Order and Freedom

Under what conditions can speech or expression be censored to prevent unrest or disorder? Is criticism of the president likely to promote disorder? Courts have often faced conflicts among the three values that are so important to democratic politics: order, freedom, and equality.

Court decisions involve a balancing act among these values. A review of the cases in the chapter may lead a person to conclude that not one of these values is ever preferred unconditionally over the others. The freedoms of speech, press, and assembly are all particularly important to the conduct of democracy, yet the Supreme Court has sometimes limited them, in the name of order, when exercising these freedoms would create a very serious danger. Furthermore, where certain types of expression are concerned—for example, obscenity—the Court may choose to uphold the value of order by supporting community standards. On the other hand, the fact that the exercise of these freedoms may offer an affront to the majority and threaten to disrupt established patterns of social order is not always enough to convince the Court to restrict them.

Courts may forbid prayer in public schools under any circumstances, but they may sometimes find that public monies can be used to fund nativity displays or aid church schools. The courts balance freedom and order in these instances.

As a part of the task of upholding order, the government punishes those who violate laws and endanger the lives and property of others. However, those accused of crimes may not be deprived of their freedoms without due process of law. This means, among other things, that they must be informed of their legal rights, including the right to an attorney and to protection against self-incrimination. Enforcing these rights may sometimes mean that guilty people go free, but in balancing order and freedom, the courts often decide that the threat to order posed by freeing a guilty person is less worrisome than the threat to freedom that is posed by denying an accused person due process of law.

With respect to the right to personal autonomy, the Supreme Court has given mixed signals. In cases involving abortion, contraception, and, recently, homosexual activity, the Court has defended individual freedom. But the Supreme Court has tolerated additional restrictions on abortions and remains deeply divided on the issue.

The Court often uses the Bill of Rights to protect citizens from the national government. But the Bill of Rights did not initially apply to the states; while the national government was barred, for example, from using illegally obtained evidence in trials, state courts were not. Gradually in this century, however, the Court has used the Fourteenth Amendment to extend the provisions of the Bill of Rights to the states as well.

  • The right to bear arms
  • Freedom of expression
  • Freedom of religion
  • Ninth amendment and personal autonomy
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