Political Science 102 Monday 10-16-00: Civil Liberties #2
Okay, letís see, so, where did we leave off on civil liberties? We touched on interpretationĖdid we go into all four interpretations at all?
>>No, into number 3.
And the interfaces are due Wednesday; am I correct? Dangerous Tendency Interpretation is the one I left off on? I did Clear and Present Danger and Absolute?
>>We didnít get that far.
I talked about the NRA, The American Civil Liberties Union with the absolute interpretation that civil liberties cannot be qualified just with the NRA? I did talk about the NRA in here, The National Rifle Association, and how the second amendment has not been..
>>You said that we donít, in the 2nd Amendment, the right to have a gun.
All right, I vaguely remember that.
Legally, the point was that I made the point legally, by the Court ruling. That doesnít mean that the NRA is wrong but that the interpretation by the Courts has been until this judge last year in Texas ruled a little differently that we the people donít have a right to bear arms unless we are a member of the state militia raises the question, what the hell is a state militia? Are there separate state militias? But thatís a different story.
And the American Civil Liberties Union is an organization that defends the Bill of Rights and their interpretation, but because theyíre defending our Bill of Rights absolutely takes on cases of all kinds of controversy--nuts, weirdoes, kooks, idiots--but they say theyíre not taking on the Nazis and the Communists. Their real client is the Bill of Rights, but because they take on these strange cases they have been seen as a criminal lobby or theyíre hated.
Skokie, I discussed in my book where they supported the Nazis right to assemble in a Jewish community and won it in the state of Illinois, losing half of their membership over the issue and whether this was a civil liberties demonstration. They argued-- and I guess I didnít discuss the Hecklerís Veto in class--they argued the Hecklerís Veto, which I agree with, that simply because somebody shouts or yells that theyíll become violent, you donít remove the speaker, you remove the heckler.
A heckler is an individual in the audience that what? Is a wise ass, yells things out, knee jerker, and comedians get them all of the time. I like them. I think theyíre fun because generally I can turn the tabs on them and do my sit down comic routine.
However, and good comedians, love hecklers too, but when they interfere with the presentation that the person canít finish, or present themselves at that point, you donít remove the speaker, but the heckler. Theyíre not allowed to be there. They should not be allowed to stop it, and that I grant.
But the ACLU was arguing that just because certain Jewish organizations, like the Jewish Defense League, said that if the Nazis were allowed to march in uniform in a Jewish community like Skokie that they will would become violent and shoot at the Nazis. You donít stop the Nazis from marching, but you remove the Jewish Defense League because anyone has a right to freely protest except in situations where, in my mind, youíre spitting in somebodyís face. The old story, your right of free speech stops where the personís nose begins, and even if I have a big nose... The point is, why else were they marching if not to create problems? They could have marched in Chicago or anywhere else. Why did they pick a community that was 40 percent Jewish and why celebrate Hitlerís birthday?
Did this serve any purpose but incitement and publicity, and yet, the ACLU took it on and asked the court not to issue a prior restraint which the lower court had done.
The lower court issued a prior restraint claiming it was a clear and present danger. A prior restraint is stopping the civil liberties before it occurs prior to its occurrence.
The higher courts are less likely to issue a prior restraint, and very unlikely unless you prove generally beyond a reasonable doubt that violence will occur, or that a dangerous serious evil WILL occur.
But in Skokie, the court ruled, not the Supreme Court, but the state court, that the Nazis had a right to assemble and march.
So the ACLU won itís case and as I say, I was glad they were there to defend the Nazis. I said that before. You got to have organizations to stand up for us weirdoes, kooks, and nuts, because if there are no organizations of that nature, we go bye-bye and you become the weirdoes, kooks, and nuts and you go bye-bye. However, as I say, Iím sorry they won.
The ACLU takes on some very strange positions sometimes. Yet Iím glad that they exist. I support them but I donít, for example, they have taken to court and they are supporting the right of people to own child pornography. I have problems with that. I understand that their arguing your right to own pornography is one thing where you can at least argue it is between consenting adults but the fact is when you deal with child pornography, children have to be abused and once youíre abusing children, Iím sorry, that is no longer a freedom for someone. But we have a problem now. One court has ruled on, but itís still probably going to reach the Supreme CourtĖa lot of child pornography today is being made with adults?
You know how? Computers.
Adults are engaging in the various sex acts and then digitizing it to make it look like children so it is not abusing children. So therefore should you have a right to own pornography that has been childized?. I have mixed feelings on that. I have to analyze that one out. It runs into a problem that I confront in most cases and that is the whole issue of censorship. I hate censorship as many of you do, but youíre young, Iím old. But I do think there are certain times that there is a need for responsibility because I think when you advertise and push and allow certain things to exist, I donít mean government censorship, I mean personal responsibility, that you reduce the defense mechanisms that people who are borderline. When you play with peopleís basic or base emotion, where most people can block, letís call it, perversion or evil or whatever term you want to use, there are a few that can block but if they see something, they begin to think it is legitimate and it breaks down resistance. Translation, we all have weird imaginations at times and strange dreams, but weíre healthy. The healthy person pushes it aside or gets annoyed at themselves, how to kill our mother or marry our sister, you know, have sex with the priest, whatever your perversion is in your dreams, you wonít act on your fantasy but push it aside. But if it becomes legitimate in the magazine and they promote it then a certain percentage will think it is legitimate and act on some of those values that we do not agree, shall we say, healthy. So that is my biggest objection to the adult generated child pornography because it does break down the resistance of the pedophile, those that canít control it. There is one thing to deal with the imagination but when it breaks down your resistance and you find yourself engaging in it. So I do have problems. But then again I oppose government censorship so itís a definite contradiction in my mind. Are you following-Iím just trying to express my own philosophy.
But in any case the absolute position is a hard one to justify for the courts.
In 1919, a case reached the Supreme Court that set a standard that we know as Clear And Present Danger. The court case was Schneck vs United States and became one of the most famous cases for civil liberties.
Schneck during World War I advocated people not to go in the military. He was a socialist. He believed that war was being fought to promote capitalism and to make profits for the capitalist munitions manufacturers who didnít give a damn which country they supported. In any case he was busted for disturbing the war effort. He brought his case arguing free speech to the Supreme Court saying that he had a right to tell people not to go in the military. The Supreme Court for the first time said that this was a clear and present danger.
That it was like yelling in and they used the words for the first time, like yelling "fire" in a crowded theatre. That by advocating people not to go in the military they were disrupting the war effort, no ifs, ands, or buts about it, and by disrupting the war effort it might cause and has a good chance of causing problems with our military activities. So they said basically if it was peacetime it would be free speech but in wartime, it constituted a clear and present danger.
And of course in contrast with the absolute position argues that if you have a right in peacetime, you have that same right in war time. So the clear and present danger is, and in a sense I quote in my book, Abbe Hoffman, "That free speech is the right to yell Ďtheaterí in a crowded fire". What he was doing is making fun at Schneck because he was absolutist who was opposed to the war in Vietnam at the time, and he believed that if you had a right not to serve in the military in peacetime, you had that right in wartime.
However most high courts adhere to a clear and present danger. It has to be clear that a serious evil will occur. However at times, including the Supreme Court, they go on to what is considered a dangerous tendency. That a serious evil could tend to occur it is strongly possible and therefore we can issue a prior restraint. It could tend to occur.
>>This whole subject that Oprah was talking about beef that whole big deal and I was wondering how that turned out. Was she sued?
She was sued in Texas but they lost the suit against her.
There is a difference, though, in the media and the individual. The mediaís free speech is more limited the media-well, Iím not sure what Iím trying to say. Public figures, well no, a couple of issues are mixed up in my mind.
One, often thereís a responsibility that the media has to take and that generally means that they have to research it better.
They have to prove that what they were saying they really believed rather than they were causing problems. For example when I was interviewed by the National Enquirer a few years ago--I just want you to know what kind of professor you have. It was because of my abduction by an alien. No.
>>What was it for?
I was the record keeper for the American Power Lifting Association and there was this 84 year old woman in Los Altos who was lifting weights and setting records and she was to appear on the Letterman show, and she did a tour of Europe and they called me to do a story on her in the National Enquirer to see if the records were valid and they asked me to tape it. And seldom, unless it is a young reporter, do they say we have to tape it or we canít quote you. If I say it then what they report they consider valid so they have to it on tape. As long as I was saying it, it was legitimate. And so they asked me was the record valid, and I said "yes", and what was my position on it. And I said whether she is setting records or not, I hope Iím alive at 84Ėbut thatís what they sort of quoted me on. But I didnít know it appeared in the National Enquirer but I was called by the Vice-President of Ohlone who had read it and he let me know. I want you to know what sort of administration we have here.
But in any case, you do have to believe what youíre saying and the press has to prove that they believe it. The burden of proof is not as strong on you to liable or slander somebody.
So where was I? Well in any case the Dangerous Tendency raises the question of tending to what is a serious evil and how do we know it is going to occur and that does cause kinds of censorship when you talk about books and the fact that Al Bundy, not Al Bundy, whatís his name? Ted Bundy stated that he became a rapist because he read too many Penthouse magazines. So do we therefore ban Penthouse because it promotes violence to women?
Well they did that in Indiana for awhile but the courts ruled that while there is a tendency maybe, there is proof that it did create violence against women and caused people to murder and rape them as with Bundy, then you wouldnít have any women left, I suppose, considering how men read Penthouse.
>>Did they only ban Penthouse?
In Indiana? No they banned Playboy as well. And Hustler. Although the magazines out there, Hustler is one that I flush too. No Iíll never forget the one cover I saw . They had a woman ground up, putting her in a grinder, making her into chopped meat. Ugly.
I donít care if they made a good movie out of it. He and Jerry Falwell and what the hell is his name? Larry Flint. I understand that people liked the movie and freedom of speech but he is an obscene person. No ifs, ands, or buts but freedom of expression is one of those things, but I donít believe in censorship.
Balancing of Interest which is the fourth interpretation overlaps the Dangerous Tendency and Clear and Present Danger. The Balancing of Interest Interpretation-- what it holds is that your civil liberties can be suspended by government if they see it as a threat to society. That can be dangerous tendency and clear and present and it creates a problem. For example, it is a balancing of interest to protect society by government to have metal detectors at airports. I donít think any of us would question that. It would cause definite problems if we didn't have them. That is a clear and present danger.
However, while I can say to you Iím going to kill you as long as I donít show any intent or act in that way there is little that can be done except that the police can warn me. But if I say Iíll kill the President of the United States, I am subject to a ten thousand dollar fine and ten years in prison. But most cases they wonít carry that out or take you to prison. They can charge you but most cases they donít. They do check it out just in case because it is considered a threat to society and perhaps the biggest violation of civil liberties under the balancing of interest doctrine occurred under World War II under executive order 9066 which did what?
It placed Japanese on the west coast, citizens and non citizens alike into relocation camps. The United States later gave reparations to these Japanese who had served time in those camps but the 20 thousand dollars they gave didnít cover most of their losses and their property or business during that incarceration. They said in some cases they were protecting them and other cases it was terrorism by Japanese in this country and no terrorism was every identified by the FBI or anyone else against the American targets by Japanese. The Japanese did land some Japanese spies, if you want to call them that, by submarines along American shores who did engage in terrorism, but they were not native Japanese.
Did I do the analogy between that and the demand for reparation against slavery?
Under the Balancing Of Interest Doctrine we hear of marital law. Marital law generally refers to what it sounds like the military rule.
And usually that means through the suspension of civil liberties and the first one to be suspended the basic civil liberty we all have to protect us from military and police authority is your right to habeas corpus. In Article One Section 9 of the Constitution it says that except in the case of national emergency where there is insurrection or violence, your right of habeas corpus cannot be removed, that you have the right to be charged with a crime. They cannot detain you without telling you why and publicly. If they donít say why, a lawyer can get a writ and you must be released. They canít generally hold you for 72 hours without charging you. They canít do that. If they donít charge you they have to let you go and any charges that would be brought later on that issue cannot be brought. Again people say, gee, they committed the crime, but we have to protect our civil liberties. They can bring charges if they let you go but if they hold and keep you in prison over the 48 hours and later charge you, those charges wonít hold. Let me give you an example. There used to be a motel down by the end of Mission Boulevard near Warm Springs. One day a priest was staying in the hotel and he had a costly coin collection that was stolen. They caught the guy outside and found the coin collection behind a bush. He was taken to Santa Rita and somehow he fell through the cracks and he stayed there for five months with no charges filed. When they realized this guy was still there, and there were no charges filed, it was too late, even though the evidence was there. So he had to be let go. The answer is once again civil liberties is such that your system holds if we donít protect them, even the evil people and criminals, that is when I say Rodney King, we have to protect him otherwise weíre next. And so it is better to say let ten guilty people go free than let one innocent man hang. And that is why in Ohio the Governor, they found something like 24 people who were executed that later the DNA showed that they were not the ones that should have been involved, but there are some questions on DNA evidence but still he was concerned. They held a moratorium on the execution until more investigation.
>>What is a moratorium?
That means holding off the execution; it doesnít stop them or pardon them. They stay in prison. Theyíre on hold.
>>And is that the decision until the moratorium is ended?
They must pass legislation to override his executive order, they could, but in this case, I think they were shocked because it was about one-third of the executions.
>>Is it kind of like a stay?
It is a stay. But the stay is usually directed toward one person but what you have in a moratorium is a stay for all of those people that were on death row.
>>Doesnít it depend on new evidence?
They didnít have the technology back then. DNA is only in the last two years basically that they have been able to categorize it so thoroughly. They can go back on clothing 30 years ago and pick up cigarettes that have been held and read the DNA on the saliva on that. Most capital punishment cases take a long time and the reason is pretty simple, although obviously most of us think, including myself, it is too long. But the fact is that you canít restore a life and in our system most states require an automatic appeal on the death penalty. You have to appeal because you donít want to make that mistake and how do you restore an innocent person once they are dead? So that is why-but obviously what weíve been concerned about is the loopholes and frivolous kinds of suits not the legitimate ones. So they find new loopholes on procedures and that is frivolous and it takes the Courts a couple of years to decide this is worthless-- why did you bring it?
In the United States we have had Martial Law during the Civil War. Various state and cities during the riots against the police in the King beating being declared not guilty in Simi Valley, however in most cases where Martial Law has been used in our society it has been eliminated after the crisis. Where cases, for example, in Nazi Germany, when Hitler used Marital Law after he was elected legally and had his storm troopers pay off Communists to burn down a German parliament building and then blame it on the Communists to say the country was in an uprising. He enabled the Enabling Act and declared Martial Law and kept it in power until he committed suicide in April of 1945. Like Marcos in the Philippines even after he suspended Martial Law under pressure from the United States, he maintained the law that he issued under Marshal Law. But at least in the United States we have forced the government to restore the basic liberties of people and yes, some elements of Marital Law.
Any questions on those 4 interpretations. Now you will be doing them in the interface but please note that some choices you may have 1, 2, 3 or 4 depending on how you interpret it. Most of us would not make some of those rulings but youíre being asked to and to give that reason and your reason might give one of the four interpretations than someone else might give.
On civil libertiesĖin the Constitution proper, there are very few civil liberties. Most of them are in the Bill of Rights. The framers of the Constitution believed in what they considered ordered liberty which in a sense meant that if it was not in the Constitution it was yours, you didnít lose it. It belonged to you. There was no need to place it in the Constitution.
However most leaders and people in the states insisted that after the Constitution went to the states on September 17, 1787, they insisted that a Bill of Rights be added because they didnít trust the central government. They were fearful of the central government. They just came from one in England, the dictatorship of the King of England and they had created thirteen independent nations and they were fearful that one country would take over the United States, would take away their rights. That is part of the reason for the Second Amendment, the main reason. The states would have a military force that could stand up to the oppressiveness of a central government. It was the protection of the states from the federal government. But that is neither here nor there. But the framers of Constitution agreed to get the Constitution passed that a Bill of Rights would be introduced.
And the First Congress which met in 1789 because in 1789, which the First Congress met they introduced 18 amendments. Only 12 of those went to the states.
Among the ones that went to the states, and weíll talk about it later, was one that said that states could not infringe on the freedom of expression of people.
Which is interesting because the First Amendment says you have free speech but it doesnít really. Weíll get into that. So, twelve went to the states and of those twelve, ten passed immediately and I think I mentioned the eleventh passed in 1992, a hundred years later. Twelve went to the states. The first ten passed, which we know as the Bill of Rights, and really the first 8 are really bills of liberty, and the 11th and 12th sat around from 1791 when they were passed until 1990 when Congress raised its salary from something like $80,000 to $125,000 and people got mad and they found this 11th amendment sitting there that said Congress canít raise its salary during its own term of office. And all of a sudden 38 states finished the ratification of something written in 1787.
So strange as it may seem in 1992, the 11th amendment passed as the 27th amendment, the last Amendment of the Constitution.
People argued that while it was sitting around when it was 13 states it is no longer valid today. But the court held it was, three quarters of the states has passed it. In any case those are our bills of liberty.
>>So any amendment that is passed by Congress can be passed by the state no matter how long it takes?
Not any more because most of the amendments passed now have a time limit on it.
For example the womenís equal rights movement had a time limit. There are a lot of amendments still out there that have not been passed. But there are no time limits, maybe in the future there will be.
There are five liberties spelled out in the Constitution only, one of which was directed to the states. The liberty directed to the states, the Constitution says that states must have a jury trial, that there must be a jury trial in criminal cases. That is in the body of the main Constitution, not in the Bill of Rights. So in the case of a criminal case, it says the states have to have a jury trial. That is demanded.
Also, we mentioned habeas corpus. That says that Congress cannot, not the state, that Congress cannot take away habeas corpus. So that Congress canít say that you can be held in prison without charges. You have to be charged on the federal level.
A third one, the Constitution says there cannot be Ex Post Facto laws. That means, in a sense it almost sounds like what it means. They are retroactive punishment. It cannot exist in the federal constitution.
Ex Post Facto means retroactive. What does retroactive mean? It means you canít punish somebody for a crime that was not a crime when they committed it. If a law is passed tomorrow that any person leaning on the desk could be put in prison, and tomorrow if I lean on it, they can charge me but I canít not be charged with leaning on the desk today, since it was not a law today. I understand there are some exceptions to this and I forgot which ones they were, but there are some, like 3 strikes, youíre out.
However in the federal level they have been thrown out. For example many years ago, being in the Communist Party at any point, even before the law, would prevent you from running for offices and that was thrown out because they canít say to you, "Were you a member of the communist party then?", because you didnít know at that point, that you couldnít run for office. So the whole law was thrown out.
In the Constitution it bans Bills of Attainder. Simple definition--legislative punishment. A Bill of Attainder is legislative punishment. Thatís outlawed. What does that mean? The legislature canít punish me, Alan Kirshner. They can make something a crime and then I can be charged but they canít say weíre putting Alan Kirshner in prison. That is illegal under our Constitution. Many countries have done that and there are some that have passed legislation to put people away. But we canít do that legally under our Federal Constitution.
So our Constitution provides that no matter what charges are filed I have the right to due process of law. Which includes the whole procedure under which we can prove our guilt or innocence, of whether we can challenge our rights in the court. We have the right to an attorney, to know what weíve been charged with, the right to confront witnesses. All of those are part of due process.
There is one other element in the body of the Constitution that is not in the Bill of Rights
and was in the Constitution but it only applies to a very narrow area of treason. In the Constitution in cases of treason it says there cannot be corruption or forfeiture of blood. Corruption and forfeiture of blood are banned in the ConstitutionĖonly in cases of treason. Though generally it applies to most laws. What does that mean? If you commit treason in countries previously and maybe today, your whole bloodline is declared corrupt and evil. What is your bloodline? All of your relatives past, present, and future. Because you committed treason they are declared guilty and their bloodline is considered corrupted and forfeiture means that they and you forfeit, go to prison, lose your property. What they used to do is dig up the bones of dead people from sacred or hallowed ground and break them up and throw them to the wind so that your relatives were punished as well for your treason. The concept was that it was a family thing and family had to control their own so it was family punishment. That is not allowed in our Constitution. Only you can be charged with treason and only be convicted if there are two eye- witnesses, two eye-witnesses to your treason and then only you can be punished, no relatives can be. Any questions on corruption or forfeiture of blood?
>>To be convicted of treason you need two eye witnesses?
Yes. Why? Iím not sure it is a serious crime against the country.
You remember Aaron Burr. He was charged with treason, but they could only find one eye-witness, so they had to let it go. He was charged in trying to separate part of the west to create his own country.