FREEDOM: THE STRUGGLE FOR CIVIL LIBERTIES

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Chapter 15

• FREEDOM THE STRUGGLE FOR CIVIL LIBERTIES

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Campus 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.

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• 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.

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Civil 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.

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• 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.

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• 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

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• 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.

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The 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.

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Rights 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.

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• 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)

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• 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.

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• 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.

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Twentieth-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

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Nationalization 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.

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Selective 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.

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• 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
  Courts opinion in U.S. v. Carolene Products
  Company (1938).
• Three classes of suspect state actions bring
  strict scrutiny.

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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.

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Incorporation 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)

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Offensive 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.

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Incorporation 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

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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.

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Incorporation 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)

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• 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)

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School 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

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Unstated 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.

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Incorporation 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.

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• 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

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Rights of the Accused

• Unreasonable Searches and Seizures
• Mapp v. Ohio exclusionary rule
• Murray v. United States - exception

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• Self-incrimination
• Miranda v. Arizona
• Miranda warnings

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• The Right to Counsel
• Powell v. Alabama state capital cases
• Gideon v. Wainwright state non-capital cases

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• Capital Punishment
• Furman v. Georgia (Cruel and Unusual punishment)
• Gregg v. Georgia
• McCleskey v. Kemp