Chapter 15: Order and Civil Liberties 1
CHAPTER 15
Order and Civil Liberties
Learning Objectives
After reading this chapter, students should be able to do the following:
1.Define the key terms at the end of the chapter
2.Distinguish between civil liberties and civil rights
3.Explain how the “establishment clause” of the First Amendment has been interpreted in cases involving aid to church-related schools, prayer in public schools, religious displays on public property, and the use of public school facilities by student religious groups
4.Show how the “free exercise clause” of the First Amendment has been applied to the issues of working on the Sabbath and the use of drugs as a sacrament
5.Describe the two approaches developed by the Supreme Court to deal with cases involving the free expression clause of the First Amendment
6.Outline the evolution of the clear and present danger test
7.List the major exceptions to the First Amendment’s protection of freedom of speech
8.Discuss prior restraint, libel, and censorship as possible limitations on press freedom in America
9.Explain the various challenges that the Internet poses to balancing freedom and order, both in the United States and around the world
10.Explain how the Fourteenth Amendment has been used to extend the protections of the Bill of Rights to citizens in cases involving the states, citing specific examples
11.Explain where the Supreme Court found the right to privacy in the Constitution and show how the right has been applied in cases involving abortion, birth control, and homosexuality
Chapter Synopsis
The Bill of Rights of the Constitution gives individuals a wide range of civil liberties designed to protect them against the power of the state. The interpretation of how these civil liberties should be protected has involved a clash between government-imposed order and freedom. The courts, especially the Supreme Court, have the power to resolve societal controversies over values involving civil rights. However, government at all levels can, and does, create rights through laws written by legislatures and regulations issued by bureaucracies.
The First Amendment of the Constitution protects individuals from government laws that interfere with the freedom of religion and freedom of expression. With respect to religion, government has set out to establish a wall of separation between church and state. The Supreme Court has interpreted the establishment clause in the First Amendment in such a way that government is prevented from giving assistance to religious institutions. Over the years, however, indirect and incidental assistance of parochial schools has been tolerated. Since the Supreme Court handed down its decision in Lemon v. Kurtzman (1971), state funding of religious programs must pass a stringent test of noninterference with religion. The free exercise clause of the First Amendment protects religious beliefs, but not actions based on those beliefs. Thus, government is allowed to regulate antisocial behavior that stems from a constitutionally protected right.
Freedom of expression is one of the vital characteristics of a democratic system. The freedom of expression clause of the First Amendment confers the right to unrestricted public discourse that does not threaten public order. The Supreme Court has defined the kinds of behavior that constitute a threat to public order through the clear and present danger test. Over the years, the Court has expanded the latitude of political expression that does not present real danger to society. Symbolic expression, such as wearing black armbands to protest the Vietnam War, has been protected by the Court. There are two noted exceptions to freedom of speech. “Fighting words” are defined as utterances designed to “inflict injury or [that] tend to incite an immediate breach of the peace” and are not subject to First Amendment protection. Obscenity is also excluded from constitutional protection. The First Amendment also guarantees that government will not interfere with the freedom of the press. There are limitations on this freedom. Public officials or public figures can institute a lawsuit against the press for libel. The Sullivan case, however, established that “actual malice” must be proved before libel can be upheld. Prior restraint, or censorship, by the government is permissible under exceptional circumstances that are not specified by the Court. Another limitation on freedom of the press exists in the conflict between the needs of law enforcement and those of a free press.
Free speech issues have become increasingly complicatedand taken on a global dimensionwith the growth of the Internet. The Court tends to view the Internet as having the same privileges that are given to the press, but the transmission of hate speech and obscenity pose new questions, particularly because of their availability to minors. Only with the passing of the Fourteenth Amendment did the Bill of Rights become applicable to the states. The incorporation of the individual guarantees in the Bill of Rights under the due process clause of the Fourteenth Amendment was a slow, painful process. The landmark decision in Palko v. Connecticut (1937) interpreted the due process clause to include only “fundamental” rights. In the thirty years after Palko, however, almost every aspect of the Bill of Rights was accepted as a fundamental right.
The incorporation of constitutional procedural safeguards to be used by the states in criminal prosecution has dramatically changed the U.S. criminal justice system in the last thirty years. In several decisions, the Supreme Court required the states to provide trial by jury in criminal cases; a lawyer to criminal defendants; protection against self-incrimination, through the Miranda warnings; and freedom from unreasonable searches and seizures, through the exclusionary rule.
The Supreme Court has expanded the rights of individuals beyond those explicitly enumerated in the Constitution. For instance, the Court has asserted people’s right to privacy in making choices about contraception and reproduction. The protection of a woman’s decision to have an abortion during the first three months of pregnancy, granted by the Supreme Court in Roe v. Wade (1973), was the most controversial result of the extension of the right to privacy. Through Webster v. Reproductive Health Services (1989) and other recent decisions, the Court has moved down the road toward greater government control of abortion policy.
In Bowers v. Hardwick (1986) the Court restricted the right of privacy to only heterosexual choices, thus placing homosexual choices outside constitutional protection. The Court reconsidered this decision in Lawrence and Garner v. Texas (2003), acknowledging that “an emerging awareness … gives substantial protection to adult persons in deciding how to conduct their private lives.” State-by-state efforts to give homosexual commitments the same status as heterosexual marriage have occurred, though current national legislation does not require states to honor non-heterosexual marriages.
Cases like Roe and Griswold are disturbing to democratic theory: they remove policymaking from the legislative arena and place it in the hands of the courts, where the will of the people need not be taken into consideration. Under the current system, though, the judicial branch will continue to play a major role in balancing freedom and order.
Parallel Lecture 15.1
I.The Bill of Rights
A.The failure to include a bill of rights was the most important obstacle to the adoption of the Constitution.
1.Imposed limits on the national government, but not on the state governments
2.Adoption of Fourteenth Amendment (1868) began process of extending restraints to the states
B.The Constitution guarantees Americans numerous liberties and rights.
1.Civil liberties: freedoms guaranteed to the individual.
a)Declare what the government cannot do
b)“Negative rights”
2.Civil rights: powers and privileges guaranteed to the individual and protected against arbitrary removal at the hands of government or individuals.
a)Examples: right to vote, right to a jury trial
b)“Positive rights”
3.“The rights and liberties of the Constitution”: the Bill of Rights and the first section of the Fourteenth Amendment.
C.Additional distinctions
1.Persons possess rights.
2.Governments possess powers.
3.Privilege: a behavior that government may lawfully regulate.
4.No right is absolute.
5.Government limitations on rights require a higher burden of proof and must be minimal in scope.
II.Freedom of religion
A.The First Amendment prevents government from interfering with religion.
1.Establishment clause: the first clause in the First Amendment, which forbids government establishment of religion.
2.Free-exercise clause: the second clause in the First Amendment, which prevents the government from interfering with the exercise of religion.
3.Supreme Court has refused to interpret these causes definitively
a)Freedom to believe is unlimited; freedom to practice a belief may be limited.
b)Religion cannot benefit directly from government actions, but may benefit indirectly.
B.The establishment clause
1.The Supreme Court has consistently held that the establishment clause requires government to maintain religious neutrality, but does not bar all assistance that incidentally aids religious institutions.
2.Government support of religion
a)1879: Court contended establishment clause erected “wall of separation between church and State”
b)Wall breached (1947): Court upheld program that provided free transportation to parochial school students
c)Further breach (1968): Court upheld program allowing parochial school students to borrow state-purchased textbooks
d)Lemon v. Kurtzman (1971) struck down state program to pay salaries of parochial school teachers teaching secular subjects.
(1)Three-pronged test for determining constitutionality under establishment clause:
(a)Program must have a secular purpose
(b)Primary effect should not be to advance or inhibit religion
(c)Must not excessively entangle government and religion
(2)Lemon test governed Court’s interpretation of such programs for twenty-five years
e)Agostini v. Felton (1997) loosened application of the “Lemon Test.”
(1)New York public school teachers could teach remedial education to disadvantaged students in New York parochial schools at taxpayer expense.
(2)Only government neutrality toward religion was required.
(3)Only excessive entanglements violated the establishment clause.
f)Zelman v. Simmons-Harris (2002) upheld school voucher program in which secular and sectarian schools could participate.
3.Display of religious artifacts on public property
a)Lynch v. Donnelly (1984)
(1)Nativity scene displayed with commercial Christmas symbols had secular purpose: celebration of national holiday.
(2)Display of nativity scene did not have primary effect of benefiting religion.
(3)Display led to no excessive entanglement of religion and government.
b)Proliferation of closely decided cases testing limits of government-sponsored religious displays since Lynch
4.School prayer
a)Court has consistently equated prayer in public schools with government support of religion.
b)Religious training as after-school activity now constitutional (2001)
5.The problem of the establishment clause
a)Support for all religions come at the expense of nonreligion—but poses the least risk to social order.
b)Tolerance of dominant religion at expense of other religions risks minority discontent.
c)Support for no religion risks majority discontent.
C.The free exercise clause
1.Inherent tension between establishment clause and free exercise clause
a)Does the free exercise clause require government to grant exemptions from legal duties that conflict with religious obligations?
b)Does the free exercise clause guarantee only that the law will be applicable to religious believers with discrimination or preference?
2.Justices have distinguished between religious beliefs and actions based on those beliefs.
3.Working on the Sabbath
a)Sherbert v. Verner (1963): First Amendment protects religious observance as well as belief.
b)Strict scrutiny: a standard used by the Supreme Court in deciding whether a law or policy is to be adjudged constitutional; the law or policy must be justified by a “compelling governmental interest,” as well as being the least restrictive means for achieving that interest.
4.Using drugs as sacraments
a)Clash between religious freedom and social order
b)Employment Division v. Smith (1990)
(1)Change in reasoning from “compelling government interest”
(2)Argued that Court has never held that an individual’s religious beliefs excuse him or her from compliance with an otherwise valid law prohibiting conduct that government is free to regulate
(3)Rejected strict scrutiny standard
(4)Only laws aimed at religious groups are constitutionally prohibited.
c)Employment Davison v. Smith allowed for scores of government actions infringing on religious exercise.
(1)Resulted in creation of a coalition of religious and non-religious groups to restore the strict scrutiny test
(2)Group pressed for Religious Freedom Restoration Act (1994) that required state and local governments to satisfy strict scrutiny standards
d)City of Boerne v. Flores (1997)
(1)Declared federal enforcement of RFRA over state and local governments unconstitutional
(2)RFRA still binding in federal law
III.Freedom of expression
A.Free expression clauses: the press and speech clauses of the First Amendment.
1.Dominant view: clauses confer a right to unrestricted discussion of public affairs.
2.Alternative views
a)Few, if any, of the framers clearly understood the clauses.
b)First Amendment does not rule out prosecution for seditious statements
3.Subtle restriction on the clauses: social pressure
4.Clauses bar prior restraint: censorship before publication
5.Approaches to resolution of claims based on free-expression clauses
a)Government may only regulate or punish advocacy of ideas if it can prove an intent to promote lawless action and demonstrate a high probability that such action will occur.
b)Government may impose reasonable restrictions on the means for communicating ideas that may incidentally discourage free expression.
B.Freedom of speech
1.Clear and present danger test: a means by which the Supreme Court has distinguished between speech as the advocacy of ideas, which is protected by the First Amendment, and speech as incitement, which is not protected.
a)Develop in Schenck v. United States (1919)
b)Gitlow v. New York (1925): the Court assumed First Amendment speech and press provisions applied to the states through the due process clause of the Fourteenth Amendment.
c)“Clear and present danger” broadened to “grave and probable danger” in 1951
d)Brandenburg v. Ohio (1969): the Court offered wider latitude for expression of political ideas by declaring that threatening speech is protected by the Constitution.
2.Symbolic expression
a)Symbolic expression: nonverbal communication.
b)Generally receives less protection than pure speech
c)Courts have upheld certain types of symbolic expression
d)Tinker v. Des Moines Independent County School District (1969)
(1)Court overturned the suspension of three high school students
(2)Principal failed to show how forbidden conduct would substantially interfere with school discipline
3.Order versus free speech: fighting words and threatening expression
a)Chaplinsky v. New Hampshire (1942)
(1)Chaplinsky convicted for calling a city marshal a “damned fascist”; Supreme Court upheld conviction
(2)Fighting words: speech that is not protected by the First Amendment because it inflicts injury or tends to incite an immediate disturbance of the peace.
b)Court narrowed definition of fighting words in Terminiello case (1949)
c)Cohen v. California (1971)
(1)Court recognized “one man’s vulgarity is another’s lyric”
(2)Protected two elements of speech
(a)Expression of emotion
(b)Expression of ideas
d)Free speech and the Web
(1)Communications Decency Act (1996)
(a)Made it a crime for person to circulate “patently offensive” sexual material to websites accessible to minors
(b)Act was declared unconstitutional
(2)Reno v. ACLU (1997)
(a)Court argued that the Internet was more analogous to print media than to television
(b)Deserved broad First Amendment protection
4.Free speech versus order: obscenity
a)Obscene material is outside the bounds of constitutional protection.
b)Difficulties arise in determining what is obscene.
c)In Miller v. California (1973), the Court declared that a work is obscene if:
(1)Taken as a whole, it appeals to prurient interest
(2)It portrays sexual conduct in a patently offensive way
(3)Taken as a whole, it lacks serious literary, artistic, political, or scientific value
C.Freedom of the press
1.The First Amendment guarantees that government will not interfere with the freedom of the press.
2.Defamation of character
a)Libel: written defamation of character.
b)New York Times Co. v. Sullivan (1964)
(1)Supreme Court declared that freedom of the press takes precedence over the rights of public officials suing for libel
(2)First Amendment protects publication of all statements about the conduct of public officials, except statements made with actual malice
3.The Court has extended the concept of freedom of the press to protect publishers against suits from any public figures.
a)Public figures: people who assume roles of prominence in society or thrust themselves to the forefront of public controversy.
b)All public figures must show actual malice on the part of the publication.
c)Free speech protects even outrageous and offensive criticism of public figures
4.Prior Restraint and the press
a)Near v. Minnesota (1931)
(1)Declared that prior restraint places unacceptable burden on free press
(2)Acknowledged that prior restraint may be permissible in exceptional circumstances, but did not specify those circumstance
b)New York Times v. United States (The Pentagon Papers) (1971)
(1)Daniel Ellsberg delivered portions of classified U.S. Department of Defense documents to the New York Times and the Washington Post.
(2)Department of Justice sought to restrain publication
(3)Court concluded that government had not met the burden of proving immediate, inevitable, and irreparable harm would follow publication of documents
5.Freedom of expression versus maintaining order
a)Courts have consistently held that freedom of the press does not override the requirements of law enforcement.
b)Educators may limit speech within the confines of the school curriculum if their actions serve any “valid educational purpose.”
D.The rights to assemble peaceably and to petition the government
1.Framers meant that people have the right to assemble peacefully in order to petition the government