The Encyclopedia of Civil Liberties in America

David Schultz, John R. Vile

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317457121
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

Driven by the growing reality of international terrorism, the threats to civil liberties and individual rights in America are greater today than at any time since the McCarthy era in the 1950s. At this critical time when individual freedoms are being weighed against the need for increased security, this exhaustive three-volume set provides the most detailed coverage of contemporary and historical issues relating to basic rights covered in the United States Constitution. The Encyclopedia of Civil Liberties in America examines the history and hotly contested debates surrounding the concept and practice of civil liberties. It provides detailed history of court cases, events, Constitutional amendments and rights, personalities, and themes that have had an impact on our freedoms in America. The Encyclopedia appraises the state of civil liberties in America today, and examines growing concerns over the limiting of personal freedoms for the common good. Complete with selected relevant documents and a chronology of civil liberties developments, and arranged in A-Z format with multiple indexes for quick reference, The Encyclopedia of Civil Liberties in America includes in-depth coverage of: freedom of speech, religion, press, and assembly, as outlined in the first amendment; protection against unreasonable search and seizure, as outlined in the fourth amendment; criminal due process rights, as outlined in the fifth, sixth, seventh, and eighth amendments; property rights, economic liberties, and other rights found within the text of the United States Constitution; Supreme Court justices, presidents, and other personalities, focusing specifically on their contributions to or effect on civil liberties; concepts, themes, and events related to civil liberties, both practical and theoretical; court cases and their impact on civil liberties.

A

ABA

See American Bar Association

Abington School District v. Schempp (1963)

Abington School District v. Schempp, 374 U.S. 203 (1963), represented the U.S. Supreme Court’s attempt to clarify its past First Amendment rulings dealing with religion and to establish guidelines as to permissible and impermissible practices in the public schools. Although not the first major case dealing with Establishment Clause doctrine, Abington also sought to resolve the tension between the two constitutional components of religious freedom contained in the First Amendment, which mandates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (thus termed the Establishment Clause and the Free Exercise Clause). This prohibition extends to state legislatures through incorporation into the Due Process Clause of the Fourteenth Amendment. In Abington, the justices struggled with the claim that an absolute insistence on government “neutrality” toward religion might, in fact, promote what Justice Arthur J. Goldberg termed a “brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” In short, a too rigorous application of the Establishment Clause might well result in a violation of the Free Exercise Clause.

In Abington, the Court assessed the constitutionality of Pennsylvania and Maryland statutes requiring public schools to engage in a Bible reading and the recitation of the Lord’s Prayer at the beginning of each day. The Edward Lewis Schempp family, Unitarians in Pennsylvania, and Madalyn Murray, an atheist whose son (then also an atheist) attended public school in Baltimore, challenged the statutes. The Court heard the cases together because the two statutes were nearly identical in their requirements and impact. In the Pennsylvania case, the lower courts struck down the statute, holding that the morning exercises impermissibly promoted religion. In the Maryland case, the lower courts held that the exercises did not violate the Establishment Clause and were permissible. The Supreme Court’s task was to resolve the contradiction among the lower federal courts and to provide guidance to them in interpreting the Establishment Clause.

Justice Tom C. Clark, who wrote the Court’s opinion, reviewed prior rulings related to the Establishment Clause and suggested a test: The Court should inquire as to the purpose of the statute and to its primary effect. If either the statute’s purpose or effect advanced or inhibited religion, then the statute violated the Establishment Clause. This test was the precursor to the three-pronged test that later would be developed in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Both states claimed that the statutes advanced the secular (versus religious) purpose of promoting moral values. Furthermore, the exercises were strictly voluntary—parents could excuse their children from the exercises by submitting a written request. Because the exercises were voluntary, the states contended, they could not be said to promote religion. Justice Clark, along with all of his fellow justices except Justice Potter Stewart, was unconvinced by the states’ claim. The use of the Holy Bible (with the King James version preferred), combined with the recitation of the Lord’s Prayer, gave a specifically Christian, even Protestant, cast to the exercises. The states’ purpose in promoting moral values could be accomplished without incorporating Christian theology and prayers. Justice William O. Douglas, in a concurring opinion, identified a second Establishment Clause violation: The statutes required the schools to use their facilities and funds to support the exercises, thus devoting resources to activities with religious content. Douglas considered this violation as serious as the one emphasized by the majority. The opinion by Justice Clark and the concurrences by Justices Douglas, Goldberg, and William J. Brennan Jr. all recognized the tension between limiting the state’s ability to encourage religion and yet allowing individuals who wished to participate an opportunity to exercise their beliefs at the beginning of the day. However, eight of the nine justices agreed that the statutes in question involved the state so directly in sectarian activities so as effectively to represent an “establishment” of religion.

Justice Stewart was the sole dissenter in the case. He expressed discomfort with the newly articulated test of “purpose and primary effect,” arguing that mechanistic definitions would be insensitive to the vital role religion plays in the lives of many Americans. He was not willing to declare the statutes in question constitutional but rather wanted the cases remanded to the lower courts so that further evidence could be taken. Stewart’s primary concern was that the Court’s ruling, by forbidding religious exercises in the public schools, might place religion at a disadvantage. To prohibit religious practice would also violate the Constitution by restricting the “free exercise thereof.”

Abington v. Schempp provided a much-needed clarification of Establishment Clause doctrine. Although all but one justice concurred with the result, the number of separate opinions filed served as evidence of the conflict among the justices over the proper relationship between the state and religious practice.

Sara Zeigler

See also: Establishment Clause; First Amendment; Free Exercise Clause; Incorporation Doctrine; Lemonv. Kurtzman; Separation of Church and State.

Further Reading

Alley, Robert S. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books, 1999.

Fraser, James. Between Church and State. New York: Palgrave-Macmillan, 2000.

Nord, Warren A. Religion and American Education: Rethinking a National Dilemma. Chapel Hill: University of North Carolina Press, 1995.

Abood v. Detroit Board of Education (1977)

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the U.S. Supreme Court considered whether the Detroit Board of Education could require teachers to pay a union fee as a condition of employment. The Court held that the mandatory fee was constitutional to the extent it funded union activities relating to collective bargaining, but that the fee system violated the teachers’ First and Fourteenth Amendment rights to freedom of expression and association to the extent it forced nonunion teachers to fund the union’s political and ideological activities.

At issue in Abood was an “agency shop” clause contained in the 1971 collective bargaining agreement between the Detroit Board of Education and the Detroit Federation of Teachers, the union that represented teachers employed by Detroit. The agency-shop clause required teachers either to join the union and pay union dues, or if the teachers did not become union members, to pay the union a service charge equal to the normal union dues. Several teachers sued the board of education and the union in state court, claiming that requiring them to pay the union a service fee violated their First and Fourteenth Amendment rights to freedom of expression and association. The state trial and appellate courts held that the agency-shop clause was not per se unconstitutional. The plaintiffs appealed to the U.S. Supreme Court.

The Court in Abood initially recognized that “[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” However, relying on precedent, the Court concluded that the government’s strong interest in supporting labor relations permitted some interference with the teachers’ freedom of association caused by the agency-shop agreement; thus, the board could force teachers to pay a fee for union expenses related to collective bargaining, contract administration, and the handling of grievances. However, the Court concluded that the union’s use of fees to pay for political or ideological speech or activities unrelated to union representation violated the teachers’ First and Fourteenth Amendment rights to freedom of expression and association. The plaintiffs were entitled to an appropriate remedy, the Court concluded, such as a refund of the portion of fees used for political expenditures and a reduction in the future fees charged, based on the amount of funds the union used for political and ideological activities.

Abood made clear that forcing nonunion members to fund a union’s ideological and political activities violates the dissenting employees’ rights to freedom of expression and association. Still, in cases since Abood, the courts have struggled to draw the line between those impermissible activities and other activities legitimately related to collective bargaining and contract negotiations.

Margot O’Brien

See also: First Amendment; Fourteenth Amendment; Labor Union Rights.

Further Reading

Adams, Bradley. “Union Dues and Politics: Workers Speak out Against Unions Speaking for Them.” Journal of Law and Public Policy 10 (Fall 1998): 10.

Nowak, John E., and Ronald D. Rotunda. Treatise on Constitutional Law: Substance and Procedure, secs. 20.11, 20.41. St. Paul, MN: West Group, 1999.

———. Hornbook Series. Constitutional Law, secs. 16.11 n. 12; 16.31 n. 73; 16.41. St. Paul, MN: West Group, 2000.

Abortion

See Birth Control and Contraception; Roe v. Wade

Abrams v. United States (1919)

Abrams v. United States, 250 U.S. 616 (1919), is one of a number of cases in which the U.S. Supreme Court upheld the conviction of individuals who criticized the U.S. government and its policies during World War I against challenges that these convictions violated the freedom of speech and press protected by the First Amendment to the Constitution. Jacob Abrams and fellow defendants were anarchists and/or socialists who had immigrated to the United States from Russia. After printing and distributing materials that were especially critical of U.S. military intervention in Russia, they were convicted in a U.S. district court of violating an amended provision of the Espionage Act of 1917 that punished conspiracy to print abusive language about the form of the U.S. government, to bring it into scorn or contempt, or to interfere with its recruiting service.

Justice John H. Clarke wrote the seven–two opinion upholding the convictions. He relied on Schenckv. United States, 249 U.S. 47 (1919), and other Court rulings holding that Congress could suppress speech that presented a “clear and present danger.” Such threats were especially likely to be posed during times of war.

The dissenting opinion by Oliver Wendell Holmes Jr. has received far more attention. Although Holmes authored the Schenck decision, he dissented from Abrams, indicating a shift to an even more libertarian approach to the subject. He did not believe Abrams and other defendants had specifically targeted the government of the United States or its recruiting services, but more important, he did not think the defendants’ criticisms had posed an “imminent danger” to the nation. Fearing that the defendants were being prosecuted for holding to a “creed of ignorance and immaturity” rather than for specific actions, Justice Holmes argued that “fighting faiths” should be protected. In his view, the best way to ensure progress was through “free trade in ideas,” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Holmes portrayed democracy, like life, as an “experiment” and contended that the First Amendment prohibited prosecutions, permitted in England at the time of the American founding, for seditious libel. Justice LouisD. Brandeis joined Justice Holmes’s dissent.

Holmes’s more liberal view of speech was reflected in the Supreme Court’s later opinion in Brandenburgv. Ohio, 395 U.S. 444 (1969): In overturning a conviction for a speech calling for “revengence” [sic] delivered at a Ku Klux Klan rally, the Court declared that Clarence Brandenburg’s speech did not pose the threat of “imminent lawless action.”

John R. Vile

See also: Brandenburg v. Ohio; Clear and Present Danger; Espionage Act of 1917; First Amendment; Holmes, Oliver Wendell, Jr.; Schenck v. United States.

Further Reading

Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking, 1987.

Academic Freedom

Academic freedom is commonly perceived as the right of college and university professors to teach and to engage in research and publication without undue restrictions placed on these activities. Yet academic freedom is more far-reaching: It protects not only professors but also teachers in elementary and secondary schools and students at all educational levels, in both public and private educational settings. The modern concept of academic freedom derives from the principles of Lehrfreiheit (freedom to teach) and Lernfreiheit (freedom to learn), which were formulated and practiced by the University of Berlin in the early nineteenth century. According to the German philosopher Johann Gottlieb Fichte, a university can achieve its intellectual goals only if it is free from outside pressures. Nevertheless, academic freedom has been threatened by social constraints, advances in scientific knowledge, government regulation, and religious, social, and political movements.

In the United States, academic freedom is associated with the First Amendment’s protection of freedom of expression. Although the amendment does not protect academic freedom per se, it protects the expression of ideas within public colleges and universities from government regulation. Some courts have recognized a relationship between academic freedom and First Amendment rights, but the U.S. Supreme Court did not associate the two until relatively recently, and it has yet to define the scope of those rights. In the 1950s and 1960s, academic-freedom cases involved protecting faculty and educational institutions from external pressures, such as might be involved in overly intrusive governmental investigations. Since the 1970s, court cases have focused mainly on the conflict between the academic-freedom rights of faculty versus institutional freedom.

The roots of academic freedom can be traced to ancient Greece, when Socrates defended himself against charges of corru...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Topic Finder
• Contributors
• Preface
• Introduction
• Volume 1
• Volume 2
• Volume 3
• Documents
• Chronology
• Bibliography
• General Index
• Court Case Index