Time Line: The Court and Basic Rights
Around 1910, Alexander J. McKelway wrote a Declaration of Dependence on behalf of the children of America: "That childhood is endowed with certain inherent and inalienable rights, among which are freedom from toil for daily bread; the right to play and to dream; the right to the normal sleep of the night season; the right to an education, that we may have equality of opportunity for developing all that there is in us of mind and heart." McKelway could look neither to the Declaration of Independence, the Constitution, nor the Bill of Rights for language defining the rights of children. Indeed, he would have searched in vain in the supreme laws of the land even to find a definition of "child."
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| Schenck v. United States
(1919)
Decided by a vote of 9 to 0 Conflict: In June 1917, as the United States mobilized to enter World War I, Congress passed the Espionage Act, which criminalized interference with the recruitment, enlistment, and discipline of the armed forces. On August 13, Charles T. Schenck (General Secretary of the Socialist Party of Philadelphia) ordered the printing and distribution of 16,000 circulars criticizing America's involvement in World War I, and specifically the use of the draft. The leaflets depicted the war as a wicked capitalist scheme, compared the draft to "involuntary servitude," and urged drafted men to petition Congress to repeal the Conscription Act. Schenck was arrested, tried, and convicted for violating the Espionage Act. He appealed the decision of a federal court in Pennsylvania to the Supreme Court of the United States. Opinion: In a unanimous decision, the Suprme Court concluded that Schenck's political speech was not protected by the First Amendment, and the Court thereby upheld the constitutionality of the Espionage Act. Associate Justice Oliver Wendell Holmes delivered the opinion for the Court. He reasoned that the circumstances in which a speech is made determines the extent to which the First Amendment protects it: "Free speech would not protect a man falsely shouting fire in a theater, and causing a panic." The opinion articulated the "clear and present danger" test for First Amendment speech guarantees. The proximity and degree of danger that words represent to the common good must be considered when determining whether speech is protected or not. The threshold of danger is lower during times of war, higher in times of peace. Context: With Germany's resumption of unrestricted submarine warfare against neutral American ships (February 1) and the added provocation of the Zimmerman Telegram (February 24), President Woodrow Wilson asked Congress for a declaration of war on April 2, 1917. The House of Representatives (by a vote of 373 to 50) and the Senate (by a vote of 82 to 6) approved Wilson's request. The United States formally declared war on Germany on April 6, 1917. The war in Europe, the bloodiest in western history, had been going on for four years with no end in sight when America entered on the side of Britain and France. Wilson had campaigned for re-election in 1912 on the platform of keeping the nation out of the European war, which conformed to the nation's isolationist tradition. When Wilson took the nation to war, tens of thousands of Americans protested. Even his Secretary of State, the venerable reformer and former Populist Party leader, William Jennings Bryan, had earlier resigned from his cabinet seat in protest of Wilson's pro-British actions as president. This opposition continued, moreover, with the passage of the selective service law on May 18, 1917, which forced millions of young men to register for compulsory service in the armed forces. Schenck's circulars struck at this mobilization drive by the government. Ultimately 4 million draftees served in the armed forces, and some 2 million saw duty overseas. By the armistice (November 11, 1918), roughly 72 percent of the men in the military were draftees. The Socialist Party of America had approximately 100,000 active members drawn from labor unions, immigrants, and reformers at the start of WWI. In 1912, its presidential candidate, Eugene V. Debs, a labor organizer who led the Pullman strike in 1894, had garnered around 900,000 votes, or 6 percent of the total. It counted as party members two representatives in the U.S. Congress, over 70 mayors, and hundreds of state legislators and city and local government officials. Although the Socialist Party split over the war, its long-time leader Eugene V. Debs led the anti-war wing of the party. He was jailed in 1918 for inciting disloyalty and mutiny as well as for obstructing military recruitment when he spoke these words to an audience of supporting listeners: "You need to know that you are fit for something better than slavery and cannon fodder." (Debs v. United States, 1919) Impact/Consequences: For his offenses, Charles T. Schenck served six months in prison. Associate Justice Oliver Wendell Holmes, who established the "falsely shouting fire" and "clear and present danger" test for free speech, soon backed away from his interpretation when the government began arresting peacetime critics of government policies. In these cases, he insisted that the "present danger" must relate to a clearly immediate evil and a specific action (Abrams v. United States, 1919). In 1927, in Whitney v. California, the Supreme Court broadened the test for non-protected political speech from "clear and present danger" to a "bad tendency" test. As a consequence of Brandenburg v. Ohio (1969), the test was again narrowed to "imminent lawless action." Quotes: "...whoever, when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000, or imprisonment for not more than twenty years, or both."
"No power was delegated to send our citizens away to foreign shores to shoot up the people of other lands, no matter what may be their internal or international disputes. The people of this country did not vote in favor of war. In the last election they voted against war. To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war-crazy nations would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves. Will you stand idly by and see the Moloch of Militarism reachforth across the sea and fasten its tentacles upon this continent? Are you willing to submit to the degradation of having the Constitution of the United States treated as a mere scrap of paper?"
"But how can a speaker or writer be said to be free to discuss the actions of the Government if twenty years in prison stares him in the face if he makes a mistake and says too much? Severe punishment for sedition will stop political discussion as effectively as censorship."
"But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force."
"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. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."
Questions to Ponder:
Selected Bibliography: Hentoff, Nat. Free Speech for Me--But Not for Thee. (New York: HarperCollins, 1992.) Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Rehnquist, William H. All The Laws But One: Civil Liberties in Wartime. (New York: Vintage Books, 2000.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Gitlow v. New York
(1925)
Decided by a vote of 7 to 2 Conflict: New York resident Benjamin Gitlow was a member of the left-wing section of the Socialist Party whose advocacy of violence had caused it to split from the main American Socialist Party in September 1919. He wrote The Left Wing Manifesto and helped to distribute 16,000 copies of The Revolutionary Age newspaper, both of which promoted the victory of socialism by class action "in any form," including labor strikes. Gitlow traveled around New York publicly advocating revolution. Gitlow was arrested in November 1919, tried and convicted under New York's 1902 Criminal Anarchy Law, which made it a felony to advocate the violent overthrow of the government either "by word of mouth or writing." He served three years at hard labor in Sing-Sing Prison (Ossining, New York) before being released in 1922. Benjamin Gitlow ran for mayor of New York City (1921) on the Communist Party ticket and appealed to the Supreme Court to overturn his conviction. Opinion: By a 7 to 2-majority vote, the Supreme Court upheld Gitlow's conviction, holding that his actions threatened the "foundations of government." It ruled that Gitlow's pamphlet, while it did not immediately cause criminal action was like a "revolutionary spark" that might later burst into a "sweeping and destructive conflagration." Associate Justices Oliver Wendell Holmes, Jr. and Louis Brandeis offered strong dissents. They claimed that Gitlow's Manifesto had no chance of inciting criminal action. The nation was not at war. They objected to punishing expression rather than action, and they argued that the "clear and present danger" doctrine for judging the legality of speech was the best protection of First Amendment rights. Although upholding Gitlow's conviction, the Court surprisingly agreed with Gitlow's lawyers that the protections of basic rights afforded by the Bill of Rights should be applicable to the states under the Fourteenth Amendment. This landmark decision became known as the doctrine of "incorporation." Context: A number of factors came together in the early 1920s that provoked a near hysterical, anti-socialist fervor among many Americans. The Russian Revolution and the emergence of a communist Soviet Union, seemingly dedicated to exporting revolution around the world, convinced many Americans that a worldwide plot aimed at overthrowing democracy and capitalism was in the making. Business leaders had long equated labor unionization with "bolshevism." Entrenched political leaders won political advantage by characterizing leftist and progressive reformers as radicals or bomb-throwing anarchists. At the same time, many of the nation's citizens were virulently opposed to foreign immigration from Eastern Europe. They looked on the new immigrants as un-American socialists, a perspective informed by the anti-foreign propaganda unleashed during World War I. Not to be forgotten, the Wilson Administration had cracked down hard on anti-war agitators, many of whom were radical socialists, such as Eugene Debs, the leader of the Socialist Party, who had been jailed for opposing the war and selective service. Certainly, there were violent incidents, the most disturbing of which was the May Day bombing campaign in 1919, when explosives were mailed to 38 prominent politicians and business figures; and an Italian anarchist had attempted to bomb Attorney General A. Mitchell Palmer's home. Labor unrest had disrupted life across America, with over four million workers involved in 3,630 strikes or lockouts. From the Seattle general strike in February to national strikes by steelworkers and coal miners, to a Boston police officers' strike in autumn 1919, no portion of the nation was free from strife. This environment of unrest triggered the so-called Red Scare of 1919. In August 1919, Attorney General A. Mitchell Palmer created a General Intelligence Division (now the FBI) to investigate the threat by communism and socialism to America. Cloaked in the authority of law, Palmer began wire-tapping and gathering information on all known radicals in the nation; between November 1919 and May 1920, the federal government launched a sweeping program of raids, which led to the arrest of 6,000 persons. Over 800 detainees were deported, many of whom had been denied due process and appear to have been innocent victims of guilt-by-association. When Palmer's predictions of mass violence on May Day 1920 failed to materialize, he was discredited, even though a September bomb blast killed 38 people on Wall Street in New York City. The expulsion by the New York Legislature of five duly elected members because they were socialists led mainstream political leaders such as Al Smith and former Supreme Court Justice Charles Evens Hughes to condemn the anti-communist hysteria. Impact/Consequences: This is a landmark case because it is the first time that the Fourteenth Amendment's Due Process Clause applied the Bill of Rights to the states, known as the "incorporation" doctrine. The decision in Gitlow protected First Amendment guarantees of freedom of speech and the press from curtailment by the states. In 1931, the Court ruled a state law unconstitutional as a violation of free speech as protected by the Constitution (Stromberg v. California). In December 1925, New York Governor Al Smith pardoned Gitlow as "punished enough." Benjamin Gitlow ran for Vice President of the United States on the Communist Party ticket in both 1924 and 1928, but in 1939 he repudiated the Communist Party and spoke out against it until his death in 1965. This case is also important because of Justice Holmes's articulate dissent in favor of the "clear and present danger" test for judging the criminality of speech. The Supreme Court eventually embraced this doctrine, or test, in the 1960s. Quotes: "Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by the assassination of the executive head or of any executive officials of the government, or by unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony."
"The final objective of mass action is the conquest of the power of the state, the annihilation of the bourgeois parliamentary state and the introduction of the transition proletarian state, functioning as a revolutionary dictatorship of the proletariat."
"The Constitution applies impartially. No discrimination can be based upon either the citizenship or the personal character or views of the person who asserts constitutional rights. An enemy of cherished institutions does not become ipso facto an outlaw, nor is he estopped to assert his equality before the law, whatever opinion may be entertained as to the quality or his use of it."
"By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil that they may be penalized in the exercise of its police power. We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality."
"For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States."
"If what I think the correct test is applied it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth."
Questions to Ponder:
Selected Bibliography: Hentoff, Nat. Free Speech for Me--But Not for Thee. (New York: HarperCollins, 1992.) Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997.) Josephson, Harold. "Political Justice During the Red Scare: The Trial of Benjamin Gitlow," in American Political Trials, ed. Michal R. Belknap. (Westport, Conn.: Greenwood Press, 1981.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. (Massachusetts, London: Harvard University Press, 1988.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Rehnquist, William H. All The Laws But One: Civil Liberties in Wartime. (New York: Vintage Books, 2000.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| U. S. v. Harriss
(1954)
Decided by a vote of 5 to 3 Conflict: Robert Harriss, a cotton broker belonging to the New York Cotton Exchange, was indicted for violating the 1946 Federal Regulation of Lobbying Act. He was accused of hiring persons to lobby Congress without registering as lobbyists with the House and Secretary of the Senate. He conviction on multiple counts was overturned by the appellate court, which ruled the Act unconstitutionally vague. The government appealed to the United States Supreme Court. Opinion: In 5 to 3 decision, the Supreme Court upheld the constitutionality of the Federal Regulation of Lobbying Act. The majority was reluctant to entirely overturn a law passed by Congress and ruled narrowly on a few pertinent passages of the Act. The majority opinion effectively "rewrote" passages of the Act so that it applied only to individuals whose "principal purpose" was to influence legislation and who directly contacted members of Congress. Dissenters believed the Act violated the Due Process Clause of the Fourteenth Amendment because it was so vague, and believed Congress had violated the First Amendment's prohibition that "Congress shall make no law ... abridging the freedom of speech, or of the press, or the right of the people ... to petition the Government for redress of grievances." Context: In the 1930s, to combat corruption and bribery, Congress passed piecemeal legislation regulating lobbyists by specific interest groups such as the maritime industry or foreign countries. In 1946, it attempted to pass a more comprehensive Congressional lobbying law; however, little was said during hearings and the law itself was only four pages long. It required that any person hired for the purpose of lobbying Congress be registered and also provide quarterly financial reports of lobbying expenditures. Robert Harriss was an outspoken political thinker and personality. He was a financial advisor to Father Charles E. Coughlin, a conservative and widely popular radio commentator in the 1930s. Harriss, like Coughlin, was highly critical of President Franklin Roosevelt's New Deal programs and an outspoken opponent of the Federal Reserve Bank. He was also a member of the America First Party, an isolationist organization, which opposed entry into World War II. Impact/Consequences: Although the Supreme Court upheld the constitutionality of the Federal Regulation of Lobbying Act, the decision (along with the original vague wording) created huge loopholes, which special interest groups have exploited. Some claim their principal purpose is not lobbying, so do not register. Others use their own money, so do not solicit money for their lobbying. Other lobbyists contact congressional aides rather than elected representatives directly, continuing to wield their influence. Lobbying efforts, which orchestrate public e-mail or writing campaigns are not covered by the act. Despite criminal penalties for noncompliance, there are no means for enforcement. After nearly 50 years of struggling with the unenforced and unenforceable 1946 Act, Congress replaced it with the Lobbying Disclosure Act of 1995. Quotes: "Any person who shall engage himself for pay or for any consideration for the purpose of attempting to influence the passage or defeat of any legislation by the Congress of the United States shall, before doing anything in furtherance of such object, register with the Clerk of the House of Representatives and the Secretary of the Senate and shall give to those officers in writing and under oath, his name and business address, the name and address of the person by whom he is employed, and in whose interest he appears or works, the duration of such employment, how much he is paid and is to receive, by whom he is paid or is to be paid, how much he is to be paid for expenses, and what expenses are to be included. Each such person so registering shall, between the first and tenth day of each calendar quarter, so long as his activity continues, file with the Clerk and Secretary a detailed report under oath of all money received and expended by him during the preceding calendar quarter in carrying on his work; to whom paid; for what purposes; and the names of any papers, periodicals, magazines, or other publications in which he has caused to be published any articles or editorials; and the proposed legislation he is employed to support or oppose."
"Thus construed, 305 and 308 also do not violate the freedoms guaranteed by the First Amendment--freedom to speak, publish, and petition the Government. Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent."
"I am in sympathy with the effort of the Court to save this statute from the charge that it is so vague and indefinite as to be unconstitutional. My inclinations were that way at the end of the oral argument. But further study changed my mind. I am now convinced that the formula adopted to save this Act is too dangerous for use. It can easily ensnare people who have done no more than exercise their constitutional rights of speech, assembly, and press."
"The First Amendment forbids Congress to abridge the right of the people 'to petition the Government for a redress of grievances.' If this right is to have an interpretation consistent with that given to other First Amendment rights, it confers a large immunity upon activities of persons, organizations, groups and classes to obtain what they think is due them from government. Of course, their conflicting claims and propaganda are confusing, annoying and at times, no doubt, deceiving and corrupting. But we may not forget that our constitutional system is to allow the greatest freedom of access to Congress, so that the people may press for their selfish interests, with Congress acting as arbiter of their demands and conflicts."
Questions to Ponder:
Selected Bibliography: Mark, Gregory A., "The Vestigial Constitution: The History and Significance of the Right to Petition," 66 Fordham Law Review 2153 (1998) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Higginson, Stephen A., "A Short History of the Right to Petition Government for the Redress of Grievances," 96 Yale Law Journal 142 (1986) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Brandenburg v. Ohio
(1969)
Decided by a vote of 8 to 0 Conflict: Ku Klux Klan leader Clarence Brandenburg invited a television reporter and cameraman from Cincinnati to film a rally of a dozen hooded and armed Klansmen at a farm in Hamilton County, Ohio. Prosecutors viewing the film charged Brandenburg's advocacy of racial strife with violating a 1919 Ohio Criminal Syndicalism law, which made it a felony to advocate "sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." He was convicted in December 1966, fined $1,000, and sentenced to prison for one to ten years. Brandenburg's conviction was sustained by an appellate court, and dismissed without opinion by the Ohio Supreme Court, so he appealed to the United States Supreme Court. Opinion: In Brandenburg v. Ohio, the Court overturned Brandenburg's conviction, holding that neither advocacy of violence nor potential future danger was sufficient to limit free speech. The opinion was delivered "per curiam" (an opinion rendered by the whole Court), although it is believed to have been authored either by Justice Abe Fortas (who resigned prior to the announcement of the decision) or Justice William J. Brennan. In formulating its opinion, the Court accepted much of Justice Oliver Wendell Holmes's reasoning about separating content of speech from actions, the importance of a real and "imminent" threat rather than speculation about possible threats, and the application of a "clear and present danger" test rather than the "bad tendency" test. The Court drew principally on Holmes and on the idea of "lawless action" distinct from words and thought as developed by appellate judge Learned Hand. The Court implemented a new "incitement test" requiring a) that the speech advocate "imminent lawless action," and b) that it would be "likely" to incite or produce imminent lawless action. Context: In Whitney v. California (1927) the Supreme Court had created the "bad tendency" test, which allowed the government to restrict or prohibit speech that tended "to incite crime, disturb the public peace, or endanger the foundations of organized government." This precedent had stood for 32 years and was treated by lower courts as "established law," (one of the reasons why the Ohio Supreme Court dismissed Brandenburg's appeal without even writing an opinion.) But the Court had been reformulating its stand on Whitney in a number of cases leading up to Brandenburg. During the Vietnam War, the Court held unconstitutional the refusal of the Georgia House of Representatives to seat Julian Bond because he had criticized the war and the draft (Bond v. Floyd, 1966). The issue before the Court in Brandenburg had to do with whether, and in what circumstances, a person could be punished, within the Constitution, for expressly advocating criminal conduct. Impact/Consequences: In Brandenburg v. Ohio, the Supreme Court specifically overturned that 32-year precedent, deciding that government could abuse the "bad tendency" test too easily. This decision came exactly 50 years after Schenck. The Court created a new test, the "incitement test" in its place, which limits the punishment of subversive speech even in times of war to specific conditions: the speech must specifically advocate violation of the law; it must call for immediate illegal action; and the illegal action must be likely to occur. In this one landmark decision, the Court effectively overturned with Brandenburg 50 years of precedent regarding free speech: see Schenck, Frohwerk, Debs, Gilbert, Schaefer, Aframs, Gitlow, Whitney, and Dennis. The Brandenburg "incitement test" is today the standard by which the nation's courts determine whether or not the First Amendment protects inflammatory speech. Because few such inflammatory speech cases have come to the Supreme Court since the 1970s, it is unclear how Brandenburg will fare in the minds of present or future Justices of the Court. Additionally, because the test was not applied to subversive speech during war, it is unclear whether the present or future Court will use Brandenburg as a binding precedent. The resistance, nevertheless, of the Court to claims of national security over basic rights suggests that it does not bow easily to executive authority. For example, the Court unanimously rejected the attempt by Attorney General John Mitchell to authorize electronic surveillance without a court order of "domestic organizations that seek to subvert the government by unlawful means" (Dellinger v. Mitchell, 1971). It is important, however, to think about this issue with a note of caution, because almost every time the nation's security has been threatened, its First Amendment freedoms have been curtailed. Whether or not Brandenburg has erected "fortress" around core political speech remains to be seen. Quotes: "Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom, and the purpose to disregard it must be evident when the power exists. If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation. If that be not the test, I can see no escape from the conclusion that under this section every political agitation which can be shown to be apt to create a seditious temper is illegal."
"This is an organizers' meeting. We have had quite a few members here today which are--we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you."
"The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
"Though I doubt if the 'clear and present danger' test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace."
Questions to Ponder:
Selected Bibliography: Gunther, Gerald. Learned Hand: The Man and the Judge. (New York: Knopf, 1994.) Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. (Massachusetts, London: Harvard University Press, 1988.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Parker, Richard A., ed. Free Speech on Trial: Communications Perspectives on Landmark Supreme Court Decisions. (Tuscaloosa, AL: University of Alabama Press, 2003.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime--From the Sedition Act of 1798 to the War on Terrorism (New York, NY: W. W. Norton, 2004) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Miller v. California
(1973)
Decided by a vote of 5 to 4 Battle: Prior to June 1969 one of California's largest distributors of mail-order "adult" materials, Marvin Miller, sent out a mass-mailing of advertisements for illustrated, sexually explicit books. The mailing consisted of brochures featuring some written descriptions and many graphic, sexually explicit illustrations. One of these mailings was delivered to a Newport Beach restaurant. The unsuspecting manager opened the package in the presence of his mother. Outraged at what they saw, the mother and son instigated legal action against Miller for violating the state's obscenity law. Miller was convicted in a jury trial under the California Penal Code: "Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor." When the California Superior Court sustained his conviction, Miller appealed to the Supreme Court. Opinion: Marvin Miller's conviction was sustained by a 5 to 4 ruling, which held that the First Amendment does not necessarily protect obscene speech, or that which is defined as obscenity. Although the decision was narrow, the majority of the Court coalesced behind a new three-prong test for obscenity. Material can be judged obscene, according to the Court, only if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;" and (2) the" work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;" and (3) the "work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Chief Justice Warren Burger, in writing for the Court, also noted that under this standard, only the sale or exposure of those materials depicting "hard core" sexual conduct would violate the law. The Court asserted clearly the idea first alluded to in Roth v. United States (1957) that the definition of obscenity (and the literary, artistic, political, or scientific value of allegedly obscene material) could be determined by contemporary community standards rather than national standards. Context: One of the earliest free speech issues to reach the Supreme Court was whether obscene speech is protected under the First Amendment. In Rosen v. United States (1896), the Court sustained the conviction of publisher Lew Rosen for distributing "lewd, obscene, and lascivious" material through the U.S. mails. Justice John Marshall Harlan put the matter simply and clearly: the "test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence, and into whose hands a publication of this sort may fall." This definition focused on the likelihood that the material would adversely impact ("corrupt" or "deprave") whomsoever received it. The Court did not consider this issue to be a matter of free speech protected by the First Amendment because obscenity was not about speech. By this the Court meant, that speech has to convey ideas, which obscenity does not--in the Court's opinion. In 1957, the Supreme Court heard the appeal of Samuel Roth, a New York bookseller and publisher convicted of mailing books and circulars that were "obscene, lewd, lascivious, or filthy." In Roth v. United States, the Court reasserted the concept that obscenity is not "speech." It is equivalent to conduct or action, and thus clearly subject to regulation as crime as long as it is specifically defined. It other words, while the Court placed obscenity beyond First Amendment protections, it. acknowledged that the regulation of obscenity did raise constitutional questions. A state law, for example, might deem speech as obscene when it was not in fact obscene. The law would have to precisely define what is meant by obscenity to make sure that protected speech was not restrained. Obscene speech could be regulated but it had to be clearly defined as obscenity. Justice William Brennan, in writing for the majority in Roth, tried to place the burden of defining what is obscene on local rather than national communities. For him, this could be done by asking whether the average person, by "applying contemporary community standards," would say that the "dominant theme of the material taken as a whole appealed to prurient interest." For the next 15 years the Court struggled, despite its stand in Roth, to come up with a clear and precise definition of obscenity. In one case, a frustrated Justice Potter Stewart proclaimed his difficulty in defining hard-core pornography: "I know it when I see it." This comment essentially meant that "obscenity is in the eye of the beholder," as stated by the humorist Tom Lehrer. In 1966, Fanny Hill, a book written in 1750, and cited as obscene in Rosen in 1896, arrived once again at the Supreme Court (A Book Named "John Cleland's Memoirs of a Woman of Pleasure" et al. v. Attorney General of Massachusetts -1966). The Court upheld the legality of the book, by going beyond the Roth test. In writing for a divided Court, Justice William Brennan highlighted the importance of considering the issue of "redeeming social value" in the definition of obscenity: "A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive." So now the issue of social value came into play. Because of the vagueness of the tests and the lack of consensus about what is obscene by definition, the Supreme Court was inundated with obscenity cases (over 60 in the 1971-1972 term) in the years after Roth. Furthermore, the Court became embroiled in a public, political backlash to pornography. The perception that the Supreme Court had legalized obscenity contributed to the failure of Justice Abe Fortas to be elevated to the Chief Justice as well as to the election of Richard Nixon, who promised in his 1968 presidential campaign to appoint "strict constructionists" to the Supreme Court. Nixon's election and appointment of Chief Justice Warren Burger set the stage for the Court to revisit obscenity and the First Amendment. Miller represented the attempt to put the burden of defining obscenity back on local juries. Community not national standards would determine redeeming social value and artistic and literary merit, and thus the Supreme Court would be "off the hook," so to speak. Impact/Consequences: In creating the Miller test, the Supreme Court reworked the Roth test and abandoned the "redeeming social value" test articulated in the Memoirs case. The decision gave communities and states greater latitude in regulating obscenity, whether in print form (such as adult bookstores) or non-verbal (such as topless bars). Miller has thwarted most challenges to zoning and public nudity ordinances. The "local standards" element means that there is no consistent national standard; the public, local lawmakers, and lower courts remain rather confused about the definition of "obscenity." Roughly a hundred subsequent Supreme Court opinions have cited Miller. Nor has the Court since Miller always agreed with community definitions of obscenity. In Jenkins v. Gerogia (1976), the Court overturned Georgia's claim that the film Carnal Knowledge appealed only to prurient interests. It found reasonable the argument that the film had significant artistic merit based on national standards. In Pope v. Illinois (1987), moreover, the Court held that community standards would seldom trump national standards in determining the redeeming value and artistic merit of a particular book or artistic work. The emergence of obscenity on the internet has opened up new questions, especially since the Court ruled in Ashcroft v. ACLU (2002) that virtual child pornography on the internet was constitutional. Miller appears to be of little value, moreover, for dealing with those feminists who argue that the issue of pornography is not its obscenity but its incitement of violence against women, and thus it should be banned altogether. Quotes: "311. Definitions As used in this chapter: (a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance."
"But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press'. ... There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an 'extraordinarily vigorous period,' not just in economics and politics, but in belles lettres and in 'the outlying fields of social and political philosophies.' We do not see the harsh hand of censorship of ideas--good or bad, sound or unsound--and 'repression' of political liberty lurking in every state regulation of commercial exploitation of human interest in sex."
"The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people."
Questions to Ponder:
Selected Bibliography: Dworkin, Andrea and Catharine MacKinnon, eds. In Harm's Way: The Pornography Civil Rights Hearings. (Cambridge: Harvard University Press, 1997.) Irons, Peter. May It Please the Court: The First Amendment. (New York: The New Press, 1997.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Parker, Richard A., ed. Free Speech on Trial: Communications Perspectives on Landmark Supreme Court Decisions. (Tuscaloosa, AL: University of Alabama Press, 2003.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| NAACP v. Alabama ex. rel Patterson
(1958)
Decided by a vote of 9 to 0 Conflict: Following World War II, the National Association for the Advancement of Colored People (NAACP) campaigned actively for African-American voting rights and the end of segregation. In an attempt to thwart the group, Alabama in 1956 invoked its Foreign Corporation Qualification Law against the NAACP, because it was incorporated in New York. Alabama's Attorney General, John M. Patterson, required the NAACP to submit corporate information and membership lists, including the names and addresses of each person in Alabama who belonged to the organization. The NAACP refused to comply, fearing for the safety of its members. Attorney General Patterson then initiated proceedings in the State Circuit Court of Montgomery County to oust the NAACP from Alabama. Patterson claimed that the NAACP, through its actions in the Montgomery bus boycott (sparked by Rosa Parks) and its effort to enroll students in public universities, was "causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief." The State Circuit Court of Montgomery County issued a restraining order prohibiting the NAACP from operating in Alabama. The NAACP appealed to the United States Supreme Court. Opinion: The Supreme Court unanimously ruled that the civil contempt citation was unconstitutional because the NAACP had a right to associate. Disclosure of the membership lists would threaten that right. Although the U.S. Constitution and Bill of Rights do not specifically contain the words "right of association," the First Amendment's right "peaceably to assemble" and the "liberty" guaranteed by the Fourteenth Amendment's Due Process Clause embrace freedom to associate. Context: The National Association for the Advancement of Colored People (NAACP) was first incorporated as a non-profit membership corporation in New York. The purpose of the NAACP was to advocate for improvement of the civil rights and welfare of African Americans. It spread across the country through affiliate groups, including to Alabama in 1918. The first Supreme Court case to consider the right to peaceful assembly was United States v. Cruikshank (1875). In his opinion, Chief Justice Morrison Waite eloquently declared, "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." Ironically, the association the Supreme Court protected by this ruling was that of nearly 100 members of the Ku Klux Klan, including Cruikshank, who had interrupted a meeting of African-American citizens. The Klansmen had been indicted under the Reconstruction-era Enforcement Act on charges of having deprived African-American citizens of their right to assemble together peaceably with other citizens "for a peaceful and lawful purpose." The Supreme Court found Cruikshank's indictment inadequate on the grounds that there was no federal purpose to the interrupted meeting. While upholding the Peaceful Assembly Clause in Cruikshank, the Court did not assert a constitutional freedom to associate. In a twist of fate, that would come with NAACP v. Alabama (1958). Impact/Consequences: Because the Supreme Court ruled, in part, that the Supreme Court of Alabama had jurisdiction to hear the NAACP's appeal of the contempt citation, the Supreme Court of Alabama heard the case and reinstated the lower court's contempt citation. The NAACP appealed to the United States Supreme Court and it overturned the contempt citation a second time in NAACP v. Alabama (1959). Then, the NAACP attempted to get a court hearing on the retraining order and Alabama's efforts to expel the organization from the state. Failing to get a hearing in state courts, it went to the federal District Court and Court of Appeals, and finally appealed to the United States Supreme Court for a third time in NAACP v. Gallion (1961). The Supreme Court ordered Alabama to hear the case on the restraining order by January 1, 1962 or it would be assigned to the Federal District Court. The case went to trial in Alabama in December 1961. The State Circuit Court of Montgomery ruled that the NAACP had continued to do business in Alabama during the five years of its "temporary" ban, so permanently barred it from operating in Alabama. This judgment was affirmed by the Alabama Supreme Court, and the NAACP appealed for a fourth time to the United States Supreme Court. Finally, in the Supreme Court overturned the permanent expulsion of the NAACP from Alabama and ordered the Alabama Supreme Court to oversee the qualification process so that the NAACP could operate legally in Alabama (NAACP v. Alabama ex rel. Flowers, 1964) The Supreme Court made it clear it would take matters into its own hands if Alabama sent the case back to it again. After eight years of delay, Alabama complied and the NAACP again operated legally in the state of Alabama. The NAACP appealed for help from the Supreme Court in states other than Alabama. In Bates v. Little Rock (1960) the Court ruled that the Arkansas tax offices had no right to NAACP membership roles; in Shelton v. Tucker (1960) it also ruled Arkansas could not force teachers to file affidavits listing organizations in which they had membership, a rule designed to identify NAACP members. A 1956 Virginia law prohibiting lawyers from seeking clients targeted NAACP lawyers; the Court struck down the law in NAACP v. Button (1963). In the same year, the Supreme Court struck down investigations of NAACP membership roles by a Communist-hunting committee of the Florida legislature in Gibson v. Florida Legislative Investigative Committee (1963). The Court found in Shuttlesworth v. Birmingham (1969) that a community could not use vagueness on permits to thwart a peaceful march by the NAACP. Beyond the NAACP, other challenges to the civil rights movement helped shape the "right of association." Edwards v. South Carolina (1963), arising from the arrests of peaceful student demonstrations against segregation, upheld the right to peaceful assembly on public property. In Cox v. Louisiana (1965), a case involving a demonstration supporting civil rights, the Supreme Court ruled that courthouses were locales where the right of peaceful assembly was guaranteed. The right to peaceful assembly and association continues to be shaped, as in the past, by groups, some of whom we find to be sympathetic, but also those who are controversial. Quotes: "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."
"It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.... Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."
"...on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure."
Questions to Ponder:
Selected Bibliography: Abernathy, M. Glenn. The Right of Assembly and Association, 2nd ed. (Columbia, SC: University of South Carolina Press, 1981.) Kurland, Philip B., ed. Free Speech and Association: The Supreme Court and the First Amendment. (Chicago: University of Chicago Press, 1975). Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) McWhirter, Darien A. Exploring the Constitution Series: Freedom of Speech, Press, and Assembly. (Phoenix, AZ: The Oryx Press, 1994.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Roberts v. U. S. Jaycees
(1984)
Decided by a vote of 7 to 0 Conflict: The United States Junior Chamber of Commerce (Jaycees) is a national, private non-profit organization that was established in 1920 to help young men develop personal and leadership skills through service to others. The organization's bylaws limited membership to males between the ages of 18 and 35; men older than 35 and women were permitted to hold associate memberships but could not vote or hold office in the organization. The Minneapolis (1974) and St. Paul (1975) chapters of the Jaycees in Minnesota decided to ignore the bylaws and admit women as full members. After sanctions against the "renegade" chapters failed, the president of the national organization advised the two chapters in December 1978 that he planned to begin action to revoke the chapters' licenses. Both chapters filed a claim with the Minnesota Department of Human Rights, headed by Kathryn Roberts, under a state public accommodations law, which prohibited discrimination on the basis of sex. The United States Jaycees asked a federal court for an injunction claiming that their First Amendment rights of free speech and association would be violated if Roberts enforced the law. The Eighth Circuit Court of Appeals ruled in favor of the Jaycees. Minnesota appealed to the Supreme Court. Because Chief Justice Warren Burger had been president of the St. Paul Chapter in 1935 and Justice Harry Blackmun a member of the Minneapolis Chapter, they did not participate in the case. Opinion: In a unanimous decision, the seven participating justices of the Supreme Court upheld the applicability of Minnesota's anti-discrimination law to the United States Jaycees and required the organization to admit women, its bylaws notwithstanding. The Supreme Court had to consider two of the pre-eminent principles in constitutional law, the First Amendment's right of association and the Fourteenth Amendment's guarantee of equal protection; the Supreme Court decided that the state's interest in preventing discrimination against women was more compelling than the right of the Jaycees to restrict their membership. Requiring the Jaycees to admit women to their membership would not place a burden on the rights of male members by suppressing their speech or point-of-view. The economic focus of the organization was the deciding factor for the Court in this case. The majority of the justices felt that the economic benefits of membership could not be denied to women without being discriminatory. In her concurring opinion, Justice Sandra Day O'Connor came to the same conclusion through an entirely different thought process. She did not consider the Jaycees to be an expressive association, but instead a commercial organization subject to state regulation. By expressive association, Justice O'Connor meant that the mere joining of a group might demonstrate, because of the group's mission or purpose, an expression of opinion similar to speech in regard to basic rights. For her joining the Jaycees did not involve this kind of expressive conduct. Context: The First Amendment does not specifically grant a right to association, but Enlightenment philosophers such as Jeremy Bentham viewed it as a natural right. The Supreme Court has come to recognize the right of association, but only quite recently. In the case of NAACP v. Alabama (1958) the Court recognized "expressive association" (organizing to express political thoughts) to be a protected right through the First Amendment's protection of free speech and peaceful assembly. This means that the Constitution's protection of freedom of assembly has come to be defined not only as the right of citizens to assemble in public places to make their opinions known but also the right to associate with others as a "part-and-parcel of the freedom of assembly." In the last century, moreover, the Court has recognized the right to so-called "intimate association" as a protected, privacy right binding on states through the Fourth Amendment; this Court ruling had its origins in marital rights cases, notably Griswold v. Connecticut (1965) and Loving v. Virginia (1967). Roberts v. United States Jaycees also represents the shift in American culture resulting from the women's rights movement in the 1960s and 1970s. In September 1981, Justice Sandra Day O'Connor became the first woman justice in the history of the United States Supreme Court. mpact/Consequences: The Jaycees, presently 6,000 chapters strong world-wide, now say they cannot imagine the organization without women and proudly list on their webpage among other exemplary Jaycees former Miss America Kaye Lani Rae Rafko-Wilson. Since Roberts, the Supreme Court has scrutinized private associations to make certain their main purpose is not discrimination, rather than association. In Board of Directors of Rotary International v. Rotary Club of Duarte (1987) and New York State Club Association v. City of New York (1988), the Supreme Court ruled that the equal protection interests of women outweighed private clubs' association rights and required that they admit women. The Supreme Court has also determined that states cannot hold open primaries in which voters who are not members of a political party may participate in candidate selection by a political party in the case of California Democratic Party v. Jones (2000). In 2000, the Supreme Court considered whether the Boys Scouts of America had the right to revoke the adult membership of James Dale, a former Eagle Scout and troop leader who was a homosexual and gay rights activist in Boy Scouts of America v. Dale. The Supreme Court narrowly ruled in favor of the Boy Scouts, 5-4. The test for when association rights end and discrimination begins remains unresolved and will continue to be refined by the Supreme Court. Quotes: "promote and foster the growth and development of young men's civic organizations in the United States, designed to inculcate in the individual membership of such organization a spirit of genuine Americanism and civic interest, and as a supplementary education institution to provide them with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation, and to develop true friendship and understanding among young men of all nations."
"It is an unfair discriminatory practice: To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex."
"Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties."
"In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women.... Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association.... The Act requires no change in the Jaycees' creed of promoting the interests of young men, and it imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members."
"On the other hand, there is only minimal constitutional protection of the freedom of commercial association. There are, of course, some constitutional protections of commercial speech--speech intended and used to promote a commercial transaction with the speaker. But the State is free to impose any rational regulation on the commercial transaction itself. The Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State. A shopkeeper has no constitutional right to deal only with persons of one sex."
Questions to Ponder:
Selected Bibliography: Abernathy, M. Glenn. The Right of Assembly and Association, 2nd ed. (Columbia, SC: University of South Carolina Press, 1981.) Kurland, Philip B., ed. Free Speech and Association: The Supreme Court and the First Amendment. (Chicago: University of Chicago Press, 1975). Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) McWhirter, Darien A. Exploring the Constitution Series: Freedom of Speech, Press, and Assembly. (Phoenix, AZ: The Oryx Press, 1994.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Boy Scouts v. Dale
(2000)
Decided by a vote of 5 to 4: Conflict: The Boys Scouts of America, a private non-profit organization, revoked the adult membership of James Dale, a former Eagle Scout and troop leader who was a homosexual and gay rights activist. Dale filed suit against the Boy Scouts arguing the organization had violated New Jersey's public accommodation law, which banned discrimination on the basis of sexual orientation, listing as public zones everything from ice cream parlors to bowling alleys, state parks to clinics. The Boy Scouts argued that homosexual conduct was not consistent with the values it wished to instill in young boys, so their action was protected under the right to "expressive association;" the New Jersey Superior Court ruled in the Boy Scouts' favor. Dale's attorneys appealed arguing that homosexuality had no bearing on the expressive association rights of a large non-exclusive organization such as the Boy Scouts; this position was accepted by the New Jersey Supreme Court, which ruled in Dale's favor. The Boy Scouts of America appealed to the Supreme Court in Boys Scouts of America v. Dale (2000). Opinion: The Supreme Court narrowly ruled 5 to 4 in favor of the Boy Scouts with vigorous arguments presented in the majority opinion, authored by Chief Justice William Rehnquist, and the dissenting opinions, authored by Justice John Paul Stevens and Justice David Souter. The majority believed that the Boy Scouts of America were a legitimate expressive association that opposes homosexuality as an unacceptable lifestyle, so that their exclusion from membership of homosexuals was constitutional. The issue for the Court had to do with the right of an organization to control its own political, religious, or cultural messages. The minority disagreed saying that the Boy Scout organization's views on homosexuality were not central to their group's purpose, thus the Boy Scouts were not a constitutionally protected expressive association. They also argued that to deny homosexuals membership in the Boy Scouts is tantamount to saying that "homosexuals are simply so different from the rest of society that" they should be identified as a special group of people deserving special First Amendment treatment. Context: The Supreme Court has come to recognize the right of association, but only quite recently. Intimate association (what one does in private) is recognized as a protected right through the Fourth Amendment and privacy rights while expressive association is recognized as a protected right through the First Amendment's protection of free speech and peaceful assembly. The Red Scare, or the public hysteria and fear of the spread of communism in America, which followed the Russian Bolshevik Revolution in Russia, was translated in the 1920s and 1930s into state laws that hamstrung labor unions as well as the Socialist and Communist political parties. In DeJonge v. Oregon (1937), the Supreme Court ruled as invalid an Oregon statute against "criminal syndicalism," which created, in effect, guilt by association. New Jersey laws, which interfered in the ability to obtain permits for meetings by the Congress of Industrial Organizations (CIO, now part of the AFL-CIO), were struck down in Hague v. CIO (1939). In the 1960s, following the abuses of the McCarthy era, the Supreme Court repeatedly struck down laws that criminalized association with the Communist Party including Arizona's loyalty oath in Elfbrandt v. Russell (1965), and a Congressional statute aimed at defense plant workers in United States v. Robel (1967). A series of Supreme Court opinions beginning with NAACP v. Alabama (1958) also struck down measures designed to harass the National Association for the Advancement of Colored People (NAACP) as a means of curtailing the civil rights movement. In recent years, the Supreme Court has scrutinized private associations to make certain their main purpose is not discrimination, rather than association. In Roberts v. U.S. Jaycees (1984); Board of Directors of Rotary International v. Rotary Club of Duarte (1987); and New York State Club Association v. City of New York (1988), the Supreme Court ruled that the equal protection interests of women outweighed private clubs' association rights and required that they admit women. Because the issue of discrimination versus the right of expressive association in Boy Scouts was specifically about homosexuality, the case must be seen in the context of the gay civil rights movement. The rights of homosexuals to engage in consensual sex in the privacy of their homes was interpreted as constitutional in Lawrence v. Texas (2003), but the conflict between association and the right of homosexual people to be treated equally without discrimination in public remains unsettled. Some legal scholars and social historians contend that the issue involving gay rights differs from those involving women, blacks, and ethnic minorities in that the former reflects the general public's hostility toward homosexuals in general. They also note that this is a uniquely American hostility, offering as evidence the fact that the Boy Scouts of England and Canada do not bar homosexuals from membership. And the fact that the Girl Scouts of America have no similar ban suggests that the hostility towards gay men may be greater among the general public than its hostility towards gay women. Impact/Consequences: The test for when association rights end and discrimination begins remains unresolved and will continue to be refined by the Supreme Court. Just as the Court has labored to chart the constitutional course between free exercise and religious establishment, it is now charting the course between individuals' fundamental liberty rights to equal opportunity and personal expression and groups' rights to associate and express themselves through peaceful assembly. Quotes: "All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons."
"...members do not come together in Scouting around a shared 'moral code' or viewpoint regarding gay people, heterosexuality, homosexuality, or sexuality."
"Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating *any* views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views in respect of homosexuality."
"In light of the roles of uniformed adult leaders and their symbolic position in Scouting, to force Scouting to appoint persons who intend to be "open" and "honest" about their homosexuality would violate the organization's right to control its own message and to avoid association with a message with which it does not agree."
"...the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term 'place' to a physical location. As the definition of 'public accommodation' has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.... We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. 'While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'"
"The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality. BSA's mission statement and federal charter say nothing on the matter; its official membership policy is silent; its Scout Oath and Law--and accompanying definitions--are devoid of any view on the topic; its guidance for Scouts and Scoutmasters on sexuality declare that such matters are 'not construed to be Scouting's proper area,' but are the province of a Scout's parents and pastor; and BSA's posture respecting religion tolerates a wide variety of views on the issue of homosexuality. Moreover, there is simply no evidence that BSA otherwise teaches anything in this area, or that it instructs Scouts on matters involving homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In short, Boy Scouts of America is simply silent on homosexuality. There is no shared goal or collective effort to foster a belief about homosexuality at all--let alone one that is significantly burdened by admitting homosexuals."
Questions to Ponder:
Selected Bibliography: Abernathy, M. Glenn. The Right of Assembly and Association, 2nd ed. (Columbia, SC: University of South Carolina Press, 1981.) Kurland, Philip B., ed. Free Speech and Association: The Supreme Court and the First Amendment. (Chicago: University of Chicago Press, 1975). Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) McWhirter, Darien A. Exploring the Constitution Series: Freedom of Speech, Press, and Assembly. (Phoenix, AZ: The Oryx Press, 1994.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| Everson v. Ewing Township Board of Education
(1847)
Decided by a vote of 5 to 4 Basic Rights Conflict: In 1941, the state of New Jersey authorized local school districts to reimburse parents for the cost of transportation to private, not-for-profit schools. Ewing Township covered these transportation expenses to three public schools and four Catholic schools. The annual reimbursement amounted to approximately $80 per child. A taxpayer, Arch Everson, challenged the disbursement of public money in support of religious education and claimed the subsidy violated the Religious Establishment Clause of the First Amendment. Opinion: In a 5 to 4 ruling, a majority in the Supreme Court concluded that the reimbursement supported a legitimate, neutral, secular state interest in providing children with a safe means of travel between school and home. The reimbursement did not violate, in the Court's opinion, the Religious Establishment Clause of the First Amendment because money was paid to the parents rather than directly to parochial schools. In writing for the majority, Justice Hugo Black claimed that to overturn the law would handicap the free exercise of religion. He stated that the First Amendment requires the state to be neutral regarding religion and not its adversary. Dissents written by Justice Robert H. Jackson and Justice Wiley B. Rutledge argued that the subsidy did not improve the safety or expediency of the children's transportation. Rather, in their opinion, public funds were being used to sustain and support religious purposes in violation of the Establishment Clause. Context: The First Amendment states: "Congress shall make no law respecting an establishment of religion." This basic principle stemmed from the strong convictions of many Americans during the American Revolution that government and religion should be strictly separate. It was an especially important issue in Virginia, which in 1624 had required white citizens to attend and support the Church of England with their taxes; all non-members were barred, further more, from holding civil office. By the time of the Revolutionary War, other Protestants groups including Baptists, Methodists, and Presbyterians hoped to disestablish the Anglican Church. James Madison and Thomas Jefferson led the fight. The Virginia Act for Establishing Religious Freedom, written by Thomas Jefferson in 1786, became the basis for Establishment Clause of the First Amendment: "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities." Impact/Consequences: Everson was the first religious establishment case argued before the Supreme Court. It is a landmark case because the Court declared that the Establishment Clause of the First Amendment applies to actions of state as well as federal government. Equally important, the Court ruled that the Establishment Clause did more than prohibit a state religion. It required government to adopt a "principle of neutrality" toward religion. The following year the Court determined that the use of tax-supported property for classes coordinated with a religious council constituted a clear violation of the First Amendment (in McCollum v. Board of Education, 1948). In 1952, the Supreme Court ruled 6 to 3 in Zorach v. Clauson (1952) that students could be released from school for religious instruction off school grounds without violating the Religious Establishment Clause. Because both Rhode Island and Pennsylvania offered some forms of financial support to non-public schools, the Supreme Court heard their combined cases in Lemon v. Kurtzman (1971). Chief Justice Warren Burger, writing for the majority, concluded that the states had violated the First Amendment Religious Establishment Clause. He formulated in his opinion a three-prong test for church-state entanglement in decisions about state or federal law: (a) it must have a secular legislative purpose; (b) its primary effect must be one that neither advances nor inhibits religion; and (c) it must not promote an excessive entanglement with religion. The Rehnquist Court was not entirely comfortable with the "Lemon test." Justice Sandra Day O'Connor, for example, modified the test, emphasizing the issue of government endorsement of religion in her Lynch v. Donnelly (1984) opinion. Justice Anthony Kennedy proposed a "coercion test" in his County of Allegheny v. ACLU (1989) dissent--meaning that government cannot coerce individuals in their free exercise of religion. Despite less than total agreement about the Lemon Test, it remains the essential point of discussion on Establishment Clause rulings by the Court. Quotes: "When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part."
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" Justice Hugo Black, 1947 Everson v. Board of Education opinion "It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church and it can no more tax its citizens to furnish free carriage to those who attend a Church. The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or reimbursement of expense to individuals for receiving religious instruction and indoctrination."
"Does New Jersey's action furnish support for religion by use of the taxing power? Certainly it does, if the test remains undiluted as Jefferson and Madison made it, that money taken by taxation from one is not to be used or given to support another's religious training or belief, or indeed one's own. Today as then the furnishing of 'contributions of money for the propagation of opinions which he disbelieves' is the forbidden exaction; and the prohibition is absolute for whatever measure brings that consequence and whatever mount may be sought or given to that end."
Questions to Ponder:
Selected Bibliography: Alley, Robert S., ed. The Constitution & Religion: Leading Supreme Court Cases on Church and State. (Amherst, NY: Prometheus Books, 1999.) Haynes, Charles C. and Oliver Thomas, eds. Finding Common Ground: A Guide to Religious Liberty in Public Schools. (Nashville, TN: First Amendment Center, 2002.) Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. (Chapel Hill, NC: University of North Carolina Press 1994.) Miller, Robert T. and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. Fifth ed. (Waco, TX: Baylor University Press, 1996.) Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg, MD: Aspen Law & Business, 2000.) van Geel, Tyll. The Courts and American Education Law. (Buffalo, NY: Prometheus Books, 1987.) Gateway Links: |
| Reynolds v. U. S.
(1878)
Decided by a vote of 9 to 0 Conflict: George Reynolds, a high Mormon official, secretary to Brigham Young, was charged with marrying his second wife while he was still married to his first wife. Bigamy was an encouraged practice among some churches of the Mormon faith of the Church of Latter Day Saints.. Polygamy--having more than one spouse at the same time--was illegal pursuant to the federal law as it applied to the Territory of Utah under the Morill Act of 1864. Thus, bigamy--having more than one wife at the same time--was illegal. The Mormons appealed Reynolds conviction in the territorial Supreme Court. Although there were several technical irregularities in the trial court proceedings, the main issue for the Court dealt with a statute that made bigamy illegal. The First Amendment to the U.S. Constitution guaranteed the right to the "free exercise" of religion. But the question before the Court was one of not only faith or beliefs but of actions based upon those beliefs. Was George Reynolds guilty of breaking the law even if his religious beliefs condoned his actions? Opinion: Chief Justice Morrison R. Waite wrote the opinion for the unanimous Court. The Court acknowledged that that in the debate and adoption of the First Amendment it was noted that Congress could not legislate in regard to what a person thought or believed. Congress could not tell people what to believe or not to believe. It also could not tax citizens in support of religion or churches, or set-up a government-sponsored religion. The government could intervene, however, when one's actions interfered with establishing and keeping the public order. In the laws of England (from which our legal system is based), and in the U.S. from colonial times, bigamy was not legal. The government had the right to regulate marriages. From the earliest times laws restricted the rights of marriage to one spouse at a time. The Court used the analogy of human sacrifices to make its point regarding the right of the government to make laws that impacted on behavior, religiously motivated or not. It noted that it would be criminal to make human sacrifices even if one did so as part of a religious ceremony. If Reynolds knew at the time of his second marriage that he was still married to his first wife this knowledge was enough to show his intent to break the law. It was found by the trial court that he was aware of the law against bigamy when he married his second wife. He was not excused from the requirements of the law just because he believed his actions to be sanctified by his church. Nor was he excused from the effects of the law just because he thought it was a bad law. The law was to be applied to all people regardless of their religious beliefs. Context: Reynolds was the first case to go to the Supreme Court to test the extent of the right to the "free exercise" of religion, or the Free Exercise Clause. The case was a "test case," which means it was chosen to set-up the debate at issue: freedom of religion as it related to civil laws. It grew out of the efforts of President U. S. Grant to stamp out Mormon polygamy, rounding up and arresting hundreds of Mormons under a federal antibigamy law. Up to that point, Mormons, who controlled the legislative and executive branches of government in Utah, largely ignored the law against polygamy. Plural marriage had been a central part of Mormon religion and society since Joseph Smith, the founder of the Church of Latter Day Saints, held it to be based on biblical practice and divine revelation. For Mormons, polygamy was a religious duty essential to the well being of family and society. In hope of showing that polygamy did not demean women, the Utah territorial legislature granted women the right to vote, but not to hold public office. Congress responded by passing a statute in 1882 forbidding a male "polygamist" and any woman "cohabitating with any polygamist. . . ," from voting or holding office in federal territories. The fact that Mormon women had voted to support polygamy did not affect the firmness of the Court's position (Maynard v. Hill, 1888 and Murphy v. Ramsey, 1885). In 1890, the Supreme Court reaffirmed that polygamy destroyed "the purity of the marriage relation" even as it "debase[d]" men as well as women. (Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1990; and Davis v. Benson, 1890). These decisions by the Court in 1890 ended for all practical purposes any questions about the legality of polygamy. The Mormon Church officially ended polygamy that same year. As a result, Utah became a state in 1896, granting suffrage to women in its state constitution. Impact/Consequences: The Court has made some exceptions in regard to the First Amendment for organized religions, e.g., allowing members of the Amish faith to remove their children from public schooling in the eighth grade (Wisconsin v. Yoder, 1972). The Court has held, however, that some who sought exemptions from the law were not entitled to them. A member of the Air Force could not wear his yarmulke when the uniform policy disallowed it (Goldman v. Weinberger, 1986). Also, the law requires a Native American parent to apply for a social security number for his daughter when requesting government benefits (Bowen v. Roy, 1986). Usually with rights related to marriage, states have the authority to determine what the law is. The Court has determined, however, that states may not refuse to marry interracial couples (Loving v. Virginia, 1967). Currently, the debate centers around the concept of same-sex marriages and how the society does or does not benefit from such unions, and how individual rights are being affected. Some states have, in response to the organized efforts to make same-sex unions legal in all states, passed laws that define marriage as a union between one man and one woman. As the current Supreme Court is "under construction" while with the appointment of two new justices, it is not at all clear how the laws regarding marriage will develop. Speaking constitutionally, the Court's opinion in Reynolds looked beyond the language of the First Amendment to the "original intent" to find that religious practices that go against the public interest cannot be protected. Quotes: "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African People."
"Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstance."
Questions to Ponder: 1, Should the Supreme Court have the power to limit one's religious actions? How far should that authority extend? 2. Why is it significant that this case developed in Utah? 3. Should the federal government be able to dictate what people in Utah do? 4. Should the legislative bodies of government have any say in religious activities? In what ways should the government limit acts based upon religious beliefs? 5. Who should determine who can get married? Federal government? State government? Churches? 6. Should there be any limitations on who can get married? Should it be limited by age, citizenship, who a person is related to, race, or gender? Selected Bibliography: Coontz, Stephanie. The Social Origins of Private Life: A History of American Families, 1600-1900. London: Verso, 1988. Cresswell, Stephen. Mormons, Cowboys, Moonshiners, and Klansmen: Federal Law Enforcement in the South and West, 1870-1893. 1991. Gordon, Sarah Barringer. The Mormon Church: Polygamy and Constitutional Conflict in the Nineteenth Century America. Chapel Hill: University of North Carolina Press, 2002. Weisbrod, Carol and Pamela Sheingorn, "Reynolds v. United States: Nineteenth-Century Forms of marriage and the Status of Women," Connecticut Law Review 10 (Summer 1978): 828-858. Beecher, Maureen Ursenbach et al. eds., Sisters in Spirit: Mormon Women in Historical and Cultural Perspective. Urbana: University of Illinois Press, 1987. Gateway Links: |
| Lemon v. Kurtzman
(1971)
Decided by a vote of 8 to 0 Conflict: As a young man growing up in Atlanta, Alton T. Lemon attended Morehouse College, a historic black college, along with Martin Luther King, Jr. After a tour of duty in the U.S. Army, Lemon moved to Philadelphia. He became an "ethical humanist" and attended meetings of the Philadelphia Chapter of the ACLU. In 1968, Pennsylvania's Catholic schools were facing a financial crisis, so the state legislature passed Act 109, which reimbursed private schools for the salaries of teachers who provided instruction in four secular subjects: mathematics, modern foreign languages, elementary science, and physical education. Beginning in September 1969, and each year after, Pennsylvania annually paid more than $5 million to over 1,100 non-public elementary and secondary schools, 96 percent of which were religious institutions; the majority of these schools were Roman Catholic parochial schools. At a monthly Philadelphia ACLU meeting, the executive director suggested suing the state over Act 109; Alton Lemon (whose 12-year-old son attended public school) agreed to challenge the law. A special three-judge federal panel heard the case; it ruled 2-1 against Lemon, and the case immediately went to the Supreme Court for review. A similar case from Rhode Island was combined with the Pennsylvania case and argued before the Supreme Court as Lemon v. Kurtzman. Opinion: In an 8 to 0 ruling (Justice Thurgood Marshall did not participate), the Supreme Court concluded that both Pennsylvania and Rhode Island had violated the First Amendment Religious Establishment Clause. Writing the majority opinion, Chief Justice Warren Burger went further by formulating the three-part "Lemon test" for laws involving religious establishment: 1) a statute must have secular legislative purpose, 2) it may neither advance nor inhibit religion, and 3) it may not entangle government and religion excessively. Context: Following Everson v. Board of Education (1947), a flurry of school cases came to the Supreme Court. In McCollum v. Board of Education (1948), the Court determined holding classes coordinated with a religious council on tax-supported school grounds constituted a clear violation of the First Amendment. In 1952, the Supreme Court considered whether releasing students from classes so they might participate in religious instruction elsewhere was constitutional. The justices ruled 6 to 3 in Zorach v. Clauson (1952) that allowing students released time for religious instruction off school grounds did not violate the Religious Establishment Clause. Over the years the Court quite consistently struck down state aid to denominational schools and religion in public schools. Recognizing the need to articulate a standard that government entities could use to draft constitutionally valid laws, along with a reliable measure the Court could apply to contested laws, the Supreme Court combined the cases from Rhode Island and Pennsylvania over financial support to non-public schools into Lemon v. Kurtzman. Impact/Consequences: Alton Lemon and his family (including his wife who was a school nurse at both public and parochial schools) were untouched by the case. A federal administrator, he retired to Mount Airy, Pennsylvania but remained interested in the issue of church-state separation. The current Court is not entirely comfortable with the "Lemon test," and while the majority no longer supports it, they have not abandoned it or formerly overturned it. Justice Sandra Day O'Connor modified the test, emphasizing the idea that government should not endorse religion in her Lynch v. Donnelly (1984) opinion, and subsequently used the "endorsement test." Justice Anthony Kennedy proposed a "coercion test" in his County of Allegheny v. ACLU (1989) dissent, meaning that the government could not coerce religious beliefs. Although the Establishment Clause law is in flux at the present, the Lemon Test remains the central point of discussion in the Court's interpretation of those cases involving the government and religion. Quotes: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts... Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.... In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority."
"Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster 'an excessive government entanglement with religion.'"
"Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process. To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief."
"Lemon involves a state statute that prescribes that courses in mathematics, modern foreign languages, physical science, and physical education 'shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' The subtleties involved in applying this standard are obvious. It places the State astride a sectarian school and gives it power to dictate what is or is not secular, what is or is not religious. I can think of no more disrupting influence apt to promote rancor and ill-will between church and state than this kind of surveillance and control. They are the very opposite of the 'moderation and harmony' between church and state which Madison thought was the aim and purpose of the Establishment Clause."
"As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed 'test' but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."
"I was surprised that my name was at the top of the docket... I am proud of it, but this has to be a continuing fight. This is an area in which we need people to pay careful attention because the fight is not over and it will probably never be over."
Questions to Ponder:
Selected Bibliography: Alley, Robert S., ed. The Constitution & Religion: Leading Supreme Court Cases on Church and State. (Amherst, NY: Prometheus Books, 1999.) Finkelman, Paul. Religion and American Law: An Encyclopedia. (New York: Garland Square Publishing, 2002.) Haynes, Charles C. and Oliver Thomas, eds. Finding Common Ground: A Guide to Religious Liberty in Public Schools. (Nashville, TN: First Amendment Center, 2002.) Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. (Chapel Hill, NC: University of North Carolina Press 1994.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Miller, Robert T. and Ronald B. Flowers. Toward Benevolent Neutrality: Church, State, and the Supreme Court. Fifth ed. (Waco, TX: Baylor University Press, 1996.) van Geel, Tyll. The Courts and American Education Law. (Buffalo, NY: Prometheus Books, 1987.) Gateway Links: |
| Oregon Dept. Human Resources v. Smith
(1990)
Decided by a vote of 6 to 4 Conflict: Alfred Smith, who had overcome alcoholism in 1957 through Alcoholics Anonymous, and a member of the Klamath Tribe in Oregon, worked for the Douglas County Alcohol and Drug Abuse Treatment and Prevention center, a private group in Oregon. One of his co-workers was fellow counselor and recovering alcoholic Galen Black. As condition of their employment, both men had signed a policy saying that they would remain alcohol and drug free. Although not a Native American, Black consumed a small amount of peyote in a sacramental ceremony of the Native American Church., which he was planning to join. Smith, a man in his sixties and member of the Native American Church, knew his employer forbade peyote use but he decided to defy the policy because of his religious convictions. Both men were fired from their jobs. Oregon law prohibited the possession of a "controlled substance," and the drug peyote, a hallucinogen derived from the plant lophonpho-rawilliamsii lemaire, was among those outlawed by the state. The Employment Division of the Oregon Department of Human Resources denied employment benefits to Smith and Black because they had been fired for "misconduct," specifically for using a small amount of peyote in conjunction with ceremonies of the Native American Church. Smith and Black challenged the ruling. Both the Oregon Court of Appeals and the Oregon Supreme Court ruled that the men's First Amendment free exercise rights had been unduly burdened by the loss of the benefits and restored them. Oregon appealed to the Supreme Court, but in 1988 the Supreme Court remanded the case to the Oregon Supreme Court to determine whether the use of illegal drugs in a religious ceremony was illegal under the state's drug laws. The Oregon Supreme Court concluded that the drug laws of the state violated the Free Exercise Clause of the First Amendment, so the state appealed to the Supreme Court again. Opinion: The Supreme Court ruled 6 to 3 to overturn the lower court rulings; the interest of the state in preventing drug abuse was more compelling than the asserted right to ingest peyote by a religious minority. Justice Antonin Scalia wrote the opinion for the majority saying that Smith and Black "urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon's drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls." He went on to explain that civil law would be undermined if in every religious exercise case, for every one of the many religions in the United States, exceptions had to be made. Furthermore, the Court rejected applying the "strict scrutiny" test (used since Sherbert v. Verner, 1963) to cases where individuals claimed exemption from laws on the basis of religious belief. The decision in Smith represented a major shift by the Supreme Court. Justice Harry Blackmun wrote a vigorous dissent, joined by Justices William J. Brennan, Jr. and Thurgood Marshall, arguing against the abandonment of the "strict scrutiny" test. Context: During the years of the Warren and Burger Courts, laws that burdened religious exercise were subjected to "strict scrutiny" tests to see if there was a compelling state interest that outweighed the right to sincerely motivated religious practices. The Court upheld the free exercise rights of a wide range of religious minorities in Sherbert v. Verner (Seventh Day Adventist, 1963), Yoder v. Wisconsin (Amish, 1972), and Frank v. Alaska (Athabascan Tribe, 1979). In the 1980s, the Supreme Court began to narrow what constituted a "significant burden" while it expanded what constituted "compelling state interest." It upheld government interests against free exercise in Goldman v. Weinberger (1986) and Lyng v. Northwest Indian Cemetery Protection Association (1988). Impact/Consequences: Congress reacted to the decision in Smith by passing the Religious Freedom Restoration Act of 1993 (RFRA), which required local, state, and federal laws that interfered with religious exercise to meet the pre-Smith standard of support by a "compelling state interest." In City of Boerne v. Flores (1997) the Supreme Court struck down, however, the RFRA, saying that Congress was attempting to interpret law, which is the prerogative of the judicial branch and not the legislative branch. Justice Anthony Kennedy warned, "If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.' It would be 'on a level with ordinary legislative acts, and, like other acts,...alterable when the legislature shall please to alter it.' Under this approach, it is difficult to conceive of a principle that would limit congressional power." At the present, there is no reason to believe that all the issues regarding free exercise are "settled law." Quotes: "Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind--ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this."
"This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a "constitutional anomaly."... In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated."
"The United States is saying the original people of this land can't worship. We were worshipping a long time before the white man ever set foot on this turtle island. The issue is not dead, by no means. I'm not giving up; I have committed no crime. It's not a crime to pray in the old way."
Questions to Ponder:
Selected Bibliography: Epps, Garrett. To an Unknown God: Religious Freedom on Trial. (New York: St. Martin's Press, 2001.) Long, Carolyn. Religious Freedom and Indian Rights: The Case of Oregon v. Smith. (Lawrence, KS: The University of Kansas Press, 2000.) Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg, MD: Aspen Law & Business, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Wilkins, David E. and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. (Norman, OK: University of Oklahoma Press, 2001.) Gateway Links: |
| New York Times v. Sullivan
(1964)
Decided by a vote of 9 to 0 Conflict: On Tuesday, March 29, 1960, the New York Times published a full-page editorial advertisement by the Committee to Defend Martin Luther King entitled "Heed Their Rising Voices." The ad was intended to raise money for the defense of the Rev. Dr. Martin Luther King, Jr. (who had been jailed for allegedly filing false state income-tax returns in Alabama and was facing up to ten years in prison if convicted.) Descriptions of the civil rights protests in the ad included inaccurate statements about the civil rights situation in Montgomery, Alabama. On the day the advertisement was published, only 394 people living in Alabama received the New York Times; of that number, only 35 lived in Montgomery. Although not specifically named in the ad, L. B. Sullivan, the city commissioner of police for Montgomery, wrote a letter on April 8 asking the Times to retract the ad based on what he considered false statements of fact that libeled him. He objected to the statements that "truckloads of police armed with shotguns and tear gas ringed the Alabama State College Campus;" that Martin Luther King, Jr., had been assaulted in "unprecedented wave of terror" against blacks in Montgomery; and that students were expelled from Alabama State College for demonstrating at the lunch counter of the Montgomery County Courthouse (rather than at the State Capitol). When the newspaper declined to retract the ad, as it pertained to Sullivan, he sued the New York Times for libel. The case was heard in the Circuit Court of Montgomery, Alabama. The all-white Alabama jury out over a courtroom where observers were seated in segregated sections. They were presided over by a judge who praised "white man's justice" from the bench. Under Alabama law, Sullivan only had to convince the jury that he had suffered injury to his reputation by false statements of facts. Not surprisingly, they found the ad libelous and awarded Sullivan a $500,000 libel judgment per defendant. (Sullivan immediately began collecting the judgment from a Times co-defendant, Rev. Ralph Abernathy, co-leader with King of the Civil Rights Movement in Alabama, seizing his old Buick and land and auctioning them off.) When the Supreme Court of Alabama upheld the judgment on August 30, 1962, the newspaper appealed to the Supreme Court in New York Times v. Sullivan (1964). Opinion: In a unanimous decision, the Supreme Court overturned the libel judgment. The Court declared that public officials were not protected from defamatory remarks unless it could be proved that they were made with "actual malice"--knowing that the remarks were false and publishing them with "reckless disregard" of their falsity. The justices determined that First Amendment protections of free speech and press limited "a state's power to award damages in a libel action brought by a public official against critics of his official conduct." Sullivan overturned the precedent of Chaplinsky v. New Hampshire (1942), a decision in which the Court had held that libel fell outside constitutionally protected free speech. This ruling distinguished between public figures and private individuals, saying that the former are fair game to vigorous and robust criticism in the interests of democracy and a free and open society. It also required that the intention of malice be demonstrated before damages could be awarded in libel suits filed by public officials. Proving simple falsehood or negligence in reporting alleged facts is not enough to prove libel in the case of public officials. Context: The advertisement cost $4,800 to place in the New York Times and originated with long-time labor and civil rights advocate, A. Philip Randolph, the fighting founder of the Brotherhood of Sleeping Car Porters. The libel suit against New York Times was not an isolated event. It occurred at the height of the civil rights movement in the nation, and it was a coordinated effort to slow its progress. Segregationists had correctly anticipated that when Americans read about the use of water hoses and tear gas, lockouts and fire-bombings, and other physical attacks by white racists on civil rights demonstrators, public opinion would swing against them, forcing Congress to enact civil rights legislation. To block such negative publicity, they orchestrated a systematic libel campaign to win huge damage awards from sympathetic southern juries and judges, hoping thereby to bankrupt or financially damage those newspapers and other media running pro-civil rights stories and news. Prior to Sullivan, there were $300 million in outstanding libel suits against the Times and its co-defendants related to the "Heed Their Rising Voices" advertisement alone. Justice Hugo Black noted in his opinion that, "briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000." Impact/Consequences: The New York Times v. Sullivan is a landmark case because it clearly states that public officials are not protected from critical speech or press about them under the guise of libel, even if the defamatory information proved to be false. The Court's opinion held that because erroneous statements are inevitable in public debate, any laws or court actions that stifled such debate violated the principles protected by the First Amendment. Any rule that would force a speaker or publisher to absolutely verify the facts of everything said would have a "chilling effect" on public discourse. This ruling revolutionized the law of libel as it applied to public officials. A few years later, in Curtis Publishing Company v. Butts (1967), and The Associated Press v. Walker (1967), the Court extended the protection to speech and publications that defamed public figures, like movie stars, athletes, and well-know industrialists. The key issue here is the public character of the person criticized or discussed in speech or the press. The Supreme Court drew the line, however, on defamatory speech directed at private individuals in Gertz v. Welch (1974). The sharply divided opinion of the Court was more protective of private persons on the grounds that they are less able to rebut false statements and are thus more easily damaged. Damages can be awarded to private individuals when publishers act negligently by not checking the facts. Unlike with public figures and officials, the burden of malice need not be proven. The Supreme Court's unanimous opinion made it clear that libel could not be used as a political weapon against freedom of speech and the press. The immediate impact would be the continued coverage by newspapers, radio, and television of the civil rights movement, and the continued exposure of brutal retaliation by segregationists against non-violent African-American protesters. (Even before Sullivan, on May 28, 1960 an all-white jury acquitted Dr. King of tax evasion, thanks to a top-notch defense team paid for, in part, by those who saw the ad in the New York Times.) Because the media could report and Americans could see events unfolding, public opinion changed and political leaders were able to begin dismantling Jim Crow segregation laws and practices by extending the vote and other civil rights to African Americans. Sullivan's impact on the free exchange of information and ideas was not confined to the civil rights movement but dispersed into American culture as citizens transformed their access to information and a broadened public debate into empowerment to think, speak, and act more vigorously. Quotes: "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."
"This lawsuit arose because of a willful, deliberate and reckless attempt to portray in a full-page newspaper advertisement, for which the Times charged and was paid almost $5,000, rampant, vicious, terroristic, and criminal police action in Montgomery, Alabama, to a nationwide public of 650,000. The goal was money-raising. Truth, accuracy, and long-accepted standards of journalism were not criteria for the writing or publication of this advertisement."
"The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent... The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
"The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials... Moreover, this technique for harassing and punishing a free press--now that it has been shown to be possible--is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers. In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction--by granting the press an absolute immunity for criticism of the way public officials do their public duty... An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction."
"This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society ... I strongly believe that the Constitution accords citizens and press an unconditional freedom to criticize official conduct. It necessarily follows that in a case such as this, where all agree that the allegedly defamatory statements related to official conduct, the judgments for libel cannot constitutionally be sustained."
Questions to Ponder:
Selected Bibliography: Hentoff, Nat. Living the Bill of Rights: How to Be an Authentic American. (Berkeley, CA: University of California Press, 1998.) Hall, Kermit. "Cultural History & the First Amendment: New York Times v. Sullivan & Its Times." In Constitutionalism & American Culture: Writing the New Constitutional History, eds. Sandra F. Vanburkleo, et al. (Lawrence, KS: University Press of Kansas, 2002.) Hopkins, W. Wat. Actual Malice: Twenty-five Years After Times v. Sullivan. (Westport, CT: Greenwood Publishing Group, 1989.) Lewis, Anthony. Make No Law: The Sullivan Case & the First Amendment (New York: Random House, 1991.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Parker, Richard A., ed. Free Speech on Trial: Communications Perspectives on Landmark Supreme Court Decisions. (Tuscaloosa, AL: University of Alabama Press, 2003.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Gateway Links: |
| New York Times v. U. S.
(1971)
Decided by a vote of 6 to 3 Conflict: During the administration of President Lyndon B. Johnson, Secretary of Defense Robert McNamara ordered Defense Department analysts to examine the history and conduct of the war in Vietnam. The result was a 7,000-page report, "The History of U.S. Decision-Making on Viet Nam Policy." Because material in the report included confidential discussions involving foreign nations, a host of secret and deceptive dealings, and revealed that the CIA had bugged Soviet Premier Leonid Brezhnev's automobile, the report was classified top-secret. Much of the report detailed events as far back as 1945 and contained, in the minds of many, little if any sensitive information. Critically, the report revealed that the government suspected it would not win the war and would sustain far higher military casualties than it had admitted to the public. Disturbed by the report's contents, Defense Department analyst Daniel Ellsberg leaked copies of the document to The New York Times. The newspaper reviewed the stolen information for three months before deciding to publish extracts from the report. The first installment was published on Sunday, June 13, 1971 under a front-page New York Times headline, "Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement." Attorney General John Mitchell called the Times the following day requesting that it desist from publication; when the Times refused, Mitchell obtained a court injunction against publication, the first time the federal government had successfully restrained a newspaper from publication. Ellsberg then released the Pentagon Papers (the classified report) to the Washington Post; if the government wished to suppress the information it would have to get injunctions against every newspaper in the country. Joined by the Post, the Times went to court to have the injunction lifted. The case was argued on the same day, June 22, 1971, in both the Court of Appeals for the District of Columbia and the Second Circuit. Decisions for both courts were announced the following afternoon, on June 23, the Court of Appeals supporting publication, the Second Circuit opposing publication. Three days later the United States Supreme Court heard New York Times v. United States (commonly referred to as the Pentagon Papers case). Opinion: Four days after hearing arguments in the case, a majority on the Supreme Court ruled that the administration had failed to meet the heavy burden necessary for "prior restraint" of publication and allowed the newspapers to publish the Pentagon Papers. Justices Hugo Black, William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron White and Thurgood Marshall wrote concurring opinions.. Three justices dissented: Chief Justice Warren Burger, and Justices Harry Blackmun and John Harlan all wrote dissenting opinions. The issue of "prior restraint" was central to the decision. It means the presumption that any attempt by the government to prevent speech or publication of ideas in advance of their expression is fundamentally unconstitutional. The idea of "prior restraint" is akin to censorship. The Court established this precedent in Near v. Minnesota (1931), which struck down a "public nuisance statute" aimed at preventing the publication of a hard-hitting weekly newspaper critical of corruption and racketeering in Minneapolis. Context: When Richard Nixon was elected president for the first time, in 1968, he promised "peace with honor," a gradual withdrawal from Vietnam during which American troops would be replaced by Vietnamese troops. North Vietnamese build-up in the adjacent neutral nations of Cambodia and Laos prompted Nixon, however, in early 1969 to authorize secret bombing missions over Cambodia. Nixon concealed this from Congress through falsified bombing reports. Finally, on the evening of April 30, 1969, President Nixon made a television address to the nation announcing the U.S. invasion of eastern Cambodia. He justified the invasion by the president's power as commander-in-chief, rather than by a Congressional declaration of war. This new expansion of the war triggered massive demonstrations by anti-war activists and a million and a half college students on campuses everywhere in the United States. On May 4, 1970 National Guardsmen killed four students at Kent State University in Ohio. Congress, already uneasy about the erosion of the war powers of the legislative branch, voted on June 24, 1970 to repeal the Gulf of Tonkin Resolution (which had given the presidents a carte blanche for conduct of the war in Southeast Asia), and members of Congress began debating proposals to cut funding for the war. Television news had turned Vietnam into a "living-room war." Photographs of the massacre of Vietnamese civilians at My Lai broadcast during the trial of Lt. William F. Calley, Jr. made many Americans question the morality of the war. Those who supported the war were, nonetheless, troubled by the nightly images of wounded and dead American soldiers. Public confidence in government was eroding; presidential aide H.R. Haldeman correctly anticipated the impact of publication of the Pentagon Papers. He advised Nixon to take action to stop their publication: "...out of the gobbledygook, comes a very clear thing: ...you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the--the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong." In asking the Court for an injunction to stop publication of the report, the Nixon Administration argued that its publication would endanger the lives of American combat troops, hurt the release of prisoners of war, and seriously undermine the peace process. This contention was challenged by legal scholars and by foreign policy experts even within the Nixon Administration. The Administration's Solicitor General, for example, expressed doubt about the basis for the injunction request. Impact/Consequences: The New York Times v. United States decision ended the 15-day moratorium on publication of the Pentagon Papers and maintained the high burden-of-proof standard for "prior restraint." The case is counted as a significant victory in the history of freedom of the press. Yet, the justices wrote nine opinions in this case, often with substantive differences on major issues. Because no five justices could agree on the reasoning behind the majority opinion, the decision was issued per curiam, or "by the Court" rather than by a lead justice. On June 28, Daniel Ellsberg surrendered to authorities in Boston, Massachusetts and was placed on trial for theft, conspiracy, and espionage. The Nixon administration was determined to discredit Ellsberg thoroughly before the trial; operatives G. Gordon Liddy and E. Howard Hunt broke into Ellsberg's psychiatrist's office in September 1971 hoping to find damning information on him. And in May 1972 an attempt to drug Ellsberg at a public-speaking engagement was contemplated. Because of the revelation of this abuse of power, the judge ruled a mistrial and dropped the case against Daniel Ellsberg. The break-in at Ellsberg's psychiatrist's office would become part of the Watergate scandal, which resulted in the House recommending articles of impeachment against President Richard Nixon forcing his resignation. Whether the First Amendment would trump national security claims in a declared war, or if there were a narrowly drawn congressional authorization, remains unclear. The only time a federal court has blocked publication on the grounds of a danger to national security occurred in United States v. Progressive, Inc. (1979). In that case, a U. S. District Judge allowed for the suppression of an article forthcoming in The Progressive entitled "The H-Bomb Secret: How We Got It, Why We're Telling It." The case did not get to the Supreme Court on appeal because the government pulled back when similar material was published. Quotes: "Hell, I wouldn't prosecute the Times. My view is to prosecute the Goddamn pricks that gave it to 'em."
"In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.... The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."
"The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health."
"The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result."
"But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court."
"But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged 'right to know' has somehow and suddenly become a right that must be vindicated instantly. Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach--one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press--the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary."
"The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions.... I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America....If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,' to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests."
Questions to Ponder:
Selected Bibliography: Abrams, Floyd. Speaking Freely: Trials of the First Amendment. (New York: Viking Books, 2005.) Bickel, Alexander. The Morality of Consent. (New Haven, CT: Yale University Press, 1976.) Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. (New York: Viking Books, 2002.) Liddy, G. Gordon. Will: The Autobiography of G. Gordon Liddy. (New York: St. Martin's Press, 1980.) Mauro, Tony. Illustrated Great Decisions of the Supreme Court. (Washington, DC: CQ Press, 2000.) Nowak, John, and Ronald D. Rotunda. Constitutional Law, 6th ed., Hornbook Series. (St. Paul, MN: West Group, 2000.) Powe, Jr., Lucas. The Fourth Estate and the Constitution: Freedom of the Press in America. (Berkeley, CA: University of California Press, 1991) Prados, John and Margaret Pratt Porter. Inside the Pentagon Papers. (Lawrence, KS: University of Kansas Press, 2004.) Rudenstine, Davis. The Day the Presses Stopped: A History of the Pentagon Papers Case. (Berkeley, CA: University of California Press, 1996.) Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism. (New York: W.W. Norton & Company, Inc., 2004.) Tribe, Laurence M. American Constitutional Law, 3rd ed., University Textbook Series. (St. Paul, MN: West Publishing Company, 1999.) Ungar, Sanford J. The Papers & the Papers; an Account of the Legal and Political Battle Over the Pentagon Papers. (New York: Dutton, 1972.) Gateway Links: |
| Reno v. ACLU
(1997)
Decided by a vote of 7 to 2 Conflict: In 1996, Congress passed the Communications Decency Act, which made it a crime to send an indecent message or image to a young person under the age of 18, or to display patently offensive images or communications "in a manner available" to minors. Immediately after President Bill Clinton signed the act into law on February 8, a coalition led by the American Civil Liberties Union (ACLU) filed suit in federal court against the act. Other members to the challenge included the American Library Association, Planned Parenthood, activists for AIDS awareness and gay rights, Microsoft Corporation, Apple Computer, and internet providers America Online and CompuServe. A three-judge federal panel convened on March 12, 1996 to hear arguments; the courtroom was wired to the internet, apparently a first in U.S. court history. On June 12, 1996 the panel struck down the Communications Decency Act as unconstitutional. Janet Reno, Attorney General of the United States, appealed the decision to the Supreme Court in Reno v. ACLU. Opinion: Seven justices (John Paul Stevens who wrote the majority opinion, joined by Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer) found the Communications Decency Act unconstitutional; Justice Sandra Day O'Connor filed an opinion concurring in part and dissenting in part, which was joined by Chief Justice William Rehnquist. The justices ruled that the internet functioned more like a library than a broadcast medium, and thus fell under the protection of the First Amendment. Although the justices conceded that constitutionally non-protected sexually explicit material was readily available online, it usually required intent to locate it. Furthermore, the act would silence legitimate speakers and create an "unnecessarily broad suppression of speech directed to adults." Thus, the Communication Decency Act's broad label of "indecency" created a content-based blanket restriction of free speech that was unconstitutional; while "obscenity" is not protected under the First Amendment, "indecency" may be. Context: In his opinion for the majority, Justice John Paul Stevens detailed the growth of computer and internet use in the United States, describing it as "a unique and wholly new medium of worldwide human communication." Thousands if not millions of American youth enjoyed access to the internet for education and personal entertainment. The United States government believed that the Supreme Court would treat as precedent several rulings that viewed obscene and indecent speech as non-protected, in particular when minors were involved. In Ginsberg v. New York (1968), the Supreme Court upheld a New York law barring the sale of obscene material to minors under the age of 17. The Court had also ruled in favor of the Federal Communications Commission in FCC v. Pacifica Foundation (1978), upholding administrative sanctions against a radio station that had broadcast George Carlin's "Filthy Words." Finally, in Renton v. Playtime Theaters (1986), the Supreme Court upheld a zoning ordinance, which banned adult movie theaters in residential areas. The government argued that obscenity on the internet fell outside the protection of the First Amendment, just as it had in broadcasting. Impact: The ACLU v. Reno was the first time an internet-related case was decided by the Supreme Court of the United States. The Court dismissed the government's analogy comparing the internet to a broadcast medium and instead endorsed the internet as analogous to a library, a "marketplace of ideas" worthy of First Amendment protection. Unlike the circumstances surrounding Congressional regulation of the broadcast spectrum, the internet, in the Court's opinion, was neither a scarce nor expensive "expressive commodity." Justice John Paul Stevens noted the richness of the internet in his opinion: "This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, 'the content on the Internet is as diverse as human thought.'" The Court correctly anticipated that the availability of obscene materials in cyberspace would not cause Americans to forgo using the internet, and that usership would continue to grow at a rapid pace. Quotes: "This Court should recognize that print media are the proper analogy for the Internet. Like print, the Internet is a means for the replication, storage and transmission of huge amounts of text of every description and on every topic. The Internet is like a giant library of all human knowledge, and imposing broadcast-style indecency regulations would have the same profoundly destructive effects as such standards would have if imposed upon the Library of Congress. Only by recognizing the analogy between the Internet and print media will this Court assure the appropriate protection of the medium likely to become the main conduit for personal, political and creative speech in the next century."
"Because there is no way for the vast majority of Internet speakers to distinguish between adults and minors in their audience, the CDA is the most restrictive censorship scheme imposed on any medium. For that reason, among many others, the government has yet to convince even a single federal judge that the statute, as written, can be sustained."
"...the Internet is not as 'invasive' as radio or television. The District Court specifically found that '[c]ommunications over the Internet do not invade an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.' It also found that '[a]lmost all sexually explicit images are preceded by warnings as to the content,' and cited testimony that 'odds are slim' that a user would come across a sexually explicit sight by accident.... It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not 'reduc[e] the adult population ... to ... only what is fit for children.'"
"Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an 'adult zone.' Thus, the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, 'reduce[s] the adult population [on the Internet] to reading only what is fit for children.' As a result, the 'display' provision cannot withstand scrutiny."
Questions to Ponder:
Selected Bibliography: Heins, Marjorie. Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth. (New York: Hill and Wang, 2001.) Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg: Aspen Law & Business, 2000.) Gateway Links: |