"The land of the free." When asked what makes the United States distinctive, Americans will commonly say it is a free country. Americans have long believed that limits on the power of government are an essential part of what makes this country free. Restraints on the actions of government against individuals are generally referred to as civil liberties. The first ten amendments to the U.S. Constitution - the Bill of Rights - place such restraints on the national government. Of these amendments, none is more famous than the First Amendment, which guarantees freedom of religion, speech, and the press, as well as other rights.
Most other democratic nations have laws to protect these and other civil liberties, but none of the laws is quite like the First Amendment. Take the issue of "hate speech." What if someone makes statements that stir up hatred toward a particular race or other group of people? In Germany, where memories of Nazi anti-Semitism remain alive, such speech is unquestionably illegal. In the United States, the issue is not so clear. The courts have often extended constitutional protection to this kind of speech.
This chapter describes the civil liberties provided by the Bill of Rights and some of the controversies that surround them, including the First Amendment, right to privacy, and the rights of defendants in criminal cases.
THE BILL OF RIGHTS
The Bill of Right, like the rest of the Constitution, is relatively brief. The framers set forth broad guidelines, leaving it up to the courts to interpret these constitutional mandates and apply them to specific situations. Thus, judicial interpretations shape the true nature of the civil liberties and rights that we possess. Because judicial interpretations change over time, so do our liberties and rights. There have been many conflicts over the meaning of such simple phrases as freedom of religion and freedom of the press.
To understand what freedoms we actually have, we need to examine how the courts - and particularly the United States Supreme Court - have resolved some of those conflicts. One important conflict was over the issue of whether the Bill of Rights in the federal Constitution limited the powers of state governments as well as those of the national government.
Extending the Bill of Rights to State Governments
Many citizens do not realize that, as originally intended, the Bill of Rights limited only the powers of the national government. At the time the Bill of Rights was ratified, there was little concern over the potential of state governments to curb civil liberties. For one thing, state governments were closer to home and easier to control. For another, most state constitutions already had bills of rights. Rather, the fear was of the potential tyranny of the national government. The Bill of Rights begins with the words, "Congress shall make no law...." It says nothing about states making laws that might abridge citizens' civil liberties. In 1833, in Baron v. Baltimore, the United States Supreme Court held that the Bill of Rights did not apply to state laws.
Most states had bills of rights. These bills of rights were similar to the national one, but there were some differences. Furthermore, each state's judicial system interpreted the rights differently. Citizens in different states, therefore, effectively had different sets of civil liberties. It was not until after the Fourteenth Amendment was ratified in 1868 that civil liberties guaranteed by the national Constitution began to be applied to the states. Section 1 of that amendment provides, in part, as follows: No State shall... deprive any person of life, liberty, or property, without due process of law...
Incorporation of the Fourteenth Amendment
There was no question that the Fourteenth Amendment applied to state governments for decades, however, the courts were reluctant to define the liberties spelled out in the national Bill of Rights as constituting "due process of law," which was protected under the Fourteenth Amendment. Not until 1925, in Gitlow v. New York, did the United States Supreme Court hold that the Fourteenth Amendment protected the freedom of speech, guaranteed by the First Amendment to the Constitution from state infringement.
Only gradually did the Supreme Court accept the incorporation theory - the view that most of the protections in the Bill of Rights are incorporated into the Fourteenth Amendment's protection against state government actions.
The most recent ruling that states must abide by protections listed in the Bill of Rights came in 2010. In that year, the Court stated that the freedom to bear arms specified by the Second Amendment was binding on the states.
FREEDOM OF RELIGION
In the United States, freedom of religion consists of two main principles that are presented in the First Amendment. The establishment clause prohibits the establishment of a church that is officially supported by the national government, thus guaranteeing a division between church and state. The free exercise clause constrains the national government from prohibiting individuals from practicing the religion of their choice.
The Separation of Church and State - The Establishment Clause
The First Amendment to the Constitution states, in part, that "Congress shall make no law respecting an establishment of religion." In the words of Thomas Jefferson, the establishment clause was designed to create a "wall of separation between Church and State." As interpreted by the United States Supreme Court, the establishment clause in the First Amendment means at least the following:
Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
The establishment clause covers all conflicts about such matters as the legality of giving state and local government aid to religious organizations and schools, allowing or requiring school prayers, teaching evolution versus creationist theories that reject evolution, placing religious displays in schools or public places, and discriminating against religious groups in publicly operated institutions.
Aid to Church-Related Schools. In the United States, almost 11 percent of school-age children attend private schools, of which about 80 percent have religious affiliations. The United States Supreme Court has tried to draw a fine line between permissible public aid to students in church-related schools and impermissible public aid to religion. These issues have arisen most often at the elementary and secondary levels.
In 1971, in Lemon v. Kurtzman, the Court ruled that direct state aid could not be used to subsidize religious instruction. The Court in the Lemon case gave its most general pronouncement on the constitutionality of government aid to religious schools, stating (1) that the aid had to be secular (nonreligious) in aim, (2) that it could not have the primary effect of advancing or inhibiting religion, and (3) that the government must avoid "an excessive government entanglement with religion." All laws that raise issues under the establishment clause are now subject to the three-part Lemon test. How the test is applied, however, has varied over the years.
In a number of cases, the Supreme Court has held that state programs helping church-related schools are unconstitutional. In other cases, however, the Supreme Court has allowed states to use tax funds for lunches, textbooks, diagnostic services for speech and hearing problems, standardized tests, computers, and special educational services for disadvantaged students attending religious schools.
School Vouchers. An ongoing controversy concerning the establishment clause has to do with school vouchers. Many people believe that public schools are failing to educate our children adequately. One proposed solution to the problem has been for state and local governments to issue school vouchers, representing state-issued funds, that can be used to "purchase" education at any school, public or private. At issue is whether voucher programs violate the establishment clause.
In 2002, the United States Supreme Court held that a voucher program in Cleveland, Ohio, did not violate the establishment clause. The Court contended that because the vouchers could be used for public as well as private schools, the program did not unconstitutionally entangle church and state. The Court's 2002 decision was encouraging to those who support school choice, whether it takes the form of school vouchers or tuition tax credits to offset educational expenses in private schools.
Today, fifteen states allow public funds to be used for private school expenses. Twelve states have small-scale voucher or scholarship programs for a limited number of students, frequently special-needs students. Six states provide tax deductions for private school expenses. Voucher programs have also been eliminated in several jurisdictions. In 2005, the Florida Supreme Court ruled that vouchers violated the Florida state constitution. In 2007, Utah voters rejected a voucher plan that was created earlier that year by the state legislature. In March 2009, the U.S. Congress voted to halt a voucher program in the District of Columbia.
The Issue of School Prayer - Engel v. Vitale. Do the states have the right to promote religion in general, without making any attempt to establish a particular religion? That is the question raised by school prayer and was the precise issue presented in 1962 in Engel v. Vitale, the so-called Regents' Prayer case in New York. The State Board of Regents of New York had suggested that a prayer be spoken aloud in the public schools at the beginning of each day. The recommended prayer was as follows: Almighty God, we acknowledge our dependence upon Thee, And we beg Thy blessings upon us, our parents, our teachers, and our Country.
Such a prayer was implemented in many New York public schools.
The parents of a number of students challenged the actions of the regents, maintaining that it violated the establishment clause of the First Amendment. At trial, the parents lost. On appeal, however, the Supreme Court ruled that the regents' action was unconstitutional because "the constitutional prohibition against laws respecting an establishment of a religion must mean at least that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by any government."
The Debate over School Prayer Continues. Although the Supreme Court has ruled repeatedly against officially sponsored prayer and Bible-reading sessions in public schools, other means for bringing some form of religious expression into public education have been attempted. In Wallace v. Jaffree, the Supreme Court struck down as unconstitutional an Alabama law authorizing one minute of silence for prayer or meditation in all public schools. The Court concluded that the law violated the establishment clause because it was "an endorsement or religion lacking any clearly secular purpose."
Since then, the lower courts have interpreted the Supreme Court's decision to mean that states can require a moment of silence in the schools as long as they make it clear that the purpose of the law is secular, not religious.
Forbidding the Teaching of Evolution. For many decades, certain religious groups have opposed the teaching of evolution in the schools. To these groups, evolutionary theory directly counters their religious belief that human beings did not evolve but were created fully formed, as described in the biblical story of the creation. State and local attempts to forbid the teaching of evolution, however, have not passed constitutional muster in the eyes of the United States Supreme Court. For example, in 1968 the Supreme Court held, in Epperson v. Arkansas, that an Arkansas law prohibiting the teaching of evolution violated the establishment clause because it imposed religious beliefs on students.
Nonetheless, state and local groups around the country continue their efforts against the teaching of evolution. Some school districts have considered teaching the creationist theory of "intelligent design" as an alternative explanation of the origin of life. Proponents of intelligent design contend that evolutionary theory has "gaps" that can be explained only by the existence of an intelligent creative force (God).
The federal courts took up the issue of intelligent design in 2005. The previous year, the Dover Area Board of Education in Pennsylvania had voted to require the presentation of intelligent design as an explanation of the origin of life. In December 2005, a U.S. district court ruled that the Dover mandate was unconstitutional. Judge John E. Jones III, appointed in 2002 by President George W. Bush, criticized the intelligent design theory in depth. All of the school board members who endorsed intelligent design were voted out of office, and the new school board declined to appeal the decision.
Religious Displays on Public Property. On a regular basis, the courts are asked to determine whether religious symbols placed on public property violate the establishment clause. A frequent source of controversy is the placement of a crèche, or nativity scene, on public property during the Christmas season. The Supreme Court has allowed some displays but prohibited others. In general, a nativity scene is acceptable if it is part of a broader display that contains secular objects such as lights, Christmas trees, Santa Claus figures, and reindeer. A stand-alone crèche is not acceptable. A related issue is whether the Ten Commandments may be displayed on public property. As with nativity displays, acceptability turns on whether the Ten Commandments is part of a larger secular display or whether the context is overtly religious.
In a new twist on the Ten Commandments controversy, the Supreme Court ruled in 2009 that the city of Pleasant Grove, Utah, was not required to accept a monument from Summum, a small religious group, and place it in a city park. The proposed monument would have listed Summum's principles. A variety of donated monuments were already installed in the park, including one that displayed the Ten Commandments. Summum based its argument on freedom of speech grounds, not the establishment clause. In response, the Court ruled that by accepting or not accepting monuments, the city was exercising its own freedom of speech, rather than regulating the speech of others. When New York accepted the Statue of Liberty from France, it was under no obligation also to accept a "statue of autocracy" from somewhere else.
The Free Exercise Clause
The First Amendment constrains Congress from prohibiting the free exercise of religion. Does this free exercise clause mean that no type of religious practice can be prohibited or restricted by government? Certainly, a person can hold any religious belief that he or she wants, or a person can have no religious belief. When, however, religious practices work against public policy and the public welfare, the government can act. For example, regardless of a child's or parent's religious beliefs, the government can require vaccinations.
Churches and other religious organizations are tax-exempt bodies, and as a result they are not allowed to endorse candidates for office or make contributions to candidates' campaigns. Churches are allowed to take positions on ballot proposals, however, and may contribute to referendum campaigns. For example, both the Latter-Day Saints (the Mormons) and the Roman Catholic Church were able to fund the campaign for California's 2008 Proposition 8, a measure to ban same-sex marriage.
The Internal Revenue Service (IRS) rarely bothers to threaten the tax-exempt status of a church based on simple candidate endorsements, however. For example, in September 2008, thirty-three ministers collectively endorsed Republican presidential candidate John McCain in a deliberate challenge to the 1954 law that prohibits such endorsements. The IRS did not respond. In 1995, however, the IRS did revoke the tax-exempt status of Branch Ministries, Inc., and in 2000 a federal district court supported the revocation. Branch Ministries went far beyond simply endorsing a candidate from the pulpit. The church had used tax-exempt income to buy newspaper advertisements denouncing Democratic presidential candidate Bill Clinton.
FREEDOM OF EXPRESSION
Perhaps the most frequently invoked freedom that Americans have is the right to free speech and a free press. Each of us has the right to have our say, and all of us have the right to hear what others say. For the most part, Americans can criticize public officials and their actions without fear of reprisal by any branch of our government.
No Prior Restraint
Restraining an activity before that activity has actually occurred is called prior restraint. When expression is involved, prior restraint means censorship, as opposed to subsequent punishment. Prior restraint of expression would require, for example, that a permit be obtained before a speech could be made, a newspaper published, or a movie or TV show exhibited. Most, if not all, Supreme Court justices have been very critical of any governmental action that imposes prior restraint on expression.
One of the most famous cases concerning prior restraint was New York Times v. United States, the so-called Pentagon Papers case. In 1971, the Times and the Washington Post were about to publish the Pentagon Papers, an elaborate secret history of the U.S. government's involvement in the Vietnam War (1965-1975). The secret documents had been obtained illegally by a disillusioned former Pentagon official. The government wanted a court order to bar publication of the documents, arguing that national security was threatened and that the documents had been stolen. The newspapers argued that the public had a right to know the information contained in the papers and that the press had the right to inform the public. The Supreme Court ruled six to three in favor of the newspapers' right to publish the information. The case affirmed the no-prior-restraint doctrine.
The Protection of Symbolic Speech
Not all expression is in words or writing. Articles of clothing, gestures, movements, and other forms of nonverbal expressive conduct are considered symbolic speech. Such speech is given substantial protection today by our courts. For example, in a landmark decision issued in 1969, Tinker v. Des Moines School District, the United States Supreme Court held that the wearing of black armbands by students in protest against the Vietnam War was a form of speech protected by the First Amendment.
Flag Burning. In 1989, in Texas v. Johnson, the Supreme Court ruled that state laws prohibiting the burning of the American flag as part of a peaceful protest also violated the freedom of expression protected by the First Amendment. Congress responded by passing the Flag Protection Act of 1989, which was ruled unconstitutional by the Supreme Court in 1990. Congress and President George H. W. Bush immediately pledged to work for a constitutional amendment to "protect our flag" - an effort that has yet to be successful.
Cross Burning. In 2003, the Supreme Court concluded in a Virginia case that a state, consistent with the First Amendment, may ban cross burnings carried out with the intent to intimidate. The Court reasoned that historically, cross burning was a sign of impending violence, and a state has the right to ban threats of violence. The Court also ruled, however, that the state must prove intimidation and cannot infer it from the cross burnings themselves. In an impassioned dissent, Justice Clarence Thomas, who is African American and usually one of the Court's most conservative members, argued that cross burnings should be automatic evidence of intent to intimidate.
The Protection of Commercial Speech
Commercial speech usually is defined as advertising statements. Can advertisers use their First Amendment rights to prevent restrictions on the content of commercial advertising? Until the 1970s, the Supreme Court held that such speech was not protected at all by the First Amendment. By the mid-1970s, however, more and more commercial speech had been brought under First Amendment protection. According to Justice Harry A. Blackmun, "Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product for what reason and at what price." Nevertheless, the Supreme Court will consider a restriction on commercial speech valid as long as it (1) seeks to implement a substantial government interest, (2) directly advances that interest, and (3) goes no further than necessary to accomplish its objective. In particular, a business engaging in commercial speech can be subject to liability for factual inaccuracies in ways that do not apply to noncommercial speech.
An important recent issue involving the relationship between commerce and free speech has been the question of online piracy - that is, the unauthorized reproduction of copyrighted material using the Internet.
Attempts to Ban Subversive or Advocacy Speech
Over the past hundred years, the United States Supreme Court has established, in succession, a number of doctrines regarding language allegedly subversive to the public order. Descriptions of these doctrines follow.
Clear and Present Danger. In 1919, the Supreme Court ruled that when a person's remarks create a clear and present danger to the peace or public order, they can be curtailed constitutionally. Justice Oliver Wendell Holmes used this reasoning when examining the case of a socialist who had been convicted of violating the Espionage Act by distributing a leaflet that opposed the military draft. According to the clear and present danger test, expression may be restricted if evidence exists that such expression would cause a dangerous condition, actual or imminent, that Congress has the power to prevent.
The Bad Tendency Rule. Over the course of the twentieth century, the Supreme Court modified the clear and present danger rule, limiting the constitutional protection of free speech in 1925 and 1951, and then broadening it substantially in 1969. In Gitlow v. New York, the Court reintroduced the earlier bad tendency rule, which placed greater restrictions on speech than Justice Holmes's formulation. According to this rule, speech may be curtailed if there is a possibility that such expression might lead to some "evil."
In the Gitlow case, a member of a left-wing group was convicted of violating New York State's criminal anarchy statute when he published and distributed a pamphlet urging the violent overthrow of the U.S. government. In its majority opinion, the Supreme Court held that the First Amendment afforded protection against state incursions on freedom of expression - the first time that the First Amendment was ever invoked against a state government. Nevertheless, Gitlow could be punished legally because his expression would tend to bring about evils that the state had a right to prevent.
The Imminent Lawless Action Test. Some claim that the United States did not achieve true freedom of political speech until 1969. In that year, in Brandenburg v. Ohio, the Supreme Court overturned the conviction of a Ku Klux Klan leader for violating a state statute. The statute prohibited anyone from advocating "the duty, necessity, or propriety of sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." The Court held that the guarantee of free speech does not permit a state "to forbid or proscribe [disallow] advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent [immediate] lawless actions and is likely to incite or produce such action." The imminent lawless action test enunciated by the Court is a difficult one for prosecutors to meet. As a result, the Court's decision significantly broadened the protection given to advocacy speech.
Unprotected Speech: Obscenity
A large number of state and federal statutes make it a crime to disseminate obscene materials. Generally, the courts have not been willing to extend constitutional protections of free speech to what they consider obscene materials. But what is obscenity? Justice Potter Stewart once stated that even though he could not define obscenity, "I know it when I see it."
Definitional Problems. The Supreme Court has grappled from time to time with the difficulty of specifying an operationally effective definition of obscenity. In 1973, in Miller v. California, Chief Justice Warren Burger created a formal list of requirements that must be met for material to be legally obscene. Material is obscene if (1) the average person finds that it violates contemporary community standards, (2) the work taken as a whole appeals to a prurient interest in sex, (3) the work shows patently offensive sexual conduct, and (4) the work lacks serious redeeming literary, artistic, political, or scientific merit. The problem, of course, is that one person's prurient interest is another person's medical interest or artistic pleasure. The Court went on to state that the definition of prurient interest would be determined by the community's standards. The Court avoided preventing a definition of obscenity, leaving this determination to local and state authorities. Consequently, the Miller case has been applied in a widely inconsistent manner.
Protecting Children. The Supreme Court has upheld state laws making it illegal to sell materials showing sexual performances by minors. In 1990, in Osborne v. Ohio, the Court ruled that states can outlaw the possession of child pornography in the home. The Court reasoned that the ban on private possession is justified because owning the material perpetuates commercial demand for it and for the exploitation of the children involved. At the federal level, the Child Protection Act of 1984 made it a crime to receive knowingly through the mail sexually explicit depictions of children. In 2008, the Court upheld the legality of a 2003 federal law that made it a crime to offer child pornography, even if the pornography in question does not actually exist.
Pornography on the Internet. A significant problem facing Americans and their lawmakers today is how to spare young children from exposure to pornography that is disseminated through the Internet. In 1996, Congress first attempted to protect minors from pornographic materials on the Internet by passing the Communications Decency Act (CDA). The act made it a crime to make available to minors online any "obscene or indecent" message that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The act was immediately challenged in court as an unconstitutional infringement on free speech. In 1997, the Supreme Court held that the act imposed unconstitutional restraints on free speech and was therefore invalid. In the eyes of the Court, the terms indecent and patently offensive covered large amounts of non-pornographic material.
A second attempt to protect children from online obscenity, the Child Online Protection Act (COPA) of 1998, met with a similar fate. Although the COPA was more narrowly tailored than its predecessor, the CDA, it still used "contemporary community standards" to define which material was obscene and harmful to minors. Ultimately, in 2004 the Supreme Court concluded that it was likely that the COPA did violate the right to free speech, and so the Court prevented enforcement of the act.
In 2000, Congress enacted the Children's Internet Protection Act (CIPA), which requires public schools and libraries to install filtering software to prevent children from viewing Web sites with "adult" content. The CIPA was also challenged on constitutional grounds, but in 2003 the Supreme Court held that the act did not violate the First Amendment. The Court concluded that because libraries can disable the filters for any patrons who ask, the system does not burden free speech to an unconstitutional extent.
Unprotected Speech: Slander
Can you say anything you want about someone else? Not really. Individuals are protected from defamation of character, which is defined as wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements about others. Breaching this duty orally is the wrongdoing called slander. Breaching it in writing is the wrongdoing called libel. The government itself does not bring charges of slander or libel. Rather, the defamed person may bring a civil (as opposed to a criminal) suit for damages.
Legally, slander is the public uttering of a false statement that harms the good reputation of another. Public uttering means that the defamatory statement is made to, or within hearing of, a person other than the defamed party. If one person calls another dishonest, manipulative, and incompetent to his or her face when no one else is around, that does not constitute slander. If, however, a third party accidentally overhears defamatory statements, the courts have generally held that this constitutes a public uttering and therefore slander.
Student Speech
In recent years, high school and university students at public institutions have faced a variety of free speech challenges. Court rulings on these issues have varied by the level of school involved. Elementary schools, in particular, have great latitude in determining what kinds of speech are appropriate for their students. High school students have more free speech rights than elementary students, and college students have the most speech rights of all.
Rights of Public School Students. High schools can impose restrictions on speech that would not be allowed in a college setting or in the general society. For example, high school officials may censor publications such as newspapers and yearbooks produced by the school's students. Courts have argued that a school newspaper is an extension of the school's educational mission, and thus subject to control by the school administration.
One of the most striking rulings to illustrate the power of school officials was handed down by the Supreme Court in 2007. An Alaska high school student had displayed a banner reading "Bong Hits 4 Jesus" on private property across from the school as students on the school grounds watched the Winter Olympics torch relay. The school principal crossed the street, seized the banner, and suspended the student from school. The Supreme Court later held that the school had an "important - indeed, perhaps compelling - interest" in combating drug use that allowed it to suppress the banner. The Court's decision was widely criticized.
College Student Activity Fees. Should a college student have to subsidize, through student activity fees, organizations that promote causes that the student finds objectionable? In 2000, this question cam before the Supreme Court in a case brought by several University of Wisconsin students. The students argued that their mandatory student activity fees - which helped to fund liberal causes with which they disagreed, including gay rights - violated their First Amendment rights of free speech, free association, and free exercise of religion.
To the surprise of many, the Supreme Court rejected the students' claim and ruled in favor of the university. The Court stated that "the university may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social and political subjects in their extracurricular life. If the university reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends."
Campus Speech and Behavior Codes. Another free speech issue is the legitimacy of campus speech and behavior codes at some state universities. These codes prohibit so-called hate speech - abusive speech attacking persons on the basis of their ethnicity, race, or other criteria. For example, a University of Michigan code banned "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap," or Vietnam-veteran status. A federal court found that the code violated students' First Amendment rights. Although the courts generally have held, as in the University of Michigan case, that campus speech codes are unconstitutional restrictions on the right to free speech, such codes continue to exist.
Hate Speech on the Internet
Extreme hate speech appears on the Internet, including racist materials and denials of the Holocaust (the murder of millions of Jews by the Nazis during World War II). Can the federal government restrict this type of speech? Should it? Consider that even if Congress succeeded in passing a law prohibiting particular speech on the Internet, an army of "Internet watchers" would be needed to enforce it. Also, what if other countries attempt to impose on U.S. Web sites their laws that restrict speech? This is not a theoretical issue. In 2000, a French court found Yahoo in violation of French laws banning the display of Nazi memorabilia. In 2001, however, a U.S. district court held that this ruling could not be enforced against Yahoo in the United States.
The Right to Assemble and to Petition the Government
The First Amendment prohibits Congress from making any law that abridges "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Inherent in such a right is the ability of private citizens to communicate their ideas on public issues to government officials, as well as to other individuals. The Supreme Court has often put this freedom on par with freedom of speech and freedom of the press. Nonetheless, it has allowed municipalities to require permits for parades, sound trucks, and demonstrations so that public officials can control traffic or prevent demonstrations from turning into riots.
The freedom to demonstrate became a major issue in 1978 when the American Nazi Party sought to march through Skokie, Illinois, a largely Jewish suburb with many Holocaust survivors. The Supreme Court let stand a lower court's ruling that the city of Skokie had violated the Nazi's First Amendment guarantees by denying them a permit to march.
An issue that has surfaced in the past fifteen years is whether communities can prevent gang members from gathering together on the streets without violating their right of assembly or associated rights. For example, in a 1997 case, the California Supreme Court upheld a lower court's order preventing gang members from appearing in public together. In 1999, however, the United States Supreme Court held that a Chicago "anti-loitering" ordinance violated the constitutional right to due process of law because, among other things, it left too much power to the police to determine what constituted "loitering."
FREEDOM OF THE PRESS
Freedom of the press can be regarded as a special instance of freedom of speech. Of course, at the time of the framing of the Constitution, the press meant only newspapers, pamphlets, magazines, and books. As technology has modified the ways in which we disseminate information, the laws touching the freedom of the press have been modified. What can and cannot be printed still occupies an important place in constitutional law, however.
Defamation in Writing
Libel is defamation in writing or in pictures, signs, films, or any other communication. As with slander, libel occurs only if the defamatory statements are observed by a third party. If one person writes a private letter to another wrongfully accusing him or her of embezzling funds, that does not constitute libel.
A 1964 case, New York Times Co. v. Sullivan, explored an important question regarding libelous statements made about public officials. The Supreme Court held that only when a statement against a public official is made with actual malice - that is, with either knowledge of its falsity or a reckless disregard for the truth - can damages be obtained.
The standard set by the Court in the New York Times case has since been applied to public figures generally. Public figures include not only public officials but also any persons, such as movie stars, who are generally in the public limelight. Statements made about public figures usually are related to matters of general public interest. They are made about people who substantially affect all of us. Furthermore, public figures generally have some access to a public medium for answering disparaging falsehoods about themselves, whereas private individuals do not. For these reasons, public figures have a greater burden of proof in defamation cases than do private individuals.
Generally, libel is more difficult to prove in the United States than in many other countries.
A Free Press versus a Fair Trial: Gag Orders
Another major issue relating to freedom of the press concerns media coverage of criminal trials. The Sixth Amendment to the Constitution guarantees the right of criminal suspects to a fair trial. In other words, the accused have rights. The First Amendment guarantees freedom of the press. What if the two rights appear to be in conflict?
Jurors may be influenced by reading news stories about the trial in which they are participating. In the 1970s, judges increasingly issued gag orders, orders that restricted the publication of news about a trial in progress or even a pretrial hearing to protect the accused's right to a fair trial. In a landmark 1976 case, Nebraska Press Association v. Stuart, the Supreme Court unanimously ruled that a Nebraska judge's gag order had violated the First Amendment's guarantee of freedom of the press. Despite the Nebraska Press Association ruling, the Court has upheld gag orders when it believed that publicity was likely to harm the defendant's right to a fair trial.
Films, Radio, and TV
In only a few cases has the Supreme Court upheld prior restraint of published materials. The Court's reluctance to accept prior restraint is less evident with respect to motion pictures. In the first half of the twentieth century, films were routinely submitted to local censorship boards. In 1968, the Supreme Court ruled that a film can be banned only under a law that provides for a prompt hearing at which the film is shown to be obscene. Today, few local censorship boards exist. Instead, the film industry regulates itself primarily through the industry's rating system.
Radio and television broadcasting has the least First Amendment protection. In 1934, the national government established the Federal Communications Commission (FCC) to regulate electromagnetic wave frequencies. This was done to keep stations from interfering with one another's broadcasts - the number of airwave frequencies is limited. No one has a right to use the airwaves without a license granted by the FCC. The FCC grants licenses for limited periods and imposes a variety of regulations on broadcasters. For example, the FCC can impose sanctions on radio or TV stations that broadcast "filthy words," even if the words are not legally obscene.
THE RIGHT TO PRIVACY
No explicit reference is made anywhere in the Constitution to a person's right to privacy. Until the second half of the 1900s, the courts did not take a very positive approach toward the right to privacy. For example, during Prohibition, suspected bootleggers' telephones were tapped routinely, and the information obtained was used as a legal basis for prosecution. In Olmstead v. United States in 1928, the Supreme Court upheld such an invasion of privacy. Justice Louis Brandeis, a champion of personal freedoms, strongly dissented from the majority decision in this case, though. He argued that the framers of the Constitution gave every citizen the right to be left alone. He called such a right "the most comprehensive of rights and the right most valued by civilized men."
In the 1960s, the highest court began to modify the majority view. In 1965, in Griswold v. Connecticut, the Supreme Court overturned a Connecticut law that effectively prohibited the use of contraceptives, holding that the law violated the right to privacy. Justice William O. Douglas formulated a unique way of reading this right into the Bill of Rights. He claimed that the First, Third, Fourth, Fifth, and Ninth Amendments created "penumbras, formed by emanations [shadows, formed by the light] from those guarantees that help give them life and substance," and he went on to describe zones of privacy that are guaranteed by these rights. When reading the Ninth Amendment, we can see the foundation of his reasoning: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage [belittle] others retained by the people." In other words, just because the Constitution, including its amendments, does not specifically talk about the right to privacy does not mean that this right is denied to the people.
Privacy Rights and Abortion
Historically, abortion was not a criminal offense before the "quickening" of the fetus (the first movement of the fetus in the uterus, usually between the sixteenth and eighteenth weeks of pregnancy). During the latter half of the nineteenth century, however, state laws became more severe. By 1973, performing an abortion at any time during pregnancy was a criminal offense in a majority of the states.
Roe v. Wade. In 1973, in Roe v. Wade, the United States Supreme Court accepted the argument that the laws against abortion violated "Jane Roe's" right to privacy under the Constitution. The Court held that during the first trimester (three months) of pregnancy, abortion was an issue solely between a woman and her physician. The state could not limit abortions except to require that they be performed by licensed physicians. During the second trimester, to protect the health of the mother, the state was allowed to specify conditions under which an abortion could be performed. During the final trimester, the state could regulate or even outlaw abortions except when they were necessary to preserve the life or health of the mother.
After the Roe case, the Supreme Court issued decisions in a number of cases defining and redefining the boundaries of state regulation of abortion. During the 1980s, the Court twice struck down laws that required a woman who wished to have an abortion to undergo counseling designed to discourage abortions. In the late 1980s and early 1990s, however, the Court took a more conservative approach. For example, in Webster v. Reproductive Health Services in 1989, the Court upheld a Missouri statute that, among other things, banned the use of public hospitals or other taxpayer-supported facilities for performing abortions. And, in Planned Parenthood v. Casey in 1992, the Court upheld a Pennsylvania law that required preabortion counseling, a waiting period of twenty-four hours, and, for girls under the age of eighteen, parental or judicial permission. As a result, abortions are now more difficult to obtain in some states than others.
Protests at Abortion Clinics. Because of several episodes of violence attending protests at abortion clinics, in 1994 Congress passed the Freedom of Access to Clinic Entrances Act. The act prohibits protesters from blocking entrances to such clinics. In 1997, the Supreme Court upheld the constitutionality of prohibiting protesters from entering a fifteen-foot "buffer zone" around abortion clinics and from giving unwanted counseling to those entering the clinics. In a 2000 decision, the Court upheld a Colorado law requiring demonstrators to stay at least eight feet away from people entering and leaving clinics unless people consented to be approached. The Court concluded that the law's restrictions on speech-related conduct did not violate the free speech rights of abortion protesters.
Partial-Birth Abortion. Another issue in the abortion controversy concerns "partial-birth" abortion. A partial-birth abortion, which physicians call intact dilation and extraction, is a procedure that can be used during the second trimester of pregnancy. Abortion rights advocates claim that in limited circumstances the procedure is the safest way to perform an abortion and that the government should never outlaw specific medical procedures. Opponents argue that the procedure has no medical merit and that it ends the life of a fetus that might be able to live outside the womb.
In 2000, the Supreme Court addressed this issue when it reviewed a Nebraska law banning partial-birth abortions. The Court invalidated the Nebraska law on the grounds that, as written, the law could be used to ban other abortion procedures and contained no provisions for protecting the health of the pregnant woman.
In 2003, legislation similar to the Nebraska statute was passed by the U.S. Congress and signed into law by President George W. Bush. In 2007, the Supreme Court, with several changes in membership since the 2000 ruling, upheld the federal law in a five-to-four vote, effectively reversing its position on partial-birth abortion. Furthermore, said the Court, "government has a legitimate and substantial interest in preserving and promoting fetal life." The Court also noted that there was an alternative (though less safe, according to the act's opponents) abortion procedure that could be used in the second trimester. The Court emphasized that the law allowed partial-birth abortion to be performed when a woman's life was in jeopardy. In her dissent to the majority opinion, Justice Ruth Bader Ginsburg said that the ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court" - that right being a woman's right to choose.
The Controversy Continues. Abortion continues to be a divisive issue. During the early years of the twenty-first century, abortion opponents concentrated on state ballot proposals that could lay the groundwork for an eventual challenge to Roe. They were not very successful, however. In one 2011 example, in Mississippi, a conservative state, voters rejected a measure that would have outlawed all abortions and some forms of birth control. Abortion opponents have been more successful in winning new restrictions passed by state legislatures. New state laws became especially common after the 2010 elections, when Republicans took over many state legislative chambers.
Privacy Rights and the "Right to Die"
A 1976 case involving Karen Ann Quinlan was one of the first publicized "right to die" cases. The parents of Quinlan, a young woman who had been in a coma for nearly a year and who had been kept alive during that time by a respirator, wanted her respirator removed. In 1976, the New Jersey Supreme Court ruled that the right to privacy includes the right of a patient to refuse treatment and that patients unable to speak can exercise that right through a family member or guardian. In 1990, the Supreme Court took up the issue. In Cruzan v. Director, Missouri Department of Health, the Court stated that a patient's life-sustaining treatment can be withdrawn at the request of a family member only if there is "clear and convincing evidence" that the patient did not want such treatment.
What If There Is No Living Will? Since the 1976 Quinlan decision, most states have enacted laws permitting people to designate their wishes concerning life-sustaining procedures in "living wills" or durable health-care powers of attorney. These laws and the Supreme Court's Cruzan decision have resolved the right-to-die controversy for situations in which the patient has drafted a living will. Disputes are still possible if there is no living will.
An example is the case of Terri Schiavo. The husband of the Florida woman who had been in a persistent vegetative state for more than a decade sought to have her feeding tube removed on the basis of oral statements that she would not want her life prolonged in such circumstances. Schiavo's parents fought this move in court but lost on the ground that a spouse, not a parent, is the appropriate legal guardian for a married person. Although the Florida legislature passed a law allowing Governor Jeb Bush to overrule the courts, the state supreme court held that the law violated the state constitution.
In March 2005, the U.S. Congress intervened and passed a law allowing Schiavo's case to be heard in the federal court system. The federal courts, however, essentially agreed with the Florida state courts and refused to order the reconnection of the feeding tube, which had been disconnected a few days earlier. After twice appealing to the United States Supreme Court without success, the parents gave up hope, and Schiavo died shortly thereafter.
Physician-Assisted Suicide. In the 1990s, another issue surfaced: Do privacy rights include the right of terminally ill people to end their lives through physician-assisted suicide? Until 1996, the courts consistently upheld state laws that prohibited this practice. In 1996, after two federal appellate courts ruled that state laws banning assisted suicide were unconstitutional, the issue reached the United States Supreme Court.
In Washington v. Glucksberg, the Court stated that the liberty interest protected by the Constitution does not include a right to commit suicide, with or without assistance. In effect, the Supreme Court left the decision as to whether to permit the practice to the states. Since then, assisted suicide has been allowed in only three states - Montana, Oregon, and Washington. In 2006, the Supreme Court upheld Oregon's physician-assisted suicide law against a challenge from the George W. Bush administration.
CIVIL LIBERTIES VERSUS SECURITY ISSUES
As former Supreme Court justice Thurgood Marshall once said, "Grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure." Not surprisingly, antiterrorist legislation since the attacks on September 11, 2001, has eroded certain basic rights, in particular the Fourth Amendment protections against unreasonable searches and seizures.
Roving Wiretaps
One Fourth Amendment issue involves legislation that allows the government to conduct "roving" wiretaps. Previously, only specific telephone numbers, cell phone numbers, or computers could be tapped. Now a person under suspicion can be monitored electronically no matter what form of electronic communication he or she uses. Such roving wiretaps appear to contravene the Supreme Court's interpretation of the Fourth Amendment, which requires a judicial warrant to describe the place to be searched, not just the person.
One of the goals of the framers was to avoid general searches. Further, once a judge approves an application for a roving wiretap, when, how, and where the monitoring occurs is left to the discretion of law enforcement agents. As an unavoidable result, a third party may have access to the conversations and e-mails of hundreds of people who falsely believe them to be private.
The USA Patriot Act
The most significant piece of antiterrorism legislation, the USA Patriot Act, was originally passed in October 2001. In 2006, when the act was renewed, a heated debate emerged. While many Americans believe that the Patriot Act is a necessary safety measure to prevent future terrorist attacks, others argue that the act endangers long-established civil liberties guaranteed by the Constitution.
Much of the blame for the government's failure to anticipate the 9/11 attacks was assigned to a lack of cooperation among government agencies. A major goal of the Patriot Act was to lift interagency barriers to cooperation, especially between the Federal Bureau of Investigation and the Central Intelligence Agency. The Patriot Act also eased restrictions on the government's authority to investigate and arrest suspected terrorists. Law enforcement officials can secretly search a suspect's home and monitor a suspect's Internet activities, phone conversations, financial records, and book purchases. For the first time in American history, the government can open a suspect's mail.
The Patriot Act also authorized National Security Letters (NSLs), which are subpoenas issued by the FBI itself and which do not require probable cause or judicial oversight. In addition, an individual or financial institution that is served with such a warrant cannot speak about the government's investigation into anyone. Thus, many argue that this provision of the Patriot Act contradicts the First Amendment by making free speech a crime. In addition to First Amendment issues, this provision raises the concern that no one would be allowed to blow the whistle on abuses of the government's powers. As a result of these concerns, a U.S. district court found the NSL provisions of the Patriot Act to be unconstitutional in 2004 and again in 2007. Finally, if the government decides to take a suspected terrorist into custody, the suspect can be summarily denied bail - a breach of the Eighth Amendment.
National Security Agency Surveillance
Shortly after September 11, 2001, President George W. Bush issued an executive order authorizing the National Security Agency (NSA) to conduct secret surveillance without court warrants, even warrants from special security courts. The NSA was to monitor phone calls and other communications between foreign parties and persons within the United States when one of the parties had suspected links to terrorist organizations. News of the secret program came out in December 2005. The program was intensely criticized by civil liberties groups.
In 2007, Congress passed a law to authorize the warrantless NSA wiretaps. The law expired in 2008, however, and its reauthorization was held up by a dispute as to whether telephone companies should receive blanket immunity from lawsuits stemming from their past cooperation with the wiretaps. When it finally passed, the reauthorization protected the telephone companies. The law was supported by, among others, then Illinois senator Barack Obama, who received criticism from fellow Democrats for his vote.
National Security and the Civil Liberties of Immigrants
For many U.S. citizens, immigration - especially unauthorized or illegal immigration - is a national security issue. The terrorist attacks on September 11, 2001, reinforced the belief that the civil liberties of noncitizens should be limited. Among the most obvious characteristics of the terrorists who perpetuated the 9/11 attacks is that they were all foreign citizens. Still, legal immigrants who are not citizens have rights. The Bill of Rights contains no language that limits its protection to citizens. The Fourteenth Amendment specifies that all persons (as opposed to all citizens) shall enjoy "due process of law."
Illegal immigrants are subject to deportation. In 1903, however, the Supreme Court ruled that the government could not deport someone without a hearing that meets constitutional due process standards. Today, most people facing deportation are entitled to a hearing before an immigration judge, to representation by a lawyer, and to the right to see the evidence presented against them. The government must prove that its grounds for deportation are valid.
Limits to the Rights of Deportees: Due Process. Despite the language of the Fourteenth Amendment, the courts have often deferred to government assertions that noncitizens cannot make constitutional claims. The Antiterrorism and Effective Death Penalty Act passed by Congress in 1996 was especially restrictive. The government was given the right to deport noncitizens for alleged terrorism without any court review of the deportation order. Further, the government is now allowed to deport noncitizens based on secret evidence that the deportee is not permitted to see.
Limits to the Rights of Deportees: Freedom of Speech. A case in 1999 involved a group of noncitizens associated with the Popular Front for the Liberation of Palestine (PFLP). The PFLP had carried out terrorist acts in Israel, but there was no evidence of criminal conduct by the group arrested in the United States. In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court ruled that aliens have no First Amendment rights to object to deportation, even if the deportation is based on their political associations. This ruling also covers permanent residents - noncitizens with "green cards" that allow them to live and work in the United States on a long-term basis.
Limits to the Rights of Deportees: Ex Post Facto Laws. Article I, Section 9, of the Constitution prohibits ex post facto laws - laws that inflict punishments for acts that were not illegal when they were committed. This provision may not apply in deportation cases, however. The 1996 law mentioned earlier provided mandatory deportation for noncitizens convicted of an aggravated felony, even if the crime took place before 1996. Under the 1996 law, permanent residents have been deported to nations that they left when they were small children. In some cases, deported persons did not even speak the language of the country to which they were deported.
THE GREAT BALANCING ACT: THE RIGHTS OF THE ACCUSED VERSUS THE RIGHTS OF SOCIETY
The United States has one of the highest murder rates in the industrialized world. It is not surprising, therefore, that many citizens have extremely strong opinions about the rights of those accused of violent crimes. When an accused person, especially one who has confessed to some criminal act, is set free because of an apparent legal "technicality," many people believe that the rights of the accused are being given more weight than the rights of society and of potential or actual victims. Why, then, give criminal suspects rights? The answer is partly to avoid convicting innocent people, but mostly because due process of law and fair treatment benefit everyone who comes in contact with law enforcement or the courts.
The courts and the police must constantly engage in a balancing act of competing rights. The basis of all discussions about the appropriate balance is, of course, the U.S. Bill of Rights. The Fourth, Fifth, Sixth, and Eighth Amendments deal specifically with the rights of criminal defendants.
Rights of the Accused
The basic rights of criminal defendants are outlined below. When appropriate, the specific constitutional provision or amendment on which a right is based is also given.
Limits on the Conduct of Police Officers and Prosecutors.
No unreasonable or unwarranted searches and seizures (Amendment IV).
No arrest except on probable cause (Amendment IV).
No coerced confessions or illegal interrogation (Amendment V).
No entrapment.
On questioning following an arrest, a suspect must be informed of her or his rights.
Defendant's Pretrial Rights.
Writ of habeas corpus (Article I, Section 9).
Prompt arraignment (Amendment VI).
Legal counsel (Amendment VI).
Reasonable bail (Amendment VIII).
To be informed of charges (Amendment VI).
To remain silent (Amendment V).
Trial Rights.
Speedy and public trial before a jury (Amendment VI).
Impartial jury selected from a cross section of the community (Amendment VI).
Trial atmosphere free of prejudice, fear, and outside interference.
No compulsory self-incrimination (Amendment V).
Adequate counsel (Amendment VI).
No cruel and unusual punishment (Amendment VIII).
Appeal of convictions.
No double jeopardy (Amendment V).
Extending the Rights of the Accused
During the 1960s, the Supreme Court, under Chief Justice Earl Warren, significantly expanded the rights of accused persons. In Gideon v. Wainwright, a case decided in 1963, the Court held that if a person is accused of a felony and cannot afford an attorney, an attorney must be made available to the accused person at the government's expense. Although the Sixth Amendment to the Constitution provides for the right to counsel, the Court had previously held that only criminal defendants in capital (death penalty) cases automatically had a right to free legal counsel.
Miranda v. Arizona. In 1966, the Court issued its decision in Miranda v. Arizona. The case involved Ernesto Miranda, who was charged with the kidnapping and rape of a young woman. After questioning, Miranda confessed and was later convicted. Miranda's lawyer appealed his conviction, arguing that the police had never informed Miranda that he had a right to remain silent and a right to be represented by counsel. The Court, in ruling in Miranda's favor, enunciated the now-familiar Miranda rights. Today, Miranda rights statements typically take the following form: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?
Exceptions to the Miranda Rule. As part of a continuing attempt to balance the rights of accused persons against the rights of society, the Supreme Court has made a number of exceptions to the Miranda rule. As one example, in an important 1991 decision, the Court stated that a suspect's conviction will not be automatically overturned if the suspect was coerced into making a confession. If the other evidence admitted at trial is strong enough to justify the conviction without the confession, then the fact that the confession was obtained illegally can effectively be ignored.
The Exclusionary Rule
At least since 1914, judicial policy has prohibited the admission of illegally seized evidence at trials in federal courts. This is the so-called exclusionary rule. Improperly obtained evidence, no matter how telling, cannot be used by prosecutors. This includes evidence obtained by police in violation of a suspect's Miranda rights or of the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures and provides that a judge may issue a search warrant to a police officer only on probable cause (a demonstration of facts that permit a reasonable belief that a crime has been committed). The courts must determine what constitutes an "unreasonable" search and seizure.
The reasoning behind the exclusionary rule is that it forces police officers to gather evidence properly, in which case their due diligence will be rewarded by a conviction. Nevertheless, the exclusionary rule has always had critics who argue that it permits guilty persons to be freed because of innocent procedural errors by the police.
The rule was first extended to state court proceedings in a 1961 United States Supreme Court decision, Mapp v. Ohio. In this case, the Court overturned the conviction of Dollree Mapp for the possession of obscene materials. Police found pornographic books in her apartment after searching it without a search warrant and despite her refusal to let them in. Under the Fourth Amendment, search warrants must describe the persons or things to be seized. In addition, however, officers are entitled to seize items not mentioned in the search warrant if the materials are in "plain view" and reasonably appear to be contraband or evidence of a crime.
During the past several decades, the Supreme Court has diminished the scope of the exclusionary rule by creating exceptions to its applicability. For example, in 1984 the Court held that illegally obtained evidence could be admitted at trial if law enforcement personnel could prove that they would have obtained the evidence legally anyway. In another case decided in the same year, the Court held that a police officer who used a technically incorrect search warrant form to obtain evidence had acted in good faith and therefore the evidence was admissible at trial. The Court thus created the "good faith" exception to the exclusionary rule. In 2009, for example, the Court found that the good faith exception applies when an officer makes an arrest based on an outstanding warrant in another jurisdiction, even if the warrant in question was based on a clerical error.
THE DEATH PENALTY
Capital punishment remains one of the most debated aspects of our criminal justice system. Those in favor of the death penalty maintain that it serves as a deterrent to serious crime and satisfies society's need for justice and fair play. Those opposed to the death penalty do not believe it has any deterrent value and hold that it constitutes a barbaric act in an otherwise civilized society.
Cruel and Unusual Punishment?
The Eighth Amendment prohibits "cruel and unusual punishment." Throughout history, the phrase referred to torture and to execution that prolonged the agony of dying. The Supreme Court has never interpreted "cruel and unusual" as prohibiting all forms of capital punishment in all circumstances. Many people came to believe, however, that the imposition of the death penalty was random and arbitrary, and in 1972 the Supreme Court agreed, in Furman v. Georgia.
The Supreme Court's 1972 decision stated that the death penalty, as then applied, violated the Eighth and Fourteenth Amendments. The Court ruled that capital punishment is not necessarily cruel and unusual if the criminal has killed or attempted to kill someone. In its opinion, the Court invited the states to enact more precise laws so that the death penalty would be applied more consistently. By 1976, twenty-five states had adopted a two-stage, or bifurcated, procedure for capital cases. In the first stage, a jury determines the guilt or innocence of the defendant for a crime that has been determined by statute to be punishable by death. If the defendant is found guilty, the jury reconvenes in the second stage and considers all relevant evidence to decide whether the death sentence is, in fact, warranted.
In 1976, in Gregg v. Georgia, the Supreme Court ruled in favor of Georgia's bifurcated process, holding that the state's legislative guidelines had removed the ability of a jury to "wantonly and freakishly impose the death penalty." The Court upheld similar procedures in Texas and Florida, establishing a "road map" for all states to follow that would assure them protection from lawsuits based on Eighth Amendment grounds.
The Death Penalty Today
Today, thirty-four states and the federal government have capital punishment laws based on the guidelines established by the Gregg case. State governments are responsible for almost all executions in this country. At this time, there are about 3,220 prisoners on death row across the nation.
The number of executions per year reached a high in 1998 at ninety-eight and then began to fall. Some believe that the declining number of executions reflects the waning support among Americans for the imposition of the death penalty. In 1994, polls indicated that 80 percent of Americans supported the death penalty in cases involving murder. Recent polls, however, suggest that this number has dropped to about 60 percent.
The decline in the number of executions may be due in part to the Supreme Court's 2002 ruling in Ring v. Arizona. The Court held that only juries, not judges, could impose the death penalty, thus invalidating the laws of five states that allowed judges to make this decision. The ruling meant that the death sentences of 168 death row inmates would have to be reconsidered by the relevant courts. The sentences of many of these inmates have been commuted to life in prison.
Time Limits for Death Row Appeals
In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. The law limits access to the federal courts for defendants convicted in state courts. It also imposes a severe time limit on death row appeals. Many are concerned that the shortened appeals process increases the possibility that innocent persons may be put to death. Recently, DNA testing has shown that some innocent people may have been convicted unjustly of murder. Since 1973, more than one hundred prisoners have been freed from death row after new evidence suggested that they were convicted wrongfully. On average, it takes about seven years to exonerate someone on death row. Currently, however, the time between conviction and execution has been shortened from an average of ten to twelve years to an average of six to eight years.
Methods of Execution
The most recent controversy concerning the death penalty is whether execution by injecting the condemned prisoner with lethal drugs is a cruel and unusual punishment. Lethal injection is currently used in almost all executions. Evidence exists that when performed incompetently, death by lethal injection can be extremely painful. Some death penalty opponents have claimed that the procedure is painful in so many instances that it constitutes cruel and unusual punishment. The United States Supreme Court took up this matter in a Kentucky case in 2007. In 2008, it ruled by a seven-to-two margin that Kentucky's method of execution by lethal injection was constitutional.
DID YOU KNOW?
~In 1657, more than a century before the First Amendment, thirty Dutch citizens on Long Island in what was then a Netherlands colony signed the Flushing Remonstrance, a document that called for religious tolerance.
~On the eve of the American Revolution, fewer than 20 percent of American adults adhered to a church in any significant way, compared with the 55 percent that do so today.
~In eighteenth-century England, pocket picking and similar crimes were punishable by the death penalty.