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 membershi |