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CONSTITUTIONAL
RIGHTS FOUNDATION
Bill of Rights in Action Fall
1993 (10:1) When Rights Conflict In the United States our rights as citizens are outlined in the Constitution and its Bill of Rights. But, what happens when rights conflict? In this issue we will explore three such conflicts—two drawn from the American experience, and one in a foreign land. U.S. History: Free Press vs. Fair Trial: The Lindbergh Baby Kidnapping Case World History: Singapore: Model Society or City of Fear? U.S. Government: Religious Rights in Conflict FREE
PRESS VS. FAIR TRIAL: Colonel Charles A. Lindbergh was a genuine American hero. In 1927, Lindbergh captured the public imagination by flying solo from New York to Paris in a single-engine airplane. This pioneering flight across the Atlantic instantly changed the character of global travel and made "the Lone Eagle" a world celebrity. Joined by his wife, author Anne Morrow, this soft-spoken adventurer traveled the world, using his celebrity status to advance the cause of aviation. Together, the Lindberghs came to symbolize a youthful and optimistic America and a newfound global communication. On March 1, 1932, the Lindbergh's infant son, not yet two years old, was kidnapped. The trial of the alleged kidnapper developed into a sensational news story. Reporters, newspapers, radio networks and movie news producers took advantage of advances in radio and film technology to focus world-wide attention on the trial. The reaction of the public to this highly publicized crime, and the effects that modern publicity had on the jury, seriously challenged the freedom of the press in a new era that Lindbergh helped introduce. Sixty five years later, the controversies raised by the media coverage of the Lindbergh kidnapping trial still remain. The Crime of the Century The Lindbergh child was abducted on a rainy night from Highfields, the newly built Lindbergh mansion located in rural New Jersey. The kidnapper (there could have been more than one) used a home-made wooden ladder to enter the second floor nursery where young Charley lay asleep. No one saw the intruder. Charley's parents and a nursemaid were in other parts of the house when the break-in occurred. The kidnapper left a ransom note demanding $50,000 for the baby's safe return. News of the kidnapping sent floods of reporters and photographers to the Lindbergh estate. One group of photographers installed a portable darkroom in an ambulance, posed as medics, and drove onto the grounds. Sightseers trampled the area, possibly destroying clues and evidence. In the weeks that followed, the Lindberghs received over a dozen letters from the kidnapper. Each letter was mailed from a different location in the New York City area. About a month after Charley disappeared, the Lindberghs finally received instructions on when and where to deliver the ransom money. What the kidnapper did not know was that the serial numbers of all the bills had been recorded. Also, many of the bills were in the form of gold certificates that were soon to be withdrawn from circulation, thus making them easier to trace. Col. Lindbergh sent a go-between to deliver the $50,000 to a masked man in a Bronx, New York, cemetery. But the baby was never returned. A few weeks later, word flashed around the country that the body of little Charley had been found in the woods not far from the Lindbergh home. The body was in a state of advanced decomposition. Both hands, the right leg, and an arm were gone. Animals had eaten away the internal organs. Only the baby's face remained recognizable. A local medical examiner conducted an autopsy. He concluded that the Lindbergh child had died of a massive skull fracture, probably soon after he had been abducted. Exactly how the baby's skull was crushed was never determined. In a macabre incident, two news photographers persuaded the medical examiner to allow them to take pictures of the remains. The photos were so grotesque that no newspaper at the time would publish them. But prints selling for $5 apiece later showed up in a number of speakeasies (unlicensed saloons that sold bootleg liquor during the Prohibition era of 1919–1933). The Suspect Authorities searched for little Charley's kidnapper and murderer for more than two years. Finally, on September 20, 1934, they arrested Bruno Richard Hauptmann and charged him with the crime. The police traced Hauptmann after he had passed one of the distinctive $20 gold certificates to a gas station attendant. Police found more than $14,000, all in marked money, hidden in Hauptmann's garage. Resorting to methods common at the time, the police tied Hauptmann to a chair in his jail cell and beat him in order to get him to talk. Hauptmann, however, refused to confess. Bruno Richard Hauptmann's life provided the police with little that might point to the crimes of kidnap and murder. A carpenter by trade, Hauptmann entered the country illegally in 1923 after stowing away aboard a ship sailing from Germany to New York. He easily found work on construction jobs, played the stock market, and got married. Investigators discovered that while Hauptmann had a clean record in the United States, he had been convicted of robbery in Germany. Signs of the conflict between a free press and the criminal justice system began before the trial got underway. Hauptmann was represented by Edward J. ("Big Ed") Reilly, a famous defense lawyer. The Hearst newspaper chain paid Reilly's legal fees in return for the exclusive rights to interview Mrs. Hauptmann during the trial. Hauptmann challenged all the evidence against him as inconclusive or mistaken. He and his wife testified that they were together at home at the time of the kidnapping. As for the Lindbergh money found in his garage, Hauptmann claimed a friend had left it with him for safekeeping before leaving the country. This person died in Germany before Hauptmann was arrested. The Trial of the Century The trial of Bruno Richard Hauptmann took place in Flemington, New Jersey, in a small, 100 year-old county courthouse a few miles from the Lindbergh's home. The press promoted the event as "the trial of the century." Weeks before the trial began, news organizations began to pour into the tiny town, anxious to install their latest and fastest communications equipment. Over 100 Western Union telegraph wires were strung into the attic of the old courthouse. The Associated Press installed four teletype machines to transmit trial transcripts to New York and Philadelphia newspapers. By the opening day of the trial on January 2, 1935, about 200 journalists had crowded into Flemington with its single small hotel. Tens of thousands of onlookers clamored for trial tickets distributed by the county sheriff. Among the curious were movie stars, New York City socialites, and gangsters. The Lindbergh's celebrity status coupled with the vast improvement in global communications, was about to place "the trial of the century" in the spotlight for the entire world. In the Public Eye The jury was chosen quickly. It consisted of eight men and four women. Thomas Trenchard, the trial judge, instructed the jurors not to read the newspapers, listen to the radio, or talk to anyone about the trial. But each day the jurors had to walk back and forth between the courthouse and the Union Hotel where they were sequestered (isolated from the public). Jurors waded through the crowds where newsboys shouted the latest headlines, hawkers sold miniature "Lindbergh ladders," and people encouraged the jury to "Send Hauptmann to the chair!" When the jurors ate their meals in the hotel dining room, they were separated from the other diners (mainly reporters) by only a thin cloth curtain. In their rooms at night, the jury members could hear radio reporters broadcast news of the trial from a temporary station one floor below. Judge Trenchard tried his best to maintain an orderly courtroom. He banned typewriters, but scores of reporters continually sent handwritten news copy by messenger boys to the telegraph wire operators in the courthouse attic. More than once, Judge Trenchard had to warn courtroom spectators against laughing, giggling, and applauding. Col. Lindbergh was one of the first to testify. As he spoke from the witness chair, photographers snapped his picture with flash cameras. This angered Judge Trenchard who had earlier ruled against any courtroom photography while the trial was in session. Five newsreel companies covered the trial. By this time, newsreels had become a popular feature in movie theaters all over the nation. The newsreel outfits pooled their efforts and set up one camera enclosed in a box to deaden its noise and focused it permanently on the witness chair. The camera used special film that did not require additional lighting. A directional microphone was secretly strung behind the jury box. The whole apparatus was operated by remote control. In this way, newsreel companies captured the testimony of a number of witnesses including Col. Lindbergh and Hauptmann on sound movie film and distributed it to theaters all over the nation and the world. Apparently, the county sheriff had agreed to the filming arrangements on condition that none of the footage would be shown in movie houses before the end of the trial. Judge Trenchard maintained that he was unaware any filming was taking place during the trial. In any event, the judge angrily closed down the operation two-thirds of the way through the trial when newsreels of testimony were shown in most of the country's first-run theaters. "Kill Hauptmann!" After the jury retired to discuss its verdict, the news organizations geared up to be the first to announce the decision to the world. Actually, almost everyone expected a guilty verdict. Only one question remained: would the jury recommend life in prison or death? Reporters smuggled portable radio transmitters into the courtroom to instantly "flash" the verdict using a predetermined code. Outside, a crowd of 10,000 persons waited into the night. As the bright lights of the newsreel cameras played over the crowd, they shouted "Kill Hauptmann!" "Kill Hauptmann!". Someone hurled a rock through a courthouse window. At approximately 10 p.m. February 13, 1935, the courthouse bell signaled that the jury had reached its verdict. The crowd roared. Before the verdict was announced in the courtroom, a reporter handling one of the portable radio sets accidentally sent a coded message that Hauptmann would get life in prison. Thanks to modern technology, this "news" was immediately broadcast across the nation. Moments later, the jury recommended the death penalty. A messenger boy yelled the correct verdict from a second floor window of the courthouse to the crowd below. According to the New York Times, "A great shout went up from outside and the throng pressed closer to the court building." Charles and Anne Lindbergh listened to the verdict on the radio. They could hear the jubilant howls of the crowd in the background. Charles disgustedly turned off the radio. "That was a lynching crowd," he said. Hauptmann's conviction was upheld by the New Jersey appeals courts, and, on April 3, 1936, a little more than a year after the trial, he was executed in the electric chair. One newspaper headline read, "Hauptmann Dies in Chair, Remains Silent Until End." As a result of the 1935 Lindbergh baby kidnapping trial, photographers and cameras were banned in all federal and most state courts. It would be impossible to determine exactly how the unruly crowds, ambitious reporters, and newsreel cameras may have influenced the 12 men and women who had to decide the fate of Bruno Richard Hauptmann. But the penetrating focus of modern communications on "the trial of the century" altered our notions of privacy, free speech, and a fair trial as surely as Charles Lindbergh's solo flight across the Atlantic changed the face of global transportation. For Discussion and Writing
CIVIC PARTICIPATION ACTIVITY Should Live TV Be Permitted in the Courtroom? One of the consequences of the 1935 Lindbergh baby kidnapping trial was that cameras were banned in all federal and most state courts. However, starting in the early 1970s, state courts began to allow more camera coverage of civil and criminal trials. Today, some 44 states allow cameras (including television) in the courtroom under varying conditions. On July 1, 1991, several federal district and appeals courts began a three-year experiment permitting TV coverage of civil trials. In the future, television may be allowed into federal criminal courts and perhaps even the U. S. Supreme Court. Live television seems ready to move into the courtroom. The major networks along with local TV already are covering many trials. In 1991, the Courtroom Television Network began broadcasting trials live all day. Should live TV be permitted in the courtroom? All members of the class should individually or in groups gather arguments on both sides of this question by participating in at least one of the following activities:
After getting as many pro and con arguments as possible, the class should:
SINGAPORE: MODEL SOCIETY OR CITY OF FEAR? Welcome to Lee Kuan Yew's transistorized, deodorized, air-conditioned,
multi-storied, city-state. What happens when human rights come into conflict with economic security? In Singapore, the people have apparently given up many human rights to the interests of a smooth-running, prosperous society. Some visitors view Singapore as a model society worth imitating. Others see it as a city of fear. Model Society After landing at Changi International, you will be impressed with the efficiency of Singapore's airport, called the finest in the world by the travel industry. You will have little trouble getting to your hotel, since Singapore has plenty of taxis, modern expressways, and a sleek new subway. You will soon notice that auto traffic is carefully regulated with well-disciplined drivers. As you make your way through the city, you will be pleased with the squeaky clean streets lined with trees and flower beds. High rise apartment and office buildings help pack 3 million people into 240 square miles (about 12,000 citizens per square mile). You will not see any slums, homeless people, or beggars. By the time you arrive at your hotel, you will be aware that almost everyone speaks some English. English is taught as the "first" language in the schools, and has become the common language for everyday communication. You will also learn that eating is a joy in Singapore with its many five-star restaurants. Even the city tap water is safe to drink. At night, you will have little fear as you stroll through Singapore's safe streets. Singapore is a city as well as a nation, located on a small island in Southeast Asia. A former British colony, Singapore became completely independent in 1965. Today, Singapore is truly a multicultural and multilingual society with four official languages: Mandarin Chinese, Malay, Tamil, and English. Singaporeans of Chinese descent, speaking a variety of dialects as well as Mandarin, make up more than three-quarters of the population. The Chinese are also the driving force behind the country's highly successful business community. Malays, mostly Muslim, account for the bulk of Singapore's low income workers. Other Singaporeans are Hindus, Sikhs, Muslims, and Christians from southern India. This great ethnic mix in Singapore heavily influences the way the government runs the country. The people of Singapore today enjoy the highest standard of living in Asia, second only to the Japanese. The average annual income is about the same as in the United States. The unemployment rate is under 5%. Most people own their homes (mainly comfortable apartments). Workers pay into a social security system that provides health care benefits, allows them to borrow in order to purchase a home, and enables most to retire at 55. The Government Knows Best Less than 30 years ago, Singapore was a backwater, poverty-stricken, Third World port city with few natural resources. But soon after they gained independence, the founders of the struggling nation decided to transform their city-nation into a world-class commercial center. The founders accomplished this through careful planning and by attracting investment from foreign multinational corporations. One of Singapore's most prominent founders, Lee Kuan Yew, flirted with socialism as a young man, but later became a fierce anti-communist and an advocate of free enterprise. Lee and a small group of like-minded leaders set out to plan a model society. He was the guiding force behind Singapore's economic miracle from its beginnings with the new republic in 1965 until he retired as prime minister in 1990. Lee was convinced that an elite group of highly educated, dedicated, and honest leaders should run the government. Their goal was to assure a political stability that would attract foreign investors. Unlike other totalitarian regimes, Lee installed a system that allowed regular elections and competing political parties. Lee's popular political party, the People's Action Party (PAP), has won almost all the seats in the parliament for more than a quarter of a century. Prime Minister Lee and the People's Action Party both believed that the government knows what is best for the people of Singapore. As a result, the government has little tolerance for political debate, special interest groups, or dissent. The government expects its citizens to be hardworking, disciplined, and obedient. Most Singaporeans seem to agree. When Singapore became an independent nation in the mid-1960s, the Vietnam War was raging nearby and the threat of a communist takeover seemed real. Consequently, the government under Prime Minister Lee Kuan Yew passed a series of laws to suppress dissent. One of these laws, the Internal Security Act, allows the government to arrest and jail individuals without charge or trial. Many of Singapore's laws are backed by stiff fines: failing to flush a public toilet ($100); spitting or smoking in public places ($300); eating or drinking on the subway ($300); littering ($600); selling chewing gum ($1600). The government came down against chewing gum after vandals began sticking wads on elevator buttons and subway car doors. Elevators in apartment buildings even have urine detectors that, when activated, take the violator's picture and lock the door until the police arrive. The fine is $1200. For more serious crimes, Singapore resorts to imprisonment and caning (beating with a stick). The death penalty is used in cases of first degree murder, armed robbery, and drug trafficking. Over 30 persons have been hanged since 1975 for drug offenses. Singapore's economic system has been described as "state capitalism." While private ownership and free enterprise are vigorously encouraged, the government still keeps a firm hand on most business activity and retains ownership of some industries. The government also controls wages and has weakened the labor unions so that strikes are rare. The school system is patterned after the Japanese model. Periodic examinations weed out those who do not do well in academic subjects (especially English) and "stream" them into technical and vocational schools. The more academically successful youngsters go to "superschools" where they are prepared for the university and professional careers. One of the most controversial government policies concerns population control. At first, the government launched a campaign to reduce the birth rate through tax incentives and easily available abortions ("Stop At Two"). However, after discovering that such a policy would cause Singapore's population to decrease after the year 2030, the government reversed itself. They offered tax rebates for a third child and made abortions more difficult to get ("Go For Three"). Then, when most three-child families turned out to have low incomes, the government became concerned. They enacted new laws that restricted valuable primary school registration to the children of mothers who were college graduates. This policy proved to be so unpopular that it was finally abandoned. City of Fear In recent years, some Singaporeans have begun to question the old belief that the government always knows what is best for the people. In 1987, 22 church social workers, professionals, and students publicly criticized certain government policies. They were accused of organizing a "Marxist conspiracy to subvert the existing social and political order." They were jailed without trial. Most of these "criminals" were released after confessing on television. However, several of them were rearrested after they issued a statement to the press retracting their confessions. They also charged that while they were held in jail they had been beaten, subjected to long interrogations, and otherwise mistreated. Some of those who were rearrested appealed to the courts with habeas corpus petitions. These required the government to produce formal charges or release them. The courts ordered that they be let go, but as soon as they were free the government arrested them again. The last of the "Marxist conspirators" were not released from jail until June of 1990; they are restricted in their freedom of movement, speech, and association with others. Government censorship is a fact of life in Singapore. The government screens books, magazines, movies, videos, music recordings, live performances, and the internet. Privately owned TV satellite dishes are illegal. All Singapore newspapers are controlled by a single holding company largely owned by the government. Political gatherings of more than five persons in Singapore require a police permit. Therefore, public demonstrations are rarely allowed except in support of the government. When asked why university students were denied permission to protest against tuition increases, the current prime minister, Goh Chok Tong, replied:
In many ways, Singapore provides its inhabitants with an ideal existence. Singaporeans enjoy a clean, efficient, and attractive environment. Most citizens can expect full employment, a good education, and comprehensive healthcare. This seemingly secure, comfortable society depends on strictly enforced laws that were originally designed to combat communist subversion and prevent conflicts from breaking out among the country's ethnic groups. Singapore's rigid rules and numerous laws make sure that the tiny city state runs smoothly, but at what price to individual freedoms and human rights? For Discussion and Writing
COOPERATIVE LEARNING ACTIVITY Should the United States Become More Like Singapore?
Two Cases from the Early Nineties Citizens of the United States are guaranteed two religious rights by the First Amendment. First, the government may not "establish" or favor the cause of any religion. Second, the government may not prohibit the "free exercise" of religion. But what happens when some people, perhaps even the majority, want to exercise their religious rights at a graduation ceremony conducted in a public school auditorium? In such situations, the right of people to freely exercise their religious beliefs may come into conflict with the stipulation that our government must not become entangled with religion. Use of Public School Facilities A New York State law permits school facilities (like auditoriums) to be used by community groups after school hours. The law, however, excludes groups wanting to use the facilities for religious purposes. The pastor of Lamb's Chapel, an evangelical church located in the Center Moriches Union Free School District of New York, requested the use of a school auditorium to show a series of films. The films featured lectures by a licensed psychologist who advocated a return to traditional Christian family values. The school board turned down the pastor's request on the grounds that the films had a religious purpose. The pastor believed this should not matter. He brought suit in federal court on the grounds that the school board's exclusion had violated the rights of freedom of speech, assembly, religion, and equal protection of the laws. In federal court, attorneys for the school district argued that the school auditorium was a "limited public forum" (not generally open for public use like a park). As such, the school board could restrict certain kinds of subject matter and speakers as long as it was done in a reasonable manner. Attorneys for the school district argued that if the school board allowed Lamb's Chapel to use public school property, they would seem to show favoritism to a particular religion, and would therefore violate the First Amendment's establishment clause. Lamb's Chapel v. Center Moriches Union Free School District was appealed all the way to the U.S. Supreme Court. In June 1993, the court ruled unanimously in favor of Lamb's Chapel. Writing the opinion for the Supreme Court, Justice Byron R. White stated that the school district would have permitted groups with social or civic purposes to use its facilities to present information on family values. The only reason the district denied Lamb's Chapel the use of its facilities, Justice White continued, was because "The presentation would have been from a religious perspective." Therefore, the school district was discriminating against a speaker (on film) because of his point of view, a clear violation of freedom of speech. Justice White added that there would have been no violation of the Establishment Clause because the films would not be shown to a classroom of students during school hours. [Lamb's Chapel v. Center Moriches Union Free School District, 113 S.Ct. 2141 (1993)] Prayers at Public School Graduations In 1989, the principal of Nathan Bishop Middle School in Providence, Rhode Island, asked Rabbi Leslie Gutterman to deliver an invocation and benediction at the school's graduation. The principal, Robert Lee, gave Rabbi Gutterman a copy of "Guidelines for Civic Occasions" to help him prepare. This guide stressed that any public prayers or other remarks should be nonsectarian. Rabbi Gutterman's invocation and benediction were brief and general. While he mentioned God, the rabbi did not discuss any particular religious beliefs. Although attendance at the school's graduation was voluntary, virtually all the graduates were present. After the graduation, the father of one of the students went to federal court to secure an injunction (court order) against any further religious exercises at public school graduation ceremonies. He argued that exercises conducted by members of the clergy violated the establishment clause of the First Amendment. The case, Lee v. Weisman, finally ended up before the U.S. Supreme Court. In a 1992 split decision, the Supreme Court agreed that invocations and benedictions like those included in the Nathan Bishop Middle School graduation were unconstitutional. Justice Anthony M. Kennedy wrote the opinion for the majority. "The government involvement with religious activity in this case," said Justice Kennedy, "is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school." Therefore, in the view of the Supreme Court, the school violated the First Amendment's prohibition against the establishment of religion. A number of facts led to the Supreme Court's decision. The school principal Robert Lee, a government employee, requested an invocation and benediction in the first place, and chose who would deliver them. After selecting Rabbi Gutterman, Lee involved himself further by offering advice on how the clergyman should compose his prayers or remarks. Most decisive was the lack of voluntary participation by the students. Justice Kennedy wrote that the students "For all practical purposes, are obliged to attend." Moreover, once seated for graduation, how could any of those not wishing to participate in the invocation and benediction reasonably avoid doing so? [Lee v. Weisman, 112 S.Ct. 2649 (1992)] Another school graduation case, Jones v. Clear Creek Independent School District, was remanded by the Supreme Court. This case involved an invocation and benediction voluntarily written and delivered by members of a public high school graduating class. In this case, a Texas school board (for the Clear Creek Independent School District) passed a resolution in 1987 which provides the following:
After the Supreme Court remanded the case, the circuit court ruled that "Clear Creek does not unconstitutionally endorse religion if it submits the decision of graduation invocation content . . . to the majority vote of the senior class." In reaching this decision, the court relied on a previous U.S. Supreme Court case which created a "test" for determining when the Establishment Clause is violated. [Lemon v. Kurtzman, 403 U. S. 602 (1971)] This so-called "Lemon test" consists of three parts:
The circuit court found that the Clear Creek resolution had a "solemnizing" but not religious purpose, was non-sectarian, and did not excessively entangle government (school) officials with religion. The circuit court also concluded that, because graduating seniors decided to conduct an invocation and/or benediction, their participation in such exercises would be voluntary. [Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992)] These are only a few cases involving the conflict between the religion clause and the establishment clause of the first amendment. Opinion in these cases clearly indicates that this conflict remains a complex and difficult issue to adjudicate. For Writing and Discussion
ROLE-PLAYING ACTIVITY Student-Led Religious Exercises This role-playing activity is a moot court which simulates a U.S. Supreme Court hearing in the case of Jones v. Clear Creek Independent School District. A. Form the class into five role groups:
B. Preparation
C. Moot Court
Officers: Alan Friedman, President; Harry Usher, Immediate Past President; Publications Committee: Jerome C. Byrne, Chairperson; Peggy Saferstein, Marvin Sears, Eugene Shutler, Lloyd M. Smith, Marjorie Steinberg, Susan Troy, Daniel H Willick; Staff: Todd Clark, Executive Director; Marshall L. Croddy, Director of Program and Materials Development; Lisa Friedman, Associate Director of Program and Materials Development; Carlton Martz, Writer; Charles Degelman, Editor; Cristy Lytal, Web Editor; Andrew Costly, Production Manager; Peggy Saferstein, CRF Board Reviewer. © 1993, Constitutional Rights Foundation,
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