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tv   Supreme Court Landmark Case Mapp v. Ohio  CSPAN  December 1, 2015 12:00am-1:31am EST

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why did you disregard the cost of all those who at the end of the 20th century had predicted that if humanity refused to change its behavior, there would be serious consequences. floods,uld be droughts, natural disasters, famines, migration, and wars. millennium you were already feeling the signals that nature was sending you firsthand. all the scientific evidence, even this was not enough to convince you? why didn't you read all of the them,ts, or if you read these provided that climate change would have dire consequences. why did you not draw the necessary conclusions? why didn't you introduce climate
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friendly technologies? why didn't you provide more support for research into such technologies? warningst you hear the of the world's religious leaders , reminded you about your responsibilities for future generations. wait toyou sit idle and what we would happen, are now all suffering from? grandpa, why did you let this happen? why didn't you act in time? gentlemen,dies and it is up to us to decide in the next coming days how we will answer these questions. as the head of state of hungary, but also as the father of four
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children, my objective and i hope yours, is to ensure that 25 years from now my grandchildren, or your grandchildren, should not be forced to ask questions like this. thank you for listening to me. [no audio] [applause] president formr. speaking on behalf of your children and grandchildren. we will now suspend work for one hour for lunch and then we will resume. i would ask that you would try yourmit the time for speeches so that all heads of state will have the time to take the floor this afternoon. thank you.
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>> on the next "washington journal," chris stewart on that the u.s. strategy for combating isis. then, from unrepresentative peter welch is here to talk about the house democrats' legislative agenda. is live onn journal" c-span. you can join the conversation with your calls and comments on facebook and twitter. >> tuesday, a house hearing on the u.s. response to the russian violation of the nuclear arms agreement. the house subcommittee on strategic forces on terrorism and nonproliferation. eastern on0 p.m.
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c-span3. coming up tonight, our landmark cases series continues with the 1961 case of mapp vs. ohio, focusing on unreasonable searches and seizures. after that, bob goodlatte on some of the landmark cases in our series. then, our discussion on russia. >> all persons having business before the honorable supreme court of the united states give their attention. cases," produced in cooperation with the national constitution center. exploring the human story and constitutional drama behind supreme court decisions. 759.ial
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wade. against >> in many of our most famous decisions were quite unpopular. let's go through a few cases that illustrate very dramatically and visually what ofmeans to live in a society 310 million different people who stick together. they believe and the rule of law. >> good evening and welcome to c-span's "landmark cases." tonigh's 1961 case is mapp vs. ohio. it is a case that involves some
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background to the supreme court itself. this evolves into a case that change policing and america. we welcome you with us this program and hope you have been with us through out the series as we have been learning so much about the supreme court. >> she is based in the washington state university of vancouver. look into the series. by. hutchens is close she is the codirector of the advocacy clinic and a former federal prosecutor in the justice department's tax division. she is working on a book, learning criminal procedure.
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let's start with the basic issue in this decision. what is this case about? >> what is really fascinating is what itapp case started out as is not what it ended up as. it started out as a case about mammography and it ended up as a case regarding whether evidence should be admitted to trial. >> it has sweeping effects on police procedures. it has taken effect on many potential cases for decades to come. was ather reason why it landmark is because it shifted the way we thought about policing. it shifted the professionalism
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of the police forces. shifted the way we thought about warrants and whether the police could come into our homes. >> to get us started, let's listen to some audio from the oral argument in the supreme court. this is the first case in our series where the court has begun recording all of its oral arguments. this is the first time when we can let you listen into the arguments made before the court. let's listen to a bed and then we will come back. bitet's listen to a little and then we will come back. mapp demanded to see the paper and read it. which they refused to do so she grabbed it out of his hand to look at it. a scuffle then started and she put this paper into busom.
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30 readily, the police officer put his hands into her busom and removed the paper. the police officer started to search the house. now the evidence in the case discloses that there were seven police officers. mr. green, who was there and who was not permitted entrance to the house, but was kept outside says there were approximately 12 police officers in all. now, the evidence discloses that no search warrant existed. kearns was her attorney from the time she began legal proceedings in the state of ohio through the supreme court. we will be learning more about him. this deals with the fourth amendment of the constitution. we will put the text of the
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fourth amendment on screen. the right of the people to be secure against unreasonable searches and seizures and shall not be violated and no warrants shall issue. supported by of the reformation and particularly, describing the place to be searched and the persons or things to be seized. why was this even part of our constitution? >> for a couple reasons. prior to the founding of the nation in england there had been iese general warrants that love the police a lot discretion to search house and homes -- general warrants that allowed the police a lot of discretion to search house and homes. the founders did not want that unfettered police discretion. they wanted to reign in on what they could do. rights, we have the
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against unreasonable searches and seizures. if you are going to get a warrant, you have to base it on probable cause and you have to say specifically where you are searching and who you are looking for and what things you are going to cease. those clauses have been read together. for the most part in modern history, we have said warrantless searches are unreasonable. the police have not gotten a warrant and got before a judge and sworn affidavit, they can't search. that was the general rule. there are a lot of exceptions to that rule. existed the rule that prior to that. , it must been applied have a warrant for federal offenses. but only half of the states had said this applies to them. there was the discrepancy, depending on what state you live in.
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what the supreme court ended up doing was revising this and making it apply to all states. >> i did want to go back. let's talk about how important they were in motivating the passage of the fourth amendment, and passages of the provisions in the state constitution. these were open-ended warrants. anybody they deputized to go into a place of business or your home, looking for smuggled goods. it was a serious problem in the colonies. it was agreed just because customs -- it was agregious because customs officers would get money if they found stolen goods. they had incentive. the state constitutions closely mirror what we have in the fourth amendment. cases, whether or not something engaged in the search. >> people are also going to be
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hearing a lot about these exclusionary rules. what is that? >> they squish in every room says if the police break the law in finding -- the rule says if in police break the law finding the evidence, it is not admissible. applied several only against the federal government. it did not apply against the state. the states were free to essentially a violated the fourth amendment at will. the evidence would still come in during trial. >> we have a map of the states that did not require a weren't in 1957. was the court looking for some reason to do this?
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>> i don't think at the time they were looking for it. as renee said, it was a case about the search. the nature of the search was so agregious that it motivated the court to use it as a vehicle to extend the exclusionary rule to the states. clark had been looking for a vehicle. had written a concurring opinion in a case that did not circulate. he was feeling it out in his mind whether it should be reversed. a good vehicle was provided with mapp. >> one of the premises behind this series when we first thought about it is there are interesting stories behind the cases that make their way to the supreme court. people of all kinds, from secretaries of state all the way -- and to ordinary folks
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thewas definitely in category of the ordinary folks. when she died, a newspaper called her the "rosa parks" of her time. >> she was the more colorful rosa parks,ter than but she knew she had been wronged and the targeted by the police. she really wanted to fight this case in court. many people say they will take their case to the supreme court, but very few make it. and shethat confidence knew this was something she had to see through. heights,s from shaker ohio. tell us the basic parameters of her story and the crime that was
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alleged to have been committed. this is a junk, african-american woman who had a ,aughter -- this was a young african-american woman who had eight single daughter. she had been engaged to archie moore, who was a heavyweight fighter. she was very familiar with the boxing scene. part of that scene for us illegal gambling operations. in cleveland, like in many cities, they had a game where people what engage in a daily lottery for small bits of money. she was not sure on the periphery of that. new people were involved in illegal gambling. what led to the case actually, was the fact that others ,nvolved in illegal gambling
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bombed.front porch they were trying to get money from him, as well as other people in the gaming is nice. there was a confidential informant who said there was somebody involved in the bombing. there was possibly evidence of gambling paraphernalia. the police went to her house. they requested that she would let them in. she said she would not. she was yelling at her window, talking to them, saying they needed a search warrant. they went back and allegedly got a search warrant and came back. they pried open the door of her home. at the time she was descending down her stairs. theerre was a, scuffle. to aas handcuffed
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banister, and then a police officer. they were looking for a suspect, which they found in the first part of the search. the engaged in the search in her home, and her basement. they eventually found some gambling paraphernalia in the basement and they also found some books that were allegedly of scene. -- allegedly obscene. they arrested her on the gambling charge and later, it turned into a charge about the obscene material. >> don "the kid" king, many americans got to know him as don king, the guy with the crazy hair. the cleveland police department had a bureau of special
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operations investigations. 1967 andttle bit about whether or not there was tension department and the african-american community. >> to absolutely was. when we talk about what happened to her today, it and set being a little bit removed from what would have been a very scary experience for a single mother at home, in a house that is upon by policee officers. when the officers first came, they asked very politely, we need to come in. she says, why? and they did not tell her. they did not go away. house.ited around her she could not leave or exit the house. she was on the phone with her lawyer and her lawyer shows up. they do what her lawyer in the house.
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the police are banging on her back door. when you think about what kind of experience that must have been for this woman and for the bureau of the police force coming into her house. it was the bureau that was notorious for policing very aggressively, members of the black community. they routinely went into homes .ithout warrants routinely engaged in behavior that violated the fourth amendment, with regards to the urban population in cleveland and shaker heights. that is important piece to remember. if you were in your home, and a police force entered your home and did not allow you to talk to your lawyer, and handcuffs you to the bed. reaches down into your clothing, to get a suppose it warrant, which the police later admitted it was not a foreign at all. the physically assault you and handcuff you to your bed. the trauma she must have felt as
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a result of that experience ends up being underplayed. >> she was a single mother with a child, but she was part of the boxing community. she already had a laywawyer. she had been married to a boxer. >> she was well-known and not to say that excuses the law enforcement's behavior. she had been stopped and questioned by police before and she was well-known as someone who might be involved in illegal operations. it probably was not a surprise to her that they showed up. it is if you are in special engagements, you were really
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aggressive. thes later when i spoke to lead, he said, we were aggressive. we constantly engaged in searches without a wa rrant and it was commonplace. the evidence that was found could be excluding. the bureau really did target communities of color. if you look at the numbers game, or where is the policy game was happening, they were people with a lower economic status. in cleveland at the time, it was predominantly african american communities. the police used strategies like intimidation, arresting people so they then have to be in court, which means they are not engaging in illegal behavior. they used a number of strategies to try and attack what they saw as a problem in the community. >> very briefly. toon't want to paint with
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but the lawyer she had was a civil lawyer. it was not at all clear to me that she was part of the criminal element. she knew them. she dated a couple guys, what i don't know if it was a to say she was a repeat player in this world and therefore, appropriate to be targeted to the police. >> we will get about the next part of the case from the cleveland police department. in the cleveland police chief is am, they have a display about it. we went to visit it. >> you are currently looking at two documents, one is what we daily duty report. it describes what the police officers working together on that particular state did during their tour of duty.
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the second document consists of two pages and is the arrest report of mapp. best of my knowledge, they are the only existing documents left from this particular investigation. we are looking at the arrest report of mapp and details what happened on the evening of may 23rd, 1957. the police say they received information from a confidential informant that there was somebody inside the residence that was involved in a bombing that had taken place at the residence of donald king. based on this information, they went out to set up surveillance. they tempted to get into the home and were denied access. according to the report, lieutenant white left the scene
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and went downtown and obtained a search warrant. with the warrant in their possession, they then gained entrance into the house. it was at that time that they secured the almapp. ot a maintained that they g search warrant. they mentioned in the report that an opposite went downtown to -- that an officer went retained a search warrant. the search warrant was never presented at the time of trial and never ended up at the supreme court during the arguments there. i don't believe the officers ever had any idea that this arrest and search was going to end up in the u.s. supreme court. >> what is your reaction? >> it is remarkable that years
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later there is still a story about the lack of a search warrant. what they had was an affidavit for a search warrant. he said he had examined it closely when they engaged in the search and when they detained mapp. they knew when she had been arrested there was no search warrant and yet, up until the case in the supreme court, they insisted there was a poor and, but did not have -- there was a warrant, but they did not have it available. that light was perpetuated in that report and the retelling of it. arrested on gambling charges, but those were dropped. days later, she was charged on the obscenity, the of seeing material. -- the obscene material. >> that was a serious charge.
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because theitted material was far away from her. over the weekend, the officers went and went through an arrest report and indicted her. state, if one is convicted of violating the law, the sentence is 1-7 years and has a $2000 fine. it is a felony. after she was arrested and indicted, it went to a grand jury. wrere theat for the norms about of sanity? >> what tells you about the time period is what mapp did when they came to her house with the
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warrant. when the police come to her house and she snatches the affidavit and shoves it down her blouse, as if that would somehow protect the police from ever again getting it. usom, it was her bos protected. things that are visually pornographic, or are depictions of nude bodies, should not be seen by decent and common people. >> how with these materials of the viewed by our standards today? >> there was a pencil drawing that depicted a sexual act. these are something you might see in a high school. it is important to note. san waobround of
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scenity was not settled at this time. there was a case in 1959 call smith vs california that dealt material by book sellers. they said it was unconstitutional to prohibit the selling of obscene material. , but a cleart a law law about obscenity. >> why was the time between her arrest so long? >> it was a very busy general court. area. a very large, urban
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they took a long time for cases to move through the system. initially, kearns, her lawyer, wanted her to plea out. but she wanted her day in court. negotiated a to plea without her knowing, that infuriated her. that did not go through because the prosecution wanted it to go to trial. it took a long time because of the crowded court system. next, you will hear our only piece of video. before we do that, we hope you will call in with questions or comments about this case. you can do it by dialing these numbers it is. it is divided geographically. please dial carefully to get to our studio and we will get your questions as they come along.
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you can also tweet us. please use the hashtag #landmarkcases. >> very few called me by my phone line. ull name.y f i did everything i knew how. i thought i had been treated wrong. illegal.h was if the search is illegal, you have the law on your side. sheou say when you met her, still had that determination?
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>> absolutely. >> how did she find her lawyer, kearns? >> he was a civil lawyer that went all the way to the supreme court. >> he was a criminal defense lawyer, but she had him for a civil case. she had secured him for that reason. he was doing both, which was common for someone at that time. >> would it have been the only case he argued before the supreme court? >>, certainly. she went to trial and was found guilty for possession of the obscene literature. how to proceed to the next age? -- the next stage? >> one it went to the ohio supreme court, they affirmed her conviction. what they also did was look at the constitutionality of the law that dealt with o
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obscenity. justiceshe supreme felt the loft was aw was unconstitutional. supero, you need a super, majority to strike it down. there is a unique quirk in the constitution. it was actually upheld, even though the majority of the seven justices thought it was unconstitutional. the search was addressed in the case. the courst was concerned about the search of being illegal. there was an ohio state theedent which said that in state of ohio, illegally seized evidence could still be admitted to criminal trial. that is why there was no exclusionary rule.
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>> we have our first caller and appropriately, from cleveland. much., thank you so i live very close to the home. i have heard of this case before, but i did not know it was in cleveland. i question is, how relevant is this case today? now inad a case right cleveland similar to this -- i want to know, what it still be in use today? yes, ithort answer is, is used all the time in course routinely. anytime a suppression motion is filed, it is mapp vs. ohio. it has been cut back a lot because of the restrictions on rule, but itnd ever exclusionay
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is still very much in forst. you is, theon for a bunchcourt has made of exceptions. have these exceptions weekenaked the position? >> absolutely. this is one of the real tragedies here. the basis for the decision was that it was constitutionally required. the underpinnings of mapp had been eaten away over the years. now they look at the exclusionary rule very differently. right now, the court looks at whether the rules would deter the police conduct.
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there are a tremendous number exceptions to the rule. it is almost as if the foundation of mapp has been eroded. >> we now have a call from stewart in washington. >> i have a question for the speakers. the cousin it is such a controversial court case and seizures, search and a sensitive issue, how would you say the precedent being applied in let's say a court case where the supreme court -- how would it be applied today? we see the cord working in cycles where they don't like to follow rules and apply different presidents. i would like to know how people would apply it if it came up
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today. caroline wasat saying was right. it is being applied much more restrictively today. when it first announced the said, onery rule it evidence is illegally contained and courts engage in allowing convictions based on that evidence, it effects integrity. and, we want to deter bad police conduct. the only justification for the rule we are seeing is the deterrence rationale. that only restricts reckless police behavior. narrow kind ofre police behavior affected by the exclusionary rule today. statesr to mapp, did the
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since with the searches they could do it without a warrant? weeks, there was a gentleman named fremont that the federal and state government thought was violating the law, i believe it was in regards to gambling. the state police went in initially and searched his home. his neighbors told that where the key was. they found some stuff inside the house. the state officers turn that over to the u.s. marshall and backthe u.s. marshal goes to his home and searches again. in that sense, state and federal were working together in cooperative spirits to ensure that federal convictions were had based on evidence. you discuss law
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enforcement tools for parallel construction, allowing illegal evidence to find a path to legal evidence? >> yes, and a couple of different ways. the primary way we see this is the veranda context. -- is in the miranda context. rights youhe miranda hear on all of the evening tv shows. if the police violate your discoverights, but physical evidence as a result, that evidence can be admitted. there are some constitutional violations that can happen that result in other evidence that is allowed in. >> let's back up a bit to go forward. seven supreme court justices voted to reverse, but
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she lost that appeal because there is a technicality in ohio law that a super majority is required. >> whenever there is a federal question, you can appeal to the supreme court. that is what kearns did. mapp wanted to take it as far as she could. as we were talking about earlier, obscenity was an issue the supreme court was exploring tentatively. when we look to the records of the warrant, we found eight of the nine justices granted it. they really wanted to hear this case. there was one holdout, justice frankfurter. he did something remarkable. he declared using the incorporation doctrine that the fourth amendment was a fundamental freedom.
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>> the ordered liberties of being an american. in the en said that the exclusionary rule, which he called a remedy should not be extended to the states. he did not want to hear this case. he is famous for not wanting to re-hear his decisions. eight of the nine justices granted review. >> welcome to our c-span audience, if you are watching us live. we're discussing the decision of mapp vs. ohio. mapp was arrested under an obscenity charge in ohio and took her case to the supreme court. it ended up being a case about searches without warrants and became a landmark case. the case is making its way to the supreme court.
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justices have joined. arenew faces on the court and john whitaker. where are the factions? >> >> what you had was the liberal branch led by william brennan, hugo black, then the conservative side including the newcomers harlan whitaker and felix frankfurter. had tom clark, who sometimes went between the sides. was a u.s. attorney general. he was involved in the exclusion orders, working with the earl
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worn at the time. he was a truman appointee. he was interested in civil rights issues and anti-, and is him. -- he was interested in civil rights issues and anti-communism. he was a little bit tall over the map. so you had for justices characterized as liberal, and then four who were more interested in judicial constraint, conservative. susan: we are going to hear next from dollree mapp's attorney. how did she have the money to afford this? >> that she did not. she had a an unnamed benefactor from the beginning. it cost about $8,000 to go to the supreme court. she had someone who sent her money. that helped in her legal defense. i tried very hard to get a name out of her but i was unable to do so. susan: for those just joining us, this is the first case where we can the hear the audio of the oral arguments from the supreme
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court. the supreme court began a taping system, which it maintains today. >> here as a woman who is lawfully in her own home. she is not anticipating anything like this. she is not exhibiting it, trying to sell it will stop assuming they did find it in their home. the sentence imposed upon her is 1-7 years for exercising, let us say, her right to look at it. a book that she should not look at. to have in her possession a she should not have. not that she is a criminal. not that she has a former record. but 1-7 years imposed upon her for daring to have a book of this sort in her home.
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susan: so, as you can hear, their important that was the first amendment argued to the justices. next we will hear from the other side. who argued those? >> gertrude. she was about 52-years-old. she was a pioneer in the legal profession. it was not her first case. this is a part of her oral argument, making ohio's side of the case. >> ohio does not follow the exclusionary rule and this court has held that the state has a right and it is not in the violation of the amendments to admit evidence even though it was obtained without a search warrant. >> we are hearing the warrant side, rather than the obscenity side. >> ohio was arguing, i think,
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probably on fairly strong grounds that it did not matter whether the search was illegal. really what the justices should be focused on was the obscenity peace, not the warrant. who really cared if they violated the fourth amendment? the fourth amendment did not apply to the states at that time. why did it matter? the specific question before the court was a singular one. the question before the court was, were the confiscated omeerials found in mapp's h protected by the first amendment? the case took a very different twist. we will take a look at the intrigue in court that changed the direction of the case. hi greg, you are on the air.
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>> yes, i have a question about how mapp applies to the collection of an essansa data. susan: thank you. more and less wiretapping of data has been a big issue for the past decade. does mapp apply to that? >> it is different. the nsa is a federal agency and it would be covered. wiretapping for the most part, by title iii. there are statutes that regulate the covering of wire. it would be the statutory peace. susan: hi, edd. comment on the life
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of the decision in the popular media? police crime dramas often showed the need for a warrant as an obstacle to getting to justice. they kind of ignore that requirement. do you think that shows they are trying to dissuade public opinion? how do you look at it? >> did this case make it way it's the popular culture? ask it has, unfortunately. i think with miranda, unfortunately, because people are familiar with their rights. we have police serials to thing blame for people misunderstanding their rights. usually there is a case, there is evidence, it has been obtained illegally and a serial murderer goes free. so people have this impression of evidence that has been gotten them legal means has led
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to criminals being released from prison. a lot of very good social science research has been done on the exclusionary role and we find that it has led to motions to suppress evidence, that when it is actually used, rarely does it lead to non-conviction. people are convicted anyway. in the case where there was somebody who was not convicted, we are talking about low-level crime. one scholar found that usually these sentences were under what one year. it does not make for a good television show for someone to possessionr positio charge dropped and go free. >> there is also this notion that criminals are going free because of the exclusionary rule, but there is another side to consider. the language the court used in
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mapp was, the criminal goes free is whatust, but the law sets them free. is the teacher for good or for ill. it teaches people by example. the government becomes a lawbreaker by contempt for the law and invites every man to do so. in invites anarchy. i think that is at the core of the exclusionary rule and something we should not forget. >> larry, in inglewood, colorado. >> thank you for another great episode. i wonder, this originated in ohio. given the era, it would be less surprising if i heard it came from the south. did racism play into this case as much as it seems to from watching the episode? susan: thank you. you talked about that earlier, so let me turn to carolyn.
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of investigations was moreminantly going after african-americans. i do think it played a role. i think even carl delisle would say it played a role. if it happened to be in the community, so be it. so, i think that, in addition to how mapp was treated by the police, shows race was an issue here. this was in the late 1950's. mapp vs. ohio was decided in 1961. aggressive police techniques were not only in the south. of course, they persist today. susan: next, josh is watching us in algona, iowa. hi, josh. josh: in recent years, how has court curtailed the mapp vs. ohio ruling?
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>> that is one question i will wait until the last segment. josh, i am going to entice you to stay with us for another so we can get an answer for you. next up, ron in texas. ron: hi. i am a lawyer of 44 years, practicing in texas and then federal court. roe vs. wade, among others. but, i am just wondering if you that every big city has a judge sitting by all night who rubberstamps the search warrants. i mean, they just come in and the cop swears to whatever and
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the judge signs his name and then the search becomes, presumably, legal. e you aware of that happening? or is texas kind of bad? [chuckling] but it must be, i am sure it is the case in other cities. >> did that happen as a result of mapp? >> there are certainly judges who signed off and rubberstamp affidavits for search warrants. the beauty of what mapp did was allow that to be excluded. -- allow that record to be reviewed. to allow evidence to be excluded, eight viewing court could decide whether or not a
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judge should rubberstamped. >> hello. thank you for taking the call. i have a question. i just a understand this exactly. if the fourth amendment was from the federal government, the central government guaranteeing legal search and seizure for americans, how could any state a bridge those rights? doesn't the federal government supersede state laws and what states do? i am confused. >> it is rightfully confusing. the constitution, at the time it was created, was seen as a check on federal government because it was federal government that we where most afraid of at that time. we were not particularly concerned about state government. the first eight amendments of
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the constitution were seen as limitations or constraints on the federal government. it was not until the 14th and thet was passed court began to selectively incorporate pieces of the first eight amendments into the 14th they functioned as a limitation on the state government. we then sat limitations on both the federal and state government. the landmarks how cases start to fit together. the next stage, for those who do not understand, where the justices going to closed rooms. no clerks are allowed. they discuss the case. that happened march 31. article where he thought a rump caucus was heard. the issue had been transformed so much.
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the conference -- or the rump caucus, happened in an elevator. tom clark was in an elevator with william brennan and you go black. black.hugoo them - issue of the clause dominated the conversation. all nine justices said the amendment was unconstitutional. question, the illegal search and circumstance. this whether this was a good vehicle to revisit that decision. he was thinking about this when he left, and that is when he introduced it to hugo and brennan.
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he had really been thinking about turning this into a fourth amendment question. they said, are you serious? ted to be had star persuaded. brennan provided support to use this as a vehicle . it was used as a vehicle to overturn wolf v. colorado. black.dout was justice he did not oppose the idea, but he did not jump on board. justice black was tricky. he really wanted a fifth amendment to be incorporated to apply against state action as well as the federal government action, and so he was going to be a tricky vote.
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the process of deciding this case was the process of tom clark keeping the four justices and then winning over justice hugo black. assignedclark had been to write the opinion in this case and he had begun to shape it in a different direction. felix frankfurter was infuriated we heard. why? >> because he had written the case that said the exclusionary rule does not apply to the state and his case was about to be overturned and he did not think there was a reason for it. >> and he knew it was going to be overturned and that is why he voted against review. he focused on the obscenity question. what is interesting about oral
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arguments. frankfurter was infuriated. at one point he said, would you just tell me what the issue in this case is? areept on asking kearns, you overturning wolf vs. colorado? he was so frustrated that if one point, he just turned his back and would not listen anymore. but during the oral arguments, the ohio branch of the american civil liberties union, the first time they had done this as an amicus curry advocate. they argued briefly that maybe the course should reconsider wolf v. colorado. it was not straight out in front of the court passea as an exclusionary rule.
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>> it was a very broad statute. if you possessed a book that you opened and closed really quickly and never wanted to open again, but you knew obscenity was in it, you could do seven years of time in ohio. susan: the decision was issued in 1961. here is a snippet from what justice tom clark wrote in this decision, changing it into a fourth amendment case. he wrote, having once recognized right to privacy is enforceable against the state and the right to be secure against rude
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how many votes did it get? >> that got four votes. justice black agreed with the judgment but says and his opinion it was on the third and fifth amendment, not the fourth amendment standing alone. there were four dissenters. authored by justice harlan, joined by frankfurter and whitaker who said, we are surprised. we thought this was an obscenity case. if this was a case about the exclusion role it should of been briefed and argued will stop a disagreed with the outcome. another justice, justice stewart, wrote a memorandum. saying this is horrible, this is
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unconstitutional. a 5-4 case. susan: there is still controversy among the constructionists about what the court did in this. that will be our final half-hour. before we get to that, dollree map, has a major victory in the supreme court. what happens after that? have a it was short-lived. she moved to the state of new york in 1968. cambridge heights, where she purchased a home. she was already interested in furniture. she was running a furniture store, hired a young man named alan lyons to manage it. one day a confidential informant said she was selling narcotics. the police engaged in surveillance of her home for a number of days. surveillance of lyons. thisgot a search warrant
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time. they searched both her home and his apartment. iny found some narcotics lyons' home. they arrested both of them because mapp was connected to the apartment because he was helping pay the rent. they were released the next day. several weeks later, another confidential informant said there were stolen goods and narcotics in mapp's home. so they obtained a search warrant, surveilled her home, and found narcotics. she received 20 years to life. it was a class a felony, mandatory sentence. the harshest mandatory sentence at the time. part of it was political, governor nelson rockefeller was running for the presidency and really pushed for the strong anti-drug laws. she was convicted and went to prison for a very long time. she went to the correctional facility for women and bedford hills. she went in in the same way she
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went to court for mapp v. ohio. she was sure of herself, she admitted that she had been involved in some wrongdoing, but she was unapologetic. while she was in prison, her personality can be described with a couple of and it notes. one is, a few weeks when she first got there, she was coming out of her cell and one of the guard said, hey dollree! and she said, who is that? you don't know me from anyone on the street. you can call me ms. mapp. so, she commanded respect will stop she tried to be her own person in prison.
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there is a wonderful and it captured which said, she would not eat in the cafeteria. she wanted her food to be brought to her because she felt like eating at the cafeteria was like pigs in a trough. so she demanded her food to be sent to her, and she also had people sending food to her. she wanted to be her own person. in 1980, her sentence was commuted. along with 15 other inmates, people who had been sentenced under some of these draconian laws. there is another fun and it. as she was leaving, one of the guard said, will never forget you. her response was, i have forgotten you already. that is how she left. she returned to queens, she was involved in an organization called the volunteer of attorney service team, where they provided legal advice to inmates. she had a number of business ventures.
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real estate, seamstress. she was always looking for ways to improve herself. she really left prison the same way she entered prison, the same way she acted when those police broke into her home in 20 under her blouse for the alleged warrant, which is somebody who really commanded respect. she was very unapologetic about the choices she made. as she said in the clip, i lived my life as i saw fit. susan: she got involved in legal advocacy, but did she did she really become a spokesperson for her case? inlater in life, i met her 2005. she had a fantastic story to tell. most of her work was somewhat behind the scenes. her.e wanted to speak to she was not as public as some
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people made it. her, i hadhed out to written her several letters. i was 30 minutes late to her house and she was waiting for me on her porch, so upset. she didn't want to talk to me and said i really had to could cajole her into talking about the case and i think she felt sorry for me. let me speak to her. i had several interviews with her later. susan: we will talk about the legacy of this decision on policing locally but also on federal law. before we do that, a couple more calls. bruce in arlington, texas. >> thank you for having me on.
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from my understanding, the mapp versus ohio and the roe versus wade had the right to privacy. i want to know what the line of reasoning pursued by others to refute that idea. thank you. >> it's always a misnomer when we speak about the right to privacy and the fourth amendment. there is no specific right to privacy articulated in the fourth ammendment. the fourth amendment says you have the right to be free from unreasonable searches and seizures. but that's not necessarily saying you have a right to privacy. and it came to this very slowly under griswold versus
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connecticut. and roe versus wade, you had to privacy right articulated a little more clearly in the due process clause in the 14th amendment. that's when you see the court returning for this generalized right to privacy. clause andcess the liberty component of the due process clause rather than the fourth amendment. >> the only slight modification i would make of that is if the court has recognized particularly there is at the core of the fourth amendment is a concern for privacy. susan >> especially in your hom. susan: robert is in new york city. >> i've been on hold and you covered the issue i wanted to ask about and acquire further about. in the mapp case, it was the american civil liberties union and particularly bernie berkman who did the work on the fourth
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amendment issue and it was kerns who confined himself to the first amendment issue. berkman and jackie date were looking for this case for a very long while. they knew that could be overruled and when they found dolly mapp's case, it was berkman who did all of the work on the fourth amendment issue. that is my comment. want toommentators add to that, i'm sure they can. >> it was a group of three attorneys from the ohio civil liberties union that really did the work on this case. it is true that berkman wanted the fourth amendment issue to be argued and there is that paragraph where he is asking the
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court to overturn wolf v. colorado in the brief. really it was one paragraph at a 20 pages of the brief. he wanted it to be longer, you are absolutely right. he argued with his colleagues about having that be the focus of the brief but they really wanted to tease out the obscenity issue as well. but berkman -- the first thing he said was we want to overturn wolf versus colorado. he is the one who asked to have time at oral argument at the u.s. supreme court. it hadn't been done before that a member who wrote a brief would read the arguments. berkman took it upon himself to contact kerns and say he would like to present oral arguments. it was important for that reason as well. larry is in naples, florida. >> i would like for you to
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comment on the week decision that brought about the verdict. i think the supreme court starting with weeks going all the way up to mapp was the start of judicial activism. i would like for you to address that and that it has led us where we are now, is that not correct? much. thanks very as the start of judicial activism? >> i think the court was certainly a more activist court than previous courts have been in the liberal direction. i think the court was seen as starting the criminal procedure revolution and created a number of cases that expanded the right to criminal defendants. i wouldn't say it's fair to say
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all of the decisions out of that court expanded rights. it's a number of significant decisions that significantly curtailed rights of civil defendants in ways that have repercussions to this day much to the unwinding of civil liberties we see in future courts, they find their footing in language from the warren court. susan: senator patrick leahy is the senior democrat in the senior judiciary committee. we spoke to him and other members in preparation for this series. we will show you a clip from senator leahy on the impact of mapp today. >> the idea we had a blanket sweep -- that is not going to make us safer. rules. to go back to the the example i use is this. if you had papers in your desk at home, you fully expect the police want to come in and look at those papers and will have to
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get a warrant to come in and look at them. if you are holding those same files in the cloud and you have it somewhere on the internet, shouldn't they have to follow the same rules? it's your privacy we are talking about. if you collect everything, in many ways, you have nothing. learn to do better analysis of it. at 9/11, we had a very few people looking at this material who could speak the languages of those in the wiretaps. we learn from that. it doesn't make us less safe to follow the rules of law. susan: senator leahy, in a broad scope, thinking about how
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important warrants are to our civil society. thoughts on that? >> i think they are extremely important and the more we sped up liberty and safety as oppositional on ideas, the more distracted we get from the real issue. inconsistency between liberty and safety. there is no reason for us to believe we cannot have law enforcement with limited power that are still able to keep us safe. carol was talking about it earlier about the statistical studies and what they have shown with regard to the cost of the exclusionary rule. they are not as significant as they are made out to be. significantt a numbers of lost procecusions by forcing police to play by the rules. susan: the court continues to
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take up these cases about the rights of the accused and about warrants. here are a few of them. stafford united school district versus reading in 2009 involving a strip search of a middle schooler. maryland versus king, collection of dna. city of los angeles versus patel, warrantless search of hotel registries. there have been limitations placed on the mapp decision over time. next, we listen to three supreme court justices. two current, one former, and their thoughts on this issue. we begin with justice souter and sotomayor on what's called the good faith exception. >> if a mistake which leads us to conclude there has been a
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fourth amendment violation, it was a mistake not made by the police but made by the judge who issued the warrant, that should not preclude the introduction of evidence on the theory described in ohio. if the mistake is not the mistake of the police, you gain nothing in influencing police conduct. >> you don't want the police of violating the constitutional rights without probable cause. that is why you have a judge make that determination. that's why you require them to go to a judge. what i had to look at was whether we should make the police responsible for what would have been otherwise a judge's error. they gave everything they had to the judge and they said, i don't know. even if they thought they knew, that isn't what commands the warrant. if the judges review. susan: these questions were coming up at the supreme court level and the appellate federal level. your thoughts on that?
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>> the thing i think is important to remember is it was intended to encourage police to use warrants. that was the point of the good faith exception. the officers had what they thought was a good warrant. it turned out not to be. the court and encouraging them to rely on warrants in the first and said if you rely in good faith upon a search warrant you think is a good warrant, we will not penalize you for that by excluding the evidence. but since leon, the exception has been expanded out to include cases that have nothing to do with warrants at all. it includes the police rely upon a database that the court isn't
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maintaining, the good faith exception rule will apply. if they are relying upon a database they aren't properly maintaining, does it apply? it has ballooned out beyond what i think its original boundaries. >> is important to note why this has happened. if you look at the weeks decision in 1914 and then the mapp decision, they rely on a different foundation and then these subsequent cases. the reason for it was that it was part of the fourth amendment. you couldn't have a fourth amendment without this rule that says if you obtain a legal evidence, you should be excluded. also this rationale about judicial integrity. the court saying one of the reasons we will not allow illegal evidence is we don't want to be party to allowing illegal evidence in trial. we are a court of law. we comply with the constitution. those rationales have given way to the idea that you only exclude evidence in cases which deter police misconduct. the good-faith exception is you will not deter police
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misconduct. when you bring it to this idea about deterrence, you have completely eviscerated the foundation upon which the exclusionary rule applies. i think people need to understand how this foundations have affected the court's jurisprudence and some of the dangers that we incur when the court changes its mind about how it decides cases. susan: when edwin makes was attorney general, he hoped to overturn mapps. we have a clip from the sitting chief justice where he talks about some of his use of the mapp decision. >> our cases have applied what is known as the exclusionary rule under which illegally seized evidence cannot be admitted in court. this is a judicially created rule. it is not an individual right.
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instead it aims to deter violations of the fourth amendment. the idea is if the police cannot is evidence from an illegal search, there is likely to be fewer illegal searches. given that purpose, our precedents establish the rule does not apply when it will not result in real deterrence or the benefits of the deterrence are outweighed by the cost. that cost, of course, is the prospect that the guilty and possibly dangerous will go free. susan: your comments. >> i completely disagree with him. you hear in his comment on this embracing of the deterrence rationale and the idea the rule is judiciary created. but give me any sort of role that isn't judicially created. all of these rules are
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judicially created. what roberts misses is the years between weeks and mapp where this is about how this is constitutionally required. tom clark had a great quote where he was criticizing colorado. he said the case was like an empty gesture. it was like what chief justice hughes used to say. it's no use to have a constitution. it is just a piece of paper unless you live by it and enforce it. that is what mapp and the fourth amendment is all about which is you need to have that exclusionary rule in order to realize the promise of the fourth amendment. if you don't have it, the you have options of people filing a civil suit against the police they will lose, having the police police themselves, which may or may not work. or having prosecutors go after
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police who have misbehaved, which also doesn't happen very often. there isn't any other way you can realize the amendment without the rule. ali is correct about the fact there is prudence during these courses, using the evisceration of the rule but he is wrong in terms of how it came about and how it was originally described. susan: we have about 12 minutes left. i want to talk about the impact of the mapp decision on policing in america. you will start by listening to the chief justice earl warren before he retired. this was the first in a series of cases that really had to do with criminal rights and overall was seen as making many changes to police procedures, criminal rights, criminal prosecution in this country. earl going to listen to warren talking about that. and then you will also hear from retired cleveland police
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sergeant robert sermak. >> i think the work of the police has been improved through the years. i think it's on a higher standard now than it was when i first went into the law enforcement business almost 50 years ago. i'm very hopeful that it will continue to improve through the years. >> i was privileged to be able to teach at a the police academy in cleveland and part of what i taught was search and seizure. you always had to go back to mapp. that was the bottom line, the foundation of where we had to go from this point forward. and it was very important that the reasoning behind the mapp decision was conveyed to the new officers so they would understand how important it was to follow these rules. i think as a result to the mapp
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case, it has forced police officers to work a little harder, to be a little more conscientious, and in the long run, whether we like the decision or not, it made us better cops. when we went to court with that information, when we went to court with the evidence obtained with that search warrant, we were much more likely to get convictions. susan: this is your area of expertise. didn't make the police work harder but be more constructive? >> we found it increased professionalism. to the extent that police forces were bound by the exclusionary rule, they did have to up their game, so to speak. they did have to become more professionalized. the right protected by the fourth amendment are not criminal rights. the expansions seen under the
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warren court were not expansions of criminal protection. they are all of our rights, protections. we cannot confuse the message with the messenger. the message is a fabulous message about limitations on arbitrary police authority, which affects you and me as much as it affects the guy on the corner with a bag of heroin. he just happens to be the messenger and we cannot dislike him and therefore dislike the rights protected for all of us. susan: comments? >> i completely agree. these are rights everybody has and we forget about that because we focus on the criminal. the critics of the rule do so as well. ammunition.hem when it was first handed down, there was a tremendous outcry from law enforcement. what we found is they learned to train themselves. they did increase professionalism. there was a study in 1988 what which concluded that the exclusionary rule didn't hurt that administration of justice,
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didn't lead to an increase in crime, it wasn't an obstacle to law enforcement. essentially you could have it and still have effective law enforcement. most officers don't maybe embrace the rule but they know how to operate within the bounds of it and within the bounds of these limitations of the exclusionary rule so they can learn to operate around it. he is right about this professionalism but what he also said in his autobiography is you have to look at these decisions and also look at how the court looked at issues of race and inequality and communities targeted by the police. they were predominantly communities of color. it's important you make that
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link in criminal procedure evolution and what was happening in these communities. susan: which brings us up to contemporary times. we are also discussing police tactics in this country. wild and wonderful asks which of the exceptions to the rule are more commonly used -- >> that is tough to answer. there are three sections to the rule. if the police can prove that the illegal unconstitutional act that happened so far removed from the discovery of the evidence, that's considered attenuation and that will be an exception. inevitable discovery requires quite a bit more in order to establish it. the police really have to be able to show they would have almost certainly discovered the illegally-gotten evidence anyway. it's a bit more difficult for them to demonstrate inevitable discovery.
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another option is independent source. if they can show, sure we busted down the door of this person's house but we had an anonymous tip that -- so we would have been able to get to this evidence in another way. it's difficult to say which they use most frequently. i would say inevitable discovery is the toughest. susan: he wants to go back to the decisions of the court. >> why didn't they concur? that's a great question. explore that't book. >> it was not a first amendment basis for the majority decision. it was entirely about the fourth amendment.
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>> is asking why didn't they join the concurrent on first amendment grounds? i think he is asking about the dissenters. >> why didn't they find common ground on the first amendment>>. >> sort of. it is part of the confusion. let's take a call. caller: it is a pleasure to listen to all of you. i have seen a few of these programs and i think the decisions by the supreme court should be carefully protected. this case and others demonstrate weakened byns are subsequent courts. this does not in a fit the citizens of the country. --


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