Civil Liberties and Public Policy Chapter 4 PDF

4 Listen to Chapter 4 on MyPoliSciLab Civil Liberties and Public Policy Politics in Action: Free Speech on Campus T he Board of Regents of the University of Wisconsin System requires students at the university’s Madison...

4 Listen to Chapter 4 on MyPoliSciLab Civil Liberties and Public Policy Politics in Action: Free Speech on Campus T he Board of Regents of the University of Wisconsin System requires students at the university’s Madison campus to pay an activity fee that supports various campus services and extracurricular student activities. In the university’s view, such fees enhance students’ educational experiences by promoting extracurricu lar activities, stimulating advocacy and debate on diverse points of view, enabling participation in campus administrative activity, and providing opportunities to develop social skills—all consistent with the university’s broad educational mission. Registered student orga nizations (RSOs) expressing a wide range of views are eligible to receive a portion of the fees, which the student government administers subject to the university’s approval. There has been broad agreement that the process for approving RSO applications for funding is administered in a viewpoint-neutral fashion. RSOs may also obtain funding through a student referendum. Some students, however, sued the university, alleging that the activity fee violated their First Amendment rights because it forced them to support expressions of views they did not share.  They argued that the university must grant them the choice not to fund RSOs that engage in political and ideological expression offensive to their personal beliefs. The Supreme Court held in a unanimous decision in Board of Regents of University of Wisconsin System v. Southworth that if a university determines that its mission is well served if students have the means to engage in dynamic discussion on a broad range of issues, it may 4.1 protected the boundaries that arise in by the First of those rights , their imple Amendment p. 116. mentation , Describe Assess how and determine 4.4 p. 130. Trace the the boundaries the right to civil liberties of those rights , bear arms 4.7 affect demo process by protected by cratic govern which the Bill ofp. 109. Describe the Second ment and how Rights has 4.3 Amendment Outline the they both limit been applied to the rights to and its limita and expand the the states , p. assemble and evolution tions , p. 128. scope of 107. associate of a right to Differentiate protected 4.6 government , p. 4.2 privacy and its 145. the rights of by the First application to free expres Amendment the issue of sion protected and their abortion , p. Characterize Distinguish the by the First limitations , p. 143. Amendment 126. defendants’ two types of rights and 4.8 religious rights and determine 4.5 104 identify issues These UCLA students are exercising their right to protest, an important civil liberty. Determining the boundaries of civil liberties often raises complex questions and may involve balancing competing values. 105 105 MyPoliSci Watch on MyPoliSciLab Lab Video Series down the civil liberties that the United States Constitution guarantees, and he discusses how different rights can sometimes conf ict with one another. 1 The Big Picture Ensure that your civil liberties are The Basics What are civil liberties and where do they come from? In this video, you will learn about our First Amendment guarantees and about protections the Bill of Rights provides those being upheld. Author George C. Edwards III breaks accused of crimes. In the process, you’ll discover how our liberties have changed over time to ref ect our changing values and needs. 2 3 5 In the Real World The American legal system and the American people have both struggled over In Context Uncover the importance of civil liberties whether the death penalty should be imposed in this in a changing American society. University of country. In this segment, we’ll hear what citizens Massachusetts at Boston political scientist Maurice have to say about the death penalty. T. Cunningham identif es the origins of our civil liberties and evaluates the clash between national security and civil liberties in a post-9/11 age. So What? Want to stage a protest in your community? Find out what protections and rights Thinking Like a Political Scientist What are some you are entitled to as a demonstrator—as well as of the challenges facing political scientists in what limitations you must work within. Author regards to civil liberties? In this video, University of George C. Edwards III lays out the American civil Massachusetts at Boston political scientist Maurice liberty laws and gives examples of how students T. Cunningham raises some of the have exercised their rights in the past. thought-provoking questions regarding civil liberties that have arisen during the last decade. 4 106 6 impose a mandatory fee to sustain such dialogue. The Court rst glance, many questions about civil liberties issues recognized that inevitably the fees subsidize speech that some may seem straightforward. For example, the Bill of students f nd objectionable or offensive. Thus, the Court held that Rights’ guarantee of a free press appears to mean that a university must protect students’ First Amendment rights by Americans can write what they choose. In the real world requiring viewpoint neutrality in the allocation of funding support. of American law, however, these issues are subtle and The University of Wisconsin case is the sort of complex complex. controversy that shapes American civil liberties. Debates about Disputes about civil liberties often end up in court. T e the right to abortion, the right to bear arms, the sep aration of Supreme Court of the United States is the f nal church and state, and similar issues are constantly in the news. interpreter of the content and scope of our liberties; this Some of these issues arise from conf icting interests. The need to ultimate power to interpret the Constitution accounts for protect society against crime often con f icts with society’s need to the ferocious debate over presidential appointments to protect the rights of people accused of crime. Other conf icts the Supreme Court. derive from strong differences of opinion about what is ethical, T roughout this chapter you will f nd special features moral, or right. To some Americans, abortion is murder, the taking titled “You Are the Judge.” Each feature describes an of a human life. To others, a woman’s choice whether to bear a actual case heard by the Supreme Court and asks you to child, free of governmental intrusion, is a fundamental right. decide the case and then compare your decision with Everyone, however, is affected by the extent of our civil liberties. that of the Court. Deciding complex questions about civil liberties requires balancing To understand the specif cs of American civil liberties, we competing values, such as maintaining an open system of must f rst understand the Bill of Rights. expression while protecting individuals from the excesses such a system may produce. Civil liberties are essential to democracy. How could we have free elections without free speech, for example? But does it follow that critics of off cials should be able The Bill of Rights to say whatever they want, no matter how untrue? And who should decide the extent of our liberty? Should it be a representative 4.1 Trace the process by which the Bill of Rights has been institution such as Congress or a judicial elite such as the Supreme Court? The role of the government in resolving civil liberties controversies is also the subject of much debate. Conservatives usually advocate narrowing the scope of government, yet many conser vatives strongly support government-imposed limits on abortion applied to the states. B y 1787, all state constitutions and government-sanctioned prayers in public schools. They also want government to be less hindered by concern for defen dants’ rights. Liberals, who typically support a broader scope of government, usually want to limit government’s role in prohibiting abortion and encouraging religious activities and to place greater constraints on government’s freedom of action in the criminal justice system. had bills of rights, some of which survive, Civil liberties are constitutional and other legal protections of individuals against government actions. Americans’ civil liberties are set down in the Bill of Rights, the f rst 10 amendments to the Constitution. At f intact, to this day. Although the new U.S. Constitution  had no bill of rights, the state ratifying conventions made resolve. its inclusion a condition of ratif ca tion. T e First Congress For example, is a display of the Ten Commandments on a government site simply a recognition of passed the Bill of Rights in 1789 and sent it to the states their historic importance to for ratif cation. In 1791, these amendments became part the development of law or an of the Constitution. impermissible use of government power to establish religion? civil liberties 4. The constitutional and other legal protections against government actions. Our civil liberties are formally set down in the Bill of Rights. 4. Bill of Rights The first 10 amendments to the U.S. 4. Constitution, which define such basic liberties as freedom of religion, speech, and press and guarantee defendants’ rights. 4. 4. 4. 4. 4. Issues of civil liberties present many vexing problems for the courts to 10 The Bill of Rights—Then and Now 4.1 T e Bill of Rights ensures Americans’ basic liberties, such as freedom of speech and religion, and protection against arbitrary searches and being held for long periods without trial (see Table 4.1 ). When the Bill of Rights was ratif ed, British abuses of the 4.2 colonists’ civil liberties were still a fresh and bitter memory. Colonial of cials had jailed newspaper editors, arrested citizens without cause, and detained people and forced them to confess at gunpoint or worse. T us, the f rst 10 amendments enjoyed great 4.3 popular support. Political scientists have discovered that people are devotees of rights in theory but that their support often wavers when it comes time to put those rights into practice. 1 4.4 For example, Americans in general believe in freedom of speech, but many citizens  would oppose letting the Ku Klux Klan speak in their neighborhood or allowing public schools to teach about atheism or homosexuality. In addition, Americans seem willing to trade civil liberties for security when they feel that the nation is threatened, as in 4.5 the case of terrorism. 2 As you will see in this chapter, because few rights are absolute, we cannot avoid the dif cult questions of balancing civil liberties and other individual and societal values. 4.6 4.7 TABLE 4.1 THE BILL OF RIGHTS These amendments were passed by Congress on September 25, 1789, and ratified by the states on December 15, 1791. 4.8 Amendment I—Religion, Speech, Assembly, Petition Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment II—Right to Bear Arms A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. Amendment III—Quartering of Soldiers No Soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV—Searches and Seizures The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and per sons or things to be seized. Amendment V—Grand Juries, Double Jeopardy, Self-Incrimination, Due Process, Eminent Domain No person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger: nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI—Criminal Court Procedures In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII—Trial by Jury in Common-Law Cases In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States. Amendment VIII—Bails, Fines, and Punishment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX—Rights Retained by the People The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X—Rights Reserved to the States The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 108 The Bill of Rights and the States rst words: “Congress shall make no law....” T e Founders wrote the Bill of Rights to restrict the powers of Take another look at the First Amendment. Note the f the new national government. In 1791, Americans were comfortable with their state governments; after all, every the grand jury requirement of the Fifth Amendment, and state constitution had its own bill of rights. T us, a literal the prohibition against excessive f nes and bail in the reading of the First Amendment suggests that it does not Eighth Amendment have not been applied specif cally to prohibit a state government from passing a law the states. prohibiting the free exercise of religion, free speech, or freedom of the press. What happens, however, if a state passes a law violating one of the rights protected by the federal Bill of Rights Freedom of Religion and the state’s constitution does not prohibit this abridg Distinguish the two types of religious rights protected by the ment of freedom? In 1833, the answer to that question 4.2 was “nothing.” T e Bill of Rights, said the Court in First Amendment and determine the boundaries of those rights. Barron v. Baltimore, restrained only the national government, not states and cities. An opening toward a dif erent answer was provided by the Fourteenth Amendment, one of the three “Civil War amendments,” which was ratif ed in 1868. T e Fourteenth Amendment declares, T he First Amendment contains two elements regarding religion and No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor government. T ese elements are commonly referred to shall any state deprive any person of life, liberty, or property, as the establishment clause and the free exercise without due process of law; nor deny to any person within its clause. T e establishment clause states that “Congress jurisdiction the equal protection of the laws. shall make no law respecting an establishment of religion.” Nonetheless, in the Slaughterhouse Cases (1873), the Supreme Court gave a nar row interpretation of the Fourteenth Amendment’s privileges or immunities clause, First Amendment con cluding it applied only to national citizenship and not 4. state citizenship and thus did little to protect rights 4. against state actions. The constitutional amendment that establishes the four great In 1925, in Gitlow v. New York, however, the Court liberties: freedom of the press, of speech, of reli gion, and of assembly. relied on the Fourteenth Amendment to rule that a state 4. government must respect some First Amendment rights. Specif cally, the Court said that freedoms of speech and Barron v. Baltimore The 1833 Supreme Court decision holding that the Bill of Rights press “were fundamen tal personal rights and liberties 4. protected by the due process clause of the Fourteenth restrained only the national govern ment, not the states and cities. Amendment from impairment by the states.” In ef ect, the Court interpreted the Fourteenth Amendment to say that 4. states could not abridge the freedoms of expres sion Fourteenth Amendment protected by the First Amendment. The constitutional amendment adopted after the Civil War that T is decision began the development of the declares “No State shall make or 4. incorporation doctrine, the legal concept under which enforce any law which shall abridge the privileges or immunities of the Supreme Court has nationalized the Bill of Rights by citi zens of the United States; nor shall any state deprive any making most of its provisions applicable to the states person of life, 4. through the Fourteenth Amendment. In Gitlow, the liberty, or property, without due process of law; nor deny to any per son within its jurisdiction the equal protection of the laws.” Supreme Court held only parts of the First Amendment 4. to be binding on the states. Gradually, and especially Gitlow v. New York during the 1960s, the Court applied most of the Bill of The 1925 Supreme Court decision holding that freedoms of press Rights to the states (see Table 4.2 ). Many of the and decisions that nationalized provisions of the Bill of Rights 4. were controversial. Nevertheless, today the Bill of Rights speech are “fundamental personal rights and liberties protected by guarantees individual freedoms against infringement by the due process clause of the Fourteenth Amendment from state and local governments as well as by the national impairment by the states” as well as by the federal government. government. Only the T ird and Seventh Amendments,  The legal concept under which the Supreme Court has due process clause nationalized the Bill of Rights by making most of its provisions Part of the Fourteenth Amendment guaranteeing that persons applicable to the states through the Fourteenth Amendment. cannot be deprived of life, liberty, or property by the United States or state govern establishment clause ments without due process of law. Part of the First Amendment stating that “Congress shall make no law respecting an establishment of religion.” incorporation doctrine 10 TABLE 4.2 THE INCORPORATION OF THE BILL OF RIGHTS 4.1 Date Amendment Right Case 1925 First Freedom of speech Gitlow v. New York 4.2 1931 First Freedom of the press Near v. Minnesota 1937 First Freedom of assembly De Jonge v. Oregon 4.3 1940 First Free exercise of religion Cantwell v. Connecticut 1947 First Establishment of religion Everson v. Board of Education 1958 First Freedom of association NAACP v. Alabama 4.4 1963 First Right to petition government NAACP v. Button 2010 Second Right to bear arms McDonald v. Chicago Third No quartering of soldiers Not incorporated a 4.5 1949 Fourth No unreasonable searches and seizures Wolf v. Colorado 1961 Fourth Exclusionary rule Mapp v. Ohio 4.6 1897 Fifth Guarantee of just compensation Chicago, Burlington, and Quincy RR v. Chicago 1964 Fifth Immunity from self-incrimination Mallory v. Hogan 1969 Fifth Immunity from double jeopardy Benton v. Maryland 4.7 Fifth Right to grand jury indictment Not incorporated 1932 Sixth Right to counsel in capital cases Powell v. Alabama 1948 Sixth Right to public trial In re Oliver 4.8 1963 Sixth Right to counsel in felony cases Gideon v. Wainwright 1965 Sixth Right to confrontation of witnesses Pointer v. Texas 1966 Sixth Right to impartial jury Parker v. Gladden 1967 Sixth Right to speedy trial Klopfer v. North Carolina 1967 Sixth Right to compulsory process for obtaining witnesses Washington v. Texas 1968 Sixth Right to jury trial for serious crimes Duncan v. Louisiana 1972 Sixth Right to counsel for all crimes involving jail terms Argersinger v. Hamlin Seventh Right to jury trial in civil cases Not incorporated 1962 Eighth Freedom from cruel and unusual punishment Robinson v. California Eighth Freedom from excessive fines or bail Not incorporated 1965 Ninth Right of privacy Griswold v. Connecticut aThe quartering of soldiers has not occurred under the Constitution. T e free exercise clause prohibits the abridgment of citizens’ freedom to worship or not to worship as they free exercise clause please. Sometimes these freedoms conf ict. T e A First Amendment provision that prohibits government from government’s practice of providing chaplains on interfering with the practice of religion. military bases is one example of this conf ict; some  accuse the government of establishing religion in order Some nations, such as Great Britain, have an to ensure that members of the armed forces can freely established church that is of cially supported by the practice their religion. Usually, however, the government and recognized as a national institution. A establishment clause and the free exercise clause few American colonies had of cial churches, but the cases raise dif erent kinds of conf icts. Religious religious persecutions that incited many colonists to issues and controversies have assumed importance in move to America discouraged any desire that the First political debate in recent years, 3 so it is not surprising Congress might have had to that interpretations of the Constitution are intertwined with partisan politics. The Establishment Clause 110 establish a national church in the United States. T us, the buildings. Public funds may also be used to provide First Amendment prohibits an established national students in parochial schools with textbooks, computers religion. and other instructional equipment, lunches, and It is much less clear, however, what else the First transportation to and from school and to administer Congress intended to include in the establishment standardized testing services. However, schools may not clause. Some people argued that it meant only that the use public funds to pay teacher salaries or to provide government could not favor one religion over another. In transportation for students on f eld trips. T e theory contrast, T omas Jef erson argued that the First underlying these decisions is that it is possible to Amendment created a “wall of separation” between determine that build ings, textbooks, lunches, school church and state, forbid buses, and national tests are not used to support ding not just favoritism but also any support for religion at sectarian education. However, determining how teachers all. T ese interpretations continue to provoke argument, handle a subject in class or focus a f eld trip may require especially when religion is mixed with education, as complex and constitutionally impermissible regulation of occurs with such issues as government aid to religion. church-related schools and prayer in public schools. In an important loosening of its constraints on aid to parochial schools, the Supreme Court decided in 1997 in EDUCATION Proponents of aid to church-related Agostini v. Felton that public school systems could send schools argue that it does not favor any specific religion. teachers into parochial schools to teach remedial and Some opponents reply that the Roman Catholic Church supplemental classes to needy children. In a landmark has by far the largest religious school system in the decision in 2002, the Court in Zelman v. country and gets most of the aid. It was Lyndon B. Simmons-Harris upheld a program that provided some Johnson, a Protestant, who in 1965 obtained the families in Cleveland, Ohio, with vouchers they could passage of the first sub use to pay tuition at religious schools. stantial aid to parochial elementary and secondary schools. He argued that the aid went to students, not RELIGIOUS ACTIVITIES IN PUBLIC SCHOOLS In schools, and thus should go wherever the students were, recent decades, the Supreme Court has also been includ ing church-related schools. opening public schools to religious activities. The Court In Lemon v. Kurtzman (1971), the Supreme Court decided that public universities that permit student declared that laws that provide aid to church-related groups to use their facilities must allow student religious schools must do the following: groups on campus to use the facilities for religious worship. 4 In the 1984 Equal Access Act, Congress 1. Have a secular legislative purpose made it unlawful for any public high school receiving 2. Have a primary effect that neither advances nor federal funds (almost all of them do) to keep student inhibits religion 3. Not foster an excessive government groups from using school facilities for religious worship if “entanglement” with religion the school opens its facilities for other student meetings. 5 In 2001, the Supreme Court extended this principle to Since that time, the Court has had to draw a f ne line public elementary schools. 6 Similarly, in 1993, the Court between aid that is per missible and aid that is not. For required public schools that rent facilities to instance, the Court has allowed religiously af liated organizations to do the same for religious groups. 7 colleges and universities to use public funds to construct  Beyond the question of use of facilities there is the 4. question of use of public funds for religious activities in ing families with vouchers that could be used to pay for tuition at public school contexts. In 1995, the Court held that religious schools. 4. Lemon v. Kurtzman 4. The 1971 Supreme Court decision that established that aid to church related schools must (1) have a secular legislative 4. purpose; (2) have a primary 4. effect that neither advances nor inhib its religion; and (3) not foster exces sive government entanglement with religion. 4. 4. Zelman v. Simmons-Harris The 2002 Supreme Court decision that upheld a state program provid 4. 111 The 1962 Supreme Court decision holding Township, Pennsylvania v. Schempp 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 that state officials violated the First The 1963 Supreme Court decision holding Amendment when they wrote a prayer to be that a Pennsylvania law requiring Bible recited by New York’s schoolchildren. reading in schools violated the establishment clause of the First Engel v. Vitale School District of Abington Amendment. the University of Virginia was religious issue. In Engel v. Vitale was to return prayer to the schools. T constitutionally required to subsidize a (1962) and School District of e Court indicated that a less clumsy student reli gious magazine on the Abington Township, Pennsylvania approach would pass its scrutiny. 15 same basis as other student v. Schempp (1963), the Court publications. 8 However, in 2004, the aroused the wrath of many Americans Court held that the state of by ruling that recitations of prayers (in Washington could exclude students the former case) or Bible passages (in pursuing a devotional theology the latter) as part of classroom degree from its general scholarship exercises in public schools violated program. 9 the establishment clause. In the 1963 T e threshold of constitutional decision, the justices observed that acceptability becomes higher when “the place of religion in our society is public funds are used more directly an exalted one... [but] in the for education. T us, school authorities relationship between man and may not permit religious instructors to religion, the State is f rmly commit come into public school buildings ted to a position of neutrality.” during the school day to provide reli It is not unconstitutional, of course, to gious education, 10 although they may pray in public schools. Students may release students from part of the pray silently as much as they wish. compulsory school day to receive What the Constitution forbids is the religious instruction elsewhere. In sponsorship or encouragement of 11 1980, the Court also prohib ited the prayer, directly or indirectly, by public posting of the Ten Commandments on school authorities. T us, the Court the walls of public classrooms. 12 has ruled that school-sponsored Two particularly contentious topics prayer at a public school graduation 13 One of the most controversial issues regarding the First Amendment’s prohibition of the related to religion in public schools are and student-led prayer at football14 establishment of religion is prayer in public school prayer and the teaching of games were unconstitutional. When schools. Although students may pray on their “alternatives” to the theory of several Alabama laws authorized own, school authorities may not sponsor or evolution. schools to hold one-minute periods of encourage prayer. Some schools violate the silence for “meditation or vol law, however. What was your experience with prayer in SCHOOL PRAYER School prayer is untary prayer,” the Court rejected this school? perhaps the most controversial approach because the state made it clear that the purpose of the statute 112 Many school districts have simply ignored the Supreme Court’s ban on school prayer and continue to allow prayers in their classrooms. Some religious groups and 4. many members of Congress, especially conservative Republicans, have pushed for a constitutional amendment permitting prayer in school. A majority of the public con sistently supports school prayer. 16 4. EVOLUTION Fundamentalist and evangelical Christian groups have pressed some state legislatures to mandate the teaching of “creation science”—their alternative to 4. Darwin’s theory of evolution—in public schools. Louisiana, for example, passed a law requiring schools that taught Darwinian theory to teach creation science, too. In 1987, the Supreme Court ruled that this law violated the establishment clause. 17 The Court 4. had already held, in a 1968 case, that states cannot prohibit Darwin’s theory of evolu tion from being taught in the public schools. 18 More recently, some groups have advo cated, as an alternative to evolution, “intelligent design,” the view that living things are  4. too complicated to have resulted from natural selection and thus must be the result of an intelligent cause. Although they claim that their belief has no religious implica tions, lower courts have begun to rule that requiring teachers to present intelligent 4. design as an alternative to evolution is a constitutionally unacceptable promotion of religion in the classroom. 4. PUBLIC DISPLAYS The Supreme Court’s struggle to interpret the establishment clause is also evident in areas other than education. In 2005, the Supreme Court found that two Kentucky counties violated the establishment clause value of official religious 4. neutrality when they posted large, readily visible copies of the Ten Commandments in their courthouses. The Court concluded that the counties’ ostensible and pre dominant purpose was to advance religion. 19 However, the Court did not hold that a governmental body can never integrate a sacred text constitutionally into a gov ernmental display on law or history. Thus, in 2005, the Court also upheld the inclu sion of a monolith inscribed with the Ten Commandments among the 21 historical markers and 17 monuments surrounding the Texas State Capitol. The Court argued that simply having religious content or promoting a message consistent with a reli gious doctrine does not run afoul of the establishment clause. Texas’s placement of the Commandments monument on its capitol grounds was a far more passive use of those texts than their posting in elementary school classrooms and also served a legitimate historical purpose. 20 Displays of religious symbols during the holidays have prompted considerable controversy. In 1984, the Court found that Pawtucket, Rhode Island, could set up a Christmas nativity scene on public property—along with Santa’s house and sleigh, Christmas trees, and other symbols of the Christmas season. 21 Five years later, the Court extended the principle to a Hanukkah menorah placed next to a Christmas tree. T e Court concluded that these displays had a secular purpose and provided little or no benef t to religion. At the same time, the Court invalidated the display of the nativity scene without secular symbols in a courthouse because, in this context, the county gave the impression of endorsing the display’s religious message. 22 Why It Matters to You The Establishment Clause What if the Constitution did not prohibit the establishment of religion? If a domi nant religion received public funds and was in a position to control health care, public education, and other important aspects of public policy, these policies might be quite different from what they are today. In addition, the potential for conflict between followers of the established religion and adherents of other religions would be substantial. 11 T e Court’s basic position is that the Constitution does not require complete sepa ration of church and state; it mandates accommodation of all religions and forbids hos 4.1 tility toward any. At the same time, the Constitution forbids government endorsement  of religious beliefs. Drawing the line between neutrality toward religion and promotion of it is not easy; this dilemma ensures that cases involving the establishment of religion 4.2 will continue to come before the Court. The Free Exercise Clause 4.3 T e First Amendment also guarantees the free exercise of religion. T is guarantee seems simple enough. Whether people hold no religious beliefs, practice voodoo, or 4.4 go to church, temple, or mosque, they should have the right to practice religion as they choose. In general, Americans are tolerant of those with religious views outside the mainstream, as you can see in “America in Perspective: Tolerance for the Free Speech 4.5 Rights of Religious Extremists.” T e matter is, of course, more complicated. Religions sometimes forbid actions that society thinks are necessary; conversely, religions may require actions that soci 4.6 ety f nds unacceptable. For example, what if a religion justif es multiple marriages or the use of illegal drugs? Muhammad Ali, the boxing champion, refused induction into the armed services during the Vietnam War because, he said, military service 4.7 would violate his Muslim faith. Amish parents often refuse to send their children to public schools. Jehovah’s Witnesses and Christian Scientists may refuse to accept blood transfusions and certain other kinds of medical treatment for themselves or their children. 4.8 America in Perspective Tolerance for the Free Speech Rights of Religious Extremists Spain D espite 9/11, Americans are more tolerant of the Netherlands France Britain free speech rights of religious extremists than are people in other democracies with developed religion is the only true faith and all other religions economies. should be considered enemies. Do you think such people should be allowed to hold public meetings to Question: There are some people whose views are express their views? considered extreme by the majority. Consider reli gious extremists, that is, people who believe that their CRITICAL THINKING QUESTION Why do you think Americans are so tolerant? USA Ireland New Zealand 60 Norway 55 Denmark Sweden 51 47 Austria Finland 47 Switzerland 44 34  33 25 29 25 27 25 Germany 23 Percent for allowing meetings of religious extremists SOURCE: Authors’ analysis of 2008 International Social Survey Program data. 114 4. 4. 4. 4. 4. Cassius Clay was the world heavyweight boxing champion before he converted to Islam, changed his name to Muhammad Ali, and was drafted during the war in Vietnam. Arguing that he opposed 4. war on religious grounds, he refused to join the army. The federal government prosecuted him for draft dodging, and he was stripped of his title. In 1971, the Supreme Court overturned his conviction for draft evasion. He is pictured here at the Houston induction center in 1967. 4. Consistently maintaining that people have an inviolable right to believe what they want, the courts have been more cautious about the right to practice a belief. What 4. if, the Supreme Court once asked, a person “believed that human sacrif ces were a necessary part of religious worship?” Not all religious practices receive constitutional protection. T us, over the years, the Court has upheld laws and regulations forbid ding polygamy, prohibiting business activities on Sunday (restricting the commerce of Orthodox Jews, for whom Sunday is a workday), denying tax exemptions to religious schools that discriminate on the basis of race, 23 allowing the building of a road through ground sacred to some Native Americans, and even prohibiting a Jewish air force cap tain from wearing his yarmulke while on duty (Congress later intervened to permit military personnel to wear yarmulkes). At the same time, Congress and the Supreme Court have granted protection to a range of religiously motivated practices. T e Court allowed Amish parents to take their children out of school after the eighth grade, reasoning that the Amish community was well established and that its children would not burden the state. 24 More broadly, although a state can compel parents to send their children to an accredited school, parents have a right to choose religious schools rather than public schools for their children’s education. A state may not require Jehovah’s Witnesses or members of other religions to participate in public school f ag-saluting ceremonies.  Congress has also decided—and the courts have upheld—that people can become conscientious objectors to war on religious grounds. In 2012, the Court held that just as the establishment clause prevents the government from appointing ministers, the free exercise clause prevents it from interfering with the freedom of religious groups to select their own. T us, religious groups are not subject to employment discrimination laws. 25 What kind of laws that af ect religious practices might be constitutional? In 1988, in upholding Oregon’s prosecution of persons using the drug peyote as part of their religious rituals ( Employment Division v. Smith), the Court decided that state laws interfering with religious practices but not specif cally aimed at religion were con stitutional. As long as a law did not single out religious practices because they were engaged in for religious reasons, it could apply to conduct even if the conduct were reli giously inspired. 26 However, the Religious Freedom Restoration Act, which Congress passed in 1993 and which applies only to the national government, 27 requires laws to meet a more restrictive standard: a law or regulation cannot interfere with religious 11 29 2005. You can examine a free muf ed, speech that is forbidden, and 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 exercise case involving local laws in meetings that cannot be held are the “You Are the Judge: T e Case of enemies of the democratic process. Animal Sacrif ces.” Totalitarian governments know this, Explore on MyPoliSciLab Simulation: You which is why they go to enormous Are a Police Officer trouble to limit expression. practices unless the government can show that it was narrowly tailored and Freedom of Americans pride themselves on their free and open society. Freedom of in pursuit of a “compelling interest.” T e Court in a 2006 decision allowed a Expression conscience is absolute; Americans can believe whatever they want. T e small religious sect to use a Differentiate the rights of free First Amendment plainly forbids the hallucinogenic tea in its rituals despite 4.3 national government from limiting the federal government’s attempts to expression protected by the First freedom of expression—that is, the bar its use. 28 Amendment and right to say or publish what one In 2000, Congress passed legislation determine the boundaries believes. Is freedom of expression, that, in accordance with the of those rights. then, like freedom of conscience, “compelling interest” standard, made absolute? Most experts answer “no.” it more dif cult for local governments Supreme Court justice Oliver Wendell A to enforce zoning or other regulations Holmes of ered a classic example of against religious groups and required democracy depends on the impermissible speech in 1919: “T e governments to allow those most stringent protection of free institutionalized in state facilities (such free expression of ideas. T oughts that speech would not protect a man in as prisons) to practice their faith. T e falsely shouting ‘f re’ in a theater and are causing a panic.” Supreme Court upheld this law in T he church of Lukumi Babalu Aye, in Hialeah, Florida, practiced Santeria, a Caribbean-based mix of African ritual, voodoo, and Catholicism. Central to Santeria is the ritual sacrifice of animals—at birth, You Are the Judge marriage, and death rites as well as at ceremonies to cure the sick and initi The Case of Animal Sacrifices ate new members. Offended by these rituals, the city of Hialeah passed ordinances prohibiting animal sacrifices in religious cer emonies. The church challenged the constitutionality of  these laws, claiming they violated the free exercise requirement for animal sacrifice? clause of the First Amendment because the ordinances essentially barred the practice of Santeria. The city, the DECISION: Santerians claimed, was discriminating against a reli gious minority. Besides, many other forms of killing In 1993, the Court overturned the Hialeah ordi animals were legal, including fishing, using animals in nances that prohibited the use of animal sacrifice in medical research, selling lobsters to be boiled alive, and religious ritual. In Church of the Lukumi Babalu Aye, Inc. feeding live rats to snakes. v. City of Hialeah , the justices concluded that govern ments that permit other forms of killing animals may not then ban sacrifices or ritual killings. In this instance, the Court found no compelling state interest that justified the abridgment of the freedom of religion. YOU BE THE JUDGE: Do the Santerians have a constitutional right to sac rifice animals in their religious rituals? Does the city’s interest in protecting animals outweigh the Santerians’ 116 Given that not all speech is permissible, the courts have threats for prosecution as “hate speech” or “bias crimes.” had to address two questions in deciding where to draw 32 the line separating permissible from imper missible speech. First, can the government censor speech that it thinks will vio late the law? Second, what constitutes Prior Restraint speech (or press) within the meaning of the First In the United States, the First Amendment ensures that Amendment and thus deserves constitutional protection, even if the government frowns on some material, a and what does not? Holding a political rally to attack an person’s right to publish it is all but inviolable. T at is, it opposing candidate’s stand receives First Amendment ensures there will not be prior restraint, government protection. Obscenity and libel and incitements to actions that prevent material from being published—or, violence and over throw of the government do not. But in a word, censorship. A landmark case involving prior just how do we know, for example, what is obscene? To restraint is Near v. Minnesota (1931). A blunt complicate matters further, certain forms of nonverbal newspaper editor called local of cials a string of names speech, such as picketing, are considered symbolic including “grafters” and “Jewish gangsters.” T e state speech and receive First Amendment pro tection. Judges closed down his business, preventing him from also have had to balance freedom of expression against publishing, but the Supreme Court ordered the paper competing values, such as public order, national reopened. 33 Of course, the newspaper editor—or security, and the right to a fair trial. T en there are anyone else—could later be punished for violating a law questions regarding commercial speech. Does it receive or someone’s rights after publication. the same protection as religious and political speech? Regulating the publicly owned airwaves raises yet T e extent of an individual’s or group’s freedom from prior another set of dif cult questions. restraint does depend in part, however, on who that One controversial freedom of expression issue involves individual or group is. Expressions of students in public so-called hate speech. Advocates of regulating hate school may be limited more than those of adults in other speech forcefully argue that, for example, racial insults, settings. In 1988, the Supreme Court ruled that a high like f ghting words, are “undeserving of First Amendment school newspaper was not a public forum and could be protection because the perpetra tor’s intent is not to regulated in “any reasonable manner” by school of cials. 34 discover the truth or invite dialogue, but to injure the In 2007, the Court held that the special characteristics 30 victim.” In contrast, critics of hate speech policy argue of the school environment and the governmental interest that “sacrif cing free speech rights is too high a price to in stopping student drug abuse allow schools to restrict pay to advance the cause of equality.” 31 In 1992, the student expressions that they reasonably regard as 35 Supreme Court ruled that legislatures and universities promoting such abuse. may not single out racial, religious, or sexual insults or T e Supreme Court has also upheld restrictions on the right to publish in the name of national security. Wartime Near v. Minnesota. often brings censorship to protect classif ed information. T ese restrictions often have public support; few would f Near v. Minnesota nd it unconstitutional if a newspaper, for example, were The 1931 Supreme Court decision hauled into court for publishing troop movement plans 4. holding that the First Amendment protects newspapers from prior during a war. Nor have the restrictions upheld been restraint. limited to wartime censorship. T e national government 4. has successfully sued former CIA agents for failing to meet their contractual obligations to submit books about their work to the agency for censorship, even though the 4. books revealed no classif ed information. 36 In recent years, WikiLeaks has published hundreds of thousands of classif ed government documents covering a wide of range of foreign policy issues. T e U.S. Department of 4. Justice has opened a criminal probe of WikiLeaks founder Julian Assange. 4. prior restraint 4. Government actions preventing material from being published. Prior restraint is usually prohibited by the First Amendment, as 4. confirmed in 4.  11 “You Are the Judge: T e Case of the could limit speech if it provokes a 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 Purloined Pentagon Papers.” clear and pres ent danger of substantive evils. Only when such danger exists can Free Speech and Public government restrain speech. It is dif Schenck v. United States A 1919 Supreme Court decision upholding Order cult to say, of course, when speech the conviction of a socialist who had urged In wartime and peacetime, becomes dangerous rather than resistance to the draft during World War I. simply inconvenient for the Justice Holmes declared that government considerable conf ict has arisen over government. can limit speech if the speech provokes a the tradeof between free speech and “clear and present danger” of substantive the need for public order. During T e courts confronted the issue of free evils. World War I, Charles T. Schenck, the speech and public order during the Nevertheless, the courts are reluctant secretary of the American Socialist 1950s. In the late 1940s and early to issue injunctions prohibiting the Party, distributed thousands of leaf ets 1950s, there was widespread fear that publication of material even in the urging young men to resist the draft. communists had inf ltrated the area of national security. T e most Schenck was charged with impeding government. American famous case regarding prior restraint the war ef ort. T e Supreme Court anticommunism was a powerful force, and national security involved the upheld his conviction in Schenck v. and the national government was publication of stolen Pentagon United States (1919). Justice determined to jail the leaders of the papers. You can examine this case in Holmes declared that government Communist Party. Senator Joseph McCarthy and others in Congress cating the violent overthrow of the conspiring to advocate the violent persecuted people whom they American government. In Dennis v. overthrow of the government— even thought were subversive, based on United States (1951), the Supreme in the absence of evidence that they the Smith Act of 1940, which forbade Court upheld prison sentences for actually urged people to commit specif advo several Communist Party leaders for c You Are the Judge The Case of the Purloined Pentagon Papers sought an injunction against the Times that would have ordered it to cease publication of the secret documents. Government lawyers argued that national security was D uring the Johnson administration, the Department being breached and that Ellsberg had stolen the docu ments from the government. The Times argued that its of Defense amassed an elaborate secret history of freedom to publish would be violated if an injunction American involvement in the Vietnam War that included were granted. In 1971, the case of New York Times v. hundreds of documents, many of them secret cables, United States was decided by the Supreme Court. memos, and war plans. Many documented American ineptitude and South Vietnamese duplicity. One former Pentagon official, Daniel Ellsberg, who had become YOU BE THE JUDGE: disillusioned with the Vietnam War, managed to retain Did the Times have a right to publish secret, stolen access to a copy of these Pentagon papers. Hoping that Department of Defense documents? revelations of the Vietnam quagmire would help end American involvement, he decided to leak the Pentagon papers to the New York Times. DECISION: The Nixon administration pulled out all the stops in its In a 6-to-3 decision, a majority of the justices effort to embarrass Ellsberg and prevent publica tion of agreed that the “no prior restraint” rule prohibited the Pentagon papers. Nixon’s chief domestic affairs prosecution before the papers were published. The adviser, John Ehrlichman, approved a burglary of justices also made it clear that if the government Ellsberg’s psychiatrist’s office, hoping to find damaging brought prosecu information on Ellsberg. (The burglary was bungled, and tion for theft, the Court might be sympathetic. No such it eventually led to Ehrlichman’s conviction and impris charges were filed. onment.) In the courts, Nixon administration lawyers 118 Roth v. United States 4. A 1957 Supreme Court decision rul ing that “obscenity is not within the area of constitutionally protected speech or press.” 4. 4. 4. 4.  4. The prevailing political climate often determines what limits the government will place on free speech. During the early 1950s, Senator Joseph McCarthy’s persuasive—if unproven— 4. accusations that many public officials were communists created an atmosphere in which the courts placed restrictions on freedom of expression—restrictions that would be unacceptable today. 4. acts of violence. Although the activities of this tiny, unpopular group resembled yelling “Fire!” in an empty theater rather than a crowded one, the Court ruled that a communist takeover was so grave a danger that government could squelch their threat. T us, it concluded that protecting national security outweighed First Amendment rights. Soon the political climate changed, however, and the Court narrowed the interpretation of the Smith Act, making it more dif cult to prosecute dissenters. In later years, the Court has found that it is permissible to advocate the violent overthrow of the government in the abstract but not actually to incite anyone to imminent lawless action ( Yates v. United States ; Brandenburg v. Ohio ). T e 1960s brought waves of protest over political, economic, racial, and social issues and, especially, the Vietnam War. Many people in more recent times have engaged in public demonstrations, such as those opposing the war in Iraq or protesting against Wall Street. Courts have been quite supportive of the right to protest, pass out leaf ets, or gather signatures on petitions—as long as it is done in public places. People may even distribute campaign literature anonymously. 37 First Amendment free speech guarantees do not apply when a person is on private property, 38 however, although a state may include politicking in shopping centers within its own free speech guarantee. 39 Moreover, cities cannot bar residents from posting signs on their own property. 40 Obscenity Obscenity is one of the more perplexing of free speech issues. In 1957, in Roth v. United States, the Supreme Court held that “obscenity is not within the area of consti tutionally protected speech or press.” Deciding what is obscene, however, has never been an easy matter. Obviously, public standards vary from time to time, place to place, and person to person. Much of today’s MTV would have been banned only a few decades ago. What might be acceptable in Manhattan’s Greenwich Village would shock resi dents of some other areas of the country. Works that some people call obscene might be good entertainment or even great art to others. At one time or another, the works of Aristophanes, Mark Twain, and even the “Tarzan” stories by Edgar Rice Burroughs 11 appealing to a “prurient interest” and being as obscene and thus outside First “patently offensive” and lacking in value. Amendment protection in the 1973 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 were banned. T e state of Georgia case of Miller v. California. Warren banned the acclaimed f lm Carnal Burger, chief justice at the time, wrote Knowledge (a ban the Supreme Court that materials were obscene under Miller v. California struck down in 1974). 41 the following circumstances: A 1973 Supreme Court decision holding that community standards be used to determine T e Court tried to clarify its doctrine by whether material is obscene in terms of spelling out what could be classif ed 1. The work, taken as a whole, appealed “to a prurient interest in examples” of what sort of material mining what is lewd or of ensive. sex.” 2. The work showed “patently might fall within this def nition of In addition to the dif culty in def ning offensive” sexual conduct that was obscenity. Among these examples obscenity, another reason why obscen specifically defined by an obscenity were “patently of ensive ity convictions can be dif cult to obtain representations of ultimate sexual acts is that no nationwide consensus exists law. … actual or simulated,” “patently of that of ensive material should be 3. The work, taken as a whole, lacked ensive representations of banned—at least not when it is “serious literary, artistic, political, or masturbation or excretory functions,” restricted to adults. In many scientific value.” or “lewd exhibition of the genitals.” communities the laws are lenient Decisions regarding whether material Cities throughout the country regarding pornography, and was obscene, said the Court, should duplicated the language of Miller in prosecutors know that they may not be based on average people (in other their obscenity ordinances. T e get a jury to convict, even when the words, juries) applying the qualifying adjectives lewd and of disputed material is obscene as def contemporary standards of local—not ensive prevent communities from ned by Miller. T us, obscene material national—communities. banning anatomy texts, for example, is widely available in adult bookstores, T e Court did provide “a few plain as obscene. T e dif culty remains in video stores, and movie theaters. deter Many people are concerned about the impact of violent video games on children. Although government can regulate depictions of some sexual material, it cannot regulate depictions of violence. 120 Despite the Court’s best ef orts to def ne obscenity and determine when it can be banned, state and local governments continue to struggle with the application of these 4. rulings. In one famous case, a small New Jersey town tried to get rid of a nude danc ing parlor by using its zoning power to ban all live entertainment. T e Court held that the measure was too broad, restricting too much expression, and was thus unlawful. 42 4. However, the Court has upheld laws specif cally banning nude dancing when their ef ect on overall expression was minimal. 43 Jacksonville, Florida, tried to ban drive-in movies containing nudity. You can examine the Court’s reaction in “You Are the Judge: 4. T e Case of the Drive-in T eater.” Regulations such as rating systems for movies and television aimed at keep ing obscene material away from the young, who are considered more vulnerable to 4. its harmful inf uences, have wide public support, and courts have consistently ruled that states may protect children from obscenity. Also strongly supported by the public and the courts are laws designed to protect the young against pornographic exploita 4. tion. It is a violation of federal law to receive sexually explicit photographs of children through the mail or over the Internet, and in 1990 the Supreme Court upheld Ohio’s law forbidding the possession of child pornography. 44 4. Advances in technology have created a new wrinkle in the obscenity issue. T e Internet and the World Wide Web make it easier to distribute obscene material rap idly, and a number of online information services have taken advantage of this oppor 4. tunity. In 1996, Congress passed the Communications Decency Act, banning obscene material and criminalizing the transmission of indecent speech or images to anyone under 18 years of age. T is law made no exception for material that has serious literary, 4. artistic, political, or scientif c merit as outlined in Miller v. California, and in 1997, the Supreme Court overturned it as being overly broad and vague and thus a violation of You Are the Judge The Case of the Drive-in Theater Arrested for violating the ordinance, a Mr. Erznoznik challenged the constitutionality of the ordinance. He claimed that the law was overly broad and banned A lmost everyone concedes that sometimes obscen ity nudity, not obscenity. The lawyers for the city insisted that the should be banned by public authorities. One instance law was acceptable under the First Amendment. The might be when a person’s right to show porno graphic govern ment, they claimed, had a responsibility to forbid movies clashes with another’s right to privacy. Showing dirty movies in an enclosed theater or in the pri a “public nuisance,” especially one that might cause a vacy of your own living room is one thing. Showing them traffic hazard. in public places where anyone, including schoolchildren, might inadvertently see them is something else. Or is it? YOU BE THE JUDGE: The city of Jacksonville, Florida, wanted to limit the showing of certain kinds of movies at drive-in theat ers. Did Jacksonville’s ban on nudity in movies at drive Its city council reasoned that drive-ins were public ins go too far, or was it a constitutional limit on free places and that drivers passing by would be involun speech? tarily exposed to movies they might prefer not to see. Some members of the council argued that drivers dis DECISION: tracted by steamy scenes might even cause accidents. So the council passed a local ordinance forbidding mov In Erznoznik v. Jacksonville (1975), the Supreme ies showing nudity (defined in the ordinance as “bare Court held that Jacksonville’s ordinance was unconstitu buttocks … female bare breasts, or human bare pubic tionally broad. The city council had gone too far; it could areas”) at drive-in theaters. end up banning movies that might not be obscene. The  ordinance would, said the Court, ban a film “containing enous.” Said Justice Powell for the Court, “Clearly, all a picture of a baby’s buttocks, the nude body of a war nudity cannot be deemed obscene.” victim or scenes from a culture where nudity is indig 121 protected by the First Amendment is on democratic dialogue. 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 defamation, false statements that are malicious and damage a person’s reputation. Libel refers to written defamation, slander to spoken Private individuals have a lower libel defamation. standard to meet for winning libel The publication of false and malicious statements that damage someone’s Of course, if politicians could collect lawsuits. T ey need show only that reputation. damages for every untrue thing said statements made about them were about them, the right to criticize the defamatory falsehoods and that the New York Times v. Sullivan A 1964 government—which the Supreme author was negligent. Nevertheless, it Supreme Court decision establishing that, to Court termed “the central meaning of is unusual for someone to win a libel win damage suits for libel, public figures case, and most people do not wish to must prove that the defamatory statements the First Amendment”—would be stif draw attention to critical statements were made with “actual malice” and recklessed. No one would dare be critical for disre gard for the truth. fear of making a factual error. To about themselves. 45 free speech. In 2002, the Court encourage public debate, the If public debate is not free, there can overturned a law banning virtual child Supreme Court has held in cases be no democracy, yet in the process of pornography on similar grounds. 46 such as New York Times v. Sullivan free debate some reputations will be (Apparently the Supreme Court views (1964) that statements about public f damaged (or at least bruised), the Internet similarly to print media, gures are libelous only if made with sometimes unfairly. Libel cases must with similar protections against malice and reckless disregard for the thus balance freedom of expression government regulation.) In 1999, how truth. Public f gures have to prove to a with respect for individual reputations. ever, the Court upheld prohibitions on jury, in ef ect, that whoever wrote or In one widely publicized case, General obscene e-mail and faxes. In 2011, said untrue statements about them William Westmoreland, once the the Court ruled that a California law knew that the statements were untrue commander of American troops in banning the sale or rental of violent and intended to harm them. T is South Vietnam, sued CBS over a video games to minors violated the standard makes libel cases dif cult for documentary it broadcast called T e First Amendment because the games public f gures to win because it is dif Uncounted Enemy. It claimed that communicate ideas. 47 Depictions of cult to prove that a publication was American military leaders in Vietnam, 48 including Westmoreland, violence, the Court added, have never intentionally malicious. systematically lied to Washington been subject to govern ment about their success there to make it regulation and thus do not qualify for appear that the United States was the same exceptional treatment af orded to obscene materials. T e Why It Matters to winning the war. T e evidence, including CBS’s own internal California law imposed a restriction on the content of protected speech and You memoranda, showed that the documentary made errors of fact. was invalid because the state could not show that it served a compelling Libel Law Westmoreland sued CBS for libel. Ultimately, the power of the press—in government interest and was narrowly It is difficult for public figures to win libel tailored to serve that interest. cases. Public figures will likely lose even if this case, a sloppy, arrogant they can show that the defendant made press—prevailed. Fearing defeat at defamatory falsehoods about them. This the trial, Westmoreland settled for a Libel and Slander may not be fair, but it is essential for people mild apology. 49 to feel free to criticize public officials. Fear of Another type of expression not losing a lawsuit would have a chilling effect 122 An unusual case that explored the line between parody Reverend Jerry Falwell sued Hustler magazine. Hustler and libel came before the Supreme Court in 1988, when editor Larry Flynt had printed a parody of a Campari Liquor ad about various celebri ties called “First Time” (in which celebrities related the f rst time they drank Campari, but with an intentional double meaning). When Free Press and Fair Trials Hustler depicted the Reverend Jerry Falwell having had T e Bill of Rights is an inexhaustible source of potential his “f rst time” in an outhouse with his mother, Falwell conf icts among dif erent types of freedoms. One is the sued. He alleged that the ad subjected him to great conf ict between the right of the press to print what it emotional distress and mental anguish. T e case tested wants and the right to a fair trial. T e quantity of press the limits to which a publication could go to parody or coverage given to the trial of Michael Jackson on lampoon a public f gure. T e Supreme Court ruled that charges of child sexual abuse was extraordinary, and they can go pretty far—all nine justices ruled in favor of little of it was sympathetic to Jackson. Defense attorneys the magazine. 50 argue that such publicity can inf ame the community—and potential jurors—against defendants and compromise the fairness of a trial. It may very well. Symbolic Speech Nevertheless, the Court has never upheld a restriction on Freedom of speech, more broadly interpreted, is a the press in the interest of a fair trial. T e Constitution’s guarantee of freedom of expres sion. In 1965, school guarantee of freedom of the press entitles journalists to authorities in Des Moines, Iowa, suspended Mary Beth cover every trial. When a Nebraska judge issued a gag Tinker and her brother John when they wore black order forbidding the press to report any details of a armbands to protest the Vietnam War. T e Supreme particularly gory murder (or even to report the gag order Court held that the suspension violated the Tinkers’ First itself ), the outraged Nebraska Press Association took Amendment rights. T e right to freedom of speech, said the case to the Supreme Court. T e Court sided with the the Court, went beyond the spoken word. 51 editors and revoked the gag order. 55 In 1980, the Court As discussed in the chapter on the Constitution, w hen reversed a Virginia judge’s order to close a murder trial Gregory Johnson set a f ag on f re at the 1984 to the public and the press. “T e trial of a criminal case,” Republican National Convention in Dallas to protest said the Court, “must be open to the public.” 56 A pretrial nuclear weap ons, the Supreme Court decided that the hearing, state law prohibiting f ag desecration violated the First Texas v. Johnson Amendment ( Texas v. Johnson ). Burning the f 4. ag, the Court said, con stituted speech and not just A 1989 case in which the Supreme Court struck down a law dramatic action. 52 When Massachusetts courts ordered banning the burning of the American flag on the grounds that the organizers of the annual St. Patrick’s Day parade to such action was sym include the Irish-American Gay, Lesbian, and Bisexual 4. Group of Boston, the Supreme Court declared that a bolic speech protected by the First Amendment. parade is a form of protected speech, and thus that the organizers are free to include or exclude whomever they symbolic speech want. 4. Nonverbal communication, such as burning a flag or wearing an Wearing an armband, burning a f ag, and marching in a armband. The Supreme Court has accorded some symbolic parade are examples of symbolic speech: actions that speech protection do not consist of speaking or writing but that express an 4. opinion. Court decisions have classif ed these activities under the First Amendment. somewhere between pure speech and pure action. T e doctrine of symbolic speech is not precise; for example, 4. although burning a f ag is protected speech, burning a draft card is not. 53 In 2003, the Court held that states may make it a crime to burn a cross with a purpose to intimi 4. date, as long as the law clearly gives prosecutors the burden of proving that the act was intended as a threat and not as a form of symbolic expression. 54 Despite the 4. impreci sions, these cases make it clear that First Amendment rights are not limited by a rigid def nition of what constitutes speech. 4.  12 Ultimately, the only feasible measure to trial. T e Supreme Court ruled in 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 that the judicial system can take Branzburg v. Hayes (1972) that in the against the inf uence of publicity in absence of shield laws, the right of a high-prof le cases is to sequester the fair trial preempts the reporter’s right Zurcher v. Stanford Daily jury, thereby isolating it from the to protect sources. After a violent A 1978 Supreme Court decision holding t