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)