Rights at Risk: The Limits of Liberty in Modern America (Vintage)
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One moral of the story might suggest banning guns rather than speech. But some colleges have done both since shootings at Virginia Tech and Northern Illinois University. Two Texas community colleges earned Muzzle awards for suppressing pro-gun speech in 2009. Tarrant County College barred students from wearing empty holsters to protest the prohibition against licensed, concealed handguns on campus, part of a nationwide demonstration. Lone Star College prevented the Young Conservatives from distributing a satirical leaflet listing “gun safety tips,” which included this one: “If your gun misfires, never look down the barrel to inspect it.”98
BEYOND THE GATE
The “schoolhouse gate” has become a permeable dividing line. While it doesn’t seal off the school from the First Amendment, it does mark a setting in which authorities may limit some speech under some conditions, leaving students inside more susceptible to censorship than when they are outside in the world at large. In a digital universe, though, the boundary is easily transcended as students use home computers to circulate threatening, vulgar, bullying comments by Internet. The geographical origin of speech has less practical meaning than before, freeing students from school restrictions on the one hand, and on the other, leading some administrators to reach outside and punish expression beyond the schoolhouse gate.
Most officials who try it have been slapped down by the courts, but not always, and this area of the law is far from settled. It remains in flux because of real dangers. Eric Harris, one of the Columbine shooters, maintained a Web site describing his murderous desires and the explosives he and Dylan Klebold had assembled. Some students turn violent after being ridiculed, sometimes by way of the Internet. The suicides in Vermont and Missouri of two thirteen-year-olds, who had been tormented online, have provoked at least fourteen states to enact laws requiring school systems to report or punish “cyber-bullying.”99
Even in the absence of danger, schools have acted against children for remarks on the Web, but without clear legal authority to do so. A Connecticut high school student was denied the right to run for senior class secretary in 2007 because, on a Web page, she called her principal and superintendent “douchebags” and urged students to “piss” them off by e-mailing complaints about the cancellation of an annual music concert. She lost both in the district court and before a unanimous panel of the Second Circuit Court of Appeals that included Sonia Sotomayor, the year before she was elevated to the Supreme Court.100
The long reach of censorship has cost some boards of education in settlements. A school district in Ohio had to pay $30,000 after suspending a sixteen-year-old for nasty comments online about a band instructor. In Newport, Washington, Paul Kim won $2,000 and an apology after his principal retaliated against his Web parody of the school by withdrawing his nomination for a Merit Scholarship and by sending vindictive notifications to colleges where Kim had applied. (The young man survived nicely, ending up at Columbia University with plans for law school.)101
Prior to the Internet, and even in the early days before its widespread use, courts tended to exempt off-campus speech from regulation. “The arm of authority does not reach beyond the schoolhouse gate,” said the Second Circuit Court of Appeals in 1979, overturning administrators’ efforts to close an off-campus student newspaper.102 Similarly, a federal district judge in Maine decided in 1986 that a student could not constitutionally be suspended for giving a teacher the finger at a restaurant.103 A federal judge in Washington state ruled against a principal who suspended a high school junior for posting vulgar criticisms of the school on his personal Web page in 1998.104 In 2000, another federal judge in Washington labeled Internet speech “entirely outside of the school’s supervision or control” after a high school student was expelled for a Web site containing mock obituaries where visitors could vote on which person should be “next to die.” The judge found no intention to threaten anyone.105
All those cases freed students to enjoy the same First Amendment rights as adults off school grounds, including in cyberspace. Yet this is changing as courts and school officials recognize that digital expression respects no geographical boundaries. What is written at home is instantly available at school, rendering the barriers artificial. That’s how the Pennsylvania Supreme Court treated a 2002 case, unanimously upholding a Bethlehem school’s expulsion of Justin Swidler for posting insulting remarks about the principal and a teacher, whom he likened to Hitler and ridiculed for her appearance. “Give me $20 to help pay for the hitman,” the Web site said.
The court went through a two-step analysis, first determining that the threat was not serious but rather “a sophomoric, crude, highly offensive and perhaps misguided attempt to humor or parody.” Second, the judges found that while the Web site was created outside school, the speech itself occurred on campus “because the student accessed the site at school, showed it to a fellow student, and informed other students of the site.”106
By that reasoning, the more restrictive rules on speech in school will carry over into the larger world, at least when students address school issues online. “Most courts that have examined off-campus online speech have applied the so-called Tinker standard,” according to David L. Hudson Jr., a First Amendment specialist. That analysis allows officials to punish if the postings would substantially disrupt school activities or infringe on the rights of others, just as if the expression occurred on school grounds. Furthermore, as courts narrow Tinker, more and more student speech is silenced, outside as well as inside.
This may seem like a harbinger of doom for the First Amendment, especially given the role of schools in educating young Americans in constitutional democracy. What it forecasts more clearly, though, is that free speech will be preserved only by the alertness of good citizens—young citizens, in this case—willing to sound the alarm at every encroachment. Their readiness to push back is the essential ingredient of the country’s resilience, its capacity for self-correction.
EPILOGUE
The Constitutional Culture
The chart is not the sea.
—Philip Booth
THE AMERICAN SYSTEM relies on a paradox. On the one hand, the Constitution restrains the whim of the official, who is supposedly shackled by the intricate web of judicial precedent enforcing the checks, the balances, and the bold restrictions on government’s incursions into the people’s rights. If the rule of law holds, freedom does not depend on the goodwill of those in power.
On the other hand, freedom depends on the Constitution’s resonance among the citizens. The affection for liberty, animated by the written words, reaches beyond their original intent or dictionary meanings. “Liberty lies in the hearts of men and women,” said Judge Learned Hand. “When it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”1
We have seen in these pages what happens when individual Americans, in high places and low, forget or abandon the elemental values enshrined in the Bill of Rights. Using legally approved tricks and lies, the detective coerces a false confession. Hiding facts that support innocence, the prosecutor forces a dubious plea of guilt. The judge sentences for acquitted conduct, as she is allowed to do. The defense attorney for the poor, overworked because of underfunding by the state, fails to summon sufficient resources to investigate and rebut. The legal immigrant is deported with no meaningful access to constitutional rights. These intrusions are woven into the statutes and enabled by the courts.
At the same time, the courts’ loftier judgments protecting individual liberties sometimes slip away before reaching the everyday world of ordinary America. When a black pedestrian is stopped and frisked without reasonable suspicion, when a schoolgirl is searched invasively without probable cause, when a protester is charged for inverting a flag, when a student is suspended for his T-shirt’s political slogan, it is clear that two unhealthy conditions have developed. One, the Supreme Court’s rulings have not fully penetrated the culture, because
they are being ignored by officials who should know better. And two, the culture has not thoroughly internalized the essence of rights that are central to the American enterprise.
Attorneys educated in the nation’s finest law schools have stood ready since September 11, 2001, to rationalize torture, justify indefinite imprisonment without trial, and sanction warrantless eavesdropping on multitudes of citizens and foreigners inside the United States. Elected legislators across the country have scrambled to suppress hateful expression outside soldiers’ funerals, despite long-standing prohibitions against regulating speech on the basis of its content alone. Local police have tried to enforce state laws banning flag “desecration,” notwithstanding a body of judicial rulings striking down such statutes as unconstitutional. And on it goes: an unending dance between the violators and the violated, with a passive public watching, largely in silence.
Most people have an internal voice that whispers “wrong” when they do something immoral. They know instinctively that they must not cheat or steal or murder. Nobody has to spell it out for them again and again. Yet too few Americans seem to hear an internal voice speaking to them on civil liberties. Only a tiny fraction commit crimes, but many more countenance violations of the First, Fourth, Fifth, and Sixth Amendments, especially when the rights of “others” are trampled for the sake of national security, safe streets, order, and harmony. Occasionally, a feisty indignation is revived, as when privacy is shredded by a computer service such as Facebook, whose users rose up in 2010 after discovering that their personal information had been opened to general access.2 But in schools, for example, most young citizens acquiesce as their principals and teachers suppress their First and Fourth Amendment rights. Few object to their loss of privacy or free speech. Most go along with unwarranted searches, the censorship of school newspapers, and the prohibition of controversial slogans on pins or clothing. Those who bravely resist by speaking out or filing suit are routinely vilified by many of their peers, who seem to live in a constitutional culture that has withered.
Not that a consensus ever forms on how far liberties extend and where limits can be drawn. If it did, the Supreme Court would always rule unanimously. As we have witnessed, the Bill of Rights is principled but not dogmatic, and the liberties it protects lie within a shifting horizon whose distance is always subject to debate, legislation, and jurisprudence. Not all speech is “protected” speech. Not all searches are “unreasonable.” Indeed, our rights are both permanent and malleable. They transcend the moment yet yield to times of stress and danger. They are shaped by both long-standing tradition and temporary expediency. If one subscribes to natural law, as many of the framers did, then liberties exist not as creations of humankind but as transcendent features of the natural landscape—divinely given, some would say. Yet even in America, where rights are codified and shielded ingeniously, they have been anything but constant.
In practice, legal rights are expanded as the society gradually comes to recognize how vulnerable to the majority’s will minorities can be, and how much protection the powerless require. Yet civil liberties are also constrained by politics, war, crime, and economic hardship, as demonstrated by Arizona’s 2010 law commanding local police to stop, question, and investigate people they think might be illegal immigrants. It is evident that the fears of drug wars spilling across the Mexican border, and of a recession pitting Americans against foreigners for scarce jobs, have been enough to damage the Fourth Amendment right to be “secure” from unreasonable search and seizure.
Even as constitutional provisions are reinterpreted and adapted to evolving circumstances, citizens are entitled to count on one another to agree on a core set of rights that are indispensable to a free and pluralistic society. There is cause for worry on this point. Some provisions in the Bill of Rights do not poll well enough to guarantee that they could be easily ratified today.
Surveys show an American public full of contradictions. In the aftermath of 9/11, most said they were willing to give up civil liberties for security but also opposed stealthy, “sneak and peek” government searches of their offices as authorized by the Patriot Act, according to polls done for the American Civil Liberties Union. Respondents expressed more support for First Amendment rights than for criminal rights, probably because they couldn’t picture themselves in the dock as clearly as they saw themselves practicing freedom of speech and religion.3
A 2003 survey of voters in Florida, Pennsylvania, Ohio, and New Mexico found significant minorities—31 to 46 percent—endorsing measures in the Patriot Act that authorize secret court orders for librarians to identify borrowers of books on certain topics; permit the government to require Internet providers to name users visiting certain Web sites; and allow law enforcement to collect average Americans’ travel, credit, and medical records. About one-third thought it “appropriate” for “government to detain non-citizens secretly without charging them with a crime, giving them a hearing, or informing a judge.” Nearly half were comfortable with FBI agents keeping lists of people’s attendance at religious services. Much lower numbers—only 17 percent in New Mexico to 23 percent in Florida—thought it appropriate to ease law enforcement’s ability “to get a court order to secretly search someone’s home and not notify them that their home had been searched.” That is a key provision of the Patriot Act, but the large majorities who said it “goes too far” ranged from 74 percent in Florida to 82 percent in New Mexico.4
So this coin has two sides: despite the strong minorities favoring most of the intrusive mechanisms, the majorities who object to the most salient powers of the Patriot Act are rejecting a law that received overwhelming approval in both houses of Congress. Perhaps ordinary Americans are more devoted to civil liberties than their elected legislators seem to be. Yet politicians don’t suffer at the ballot box after they vote to curtail rights. Almost never does the subject of civil liberties become a campaign issue. Reporters don’t put the question to candidates, citizens rarely raise it at town hall meetings, and rivals usually take cover toward the right of the spectrum if the topic happens to arise. They don’t want to be labeled “soft on terrorism,” as in earlier periods they avoided being called “soft on crime.”
In other words, much of the public feels concern but doesn’t do anything about it. Except for a small elite of dedicated civil liberties advocates, the population has learned a certain helplessness. Because legislatures tend to lean with the prevailing winds, many crucial decisions are made remotely in the courts, often by judges immune to popular passions, as they should be. The interaction between politics and judicial nominations, acted out by a polarized Senate, proceeds on a superficial plane of litmus tests and ideological screening, not on the firm ground of fidelity to the constitutional heritage. The place of responsible legislating in the realm of rights has been taken by the posturing at confirmation hearings, leaving in its wake a brand of lazy lawmaking. The intricate task of protecting rights while facilitating law enforcement then passes to the courts, yielding to judges the challenge of making the brave decisions shunned by the elected representatives. This is not a new pattern: Brown v. Board of Education ending school segregation would not have been necessary had legislatures repealed the discriminatory laws. So the constitutional culture comes to depend excessively on the courts, and the courts are not dependable.
Furthermore, opinions in the street are honeycombed by intriguing crosscurrents that defeat most attempts at sweeping generalizations. A 2004 survey by Cornell students, for example, found that very religious Christians were much more willing than the less religious to curtail civil liberties, especially the rights of Muslim Americans. Seventy-nine percent of those of “high religiosity” endorsed the indefinite detention of terrorists, 61 percent supported government monitoring of the Internet, and 42 percent said that all Muslim Americans should be required to register their whereabouts. The percentages of the “low religiosity” respondents approving the tough measures were 50, 35, and 15, respectively.5
People were invited to name the Revolution’s central principles, then were asked, “Is it essential that Americans have [a certain right], important but not essential, or not that important?” Most of those surveyed considered the key rights essential, while substantial minorities of 15 to 38 percent thought otherwise:
RIGHT ESSENTIAL IMPORTANT, BUT
NOT ESSENTIAL NOT
IMPORTANT
To not have property searched or seized 59 32 6
To privacy 76 22 2
To speak freely about whatever you want 70 28 2
To assemble, march, protest, or petition the government 65 29 6
To a fair trial 84 14 1
To practice your chosen religion 80 18 2
To practice no religion 66 23 10
College graduates were more likely than those with lower degrees to support these rights as essential, and so were more Republicans than Democrats, despite conservatives’ inclination to favor strict anticrime and antiterrorism policies. Republicans outpolled Democrats by 87 to 81 percent on the right to a fair trial, 71 to 63 percent on the right to speak freely, 69 to 59 percent on the right to march and protest, and by wide margins on the religion questions. Republicans and Democrats came within a percentage point of each other on the search issue, and were tied at 75 percent in their endorsement of the right to privacy as essential.6 Libertarians among Republicans probably increased the percentages.