CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS A bill of rights is what the people are entitled to against every goverment on eartit,generat or articular,and what0 just should refus，or rest on inferenc. Thomas jefferson ○hooa9 e r的 their home.Brandishing guns,they searched the house for a relative of the Creightons who was suspected of bank robbery.When asked to show a search warrant,they said,"You watch too much TV."Failing to find the suspect,they departed,leaving behind three screaming children and two angry parents.The Creightons sued the FBI agent in charge,Russell Anderson,for violating their Fourth Amendment right against unlawful search. The Creightons won a temporary victory when the Eighth U.S.Court of Appeals,noting that individuals are constitutionally protected against warrant- less searches unless officers have good reason ("probable cause)for a search and unless they have good reason ("exigent circumstances)for conducting that search without a warrant,concluded that Anderson had been derelict in his duty.In the judgment of the appellate court.Anderson should have sought a warrant from a judge,who,on the basis of Anderson's information about the suspect's whereabouts,could have decided whether a search of the Creightons' home was justified. On June 25,1987,the Supreme Court of the United States overtured the lower court's ruling.In a 6-3 decision written by Justice Antonin Scalia,the Court stated:“We have recognized that it is inevitable that law enforcement 9
90 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 91 officials will in some cases reasonably but mistakenly conclude that probable became the basis for extending these protections of individual rights to actions cause is present,and we have indicated that in such cases those officials by state and local governments. ..should not be held personally liable."Justice John Paul Stevens sharply Issues of individual rights have become increasingly complex and important. dissented.He accused the Court's majority of absolving the police of their The writers of the Constitution could not possibly have foreseen the United "constitutional accountability"and of showing "remarkably little fidelity"to States of the late twentieth century,with its huge national goverment, the Fourth AmendmentCivil liberties groups endorsed Justice Stevens'view, enormous corporations,pervasive mass media of communication,urban crowd- claiming that the Court's decision gave police an open invitation to invade ing,nuclear weapons,and the rest.These developments are potential threats to people's homes on the slightest pretext,thereby diminishing personal liberty. personal freedom,and the judiciary in recent decades has seen fit to expand the However,the Court's decision was praised by law-enforcement officials and rights to which individuals are entitled.However,these rights are constantly conservatives,who contended that a ruling in the Creightons'favor would have being balanced against competing individual rights and society's collective made police hesitant to pursue suspects for fear of a lawsuit if a search failed to interests.The Bill of Rights operates in an untidy word where people's highest produce the person sought. aspirations collide with their worst passions,and it is at this juncture that issues As this case illustrates,issues of individual rights are contentious and of civil liberties arise.Should an admitted murderer be entitled to recant a complex.No right is absolute For example,the Fourth Amendment protects confession?Should the press be allowed to print military secrets whose Americans,not from all searches,but from"searches."The public publication might jeopardize nationat security?Should prayer be allowed in the would be unsafe if law officials could never searcl for evidence of a crime or public schools?Should neo-Nazis be allowed to take their anti-Semitic message 一英 pursue a suspecr into a home.Yet the public would also be unsafe if police could into predominantly Jewish neighborhoods?Such questions are among the frisk peopi at will or invade their homes with impunity.Such acts are subjects of this chapter,which focuses on the following major points: charactertstic of a police state,not of a free society.The challenge to a civil society is to establish a level of police authority that balances the demands of public safety with those of individual freedom.The balance point,however,is wlimifed.Free expression recently has been strongly supported by the Supreme always subject to dispute.Did FBI agent Anderson have sufficient cause for a Court. warrantless search of the Creightons'home?Or was his evidence so weak that his forcible entry constituted an"unreasonable"search?Not even the justices of 女"Dwe process时lA"refers t如egal protections (primarily proced山rmls到feguards that are the Supreme Court could form a unanimous opinion on these questions. The idea of a compelling governmental interest is the abstract standard by During the last half century particrythecberties of individual Americans hae been which all claims of constitutional rights are evaluated.In theory,government santbstantiahbrosdrmedinlaoandgoer&reaterjudic节 protects or prohibits activities according to whether they serve an overriding oforme Of special sinificance has been the Supreme Court'suse of the Fourteenth Amendment to protect these individual rights from action by state and goal of society.The right of people to be secure in their homes and persons,for local governments. example,is considered a basic condition of a civil society,and thus deserving of judicial protectionOn this basis federal courts have rejected mandatory drug Individual rights are constantly being weighed aguinst the demands of majorities and the testing of all government employees.In a 1986 New Jersey case,a lower federal court concluded that"mass roundup urinalysis"of city employees violates public opinion,but the judiciary plays the central role in it and is the institution that is constitutional prohibitions;the court stated that fear of drug abuse was no most partial to the protection of civil liberties. excuse for trampling on "fundamental principles and protections.Yet the courts have upheld regulations requiring mandatory drug tests for some federal employees in certain jobs,concluding that a compelling national interest is Freedom of Expression served by a law designed to ensure that drugs will not undermine performance in jobs affecting the nation's defense. Freedom of political expression is the most basic of democratic rights.Unless This chapter examines issues of civil liberties:specific individual rights,such citizens can openly express their political opinions,they cannot properly as freedom of speech and protection against self-incrimination,which are influence their government or act to protect their other rights.They also canno constitutionally protected against infringement by government.As we saw in hear what others have to say,and thus cannot judge the merits of altemative Chapter 3,the Constitution's failure to enumerate individual freedoms led to views.And without free expression,elections are a sham,a mere showcase for demands for the Bill of Rights Enacted in 1791,these frst ten amendmtonts to those who control what is on people's lips and in their minds.As the Supreme the Constitution specify certain rights of life,liberty,and property which the Court concluded in 1984,"The freedom to speak one's mind is not only an national government is obliged to respect.A later amendment,the Fourteenth, aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole r Sepember 2.19 通过di, Bose Corp.v.Consuwers Lxiou of the United Sleles 466 U.5.485(1984) tmute
名 PART TWO INDIVIDUAL RIGHTS CHAPTER 5+CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 3史人国老员” 93 w1 It is for such reasons that the First Amendment provides aguarantee of John Adams.The Sedition Act expired in 1801,but not before lower federal respecting an estabilshment of freedom of expression-the right of individual Americans to hold and courts,presided over by Federalist judges who did not pretend to be objective, religion,or prohibiting the fre communicate views of their choosing.For many reasons,such as a psychologi- had imposed fines and jail sentences on ten Republican newspaper editors. cal need to conform to pressure or a fear of harassment,Americans do not freedom of speech,or of the Thomas Jefferson called the Sedition Act an "alarming infraction"of the always choose to express themselves freely.Nevertheless,the First Amendment provides that the individual shall have freedom of conscience,speech,press, Constitution and,upon replacing Adams as president in 1801,pardoned the convicted newspapermen and had their fines returned with interest.As the efition the Govermment for年 assembly,and petition. Supreme Court did not review the sedition cases,however,the judiciary's Freedom of expression,like other rights,is not absolute.It does not entitle position on the lengths to which the government could legally go in restricting U.S.Constitution, individuals to say or do whatever they want,to whomever they want,whenever free expression remained an open question. First Amendment they want.Free expression can be denied,for example,if it endangers national The Court also did not rule on free speech during the Civil War era,when the security,wrongly damages the reputatians of others,or deprives others of their goverment severely restricted individual rights.In one instance during Recon- preme Court justice Oliver basic freedoms.An individual's private thoughts are completely free,but words Ho mes日.1841-1935) struction,Congress actually prevented the Court from issuing a judgment.The and actions may not be.For example,in 1983 when a group of demonstrators case involved a Mississippi newspaper editor who had sought to arouse citizens (UPl/Bettmann Newsphotoe) gathered outside an Air Force base in upstate New York to protest against the against the Union occupation and had been jailed without charge by military deployment of bomber-launched nuclear missiles at the site,they were acting within their constitutional right of free expression.When they proceeded to authorities.He appealed his imprisonment to the Supreme Court on a writ of scale a fence and attack the bombers with sledgehammers,however,they were habens corpus(discussed in Chapter 3).Fearfulthat his release would encourage other Confederate diehards to resist Reronstruction policies,Congress passeda no longer within their legal rights.They were arrested and convicted of law that prohibited the Supreme Court to hear appeals involving those policies. trespassing and destruction of government property. In recent decades,free expression has received broad protection from the n 1869 the Court accepted this congressional"coustrpping"and declined to rule on the editor's appeal. courts.Today,under most circumstances,Americans can freely verbalize their Not until 1919 did the Court rule on a case that challenged the national political views without fear of governmental interference or reprisal.In earlier government's authority to restrict free expression.Two years earlier,Congress times,however,Americans were less free to express their political views. had passed the Espionage Act which prohibited forms o dissent deemed to be harmful to the nation's effort in World War I Nearly 2,000 Americans were THE EARLY PERIOD:THE UNCERTAIN STATUS OF convicted for such activities as interfering with draft registration and distribut- THE RIGHT OF FREE EXPRESSION ing antiwar leailets.The Supreme Court upheld one of these convictions in Schenck v.United Siates (1919),ruling unanimously that the Espionage Act of 羽方nn为. The first legislative attempt by the U.S.government to restrict free expression was the Sedition Act of 1798,which made it a crime to print false or malicious 1917 was constitutional.In the opinion written by Justice Oliver Wendell Holmes,the Court said that Congress could restrict speech that was "of such a (见方z女蛛多蔬何端 newspaper stories about the president or other national officials.The act was nature as to create a clear and fresent)danger"to the nation's security.This passed by Congress when fear of treason by French sympathizers was high,but clear-and-present-danger tesr mpted the converse:goverment could ot k学欢不子，材状了 its purpose was to muzzle Republican opponents of the Federalist president restrict political speech that presented no such danger. 越打) The Supreme Court did not adhere to its own standard,however.Less than a 。HOW THE UNITED year after Schenck,the Court upheld the conviction of six anarchists for writing a GIATISCOMPARES pamphlet protesting the U.S.govemment's attempts to overthrow the newly Civil Liberties their protection of civil imprisonments occur.Gastil's ormed Botshevik regime in Russia.Holmes dissented,writing that the ndividual rghes are a liberties.Also in this group rankings bottom out at seven. anarchists"silly leaflet"posed no substantial threat to the United States.Along comnerstone of the Amertcan are Canad由，hpn,and all a level that includes some with Justice Louis D.Brandeis,Holmes subsequently argued that government goverring system and receive Westem European Comnmunist,African,and should not be allowed to limit expression unless it posed an "imminent"danger strong protection from the demecracies exeept Finland, Middle East countries.In to national security. urts.The government's and these natioos.the state is which are in th rely mlted and the Their constitutional THE MODERN PERIOD:PROTECTING FREE EXPRESSION protections are not so well freedom of expression and air trial is protected thro四gh developed as those of the routinely using brutal Until the twentieth century,the tension between national security interests and elaborate due-process countries in the top group. methods to suppress political free expression was not a pressing dilemma for the United States.The country's 《ot istin Ameri.n Accoeding to Raymond our are in either this Gastal,the United Se Er parte McCanfie,7 Wallace 506 (1869) one,at chemck v.United Stohes,249 U.5.47 (1919). censorship and political Wan 37
94 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 95 great size and ocean barriers provided such protection from potential enemies that it had little to fear from internal subversion.World War I,however,intruded upon America's isolation,and World War II brought it to an abrupt end.Since then,Americans'rights of free expression have been defined largely in the context of national security concerns. The Communist Threat and Limits on Free Expression During the cold war that followed Worid War II,many Americans perceived the Soviet Union as bent on destroying the United States through intemal subversion and global expansion.Senator Joseph McCarthy's sensational allegations that communists had infiltrated key positions in the U.S.govem- ment intensified public anxiety.In this climate of fear,the Supreme Court allowed government to put substantial limits on free expression.In Demris v. United States (1951)the Court upheld the convictions of eleven members of the U.S.Communist party who had been prosecuted under the Smith Act of 1940, The right to free expression of polltcal vews was widoly which made it illegal to advocate the foreeful overthrow of the U.S.govern- evident during the Vietnam war, ment. when many Americans Fears of communist subversion began to subside in the mid-1950s,and the Court modified its Dennis position.In Yates v.United Stafes (1957),the emnent.(UPI/Bettman lower-court convictions of fourteen Communist party members were over- turned because evidence indicated that they had not directly advocated lawless action.The Court said that their advocacy was "theoretical"and therefore political views.This demanding criterion was widely applied during the protected by the First Amendment."In subsequent rulings the Court stated that Vietnam war,when,despite the largest sustained protest movement in the only active,high-ranking communists with a "specific intent"to destroy the country's history,not a single American was convicted solely because of spoken U.S.government are subject to conviction. objections to the government's Vietnam policy.(Some dissenters were found ANALY7ETH155E☒ guilty on other grounds,such as inciting to riot and disturbing the peace.) Personal Freedom vs. The "Preferred Position"Doctrine The Supreme Court distinguished,however,between verbal speech_and National security symbolic speech,"During the Vietnam period the Court upheld the conviction ng of the Since the late 190s,oourt decisions involving politic expression (other types of David Orien for buming his draft registration card on the steps of the South of Independence, of expression,such as obscenity,are a different matter,as we shall see)have Boston Courthouse.The Supreme Court acknowledged that CBrien's act had a Thomas Jefferson and John generally followed a legal doctrine outlined by Justice Harlan Fiske Stone in communicative elementthat in a way it wms political expression-but ruled Adams disagreed over the meaning of Eberty.For 1938.Stone argued that although govemment had broad discretion in certain gainst him all the same,saying that the government can prohibit action that ef任Prson.i话neant persona areas,such as economic policy,the Court should carefully scrutinize legislative threaters a fegitimate public interest as long as the main purpose in doing so is freedom.For Adams.It had attempts to restrict First Amendment rights.These rights,Stone said,should not to innibit free expression.The Court held that the federal law prohibiting the have a "preferred position"in a democratic society.If those in power can limit destruction of draft cards was designed primarily to provide for the military's free expression,they can control what people will come to know and think.For manpower needs.Yet the Court in 1989 held that burning of the American flag which personal freedom was this reason,Stone contended,laws that restrict free expression require"more was a protected form of expression,a ruling that led to widespread demand for a anly a part Since the dawn exacting [judicial]scrutiny...than most other types of legislation." constitutional amendment to ban desecration of the flag. of the atomic age,the Although the Supreme Court has not explicitly endorsed Stone's position,its n and natio decisions since the late 1950s have been consistent with the preferred position Press Freedom and Prior Restraint have doctrine regarding First Amendment rights.The judiciary has held that anything Adams and govemment officials must show that national security is directly and substan- Freedom of the press received strong judicial support during the Vietnam lefferson could have tially imperiled before they can lawfully prohibit citizens from voicing their period.In New York Timtes Co.v.Uinited Stntes (1971)the Court ruled that the imagined.How far would Times's publication of the "Pentagon papers"(seccet government documents you go in allowing government to restrict revealing official deception about the success of the United States'conduct of onal freedom for rea 354U.5.298195 No.e..90 (367 U.03 (1961) o85w7a96
96 PART TWO INDIVIDUAL RIGHTS CHAPTER 5 CIVIL LIBERTIES:PROTECTING INDIVIDUAL RIGHTS 97 ·ANALYZE THE ISS0E月 the war)could not be blocked by the Department of Justice,which claimed that the U.S.system of government,the Court indicated that the states were not Rights in Conflict publication would hurt the war effort.The documents had been illegally completely free to limit expression: In Nebruska Press Aseocistion obtained by antiwar activists,who had tumed them over to the Times and other Co news organizations for publication.The Court ruled that"any system of prior restraintson the press is unconstitutional unless the government can clearly For present purposes we may and do assume that freedom of speech and of the justify the restriction."The press was protected [by the First Amendment]so press-which are protected by the First Amendment from abridgement by Congress -are among the fundamental personal rights and "liberties"protected by the due that it would bare the secrets of government and inform the people,"wrote process clause of the Fourteenth Amendment from impairment by the states. crime.The judge reasoned Justice Hugo Black in a concurring opinion."Only a free and unrestrained press that the accused's tight to a can effectively expose deception in govemment." fair trial would be Having developed this new interpretation of the Fourteenth Amendment,the The unacceptability of prior restraint-goverment prohibition of speech or Supreme Court proceeded during the next decade to overturn state laws that crime publication before the fact-is basic to the current doctrine of free expression restricted expression in the areas of speech,press,religion,and assembly and How would you have ruled The Supreme Court has said that any attempt by government to prevent petition The most famous of these judgments came in the case of Near v. in this case?Can you think o expression carries"a heavy presumption'against its constitutionality."News Minnesote(1931).Jay Near was the publisher of a Minneapolis weekly newspa- er situabons in whieh rights come into confct? organizations and individuals are legally responsible after the fact for what they per that regularly made scurrilous attacks on blacks,Jews,Catholics,and labor vng ncu? report or say (for example,they can be sued by an individual whose reputation union leaders.His paper was closed down on authority of a state law that is wrongly damaged by their words),but generally government cannot stop banned "malicious,scandalous,or defamatory"publications.Near appealed Do you belleve that any righ them in advance from expressing their views. the shutdown,and the Supreme Court ruled in his favor,saying that the or rights sbould take Nevertheless,the role of the United States in a world of nuclear weapons and Minnesota law was "the essence of censorship."Chief Justice Charles Evans Bre nce over all others?If so,why? communist insurgencies creates tension between the demands of national Hughes wrote the Court's opinion:"The fact that the liberty of the press may be security and freedom of individual expression.In an exception to the doctrine of abused by miscreant purveyors of scandal does not make any the less necessary prior restraint,for example,the courts have upheld the govemment's authority the immunity of the press from previous restraint. to ban uncensored publcations by certam past and present government When the Fourteenth Amendment was debated in Congress after the Civil employees,such as CIA agents,who have taken part in classifed national War,there was no indication that its framers meant it to protect First Amend- security activities. ment rights from state action.Seventy years later the Supreme Court justified the change by reference to selective incorporation- -the absorption of certain FREE EXPRESSION AND STATE GOVERNMENTS provisions of the Bill of Rights,particularly freedom of expression,into the Fourteenth Amendment so that these rights would be protected from infringe- In 1790 Congress rejected a proposed amendment to the Constitution which ment by the states.The Court asserted that such rights are an indispensable would have applied the Bill of Rights to the states.They had their own bills of condition of American life because "neither liberty nor justice would exist if rights,and anyway,early Americans were more worried about the power of the they were sacrificed. national government than about the power of the states.Thus the freedoms guaranteed in the Bill of Rights were initially protected only from action by the national government,a constitutional arrangement that the Supreme Court Limiting the Authority of States to Restrict Expression upheld in 1833.17 A century later,however,the Court began to protect Since the 1930s,the Supreme Court has broadly protected freedom of expres- individual rights from infringement by state goverments.The vehicle for this sion from action by the states and by local governments,which derive their change was the Fourteenth Amendment to the Constitution. authority from the states.A leading free-speech case was Brandenburg v.Ohio (1969).The appellant was a Ku Klux Klan member who,in a speech at a Klan The Fourteenth Amendment and the States rally,had been recorded as saying,"If our president,our Congress,our No State shall...deprive ary Supreme Court,continues to suppress the white Caucasian race,it's possible enf，ry,ar Ratified in 1868,the Fourteenth Amendment forbids a state to deprive any that there might have to be some revenge taken."He was arrested and convicted rop中y.3 ithout due process of person of life,liberty,or property without due process of law.It was not until of advocating force under an Ohio law prohibiting "criminal syndicalism,"but Gitlow v.New York(1925).however,that the Supreme Court decided that the the Supreme Court reversed the conviction,saying that U.S.Constitution, Fourteenth Amendment applied to state action in the area of freedom f Fourteenth Amendment expression.Although the Court upheld Benjamin Gitlow's conviction for violating a New York law that prohibited advocacy of the violent overthrow of IGitlow v.New York,268 U.S.652 (1925) Fiske v.Kanses,274 U.5.30 (1927)(apeechk Nesr v.Minnesots,283 U.S.697 (1931)(pr mCo.unied 1() 78s2S6tg4e88g683 ebraska Press Ass限￥.5mm7t427U.5.5391976 smbly and petition) Barron v.Baltisore,7 Peters 243 (1833). cmeic (197)