Chapter 15Chapter 15

FREEDOM: THE STRUGGLE FOR CIVIL LIBERTIES

Campus Speech Codes and Free SpeechCampus Speech Codes and Free Speech

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

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

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

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

Civil Liberties in the ConstitutionCivil Liberties in the Constitution

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

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

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

Constitutional liberties– The original Constitution specifically

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

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

The framers singled out a few crucial freedoms.

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

Prohibition against passing bills of attainder

Prohibition against passing ex post facto laws

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

The changing impact of the ConstitutionThe changing impact of the Constitution

– Many of the freedoms we expect today are not specifically mentioned in the Constitution.

– Many of our rights and liberties were established in decisions by government officials and changes made by judges, political leaders, and groups.

– Some of our rights have evolved as the culture has changed or through partisan and ideological competition.

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

Property rights in the early republic– Among the protections of liberty that were

mentioned in the original Constitution was one that concerned the use of private property: states are prohibited from impairing the obligation of contracts.

– The primacy of property over other rights and liberties was reinforced by more than a century of judicial interpretation.

Property rights in the Marshall Court (1801-1835)– The Bill of Rights did not apply to the states.

Barron v. Baltimore (1833) Property rights in the Taney Court (1836-1864)

– Favored property used in ways that encouraged economic growth over simple enjoyment of property

– Property rights in human beings Dred Scott v. Sandford (1857)

Property rights after the Civil War– The Fourteenth Amendment was

designed to guarantee the citizenship rights of the newly freed slaves.

– The due process clause of the Fourteenth Amendment says that no state may “deprive a person of life, liberty, or property, without due process of law.”

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

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

Twentieth-Century ChangesTwentieth-Century Changes

In the twentieth century, new approaches to property rights, civil rights, and political liberties were triggered by several factors.

Structural transformations in the economy and culture

Efforts of new political groups and movements

Actions of government officials

Nationalization of the Bill of RightsNationalization of the Bill of Rights

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

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

Selective IncorporationSelective Incorporation

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

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

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

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

Standards for incorporation– What standard does the Supreme court use

in deciding whether or not to incorporate some portion of the Bill of Rights?

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

– Three classes of suspect state actions bring strict scrutiny.

Freedom of speech became the first area of incorporation.Freedom of speech became the first area of incorporation.

Although the Court upheld the conviction of Benjamin Gitlow under the New York Criminal Anarchy Law, the majority held that the state of New York was bound by the First Amendment.

Gitlow v. New York, 1925 Freedom of speech grew in later years to such an

extent that far more speech is covered than is not. Despite these extensions on freedom of

expression, there are still limitations. A major exception to the expansion of freedom of

expression has resulted from concern for internal security.

Incorporation of Freedom of the PressIncorporation of Freedom of the Press

In an aside in the Gitlow case, the Court included freedom of the press as a freedom guaranteed against state interference by the Fourteenth Amendment

Near v. Minnesota (1931) A major expansion of freedom of the press

protected newspapers against trivial or incidental errors when they were reporting on public persons.

New York Times v. Sullivan (1964)

Offensive Mass MediaOffensive Mass Media

The courts have held that obscenity is not protected by the First Amendment, but the distinction between art and obscenity can be difficult to draw.

Some feminist activists have tried to broaden the term obscenity to include communication that degrades women.

Many Americans now have concerns about the availability to minors of sexually offensive material on the Internet.

Incorporation of the Free Exercise of ReligionIncorporation of the Free Exercise of Religion

The First Amendment includes two provisions concerning religion.

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

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

For much of our history, the exercise of religion was not limited.For much of our history, the exercise of religion was not limited.

– The flag salute cases involved state laws that provided for expelling public school children who refused to salute the flag and recite the Pledge of Allegiance.

– The core of the nationalized free exercise clause is that government may not interfere with religious beliefs.

– Religious actions are not absolutely protected, and the Court has upheld some state laws limiting certain religious practices.

Incorporation of the Establishment ClauseIncorporation of the Establishment Clause

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

Everson v. Board of Education (1947)

McCollum v. Board of Education (1948)

Zorach v. Clauson (1952)

– The Warren Court (1953-1969) brought together a solid church-state separationist contingent whose decisions the early Burger Court (1969-1973) distilled into the major doctrine of the establishment clause. Lemon v. Kurtzman (1971)

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

(1995)

School PrayerSchool Prayer

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

Engel v. Vitale (1962) Lee v. Weismann (1992)

There have been some areas where the Court has ruled in favor of religious groups.

Permitted religious groups to meet in public schools

Allowed students to pray on their own or in unofficial study groups

Unstated RightsUnstated Rights

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

Griswold v. Connecticut (1965) Debate still continues over whether

there is a constitutionally protected right to privacy.

Incorporation of Rights of the AccusedIncorporation of Rights of the Accused

Balancing individual rights with protection of the community– During the 1950s and 1960s, the Warren Court

favored the due process approach.– Many political candidates blamed the rising crime

rate on legal technicalities and increased protections for criminal defendants.

– Republican domination of the White House between 1968 and 1993 resulted in federal judges who have been appointed by presidents who “ran against the courts” on the issue of criminal procedure.

A gradual shift to higher regard for crime control than due process has reshaped constitutional interpretation.– Warren Court (1953-1969) — expanded due

process; preferred constitutional guarantees to efficient law enforcement

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

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

Rights of the AccusedRights of the Accused

Unreasonable Searches and Seizures

– Mapp v. Ohio – exclusionary rule

– Murray v. United States - exception

Self-incrimination

– Miranda v. Arizona

– Miranda warnings

The Right to Counsel

– Powell v. Alabama – state capital cases

– Gideon v. Wainwright – state non-capital cases

Capital Punishment

– Furman v. Georgia (Cruel and Unusual punishment)

– Gregg v. Georgia

– McCleskey v. Kemp