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 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.
Rights and Liberties in the
Nineteenth Century

Economic liberty 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.

The Marshall Court (1801-1835)
– The Bill of Rights did not apply to the states
 Barron
v. Baltimore (1833)
– But, the contract clause did apply to the states
 Fletcher
v. Peck (1810)
 Dartmouth College v. Woodward (1819)

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)
 Economic
liberty 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 19th 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.
Nationalization of the
Bill of Rights
Liberties unrelated to property were not
protected very much before the 20th 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).
State actions bring strict scrutiny if they:
– Contradict Constitutional prohibitions
– Restrict the democratic process
– Discriminate against minorities
Freedom of Speech





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 on speech that presents a “clear and present danger” (e.g.,
yelling “Fire” in a crowded theater).
Increasingly, Americans seem willing to constrain or suppress political
speech when it makes some members of the larger community
uncomfortable.
Symbolic expressions may receive less protection from the Court (e.g.,
flag desecration)

One major exception to the expansion of freedom of
expression has been the periodic concern about
“internal security”
– WWI
– Post-WWII
– Post-September 11
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. This was
reiterated in 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).
The prohibition of prior restraint on publication remains
the core of freedom of the press.
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.
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.
Establishment of Religion

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

Privacy

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.
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
– Exceptions:
Murray v. United States
Minnesota v. Carter
Wyoming v. Houghton
Knowles v. Iowa
Kyllo v. United States
 Self-incrimination
–Miranda v. Arizona
–Miranda warnings
 The Right to Counsel
– Powell v. Alabama – state capital cases
– Gideon v. Wainwright – state non-capital
cases
 Capital
–
–
–
–
Punishment
Furman v. Georgia (cruel and unusual punishment)
Gregg v. Georgia
McCleskey v. Kemp
Recent concerns
Many state legislatures considering moratorium
Annual executions decreasing
Public support decreasing
Rehnquist Court reconsidering the issue