expression remained an open question. First Amendment they want.Free expression can be denied,for example,if it endangers national The Court also did not rule on free speech during the Civil War era,when the security,wrongly damages the reputatians of others,or deprives others of their goverment severely restricted individual rights.In one instance during Recon- preme Court justice Oliver basic freedoms.An individual's private thoughts are completely free,but words Ho mes日.1841-1935) struction,Congress actually prevented the Court from issuing a judgment.The and actions may not be.For example,in 1983 when a group of demonstrators case involved a Mississippi newspaper editor who had sought to arouse citizens (UPl/Bettmann Newsphotoe) gathered outside an Air Force base in upstate New York to protest against the against the Union occupation and had been jailed without charge by military deployment of bomber-launched nuclear missiles at the site,they were acting within their constitutional right of free expression.When they proceeded to authorities.He appealed his imprisonment to the Supreme Court on a writ of scale a fence and attack the bombers with sledgehammers,however,they were habens corpus(discussed in Chapter 3).Fearfulthat his release would encourage other Confederate diehards to resist Reronstruction policies,Congress passeda no longer within their legal rights.They were arrested and convicted of law that prohibited the Supreme Court to hear appeals involving those policies. trespassing and destruction of government property. In recent decades,free expression has received broad protection from the n 1869 the Court accepted this congressional"coustrpping"and declined to rule on the editor's appeal. courts.Today,under most circumstances,Americans can freely verbalize their Not until 1919 did the Court rule on a case that challenged the national political views without fear of governmental interference or reprisal.In earlier government's authority to restrict free expression.Two years earlier,Congress times,however,Americans were less free to express their political views. had passed the Espionage Act which prohibited forms o dissent deemed to be harmful to the nation's effort in World War I Nearly 2,000 Americans were THE EARLY PERIOD:THE UNCERTAIN STATUS OF convicted for such activities as interfering with draft registration and distribut- THE RIGHT OF FREE EXPRESSION ing antiwar leailets.The Supreme Court upheld one of these convictions in Schenck v.United Siates (1919),ruling unanimously that the Espionage Act of 羽方nn为. The first legislative attempt by the U.S.government to restrict free expression was the Sedition Act of 1798,which made it a crime to print false or malicious 1917 was constitutional.In the opinion written by Justice Oliver Wendell Holmes,the Court said that Congress could restrict speech that was "of such a (见方z女蛛多蔬何端 newspaper stories about the president or other national officials.The act was nature as to create a clear and fresent)danger"to the nation's security.This passed by Congress when fear of treason by French sympathizers was high,but clear-and-present-danger tesr mpted the converse:goverment could ot k学欢不子，材状了 its purpose was to muzzle Republican opponents of the Federalist president restrict political speech that presented no such danger. 越打) The Supreme Court did not adhere to its own standard,however.Less than a 。HOW THE UNITED year after Schenck,the Court upheld the conviction of six anarchists for writing a GIATISCOMPARES pamphlet protesting the U.S.govemment's attempts to overthrow the newly Civil Liberties their protection of civil imprisonments occur.Gastil's ormed Botshevik regime in Russia.Holmes dissented,writing that the ndividual rghes are a liberties.Also in this group rankings bottom out at seven. anarchists"silly leaflet"posed no substantial threat to the United States.Along comnerstone of the Amertcan are Canad由，hpn,and all a level that includes some with Justice Louis D.Brandeis,Holmes subsequently argued that government goverring system and receive Westem European Comnmunist,African,and should not be allowed to limit expression unless it posed an "imminent"danger strong protection from the demecracies exeept Finland, Middle East countries.In to national security. urts.The government's and these natioos.the state is which are in th rely mlted and the Their constitutional THE MODERN PERIOD:PROTECTING FREE EXPRESSION protections are not so well freedom of expression and air trial is protected thro四gh developed as those of the routinely using brutal Until the twentieth century,the tension between national security interests and elaborate due-process countries in the top group. methods to suppress political free expression was not a pressing dilemma for the United States.The country's 《ot istin Ameri.n Accoeding to Raymond our are in either this Gastal,the United Se Er parte McCanfie,7 Wallace 506 (1869) one,at chemck v.United Stohes,249 U.5.47 (1919). censorship and political Wan 37
94 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 95 great size and ocean barriers provided such protection from potential enemies that it had little to fear from internal subversion.World War I,however,intruded upon America's isolation,and World War II brought it to an abrupt end.Since then,Americans'rights of free expression have been defined largely in the context of national security concerns. The Communist Threat and Limits on Free Expression During the cold war that followed Worid War II,many Americans perceived the Soviet Union as bent on destroying the United States through intemal subversion and global expansion.Senator Joseph McCarthy's sensational allegations that communists had infiltrated key positions in the U.S.govem- ment intensified public anxiety.In this climate of fear,the Supreme Court allowed government to put substantial limits on free expression.In Demris v. United States (1951)the Court upheld the convictions of eleven members of the U.S.Communist party who had been prosecuted under the Smith Act of 1940, The right to free expression of polltcal vews was widoly which made it illegal to advocate the foreeful overthrow of the U.S.govern- evident during the Vietnam war, ment. when many Americans Fears of communist subversion began to subside in the mid-1950s,and the Court modified its Dennis position.In Yates v.United Stafes (1957),the emnent.(UPI/Bettman lower-court convictions of fourteen Communist party members were over- turned because evidence indicated that they had not directly advocated lawless action.The Court said that their advocacy was "theoretical"and therefore political views.This demanding criterion was widely applied during the protected by the First Amendment."In subsequent rulings the Court stated that Vietnam war,when,despite the largest sustained protest movement in the only active,high-ranking communists with a "specific intent"to destroy the country's history,not a single American was convicted solely because of spoken U.S.government are subject to conviction. objections to the government's Vietnam policy.(Some dissenters were found ANALY7ETH155E☒ guilty on other grounds,such as inciting to riot and disturbing the peace.) Personal Freedom vs. The "Preferred Position"Doctrine The Supreme Court distinguished,however,between verbal speech_and National security symbolic speech,"During the Vietnam period the Court upheld the conviction ng of the Since the late 190s,oourt decisions involving politic expression (other types of David Orien for buming his draft registration card on the steps of the South of Independence, of expression,such as obscenity,are a different matter,as we shall see)have Boston Courthouse.The Supreme Court acknowledged that CBrien's act had a Thomas Jefferson and John generally followed a legal doctrine outlined by Justice Harlan Fiske Stone in communicative elementthat in a way it wms political expression-but ruled Adams disagreed over the meaning of Eberty.For 1938.Stone argued that although govemment had broad discretion in certain gainst him all the same,saying that the government can prohibit action that ef任Prson.i话neant persona areas,such as economic policy,the Court should carefully scrutinize legislative threaters a fegitimate public interest as long as the main purpose in doing so is freedom.For Adams.It had attempts to restrict First Amendment rights.These rights,Stone said,should not to innibit free expression.The Court held that the federal law prohibiting the have a "preferred position"in a democratic society.If those in power can limit destruction of draft cards was designed primarily to provide for the military's free expression,they can control what people will come to know and think.For manpower needs.Yet the Court in 1989 held that burning of the American flag which personal freedom was this reason,Stone contended,laws that restrict free expression require"more was a protected form of expression,a ruling that led to widespread demand for a anly a part Since the dawn exacting [judicial]scrutiny...than most other types of legislation." constitutional amendment to ban desecration of the flag. of the atomic age,the Although the Supreme Court has not explicitly endorsed Stone's position,its n and natio decisions since the late 1950s have been consistent with the preferred position Press Freedom and Prior Restraint have doctrine regarding First Amendment rights.The judiciary has held that anything Adams and govemment officials must show that national security is directly and substan- Freedom of the press received strong judicial support during the Vietnam lefferson could have tially imperiled before they can lawfully prohibit citizens from voicing their period.In New York Timtes Co.v.Uinited Stntes (1971)the Court ruled that the imagined.How far would Times's publication of the "Pentagon papers"(seccet government documents you go in allowing government to restrict revealing official deception about the success of the United States'conduct of onal freedom for rea 354U.5.298195 No.e..90 (367 U.03 (1961) o85w7a96
96 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 97 ·ANALYZE THE ISS0E月 the war)could not be blocked by the Department of Justice,which claimed that the U.S.system of government,the Court indicated that the states were not Rights in Conflict publication would hurt the war effort.The documents had been illegally completely free to limit expression: In Nebruska Press Aseocistion obtained by antiwar activists,who had tumed them over to the Times and other Co news organizations for publication.The Court ruled that"any system of prior restraintson the press is unconstitutional unless the government can clearly For present purposes we may and do assume that freedom of speech and of the justify the restriction."The press was protected [by the First Amendment]so press-which are protected by the First Amendment from abridgement by Congress -are among the fundamental personal rights and "liberties"protected by the due that it would bare the secrets of government and inform the people,"wrote process clause of the Fourteenth Amendment from impairment by the states. crime.The judge reasoned Justice Hugo Black in a concurring opinion."Only a free and unrestrained press that the accused's tight to a can effectively expose deception in govemment." fair trial would be Having developed this new interpretation of the Fourteenth Amendment,the The unacceptability of prior restraint-goverment prohibition of speech or Supreme Court proceeded during the next decade to overturn state laws that crime publication before the fact-is basic to the current doctrine of free expression restricted expression in the areas of speech,press,religion,and assembly and How would you have ruled The Supreme Court has said that any attempt by government to prevent petition The most famous of these judgments came in the case of Near v. in this case?Can you think o expression carries"a heavy presumption'against its constitutionality."News Minnesote(1931).Jay Near was the publisher of a Minneapolis weekly newspa- er situabons in whieh rights come into confct? organizations and individuals are legally responsible after the fact for what they per that regularly made scurrilous attacks on blacks,Jews,Catholics,and labor vng ncu? report or say (for example,they can be sued by an individual whose reputation union leaders.His paper was closed down on authority of a state law that is wrongly damaged by their words),but generally government cannot stop banned "malicious,scandalous,or defamatory"publications.Near appealed Do you belleve that any righ them in advance from expressing their views. the shutdown,and the Supreme Court ruled in his favor,saying that the or rights sbould take Nevertheless,the role of the United States in a world of nuclear weapons and Minnesota law was "the essence of censorship."Chief Justice Charles Evans Bre nce over all others?If so,why? communist insurgencies creates tension between the demands of national Hughes wrote the Court's opinion:"The fact that the liberty of the press may be security and freedom of individual expression.In an exception to the doctrine of abused by miscreant purveyors of scandal does not make any the less necessary prior restraint,for example,the courts have upheld the govemment's authority the immunity of the press from previous restraint. to ban uncensored publcations by certam past and present government When the Fourteenth Amendment was debated in Congress after the Civil employees,such as CIA agents,who have taken part in classifed national War,there was no indication that its framers meant it to protect First Amend- security activities. ment rights from state action.Seventy years later the Supreme Court justified the change by reference to selective incorporation- -the absorption of certain FREE EXPRESSION AND STATE GOVERNMENTS provisions of the Bill of Rights,particularly freedom of expression,into the Fourteenth Amendment so that these rights would be protected from infringe- In 1790 Congress rejected a proposed amendment to the Constitution which ment by the states.The Court asserted that such rights are an indispensable would have applied the Bill of Rights to the states.They had their own bills of condition of American life because "neither liberty nor justice would exist if rights,and anyway,early Americans were more worried about the power of the they were sacrificed. national government than about the power of the states.Thus the freedoms guaranteed in the Bill of Rights were initially protected only from action by the national government,a constitutional arrangement that the Supreme Court Limiting the Authority of States to Restrict Expression upheld in 1833.17 A century later,however,the Court began to protect Since the 1930s,the Supreme Court has broadly protected freedom of expres- individual rights from infringement by state goverments.The vehicle for this sion from action by the states and by local governments,which derive their change was the Fourteenth Amendment to the Constitution. authority from the states.A leading free-speech case was Brandenburg v.Ohio (1969).The appellant was a Ku Klux Klan member who,in a speech at a Klan The Fourteenth Amendment and the States rally,had been recorded as saying,"If our president,our Congress,our No State shall...deprive ary Supreme Court,continues to suppress the white Caucasian race,it's possible enf，ry,ar Ratified in 1868,the Fourteenth Amendment forbids a state to deprive any that there might have to be some revenge taken."He was arrested and convicted rop中y.3 ithout due process of person of life,liberty,or property without due process of law.It was not until of advocating force under an Ohio law prohibiting "criminal syndicalism,"but Gitlow v.New York(1925).however,that the Supreme Court decided that the the Supreme Court reversed the conviction,saying that U.S.Constitution, Fourteenth Amendment applied to state action in the area of freedom f Fourteenth Amendment expression.Although the Court upheld Benjamin Gitlow's conviction for violating a New York law that prohibited advocacy of the violent overthrow of IGitlow v.New York,268 U.S.652 (1925) Fiske v.Kanses,274 U.5.30 (1927)(apeechk Nesr v.Minnesots,283 U.S.697 (1931)(pr mCo.unied 1() 78s2S6tg4e88g683 ebraska Press Ass限￥.5mm7t427U.5.5391976 smbly and petition) Barron v.Baltisore,7 Peters 243 (1833). cmeic (197)
98 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 99 lguarnsoffeepedpesso no peit to treat all groups-including those that espouse unpopular views-in accord. forbid or proscribe advocacy of the use violation except where such ance with reasonable standards advocacy is directed to inciting or producing imminent lawless action,and is likely to In sum,the Supreme Court's position on the power of state and local produce such action, govemmentstolimit free political expression is relatively straightforward:they cannot lawfully impose substantial infringements on what people may say or In a key case involving the right to assemble peaceably,the U.S.Supreme write.If anything,the Court has been less tolerant of restrictions imposed by Court in 1977 upheld a lower-court ruling against local ordinances of Skokie, states and localities because,unlike the national government,they are not Illinois,which had been invoked to prevent a parade there by the American responsible for national security and thus cannot justify limiting free expression Nazi Party.The Nazis had chosen Skokie for their assembly in order to on that basis. dramatize their message of hate:the town had a large Jewish population, including many survivors of Nazi Germany's concentration camps.The Ameri- can Nazis ultimately called off the parade,but not because they were compelled LIBEL AND SLANDER by law to do so.The Supreme Court has held that the right of free expression The constitutional right of free expression is not a legal license to avoid takes precedence over the mere possibility that a riot or some other evil might resptyfor the onsquenfwhat sdritten If infoation that result from what is said.Before goverment can lawfully prevent a speech or is known to be false and that greatly harms a person's reputation is published rally,it must show persuasively that an evil is almost certain to result from the (libel)or spoken (slander),the injured party can sue for damages.The ease or event and must also demonstrate that there is no alternative way (such as difficulty of winning such suits has obvious implications for free expression. assigning police officers to control the crowd)to keep the evil from happening. Individuals and organizations are less likely to express themselves openly if The Supreme Court has recognized.however,that freedom of assembly may they stand a good chance of subsequently losing a libel or slander suit. conflict with the routines of daily life.Accordingly,individuals do not have the A leading decision in this area is New York Timtes Co.v.Sullioan (1964),in right to hold a public rally in the middle of a busy intersection during rush hour, which the Court overruled an Alabama state court that had found the Times nor do they have the right to command immediate access to a public auditorium guilty of libel for printing an advertisement that accused Alabama officials of The Court has held that public officals can regulate the time,place,and physically abusing black citizens during civil rights demonstrations.The Court conditions of public assembly,provided that these regulations are reasonable ruled that libel of a public official requires proof of "actual malice,"which was and do not discriminate on the basis of what is likely to be said at these defined as a knowing or reckless disregard for the truth with intent to damage gatherings.Officials have an obligation to accommodate public gatherings and the official's reputation.Although later decisions refined the Court's position, this imposing standard of proof remains essentially intact today.It is very Brandenourg v.Onio,395 US.444 (1969). difficult to prove that a publication was intentionally malicious in its reporting on a public figure. A widely publicized lower federal court decision in 1985 revealed how nearly complete is the protection of the news media against libel cases brought by public figures.During Israel's invasion of Lebanon in 1983,Time magazine had reported that Israeli defense minister Ariel Sharon had tacitly consented in advance to a massacre of Palestinian refugees by Lebanese Christian forces Sharon sued Time in a U.S.court,charging that the story was false,careless,and deliberately malicious.The jury agreed with Sharon that Time had been wrong in its allegation and had been careless about trying tosertain the facts.But the jury concluded that Time had not acted with actual frialice;its basic motivation in reporting the story,the jury believed,was not to harm Sharon's reputation. Sharon therefore lost the case. The courts have made it more difficult to sue successfully for libel than for slander.Because the press acts as a surrogate for the public,the courts have reasoned that plaintiffs seeking judgments against the press for libel must meet a tougher standard of evidence than plaintiffs seeking judgments against ordinary citizens for slander.The press's range of discretion is very broad,as The Constitution guarantees the evidenced by a 1988 Supreme Court ruling that Hustler magazine did not have right of assembly,even for neo-Nazis and other fringe to pay damages to the Reverend Jerry Falwell,who had claimed emotional with un New York Times Co.v.Sulllpan,376 U.S.259 (1964)
100 PART TWO INDIVIDUAL RIGHTS CHAPTER 5*CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 101 Nicholson)that included scenes of a partially nude woman.The scenes were regarded by the Court as neither"patently offensivenor aimed at people's 'prurient interest"-two criteria the Court has used in judging obscenity.In 1987 the Court ruled that sexual material could not be judged obscene simply because local residents objected to its content.Apparently"community stan dards"must be reasonable in the broader context of society;sexual content is not in itself evidence that a book,magazine,or film is obscene.Obscenity requires sexual content of a particularly offensive type-still a rather vague criterion. Freedom of Religion Free religious expression is the precursor of free political expression,at least within the English tradition of limited government.England's Glorious,or Bloodless,Revolution of 1689 centered on the religious issue and resulted in the Formner defense minister L speaks to Act of Toleration,which gave members of all Protestant sects the right to during his lib worship freely and publicly.The English philosopher John Locke (1632-1704) magazine.(UPI/Bettmann extended this principle,arguing that legitimate government could not inhibit Newsphoto） free expression,religious or otherwise.The First Amendment reflects this tradition,providing for freedom of religion along with freedom of speech,press, distress as a result of a Hustler parody that portrayed him as having an assembly,and petition.In regard to religion,the First Amendment reads: incestuous relationship with his mother in an outhouse.The Court held that "Congress shall make no law respecting an establishment of religion,or parody was a centuries-old form of political expression that deserved judicial prohibiting the free exercise thereof.The prohibition on laws aimed at protection,even when it was in bad taste.2 'establishment of religion"(the establishment clause)and its "free exercise" The press has less protection when its target is a"private"person rather than (the free-exercise clause)applies to states and localities through the Fourteenth "public"figure such as Falwell.The courts have reasoned thaf information Amendment. About private individuals is less basic to the democratic process than informa- tion about public figures and that the press accordingly must take greater care in THE ESTABLISHMENT CLAUSE ascertaining the validity of claims about a private citizen. alf心 The establishment clause has been interpreted by the courts to mean that government may not favor one religion over another or support religion over no OBSCENITY rellgion.(This position contrasts with that of a country such as England,where Obscenity is a form of expression that-over objections by some justices,such Anglicanism is the official,or "established,"state religion,though no religion is as Hugo Black-is not protected by the First Amendment.However,the prohibited.)The Supreme Court's interpretation of the establishment clause has Supreme Court has had difficulty in defining which publicly disseminated been described as maintaining a "wall of separation"between church and state, sexual materials are obscene and which are not.The Court has struggled to which includes a prohibition on nondenominational support for religionThe 配%、 develop a standard that gives predictability to the law without endangering First Court has taken a pragmatic approach,however,permitting some establishment 内 Amendment rights. activities but disallowing others.The Court has permitted states to provide Declaring that because"what would offend the people of Maine or Mississip- secular textbooks for use by church-affiliated schools,for instance,but has pi might be found tolerable in Las Vegas or New York City,"Chief Justice forbidden states to pay part of the salaries of teachers in church-affiliated Warren Burger wrote in Miller v.Calforia (1973)that obscenity must be judged schools.Such distinctions follow no strict logic but are based on judgments of by "contemporary community standards."The Court has also reasoned, whether government action involves"xe entanglement with religion. however,that local standards cannot be the sole criterion of obscenity.In jexkins v.Georgin(1974),for example,the Court overturned a local court's conviction of a theater owner who had shown a film (Carnal Knowledge,starring Jack auf,Wall of Separatiou:The Canstirstional Politics af Church and State (Princeton Felmell,108 S.Ct.876 (198B) 36196. 6021971i bid
102 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 103 a nondenominational prayer to be recited in the public schools at the start of each day.Even though no particular religion was favored in the prayer,the Court concluded that the prayer promoted religion over nonreligionA year later the Court struck down Bible readings in public schools. Religion is a strong force in American life,and the Supreme Court's position on school prayers has had strong opposition,particularly from Protestant fundamentalists.A recent attempt to circumvent the prayer ruling was an Alabama law permitting the public schools to set aside one minute each day for silent prayer or meditation.In 1985 the Court voted 6-3 to declare Alabama's minute of silence unconstitutional,ruling that "government must pursue a Government mist pursue 8 course of complete neutrality toward religion."Whether the Supreme Court course of complete4中aity would invalidate a silent-meditation law that was less clearly religious in its toward religion. intent than Alabama's is an open question that is sure to be tested in future US.Supreme Court cases. Wailace v.Iefree (1985) Advocates of school prayer have pressured Congress to propose a constitu tional amendment permitting some form of prayer in the public schools.In 1984 Under the Flest Amendment, the U.S.Senate rejected by eleven votes a school-prayer amendment that had Ame are free to prac the support of President Ronald Reagan.A change in the constitutional status of any religion,or no religion.(B religion might also come about through changes in the Supreme Court's Stanton/Magnum) membership.Chief Justice William Rehnquist and three other current justices (Byron R.White,Sandra Day O'Connor,and Antonin Scalia)have indicated a In allowing public funds to be used by religious schools for secular textbooks willingness to lower some of the barriers between church and state,although but not for teachers'salaries,the courts have indicated that,whereas it is not one advocates that they be eliminated completely. relatively easy to ascertain whether the content of a particular textbook promotes religion,it would be much harder to determine whether a particular teacher was promoting religion in the classroom. THE FREE-EXERCISE CLAUSE The Court has developed a three-point test that a law providing aid to religion The First and Fourteenth amendments also prohibit governmental interference must pass to be considered constitutional:First,the main purpose of the aid with the"free exercise"of religion.The idea behind the free-exercise clause is must be secular and not religious;second,the main effect of the assistance must clear:Americans are free to hold any religious belief they choose. not be to promote one religion or religion per se;and third,the aid must not Although people are free to believe what they want,they are not always free to excessively involve the government in religion."These restrictions do not,for act on their beliefs.The courts have tolerated govemment interference with the example,allow substantial government grants to religious schools but do permit exercise of religious beliefs when such interference is the secondary result of a lesser contributions under some circumstances,such as the provision of secular compelling and overriding social goal.An example is the legal protection of textbooks and copies of standardized examinations.Some of the Court's children with life-threatening illnesses whose parents refuse on religious applications of the three-point test have been controversial.The Court in 1983, grounds to permit medical treatment.A court may order that such children be for instance,upheld a Minnesota law allowing parents a tax deduction for given medical assistance because the social good of saving their lives overrides certain school expenses,including tuition,incurred by their children.The Court their parents'free-exercise rights.And in 1986 the Supreme Court concluded reasoned that,because the tax deduction was available to parents with children that military regulations requiring standard headgear took precedence over an in either public or private (including nonreligious)schools,the law's purpose Orthodox Jewish serviceman's practice of wearing a yarmulke.s was not to support religion.Opponents claimed that the law promoted religion In some circumstances exceptions to certain laws have been permitted on because the parents of public school children,who pay no tuition,were entitled free-exercise grounds.The Supreme Court ruled in 1972 that Wisconsin could to smaller tax deductions than parents who paid tuition to send their children to not compel Amish parents to send their children to school beyond the eighth private schools,most of which were affiliated with a church. grade because this policy violated a centuries-old Amish religious practice of Since the early 1960s,the Court has held that the establishment clause having children leave school and begin work at an early age.The Court has prohibits the saying of prayers in public schools.In the Engel (1962)case,the Court ruled against the Board of Regents of New York State,which had written E5l.V和lg,37元U.5421(1962) MAbixglou School Distric!v.Sclempp,374 U.S.203 (1963). "Ibid. "lace.re%,472US.38(1985). "Mueiler v,Allen,463 U.S.388 (1983). Goidman v.Weixberger,475 U.S.503 (1986). Ws0s作V,md,406U.52950972
104 PART TWO+INDIVIDUAL RIGHTS CHAPTER 5*CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 105 also held that Quakers,unlike adherents of most other religions,cannot be legal reason for the detention.If the reason is inadequate,the court must order compelled to serve in the military because their religious doctrine encompasses ANAL4PH压巧5UF the prisoner's immediate release.The Fifth and Fourteenth amendments a conscientious objection to war.In upholding free exercise in such cases,the provide generally that no person can be deprived of life,liberty,or property The Rights of the Accused Court may be said to have violated the establishment clause by granting without due process of law.And specific procedural protections for the accused On January 24. ,Ted preferred treatment to people who hold a particular religious belief.The Court ndy,a serial killer are spelled out in the Fourth,Fifth,Sixth,and Eighth amendments: convicted of murdering three has recognized the potential conflict between the free-exercise and establish- young women and suspected ment clauses and,as in other such situations,has tried to strike a reasonable The Fowrth Amendmenf forbids the police to conduct searches and seizures unless they in the deaths of as many as balance between the competing claims. have probable cause to believe that a crime has been committed. 100 more,died in Forida's When the free-exercise and establishment clauses cannot be balanced,the electric chalr.He had been on Supreme Court has been forced to make a choice.In 1987 the Court ruled The Fifth Amendment protects against double jeopardy (being prosecuted twice for the same offense)and self-incrimination (being compelled to testify against oneself). and his i unconstitutional a Louisiana law requiring that creationism(the Bible's account and legal appeals had of how the world was created)be taught along with the theory of evolution in The Sirth Amendment provides the right to have legal counsel,to confront witnesses,to the state of Flocida several public school science courses.Creationism,the Court concluded,is a religious receive a speedy trial,and to have a trial by jury in criminal proceedings. million dollars.Is Americn's doctrine,not a scientific theory;thus its inclusion in public school curricula The Eighth Amendmenf protects against excessive bail or fines,and prohibits the engthy and elaborate appeals violates the establishment clause by promoting a religious belief.Creationists process too costly?Does it infliction of cruel and unusual punishment on those convicted of crimes. viewed the Court's decision as a violation of their right to the free exercise of beeve that the ey can get religion;they claimed that their children were being forced to study a theory, evolution,that contradicts the Bible's account of the origins of the human race. Defining Procedural Protections away with crime?These guestions are often asked,but These procedural protections have always been subject to interpretation.The are they the mast important ones?Should protection of Fourth Amendment,for example,protects people against "unreasonable the innocent be the Rights of Persons Accused of Crimes searches"of their persons,homes,and belongings.In a 1968 decision,the Supreme Court said that a determination of whether a search was "reasonable" said thatit is Every society must protect itself against wrongdoers,but not all societies have could be based only on the concrete facts of the individual case."The concerned themselves with protecting the innocent.All too many societies have admissibility in court of evidence obtained in an unreasonable search has also Persons go free than to not been above using force to liquidate political opposition.To cite just one convict ane innocent petson. varied.In Weeks v.United States (1914),the Court formulated the exelusionary If the price of justice really is recent example:in the early 1980s more than 10,000 people,many of them rule,which prohibits the use in federal trials of evidence obtained by illegal 100 lo I do vou think it is college students whose"offense"had been merely to question the legitimacy of search and seizure.In subsequent decades,the Supreme Court expanded the too high or too low? The history of liberty has Argentina's military dictatorship,simply "disappeared."They were seized by application of the exclusionary rule,but,in the 1980s,restricted the rule's largely been the his the policeor military authorities and,without even a pretext of being formally application,concluding that in some circumstances illegally obtained evidence 电的方说4东-年不 abserunce of procedural charged with any crime,were summarily tortured and killed.It is no wonder can be admitted in trials if the procedural errors are small,inadvertent,or ir过5. guarantees. that Justice Felix Frankfurter once wrote:"The history of liberty has largely been ultimately inconsequential. Justice Felix Frankfurter the history of the observance of procedural guarantees. Allowing the States to Differ.At first,the exclusionary rule applied only to PROCEDURAL DUE PROCESS federal cases.States in their criminal proceedings were not bound by the rule Nor were states compelled,as was the federal government,to provide Due process of law is rooted in the idea of ensuring justice for all,with special attorneys for felony defendants who could not afford to pay for legal counsel. emphasis on persons accused of crimes."Due process"refers to legal protec- There were limited exceptions,such as a 1932 ruling that a defendant charged in tions that have been established to preserve the rights of individuals.The most a state court with a crime carrying the death penalty had to be provided with an significant form of these protections is procedural due process;the term refers attorney."The Court's general position,however,was that the states them primarily to procedures that authorities must follow before a person can selves could decide what procedural rights their residents would have. legitimately be punished for an offense.(A second form,substantive due process, A noteworthy case was Palko v.Comnecticut (1937).A Connecticut court had is discussed in the next section.) convicted Frank Palko of killing two policemen,and he was sentenced to life The U.S.Constitution provides for several procedures designed to protect a mprisonment.But Connecticut had a statute that permitted law-enforcement person from wrongful arrest,conviction,and punishment(see box).A person has,according to Article I,section 9,"the privilege of the writ of habens corpus." Any person taken into police custody is entitled to seek such a writ,which requires law-enforcement officials to bring him or her into court and state the m9出翠器6 0453i914 "McNabb v.Uxited Stales,318 U.5.332 (1943)
CHAPTER 5+CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 107 PROCEDURAL DUE-PROCESS RIGHTS IN ACTION: A HYPOTHETICAL CASE legal errors had been made at the trial.The authorities had wanted Palko to receive the death penalty,so they appealed the decision.Palko was tried again Perhaps the best way to illustrate how procedural due to make bail,unless the judge has adequate evidence to on the same charges,and this time e was sentenced to death.He appealed to the prooess rights protect the individual is to present a believe that they will not appear for trial or are dangerous U.S.Supreme Court,claiming that Connecticut's second trial violated his right hypothetical case.Let us say that John O.Student has to others. not to be tried twice for the same crime.The Fifth Amendment to the U.S. been selling illegal drugs on campus.In order for the Under the Sixth Amendment,Mr.Student is entitled to Constitution prohibits double jeopardy,and so do many state constitutions,but police to arrest Mr.Student legally,they must have a "speedy trial."But court backlogs and assorted other at the time Connecticut's did not.The Supreme Court refused to overtum 'probable cause"to do so-some indication that a crime Palko's second conviction,and he was executed. has commited,such as evidence delays can trial back as muchsa year after an arrest.Jury trials are required(Sixth Amendment) Justice Benjamin Cardozo wrote the Court's Palko opinion,which stated that Linking Mr.Student to drug sales.If the police apprehend for serious crimes unless that right is waived by the the Fourteenth Amendment protects rights"fundamental"to liberty but not Freedom of expression is the Mr.Student merely because they wonder how he got the defendant.Most juries consist of twelve persons.On the money to pay for the new sports carhe is driving and then federal level and in most states,a unanimous jury verdict other rights provided in the Bill of Rights.Free expression is a"fundamental" happen to discover evidence of drug trafficking,he may is needed for a conviction.At his trial,Mr.Student cannot right,since it is "the indispensable condition of nearly every other form of condition,of nearly every other Torw of freedom. svoid conviction on the grounds that his Fourth Amend- be forced to give testimony against himself (Fifth Amend- freedom."Some procedural due-process rights,such as protection against Benjamin Cardozo,Palko ment protection against illegal search and seizure has ment)and has the right to confront witnesses against him double jeopardy,are not in the same category,Cardozo claimed. V,Connecticut(193刀 een violated. When Mr.Student is arrested,the police m (Sixth Amendment).There are also prohibitions on the nay search for bythe prosecution obtained Selective Incorporation of Procedural Rights.Not until the 1960s did the evidence,although the extent of this search is subject to evidence (Fourth Amendment),although the Supreme Court broadly require states to safeguard procedural rights.The Court"incor- Fourth Amendment limitations.In general,the Supreme Court has held that the area that can be searched withou Court has relaxed this ban in certain instances,such as porated"Bill of Rights protections for the accused in state courts by ruling that when the evidence would eventually have been discov- these protections are covered by the Fourteenth Amendment's guarantee of due a warrant is limited to the suspect's person and the cred anyway. immediate area,and then only to preserve the evidence process of law (see Table 5-1).This incorporation process began with Mappv. and to protect the arresting officers from harm.Ordinarily, If Mr.appeal the verdict to a higher court.While the Constitution does not guarantee Ohio (1961).Doliree Mapp's home had been entered by Cleveland police,who. pollce should have a search warrant to look for evidence an appeal after conviction,the federal govemment and all though they failed to find the drugs they were looking for,did discover some in a suspect's house or place of business;to obtain such a states permit at least one appeal.The Supreme Court has pornographic material.Mapp's conviction for its possession was overtumed by warrant,o to a judge and show probable ruled that the appeal process cannot discriminate against the Supreme Court on the grounds that she had been subjected to unreasonable cause. search and seizure With this decision,the Court extended the exclusionary After Mr.Student has been arrested,police int poor defendants.At a minimum,goverment must pro rule to state trial proceedings. tion should not begin until he has been informed of his vide convicted persons unable to pay the coss of an appeal with free legal counsel and transcripts of the rights,including the right to remain silent (Fifth Amend- original trial h.,.302U5.319(193 ment)and the right to have an attorney present(Sixth The Constitution limits the punishment that Mr.Stu- .hi,357U.5.6431961). Amendment).Mr.Student also has the right to be brought dent can be given for his crime.The Eighth Amendment before a judge without undue delay and informed of the charge against him.If he Mr.Student can apply for forbids"cruel and unusual punishment,"a provision that the Supreme Court cited in 1972 when it temporarily halted the death penalty because the states were imposing TABLE 5-1 The Supreme Court's Application of the Bill of Rights Mr.Student also has the right to seek reasonable bail to the States:Leading Cases it arbitrarily.A few years later,the Court declared that the (Eighth Amendmen)basedon the Y四 severity of the alleged crime and the likelihood that the death penalty as suchwasy permissible. Our discussion of Mr.Student's case presumes that all accused person will return for trial if he or she is released on bail respected by the police and the GiHaw v.New York 1925 Flrst Amendment's applicability to If Mr.Student is charged with a federal crime,an However,there is often a marked difference between procedural rights and actual practices.For example.police Fiske v.Kanses 1927 indictme ust be handed down by agand jury,which Proe speech hears evidence from the prosecution and determines sometimes conduct sweep searches,frisking people on the Near v.Minneaota 1931 street without having any reason to believe they have Free press whether this evidence is strong enough to suggest that Mr. Dejange v.Oregon 1937 committed a specific crime.A person found to be car Freedom of assembly and of Student has indeed violated the law and should be yig a concealed w indicted to stand trial.Most states do not make extensive to propertyrdrugs is likely to petition Cantult v.Coeclicut 1940 be arrested,tried,and convicted,for it is very difficult to Religious freodom use of the grand jury;rather,they let prosecutors directly Mapp v.Ohio fle a bill of information with a court,detailing the charge prove in court that the pollce had no reasonable basis for 1961 Unreasonable search and seizure the search that led to the arrest. Gideon v.Wuimsoright 1963 Right to counsel and the evidence.After an indictment,the ball decision is Mailoy v.Hogon 1964 Self-incrimination reviewed by the court.In more serious cases,bail can be Pointer v.Texes 1965 revoked if it has not already been denied.In federal cas ment which informns this Right to confront wimnesses Miranda v.Arizons the Bail Reform Act of 1966 requires that accused persons be released on their own recognlzance if they are unable 会 1966 Self-incrimination Klopfer v.Nartk Carolina 1967 Speedy trial Duncsn v.Louisitn 1968 Jury trial in criminal cases Bentow v.Marylend 1969 Doable joopardy