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CHAPTER 15
Order and Civil Liberties
LEARNING OBJECTIVES
After reading this chapter, students should be able to do the following:
1.
Define the key terms at the end of the chapter
2.
Distinguish between civil liberties and civil rights
3.
Explain how the “establishment clause” of the First Amendment has been interpreted in cases
involving aid to church-related schools, prayer in public schools, religious displays on public
property, and the use of public school facilities by student religious groups
4.
Show how the “free exercise clause” of the First Amendment has been applied to the issues of
working on the Sabbath and the use of drugs as a sacrament
5.
Describe the two approaches developed by the Supreme Court to deal with cases involving the
free expression clause of the First Amendment
6.
Outline the evolution of the clear and present danger test
7.
List the major exceptions to the First Amendment’s protection of freedom of speech
8.
Discuss prior restraint, libel, and censorship as possible limitations on press freedom in America
9.
Explain the various challenges that the Internet poses to balancing freedom and order, both in the
United States and around the world
10. Explain how the Fourteenth Amendment has been used to extend the protections of the Bill of
Rights to citizens in cases involving the states, citing specific examples
11. Explain where the Supreme Court found the right to privacy in the Constitution and show how the
right has been applied in cases involving abortion, birth control, and homosexuality
CHAPTER SYNOPSIS
The Bill of Rights of the Constitution gives individuals a wide range of civil liberties designed to
protect them against the power of the state. The interpretation of how these civil liberties should be
protected has involved a clash between government-imposed order and freedom. The courts, especially
the Supreme Court, have the power to resolve societal controversies over values involving civil rights.
However, government at all levels can, and does, create rights through laws written by legislatures and
regulations issued by bureaucracies.
The First Amendment of the Constitution protects individuals from government laws that interfere with
the freedom of religion and freedom of expression. With respect to religion, government has set out to
establish a wall of separation between church and state. The Supreme Court has interpreted the
establishment clause in the First Amendment in such a way that government is prevented from giving
assistance to religious institutions. Over the years, however, indirect and incidental assistance of
parochial schools has been tolerated. Since the Supreme Court handed down its decision in Lemon v.
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Chapter 15: Order and Civil Liberties
171
Kurtzman (1971), state funding of religious programs must pass a stringent test of noninterference with
religion. The free exercise clause of the First Amendment protects religious beliefs, but not actions
based on those beliefs. Thus, government is allowed to regulate antisocial behavior that stems from a
constitutionally protected right.
Freedom of expression is one of the vital characteristics of a democratic system. The freedom of
expression clause of the First Amendment confers the right to unrestricted public discourse that does
not threaten public order. The Supreme Court has defined the kinds of behavior that constitute a threat
to public order through the clear and present danger test. Over the years, the Court has expanded the
latitude of political expression that does not present real danger to society. Symbolic expression, such
as wearing black armbands to protest the Vietnam War, has been protected by the Court. There are two
noted exceptions to freedom of speech. “Fighting words” are defined as utterances designed to “inflict
injury or [that] tend to incite an immediate breach of the peace” and are not subject to First Amendment
protection. Obscenity is also excluded from constitutional protection. The First Amendment also
guarantees that government will not interfere with the freedom of the press. There are limitations on
this freedom. Public officials or public figures can institute a lawsuit against the press for libel. The
Sullivan case, however, established that “actual malice” must be proved before libel can be upheld.
Prior restraint, or censorship, by the government is permissible under exceptional circumstances that
are not specified by the Court. Another limitation on freedom of the press exists in the conflict between
the needs of law enforcement and those of a free press.
Free speech issues have become increasingly complicatedand taken on a global dimensionwith the
growth of the Internet. The Court tends to view the Internet as having the same privileges that are given
to the press, but the transmission of hate speech and obscenity pose new questions, particularly because
of their availability to minors. Only with the passing of the Fourteenth Amendment did the Bill of
Rights become applicable to the states. The incorporation of the individual guarantees in the Bill of
Rights under the due process clause of the Fourteenth Amendment was a slow, painful process. The
landmark decision in Palko v. Connecticut (1937) interpreted the due process clause to include only
“fundamental” rights. In the thirty years after Palko, however, almost every aspect of the Bill of Rights
was accepted as a fundamental right.
The incorporation of constitutional procedural safeguards to be used by the states in criminal
prosecution has dramatically changed the U.S. criminal justice system in the last thirty years. In several
decisions, the Supreme Court required the states to provide trial by jury in criminal cases; a lawyer to
criminal defendants; protection against self-incrimination, through the Miranda warnings; and
freedom from unreasonable searches and seizures, through the exclusionary rule.
The Supreme Court has expanded the rights of individuals beyond those explicitly enumerated in the
Constitution. For instance, the Court has asserted people’s right to privacy in making choices about
contraception and reproduction. The protection of a woman’s decision to have an abortion during the
first three months of pregnancy, granted by the Supreme Court in Roe v. Wade (1973), was the most
controversial result of the extension of the right to privacy. Through Webster v. Reproductive Health
Services (1989) and other recent decisions, the Court has moved down the road toward greater
government control of abortion policy.
In Bowers v. Hardwick (1986) the Court restricted the right of privacy to only heterosexual choices,
thus placing homosexual choices outside constitutional protection. The Court reconsidered this decision
in Lawrence and Garner v. Texas (2003), acknowledging that “an emerging awareness … gives
substantial protection to adult persons in deciding how to conduct their private lives.” State-by-state
efforts to give homosexual commitments the same status as heterosexual marriage have occurred,
though current national legislation does not require states to honor non-heterosexual marriages.
Cases like Roe and Griswold are disturbing to democratic theory: they remove policymaking from the
legislative arena and place it in the hands of the courts, where the will of the people need not be taken
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Chapter 15: Order and Civil Liberties
into consideration. Under the current system, though, the judicial branch will continue to play a major
role in balancing freedom and order.
PARALLEL LECTURE 15.1
I.
II.
The Bill of Rights
A. The failure to include a bill of rights was the most important obstacle to the adoption of the
Constitution.
1. Imposed limits on the national government, but not on the state governments
2. Adoption of Fourteenth Amendment (1868) began process of extending restraints to
the states
B. The Constitution guarantees Americans numerous liberties and rights.
1. Civil liberties: freedoms guaranteed to the individual.
a) Declare what the government cannot do
b) “Negative rights”
2. Civil rights: powers and privileges guaranteed to the individual and protected against
arbitrary removal at the hands of government or individuals.
a) Examples: right to vote, right to a jury trial
b) “Positive rights”
3. “The rights and liberties of the Constitution”: the Bill of Rights and the first section of
the Fourteenth Amendment.
C. Additional distinctions
1. Persons possess rights.
2. Governments possess powers.
3. Privilege: a behavior that government may lawfully regulate.
4. No right is absolute.
5. Government limitations on rights require a higher burden of proof and must be
minimal in scope.
Freedom of religion
A. The First Amendment prevents government from interfering with religion.
1. Establishment clause: the first clause in the First Amendment, which forbids
government establishment of religion.
2. Free-exercise clause: the second clause in the First Amendment, which prevents the
government from interfering with the exercise of religion.
3. Supreme Court has refused to interpret these causes definitively
a) Freedom to believe is unlimited; freedom to practice a belief may be limited.
b) Religion cannot benefit directly from government actions, but may benefit
indirectly.
B. The establishment clause
1. The Supreme Court has consistently held that the establishment clause requires
government to maintain religious neutrality, but does not bar all assistance that
incidentally aids religious institutions.
2. Government support of religion
a) 1879: Court contended establishment clause erected “wall of separation between
church and State”
b) Wall breached (1947): Court upheld program that provided free transportation to
parochial school students
c) Further breach (1968): Court upheld program allowing parochial school students
to borrow state-purchased textbooks
d) Lemon v. Kurtzman (1971) struck down state program to pay salaries of parochial
school teachers teaching secular subjects.
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Chapter 15: Order and Civil Liberties
(1)
C.
173
Three-pronged test for determining constitutionality under establishment
clause:
(a) Program must have a secular purpose
(b) Primary effect should not be to advance or inhibit religion
(c) Must not excessively entangle government and religion
(2) Lemon test governed Court’s interpretation of such programs for twentyfive years
e) Agostini v. Felton (1997) loosened application of the “Lemon Test.”
(1) New York public school teachers could teach remedial education to
disadvantaged students in New York parochial schools at taxpayer expense.
(2) Only government neutrality toward religion was required.
(3) Only excessive entanglements violated the establishment clause.
f)
Zelman v. Simmons-Harris (2002) upheld school voucher program in which
secular and sectarian schools could participate.
3. Display of religious artifacts on public property
a) Lynch v. Donnelly (1984)
(1) Nativity scene displayed with commercial Christmas symbols had secular
purpose: celebration of national holiday.
(2) Display of nativity scene did not have primary effect of benefiting religion.
(3) Display led to no excessive entanglement of religion and government.
b) Proliferation of closely decided cases testing limits of government-sponsored
religious displays since Lynch
4. School prayer
a) Court has consistently equated prayer in public schools with government support
of religion.
b) Religious training as after-school activity now constitutional (2001)
5. The problem of the establishment clause
a) Support for all religions come at the expense of nonreligion—but poses the least
risk to social order.
b) Tolerance of dominant religion at expense of other religions risks minority
discontent.
c) Support for no religion risks majority discontent.
The free exercise clause
1. Inherent tension between establishment clause and free exercise clause
a) Does the free exercise clause require government to grant exemptions from legal
duties that conflict with religious obligations?
b) Does the free exercise clause guarantee only that the law will be applicable to
religious believers with discrimination or preference?
2. Justices have distinguished between religious beliefs and actions based on those
beliefs.
3. Working on the Sabbath
a) Sherbert v. Verner (1963): First Amendment protects religious observance as
well as belief.
b) Strict scrutiny: a standard used by the Supreme Court in deciding whether a law
or policy is to be adjudged constitutional; the law or policy must be justified by a
“compelling governmental interest,” as well as being the least restrictive means
for achieving that interest.
4. Using drugs as sacraments
a) Clash between religious freedom and social order
b) Employment Division v. Smith (1990)
(1) Change in reasoning from “compelling government interest”
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Chapter 15: Order and Civil Liberties
Argued that Court has never held that an individual’s religious beliefs
excuse him or her from compliance with an otherwise valid law prohibiting
conduct that government is free to regulate
(3) Rejected strict scrutiny standard
(4) Only laws aimed at religious groups are constitutionally prohibited.
c) Employment Davison v. Smith allowed for scores of government actions
infringing on religious exercise.
(1) Resulted in creation of a coalition of religious and non-religious groups to
restore the strict scrutiny test
(2) Group pressed for Religious Freedom Restoration Act (1994) that required
state and local governments to satisfy strict scrutiny standards
d) City of Boerne v. Flores (1997)
(1) Declared federal enforcement of RFRA over state and local governments
unconstitutional
(2) RFRA still binding in federal law
III. Freedom of expression
A. Free expression clauses: the press and speech clauses of the First Amendment.
1. Dominant view: clauses confer a right to unrestricted discussion of public affairs.
2. Alternative views
a) Few, if any, of the framers clearly understood the clauses.
b) First Amendment does not rule out prosecution for seditious statements
3. Subtle restriction on the clauses: social pressure
4. Clauses bar prior restraint: censorship before publication
5. Approaches to resolution of claims based on free-expression clauses
a) Government may only regulate or punish advocacy of ideas if it can prove an
intent to promote lawless action and demonstrate a high probability that such
action will occur.
b) Government may impose reasonable restrictions on the means for communicating
ideas that may incidentally discourage free expression.
B. Freedom of speech
1. Clear and present danger test: a means by which the Supreme Court has
distinguished between speech as the advocacy of ideas, which is protected by the First
Amendment, and speech as incitement, which is not protected.
a) Develop in Schenck v. United States (1919)
b) Gitlow v. New York (1925): the Court assumed First Amendment speech and
press provisions applied to the states through the due process clause of the
Fourteenth Amendment.
c) “Clear and present danger” broadened to “grave and probable danger” in 1951
d) Brandenburg v. Ohio (1969): the Court offered wider latitude for expression of
political ideas by declaring that threatening speech is protected by the
Constitution.
2. Symbolic expression
a) Symbolic expression: nonverbal communication.
b) Generally receives less protection than pure speech
c) Courts have upheld certain types of symbolic expression
d) Tinker v. Des Moines Independent County School District (1969)
(1) Court overturned the suspension of three high school students
(2) Principal failed to show how forbidden conduct would substantially
interfere with school discipline
3. Order versus free speech: fighting words and threatening expression
a) Chaplinsky v. New Hampshire (1942)
(2)
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Chapter 15: Order and Civil Liberties
Chaplinsky convicted for calling a city marshal a “damned fascist”;
Supreme Court upheld conviction
(2) Fighting words: speech that is not protected by the First Amendment
because it inflicts injury or tends to incite an immediate disturbance of the
peace.
b) Court narrowed definition of fighting words in Terminiello case (1949)
c) Cohen v. California (1971)
(1) Court recognized “one man’s vulgarity is another’s lyric”
(2) Protected two elements of speech
(a) Expression of emotion
(b) Expression of ideas
d) Free speech and the Web
(1) Communications Decency Act (1996)
(a) Made it a crime for person to circulate “patently offensive” sexual
material to websites accessible to minors
(b) Act was declared unconstitutional
(2) Reno v. ACLU (1997)
(a) Court argued that the Internet was more analogous to print media than
to television
(b) Deserved broad First Amendment protection
4. Free speech versus order: obscenity
a) Obscene material is outside the bounds of constitutional protection.
b) Difficulties arise in determining what is obscene.
c) In Miller v. California (1973), the Court declared that a work is obscene if:
(1) Taken as a whole, it appeals to prurient interest
(2) It portrays sexual conduct in a patently offensive way
(3) Taken as a whole, it lacks serious literary, artistic, political, or scientific
value
Freedom of the press
1. The First Amendment guarantees that government will not interfere with the freedom
of the press.
2. Defamation of character
a) Libel: written defamation of character.
b) New York Times Co. v. Sullivan (1964)
(1) Supreme Court declared that freedom of the press takes precedence over the
rights of public officials suing for libel
(2) First Amendment protects publication of all statements about the conduct of
public officials, except statements made with actual malice
3. The Court has extended the concept of freedom of the press to protect publishers
against suits from any public figures.
a) Public figures: people who assume roles of prominence in society or thrust
themselves to the forefront of public controversy.
b) All public figures must show actual malice on the part of the publication.
c) Free speech protects even outrageous and offensive criticism of public figures
4. Prior Restraint and the press
a) Near v. Minnesota (1931)
(1) Declared that prior restraint places unacceptable burden on free press
(2) Acknowledged that prior restraint may be permissible in exceptional
circumstances, but did not specify those circumstance
b) New York Times v. United States (The Pentagon Papers) (1971)
(1)
C.
175
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Chapter 15: Order and Civil Liberties
(1)
Daniel Ellsberg delivered portions of classified U.S. Department of Defense
documents to the New York Times and the Washington Post.
(2) Department of Justice sought to restrain publication
(3) Court concluded that government had not met the burden of proving
immediate, inevitable, and irreparable harm would follow publication of
documents
5. Freedom of expression versus maintaining order
a) Courts have consistently held that freedom of the press does not override the
requirements of law enforcement.
b) Educators may limit speech within the confines of the school curriculum if their
actions serve any “valid educational purpose.”
D. The rights to assemble peaceably and to petition the government
1. Framers meant that people have the right to assemble peacefully in order to petition
the government
2. Government cannot prohibit peaceful political meetings.
3. Government cannot criminalize those who organize, lead, and attend peaceful political
meetings.
IV. The right to bear arms
A. Based in the Second Amendment
1. Gun control advocates: amendment protects rights of states to maintain collective
militias.
2. Gun use advocates: amendment protects the rights of individuals to own and use guns.
B. Restrictions on gun ownership have passed constitutional muster.
C. Prohibitions on gun ownership may infringe on the Second Amendment.
V. Applying the Bill of Rights to the states
A. Constitution as it was originally written prohibited both the national and the state
governments from impinging on citizens’ rights in certain ways
1. Bill of attainder: law that makes an individual guilty of a crime without a trial.
2. Ex post facto law: declares an action a crime after it has been performed.
3. Obligation of contracts: obligation of the parties to a contract to carry out its terms;
neither nation nor states may impair.
B. Bill of Rights originally only limited national—not state—authority
C. The Fourteenth Amendment: due process of law
1. The Supreme Court’s interpretation of the due process clause in the Fourteenth
Amendment has allowed individuals to contest state violations of their liberties.
2. Clause has two meanings
a) Requires government to adhere to appropriate procedures
b) Forbids unreasonable government action
D. The fundamental freedoms
1. 1897: the Supreme Court declared that states are subject to Fifth Amendment’s
prohibition against taking private property without providing just compensation.
2. 1925: the Court assumed due process clause protected First Amendment speech and
press liberties from impairment by states.
3. Palko v. Connecticut (1937): the Court determined that double jeopardy and trial by
jury were not fundamental rights to be protected by the states.
4. By 1969 (when Palko was overturned) the Court had found that most of the guarantees
in the Bill of Rights were indeed “fundamental.”
E. Criminal procedure: the meaning of constitutional guarantees
1. Criminal procedural safeguards have been applied to the states in two stages:
a) Judgment that a guarantee in the Bill of Rights also applies to the states
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Chapter 15: Order and Civil Liberties
b)
F.
G.
177
National judiciary gives specific meaning to the guarantee (to insure some
measure of uniformity)
2. Defendants’ right to a jury trial in criminal cases is “fundamental”
a) Nothing regulates jury size (beyond a minimum of six jurors).
b) Nothing regulates whether judgments should be unanimous.
3. Court left no room for variation in its definition of fundamental right to an attorney
a) Gideon v. Wainwright (1963): the Supreme Court determined that defendants in
criminal proceedings were entitled to a lawyer.
b) Court subsequently specified at which point in criminal proceedings a defendant
is entitled to a lawyer
4. Court also determined when suspects must be informed of their constitutional rights
a) Miranda v. Arizona (1966): the Supreme Court instituted Miranda warnings to
ensure protection against self-incrimination.
b) Miranda warnings: statement concerning rights that police are required to make
to a person before he or she is subjected to in-custody questioning.
5. Protection against unreasonable searches and seizures
a) Wolf v. Colorado (1949)
(1) Made Fourth Amendment applicable to states
(2) Did not apply exclusionary rule to state courts
(a) Exclusionary rule: the judicial rule that states that evidence obtained
in an illegal search and seizure cannot be used in trial.
(b) Allowed states to fashion their own rules of evidence
b) Mapp v. Ohio (1961)
(1) Supreme Court determined that the exclusionary rule applied to all levels of
government
(2) Rule appears to handicap to police and offer freedom to people whose guilt
has been established by illegally-obtained evidence
c) United States v. Leon (1984)
(1) Supreme Court created the “good faith exception” to the exclusionary rule
(a) Good faith exception: an exception to the Supreme Court
exclusionary rule, holding that evidence seized on the basis of
mistakenly issued search warrants can be introduced at trial if the
mistake was made in good faith—that is, if all the parties involved had
reason at the time to believe that the warrant was proper.
(b) Exclusionary rule is not a right but a remedy against illegal police
conduct.
(2) Exclusionary rule is costly to society
The USA-Patriot Act
1. Law expanded the ability of law enforcement and intelligence agencies to tap phones,
monitor Internet traffic, and conduct other forms of surveillance
2. Shift toward order worries civil libertarians
3. Section 215
a) Rules for searching private records (e.g., library, video store, doctor’s office)
b) Government need only certify without substantiation that search protects against
terrorism
c) Turns judicial oversight into a rubber stamp
d) Gag order bars person turning over the records from disclosing the search to
anyone
Detainees and the war on terrorism
1. President maintained that detainees (“enemy combatants”) were not entitled to basic
legal requirements and that presidential actions could not be reviewed in court.
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Chapter 15: Order and Civil Liberties
Court said detainees were entitled to challenge “enemy combatants” designation before
a federal judge or other neutral decision maker
3. U.S. citizen detained as “enemy combatant” entitled by due process clause to a
“meaningful opportunity” to contest basis for detention
VI. The Ninth Amendment and personal autonomy
A. Two different views of the Ninth Amendment
1. Amendment may protect rights that are not enumerated
2. Amendment may protect state governments against assumption by national
government
B. Controversy: from privacy to abortion
1. Griswold v. Connecticut (1965)
a) Court struck down a seldom-enforced statute that made use of birth control
devices a crime
b) Court asserted that specific guarantees in the First, Third, Fourth, and Fifth
Amendments create a “zone of privacy”
(1) Zone of privacy is protected by the Ninth Amendment
(2) Zone of privacy is applicable to the states by due process clause of
Fourteenth Amendment
c) Established principle that Bill of Rights as a whole creates a right to make certain
intimate, personal choices
2. Roe v. Wade (1973)
a) Declared unconstitutional a Texas law making it a crime to obtain an abortion
b) Based decision on the right to privacy protected by the Fourteenth Amendment
c) Dissenters argued that the majority opinion in Roe v. Wade had no basis in the
Constitution.
3. Webster v. Reproductive Health Services (1989)
a) Court upheld the constitutionality of a Missouri law that denied the use of public
employees or facilities in the performance of an abortion unless the mother’s life
was in danger
b) No single position held a majority
4. Court has moved cautiously toward greater government control of abortion
a) Court struck down state requirement that compelled unwed minors to notify both
parents before having an abortion
b) Court upheld state requirement that physician notify one parent of a pregnant
minor of her intention to have an abortion
5. Court has cast the politically divisive issue into the state legislatures
6. Shifting balance on the Supreme Court will likely affect future decisions
C. Personal autonomy and sexual orientation
1. Does the right to privacy embrace homosexual acts between consenting adults?
2. Bowers v. Hardwick (1986)
a) State’s argument: “Constitutional law must not become an instrument for change
in the social order.”
b) Hardwick’s argument: case involves two freedoms
(1) Right to engage in private sexual relations
(2) Right to be free from government intrusion in one’s home
c) Court held that Constitution does not protect homosexual relations between
consenting adults
3. Lawrence and Garner v. Texas (2003)
a) Voided Texas law criminalizing homosexual (but not heterosexual) sodomy
b) Law furthered legitimate state interest but intruded into intimate personal choices
of individuals
2.
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Chapter 15: Order and Civil Liberties
179
c)
d)
4.
Explicitly stated that Bowers decision was wrong and should be overturned
Scalia and members of the minority argued that decision took the issue out of the
democratic process
Issues around sexual orientation have shifted toward the states.
a) Congress moved to bar the effects of state-approved same sex unions with the
Defense of Marriage Act (1996).
b) Thirty-five states now bar recognition of same-sex marriages.
c) Eighteen states have state constitutional clauses banning gay marriage.
d) Some states have been innovators in legitimizing homosexuality.
(1) Vermont approved same-sex “unions” but not same-sex marriages.
(2) Massachusetts
(a) 2003: highest court mandated state legislature to acknowledge gay
marriage as a fundamental right under the state constitution
(b) 2006: court ruled that gay couples who live in states where marriages
are prohibited cannot marry in Massachusetts
FOCUS LECTURE 15.1
Obscenity: An Exception to Freedom of Speech
Government restrictions on expression pit the value of order against the value of freedom. Government
imposes restrictions on certain forms of artistic expression on the grounds that the material sought to be
restricted is harmful. Opponents of such control argue that there is no evidence of the link between such
material and the conduct that government seeks to prevent. In the absence of such proof, government
control of expression is unwarranted. (Note: This material is particularly effective if you provide your
students with examples of what has been considered obscene. This may include passages from selected
books, clips from films, reproductions of art, and clips from magazines. It is in your best interest to
warn your students that they may find some materials objectionable, and to provide them with an
unobtrusive way to excuse themselves from the lecture if they do not wish to deal with such images.
Depending on the climate at your institution, it may also be in your best interest to warn your
department chair or section head that you plan to engage this material.)
I.
Obscene material is entirely excluded from constitutional protection.
A. We associate obscene material with “dirty” words, books, magazines, films, and such.
1. Books once banned as obscene in the United States include
a) Ulysses, by James Joyce
b) From Here to Eternity, by James Jones
c) Tropic of Cancer, by Henry Miller
d) Memoirs of Hecate County, by Edmund Wilson
2. Films have also been banned as obscene, including these:
a) Lady Chatterley’s Lover
b) Carnal Knowledge
c) Deep Throat
3. Obscenity is not confined to literature and film.
a) When Dimitri Shostakovich’s opera Lady Macbeth of Mtsensk District was
performed in Cleveland in 1935, some trombone notes so shocked certain ladies
that many of them walked out of the performance. A substitute was called on to
play the notes because the first trombone player refused.
b) Gilbert and Sullivan wrote an obscene opera called The Sod’s Opera. Characters
included Count Tostoff, the Brothers Bollox (a pair of hangers-on), and Scrotum
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Chapter 15: Order and Civil Liberties
(a wrinkled old retainer). For many years, a copy of the opera was kept in the
guardroom at St. James Palace.
c) Robert Mapplethorpe was a critically acclaimed photographer who died in 1989.
His subjects included celebrities, still lifes, nudes, children, and graphic sexual
poses. The technique of the photographs was flawless. The content jarred and
offended many viewers, who saw them as degrading, humiliating, and painful
images. (Indeed, many of Mapplethorpe’s non-sexual workssuch as stills of
flowershave been interpreted as obscene within the context of his collected
works.)
d) Americans are still debating the subject of obscenity today. In recent years a
national debate has taken place over whether public monies should be used to
support art that some find obscene.
B. The Supreme Court has determined that obscene material is excluded from constitutional
protection.
1. The Court maintained in 1957 that at the time of the Constitution’s adoption, obscene
materials were not regarded as “speech” within the meaning of the First Amendment.
2. Hence, government can constrain and punish the dissemination of obscene material,
because it is not protected speech.
3. Difficulties arise, however, in determining what is obscene and what is not.
II. The problem of defining obscenity. At this point in the lecture, a scene from the film The People
v. Larry Flynt (1996) works well. The clip begins at 30:31 and runs to 40:50. In it, the character of
Larry Flynt (played by Woody Harrelson) is arrested on pornography and racketeering charges,
and ends up being sent to jail. During these scenes, Flynt notably quips that he is being charged
because his tastes differ from that of the establishment. How do we draw the line between
obscenity and bad taste? That has been the task facing the Supreme Court. (Interesting note: the
judge in this scene is the real Larry Flynt.)
A. In 1957, Justice William J. Brennan, Jr., defined obscene material as that which “deals with
sex in a manner appealing to the prurient interest.” Prurient is defined as obsessive interest
in sexual matters.
1. A work could be saved from censorship if, taken as a whole, it offered redeeming
social value.
2. Individuals—judges or community leaders—were required to apply community
standards in the imposition of restrictions.
B. The justices have struggled with the identity of obscenity. The definition lacks objectivity.
C. Justice Potter Stewart will long be remembered for his solution to the problem of identifying
obscene materials. He confessed that he could not define obscenity. “But,” he added, “I
know it when I see it.”
III. The historical setting for restrictions on expression dealing with sex
A. Because obscene material is not protected speech, government can restrain and punish those
who disseminate it.
1. Federal regulation of obscene material has a relatively short history.
a) In 1873, a puritanical crusader named Anthony Comstock formed an organization
called the Society for the Suppression of Vice.
b) For forty years, Comstock urged federal legislation to combat obscenitywhich
he originally defined as the publication of material advocating birth control.
c) Congress enacted legislation in 1873 to punish the mailing of obscene material.
(1) Harry Reems, an actor in the X-rated film Deep Throat, was one of nine
persons convicted of a federal crime rooted in the Comstock era: conspiring
to transport obscene material across state lines.
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Chapter 15: Order and Civil Liberties
181
Reems’s conviction was overturned on appeal. But his codefendants served
sentences of three to twelve months in jail and paid up to ten thousand
dollars in fines.
2. State governments have also used the criminal law to thwart the distribution of
obscenity.
a) Larry Flynt, publisher of the “soft-core” magazine Hustler, was convicted in
1981 by an Atlanta jury on eleven counts of violating the city’s obscenity laws.
b) Flynt appealed his conviction all the way to the Supreme Court, but to no avail.
B. The Supreme Court’s approach to the obscenity issue initially lacked consistency.
1. The Court’s early efforts at obscenity definitions prompted challenges to state and
local restrictions on expression.
2. The Court seemed to be deciding obscenity questions on a case-by-case basis.
3. By 1966, the justices were deeply divided on the meaning of obscenity and its
application.
a) In just three cases in 1966, seven of the justices authored a total of fourteen
separate opinions to explain what each justice meant by legitimate restrictions on
expression.
IV. The Court has returned a measure of control to local communities.
A. In 1973, the justices attempted again to provide a useful standard for identifying obscene
material. A work is obscene and may be regulated by government if
1. It depicts or describes sexual contact
2. Taken as a whole, it appeals to a prurient interest in sex
3. It portrays sexual conduct in a patently offensive way
4. Taken as a whole, it does not have serious literary, artistic, or scientific value
B. The Court also provided that local community standards were to be used in this fourpronged test for obscenity.
1. The local-control stipulation is an attempt by the Court to free itself from the nagging
problem of reviewing state court obscenity findings.
2. Judicial review still remains available to prevent unbridled discretion in state obscenity
determinations.
3. In short, the justices are unlikely to replace either prudish or exotic community
standards with their own, but they have left the door ajar for intervention if it is
needed.
C. Sexual explicitness in recent American culture can be traced in part to the restrictions
imposed by the Supreme Court on censors. The value of freedom has trumped the value of
order in some communities, whereas the value of order has overridden the value of freedom
in others.
V. Can the value of equality outweigh the value of freedom?
A. An interesting twist in the clash between freedom and equality arose in the early 1980s.
Pornography opponents, led by feminist theorists, invoked equality principles to justify
legislation restricting freedom of expression.
B. Indianapolis enacted an ordinance based on the equality approach in 1984.
1. The law defined pornography as the graphic, sexually explicit subordination of women,
in words or pictures, that satisfies one or more of the following criteria:
a) It presents women as sexual objects who experience sexual pleasure in being
raped.
b) It presents women as sexual objects of domination, conquest, violation,
exploitation, possession, or use, through postures or positions of servility,
submission, or display.
(2)
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182
Chapter 15: Order and Civil Liberties
2.
C.
The law rested on the finding that pornography is a form of discrimination that denies
equal opportunities in society and that it is central in creating and maintaining sex as a
form of discrimination. (Federal and state laws forbid such discrimination.)
3. The law banned pornographic material according to the following argument:
a) Government interest in civil rights outweighs any First Amendment interest in
communication.
b) Pornography affects thoughts; it works by socializing, by establishing the
expected and permissible.
(1) Depictions of subordination tend to perpetuate subordination.
(2) This leads to affronts and the perpetuation of lower pay for women at work,
to insult and injury at home, and to battery and rape on the streets.
c) Hence pornography conditions society to subordinate women impermissibly.
d) A law regulating expression will regulate and control the underlying
unacceptable conduct.
The Indianapolis ordinance was held unconstitutional.
1. District Court Judge Sarah Evans Barker rejected the city’s argument.
a) The law suppressed otherwise protected expression while sweeping away
unprotected expression (e.g., child pornography is unprotected). According to the
ordinance,
(1) Sexual encounters premised on equality would be lawful, no matter how
sexually explicit.
(2) Expression treating women in the disapproved way—as sexually
submissive or as enjoying humiliation—would be unlawful, no matter how
significant the literary, artistic, or political qualities of the work.
2. Judge Barker confronted the trade-off between equality and freedom in a pluralist
democracy.
a) Interest groups using the democratic process to carve exceptions to the First
Amendment destroy everyone’s rights.
b) Although efforts to restrict behavior that leads to humiliation and degradation of
women may be desirable, “free speech, rather than being the enemy, is a longtested and worthy ally.”
c) “To deny free speech in order to engineer social change in the name of
accomplishing a greater good for one sector of our society erodes the freedom of
all.”
PROJECTS, ACTIVITIES, AND SMALL-GROUP ACTIVITIES
1.
Many students may not have read a Supreme Court opinion on important issues such as the rights
of criminals or abortion. Ask students to use the Supreme Court decisions online. (See the World
Wide Web Resources at the end of Chapter 15.) Discuss in class their impressions of the decisionmaking process in the highest court of the land.
2.
Freedom of the press is usually taken for granted in the United States. To give students a sense of
the importance of unrestricted circulation of information and opinion about government, have
them act out the following scenario. Randomly select a group of students to act as official censors
of a hypothetical dictatorial government of the United States. Have them use the editorial page of
a major daily newspaper and censor all information and opinions that negatively reflect on the
government. Circulate copies of the censored editorial pages to the rest of the class. Discuss
students’ reactions to this exercise. What potentially sensitive information about government was
shielded from the public?
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Chapter 15: Order and Civil Liberties
3.
183
There is a profusion of television shows depicting arrests of criminals and other offenders. Have
students videotape a wide range of television “cop” shows. Ask students to analyze how these
shows portray the execution of procedures designed to protect the rights of the accused. Focus on
some of the following questions: Do television police officers always read the Miranda warning to
arrestees? What are the attitudes expressed by television police regarding the rights of the
accused? Are these views realistic? What are the substantial differences between the “reality”
shows and the fictionalized police shows? Finally, you may discuss whether television shows
depicting police work influence the way Americans perceive their system of justice.
INTERNET RESOURCES
The American Civil Liberties Union www.aclu.org/
Read reports on the status of civil liberties in various places around the United States.
The Freedom Forum First Amendment Center www.freedomforum.org/
This nonpartisan organization is a forum for debate on free expression.
Southern Poverty Law Center www.splcenter.org/
This nonprofit organization deals with prosecution of hate speech and discriminatory action.
FAIR: Fairness and Accuracy in Reporting www.fair.org/
A national media watch center that offers criticism of media bias and censorship
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