Civil Liberties

The protection of CIVIL LIBERTIES in the Bill of Rights has been the center of conflict between the basic values of freedom and order.

A. The First Amendment prevents government from interfering with freedom of religion.

1. The Supreme Court has affirmed the ESTABLISHMENT CLAUSE, which requires government to maintain religious neutrality but does not bar all assistance to religious institutions.

a. The Supreme Court has accepted only incidental government support of religion.

(1) In LEMON v. KURTZMAN (1971), using a three-pronged test, the Supreme Court rejected a state program authorizing purchases of secular services for church schools.

(a) The statute must have a secular purpose.

(b) The primary effect of the statute should not be to advance or inhibit religion.

(c) The statute must not excessively entangle government and religion.

(2) The Supreme Court has upheld the constitutionality of state-funded Nativity scenes.

b. The Supreme Court has consistently viewed prayer in public schools as government encouragement of religion.

c. In 1990, the Court upheld the constitutionality of the Equal Access Act, which declares that no public secondary school receiving federal funds may ban after-school meetings on school property by student religious or political groups if the same privilege is provided other groups.

2. The FREE EXERCISE CLAUSE of the First Amendment protects religious beliefs but not actions based on those beliefs.

a. The Supreme Court has reversed a previous Court decision that prevented religious groups from obeying compulsory flag saluting.

b. The Supreme Court held that the First Amendment protects religious observance as well as belief.

c. In 1990, the Supreme Court refused to grant membership of the Native American Church an exemption from an Oregon law that made illegal the possession of peyote, a hallucinogenic drug used for centuries in Native American religious ceremonies.

B. According to the dominant view, the FREEDOM OF EXPRESSION CLAUSE confers on individuals the right to unrestricted discussion of public affairs as long as public order is not directly threatened.

1. According to the CLEAR AND PRESENT DANGER TEST, government has the right to restrict freedom of speech when public order is threatened.

a. In GITLOW v. NEW YORK (1925), the Court upheld the prosecution of individuals calling for the establishment of socialism.

b. In BRANDENBURG v. OHIO (1969), the Court offered a wider latitude for the expression of political ideas by declaring that threatening speech is protected by the Constitution.

2. SYMBOLIC EXPRESSION, or nonverbal behavior, has been upheld by the Court but is generally less protected than free speech, but courts have upheld certain types of symbolic expression.

a. In TINKER v. DES MOINES INDEPENDENT COUNTY SCHOOL DISTRICT (1969), the Court overturned the suspension of three secondary students who wore black armbands to school to protest the Vietnam War

b. In COHEN v. CALIFORNIA (1971), the Court recognized that "one man's vulgarity is another's lyric" by protecting two elements of speech: the expression of emotion and of ideas.

3. Obscene material is entirely excluded from constitutional protection.

a. Difficulties arise in determining what is obscene.

b. 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.

4. The First Amendment guarantees that government will not interfere with the freedom of the press.

a. In NEW YORK TIMES CO. v. SULLIVAN (1964), the Supreme Court declared that the freedom of the press takes precedence over the rights of public officials suing for LIBEL.

b. The Supreme Court has extended the concept of freedom of the press to protect publishers against suits from public figures.

c. The Supreme Court has recognized that prior restraint of the press may be necessary, but it has not specified under what circumstances restraint is appropriate.

d. The courts have consistently held that freedom of the press does not override the requirements of law enforcement.

5. The right to petition and to assemble peaceably have merged with the guarantees of freedom of the press and speech.

II. Because of the adoption of the Fourteenth Amendment, most of the Individual protections found in the Bill of Rights now apply to the states.

A. The Supreme Court's interpretation of the due process clause in the Fourteenth Amendment has allowed individuals to contest state violations of their liberties.

B. The Supreme Court has interpreted the incorporation of the Bill of Rights guarantees with the due process clause to include only "fundamental" rights.

1. In PALKO v. CONNECTICUT (1937), the Court determined that double jeopardy and trial by jury were not fundamental rights to be protected by the state.

2. In the thirty years after the PALKO decision, the Court found that most of the guarantees found in the Bill of Rights were indeed fundamental.

C. The application of the constitutional procedural safeguards in criminal proceedings to the states has reshaped the American criminal justice system in the last thirty years.

1. Procedural safeguards have been applied to the states through a two-step process.

a. The judiciary decides whether the guarantee in question is applicable to the states.

b. The judiciary gives specific meaning to the guarantee.

2. The Supreme Court has recognized that there are a variety of ways to prosecute the accused while heeding fundamental rights.

a. The right to a jury trial was made obligatory for the states, but it does not regulate the size of the jury or whether judgments should be unanimous.

b. In GIDEON v. WAINWRIGHT (1963), the Supreme Court determined that defendants in criminal proceedings were entitled to a lawyer.

c. In MIRANDA v. ARIZONA (1966), the Supreme Court implemented the privilege against self-incrimination through the MIRANDA WARNINGS.

d. In MAPP v. OHIO (1961), the Supreme Court determined that the EXCLUSIONARY RULE--protecting individuals from unreasonable searches and seizures--applied to all levels of government.

e. In UNITED STATES v. LEON (1984), the Supreme Court created a "good faith exception" to the exclusionary rule. This permitted evidence obtained from a mistakenly issued search warrant to be presented in court. The narrowing of the exclusionary rule may be an indication that a new era favoring order over freedom has begun.

D. The Ninth Amendment, which protects rights not specifically enumerated in the Constitution, has been used by the Supreme Court to define the limits of government encroachment on personal autonomy.

1. In GRISWOLD v. CONNECTICUT (1965), the Court asserted that the Bill of Rights created a zone of privacy for the individual that gave the individual the right to make choices regarding sexual intercourse and reproduction.

2. In ROE v. WADE (1973), the Supreme Court ruled that a woman's right to seek an abortion during the first three months of her pregnancy rests on the right to privacy protected by the Fourteenth Amendment. Dissenters argued that the majority opinion in ROE v. WADE had no basis in the Constitution.

3. In WEBSTER v. REPRODUCTIVE HEALTH SERVICES (1989), the Court upheld the constitutionality of a Missouri law that denied
the use of public employees or facilities in the performance of an abortion unless the mother's life was in danger.

4. In recent years the Court has withdrawn the constitutional protection shrouding abortion rights and cast the issue into the state legislative process.

5. The right-to-privacy cases have opened up a wide variety of controversial social issues to be decided by the courts.

a. In 1986, the Supreme Court held that the Constitution does not protect homosexual relations between consenting adults.

b. It seems likely that personal autonomy cases will shift to the political arena within the individual states.

E. Under the cloak of the Constitution, the Supreme Court has been responsible for creating public policies. This shelters public policies from the legislative arena, where the will of the people can be expressed through the democratic process.

OBSCENITY: ANOTHER EXCEPTION TO FREEDOM OF SPEECH

Government restrictions on expression pit the value of order against the value of freedom. Government imposes restrictions on certain forms of artistic expression on the grounds that the material sought to be restricted is harmful. Opponents of such control argue that there is no evidence of the link between such material and the conduct that government seeks to prevent. In the absence of such proof, government control of expression is unwarranted.

I. Obscene material is entirely excluded from constitutional protection.

A. We associate obscene material with "dirty" words, books, magazines, films, and such.

1. Books once banned as obscene in the United States include

a. ULYSSES, by James Joyce.

b. FROM HERE TO ETERNITY, by James Jones.

c. TROPIC OF CANCER, by Herbert Miller.

d. MEMOIRS OF HECATE COUNTY, by Edmund Wilson.

2. Films have also been banned as obscene.

a. LADY CHATTERLEY'S LOVER

b. CARNAL KNOWLEDGE

c. DEEP THROAT

3. Obscenity is not confined to literature and film.

a. When Dimitri Shostakovich's opera, LADY MAC BETH OF MTSENSK, was performed in Cleveland in 1935, some trombone notes so shocked certain ladies that many of them walked out of the performance. A substitute was called on to play the notes because the first trombone player refused.

b. Gilbert and Sullivan wrote an obscene opera called THE SOD'S OPERA. Characters included Count Tostoff, the Brothers Bollox (a pair of hangers-on), and Scrotum (a wrinkled old retainer). For many years, a copy of the opera was kept in the guardroom at St. James Palace.

c. Mapplethorpe was a critically acclaimed photographer who died in 1989. His subjects included celebrities, still life, nudes, children, and graphic sexual poses. The technique of the photographs was flawless. The content jarred and offended many viewers, who saw them as degrading, humiliating, and painful images. A retrospective exhibition of Mapplethorpe's work traveled to several museums without incident. Then, in 1990, Cincinnati's Contemporary Arts Center and its director were charged by local officials with pandering obscenity and illegal use of a minor. At issue were seven photographs out of the 175 in the exhibit. Five photographs depicted homoerotic and sadomasochistic acts, which the city claimed were obscene. Two photographs used nude or partially nude children as subjects (one captured a toddler with her dress raised and her genitals exposed), which the city contended violated laws against child pornography. If convicted, the museum faced up to $10,000 in fines and its director faced up to a year in jail and up to $2,000 in fines.

B. The Supreme Court has determined that obscene material is excluded from constitutional protection.

1. The Court maintained in 1957 that at the time of the Constitution's adoption, obscene materials were not regarded as "speech" within the meaning of the First Amendment.

2. Hence, government can constrain and punish the dissemination of obscene material because it is not protected speech.

3. Difficulties arise, however, in determining what is obscene and what is not.

II. The problem of defining obscenity

A. In 1957, Justice William J. Brennan, Jr., defined obscene material as that which "deals with sex in a manner appealing to the prurient interest." Prurient is defined as obsessive interest in sexual matters.

1. A work could be saved from censorship if, taken as a whole, it offered redeeming social value.

2. Individuals--judges or community leaders--were required to apply community standards in the imposition of restriction.

B. The justices have struggled with the identity of obscenity. The definition lacks objectivity.

C. Justice Potter Stewart will long be remembered for his solution to the problem of identifying obscene materials. He confessed that he could not define obscenity. "But," he added, "I know it when I see it."

III. The historical setting for restriction on expression dealing with sex

A. Because obscene material is not protected speech, government can restrain and punish those who disseminate it.

1. Federal regulation of obscene material has a relatively short history.

a. About a hundred years ago, a puritan crusader named Anthony Comstock formed an organization called the Society for the Suppression of Vice.

b. Comstock urged federal legislation to combat obscenity for forty years.

c. Congress enacted legislation in 1873 to punish the mailing of obscene material.

(1) Harry Reems, an actor in the X-rated film DEEP THROAT, was one of nine persons convicted of a federal crime rooted in the Comstock era: conspiring to transport obscene material across state lines.

(2) Reem's conviction was overturned on appeal. But his codefendants served sentences of three to twelve months in jail and up to $10,000 in fines.

2. State governments have also used the criminal law to thwart the distribution of obscenity.

a. Larry Flynt, publisher of the "soft-core" magazine HUSTLER, was convicted in 1981 by an Atlanta jury on eleven counts of violating the city's obscenity laws.

b. Flynt appealed his conviction all the way to the Supreme Court, but to no avail. (You may recall that he attempted to enter the courtroom dressed in a diaper made from the American flag.)

B. The Supreme Court's first approach to the obscenity issue

1. The Court's early efforts at obscenity definitions prompted challenges to state and local restriction on expression. 

2. The Court seemed to be deciding obscenity questions on a case-by-case basis.

3. By 1966, the justices were deeply divided on the meaning of obscenity and its application.

a. In just three cases in 1966, seven of the justices authored a total of fourteen separate opinions to explain what each justice meant by legitimate restrictions on expression.

IV. The Court returns a measure of control to local communities

A. In 1973, the justices attempted again to provide a useful standard for identifying obscene material. A work is obscene and may be regulated by government if

1. It depicts or describes sexual contact.

2. Taken as a whole, it appeals to the prurient interest in sex.

3. It portrays sexual conduct in a patently offensive way.

4. Taken as a whole, it does not have serious literary, artistic, or scientific value.

B. The Court also provided that local community standards were to be used in this four-pronged test for obscenity.

1. The local-control stipulation is an attempt by the Court to free itself from the nagging problem of reviewing state court obscenity findings.

2. Judicial review still remains available to prevent unbridled discretion in state obscenity determinations.

3. In short, the justices are unlikely to replace either prudish or exotic community standards with their own, but they have left the door ajar for intervention if it is needed.

C. Sexual explicitness in recent American culture can be traced in part to the restrictions imposed by the Supreme Court on the censors. The value of freedom has trumped the value of order in some communities, whereas the value of order had overridden the value of freedom in others.

V. Can the value of equality outweigh the value of freedom?

A. An interesting twist in the clash between freedom and equality arose in the early 1980s. Pornography opponents, led by feminist theorists, invoked equality principles to justify legislation restricting freedom of expression.

B. Indianapolis enacted an ordinance based on the equality approach in 1984.

1. The law defined pornography as the graphic, sexually explicit subordination of women, in words or pictures, that satisfies one or more of the following criteria.

a. It presents women as sexual objects who experience sexual pleasure in being raped.

b. It presents women as sexual objects of domination, conquest, violation, exploitation, possession, or use, through postures or positions of servility or submission or display.

2. The law rested on the finding that pornography is a form of discrimination that denies equal opportunities in society and that it is central in creating and maintaining sex as a form of discrimination. (Federal and state laws forbid such discrimination.)

3. The law banned pornographic material according to the following argument.

a. Government interest in civil rights outweighs any First Amendment interest in communication.

b. Pornography affects thoughts; it works by socializing, by establishing the expected and permissible.

(1) Depictions of subordination tend to perpetuate subordination.

(2) This leads to affront and to the maintenance of lower pay at work, insult and injury at home, battery and rape on the streets.

c. Hence pornography conditions society to subordinate women impermissibly.

d. A law regulating expression will regulate and control the underlying unacceptable conduct.

C. The Indianapolis ordinance was held unconstitutional.

1. District Court Judge Sarah Evans Barker rejected the city's argument.

a. The law suppressed otherwise protected expression while sweeping away unprotected expression (e.g., child pornography is unprotected). According to the ordinance,

(1) Sexual encounters premised on equality would be lawful no matter how sexually explicit.

(2) Expression treating women in the disapproved way--as sexually submissive or as enjoying humiliation-- would be unlawful no matter how significant the literary, artistic, or political qualities of the work.

2. Judge Barker confronted the tradeoff between equality and freedom in a pluralist democracy.

a. Interest groups using the democratic process to carve exceptions to the First Amendment destroy everyone's rights.

b. Although efforts to restrict behavior that leads to humiliation and degradation of women may be desirable, "free speech, rather than being the enemy, is a long-tested and worthy ally."

c. "To deny free speech in order to engineer social change in the name of accomplishing a greater good for one sector of our society erodes the freedom of all."