Civil Liberties: A Historical Overview PDF

96 Chapter 5 Civil Liberties THEN Civil liberties Rights--- chiefly, rights to be free of government interference--- accorded to an individual by the Constitution: free speech, free press, and so on. In 1803, President Thomas Jefferson wrote to the governor of Pennsylvania complaining about the "lic...

96 Chapter 5 Civil Liberties THEN Civil liberties Rights--- chiefly, rights to be free of government interference--- accorded to an individual by the Constitution: free speech, free press, and so on. In 1803, President Thomas Jefferson wrote to the governor of Pennsylvania complaining about the "licentiousness" of newspapers and urging him and other state leaders to bring about "a few prosecutions of the most prominent offenders." This would, Jefferson said, have a "wholesome effect in restoring the integrity of the presses."1 NOW Today, such a recommendation likely would spark much public criticism. Prosecuting publishers who had attacked the government would strike many people as outrageous. T here are two key differences between then and now. First, as you will see later in this chapter, the Supreme Court decided in 1833 that the Bill of Rights restricted only the federal government. The only limits on state governments with regard to free speech, a free press, and religious freedom were those found in state constitutions. T his law changed after the ratification of the Fourteenth Amendment in 1868 and was (slowly) interpreted by the Supreme Court to mean that the states must also honor freedom for speech, publications, and churches. T he second change occurred in the minds of the American people. Gradually, but especially in the 20th century, they acquired a libertarian view of personal freedom. According to this perspective, the government at every level ought to leave people alone with respect to what they say, write, read, or worship. If you think that civil liberties are an issue only for people who make inflammatory speeches, think again. Imagine, for a moment, that you are a high school student. Dogs trained to sniff out drugs go down your high school corridors and detect marijuana in some lockers. The school authorities open and search your locker without permission or a court order. You are expelled from school without any hearing. Have your liberties been violated? Angry at what you consider unfair treatment, you decide to wear a cloth American flag sewn to the seat of your pants, and your fellow students decide to wear black armbands to class to protest how you were treated. The police arrest you for wearing a flag on your seat, and the school punishes your classmates for wearing armbands contrary to school regulations. Have your liberties, or theirs, been violated? You file suit in federal court to find out. We cannot be certain how the court would decide the issues in this particular case, but in similar cases in the past the courts have held that school authorities can use dogs to detect drugs in schools and that these officials can conduct a "reasonable" search of you and your effects if they have a "reasonable suspicion" that you are violating a school rule. But they cannot punish your classmates for wearing black armbands, they cannot expel you without a hearing, and the state cannot make it illegal to treat the flag "contemptuously" (by sewing it to the seat of your pants, for example). In 2007, however, the Supreme Court allowed a school principal to punish a student for displaying a flag saying "Bong Hits 4 Jesus" that the official felt endorsed drug use during a school-supervised event. So a student's free-speech rights (and a school's authority to enforce discipline) now lie somewhere between disgracing a flag (okay) and encouraging drug use (not okay).2 Your claim that these actions violated your constitutional rights would have astonished the Framers of the Constitution. They thought they had written a document that stated what the federal government could do, not one that specified what state governments (such as school systems) could not do. And they thought they had created a national government of such limited powers that it was not even necessary to add a list---a bill of rights---stating what that government was forbidden from doing. It would be enough, for example, that the Constitution did not authorize the federal government to censor newspapers; an amendment prohibiting censorship would be superfluous. T he people who gathered in the state ratifying conventions weren't so optimistic. They suspected---rightly, as it turned out---that the federal government might well try to do things it was not authorized to do, and so they insisted that the Bill of Rights be added to the Constitution. But even they never imagined that the Bill of Rights would affect what state governments could do. Each state would decide that for itself, in its own constitution. And if by chance the Bill of Rights did apply to the states, surely its guarantees of free speech and freedom from unreasonable search and seizure would apply to big issues---the freedom to attack the government in a newspaper editorial, for example, or to keep the police from breaking down the door of your home without a warrant. The courts would not be deciding who could wear what kinds of armbands or under what circumstances a school could expel a student. Civil liberties are the rights---chiefly, rights to be free of government interference---accorded to an individual by the Constitution: free exercise of religion, free speech, and so on. Civil rights, to be discussed in the next chapter, usually refer to protecting certain groups from discrimination based on characteristics such as their sex, sexual orientation, race, or ethnicity. In practice, however, there is no clear line between civil liberties and civil rights. For example, is the right to an abortion a civil liberty or a civil right? In this chapter, Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-1 The Courts and Conflicts over Civil Liberties 97 we take a look at free speech, free press, religious freedom, and the rights of the accused. In the next chapter, we look at discrimination and abortion. 5-1 The Courts and Conflicts over Civil Liberties We often think of "civil liberties" as a set of principles that protect the freedoms of all of us all of the time. That is true---up to a point. But in fact, the Constitution and the Bill of Rights contain a list of competing rights and duties. Clashes over civil liberties often end up in the courts. Rights in Conflict Political struggles over civil liberties follow much the same pattern as interest group politics involving economic issues, even though the claims in question are made by individuals. Indeed, formal, organized interest groups are concerned with civil liberties. The Fraternal Order of the Police complains about restrictions on police powers, whereas the American Civil Liberties Union defends and seeks to expand those restrictions. Catholics have pressed for public support of parochial schools; Protestants and Jews have argued against it. Sometimes the opposing groups are entirely private; sometimes one or both are government agencies. Competition over civil liberties becomes obvious when one person asserts one constitutional right or duty and another person asserts a different one. For example: At the funeral of a Marine killed in Iraq, Fred Phelps and others from a church picketed it with signs saying "Thank God for Dead Soldiers" and other outrageous remarks. (The opening photo for this chapter shows such picketers outside the Supreme Court.) The Marine's father sued the church, saying the picketers caused him suffering. Free speech versus extreme emotional distress. The U.S. government has an obligation to "provide for the common defense" and, in pursuit of that duty, has claimed the right to keep secret certain military and diplomatic information. The New York Times claimed the right to publish such secrets as the "Pentagon Papers" without censorship, citing the Constitution's guarantee of freedom of the press. A duty and a right in conflict. Carl Jacob Kunz delivered inflammatory anti-Jewish speeches on the street corners of a Jewish neighborhood in New York City, suggesting, among other things, that Jews be "burned in incinerators." The Jewish people living in that area were outraged. The New York City police commissioner revoked Kunz's license to hold public meetings on the streets. When he continued to air his views on the public streets, Kunz was arrested for speaking without a permit. Freedom of speech versus the preservation of public order. Even a disruptive high school student's right not to be a victim of arbitrary or unjustifiable expulsion is in partial conflict with the school's obligation to maintain an orderly environment in which learning can take place. To address these conflicts, courts must weigh which constitutional protection merits higher protection, and those judgments may change over time. (When the Supreme Court decided the cases given earlier, Phelps, the New York Times, and Kunz all won.3) War has usually been the crisis that has restricted the liberty of some minority. For example: The Sedition Act of 1798, declared that to write, utter, or publish "any false, scandalous, and malicious writing" with the intention of defaming the president, Congress, or the government, or of exciting against the government "the hatred of the people" was a crime. The occasion was a kind of half-war between the United States and France, stimulated by fear in this country of the violence following the French Revolution of 1789. T he policy entrepreneurs were Federalist politicians who believed that Thomas Jefferson and his followers were supporters of the French Revolution and would, if they came to power, encourage here the kind of anarchy that seemed to be occurring in France. The Espionage and Sedition Acts of 1917--1918 made crimes of uttering false statements that would interfere with the American military; sending through the mail material "advocating or urging treason, insurrection, or forcible resistance to any law of the United States"; or uttering or writing any disloyal, profane, scurrilous, or abusive language intended to incite resistance to the United States or to curtail war production. The occasion was World War I, and the impetus was the fear that Germans in this country were spies and also that radicals were seeking to overthrow the government. Under these laws, more than 2,000 persons were prosecuted (about half were convicted), and thousands of aliens were rounded up and deported. The policy entrepreneur leading this massive crackdown (the so-called Red Scare) was Attorney General A. Mitchell Palmer. The Smith Act was passed in 1940, the Internal Security Act in 1950, and the Communist Control Act in 1954. These laws made it illegal to advocate the overthrow of the U.S. government by force or violence (Smith Act), required members of the Communist Party to register with the government (Internal Security Act), and declared the Communist Party to be part of a conspiracy to overthrow the government (Communist Control Act). The occasion was World War II and the Korean War, which, like earlier wars, inspired Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.98 Chapter 5 Civil Liberties Cultural Conflicts fears that foreign agents (Nazi and Soviet) were trying to subvert the government. For the latter two laws, the policy entrepreneur was Senator Joseph McCarthy, who attracted a great deal of attention with his repeated (and sometimes inaccurate) claims that Soviet agents were working inside the U.S. government. T hese laws had in common an effort to protect the nation from threats, real and imagined, posed by people who claimed to be exercising their freedom to speak, publish, organize, and assemble. In each case, a real threat (a war) led the government to narrow the limits of permissible speech and activity. Almost every time such restrictions were imposed, the Supreme Court was called upon to decide whether Congress (or sometimes state legislatures) had drawn those limits properly. In most instances, the Court tended to uphold the legislatures. But as time passed and the war or crisis ended, popular passions abated and many of the laws proved unimportant. T hough uncommon, some use is still made of the sedition laws. In the 1980s, various white supremacists and Puerto Rican nationalists were charged with sedition. In each case, the government alleged that the accused had not only spoken in favor of overthrowing the government but had actually engaged in violent actions such as bombings. Later in this chapter, we shall see how the Court has increasingly restricted the power of Congress and state legislatures to outlaw political speech; to be found guilty of sedition now, it usually is necessary to do something more serious than just talk about it. AP Images/Charlie Riedel IMAGE 5-1 A Hispanic girl studies both English and Spanish in a bilingual classroom. In the main, the United States was originally the creation of white European Protestants. Blacks were, in most cases, slaves, and American Indians were not citizens. Catholics and Jews in the colonies composed a small minority, often a persecuted one. The early schools tended to be religious---that is, Protestant---ones, many of which received state aid. It is not surprising that under these circumstances a view of America arose that equated "Americanism" with the values and habits of white Anglo-Saxon Protestants. But immigration to this country brought a flood of new settlers, many of whom came from very different backgrounds (see Figure 5.1). In the mid-19th century, the potato famine led millions of Irish Catholics to migrate here. At the turn of the century, religious persecution and economic disadvantage brought more millions of people, many Catholic or Jewish, from southern and eastern Europe. In recent decades, political conflict and economic want have led Hispanics (mostly from Mexico but increasingly from all parts of Latin America), Caribbeans, Africans, Middle Easterners, Southeast Asians, and Asians to come to the United States---most legally, but some illegally. Among them have been Buddhists, Catholics, Muslims, and members of many other religious and cultural groups. Ethnic, religious, and cultural differences have given rise to different views as to the meaning and scope of certain constitutionally protected freedoms. For example: Many Jewish groups find it offensive for a crèche (i.e., a scene depicting the birth of Christ in a manger) to be displayed in front of a government building such as city hall at Christmastime, whereas many Catholics and Protestants regard such displays as an important part of our cultural heritage. Does a religious display on public property violate the First Amendment requirement that the government pass no law "respecting an establishment of religion"? Many English-speaking people believe that the public schools ought to teach all students to speak and write English because the language is part of our nation's cultural heritage. Some Hispanic groups argue that schools should teach pupils in both English and Spanish, since Spanish is part of the Hispanic cultural heritage. Is bilingual education constitutionally required? The Boy Scouts of America once refused to allow gay men to become scout leaders even though several states and localities prohibit discrimination based on sexual orientation. Many civil libertarians challenged this policy as discriminatory, while the Boy Scouts defended it because their organization was a private association free to make its own rules. When are private organizations subject to public laws? In this case, in 2000 the Supreme Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-1 The Courts and Conflicts over Civil Liberties 99 FIGURE 5.1 People Granted Permanent Resident Status in the United States, 1850--2015 1,900 1,800 1,700 1,600 1,500 1,400 1,300 Immigrants (in thousands) 1,200 1,100 1,000 900 800 700 600 500 400 300 200 100 Prosperity Anti-Jewish pogroms Great potato famine Panic of 1873 Panic of 1893 1850 Immigration and Reform and Control Act of 1986 World War I Postwar flood Quotas applied Displaced persons Cuban and Haitian refugees Indochina refugees Quota system revised 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010 2020 Source: Office of Immigration Statistics, 2015 Yearbook of Immigration Statistics (Washington, DC: U.S. Department of Homeland Security, 2016), Table 1, "Persons Obtaining Lawful Permanent Resident Status: Fiscal Years 1820 to 2015," www.dhs.gov/immigration-statistics/ yearbook/2015/table1. Court upheld the Boy Scouts' defense on the grounds of their right to associate freely, but in 2015, the organization announced that it would lift the ban. And in 2017, the Scouts announced that children would be permitted to join troops based on their gender identity, thus opening the organization to transgender boys. Even within a given cultural tradition there are important differences of opinion as to the balance between community sensitivities and personal self-expression. To some people, the sight of a store carrying pornographic books or a theater showing a pornographic movie is deeply offensive; to others, pornography is offensive but such establishments ought to be tolerated to ensure that laws restricting them do not also restrict politically or artistically important forms of speech; to still others, pornography itself is not especially offensive. What forms of expression are entitled to constitutional protection? Applying the Bill of Rights to the States clear in a case decided in 1833.4 Except for Article I, which, among other things, banned ex post facto laws and guaranteed the right of habeas corpus, the Constitution was silent on what the states could not do to their residents. T his began to change due process of law Denies the government the right, without due process, to deprive people of life, liberty, and property. equal protection of the laws A standard of equal treatment that must be observed by the government. after the Civil War, when new amendments were ratified in order to ban slavery and protect newly freed slaves. The Fourteenth Amendment, ratified in 1868, was the most important addition. It said that no state shall "deprive any person of life, liberty, or property without due process of law" (a phrase now known as the "due process clause") and that no state shall "deny to any person within its jurisdiction the equal protection of the laws" (a phrase now known as the "equal protection clause"). For many years after the Constitution was signed and the Bill of Rights was added to it as amendments, the liberties these documents detailed applied only to the federal government. The Supreme Court made this Beginning in 1897, the Supreme Court started to use these two phrases as a way of applying certain rights to state governments. It first said that no state could take private property without paying just compensation, and then in 1925 held, in the Gitlow case, that the federal guarantees of free speech and free press also applied to the states. In Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.100 Chapter 5 Civil Liberties freedom of expression Right of people to speak, publish, and assemble. freedom of religion People shall be free to exercise their religion, and government may not establish a religion. prior restraintCensorship of a publication. 1937, it went much further and said in Palko v. Connecticut that certain rights should be applied to the states because, in the Court's words, they "represented the very essence of a scheme of ordered liberty" and were "principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental."5 T he Supreme Court began the process of selective incorporation by which most, but not all, federal rights also applied to the states. But which rights are so "fundamental" that they ought to govern the states? There is no entirely clear answer to this question, but in general the entire Bill of Rights is now applied to the states except for the following: The right not to have soldiers forcibly quartered in private homes (Third Amendment) The right to be indicted by a grand jury before being tried for a serious crime (Fifth Amendment) The right to a jury trial in civil cases (Seventh Amendment) The ban on excessive bail and fines (Eighth Amendment) T he Second Amendment that protects "the right of the people to keep and bear arms" may or may not apply to the states. In 2008, the Supreme Court in District of Columbia v. Heller held for the first time that this amendment did not allow the federal government to ban the private possession of firearms. But the case arose in the District of Columbia, which is governed by federal law. The decision raised two questions. First, will this ruling be incorporated so that it also applies to state governments? In 2010, the Supreme Court said in McDonald v. Chicago that the decision in the Heller case also applied to the states.6 Second, will it still be possible to regulate gun purchases and gun use even if the government cannot ban guns? Based on other court cases, the answer seems to be yes. 5-2 The First Amendment and Freedom of Expression T he First Amendment contains the language that has been at issue in most of the cases to which we have thus far referred. It has roughly two parts: one protecting freedom of expression ("Congress shall make no law... abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the government for a redress of grievances") and the other protecting freedom of religion ("Congress shall make no law respecting an establishment of religion; or abridging the free exercise thereof"). Speech and National Security T he traditional view of free speech and a free press was expressed by William Blackstone, the great English jurist, in his Commentaries, published in 1765. A free press is essential to a free state, he wrote, but the freedom that the press should enjoy is the freedom from prior restraint---that is, freedom from censorship, or rules telling a newspaper in advance what it can publish. Once a newspaper has published an article or a person has delivered a speech, that paper or speaker has to take the consequences if what was written or said proves to be "improper, mischievous, or illegal."7 T he U.S. Sedition Act of 1798 was in keeping with traditional English law. Like it, the act imposed no prior restraint on publishers; it did, however, make them liable to punishment after the fact. The act was an improvement over the English law, however, because unlike the British model, it entrusted the decision to a jury, not a judge, and allowed the defendant to be acquitted if he or she could prove the truth of what had been published. Although several newspaper publishers were convicted under the act, none of these cases reached the Supreme Court. When Jefferson became president in 1801, he pardoned the people who had been imprisoned under the Sedition Act. Though Jeffersonians objected vehemently to the law, their principal objection was not to the idea of holding newspapers accountable for what they published but to letting the federal government do this. Jefferson was perfectly prepared to have the states punish what he called the "overwhelming torrent of slander" by means of "a few prosecutions of the most prominent offenders."8 It would be another century before the federal government would attempt to define the limits of free speech and writing. Perhaps recalling the widespread opposition to the sweep of the 1798 act, Congress in 1917--1918 placed restrictions not on publications that were critical of the government but only on those that advocated " treason, insurrection, or forcible resistance" to federal laws or attempted to foment disloyalty or mutiny in the armed services. In 1919, this new law was examined by the Supreme Court when it heard the case of Charles T. Schenck, who had been convicted of violating the Espionage Act Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-2 The First Amendment and Freedom of Expression 101 because he had mailed circulars to men eligible for the draft, urging them to resist. At issue was the constitutionality of the Espionage Act and, more broadly, the scope of Congress's power to control speech. One view held that the First Amendment prevented Congress from passing any law restricting speech; the other held that Congress could punish dangerous speech. For a unanimous Supreme Court, Justice Oliver Wendell Holmes announced a rule by which to settle the matter. selective incorporation process The process whereby the Court has applied most, but not all, parts of the Bill of Rights to the states. Selective Incorporation The selective incorporation process---the process by which the Supreme Court has applied most, but not all, parts of the Bill of Rights to the states---began in earnest in 1925 and has continued ever since, most recently with the Supreme Court's decision in the Second Amendment case of McDonald v. Chicago. The selective incorporation process has never been straightforward or simple. For instance, in Palko v. Connecticut (1937), the Supreme Court held that states must observe all "fundamental" rights, but declared that the Fifth Amendment's protection against "double jeopardy" (being tried, found innocent, and then tried again for the same crime), which was the issue at hand in the case, was not among those rights. It was only about three decades later, in its decision in Benton v. Maryland (1969), that the Court partially incorporated the double jeopardy provision of the Fifth Amendment. Still, to this day no provision of the Fifth Amendment has been fully incorporated, and the provision regarding the right to be indicted by a grand jury has not been incorporated at all. Similarly, in Powell v. Alabama (1932), the Supreme Court incorporated the right to counsel bestowed by the Sixth Amendment, but only in capital punishment cases. In Gideon v. Wainwright (1962), the Court extended that right to all felony defendants that might, if convicted, go to prison for years or for life. In the decade thereafter, the Court issued six more Sixth Amendment selective incorporation decisions. In the last of these, Argersinger v. Hamlin (1972), the Court extended the right to legal counsel to any defendant facing a sentence that might result in incarceration. The Third Amendment, which establishes the right not to have soldiers forcibly "quartered in any home without the consent" of the homeowner, and the Seventh Amendment, which establishes the right to a trial in civil cases, each remains wholly unincorporated. The Eighth Amendment's prohibition against "cruel and unusual punishment" is partially incorporated, whereas its provision forbidding excessive bail or fines remains wholly unincorporated. CONSTITUTIONAL CONNECTIONS Year Amendment Provision Case 1925 First Free speech Gitlow v. New York 1931 First Free press Near v. Minnesota 1932 Sixth Legal counsel Powell v. Alabama 1937 First Free assembly De Jonge v. Oregon 1937 Fifth Double jeopardy Palko v. Connecticut 1947 First No religious establishment Everson v. Board of Education 1948 Sixth Public trial In re Oliver 1949 Fourth Unreasonable searches and seizures Wolf v. Colorado 1958 First Free association NAACP v. Alabama 1961 Fourth Warrantless searches and seizures Mapp v. Ohio 1963 First Free petition NAACP v. Button 1963 Sixth Legal counsel Gideon v. Wainwright 1965 Sixth Confront witnesses Pointer v. Texas 1966 Sixth Impartial jury Parker v. Gladden 1967 Sixth Speedy trial Klopfer v. North Carolina 1967 Sixth Compel witnesses Washington v. Texas 1968 Sixth Jury trial Duncan v. Louisiana 1972 Sixth Legal counsel Argersinger v. Hamlin 2010 Second Keep and bear arms McDonald v. Chicago Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203102 Chapter 5 Civil Liberties clear-and-presentdanger test Law should not punish speech unless there was a clear and present danger of producing harmful actions. It soon became known as the clear-and-presentdanger test: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.9 T he Court held that Schenck's leaflets did create such a danger, and so his conviction was upheld. In explaining why, Holmes said that not even the Constitution protects a person who has been "falsely shouting fire in a theatre and causing a panic." In this case, things that might safely be said in peacetime may be punished in wartime. T he clear-and-present-danger test may have clarified the law, but it kept no one out of jail. Schenck went, and so did the defendants in five other cases in the period 1919--1927, even though during this time Holmes, the author of the test, shifted his position and began writing dissenting opinions in which he urged that the test had not been met and so the defendant should go free. In 1925, Benjamin Gitlow was convicted of violating New York's sedition law---a law similar to the federal Sedition Act of 1918---by passing out some leaflets, one of which advocated the violent overthrow of our government. The Supreme Court upheld his conviction but added, as we have seen, a statement that changed constitutional history: Freedom of speech and of the press were now among the "fundamental personal rights" protected by the due process clause of the Fourteenth Amendment from infringements by state action.10 Thereafter, state laws involving speech, the press, and peaceful assembly were struck down by the Supreme Court for being in violation of the freedom-of-expression guarantees of the First Amendment, made applicable to the states by the Fourteenth Amendment.11 LANDMARK CASES Incorporation Gitlow v. New York (1925): Supreme Court says the First Amendment applies to states. Bettmann/Getty Images IMAGE 5-2 Women picketed in front of the White House, urging President Warren Harding to release political radicals arrested during his administration. T he clear-and-present-danger test was a way of balancing the competing demands of free expression and national security. As the memory of World War I and the ensuing Red Scare evaporated, the Court began to develop other tests, ones that shifted the balance more toward free expression. Some of these tests are listed in Table 5.1 on page 105. But when a crisis reappears, as it did in World War II and the Korean War, the Court has tended to defer, up to a point, to legislative judgments about the need to protect national security. For example, it upheld the conviction of 11 leaders of the Communist Party for having advocated the violent overthrow of the U.S. government, a violation of the Smith Act of 1940. T his conviction once again raised the hard question of the circumstances under which words can be punished. Hardly anybody would deny that actually trying to overthrow the government is a crime; the question is whether advocating its overthrow is a crime. In the case of the 11 communist leaders, the Court said that the Palko v. Connecticut (1937): Supreme Court says that states must observe all "fundamental" liberties. McDonald v. Chicago (2010): The Second Amendment that allows the people to keep and bear arms applies to state governments as well as the federal government. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-2 The First Amendment and Freedom of Expression 103 government did not have to wait to protect itself until "the putsch \[rebellion\] is about to be executed, the plans have been laid and the signal is awaited." Even if the communists were not likely to be successful in their effort, the Court held that specifically advocating violent overthrow could be punished. "In each case," the opinion read, the courts "must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."12 But as the popular worries about communists began to subside and the membership of the Supreme Court changed, the Court began to tip the balance even further toward free expression. By 1957, the Court made it clear that for advocacy to be punished, the government would have to show not just that a person believed in the overthrow of the government but also that he or she was using words "calculated to incite" that overthrow.13 By 1969, the pendulum had swung to the point where the speech would have to be judged likely to incite "imminent" unlawful action. When Clarence Brandenburg, a Ku Klux Klan leader in Ohio, made a speech before Klan members in which he called for "revengeance \[sic\]" against blacks and Jews (described with racial slurs) and called for a march on Washington, he was arrested and convicted for "advocating" violence. The Supreme Court reversed the conviction, holding that the First Amendment protects speech that abstractly advocates violence unless that speech will incite or produce "imminent lawless action."14 And while the Supreme Court ruled in 1942 that "fighting words" did not have constitutional protection, it narrowed the definition of that concept significantly in subsequent cases, though it has not overturned the ruling to date.15 T his means that no matter how offensive or provocative some forms of expression may be, they nevertheless have powerful constitutional protections. In 1977, a group of American Nazis wanted to parade through the streets of Skokie, Illinois, a community with a large Jewish population. The residents, outraged, sought to ban the march. Many feared violence if it occurred. But the lower courts, under prodding from the Supreme Court, held that, noxious and provocative as the anti-Semitic slogans of the Nazis may be, the Nazi party had a constitutional right to speak and parade peacefully.16 Similar reasoning led the Supreme Court in 1992 to overturn a Minnesota statute that made it a crime to display symbols or objects, such as a Nazi swastika or a burning cross, that are likely to cause alarm or resentment among an ethnic or racial group, such as Jews or African Americans.17 On the other hand, if you are convicted of actually hurting someone, you may be given a tougher sentence if it can be shown that you were motivated to assault them by racial or ethnic hatred.18 To be punished for such a hate crime, your bigotry must result in some direct and physical harm, and not just the display of an odious symbol. What Is Speech? libel Writing that falsely injures another person. If most political speaking or writing is permissible, save that which actually incites someone to take illegal actions, what kinds of speaking and writing qualify for this broad protection? Though the Constitution says that the legislature may make "no law" abridging freedom of speech or the press, and although some justices have argued that this means literally no law, the Court has held that at least four forms of speaking and writing are not automatically granted full constitutional protection: libel, obscenity, symbolic speech, and commercial and youthful speech. Libel A libel is a written statement that defames the character of another person. (If the statement is spoken, it is called a slander.) The libel or slander must harm the person being attacked. In some countries, such as the United Kingdom, it is easy to sue another person for libel and to collect. In this country, it is much harder. For one thing, you must show that the libelous statement was false. If it was true, you cannot collect no matter how badly it harmed you. A beauty contest winner was awarded \$14 million (later reduced on appeal) when she proved that Penthouse magazine had libeled her. Actress Carol Burnett collected a large sum from a libel suit brought against a gossip newspaper. But when Theodore Roosevelt sued a newspaper for falsely claiming that he was a drunk, the jury awarded him damages of only six cents.19 If you are a public figure, it is much harder to win a libel suit. A public figure such as an elected official, a candidate for office, an army general, or a well-known celebrity must prove not only that the publication was false and damaging but also that the words were published with "actual malice"---that is, with reckless disregard for their truth or falsity or with knowledge that they were false.20 Israeli General Ariel Sharon was able to prove that the statements made about him by Time magazine were false and damaging but not that they were the result of "actual malice." For a while, people who felt they had been libeled would bring suit in the United Kingdom against an American author. One Saudi leader sued an American author who had accused him of financing terrorism, even though Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.104 Chapter 5 Civil Liberties Tim Boyle/Newsmakers/Getty Images News /Getty Images IMAGE 5-3 A Ku Klux Klan member used their constitutional right to free speech to utter "white power" chants in Skokie, Illinois. she had not sold her book in the United Kingdom (but word about it had been on the Internet). This strategy, called "libel tourism," was ended in 2010 when Congress unanimously passed and the president signed a bill that bars enforcement in U.S. courts of libel actions against Americans if what they published would not be libelous under American law. Obscenity Obscenity is not protected by the First Amendment. The Court has always held that obscene materials, because they have no redeeming social value and are calculated chiefly to appeal to one's sexual rather than political or literary interests, can be regulated by the state. The problem, of course, arises with the meaning of obscene. In the period from 1957 to 1968, the Court decided 13 major cases involving the definition of obscenity, which resulted in 55 separate opinions.21 Some justices, such as Hugo Black, believed that the First Amendment protected all publications, even wholly obscene ones. Others believed that obscenity deserved no protection and struggled heroically to define the term. Still others shared the view of former Justice Potter Stewart, who objected to "hardcore pornography" but admitted that the best definition he could offer was "I know it when I see it."22 It is unnecessary to review in detail the many attempts by the Court to define obscenity. The justices have made it clear that nudity and sex are not, by definition, obscene and that they will provide First Amendment protection to anything that has political, literary, or artistic merit, allowing the government to punish only the distribution of "hardcore pornography." Their most recent definition of this is as follows: to be obscene, the work, taken as a whole, must be judged by "the average person applying contemporary community standards" to appeal to the "prurient interest" or to depict "in a patently offensive way, sexual conduct specifically defined by applicable state law" and to lack "serious literary, artistic, political, or scientific value."23 After Albany, Georgia decided that the movie Carnal Knowledge was obscene by contemporary local standards, the Supreme Court overturned the distributor's conviction on the grounds that the authorities in Albany failed to show that the film depicted "patently offensive hardcore sexual conduct."24 It is easy to make sport of the problems the Court has faced in trying to decide obscenity cases (one conjures up images of black-robed justices leafing through the pages of Hustler magazine, taking notes), but these problems reveal, as do other civil liberties cases, the continuing problem of balancing competing claims. One part of the community wants to read or see whatever it wishes; another part wants to protect private acts from public degradation. The first part cherishes liberty above all; the second values decency above liberty. The former fears that any restriction on literature will lead to pervasive restrictions; the latter believes that reasonable people can distinguish (or reasonable laws can require them to distinguish) between patently offensive and artistically serious work. Anyone strolling today through an "adult" bookstore must suppose that no restrictions at all exist on the distribution of pornographic works. This condition does not arise simply from the doctrines of the Court. Other factors operate as well, including the priorities of local law enforcement officials, the political climate of the community, the procedures that must be followed to bring a viable court case, the clarity and workability of state and local laws on the subject, and the difficulty of changing the behavior of many people by prosecuting one person. T he current view of the Court is that localities can decide for themselves whether to tolerate hard-core pornography; but if they choose not to, they must meet some fairly strict constitutional tests. T he protections given by the Court to expressions of sexual or erotic interest have not been limited to books, magazines, and films. Almost any form of visual or auditory communication can be considered "speech" and thus protected by the First Amendment. In one case, even nude dancing was given protection as a form of "speech,"25 although in 1991 the Court held that nude dancing was only "marginally" within the purview of First Amendment protections, and so it upheld an Indiana statute that banned totally nude dancing.26 Some feminist organizations have attacked pornography on the grounds that it exploits and degrades women. They persuaded Indianapolis, Indiana, to pass an ordinance that defined pornography as portrayals of Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-2 The First Amendment and Freedom of Expression 105 the "graphic, sexually explicit subordination of women" and allowed people to sue the producers of such material. Sexually explicit portrayals of women in positions of equality were not defined as pornography. The Court disagreed. In 1986, it affirmed a lower-court ruling that such an ordinance was a violation of the First Amendment because it represented a legislative preference for one form of expression (women in positions of equality) over another (women in positions of subordination).27 One constitutionally permissible way to limit the spread of pornographic materials has been to establish rules governing where in a city they can be sold. When one city adopted a zoning ordinance prohibiting an "adult" movie theater from locating within 1,000 feet of any church, school, park, or residential area, the Court upheld the ordinance, noting that the purpose of the law was not to regulate speech but to regulate the use of land. And in any case, the adult theater still had much of the city's land area in which to find a location.28 With the advent of the Internet, it has become more difficult for the government to regulate obscenity. The Internet spans the globe. It offers an amazing variety of materials---some educational, some entertaining, some sexually explicit. But it is difficult to apply the Supreme Court's standard for judging whether sexual material is obscene---the "average person" applying "contemporary community standards"---to the Internet because there is no easy way to tell what "the community" is. Is it the place where the recipient lives or the place where the material originates? And since no one is in charge of the Internet, who can be held responsible for controlling offensive material? Since anybody can send anything to anybody TABLE 5.1 Testing Restrictions on Expression symbolic speech An act that conveys a political message. else without knowing the age or location of the recipient, how can the Internet protect children? When Congress tried to ban obscene, indecent, or "patently offensive" materials from the Internet, the Supreme Court struck down the law as unconstitutional. T he Court went even further with child pornography. T hough it has long held that child pornography is illegal even if it is not obscene because of the government's interest in protecting children, it would not let Congress ban pornography involving computer-designed children. Under the 1996 law, it would be illegal to display computer simulations of children engaged in sex even if no real children were involved. The Court said "no." It held that Congress could not ban "virtual" child pornography without violating the First Amendment because, in its view, the law might bar even harmless depictions of children and sex (e.g., in a book on child psychology).29 Symbolic Speech Ordinarily, you cannot claim that an illegal act should be protected because that action is meant to convey a political message. For example, if you burn your draft card in protest against the foreign policy of the United States, you can be punished for the illegal act (burning the card), even if your intent was to communicate your beliefs. The Court reasoned that giving such symbolic speech the same protection as real speech would open the door to permitting all manner of illegal actions---murder, arson, rape---if the perpetrator meant thereby to send a message.30 The Supreme Court has used various standards and tests to decide whether a restriction on freedom of expression is constitutionally permissible. 1. 2. 3. 4. 5. 6. Preferred position The right of free expression, though not absolute, occupies a higher, or more preferred, position than many other constitutional rights, such as property rights. This is still a controversial rule; nonetheless, the Court always approaches a restriction on expression skeptically. Prior restraint With scarcely any exceptions, the Court will not tolerate a prior restraint on expression, such as censorship, even when it will allow subsequent punishment of improper expressions (such as libel). Imminent danger Punishment for uttering inflammatory sentiments will be allowed only if there is an imminent danger that the utterances will incite an unlawful act. Neutrality Any restriction on speech, such as a requirement that parades or demonstrations not disrupt other people in the exercise of their rights, must be neutral---that is, it must not favor one group more than another. Clarity If you must obtain a permit to hold a parade, the law must set forth clear (as well as neutral) standards to guide administrators in issuing that permit. Similarly, a law punishing obscenity must contain a clear definition of obscenity. Least-restrictive means If it is necessary to restrict the exercise of one right to protect the exercise of another, the restriction should use the least-restrictive means to achieve its end. For example, if press coverage threatens a person's right to a fair trial, the judge may only do what is minimally necessary to achieve that end, such as transferring the case to another town rather than issuing a "gag order." Cases cited, by item: (1) United States v. Carolene Products, 304 U.S. 144 (1938); (2) Near v. Minnesota, 283 U.S. 697 (1931); (3) Brandenburg v. Ohio, 395 U.S. 444 (1969); (4) Kunz v. New York, 340 U.S. 290 (1951); (5) Hynes v. Mayor and Council of Oradell, 425 U.S. 610 (1976); (6) Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.106 Chapter 5 Civil Liberties On the other hand, a statute that makes it illegal to burn the American flag is an unconstitutional infringement of free speech.31 Why is there a difference between a draft card and the flag? The Court argues that the government has a right to run a military draft and so can protect draft cards, even if this incidentally restricts speech. But the only motive that the government has in banning flagburning is to restrict this form of speech, and that would make such a restriction improper. T he American people were outraged by the flag- burning decision, and in response the House and Senate passed by huge majorities (380 to 38 and 91 to 9) a law making it a federal crime to burn the flag. But the Court struck this law down as unconstitutional.32 Now that it was clear that only a constitutional amendment could make f lag-burning illegal, Congress was asked to propose one. But it would not. Earlier members of the House and Senate had supported a law banning flag-burning with more than 90 percent of their votes, but when asked to make that law a constitutional amendment, they could not muster the necessary two-thirds majorities. The reason is that Congress is much more reluctant to amend the Constitution than to pass new laws. Several members decided that f lag-burning was wrong, but not so wrong or so common as to justify an amendment. Commercial and Youthful Speech If people have a right to speak and publish, do corporations, interest groups, and children have the same right? By and large the answer is yes, though there are some exceptions. When the attorney general of Massachusetts tried to prevent the First National Bank of Boston from spending money to influence votes in a local election, the Court stepped in and blocked him. The Court held that a corporation, like a person, has certain First Amendment rights. Similarly, when the federal government tried to limit the spending of a group called Massachusetts Citizens for Life (an antiabortion organization), the Court held that such organizations have First Amendment rights.33 The Court has also told states that they cannot forbid liquor stores from advertising their prices and informed federal authorities that they cannot prohibit casinos from plugging gambling.34 When the California Public Utility Commission tried to compel one of the utilities it regulates (the Pacific Gas and Electric Company) to enclose in its customers' monthly bills statements written by groups attacking the utility, the Supreme Court blocked the agency and said that forcing it to disseminate political statements violated the firm's free-speech rights. "The identity of the speaker is not decisive in determining whether speech is protected," the Court said. "Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster." In this case, the right to speak includes the choice of what not to say.35 Even though corporations have some First Amendment rights, the government can place more limits on commercial than on noncommercial speech. The legislature can place restrictions on advertisements for cigarettes, liquor, and gambling; it can even regulate advertising for some less harmful products provided that the regulations are narrowly tailored and serve a substantial public interest.36 If the regulations are too broad or do not serve a clear interest, then ads are entitled to some constitutional protection. For example, the states cannot bar lawyers from advertising or accountants from personally soliciting clients.37 A big exception to the free-speech rights of corporations and labor unions groups was imposed by the McCain-Feingold campaign finance reform law passed in 2002. Many groups, ranging from the American Civil Liberties Union and the AFL-CIO to the National Rifle Association and the Chamber of Commerce, felt that the law banned legitimate speech. Under its terms, organizations could not pay for "electioneering communications" on radio or television that "refer" to candidates for federal office within 60 days before the election. But the Supreme Court temporarily struck down these arguments, upholding the law in McConnell v. Federal Election Commission. The Court said ads that only mentioned but did not "expressly advocate" a candidate were ways of influencing the election. Some dissenting opinion complained that a Court that had once given free-speech protection to nude dancing ought to give it to political speech.38 But seven years later, the Court, in Citizens United v. Federal Election Commission, decided that the part of the McCain-Feingold law that denied corporations and labor unions the right to run ads (independent of a political party's or candidate's campaign) about the election violated their rights to free speech under the Constitution. Under certain circumstances, young people may have less freedom of expression than adults. In 1988, the Supreme Court held that the principal of Hazelwood High School could censor articles appearing in the student-edited newspaper. The newspaper was published using school funds and was part of a journalism class. The principal ordered the deletion of stories dealing with student pregnancies and the impact of parental divorce on Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-2 The First Amendment and Freedom of Expression 107 IMAGE 5-4 "Symbolic speech." When young men burned their draft cards during the 1960s to protest the Vietnam War, the Supreme Court ruled that it was an illegal act for which they could be punished. Robert Pearce/The Sydney Morning Herald via Fairfax Media/Getty Images Schenck v. United States (1919): Speech may be punished if it creates a clear and present danger of illegal acts. Chaplinksy v. New Hampshire (1942): "Fighting words" are not protected by the First Amendment. New York Times v. Sullivan (1964): To libel a public figure, there must be "actual malice." Tinker v. Des Moines (1969): Public school students may wear armbands to class protesting against America's war in Vietnam when such display does not disrupt classes. Miller v. California (1973): Obscenity defined as appealing to prurient interests of an average person with materials that lack literary, artistic, political, or scientific value. Texas v. Johnson (1989): There may not be a law to ban flag-burning. Reno v. ACLU (1997): A law that bans sending "indecent" material to minors over the Internet is unconstitutional because "indecent" is too vague and broad a term. FEC v. Wisconsin Right to Life (2007): Prohibits campaign finance reform law from banning political advocacy. Citizens United v. FEC (2010): The part of the McCain-Feingold campaign finance reform law that prevents corporations and labor unions from spending money on advertisements (independent of political candidates or parties) in political campaigns is unconstitutional. Free Speech and Free Press LANDMARK CASES students. The student editors sued, claiming their First Amendment rights had been violated. The Court agreed that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" and that they cannot be punished for expressing on campus their personal views. But students do not have exactly the same rights as adults if the exercise of those rights impedes the educational mission of the school. Students may lawfully say things on campus, as individuals, that they cannot say if they are part of school-sponsored activities (such as plays or school-run newspapers) that are part of the curriculum. School-sponsored activities can be controlled so long as the controls are "reasonably related to legitimate pedagogical concerns."39 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203108 Chapter 5 Civil Liberties free-exercise clause First Amendment requirement that law cannot prevent free exercise of religion. establishment clause First Amendment ban on laws "respecting an establishment of religion." 5-3 The First Amendment and Freedom of Religion Everybody knows, correctly, the language of the First Amendment that protects freedom of speech and the press, though most people are not aware of how complex the legal interpretations of these provisions have become. But many people also believe, wrongly, that the language of the First Amendment clearly requires the "separation of church and state." It does not. What that amendment actually says is quite different and maddeningly unclear. It has two parts. The first, often referred to as the free-exercise clause, states that Congress shall make no law prohibiting the "free exercise" of religion. The second, which is called the establishment clause, states that Congress shall make no law "respecting an establishment of religion." The Free-Exercise Clause T he free-exercise clause is the clearer of the two, though by no means is it lacking in ambiguity. It obviously means that Congress cannot pass a law prohibiting Catholics from celebrating Mass, requiring Baptists to become Episcopalians, or preventing Jews from holding a bar mitzvah. Since the First Amendment has been applied to the states via the due process clause of the Fourteenth Amendment, it means that state governments cannot pass such laws either. In general, the courts have treated religion like speech: You can pretty much do or say what you want so long as it does not cause some serious harm to others. Even some laws that do not seem on their face to apply to churches may be unconstitutional if their enforcement imposes particular burdens on churches or greater burdens on some churches than others. For example, a state cannot apply a license fee on door-to-door solicitors when the solicitor is a Jehovah's Witness selling religious tracts.40 By the same token, the courts ruled that the city of Hialeah, Florida, cannot ban animal sacrifices by members of an Afro-Caribbean religion called Santeria. Since killing animals generally is not illegal (if it were, there could be no hamburgers or chicken sandwiches served in Hialeah's restaurants, and rat traps would be unlawful), the ban in this case was clearly directed against a specific religion and hence was unconstitutional.41 Having the right to exercise your religion freely does not, however, mean that you are exempt from laws binding other citizens, even when the law goes against your religious beliefs. A man cannot have more than one wife, even if (as once was the case with Mormons) polygamy is thought desirable on religious grounds.42 For religious reasons, you may oppose being vaccinated or having blood transfusions, but if the state passes a compulsory vaccination law or orders that a blood transfusion be given to a sick child, the courts will not block it on grounds of religious liberty.43 Similarly, if you belong to an Indian tribe that uses a drug, such as peyote, in religious ceremonies, you cannot claim that your freedom was abridged if the state decides to ban the use of that drug, provided the law applies equally to all.44 Since airports have a legitimate need for tight security measures, begging can be outlawed in them even if some of the people doing the begging are part of a religious group (in this case, the Hare Krishnas).45 In 1993, Congress passed the Religious Freedom Restoration Act, which stated that a law that attempted to be religiously neutral might still violate the free exercise clause if it interfered with a religious practice. (The law was passed in response to the ruling about the use of peyote by Indian tribes, as many religious groups opposed the decision.) Four years later, the Supreme Court ruled that the act did not apply to state and local laws, leading several states to pass their own comparable legislation.46 In 2014, the Supreme Court applied the federal law to find that some companies may be exempt from the Affordable Care Act's "contraceptive mandate," which had required health insurance provided by companies to include birth-control coverage for female employees.47 T he Obama administration, which had spearheaded health-care reform, subsequently stated that health insurance for companies that objected to the mandate would provide contraceptive coverage without additional cost either for employers or employees.48 In 2017, the Trump White House issued an executive order instructing federal agencies to limit the regulatory burden on nonprofit organizations seeking exemption from the contraceptive mandate. Many conflicts between religious belief and public policy are difficult to settle definitively. What if you believe on religious grounds that war is immoral? The draft laws have always exempted a conscientious objector from military duty, and the Court has upheld such exemptions. But the Court has gone further: It has said that people cannot be drafted even if they do not believe in a Supreme Being or belong to any religious tradition, so long as their "consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become part of an instrument of war."49 Do exemptions on such grounds Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-3 The First Amendment and Freedom of Religion 109 create an opportunity for some people to evade the draft because of their political preferences? In trying to answer such questions, the courts often have had to try to define religion---no easy task. And even when there is no question about your membership in a bona fide religion, the circumstances under which you may claim exemption from laws that apply to everybody else are unclear. What if you, a member of the Seventh-Day Adventists, are fired by your employer for refusing on religious grounds to work on Saturday, and then it turns out that you cannot collect unemployment insurance because you refuse to take an available job---one that also requires you to work on Saturday? Or what if you are a member of the Amish sect, which refuses, contrary to state law, to send its children to public schools past the eighth grade? The Court has ruled that the state must pay you unemployment compensation and cannot require you to send your children to public schools beyond the eighth grade.50 T hese decisions show that even the "simple" principle of freedom of religion gets complicated in practice and can lead to the courts giving, in effect, preference to members of one church over members of another. The Establishment Clause What in the world did the members of the First Congress mean when they wrote into the First Amendment language prohibiting Congress from making a law "respecting" an "establishment" of religion? The Supreme Court has more or less consistently interpreted this vague phrase to mean that the Constitution erects a "wall of separation" between church and state. T hat phrase, so often quoted, is not in the Bill of Rights nor in the debates of the First Congress that Judy Griesedieck/ Time & Life Pictures/Getty Images IMAGE 5-5 Public schools cannot organize prayers, but private ones can. wall of separation Court ruling that government cannot be involved with religion. drafted the Bill of Rights; it comes from the pen of T homas Jefferson, who was opposed to having the Church of England as the established church of his native Virginia. (At the time of the Revolutionary War, there were established churches--- that is, official, state-supported churches---in at least 8 of the 13 former colonies.) But it is not clear that Jefferson's view was the majority view. During much of the debate in Congress, the wording of this part of the First Amendment was quite different and much plainer than what finally emerged. Up to the last minute, the clause was intended to read "no religion shall be established by law" or "no national religion shall be established." The meaning of those words seems quite clear: Whatever the states may do, the federal government cannot create an official, national religion or give support to one religion in preference to another.51 But Congress instead adopted an ambiguous phrase, and so the Supreme Court had to decide what it meant. It has declared that these words do not simply mean "no national religion" but mean as well no government involvement with religion at all, even on a nonpreferential basis. They mean, in short, erecting a "wall of separation" between church and state.52 Though the interpretation of the establishment clause remains a topic of great controversy among judges and scholars, the Supreme Court has more or less consistently adopted this wall-of-separation principle. Its first statement of this interpretation was in 1947. T he case involved a New Jersey town that reimbursed parents for the costs of transporting their children to school, including parochial (in this case Catholic) schools. The Court decided that this reimbursement was constitutional, but it made it clear that the establishment clause of the First Amendment applied (via the Fourteenth Amendment) to the states and that it meant, among other things, that the government cannot require a person to profess a belief or disbelief in any religion; it cannot aid one religion, some religions, or all religions; and it cannot spend any tax money, however small the amount might be, in support of any religious activities or institutions.53 T he reader may wonder, in view of the Court's reasoning, why it allowed the town to pay for busing children to Catholic schools. The answer it gave is that busing is a religiously neutral activity, akin to providing fire and police protection to Catholic schools. Busing, available to public and private schoolchildren alike, does not breach the wall of separation. Since 1947, the Court has applied the wall-of- separation theory to strike down as unconstitutional most Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.110 Chapter 5 Civil Liberties efforts to have any officially conducted or sponsored prayer in public schools, even if it is nonsectarian,54 voluntary,55 or limited to reading a passage of the Bible.56 Since 1992, it has been unconstitutional for a public school to ask a rabbi or minister to offer a prayer---an invocation or a benediction---at the school's graduation ceremony. Since 2000, it has been unconstitutional for a student to lead a prayer at a public high school football game because it was done "over the school's public address system, by a speaker representing the student body, under the supervision of the school faculty, and pursuant to school policy."57 The Court made clear, however, that public school students could pray voluntarily during school provided that the school or the government did not sponsor that prayer. But in 2012, a federal district court ruled that a prayer banner that had hung in a public high school auditorium for nearly 50 years had to be removed because its presence in that setting was unconstitutional.58 Moreover, the Court has held that laws prohibiting teaching the theory of evolution or requiring giving equal time to "creationism" (the biblical doctrine that God created humankind) are religiously inspired and thus unconstitutional.59 A public school may not allow its pupils to take time out from their regular classes for religious instruction if this occurs within the schools, though "released-time" instruction is all right if it is done outside the public school building.60 The school prayer decisions in particular have provoked a storm of controversy, but efforts to get Congress to propose to the states a constitutional amendment authorizing such prayers have failed. Almost as controversial have been Court-imposed restrictions on public aid to parochial schools, though here the wall-of-separation principle has not been used to forbid any and all forms of aid. For example, it is permissible for the federal government to provide aid for constructing buildings on denominational (as well as nondenominational) college campuses61 and for state governments to loan free textbooks to parochial school pupils,62 grant tax-exempt status to parochial schools,63 allow parents of parochial schoolchildren to deduct their tuition payments on a state's income tax returns,64 and pay for computers and deaf children's sign language interpreters at private and religious schools.65 But the government cannot pay a salary supplement to teachers who teach secular subjects in parochial schools,66 reimburse parents for the cost of parochial school tuition,67 supply parochial schools with services such as counseling,68 give money with which to purchase instructional materials, require that "creationism" be taught in public schools, or create a special school district for Hasidic Jews.69 T he Court sometimes changes its mind on these matters. In 1985, it said the states could not send teachers into parochial schools to teach remedial courses for needy children, but 12 years later it decided they could. "We no longer presume," the Court wrote, "that public employees will inculcate religion simply because they happen to be in a sectarian environment."70 Perhaps the most important establishment-clause decision in recent times was the Court ruling that vouchers can be used to pay for children being educated at religious and other private schools. The case began in Cleveland, Ohio, where the state offered money to any family (especially poor ones) whose children attended a school that had done so badly that it was under a federal court order requiring it to be managed directly by the state superintendent of schools. The money, a voucher, could be used to send a child to any other public or private school, including one run by a religious group. The Court held that this plan did not violate the establishment clause because the aid went not to the school, but to the families who were to choose a school.71 If you find the twists and turns of Court policy in this area confusing, you are not alone. The wall-of- separation principle has not been easy to apply, and in the past 50-plus years, the Court has faced numerous questions about church--state matters. The Court has tried to sort out the confusion by developing a three-pronged test to decide under what circumstances government involvement in religious activities is improper72: 1. It has a strictly secular purpose. 2. Its primary effect neither advances nor inhibits religion. 3. It does not foster an excessive government entanglement with religion. No sooner had the test been developed than the Court decided that it was all right for the government of Pawtucket, Rhode Island, to erect a Nativity scene as part of a Christmas display in a local park.73 But five years later, it said Pittsburgh could not put a Nativity scene in front of the courthouse, but could display a menorah (a Jewish symbol of Chanukah) next to a Christmas tree and a sign extolling liberty. The Court ruled that the crèche had to go (because, being too close to the courthouse, a government endorsement was implied) but the menorah could stay (because, being next to a Christmas tree, it would not lead people to think that Pittsburgh was endorsing Judaism). When the Ten Commandments are displayed in or near a public building, a deeply divided Court has made some complicated distinctions. It held that two Kentucky counties putting up the Ten Commandments in their courthouses was unconstitutional because the purpose was religious. Even though one Kentucky courthouse surrounded the Ten Commandments with displays of the Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.5-4 Crime and Due Process 111 LANDMARK CASES Religious Freedom Pierce v. Society of Sisters (1925): Though states may require public education, they may not require that students attend only public schools. Everson v. Board of Education (1947): The wallof-separation principle is announced. Zorach v. Clauson (1952): States may allow students to be released from public schools to attend religious instruction. Engel v. Vitale (1962): There may not be a prayer, even a nondenominational one, in public schools. Lee v. Weisman (1992): Public schools may not have clergy lead prayers at graduation ceremonies. Santa Fe Independent School District v. Doe (2000): Students may not lead prayers before the start of a football game at a public school. Zelman v. Simmons-Harris (2002): Voucher plan to pay school bills is upheld. Town of Greece v. Galloway (2014): Local legislative session may begin with a prayer. Lemon v. Kurtzman (1971): Three tests are described for deciding whether the government is improperly involved with religion. Burwell v. Hobby Lobby (2014): Certain companies may be exempt from providing contraceptive coverage in health insurance if that violates their owners' religious beliefs. Declaration of Independence and the Star Spangled Banner so as to make the Commandments part of America's political heritage, the Court said it was still a religious effort. (The Court did note that there was a frieze containing Moses in the Supreme Court's own building, but said this was not religious.) But when the Ten Commandments were put up outside the Texas state capitol, this was upheld. Justice Stephen Breyer, who forbid the Kentucky display but allowed the Texas one, wrote that in Texas the Commandments now revealed a secular message, and, besides, no one had sued to end this display until 40 years after it was erected.74 T hough the Court has struck down prayer in public schools, it has upheld prayer in Congress. (Since 1789, the House and Senate have opened each session with a prayer).75 In 2014, the Court ruled that beginning a town legislative session with a prayer does not violate the Constitution's establishment clause.76 Furthermore, while a public school cannot have a chaplain, the armed services can. T he Court has said that the government cannot "advance" religion, but it has not objected to the printing of the phrase "In God We Trust" on the back of every dollar bill. T hese distinctions show that the Court tends to use the wall-of-separation test for public schools but that it tries to strike a reasonable balance for Congress or state office buildings, perhaps because schools have a young and captive population, whereas public forums have adult and voluntary membership. It is obvious that despite its efforts to set forth clear rules governing church--state relations, the Court's actual decisions are hard to summarize. It is deeply divided---some would say deeply confused---on these matters, and so the efforts to define the "wall of separation" will continue to prove to be as difficult as the Court's earlier efforts to decide what is interstate and what is local commerce (see Chapter 3). 5-4 Crime and Due Process Whereas the central problem in interpreting the religion clauses of the First Amendment has been to decide what they mean, the central problem in interpreting those parts of the Bill of Rights that affect people accused of a crime has been to decide not only what they mean but also how to put them into effect. It is not obvious what constitutes an "unreasonable search," but even if we settle that question, we still must decide how best to protect people against such searches in ways that do not unduly hinder criminal investigations. T hat protection can be provided in at least two ways. One is to let the police introduce in court evidence relevant to the guilt or innocence of a person, no matter how it was obtained, and then, after the case is settled, punish the police officer (or his or her superiors) if the evidence was gathered improperly (e.g., by an unreasonable search). T he other way is to exclude improperly gathered evidence from the trial in the first place, even if it is relevant to determining the guilt or innocence of the accused. Most democratic nations, including the United Kingdom, use the first method; the United States uses the second. Because of this, many of the landmark cases decided Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.112 Chapter 5 Civil Liberties by the Supreme Court have been bitterly controversial. Opponents of these decisions have argued that a guilty person should not go free just because the police officer blundered, especially if the mistake was minor. Supporters rejoin that there is no way to punish errant police officers effectively other than by excluding tainted evidence; moreover, nobody should be convicted of a crime except by evidence that is above reproach.77 The Exclusionary Rule The American method relies on what is called the exclusionary rule. That rule holds that evidence gathered in violation of the Constitution cannot be used in a trial. The rule has been used to implement two provisions of the Bill of Rights: the right to be free from unreasonable searches and seizures (Fourth Amendment) and the right not to be compelled to give evidence against oneself (Fifth Amendment).\* Not until 1949 did the Supreme Court consider whether to apply the exclusionary rule to the states. In a case decided that year, the Court made it clear that the Fourth Amendment prohibited the police from carrying out unreasonable searches and obtaining improper confessions, but held that it was not necessary to use the exclusionary rule to enforce those prohibitions. It noted that other nations did not require that evidence improperly gathered had to be excluded from a criminal trial. The Court said that the local police should not improperly gather and use evidence, but if they did, the remedy was to sue the police department or punish the officer.78 \*We shall consider here only two constitutional limits---those bearing on searches and confessions. Thus we omit many other important constitutional provisions affecting criminal cases, such as rules governing wiretapping, prisoner rights, the right to bail and to a jury trial, the bar on ex post facto laws, the right to be represented by a lawyer in court, the ban on "cruel and unusual" punishment, and the rule against double jeopardy. exclusionary rule Improperly gathered evidence may not be introduced in a criminal trial. Creating the White House Office of Faith-Based and Community Initiatives: Majoritarian or Interest-Group Politics? After taking office in 2001, President George W. Bush created the Office of Faith-Based and Community Initiatives by executive order. The office was responsible for linking religious groups and social services; as originally enacted in the 1996 welfare reform law, religious organizations would be eligible for public funds to provide nonreligious programs, such as after-school activities, mentoring programs, and other social services. Such programs would be well within constitutional boundaries for religion and public life. As John J. DiIulio Jr., the first director of the office, later wrote, "Faith-friendly federal neutrality unto religious pluralism---neither a Christian nation nor a secular state---is precisely what \[James\] Madison and most of the other framers wanted for America."79 Advocates for these initiatives presented them as majoritarian politics---everyone pays for government funding through taxes, and American society at large benefits from the success of people who participate in the programs, all without encroaching on the First Amendment's protections for religious freedom. A case also could be made for client politics, with everyone paying and only program participants directly benefiting. The legitimacy of such initiatives was not in question, though, given strong support at the time for having the federal government facilitate participation in nonreligious social programs run by organizations with religious affiliations. Implementation of these goals raised several challenges that illustrate interest-group politics at work. Some religious organizations proposed program requirements that posed potential conflicts with state laws, such as prohibitions on employer discrimination based on sexual orientation. Critics, in turn, declared that such requirements intruded upon the separation of church and state guaranteed in the First Amendment. With both sides passionately arguing their case, and limited broad public attention to the debate, interest-group concerns dominated the discussion. President Barack Obama renamed the office in 2009, calling it the Office of Faith-Based and Neighborhood Partnerships, to emphasize the community-service component of the program over religious affiliations of participating groups. As of the summer of 2017, the Trump White House had not appointed a director for the office.80 POLICY DYNAMICS: INSIDE/OUTSIDE THE BOX PERCEIVED COSTS Distributed Majoritarian Politics PERCEIVED BENEFITS Distributed Client Politics Interest Group Politics Entrepreneurial Politics Concentrated Concentrated Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-2035-4 Crime and Due Process 113 But in 1961, the Supreme Court changed its mind about the use of the exclusionary rule. It all began when the Cleveland police broke into the home of Dollree Mapp in search of a suspect in a bombing case. Not finding him, they instead arrested her for possessing some obscene pictures found there. The Court held that this was an unreasonable search and seizure because the police had not obtained a search warrant, though they had had ample time to do so. Furthermore, such illegally gathered evidence could not be used in the trial of Mapp.81 Beginning with this case---Mapp v. Ohio---the Supreme Court required the use of the exclusionary rule as a way of enforcing a variety of constitutional guarantees. Search and Seizure After the Court decided to exclude improperly gathered evidence, the next problem was to decide what evidence was improperly gathered. What happened to Dollree Mapp was an easy case; hardly anybody argued that it was reasonable for the police to break into someone's home without a warrant, ransack their belongings, and take whatever they could find that might be incriminating. But that left a lot of hard choices still to be made. When can the police search you without it being unreasonable? Under two circumstances: when they have a search warrant or when they have lawfully arrested you. A search warrant is an order from a judge authorizing the search of a place; the order must describe what is to be searched and seized, and the judge can issue it only if he or she is persuaded by the police that good reason (probable cause) exists to believe that a crime has been committed and that the evidence bearing on that crime will be found at a certain location. (The police can also search a building if the occupant gives them permission.) In addition, you can be searched if the search occurs when you are lawfully arrested. When can you be arrested? You can be arrested if a judge has issued an arrest warrant for you, if you commit a crime in the presence of a police officer, or if the officer has probable cause to believe you have committed a serious crime (usually a felony). If you are arrested and no search warrant has been issued, the police---not a judge---decide what they can search. What rules should they follow? In trying to answer that question, the courts have elaborated a set of rules that are complex, subject to frequent change, and quite controversial. In general, the police, after arresting you, can search you, things in plain view, and things or places under your immediate control. As a practical matter, things "in plain view" or "under your immediate control" mean the room in which you are arrested but not other rooms of the house.82 If the police want to search the rest of your house or a car parked in your driveway, they will f irst have to go to a judge to obtain a search warrant. But if the police arrest a college student on campus for underage drinking and then accompany that stusearch warrant A judge's order authorizing a search. probable cause Reasonable cause for issuing a search warrant or making an arrest; more than mere suspicion. dent back to his or her dormitory room so that the student can get proof that he or she was old enough to drink, the police can seize drugs in plain view in that room.83 And if marijuana is growing in plain view in an open field, the police can enter and search that field even though it is fenced off with a locked gate and a "No Trespassing" sign.84 What if you are arrested while driving your car---how much of it can the police search? The answer to that question has changed almost yearly. In 1979, the Court ruled that the police could not search a suitcase taken from a car of an arrested person, and in 1981 it extended this protection to any "closed, opaque container" found in the car.85 But the following year, the Court decided that all parts of a car, closed or open, could be searched if the officers had probable cause to believe they contained contraband (i.e., goods illegally possessed). And the rules governing car searches have recently been relaxed even further. Officers who have probable cause to search a car can also search the things passengers are carrying in the car. And if the car is stopped for a traffic infraction, the car can be searched if the officer develops a "reasonable, articulable suspicion" that the car is involved in other illegal activity.86 In this confusing area of the law, the Court is attempting to protect those places in which a person has a "reasonable expectation of privacy." Your body is one such place, and so the Court has held that the police cannot compel you to undergo surgery to remove a bullet that might be evidence of your guilt or innocence in a crime.87 But the police can require you to take a Breathalyzer test to determine whether you have been drinking while driving.88 Your home is another place where you have an expectation of privacy, but a barn next to your home is not, nor is your backyard viewed from an airplane, nor is your home if it is a motor home that can be driven away, and so the police need not have a warrant to look into these places.89 If you work for the government, you have an expectation that your desk and files will be private; nonetheless, your supervisor may search the desk and files without a warrant, provided that he or she is looking for something related to your work.90 But bear in mind that the Constitution protects you only from the government; a private employer has a great deal of freedom to search your desk and files. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.114 Chapter 5 Civil Liberties WHAT WOULD YOU DO? Will You Support the Patriot Act Provision on Library Records? To: Nicole Maxwell, Supreme Court justice From: Benjamin Andrew, law clerk Subject: Patriot Act and libraries The Patriot Act allows the FBI to seek the records of possible terrorists from banks, businesses, and libraries. Many libraries claim this will harm the constitutional rights of Americans. You support these rights, but are also aware of the need to protect national security. To Consider: Two public libraries have asked the Supreme Court to strike down provisions of the Patriot Act that allow the Federal Bureau of Investigation to see the borrowing records of persons who are under investigation. Arguments for: 1. The Patriot Act does not target individuals who have not violated a criminal law and who do not threaten human life. 2. For the FBI to collect information about borrowers, it must first obtain permission from a federal judge. 3. Terrorists may use libraries to study and plan activities that threaten national security. Arguments against: 1. Freedom of speech and expression are fundamental constitutional guarantees that should not be infringed. 2. The law might harm groups engaged in peaceful protests. 3. The law allows the government to delay notifying people that their borrowing habits are being investigated. What Will You Decide? Enter MindTap to make your choice and support it in writing, and for sources to help inform your decision. Your decision: Uphold this provision Overturn this provision Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Source: Pew Research Center, "More Prioritize Border Security in Immigration Debate," 2014.5-4 Crime and Due Process 115 good faith exception An error in gathering evidence sufficiently minor that it may be used in a trial. public safety exception The police can question a non-Mirandized suspect if there is an urgent concern for public safety. inevitable discovery The police can use evidence if it would inevitably have been discovered. Confessions and SelfIncrimination T he constitutional ban on being forced to give evidence against oneself was originally intended to prevent the use of torture or "third-degree" police tactics to extract confessions. But it has since been extended to cover many kinds of statements uttered not out of fear of torture but from a lack of awareness of one's rights, especially the right to remain silent, whether in the courtroom or in the police station. For many decades, the Supreme Court had held that involuntary confessions could not be used in federal criminal trials but had not ruled that they were barred from state trials. But in the early 1960s, it changed its mind in two landmark cases: Escobedo and Miranda.91 The story of the latter and of the controversy that it provoked is worth telling. Ernesto A. Miranda was convicted in Arizona of the rape and kidnapping of a young woman. The conviction was based on a written confession that Miranda signed after two hours of police questioning. (The victim also identified him.) Two years earlier, the Court had decided that the rule against self-incrimination applied to state courts.92 Now the question arose of what constitutes an "involuntary" confession. The Court decided that a confession should be presumed involuntary unless the person in custody had been fully and clearly informed of his or her right to be silent, to have an attorney present during any questioning, and to have an attorney provided free of charge if he or she could not afford one. The accused could waive these rights and offer to talk, but the waiver must be truly voluntary. Since Miranda did not have a lawyer present when he was questioned and had not knowingly waived his right to a lawyer, the confession was excluded from ev