TEXT 26: CRUEL AND UNUSUAL PUNISHMENT
The Eighth Amendment to the US Constitution forbids "cruel and unusual punishment," the only constitutional provision specifically limiting penalties in criminal cases. The US Supreme Court has rarely used this provision. For example, in 1981 the Court ruled that putting two prisoners in a cell built for one is not cruel and unusual punishment.
There is a great controversy, however, over the death penalty. During the 1970s the Supreme Court handed down several decisions on the constitutionality of the death penalty. In 1972, the Court ruled that capital punishment as then administered was not constitutional. The Court found the death penalty was being imposed in apparently arbitrary ways for a wide variety of crimes and mainly on African Americans and poor people. This decision warned the states that the death penalty needed clarification. Thirty-five states responded with new death penalty laws. These laws took two approaches. North Carolina and some other states made the death penalty mandatory for certain crimes. In this way, they hoped to eliminate arbitrary decisions. It is argued, however, that such laws failed to take into consideration the specifics of a crime and any possible mitigating circumstances.
Georgia and several other states took a different approach. They established new procedures for trials and appeals designed to reduce arbitrary decisions and racial prejudice in imposing the death penalty. In one case the Court ruled that under adequate guidelines the death penalty does not constitute cruel and unusual punishment. The Court stated, "Capital punishment is an expression of society's outrage. It is an extreme sanction, suitable to the most extreme of crimes."
TEXT 27: FREEDOM OF THE PRESS
In writing the First Amendment, the Founders of the Constitution thought of the press as printed material — newspapers, books, and pamphlets. They could not foresee the growth of technology that has created new instruments of mass communication — and new issues regarding freedom of the press.
Freedom of the press is closely related to freedom of speech. It moves free speech one step further by allowing opinions to be written and circulated. The press is important because it is the principal way people get information. In today's world the press includes magazines, radio, and television along with newspapers because of their roles in spreading news and opinions.
In many nations prior restraint — censorship of information before it is published — is a common way for government to control information and limit freedom. In the United States, however, the Supreme Court has ruled that the press may be censored in advance only in cases relating directly to national security. The following Supreme Court decision illustrates this principle.
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A case heard in 1931 concerned a Minnesota law prohibiting the publication of any "malicious, scandalous, or defamatory" newspapers or magazines. An acid-tongued editor of a Minneapolis paper had called local officials "gangsters" and "grafters." Acting under the Minnesota law, local officials obtained a court injunction to halt publication of the weekly. The Supreme Court ruled the Minnesota law unconstitutional because it involved prior restraint.
For years this case defined the Supreme Court's position on censorship. The Court stressed that a free press means freedom from government censorship.
TEXT 28: FREE PRESS AND FAIR TRIAL
In recent years the First Amendment right of a free press and the Sixth Amendment right to a fair trial have sometimes conflicted. Does the press have the right to publish information that might influence the outcome of a trial? Can courts issue orders that limit news gathering in order to increase the chances of a fair trial? Do reporters have the right to withhold sources of information that may be important to a trial?
Before and during a trial, news stories about the crime can make it difficult to secure a jury capable of fairly deciding the case. In 1954, the Supreme Court overturned the conviction of Samuel H. Sheppard, for just such reasons.
A prominent Cleveland physician, Sheppard was convicted of killing his wife. The case had attracted sensational press coverage. Pretrial news reports practically called Sheppard guilty. During the trial reporters interviewed witnesses and published information damaging to Sheppard.
The Supreme Court ruled that press coverage had interfered with Sheppard's right to a fair trial. Sheppard was later found not guilty. In the Sheppard decision, the Court described several measures judges might take to restrain press coverage of a trial. These included: reducing pretrial publicity; limiting the number of reporters in the courtroom; placing controls on reporters' conduct in the courtroom; isolating witnesses and jurors from the press; and having the jury sequestered, or held in custody, until the trial is over.
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On the other hand, in 1972, the Supreme Court ruled the First Amendment does not give special privileges to news reporters. Reporters, the Court said, "like other citizens, must respond to relevant questions put to them in the course of investigation or criminal trial." The Court added that any special exemptions must come from Congress and the states.
TEXT 29: FREEDOM OF SPEECH
Democratic government requires that every person has the right to speak freely. Of course, most people agree in principle with the right of free speech. Everyone wants it for themselves, but they are sometimes tempted to deny it to others whose beliefs differ greatly from their own. The First Amendment to the US Constitution exists to protect ideas that may be unpopular or different from the majority. Popular ideas usually need little protection, but those who support democracy cherish diversity of opinion.
What exactly is speech? Is demonstrating in front of a government building to protest a new law a form of speech? To answer such questions, the Supreme Court has distinguished three general categories of speech that the First Amendment protects.
The verbal expression of thought and opinion before an audience that has chosen to listen, or pure speech, is the most common form of speech. Pure speech may be delivered calmly in the privacy of one's home or passionately in front of a crowd. Because it relies only on the power of words to communicate ideas, the Supreme Court traditionally has provided the strongest protection of pure speech against government control.
Actions such as marching or demonstrating are speech plus. Because speech plus involves actions, it may be subject to government restrictions that do not apply to pure speech.
The third type of speech, symbolic speech, involves using actions and symbols, instead of words to express opinions. For example, protesters burned the American flag to express their displeasure with the government.
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Most justices have supported the idea that the rights of free speech must be balanced against the need to protect society and that some restraints on speech may exist.
TEXT 30: FREEDOM OF RELIGION
Writing in 1802, President Thomas Jefferson stated that the First Amendment's freedom of religion clause was designed to build "a wall of separation between Church and State." This separation makes the United States different from many countries that have a state-supported religion, as in Great Britain. In such countries, public tax money goes to support one particular form of religion. At the other extreme, some countries strongly discourage the practice of any religion.
The First Amendment guarantees freedom of religion in two clauses. The first one states that "Congress shall make no law respecting an establishment of religion." The second clause requires that Congress not prohibit the free exercise of religion. This Amendment officially separates church and state. In practice, however, religion has been part of public life in the United States for a long time. Although Article VI of the Constitution bans any religious qualification to hold public office, most government officials take their oaths of office in the name of God. Since 1865 the nation's coins have carried the motto "In God We Trust." The Pledge of Allegiance* contains the phrase "one nation under God." Many public meetings, including daily sessions of Congress and most state legislatures, open with a prayer.
Government actually encourages religion in some ways. For example, chaplains serve with each branch of the armed forces. Most church property and contributions to religious groups are tax exempt. Thus, while the First Amendment protects religion from government interference, church and state are not totally separate in the United States. Attempting to define the proper distance between the two has often resulted in continuing and sometimes heated controversy. Under the Constitution this task falls on the Supreme Court.
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* The Pledge of Allegiance — Клятва Верности
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