I. Origins of Civil Liberties in the United States
The meaning of civil liberties in the United States has been shaped by the Supreme Court, political debates, and election outcomes. It reflects the basic values shared by most citizens.
A. Origins of the Bill of Rights
In spite of the fervor over individual rights during the American revolution, the framers of the Constitution did not include a Bill of Rights. During ratification, the Federalists promised to add a Bill of Rights later.
B. Few Civil Liberties Before the Civil War
Prior to the Civil War, the rights listed in the Bill of Rights did not play a significant role in American politics. Except, ironically, the Fifth Amendment due process clause was used to support those owning slaves.
This was due to the wording of the First Amendment, which specified it applied only to Congress and the 1833 case of Barron vs. Baltimore, which said all of the rights in the Bill of Rights applied only to Congress.
C. Applying the Bill of Rights to State Governments
The Civil War amendments extended greatly the protection of civil rights.
The 14th Amendment has been particularly important in that it contained a "due process" clause that was explicitly directed at state governments.
Relying on selective incorporation, the Supreme Court has applied most of the provisions of the Bill of Rights to the states through the 14th Amendment's due process clause (one notable exception being the second Amendment right to bear arms).
II. Freedom of Speech, Press, and Assembly
A. Free Speech and Majoritarian Democracy
Free speech is vital to democracy because it allows debate of issues including the official line espoused by those in government. Even if the official line is backed by a majority, the minority still has the right to speak out. Majorities can be just as dictatorial as one despot.
Free speech was justified by John Stuart Mill on the grounds that the truth will, in the end, always win out; furthermore, suppression of what is patently not true merely serves to strengthen falsehoods. In short, there is nothing, in the end, to free from free speech.
B. Origins of Freedom of Speech
The colonists believed in the notion of no prior restraint. Although people could be punished for publishing material after the fact, anything could be published once (i.e. no censorship).
The trial of Peter Zenger in the 1730s was a victory for freedom of speech and press.
C. Clear and Present Danger Doctrine
In its first major decision affecting freedom of speech, the Supreme Court, in Schenck vs. United States (1919), enunciated the clear and present danger doctrine, a principle that said people should have complete freedom of speech unless their language gave rise to a clear and present danger. Justice Holmes wrote that following this principle, no one would have the right to falsely shout "fire!" in a crowded theater.
In this case, the Supreme Court, while stating this principle, upheld Schenck's conviction for violating the Espionage Act. Schenck was convicted for mailing antidraft literature to draft-age men.
Applying the principle, which is open to various interpretations, has not been easy. Yet, two cases decided in 1931, Stromberg vs. California and Near vs. Minnesota, were particularly important, because for the first time, they gave court protection to the opinions of an extreme group.
D. Fighting Words Doctrine
During World War II, free speech again came under attack. The Smith Act prohibited advocating the overthrow of the government by force. Restrictions were also passed prohibiting demonstrations against the draft.
The Supreme Court upheld these restrictions on the grounds that fighting words were not protected by the First Amendment. It was the fighting words doctrine that many university administrators invoked in the early 1990s when they tried to enforce ethnic tolerance on campus.
E. Balancing Doctrine
Civil liberties were not restored following the end of World War II. Fear of the spread of communism (fed by McCarthyism) resulted in Congress requiring all employees of the federal government to take an oath swearing loyalty to the United States. The Supreme Court, relying now on a balancing doctrine, upheld prosecutions under the Smith Act. This doctrine was clearly a limit on the more strenuous clear and present danger doctrine.
McCarthy, in the end, was challenged not by the Court but by politicians.
F. Fundamental Freedom Doctrine
After the political demise of Senator McCarthy, Americans were in a mood to be more protective of civil liberties. The Supreme Court became committed to the fundamental freedom doctrine, which said that some constitutional provisions (such as free speech) have a preferred position because they are basic to the functioning of a democratic society. It became the Court's governing doctrine during the 1960s, in the midst of the Vietnam war.
In virtually every case that came before it, the Court ruled against efforts to suppress free speech. A significant case in this regard was the Pentagon Papers case (New York Times vs. United States, 1971). More recent examples of the Courts commitment to free speech are the flag burning cases (Texas vs. Johnson, 1989 and Eichman vs. United States, 1990).
Even conservatives on the Court voted to strike down a St. Paul ordinance forbidding the placement of a symbol that "arouses anger, alarm or resentment in others on the basis or race, color, creed, religion or gender on public or private proiperty" (R.A.V. vs. City of St. Paul, 1990).
G. Limitations on Free Speech
Although free speech is now given strong protection, three types of speech can still be subject to regulation.
1. Commercial Speech
The court says regulation of commercial speech (advertising or other speech made for business purposes) is needed so that customers are not provided false or misleading information, or to discourage the consumption of harmful substances (such as cigarettes).
2. Libel
Libel, the defamation of character by print, is not protected by the First Amendment. In the New York Times vs. Sullivan case (1963), the Supreme Court ruled that for a public official to win a libel suit, they must demonstrate not only that what was printed was false but that it was done with actual malice (they knew it was false or they had a reckless disregard for the truth.)
3. Obscenity
Obscenity is not protected by the First Amendment. The Court has struggled with the definition of obscenity, but overall, it seems to say that local communities may, if they wish, ban hard-core pornography.
III. Freedom of Religion
The First Amendment contains two provisions relating to religion: the no establishment clause and the free exercise clause.
A. Establishment of Religion Clause
Religious issues often arise in conjunction with the provision of public education, in good part
because many think schools need to teach not only reading and arithmetic but morals and values as well.
The Court has pretty much followed Thomas Jefferson's separation of church and state doctrine, which recognizes a wall separating government from religious activity.
This has usually prevented tax money from going to support parochial schools. It has also resulted in prohibiting teacher-led school prayer in public schools (along with sacred moments of silence) and legally mandated Bible readings in public schools.
In 1990, however, a more conservative Court relaxed the ban on prayer somewhat, saying students may allow for Bible-reading or prayer clubs as long as other clubs are allowed to use school property. Other recent decisions (such as Agostini vs. Felton) have opened up windows in the wall of separation between church and state.
B. Free Exercise of Religion Clause
In applying this clause, the Court has prohibited a state from closing all private religious schools, requiring those who object on religious grounds from saluting the American flag (having upheld the law just three years earlier), and allowed the Amish to refuse to follow the law requiring mandatory school attendance.
C. Establishment of Religion or Free Exercise?
The debate over school choice (using vouchers), which surfaced during the 1996 and 2000 presidential elections, involves weighing the establishment of the religion clause against the free exercise clause.
The Supreme Court has yet to decide the issue of school vouchers, but in a 1983 case (Mueller vs. Allen) the Court ruled that tax breaks can be given to families who send their children to religious schools, provided the same tax breaks are available to families sending their children to public schools. It remains to be seen if the Court will extend this decision to the use of vouchers. Who is next appointed to the Supreme Court could affect the outcome of such a decision.
IV. Law, Order, and the Rights of Suspects
The procedural rights that protect the accused are often thought to come into conflict with the need for government to maintain social order. Some believe that carefully enforcing procedural rights will result in the guilty going free. Others believe that unless procedural safeguards are carefully observed, innocent people will be unjustly convicted.
A. Election Politics and Criminal Justice
Politics affect criminal justice since law and order is a major concern for many Americans. Politicians feel obligated to "do something" about
crime.
Whether crime rates are actually rising is not so easy to determine because many crime statistics are notoriously unreliable. Most victims of homicides are black and male. For older men, the murder rate has decreased since the 1980s, but it rose sharply for young, particularly black, males in the early 1990s.
B. Search and Seizure
The Fourth Amendment requires the police to get a warrant before they search a private dwelling. To obtain the warrant, the police must demonstrate that there is probable cause that a crime has been committed. Improperly obtained evidence cannot be used in court (Mapp vs. Ohio, 1961).
In early 2000, a unanimous Supreme Court ruled that police may sometimes stop and search people because they turn and run when they see the police approaching (running--the Court reasoned--is cause for reasonable suspicion).
D. Immunity Against Self-Incrimination
The Fifth Amendment prevents the government from coercing an individual in a criminal case to testify against themselves. The Warren Court in the Miranda case ruled that police must inform those being arrested of this right before questioning them. If they do not, the testimony cannot be used in court (except to impeach the veracity of the suspect were he/she to take the stand).
In 2000, the Supreme Court revisited the Miranda decision (judging a provision in a 1968 law that some thought overruled Miranda); the Court upheld that decision partially on the grounds that warning people of their right to remain silent had become part of our culture.
E. Impartial Jury
Following the Sheppard vs. Maxwell (1966) case, the Supreme Court established several criteria to help guarantee an impartial jury trial:
a. Trials should be postponed until public attention has subsided.
b. Jurors should be screened to exclude those with extensive knowledge of a case or a biased opinion.
c. Judges should instruct jurors to base their decisions solely on the evidence presented in the trial.
d. Jurors may be sequestered during a trial.
e. Courts should consider changing a trial venue in order to keep jurors from being exposed to pretrial publicity.
F. Legal Counsel
The Warren Court ruled that the Sixth Amendment guarantees everyone accused of a crime the right to legal counsel even if they can't afford an attorney.
Since not many lawyers wanted to volunteer their services to the poor, many states created the office of public defender to represent indigent criminal suspects.
Public defenders are often not respected by police and even their own clients (who view them as crummy lawyers).
G. Double Jeopardy
The Supreme Court has ruled that a person may be tried in federal and state courts for the same offense and this does not constitute double jeopardy.
H. Rights in Practice: The Plea Bargain
In most cases, the criminally accused is not tried by a jury. Trial court judges depend on the willingness of prosecutors and defenders to settle cases before going to trial. Defenders and prosecutors are usually expected to try to arrange a plea bargain.
The extensive use of the plea bargain has resulted in some politicians calling for a "three strikes and you're out" policy. After conviction of three felonies, a person would receive life imprisonment, whether or not a plea bargain is struck.
The United States now seems to have the largest incarceration rate in the world. Does this reduce crime? The evidence is inconclusive.
V. The Right of Privacy
Although not explicitly mentioned in the Constitution, the Supreme Court, relying on the Ninth Amendment, has recognized the right of privacy.
A. Regulation of Sexual Behavior The Court declared a Connecticut law prohibiting the use of contraceptives between consenting married couples unconstitutional in 1965.
In 1986, however, it upheld a Georgia law outlawing sodomy (in this case between two males).
In both cases, the court majority decided in a manner consistent with the views of a majority of voters.
B. Abortion: Right to Life or Right to Choose?
In Roe vs. Wade (1973), the Court declared that the right of privacy was broad enough to include at least a partial right of abortion. In response, the right to life movement became engaged in state and national politics. In response, Congress enacted legislation in 1976 that prevents coverage of abortion costs under government health insurance programs, such as Medicaid. The Supreme Court began to declare constitutional certain restrictions on abortion. When given the chance to overrule its Roe decision in the 1992 case of Planned Parenthood vs. Casey, the Court refused to do so. It has, in close conformity to public opinion, upheld laws requiring teenagers to inform their parents before getting an abortion but struck down laws requiring women to get their husbands’ consent before getting an abortion.
