CAMPUS SPEECH CODES AND FREE SPEECH

This chapter examines civil rights and civil liberties in the United States. It shows that the meaning of each of our freedoms is never settled but is the subject of continuing disagreement. Chapter 15 focuses on how structural, political linkage, and governmental factors influence the meaning and practice of our civic freedoms. The authors emphasize the role of the Supreme Court as interpreter of the Constitution.

American college campuses have become an important battleground in the continuing struggle over the meaning of free speech. The opening vignette focuses on the battle over speech codes that have been instituted at many colleges and universities in an effort to prohibit speech that may offend members of minority groups.

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). By contrast, civil rights include governmental responsibility for guaranteeing that all citizens are able to participate as equals in the practice of democratic life. They are government guarantees of political equality. Because most formal barriers to equal participation have been used to exclude groups of people (such as women and racial minorities), civil rights initiatives have been directed at removing group barriers and helping groups overcome disadvantages created by past patterns of discrimination.

Reacting to strong objections from those who wanted rights to be explicitly protected, the Federalists promised that a bill of rights would be added after the Constitution was ratified. The addition of the Bill of Rights made the Constitution more democratic by enhancing political liberty and by guaranteeing a setting for free political expression that makes popular sovereignty possible. Later amendments were added to protect rights and liberties that states or the national government had previously compromised or ignored, and twentieth-century amendments made the Constitution substantially more democratic and contributed to popular sovereignty and political equality.

RIGHTS AND LIBERTIES IN THE NINETEENTH CENTURY

The major liberty stated in the original Constitution was economic, and the primacy of property over other rights and liberties was reinforced by more than a century of judicial interpretation. The Court ruled in Barron v. Baltimore (1833) that the Bill of Rights did not apply to the states. By contrast, the contracts clause was directly applied against state action. Under the Marshall Court, the clause became a prime defense of property against states. The contracts clause was used to block virtually any changes in established property relations (especially those sought by the states).

The judicial preference for property rights was especially - and tragically - strong when it came to the rights of property with respect to human property (slavery). Until the Civil War, courts in both the North and South consistently upheld the rights of slaveholders to recapture fugitive slaves. In Dred Scott v. Sandford (1857), Chief Justice Taney claimed that slaves were not citizens who possessed rights, but simply private property belonging to their owners; in this sense, slaves were seen as being no different from land or tools. 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." Ironically, the Supreme Court soon interpreted this clause as a protection for business against the regulatory efforts of the states.

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. The twentieth century brought new approaches to property rights and to civil liberties in general.

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. However, the language of the Fourteenth Amendment specifically applies to the states, and the Supreme Court gradually interpreted the due process clause to incorporate essential liberties in the Bill of Rights. Instead of total incorporation, the Court has pursued a policy of selective incorporation - that is, nationalizing or incorporating those liberties in the Bill of Rights that it deemed fundamental to democracy. The Court only slowly added even traditional civil liberties to the constitutional obligations of states.

Footnote four of the Court's opinion in U.S. v. Carolene Products Company (1938) spelled out the conditions in which the Supreme Court would not defer to the actions of the states or the other branches of government. The Carolene Products footnote announced that most legislative enactments would fall under ordinary scrutiny by the courts (presuming their constitutionality), while enactments restricting liberties, limiting the democratic process, or discriminating against minorities would fall under strict scrutiny (presuming their unconstitutionality, placing the burden on the authors to prove otherwise).

The first area of incorporation of the Bill of Rights occurred with respect to freedom of speech, in Gitlow v. New York (1925). Despite the fact that 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. Near v. Minnesota (1931) marked the first case in which a state law was invalidated as a violation of freedom of the press. Near involved the question of prior restraint, which prevents publication before it has occurred. The prohibition of prior restraints on publication remains the core of freedom of press. Freedom of the press and freedom of speech tend to be considered together as freedom of expression, so general principles applicable to free speech apply to freedom of the press as well. These principles include the ban on prior restraint and the rule that the Court will permit repression only if the state can show that the publication poses a "clear and present danger."

Freedom of speech grew in later years to such an extent that far more speech is now covered than is not. In general, government today may not regulate or interfere with the content of speech without a compelling reason. For a reason to be compelling, the government must show that the speech poses a clear and present danger that the government has a duty to prevent (the standard formulated by Justice Oliver Wendell Holmes in 1919 in Schenck v. United States). Under this standard, abstract advocacy of ideas or philosophy is protected unless it meets both conditions ("clear" meaning a substantial and direct relationship, and "present" meaning immediate). A major exception to the expansion of freedom of expression has resulted from concern for internal security, with periodic persecution of dissenters and radicals for their political speech and writings. A major expansion of freedom of the press, enunciated in New York Times v. Sullivan (1964), protected newspapers against trivial or incidental errors when they were reporting on public persons (such as public officials). Public persons are held to a higher standard of proof than private persons when they bring libel prosecutions.

Although the courts have held that obscenity is not protected by the First Amendment, the distinction between art and obscenity can be difficult to define. Pornography is a nonlegal term for sexual materials; the legal term is obscenity. Miller v. California (1973) set a reasonably clear three-part test used by the courts to define obscenity. Material is not legally obscene - and cannot be regulated under the First Amendment - if work survives even one part of this test.

The First Amendment includes two provisions concerning religion: it prohibits Congress from making laws that prohibit the free exercise of religion and provides that Congress shall not make laws respecting an establishment of religion. Religious freedoms were not well protected prior to United States v. Carolene Products Company (1938). Congress did not legislate much on the subject of religion before Carolene Products. States were not covered by the First Amendment, so free exercise of religion was protected only if the state constitution made provision for it. The core of the nationalized free exercise of religion clause is that government may not interfere with religious beliefs. However, religious actions are not absolutely protected. The establishment clause has been interpreted to require that government must take a position of neutrality.

Incorporation of rights of the accused involves balancing individual rights with protection of the community. Most Americans feel some ambivalence toward rights of the accused: most support constitutional rights and liberties that protect innocent persons, but most Americans also want to control crime as much as possible. Balancing those two sentiments has been a difficult task, and one that is still evolving.

The Warren Court (1953-1969) expanded due process and preferred constitutional guarantees to efficient law enforcement. Until the Warren Court compelled states to abide by the Fourth Amendment in 1961, states frequently used unreasonable searches and seizures in an effort to control crime. In Mapp v. Ohio (1961), the Court enunciated the exclusionary rule to prevent police and prosecutors from using evidence that had been obtained from warrantless and unreasonable searches. The Warren Court decided that the privilege not to incriminate oneself was useless at the trial stage if police could coerce confessions before the trial took place. The Court held that, prior to questioning, all persons had the right to be informed of their rights to remain silent and to consult an attorney (Miranda v. Arizona, 1966).

The Burger Court (1969-1986) preserved most of the basic due process decisions of the Warren Court but it limited the further growth of protections and introduced many exceptions. Beginning with United States v. Leon (1984), the Court authorized a good faith exception to the exclusionary rule. The Court later allowed an exception for illegally obtained evidence that would have eventually been discovered even without the illegal search (known as inevitable discovery). The Burger Court upheld Miranda, but it reduced the scope and allowed exceptions. In Furman v. Georgia (1972), a split court found that death penalty laws then in existence constituted cruel and unusual punishment because the procedures were arbitrary and discriminatory. The federal government and many states later passed new death penalty laws, designed to meet the Court's objections. In Gregg v. Georgia (1976), the Court held that capital punishment was not inherently cruel or unusual, but the Court tended to create an obstacle course of standards that states had to meet.

The Rehnquist Court (1986-present) has reversed many due process protections. In Murray v. United States (1988), the Rehnquist Court allowed prosecutors to use evidence obtained from illegal searches if other evidence unrelated to the illegal evidence would have justified a search warrant (retroactive probable cause). The Rehnquist Court has gone beyond the Burger Court's exceptions to Miranda by holding that even a confession coerced by threats of violence might be "harmless error" that does not constitute self-incrimination. The combination of good faith, inevitable discovery, and retroactive probable cause has considerably narrowed the exclusionary rule. The Rehnquist Court has also greatly expedited the use of the death penalty, though recently it has limited its application in some instances in response to growing concerns from governmental officials and the public.

CIVIL LIBERTIES AND THE WAR ON TERRORISM

In general, wars encourage patriotic sentiments and calls for unity. They also raise legitimate concerns about safety and security. Because of these, wars have almost always led to limitations on liberty, especially for those who vocally dissent from the war effort or are associated with the enemy in one way or another.

The war on terrorism has also brought some restrictions, affecting mostly non-citizens. Under the USA Patriot Act, the federal government has been given expanded powers in the areas of wire-tapping and surveillance, monitoring suspect individuals and organizations, and detaining or deporting non-citizens deemed dangerous to national security. President Bush, using executive orders, has ordered the use of military tribunals to try suspected terrorists here or abroad who are not citizens, and has deported or detained a large number of people without releasing information about them. He has also authorized the detention, without trial, of American citizens discovered to have been fighting against the United States in Afghanistan, calling them "enemy combatants." The American people for the most part favor these stronger efforts in the name of fighting terrorism and increasing security.

On the brighter side, there are some areas where civil liberties have not been curtailed in ways they were in past wars. Public criticism and resistance from some groups to some of the proposed policies have led the Bush Administration to back off from its more extreme measures affecting civil liberties. The use of military tribunals was altered to make it more like the military justice system, and detainments and interrogations of Middle Eastern and Muslim men were limited. It is hard to tell, however, the direction the war on terrorism will take concerning civil liberties or how long it will last.

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