Chapter 15
FREEDOM: THE STRUGGLE
FOR CIVIL LIBERTIES
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.

– 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.
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.

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.

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

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.
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.
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.

Property rights in the Marshall Court (18011835)
– 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)
 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.”
– 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.
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
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.

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.

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 Court’s opinion in U.S. v. Carolene
Products Company (1938).
– Three classes of suspect state actions bring
strict scrutiny.
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.
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)
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.
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
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.
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)
– 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)
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
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.

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.

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
Rights of the Accused

Unreasonable Searches and Seizures
– Mapp v. Ohio – exclusionary rule
– Murray v. United States - exception

Self-incrimination
– Miranda v. Arizona
– Miranda warnings

The Right to Counsel
– Powell v. Alabama – state capital
cases
– Gideon v. Wainwright – state noncapital cases

Capital Punishment
– Furman v. Georgia (Cruel and
Unusual punishment)
– Gregg v. Georgia
– McCleskey v. Kemp