Civil liberties and associated controversies reflect the basic sociological issue of what may comprise the requirements of a free yet sustainable society. Classical interests of social thought directly or indirectly concern civil liberties because they address the degree to which individuals may exercise autonomy within the bounds of enduring social relations and community needs. Some of sociology’s most venerable research has focused directly on civil liberties. Stouffer’s Communism, Conformity, and Civil Liberties (1955) served as an intellectual punctuation mark on the McCarthy era, the period during which public discord over civil liberties reached its most intense state in the post-World War II world. Sociological thinking and research has helped American intellectuals and policy makers frame the issues associated with civil liberties and understand the implications of decisions regarding civil liberties for the well-being of society.
Civil liberties may be understood as legally protected areas in which the individual may function without interference by the state or the broader community of citizens. ”Civil liberties” are analytically distinct from ”civil rights.” Civil liberties concern the individual’s freedom from the broader society and its laws. Civil rights derive from the individual’s claim on society and the state to give him or her equal protection through the state’s police power and equal rights regarding public facilities, services, and largesse. Civil liberties concern the individual’s rights to think, speak, and act outside the state’s apparatus andjurisdiction. Civil rights address the individual’s claim on equal access to public resources such as buses and schools, protection from harm by state agencies, and participation in government and politics.
Sociology offers several core capabilities to promote the citizens’ and policy makers’ understanding of civil liberties and the implications of related public decisions. Classical and contemporary work by sociologists has pertinence in three areas. First, sociological theory and commentary informed by theory helps specify the central dilemmas raised by civil liberties. Second, sociological research enables observers to discover the state of public opinion regarding civil liberties, the dynamics by which public opinion has developed and changed in the past, and the manner in which public opinion may unfold in the future. Finally, sociological thinking and research serves as a resource for understanding the potential consequences of public decisions regarding civil liberties in the years to come. This last capability can aid public decision making and help lay groundwork for achieving the broadest range of civil liberty in society while maintaining the social cohesion necessary to ensure stability, continuity, and affirmation of individual life by core social institutions.
Debate regarding civil liberties has traditionally concerned freedom of expression and due process. Positions regarding freedom of expression have sought to protect the right of individuals to publicly support politically unpopular causes or to display or publish material others may view as objectionable (e.g., pornography). Due process issues have focused on the rights of defendants in criminal cases and claimants in civil and administrative proceedings. Civil liberties advocates have drawn core support from the Bill of Rights and subsequent amendments to the U.S. Constitution safeguarding free speech, prohibiting unreasonable search and seizure, and limiting the criminal justice system’s ability to require citizens to give self-incriminating testimony. Civil liberties advocates depend heavily on legal doctrines and devices derivative of the Bill of Rights such as fairness, equal protection of the law, and the right of privacy.
The late twentieth century saw a vast extension of activities to which the status of a civil liberty was applied. The 1998 edition of the American Civil Liberties Union’s (ACLU) The Year in Civil Liberties, for example, reports challenges by ACLU units to practices and policies such as:
• Religious celebration in public settings (viz. school prayer and holiday displays),
• Youth curfews,
• Prohibition of marijuana use for medical purposes,
• School vouchers,
• Wrongful dismissal from employment due to politics or sexual preference,
• Restraint and corporal punishment of prisoners and ”high-risk” legal defendants,
• The death penalty,
• Prohibition of public funding for abortions,
• Legal barriers to adoption of children by lesbian or gay individuals or couples,
• Restriction of legal marriage to heterosexuals only,
• ”Sodomy” laws.
According to the ACLU document, these laws and policies belong to a common category of threats to ”fairness, freedom of expression, equality, and keeping the government out of our private lives.”
The ACLU does not unilaterally speak for those concerned with civil liberties. But controversy surrounding the ACLU’s extended definition of civil liberties recapitulates central issues in sociological theory, social thought, and public policy. Early social theorists emerging from free-market economics and utilitarianism encountered (wittingly or by implication) the question of what holds society together, given that individuals ”naturally” behave in an atomized manner. Modern participants in civil liberties controversies confront (again wittingly or by implication) a tension between unrestricted individual liberty and the needs of the community and requirements for viable social institutions.
Etzioni, in an essay commenting on the ACLU’s expansion of concerns, emphasizes contradictions between individual liberties and community needs (Etzioni 1991). He stresses the necessity of modifying constitutionally protected individual rights in instances of compelling social exigency. Examples of such modification in the late twentieth century included x-raying of luggage at airports, conducting voluntary fingerprinting of children to facilitate their identification if kidnapped, contact-tracking for people infected with HIV, and mandatory drug testing of workers whose impairment endangers others, such as train engineers. Although these measures have enjoyed public support and none has materially affected the basic rights of the general population, each has been the focus of civil liberties controversies and actions.
Etzioni characterizes opposition to measures such as these as ”radical individualism,” encouraged at late century by an imbalance between ”excessive individual rights and insufficient social responsibility.” His analysis characterizes the U.S. Constitution as broader than a code of legal provisions to protect the individual from government. The law of the land is also a reflection of ”public morality, social values, and civic virtue.” Eclipse of these elements of civil society, Etzioni implies, precludes even marginal modification of legal traditions in the face of compelling social need. He warns that resulting governmental paralysis may ultimately give rise to popular disillusionment, social distress, and abandonment of safeguards to personal liberty on a far greater scale than the marginal modifications initially proposed.
Another critic of ACLU positions alleges that the imbalance between one-sided civil liberties protection and community needs has already affected American social institutions adversely and to a significant degree. Siegel (1991) writes that ”the libertarians and their allies in the courts have . . . reshaped virtually every American public institution in the light of their understanding of due process and equal protection under the Fourteenth Amendment.” This reshaping has had an ”elitist” quality, proceeding through abstract legal reasoning and argument but materially harmful, particularly to the economically disadvantaged. According to Siegel’s argument, civil liberties victories in court place burdens on social institutions and prevent them from responding to social reality. Siegel writes:
Civil liberties have become an economic issue as those who can afford it either flee the cities or buy out of public institutions. For those who can’t afford to pay for private school, or private vacations, and are left with junkie infested parks, who can’t afford the private buses which compete with public transportation, and are unable to pay for private police protection, the rights revolution has become a hollow victory. The imposition of formal equality, the sort that makes it almost impossible, for instance, to expel violent high school students, has produced great substantive inequality as would-be achievers are left stranded in procedurally purified, but failing institutions. (Siegel 1991)
Both Etzioni’s and Siegel’s critique of the civil liberties movement reflect sociology’s core perspective and concern, the essential tension between individualistic and social forces. More concretely, sociology’s traditional concern with civil liberties has focused on the citizen’s thinking regarding tolerance of deviation. Survey research has served as the primary source of such information.
Stouffer’s above-referenced classic sounded an optimistic note at the conclusion of the McCarthy era. His study focused on tolerance of people espousing communism and atheism, ”nonconformist” ideologies that excited widespread public hostility at the time. In separate surveys conducted by the National Opinion Research Center (NORC) and the Gallup organization, Stouffer asked respondents whether communists and atheists should be allowed to speak in their communities, whether they should be allowed to teach in colleges or universities, and whether their books should be removed from public libraries.
The Stouffer study is remembered largely for reporting relationships between two focuses of social distinction and tolerance for the nonconformist ideologies. Community leaders and people with advanced education were more likely to score in the ”more tolerant” range than the national cross section. On this basis, Stouffer concluded that Americans would become more tolerant of nonconformity in the decades to follow, since the average American was receiving more years of education than his or her parents. Level of education correlated strongly with tolerance in every age group except sixty and over.
A subtheme in the heritage left by Stouffer was evidence for personality-based causes of intolerance regarding civil liberties for deviants. Experience with European totalitarianism had led psychologists to develop the theory of the ”authoritarian personality.” Measured according to a device known as the ”F scale,” personalities of this kind were distinguished by a simplistic world view, respect for power, and obedience to authority (Adorno 1950). Statistically significant relationships were found between F scale items and intolerance in the Stouffer data. Consistent with these findings, sociologists such as Lipset (1981) claimed that authoritarianism was more likely to be found in the working rather than the middle or upper classes. It is tempting to conclude that a negative relationship between education and basic authoritarianism explains the greater willingness of educated people to extend civil liberties to the politically unpopular, and to speculate that greater education will reduce, if it has not reduced already, personality-related proclivities toward intolerance.
Later research, though, has shown the sociology of public opinion regarding civil liberties to be more complex. Early critics pointed out technical flaws in the F scale. The scale’s items, for example, were all worded in the same direction, encouraging positive responses. Critics raised the possibility that reported relationships between F scale scores and education merely reflected a positive response bias which was particularly strong among working-class respondents. Members of the working class, it was theorized, have a tendency to acquiesce to strong, positive assertions, particularly when these are presented by higher-status individuals such as pollsters.
Reanalysis of the Stouffer data and analysis of data from NORC’s 1990 General Social Survey (GSS) by Schuman, Bobo, and Krysan (1992) casts doubt upon the causal chain implied above: that low social status (indicated by education) ”causes” authoritarian personality, and that authoritarian personality subsequently ”causes” intolerance of civil liberties for nonconformists and deviates. Reanalyzing Stouffer’s data, these investigators found relationships between authoritarianism and intolerance of communists and atheists only among the more highly educated. In the 1990 GSS data, they found relationships between authoritarianism and intolerance for blacks and Jews again confined to the educated. The investigators conclude that there is no substantive relationship between class and authoritarianism. Evidence does emerge for a relationship between personality factors and both support for civil liberties for nonconformists and tolerance of minorities. But the roots of these personality factors are unknown and presumably much more complex than class-based socialization.
Changes in public concerns since the 1950s make it risky to apply the findings of Adorno, Stouffer, and others of their era to today’s citizens and social issues. By the end of the twentieth century, communism and atheism had ceased to be mainstream public concerns in the United States. Analysis of civil liberties issues regarding crime had risen to prominence. Remedies such as permanent incarceration of habitual criminals and community notification regarding sex offenders (”Megan’s Law”) had been widely adopted. Increased latitude by police for searching and surveillance of citizens was widely discussed.
Public attitudes favoring compromise of civil liberties in the interests of aggressive law enforcement seemed stable during the 1980s and 1990s. Comparison over time of poll results on the tradeoff between aggressive policing and civil liberties indicates growing support for warrantless police searches of cars and drivers. Decided majorities of respondents to Roper and Gallup polls in 1985 and 1986 approved of school officials’ searching students’ belongings for drugs or weapons, again without a warrant. The late twentieth century, though, saw no large-scale support for abandonment of civil liberties in pursuit of greater security. One trend showed a modest rise in support for surveillance of citizens, but another indicated just the opposite: the public did not think it was necessary to ”give up some civil liberties” to prevent terrorism (Shaw 1998).
Civil libertarians might feel more alarmed by the polls’ findings regarding public ignorance about constitutional rights. According to one survey, only 56 percent of Americans were aware of the innocent-until-proven-guilty principle (Parisi 1979). In another study, only one-third of the respondents correctly indicated the truth or falsehood of a statement regarding doublejeopardy (McGarrell and Flanagan 1985).
Review of the studies cited above implies two major conclusions about public opinion regarding civil liberties. First, social determinants of support for civil liberties are likely to be complex and to change over time. Second, the specific focus of concern surrounding civil liberties—for example, the rights of communists versus those of crooks— may predominantly affect their support among citizens. Continual exercise of pertinent sociological research tools is required to maintain awareness of civil liberties-related attitudes and trends; associated theories appear in periodic need of reconstruction.
There is good evidence that sociological thinking and research techniques can promote understanding of the consequences of public decisions regarding civil liberties and help balance civil liberties and community needs. Etzioni’s critique includes a recommendation for ”limited adjustment” of civil liberties in the interests of society. Criteria for activation of limited adjustment include a ”clear and present danger” of sufficient gravity to ”endanger large numbers of lives, if not the very existence of our society,” and a ”direct link between cause and effect.” As illustrations, Etzioni cites nuclear weapons, crack cocaine, and AIDS. He recommends minimal interference with constitutional rights, seeking remedies whenever possible that do not actually involve civil liberties.
Even the most measured approach to ”adjustment” of civil liberties, though, raises issues for social theory and research. Designation of ”clear and present danger” is as much a social fact as one of nuclear physics, pharmacology, and epidemiology. Civil libertarians may justifiably ask what makes crack cocaine a potential threat to society while other narcotics, while causing significant human misery, have not brought society down. Similar issues may be raised regarding AIDS, a biologically less-contagious disease than the traditional scourges of syphilis and gonorrhea. To what extent, researchers should ask, may the objective significance of these threats have been exaggerated by public emotion?
The impacts of small modifications of civil liberties on the problems these measures are intended to ameliorate should also be viewed as empirical issues. Does contact-tracking of people with AIDS actually drive some underground, making their disease invisible to society and hence more dangerous? If so, how many go underground, for how long, and by what means? Research on likely behavior of people with AIDS and other stigmatized diseases is an essential adjunct to related public decision making.
Finally, the degree to which minor adjustment may ultimately weaken the fabric of civil liberties is a necessary direction for research. Etzioni puts aside the notion that minor modification may initiate a slide down the ”slippery slope” toward government or communitarian domination by citing the innocuous nature of procedures such as child fingerprinting. But systematic examination of many seemingly small adjustments may indicate that some indeed result in cascades of increasingly pernicious modifications. Study of the conditions under which the minor modification of traditions has in fact led to their eventual collapse could form the basis of a relevant theory.
