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Chapter 15 (cont'd):
THE COURTS
Photo courtesy of Rajean Gallagher.
Reviewing Standards of Review in Civil Liberties and Civil Rights Cases:
In all cases, the court balances the government's interest against the infringement on the individual's constitutional right or liberty. The decision of which test to apply generally determines whether the government or the individual wins the case.
Reviewing Standards of Review in Civil Liberties and Civil Rights Cases (cont'd):
Levels of Scrutiny:
Strict Scrutiny: Used in equal protection clause cases for "suspect classifications" and in due process clause cases for fundamental rights.
Test: Was the law or action necessary to advancing a compelling state interest?
Heightened or Exacting Scrutiny: (Strict Rationality) Used in equal protection cases for "quasi-suspect classifications," meaning to date, gender may be expanding to sexual preference.
Test: Does the law bear a substantial relationship to an important governmental interest?
Ordinary Scrutiny: Used in evaluating constitutionality of ordinary legislation that does not discriminate on basis of suspect classification or infringe on fundamental rights.
Test: Was the law rationally related to achieving a legitimate governmental objective?
Freedom of Speech: Political Speech
Abrams v. United States (1919)
Gitlow v. New York (1925)
finally incorporated freedom of speech but Gitlow still left in jail
Schenck v. United States (1919)
censorship only when speech poses a "clear and present danger" Brandenburg v. Ohio (1969): danger must be immediate
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Freedom of Speech: Actions and Symbolic Speech
Speech mixed with conduct may be restricted if the restrictions on conduct do not restrict speech Symbolic expressions may also receive less protection from the Court Texas v. Johnson (1989)
flag desecration falls under free expression protections
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Suppression of Free Expression:
One major exception to the expansion of freedom of expression: periodic concern about "internal security" and national defense
Civil War WWI
Palmer raids
Post-WWII
Joseph McCarthy and HUAC
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Post-September 11
The USA PATRIOT Act
Freedom of the Press:
Mentioned in an aside in the Gitlow case Incorporated in Near v. Minnesota (1931)
New York Times v. Sullivan (1964) newspapers protected against trivial or incidental errors when they were reporting on public persons prohibition of prior restraint on publication remains the core of freedom of the press
- Ben Franklin's political commentary likely lead the charge for a free press. This is one of his political cartoons published in the Pennsylvania Gazette.
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Freedom of the Press (cont'd):
Protecting sources
Although many states have shield laws allowing reporters to protect their sources, there is no such federal law Branzburg v. Hayes (1972): reporters do not have immunity when subpoenaed by a court
- Quite possibly the most famous of protected sources is, "Deep Throat," a.k.a. Mark Felt, Sr. His statements were of great importance in the Watergate scandal. Reporters Bob Woodward and Carl Bernstein concealed his identity for over thirty years, until Felt decided to reveal himself as their source.
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Offensive Mass Media:
Pornography v. Obscenity The courts have held that obscenity is not protected by the First Amendment, but the definition of obscenity has been contested for half a century.
Miller v. California's (1973) three-part test: lust, clear definition of prohibition, no literary, artistic, political or scientific value
Concerns about the availability to minors of sexually offensive material on the Internet
Communications Decency Act (1996) Reno, Attorney General of the United States v. ACLU (1997)
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Free Exercise of Religion:
For much of our history, the Supreme Court deferred to the states on the issue.
West v. Virginia Barnette (1943)
overturned Minersville School District v. Gobitis (1940) firmly established free exercise of religion as protected against the states
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Overall, freedom of religious belief is absolutely protected, while freedom of religious action is not absolute.
Employment Division v. Smith (1990) City of Boerne v. Flores (1997)
Establishment of Religion:
The establishment clause in the First Amendment states that "Congress shall make no law respecting an establishment of religion." The incorporation of this clause has been quite messy.
Everson v. Board of Education (1947) no funding religious schools McCollum v. Board of Education (1948) no teaching religion in pub. scl. Zorach v. Clauson (1952) allowed students to leave school for religious instruction
Since the early 1960s, the Court has consistently ruled against nondenominational prayer or a period of silent prayer in the public schools.
Courts have rejected the teaching of "creationism," despite religious activists attempts at "intelligent design" as an alternative approach, which the court also rejected In Kitzmiller v. Dover Area School District (2005).
The Lemon Test:
The Warren Court (1953-1969)
brought together a solid church-state separationist contingent whose decisions the early Burger Court (1969-1973) distilled into the major doctrine of the establishment clause (secular purpose, primary effect, excessive entanglements)
Lemon v. Kurtzman (1971)
The Rehnquist Court
has brought a change in judicial interpretation, making the three pronged test much more unclear
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The Right to Privacy:
The freedom to be left alone in our private lives (the right to privacy) is not specifically mentioned in the Constitution. Griswold v. Connecticut (1965)
the right to privacy is inherent in the Bill of Rights became an important precedent for Roe v. Wade (1973) and Lawrence v. Texas (2003)
The "right to die"
Terri Schiavo case Gonzalez v. Oregon (2006)
Privacy in communications is coming under increasing concern with regard to the USA PATRIOT ACT.
Rights of the Accused:
Five of the first ten Constitutional Amendments focus on this issue But most Americans also want to control crime as much as possible
Unreasonable searches and seizures
Warren Court (1953-1969)
Mapp v. Ohio (1961): exclusionary rule
Burger Court (1969-1986)
"good faith" exception
Rehnquist Court (1986-2005)
Wyoming v. Houghton (1999) Knowles v. Iowa (1998) Kyllo v. United States (2001)
Roberts Court (2005-present)
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Rights of the Accused (cont'd):
The Right Against Self-Incrimination is outlined in the Miranda v. Arizona (1966) decision
Miranda warnings Upheld in principle by Burger and Rehnquist Courts, despite the granting of exceptions
Dickerson v. United States (2000)
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The closely linked Right to Counsel was established even earlier.
For state capital cases
Powell v. Alabama (1932)
For state non-capital cases
Gideon v. Wainwright (1963)
Civil Liberties and the Fight Against Terrorism:
Wars have almost always led to some restrictions on civil liberties in democratic countries. USA Patriot Act
Wiretapping and electronic surveillance Access to customer, telephone, and financial records
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Presidential executive orders
use of military tribunals to try non-citizens secret detentions, interrogations, and deportations eavesdropping and data-mining on communications of American citizens
Civil Liberties and the War on Terrorism:
Recently, some of these measures have been curtailed.
Actions by cities and states Debate over renewal of USA Patriot Act Court rulings
Hamdi v. Rumsfeld (2004)
Still, some restrictions will exist for the duration of the war on terrorism. The severity of these restrictions will be directly related to the degree to which the American people feel afraid that further attacks will occur.
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